LIBRARY OF THE THEOLOGICAL SEMINARY 
 
 PRINCETON, N. J. 
 
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 DIGEST OF IOOHUMMUDAN LAW 
 
 ON THE 
 
 SUBJECTS TO WHICH IT IS USUALLY APPLIED W^ 
 BRITISH COURTS OF JUSTICE IN INDIA, 
 
 g$i of mm 
 
 COMPILED AND TRANSLATED FROM 
 
 AUTHORITIES IN THE ORIGINAL ARABIC. 
 
 PART SECOND, 
 
 CONTAINING 
 
 THE DOCTRINES OF THE IMAMEEA CODE OF JURISPRUDENCE 
 ON THE MOST IMPORTANT OF THE SAME SUBJECTS. 
 
 By NEIL B. E. BAILLIE, M.R.A.S. 
 
 SECOND EDITION. 
 
 LONDON: 
 SMITH, ELDER, & CO., 15 WATERLOO PLACE. 
 
 1887. 
 

 A 
 
 7 
 
 
 
 
 
 TO THE RIGHT HONOURABLE 
 
 JOHN LORD EOMILLY, 
 
 MASTEK OF THE ROLLS, 
 PRESIDENT. OF THE INDIAN LAW COMMISSION, 
 
 <tc. &c. &c. 
 THIS SECOND PART 
 
 % gigcst of filoobummiiban fafo 
 
 IS MOST RESPECTFULLY DEDICATED. 
 
CONTENTS. 
 
 Introduction 
 
 I'AUE 
 
 . xi 
 
 Book I. 
 OF "NIKAH," OR MARRIAGE. 
 
 GHAPTEB 
 
 I. Of Permanent Marriage 
 
 Section First. — Form and Laws of the Contract . 
 
 Section Second. — Persons who have Power to enter into the 
 
 Contract 
 
 Section Third. — The Causes of Prohibition in Marriage 
 
 First Cause of Prohibition, Nusub, or Con 
 
 sanguinity 
 
 Second Cause of Prohibition, Fosterage 
 Third Cause of Prohibition, Affinity- 
 Miscellaneous Cases 
 Fourth Cause of Prohibition, Completion of 
 Number ..... 
 
 Fifth Cause of Prohibition, Li/ui, or Impre 
 cation ...... 
 
 Sixth Cause of Prohibition, Infidelity 
 Section Fourth. — Things connected with the Conlract . 
 
 II. Of Temporary Marriage 
 
 Section First. — The Pillars of the Contract . 
 Section Second. — The Laws of the Contract . 
 
 1 
 ib. 
 
 6 
 13 
 
 ib. 
 
 15 
 
 21 
 24 
 
 27 
 
 29 
 ib. 
 34 
 
 39 
 ib. 
 
 42 
 
yi CONTENTS. 
 
 CHAPTER PACK 
 
 111 of the Marbiage op Female Slaves . . . .45 
 Section First. — Marriage of Female Slaves by Contract . ib. 
 Section Second. — Servile Marriage, or the Marriage of Female 
 
 Slaves by Eight of Property 52 
 
 Section Third.— Of Ixteelad 57 
 
 IV. Of Causes for which Mabriage .may be Cancelled . 59 
 Section First. — Personal Blemishes in Man anil Woman . ib. 
 Section Second. — Laws relating to Blemishes . . .61 
 Section Third. — Tudk'cs, or Deception 63 
 
 V. Of "Muhr," or Dower 67 
 
 Section First. — Valid Dower ib. 
 
 Section Second. — Tufweez, or Gratuitous Surrender . . 70 
 
 Section Third. — The Laws of Dower . . . . .73 
 
 Branches from the preceding . . 79 
 
 Section Fourth. — Disputes regarding Dower . . .81 
 
 VI. Of " Kism," " Nushooz," and " Shekak " ... 83 
 
 Section First. — Kism, or Partition ib. 
 
 Section Second. — Nushooz, or Rebellion . . . .87 
 Section Third. — Shekah, or Discord 88 
 
 VII. Of Laws relating to Children 90 
 
 Section First. — Of the Establishment of Parentage . . ib. 
 Section Second. — Of the Suckling and Custody of Children 94 
 
 VIII. Of Maintenance 97 
 
 Section First. — Of the Maintenance of Wives . . . ib. 
 Section Second. — Of the Maintenance of Relatives . . 102 
 Section Third. — Of the Maintenance of Slaves and of Beasts 104 
 
 Book II.— (p. 107.) 
 OF DIVORCE. 
 
 I. Of "Tulak " or Repudiation . 
 
 Section First. — Its Pillars .... 
 Section Second. — Of the different kinds of Tulak, or Repudia 
 tion 
 
 II. Of Appendages to Repudiation 
 
 Section First. — Repudiation by a Sick Man 
 
 Branches from the Preceding 
 Section Second. — How the Prohibition incurred 
 
 Repudiations is removed 
 Section Third. — Of Rujat, or Revocation 
 
 by Three 
 
 107 
 ib. 
 
 118 
 
 122 
 
 ib. 
 
 123 
 
 124 
 
 126 
 
CONTENTS. Vll 
 
 CHAPTER PAGE 
 
 III. Of Khoola and Moobarat 129 
 
 Section First. — Of Khoola, : Its Form, Ransom, Conditions, 
 
 and Laws ......... ib 
 
 Section Second. — Of Moobarat 136 
 
 IV. Of Zihar 138 
 
 Section First. — Its Form, Conditions, and Effects . . ib. 
 Section Second. — Expiation 142 
 
 V. Of Ebla 147 
 
 Branches from the Preceding . . . . .149 
 
 VI. Of "Lian" 152 
 
 Section First. — Its Pillars ....... ib. 
 
 Section Second. — Laws of Lidn . 157 
 
 VII. Of "Iddut" 160 
 
 Sectimi First.— Women on whom it. is not Incumbent . . ib. 
 Section Second. — Women who Reckon by Kooras . .161 
 
 Section Third.— Women who Reckon by Months . . .162 
 Section Fourth. — Of Pregnant Women . . . 163 
 
 Section Fifth. — Iddut for Death 164 
 
 Section Sixth. — The Iddut and Purification of Slaves . .167 
 
 Book III.— (p. 175.) 
 OF "SHOOFA," OR PRE-EMPTION. 
 
 I. Of the Things in which " Shoofa " is established . 175 
 
 ii. of the " s*hufee," or person to whom the right of 
 
 Pre-emption belongs 179 
 
 III. Of the Manner in which the Claim of "Shoofa" is 
 
 to be asserted 182 
 
 Miscellaneous Cases 187 
 
 IV. Appendages to the Assumption of Property under a 
 
 Right of "Shoofa" 190 
 
 Questions connected with the voiding of the Right 
 op "Shoofa" 195 
 
 V. Of Disputes relative to "Shoofa" .... 198 
 
Vlll 
 
 CONTENTS. 
 
 Book IV.— (p. 203.) 
 OF "HEBBAT," OR GIFTS. 
 
 CHAPTER 
 
 I. Introductory 
 
 II. Of the Laws of Gi t 
 
 TAGK 
 
 203 
 . 207 
 
 Book V.— (p. 211.) 
 
 OF "WOOKOOF" AND " SUDUKAT," OR 
 
 APPROPRIATIONS AND ALMS. 
 
 I. Of " Wukf," or Appropriation 
 Section First. — Introductory 
 Section Second.— Conditions 
 Section Th ird. — Appendages 
 
 II. Of " Sudukat," or Alms 
 Miscellaneous Cases . 
 
 III. Of "Soqkna" and "Hoobs" 
 
 211 
 
 ib. 
 213 
 220 
 
 224 
 ib. 
 
 226 
 
 Book VI.— (p. 229.) 
 OF WILLS. 
 I. Introductory 229 
 
 II. Of the " Moosee," or Testator . . * . . 232 
 
 III. Of the " Moosa-Bihi," or Thing Bequeathed . . 233 
 
 Section First. — What may be Bequeathed .... ib. 
 Section Second. — Of Ambiguous Legacies .... 237 
 
 IV. Of the Laws of Bequests . . . . . . 240 
 
 V. Of the "Moosa-Luho," or Legate b .... 244 
 
 VI. Of Executors 248 
 
 Miscellaneous Cases 251 
 
 VII. Appendages 253 
 
CONTENTS. IX 
 
 Book VII.— (p. 261.) 
 OF "FURAIZ," OR INHERITANCE. 
 
 CHATTER PAGE 
 
 I. Introductory 261 
 
 Section First. — Causes of Inheritance ib. 
 
 Section Second. — Impediments to Inheritance . . . 263 
 
 Section Third. — Exclusion from Inheritance .... 270 
 Section Fourth. — Shares and their Combinations . . . 273 
 
 II. Of Inheritance by " Nusub," or Consanguinity . . 276 
 
 Miscellaneous Cases 278 
 
 Miscellaneous Cases 282 
 
 Miscellaneous Cases 287 
 
 III. Of the Acknowledgment of " Nusub " ... 289 
 
 IV. Rules regarding the Inheritance of Spouses to each 
 
 other 294 
 
 V. Of Inheritance by " Wula," or Patronage . . 296 
 
 1. The "Wula" of Emancipation . . . ib. 
 Miscellaneous Cases 298 
 
 2. The " Wula " of Responsibility for Offences 301 
 
 3. The "Wula" of "Imamut" .... ib. 
 Miscellaneous Cases ib. 
 
 VI. Appendages to the Legal Causes of Succession . 303 
 Section First. — Of Succession to the Child of a Moolainah, or 
 woman who has been separated from her husband by 
 Zidn, and to a Wulud-ooz-zina, or Illegitimate Child . ib. 
 Miscellaneous Cases ....... 304 
 
 Section Second. —Of a Foetus or Embryo in the womb, and of 
 
 Lost or Missing Persons 306 
 
 Section Third. — Of Persons drowned or overwhelmed in ruins 308 
 Section Fourth. — Of the Inheritance of Mujoosees or Eire- 
 Worshippers . . 310 
 
 Miscellaneous Cases 311 
 
 VII. Of the Computation of Shares 312 
 
 Section First. — Extractors of the six shares, and how they are 
 to be treated when several persons are entitled to the 
 
 same share ib. 
 
 Section Second. — Of Moonasukhat , or Vested Interests . . 318 
 Section Third. — How to ascertain an Heir's portion of the 
 
 Turhah, or Deceased's Estate ...... 320 
 
X CONTENTS. 
 
 Book VIII.— (p. 323.) 
 INHERITANCE. 
 
 PAGE 
 
 Introduction 323 
 
 Of Inheritance by Consanguinity . . . . ib. 
 
 Op Inheritance by Affinity 338 
 
 Section First 340 
 
 Section Second 341 
 
 Section Third 344 
 
 Of Inheritance by Dominion or Patronage . . 345 
 Of the " Wula" of Manumission .... 346 
 
 Of "Wula" by Responsibility for Offences . . 360 
 Of the "Wula" of the "Imam," or Doctrine op 
 
 Escheats to the Public Treasury . . . 362 
 
 Op Exclusion . 363 
 
 Of Impediments to Succession 366 
 
 Of the Doctrine of Shares and Mode of Distributing 
 
 Inheritance 377 
 
 Index 405 
 
 Index to Arabic Words explained in the Text . . . 425 
 
INTBODUCTION. 
 
 The Mussulmans of India are generally Soonnees of the 
 Hanifite sect. But practices peculiar to the Sheeahs have 
 long prevailed to a great extent in certain localities, and 
 many avowed professors of the doctrines of that sect are to 
 be found in places that were subject to Sheeah governors 
 in Mussulman times. The numbers of these votaries would 
 naturally increase when the governments became hereditary 
 in Sheeah families, and would be multiplied more and more 
 as the local governors became practically independent of the 
 Supreme Head at Delhi. At length, when the allegiance 
 became little more than nominal, it is not surprising if, in 
 some places, the sect of the actual ruler should come to 
 preponderate over that of the distant and merely nominal 
 head ; according to the Arabian adage, which says that " all 
 people follow the religion of their kings." The saying was 
 exemplified to the fullest extent in Persia, where the whole of 
 the people have become Sheeahs since the accession of the Soofee 
 dynasty in a.d. 1499. ! The process of assimilation was less 
 rapid in India, where, though several of the Nuwabs, or local 
 governors, were Sheeahs, they acknowledged at least a nomi- 
 nal dependence on Delhi, and never ventured to make any 
 ostensible change in the law of their provinces. This was 
 eminently the case in Oude, the Nuwabs of which were 
 hereditary Viziers of the empire, and, though long virtually 
 
 1 In that year Ismail, the first of the dynasty, proclaimed the 
 Sheeah faith to be the national religion of the country. — Malcolm's 
 History of Persia, vol, ii. note, p. 347. 
 
Xll INTRODUCTION. 
 
 independent, did not throw off their allegiance to it till the 
 year 1818, when the Nuivab Vizier Ghazi-ood-deen Hyder, 
 with the consent, and, indeed, at the suggestion, of the 
 British Government, assumed the title of Padshah or King. 
 It was not, however, till the accession of Umjud Ally 
 Shah, that any formal alteration was made in the law. 
 Until that time the only Mooftee, or public expounder of the 
 law, was a Soonnee, and all cases that came before the King's 
 tribunals were decided by Soonnee law. The last-mentioned 
 sovereign appointed a Sheeah Mooftee, and thenceforth the 
 SJieeah became the general law of the province. Still, how- 
 ever, in suits where both the parties were Soonnees, or one of 
 them was a Soonnee and the other a Hindoo, Soonnee law 
 continued to be the rule of decision. In all other suits judg- 
 ment was given according to the Sheeah code. 2 This system 
 seems to have continued till the Province was annexed to the 
 British dominions, by which time the Sheeahs had acquired 
 so great an ascendancy that they were found numerically to 
 preponderate very much over the other sect of Mussulmans. 3 
 After the annexation the more equitable rule of the British 
 Regulations was introduced, and Sheeah law is now adminis- 
 tered only in suits regarding marriage and inheritance, and 
 other collateral matters, where the parties are Sheeahs. There 
 is no doubt, however, that its general importance is much 
 increased by the larger number of persons who have been 
 brought within the sphere of its operation. 
 
 The word Sheeah, or Sheeat, properly signifies a troop 
 or sect, but has become the distinctive appellation of the 
 followers of Aly, or all those who maintain that he was the 
 first legitimate Khuleefah, or successor to Moohummud, 
 though the fourth in actual succession ; and that the Imamut 
 or spiritual and temporal headship of the Mussulman com- 
 munity belongs by hereditary right to his descendants by 
 Fatima, the favourite daughter of the Prophet, and the only 
 one of his children that left any offspring. Aly was thus, 
 according to them, the first Imam, his eldest son Hussun the 
 
 Correspondence relating to Native Laws in Oude, p. 15. 
 Ibid. p. 3. 
 
INTRODUCTION. xiii 
 
 second, his second son Hoossein the third, and Aly surnamed 
 Zeen-al-Abideen, the son of Hoossein, the fourth. On this 
 Aly's death a schism took place in the sect, a part of whom 
 adhered to one of his sons called Zeyd, thence taking the 
 name of Zeydians, while much the greater part of them 
 acknowledged another of his sons named Moohummud Bdhir, 
 as the fifth Imam. Moohummud Bdhir was succeeded by his 
 son Jdfer Sddih, as the sixth Imam ; and these two are the 
 great heads of the Imameea, as a distinct school of law. 
 Jdfer Sddih appointed his eldest son Ishmael to succeed him 
 in the Imdmut, and, on his premature death, nominated his 
 second son Moosa Kazim, sometimes called Moosey Beza, to 
 be his successor. This second appointment gave rise to 
 another and greater division among the Sheeahs : for part 
 of them denying Jdfer Sdditis right to make it, declared 
 in favour of the son of Ishmael, thence taking the name 
 of Ishmaelians, while the greater number of them adhered 
 to Moosa Kazim, whom they acknowledged as the seventh 
 Imam. From him the dignity descended lineally for five 
 more generations, till it ended in the Imdm Muhudy, the 
 twelfth and last, who is supposed by the sect to be still 
 alive, though he has withdrawn for a time from human 
 observation since his last appearance on earth. The great i 
 body of Sheeahs who acknowledge Moosa Kazim and his 
 descendants as the true Imams are called Athna-asheriahs, 
 or Twelve-eans, as being followers of the twelve Imams A 
 and also Imdmeeans, because, according to Mr. Sale, 4 they 
 assert that religion consists solely in the knowledge of the 
 true Imam. But they arrogate to themselves the title of 
 Moomineen, 6 as being the only true believers. During the 
 absence of the Imdm, the spiritual and temporal government 
 of the whole Mussulman community is supposed by them to 
 have devolved on the Moojtahids, or enlightened teachers of 
 the law. And in Persia, where the sect has prevailed since 
 the accession of the Soofee dynasty, it was not till a late 
 period in its history that the actual obedience of the sovereign 
 
 Preliminary Discourse to Translation of the Koran, p. 23S. 
 Post, p. 215. 
 
XIV INTRODUCTION. 
 
 to these devout teachers of the law was in any degree 
 dispensed with. 6 Officers with the title of Moojtahid were 
 found in Oude at the time of its annexation. It is probable 
 that they were appointed soon after the assumption of the 
 royal title by the Nuwah Vizier. But what were their duties, or 
 whether any duties were specially assigned to them, I have not 
 been able to ascertain. At present I believe they are confined 
 to the superintendence and care of endowments for pious and 
 charitable purposes, though they seem occasionally to be called 
 upon by the courts of justice for their opinions on Sheeah law. 
 
 Of the two sects which have thus so long subsisted side by 
 side in India, the Sheeah is the earlier as a school of law ; for 
 Aboo Huneefa received his first instructions in jurisprudence 
 from the Imam Jdfer Sddik, though he afterwards separated 
 from him and established a school of his own. He remained, 
 however, during life, a devoted partisan of the family of Aly. 7 
 But his adherence to it seems to have been only political ; for, 
 on questions of law, he diverged considerably from the opinions 
 of his early instructor. The differences between the leaders, 
 whatever they may have been, were probably aggravated by 
 religious rancour between their followers ; and there are now 
 many important points on which the schools differ. Of these 
 I propose to take a general view in this place ; referring the 
 reader for fuller details to the foot-notes throughout the volume. 
 In the course of my remarks I will advert to one or two 
 matters that were not sufficient of themselves to form the 
 subject of a separate chapter or section of the work. I presume 
 some degree of acquaintance with the Hanifite doctrines on 
 the part of the reader before he comes to the perusal of 
 this introduction. The statements of Sheeah doctrine con- 
 tained in it are accompanied by references to the pages of the 
 text on which they are founded ; and the reader will thus 
 have an opportunity of bringing them to the test of actual 
 comparison before relying upon them as of any legal authority. 
 
 With regard to the sexes, any connection between them 
 which is not sanctioned by some relation founded upon con- 
 
 6 Imameca Diyest, p. 142, note. 
 
 7 Taylor's History of Mohammedanism, p. 287. 
 
INTRODUCTION. XV 
 
 traot or upon slavery is denounced by both the sects, as zina, or 
 fornication. But, according to the Hanifites, the contract must 
 be for the lives of the parties, or the woman be the slave of the 
 man ; and it is only to a relation founded on a contract for life 
 that they give the name of nikdh or marriage. According to 
 the Slieeahs, the contract may be either temporary, or for life, 
 and it is not necessary that the slave should be the actual 
 property of the man; for it is sufficient if the usufruct of her 
 person be temporarily surrendered to him by her owner. To a 
 relation established in any of these ways they give the name of 
 nikdh or marriage ; which is thus, according to them, of three 
 kinds : permanent, temporary, and servile (1). It is only their 
 permanent marriage that admits of any comparison with the 
 marriage of the Hanifites. And here there is, in the first 
 place, some difference in the words by which the contract is 
 effected. According to the Hanifites, the words may be sureeh 
 (express) or hinayat (ambiguous). According to the Sheeahs, 
 they must always be express (1) ; and to the two express terms 
 of the other sect (nikdh and tuzweej) they add a third (moot a), 
 which is rejected by the others as insufficient. Further, 
 while the Hanifites regard the presence of witnesses as 
 essential to a valid contract of marriage, the Sheeahs do not 
 deem it to be in anywise necessary. The causes of prohibition 
 correspond, to some extent, in both schools ; but there is this 
 difference between them, that the Hanifiie includes a difference 
 of Bar or nationality among the causes of prohibition, and 
 excludes lidn, or imprecation, from among them ; while the 
 Sheeah excludes the former and includes the latter (29). There 
 is, also, some difference between them as to the conditions and 
 restrictions under which fosterage becomes a ground of prohi- 
 bition. And, with regard to infidelity, though both schools 
 entirely prohibit any sexual intercourse between a Mooslimah 
 or Mussulman woman and a man who is not of her own 
 religion, the Hanifiie allows of such intercourse, under the 
 sanction of marriage or of slavery, between a Mooslim and 
 any woman who is a Kitabeeah, that is, who belongs to any 
 sect that is supposed to have a revealed religion, while the 
 Sheeah restricts such connection to temporary and servile 
 marriages (29). Among Kitabeeahs both schools include 
 
Xvi INTRODUCTION. 
 
 Christians and Jews, but the Hanifite rejects Majooseeahs 
 or fire-worshippers, who are included among them by the 
 Sheeah (29). 
 
 The Sheeahs do not appear to make any distinction 
 between invalid and void marriages, all that are forbidden 
 being apparently void according to them. But the distinction 
 is of little importance to the parties themselves, as under 
 neither of the schools does an unlawful marriage confer any 
 inheritable quality upon the parties ; and the rights of the 
 children born of such marriages are determined by another 
 consideration, which will be adverted to in the proper place, 
 hereafter. 
 
 With regard to the servile marriage of the Sheeahs, it is 
 nothing more than the right of sexual intercourse which every 
 master has with his slaves ; but there is the same difference 
 between the two sects, in this case, as in that of marriage 
 by contract. According to the Hanifites the right must be 
 permanent, by the woman's being the actual property of the 
 man. According to the Sheeahs, the right may be temporary, 
 as when it is conceded for a limited time by the owner of the 
 slave (52). When a slave has borne a child to her own master, 
 which he acknowledges, she becomes his oom-i-wulud or 
 mother of a child, and cannot be sold, while she is entitled to 
 emancipation at her master's death. According to the Hani- 
 fites, these privileges are permanent, but, according to the 
 Sheeahs, the exemption from sale is restricted to the life of 
 her child, and her title to emancipation is at the expense 
 of her child's share in the master's estate (57). If that be 
 insufficient, her enfranchisement is only pro tanto, or so far 
 as the share will go. Where the child's father has only an 
 usufructuary right in the mother, the child is free (56), though 
 the mother, being the property of another, does not acquire 
 the rights of an oom-i-ivulud. 
 
 With regard to the persons who may be legally slaves, 
 there seems to be little, if any, difference between the two 
 sects. According to the Sheeahs, slavery is the proper con- 
 dition of Imrubees, or enemies, with the exception only of 
 Christians, Jews, and Majoosees, or fire-worshippers, so long 
 as they continue in a state of zimmut, or subjection to the 
 
INTRODUCTION. XV11 
 
 Mussulman community. If they renounce their zimmut, they 
 fall back into the condition of ordinary hurubees ; and if a 
 person should buy from a hurubee, his child, or wife, or any 
 of his consanguineous relations, the person so purchased is to 
 be adjudged a slave. 8 There seems also to be but little differ- 
 ence in the manner in which slaves may be enfranchised, or 
 their bondage qualified by kitabut and tudbeer. But there is 
 an important difference as to children ; for, according to the 
 Hanifites, a child follows the condition of its mother, being 
 free or a slave, as she is the one or the other ; while, accord- 
 ing to the Sheeahs, it is free, if either of its parents be so (46). 
 
 Both the sects are agreed that marriage may be dissolved 
 by the husband at any time at his pleasure, and to such 
 dissolutions they both give the name of tuldk. But the 
 Hanifites include under that term khoold, which is a release 
 given to the woman by her husband, at her own request ; 
 lidn, where the separation is only consequential on a charge 
 of adultery by the husband against his wife ; and zihar and 
 eela, by which connubial intercourse is suspended until expia- 
 tion is made by the husband on account of certain expressions 
 used by him towards his wife. They, however, also employ 
 the word tuldk in a more restricted sense, by which it is con- 
 fined to dissolutions of the marriage tie effected by the use 
 of that word, or others which are deemed equivalent to it. 
 Tuldk, in its widest sense, I have translated in what I may 
 now term the First Part of this Digest by the word divorce ; 
 and, in its narrower acceptation, by the word repudiation. 
 Khoold, and the other subjects just mentioned, are treated 
 by the Sheealis as quite distinct from tuldk, in separate books ; 
 but, as they are all nearly akin to it I have followed the 
 arrangement of the Digest, and included them all together 
 with tuldk proper, or repudiation, under one general head of 
 divorce. 
 
 There are some important differences between the repu- 
 diation of the two sects. Thus, while the Hanifites recognize 
 two forms, the Soonnee and Budawee, or regular and irregular, 
 as being equally efficacious, and subdivide the regular into 
 
 8 Shur ay a-ool- Islam, p. 351. 
 
XV111 INTRODUCTION. 
 
 two other forms, one of which they designate as ahsun, or 
 best, and the other as husun, or good, — the Sheeahs reject 
 these distinctions altogether, recognizing only one form of the 
 Soonnee, or regular (118). So, also, as to the expressions by 
 which repudiation may be constituted ; while the Hanifites dis- 
 tinguish between what they call sureeh, or express words, which 
 are inflections of the word tuldh, and various expressions 
 which they term Jcinayat, or ambiguous, the Sheeahs admit 
 the former only (113). Further, the Hanifites do not require 
 intention when express words are used ; so that, though a man 
 is actually compelled to use them, the repudiation is valid 
 according to them. Nor do they require the presence of 
 witnesses as necessary in any case to the validity of a repudia- 
 tion; while, according to the Sheeahs, both intention (108), and 
 the presence of two witnesses in all cases, are essential (1 17)- 
 Both sects agree that repudiation may be either bain 
 (absolute), or rujaee (revocable) ; and that a repudiation given 
 three times cannot be revoked, nor a woman so repudiated be 
 again married by her husband until she has been interme- 
 diately married to another man, and the marriage with him 
 has been consummated. But, according to the Hanifites, 
 repudiation may be made irrevocable by an aggravation of the 
 terms, or the addition of a description, and three repudiations 
 may be given in immediate succession, or even unico contextu, 
 in one expression ; while, according to the Sheeahs, on the 
 other hand, the irrevocability of a repudiation is dependent 
 on the state in which the woman may be at the time that it 
 is given; and three repudiations, to have their full effect, 
 must have two intervening revocations (119). To the Mm and 
 rujaee repudiations of both sects, the Sheeahs add one pecu- 
 liar to themselves, to which they give the name of the tuldk- 
 ool-iddut, or repudiation of the iddut, and which has the 
 effect of rendering the repudiated woman for ever unlawful to 
 her husband, so that it is impossible for them ever to marry 
 with each other again (119). 
 
 The power of revocation continues until the expiration of 
 the iddut, or probationary period for ascertaining whether a 
 woman is pregnant or not. After it has expired, the repu- 
 diation becomes absolute, according to both schools. So long 
 
INTRODUCTION. xix 
 
 as it is revocable, the parties are still in a manner husband 
 and wife ; and if either of them should happen to die, the other 
 has a right of inheritance in the deceased's estate (294). 
 
 With regard to parentage, maternity is established, 
 according to the Hanifites, by birth alone, without any 
 regard to the connection of the parents being lawful or 
 not. According to the Sheeahs, it must in all cases be 
 lawful ; for a wulad-ooz-zina, or illegitimate child, has no 
 descent, even from its mother ; nor are there any mutual rights 
 of inheritance between them (305). For the establishment 
 of paternity there must have been, at the time of the child's 
 conception, according to both sects, a legal connection between 
 its parents by marriage or slavery, or a semblance of either. 
 According to the Hanifites, an invalid marriage is sufficient 
 for that purpose, or even, according to the head of the school, 
 one that is positively unlawful ; but, according to the 
 Sheeahs, the marriage must in all cases be lawful, except 
 when there is error on the part of both or either of the 
 parents (373). Again, as to children by slaves, express acknow- 
 ledgment by the father is required by both the sects, except 
 when the slave is his oom-i-wulud, or has already borne a child 
 to him ; for, though, according to the Sheeahs, there are two 
 reports on the subject, yet, by the most generally received of 
 these, a slave does not become the firash or wife of her master 
 by mere coition, and her child is not affiliated to him without 
 his acknowledgment (156). With regard to children begot- 
 ten under a semblance of right, the Hanifites require some 
 basis for the semblance in the relation of the parties to 
 each other; while, according to the Sheeahs, bond fide 
 belief on the part of the man that the woman is his wife or 
 his slave seems to be all that is required ; while no relation 
 short of a legal marriage or slavery, without such belief either 
 on the part of the man or the woman, would apparently be 
 sufficient. 
 
 On the subject of testimony, both schools require that it 
 shall be direct to the point in issue ; and they also seem to 
 be agreed that when two or more witnesses concur in assert- 
 ing a fact in the same terms, the judge is bound by their 
 testimony, and must give his judgment in conformity, with 
 
XX INTRODUCTION. 
 
 it. 9 They agree in requiring that a witness should in 
 general have full knowledge, by the cognizance of his own 
 senses, of the fact to which he is bearing testimony; but 
 both allow him, in certain exceptional cases, to testify on 
 information received from others, or when he is convinced 
 of the fact by inference from circumstances with which it is 
 connected. 
 
 Nusub, or descent, is included by both sects among the 
 exceptional facts to which a witness is allowed to testify 
 when they are generally notorious, or when he has been 
 credibly informed of them by others. But, according to the 
 Hanifites, it is enough if the information be received from 
 two just men, or one just man and two just women, while 
 the Sheeahs require that it should have been received from 
 a considerable number of persons (jumaut) in succession, 
 without any suspicion of their having got up the story in 
 concert. The Hanifites class marriage among the excep- 
 tional facts together with nusub ; but, according to the 
 Sheeahs, it more properly follows the general rule which 
 requires that the witness should have the direct evidence 
 of his own senses to the fact to which he is giving his 
 testimony. They seem, however, to admit an exception in 
 its favour; for they reason, that as we adjudge Khoodeijah 
 to have been the mother of Fatima, the daughter of the 
 Prophet, though we know it only by general notoriety and 
 tradition, which is but continued hearsay, so also we may 
 equally decide her to have been the Prophet's wife, for which 
 we have the same evidence, though we were not present at 
 the contract of marriage, nor ever heard the Prophet acknow- 
 ledge it. 10 
 
 Both sects are agreed that a witness may lawfully infer 
 and testify that a thing is the property of a particular person 
 when he has seen it in his possession ; and so, according to 
 the Hanifites, " when a person has seen a man and woman 
 dwelling in the same house, and behaving familiarly with 
 
 9 I have not found any express statement to this effect in the Book 
 of Shuhadut in the Shuraya, but it is everywhere implied. 
 
 10 Shuraya, p. 504. 
 
INTRODUCTION. Xxi 
 
 each other in the manner of married persons, it is lawful for 
 him to testify that she is his wife, in the same way as when 
 he has seen a specific thing in the hands of another." The 
 Sheeahs do not apply this principle of inference to the case 
 of marriage, and there is no ground for saying that according 
 to them marriage will be presumed in a case of proved con- 
 tinual cohabitation. 11 
 
 With regard to the remaining subjects treated of in this 
 volume, there is a difference between the two schools as to 
 the person who is entitled to claim a right of shoofd, or 
 pre-emption. According to the Hanifites the right may be 
 claimed, firstly, by a partner in the thing itself; secondly, 
 by a partner in its rights of water and way; and, thirdly, 
 by a neighbour. According to the Sheeahs, the right belongs 
 only to the first of these, with some slight exception in favour of 
 the second. The claim of the third they reject altogether (179). 
 In gift the principal difference between the schools is that 
 a gift of an undivided share of a thing, which is rejected by the 
 Hanifites, is quite lawful according to the Sheeahs (204). In 
 appropriation and alms there do not seem to be any differences 
 of importance between the two schools. And in wills the 
 leading difference seems to be, that, while according to the 
 Hanifites a bequest in favour of an heir is positively illegal, 
 it is quite unobjectionable according to the Sheeahs (244). 12 
 
 In respect of inheritance there are many and important 
 differences between the two sects, but they admit of being 
 reduced to a few leading principles, which I now proceed to 
 notice, following the order in which the different branches 
 of the subject are treated of in this volume. 
 
 The impediments to inheritance are four in number, 
 according to the Hanifites, viz., slavery, homicide, difference 
 of religion, and difference of dar, or country. Of these the 
 
 1 ' This has been said, in the case of the Hanifites, on very insufficient 
 grounds, as appears to me for the reasons stated in the notes to my 
 Digest, pp. 421 , 425, 426. 
 
 12 The following text of the Koran seems to support this doctrine : — 
 " It is ordained you when any of you is at the point of death, if he 
 leave any goods, that he bequeath a legacy to his parents and kindred 
 according to what is reasonable." — Sale's Translation, vol. i. p. 31. 
 
Xxii INTRODUCTION. 
 
 Sheeahs recognize the first; the second, also, with some 
 modification ; that is, they require that the homicide be in- 
 tentional, in other words, murder ; while with the Hanifites 
 it operates equally as an impediment to inheritance, though 
 accidental. For difference of religion, the Sheeahs substitute 
 infidelity ; and difference of country they reject entirely. 
 
 Exclusion from the whole inheritance, according to the 
 Hanifites, " is founded upon and regulated by two principles. 
 The one is that a person who is related to the deceased through 
 another has no interest in the succession during the life of 
 that other ; with the exception of half-brothers and sisters 
 by the mother, who are not excluded by her. The other 
 principle is, that the nearer relative excludes the more 
 remote." 13 The former of these principles is not expressly 
 mentioned by the Sheeahs; but it is included without the 
 exception in the second, which is adopted by them (270), and 
 extended, so as to postpone a more remote residuary to a 
 nearer sharer, — an effect which is not given to it by the 
 Hanifites. 
 
 With regard to partial exclusion or the diminution of a share, 
 there is also some difference between the sects. According to 
 the Hanifites, a child or the child of a son, how low soever, 
 reduces the shares of a husband, a wife, and a mother, from 
 the highest to the lowest appointed for them ; while, according 
 to the Sheeahs, the reduction is effected by any child, whether 
 male or female, in any stage of descent from the deceased (271). 
 Further, when the deceased has left a husband or wife, and 
 both parents, the share of the mother is reduced, according to 
 the Hanifites, from a third of the whole estate to a third of the 
 remainder, in order that the male may have double the share 
 of the female ; but, according to the Sheeahs, there is no 
 reduction of the mother's third in these circumstances, though, 
 when the deceased has left a husband, the share of the father 
 can only be a sixth (383). 
 
 The shares and the persons for whom they are appointed 
 being expressly mentioned in the Koran, there is no difference 
 in respect of them between the two schools. But they differ 
 
 13 M. L. I., p. 58. 
 
INTRODUCTION. XX111 
 
 materially as to the relatives who are not sharers. These 
 are divided by the Hanifites into residuaries and distant 
 kindred. The residuaries in their own right they define as 
 every male in whose line of relation to the deceased no female 
 enters ; 14 " and the distant kindred," as " all relatives who 
 are neither sharers nor residuaries." 15 The residuaries not 
 only take any surplus that may remain after the sharers have 
 been satisfied, but also the whole estate when there is no 
 sharer, to the entire exclusion of the distant kindred, though 
 these may, in fact, be much nearer in blood to the deceased. 
 This preference of the residuary is rejected with peculiar abhor- 
 rence by the Sheeahs (400), who found their objection to it, 
 certainly with some appearance of reason, on two passages of 
 the Koran, cited below. 16 Instead of the triple division of the 
 Hanifites, they mix up the rights of all the relatives together, 
 and then separate them into three classes, according to their 
 proximity to the deceased, each of which in its order is pre- 
 ferred to that which follows ; so that while there is a single 
 individual, even a female, of a prior class, there is no room 
 for the succession of any of the others (323). 
 
 Within the classes operation is given to the doctrine ot 
 the return by the Sheeahs, nearly in the same way as by the 
 Hanifites : that is, if there is a surplus over the shares it 
 reverts to the sharers, with the exception of the husband or 
 wife, and is proportionately divided among them. According 
 to the Hanifites, this surplus is always intercepted by the 
 residuary ; and it is only when there is no residuary that there 
 is with them any room for the doctrine of the return. When 
 the shares exceed the whole estate, the deficiency is distri- 
 buted by the Hanifites over all the shares, by raising the 
 extractor of the case, — a process which is termed the awl, or 
 increase. This is also rejected by the Sheeahs (397), who make 
 the deficiency to fall exclusively upon those among them 
 whose relationship to the deceased is on the father's side (395). 
 
 With regard to the computation of shares, there does not 
 
 14 M. L. I., 72. 15 Ibid., 127. 
 
 16 " And those who are related by consanguinity shall be deemed the 
 nearest of kin to each other preferably to strangers." — Sale, vol. i. p. 218. 
 And there is a confirmation of the doctrine, vol. ii. p. 2G1. 
 
XXIV INTRODUCTION. 
 
 appear to be any difference between the schools. But the 
 rules given by the Moohummudan lawyers for the purpose are 
 supposed to present some difficulties to beginners, and a 
 few words in the way of explanation may not be improper in 
 this place. The object of the rules is to find some number 
 out of which the shares may be taken, or extracted, as it is 
 termed, without a fraction ; but for this purpose the number 
 must be divisible by the fractions which represent the shares, 
 and as these are all of different denominations, it is necessary 
 that they should be reduced to a common denominator ; and 
 it is convenient, though not necessary, that this should be 
 the least possible, or in other words, that the fractions should 
 be expressed in their lowest terms. The rules of the Arabian 
 arithmeticians for the purpose are I believe precisely the 
 same as our own. 17 But the Moohummudan lawyers, instead 
 of referring to the general rules, and leaving you to work out 
 the operation, which is sometimes very tedious, by yourself, 
 present you with the results in the lowest common denomi- 
 nators for every possible combination of the shares, or the 
 fractions by which they are represented. These denominators 
 are termed extractors, and they would be sufficient for all 
 cases if there were only a single , claimant for each share. 
 But a share has sometimes to be divided among a number of 
 claimants, and then, if the parcels allotted to each share 
 cannot be divided among the parties entitled to it without a 
 fraction, the extractor must be increased by multiplying it by 
 the number of claimants. The resulting number, however, 
 may be inconveniently large, while it is desirable to keep it as 
 low as possible, but this can be done only when there is a 
 common measure of the number of parcels comprising the 
 share, and the number of the persons claiming it. When 
 this is the case, ODe of these is to be divided by the common 
 measure, and the extractor multiplied by the quotient. When 
 there are several shares in the like predicament, they are to 
 be treated in the same way; and when all have been thus 
 prepared the extractor is again to be multiplied by them all ; 
 
 17 In the Khoolasut-ool-Hisab, the same rule is given for finding 
 the greatest common measure as in our ordinary books of arithmetic. 
 
INTRODUCTION. XXV 
 
 unless the numbers are equal, when a multiplication by one 
 of them will suffice ; or the smaller numbers are aliquot parts 
 of the larger, when multiplication by the latter will be 
 sufficient ; or where there is a common measure of the 
 numbers and they are to be reduced to their lowest terms, 
 and the extractor to be multiplied by the quotient. The 
 result of these operations when reduced as much as possible 
 by any of these methods, will still be a number so incon- 
 veniently high as to occasion a great deal of trouble at least, 
 if not difficulty, in carrying out the farther operations for 
 ascertaining the actual portion of each heir in the assets 
 of the deceased's estate. And this trouble will be vastly 
 increased if one of the heirs should die before the partition 
 of the estate, and a further multiplication of the extractor 
 may be required by the number of persons who may be 
 entitled to his share. 
 
 Here an important question arises, Is all this multiplica- 
 tion and complication necessary ? or might not the partition 
 be made among the heirs with equal accuracy and more 
 facility by always dealing with the extractors in their original 
 state ? I confess I think it might. Thus, to take the 
 case (p. 277) of a wife, both parents and children. There 
 the share of the wife is one-eighth, of ea^h parent one-sixth, 
 and of the children the remainder, and the case presenting the 
 combination of an eighth with a sixth, the extractor is twenty- 
 four. The wife will have accordingly three parcels, the 
 parents four each, and the children the remaining thirteen. 
 But now suppose that instead of one wife there are four, and 
 the three parcels must be divided among them equally. This 
 cannot be done without raising the extractor, and, being 
 multiplied by four, it will be increased to ninety-six. Each 
 wife will have now three ninety-sixths, each parent sixteen 
 ninety-sixths, and the children the remaining fifty-two ninety- 
 sixths. But it would have been just as easy to say that each 
 wife shall have a fourth part of three parcels, and the parents 
 their fourth each, and the children their thirteen parts as 
 before ; or, better still, to state the actual sum in money to 
 which each heir would be entitled in these proportions, as, 
 for instance, if the whole assets were 240L the share of each 
 
XXVI INTRODUCTION. 
 
 wife would be 11. lOs., of each parent 40Z., and of the 
 children 130Z. 
 
 The volume which is here presented to the English 
 reader is intended to exhibit the doctriues of the Sheeah 
 sect on the most important of the subjects to which the 
 Moohummudan law is applied by British Courts of Justice 
 in India. With the exception of the last Book, it is com- 
 posed entirely of translations from the Shuraya-ool-Islam, 
 a work of the highest authority, which has entered largely 
 into the Digest of Sheeah Law, compiled under the super- 
 intendence of Sir William Jones. The translations have been 
 made from the edition which was published at Calcutta by the 
 Asiatic Society, at the suggestion and with the aid of the 
 Nuwab Seyud Mohummed Hossein Khan Behader Tuhawur 
 Jung. Each subject is given without any abbreviation from 
 the original, except in the few instances mentioned in the 
 foot-notes. The last Book, which is an additional treatise 
 on the Law of Inheritance, is from a manuscript which has 
 come to my possession, as one of the executors of the will of 
 the late Lieutenant-Colonel John Baillie, the translator of the 
 first and only volume that was ever published of the Digest 
 before mentioned. It is very carefully copied in the hand- 
 writing of the translator, and has all the appearance of being 
 a further portion of the same work, and of having been finally 
 corrected by himself for the Press. Moreover, at page 469 
 of the printed volume there occurs the following note on the 
 word Patronage or Wula: "See a full explanation of the 
 term, and a description of the various rights of wula, in 
 the ' Book of Inheritance,' Vol. IV." Corresponding with 
 this there is such a full explanation of the terms, and 
 such a description of the right of vmla as there alluded 
 to in the manuscript in question. From these and other 
 circumstances, 1 was led to infer that it was a translation 
 of the " Book of Inheritance," contained in Sir William 
 Jones's Digest. The original of the Digest I have seen, 
 many years ago, at Calcutta, when it was in the custody 
 of the Court of Sudder Dewanny Adawlut ; and, by the 
 kindness of Mr. Justice Macpherson, a Judge of the High 
 
INTRODUCTION. XXVli 
 
 Court, to which it has now been transferred, I have obtained 
 copies of the beginnings and endings of the different sections 
 of which the " Book of Inheritance " is composed. A com- 
 parison of these with the manuscript has removed any doubts 
 which might have remained on my mind as to its being a 
 translation of the " Book of Inheritance " in the original 
 Digest. Mr. Macpherson has also ascertained for me that 
 the book is composed of extracts from a commentary on the 
 Mufateeh, a work called the Kafee, and the Shuraya-ool- 
 Islam. Having implicit reliance on the scholarship and 
 accuracy of the translator, who, moreover, had the assistance 
 of a staff of native assistants, paid by the Government, I 
 have no hesitation in publishing the work in the form of an 
 additional Book on Inheritance ; with the omission, however, 
 of the parts taken from the Shuraya, which are included in 
 the seventh book of this volume. I have printed it from the 
 translator's manuscript, without any alteration, except in the 
 correction of a few clerical errors, and with no other addition 
 than two or three notes, marked with the word Ed. to dis- 
 tinguish them from notes by the translator. 
 
 It will be observed that the note already quoted from the 
 first volume of the Digest of Sheeah Law refers to a fourth 
 volume of the work ; and there are other notes which allude to 
 intermediate volumes, as if the whole work had been com- 
 pleted, and were ready for publication. It was not till more 
 than twenty years after the death of the translator that any 
 of his papers came into my possession, and the only parts of 
 the work that were then found among them, in any way 
 connected with the matters contained in this volume, were 
 a chapter on connubial rights, comprising dower, partition, 
 rebellion, and discord, and three books on pre-emption, gifts, 
 and wills. The book on gifts is composed chiefly of extracts 
 from the Tuhreer ; but the others being taken from the 
 Shuraya, I have freely availed myself of them in making my 
 own translations, though adhering generally to my own lan- 
 guage, as more comformable to the rest of the volume. 
 
 I have only now to notice the abbreviations which occur 
 in the foot-notes. Im. D. is for the first volume of the 
 Imameeah, or Sheeah digest, already mentioned ; P. P. M. L. 
 
XXVlil INTRODUCTION. 
 
 for the Principles and Precedents of Moohummudan Law, by 
 the late Sir W. Macnaghten, Bart. ; D. for the Digest of 
 Moohummudan Law, on the subjects to which it is usually 
 applied by courts of justice in India; and M. L. 8. and 
 M. L. I. for treatises on the Moohummudan Law of Sale and 
 Inheritance i the three last being by the author of the present 
 volume. 
 
A DIGEST 
 
 OF 
 
 MOOHUMMUDAN LAW, 
 
 PART SECOND. 
 
 BOOK I. 
 OF NIKAH, OR MARRIAGE. 
 
 THERE ARE THREE KINDS OF MARRIAGE : PERMANENT, 
 TEMPORARY, AND SERVILE. 
 
 CHAPTER I. 
 
 of permanent marriage. 1 
 
 Section First. 2 
 Form and Laws of the Contract. 
 
 Marriage, like other contracts, requires declaration and Marriage 
 
 acceptance for its constitution ; and both must be expressed tu^^bv" 
 
 in such a manner as to demonstrate intention, without any declara- 
 
 sort of ambiguity. ^ 
 
 The words appropriate to the declaration are zuwwujtoku ance. 
 
 and ankuhtoTcu, both signifying " I have married thee." 3 Words ap- 
 propriate 
 
 1 Nikdh al Ddim. 
 
 2 A short preliminary section on the prayers and ceremonies to 
 be observed by a man before entering into a contract of marriage, and 
 also before proceeding to consummation, has been omitted, as belong- 
 ing to the spiritual rather than to the temporal table of the law. 
 
 3 More literally, the former, " I have joined thee," and the latter, 
 " I have united thee in wedlock." The terminating syllable ku 
 
 PART II. B 
 
MARRIAGE. 
 
 to decla- 
 ration : 
 
 to accept- 
 ance. 
 
 Both must 
 be ex- 
 pressed 
 in the 
 preterite 
 tense. 
 
 Use of the 
 
 word 
 
 mootd. 
 
 With regard to the word miittualoku, which signkies, " I 
 have bestowed on thee," or " given thee the enjoyment," 
 there is some doubt of its being legally sufficient ; but the 
 opinion which is in favour of its legality has been gene- 
 rally preferred. Acceptance is expressed by saying, " I 
 have accepted the tuzweej" 4 or "I have accepted the 
 nil-ali" 5 or by any other words of the like import, or it 
 may be shortened by simply saying, " I have accepted." 
 
 It is necessary that the declaration and acceptance 
 should both be expressed in words of the past tense. If 
 the imperative is employed, as by the man's saying, 
 " Marry me to her," and the other party to the cdhtract 
 should answer, " I have married thee," it is maintained 
 by some of our doctors that the marriage is valid ; and 
 this opinion is approved. 6 Even if the future were 
 employed, as by the man's saying to the woman, " I 
 will take thee to wife," and she should answer, " I 
 have married thee," the marriage would be lawful. 7 But 
 in this case it has been said that the man should reply, 
 " I have accepted." 
 
 With regard to the word mootd, 8 or enjoyment, it is 
 related in a tradition by Aban ben Toghlib, that if thou 
 shouldst say to a woman, " I take thee to wife by way of 
 mootd" and she should answer, " Yes," she would be thy 
 wife; or if the guardian of a woman, or the woman herself, 
 should say, " I have conferred on thee the enjoyment for 
 so much," without specifying any particular time, perma- 
 
 (thee) in both words is the masculine pronominal affix, and both are 
 supposed to he addressed to the intending husband by the father or 
 guardian of the proposed wife, or other person authorized to act 
 for her. 
 
 4 Infinitive of zuwwwjto. 
 
 5 Original infinitive of ankuhto. 
 
 6 Husun, literally good, and, technically, a tradition of the second 
 order of authenticity, or classed next to suheeh. — Im. D., p. 104. 
 
 7 The two last cases appear to be rather inconsistent with the word 
 necessary (laboodda), in the first sentence ; but it will be observed 
 that in both the preterite occurs in one member of the sentence. — 
 See D., p. 14. 
 
 3 Infinitive of mutludto. 
 
WORDS BY WHICH MARRIAGE IS CONTRACTED. 3 
 
 nent marriage would be contracted. And this is evidence 
 that permanent marriage may be constituted by the word 
 titmuttooa? 
 
 It is not required that the acceptance should agree Verbal 
 verbally with the declaration. Nay, the contract would be spo^ence 
 quite valid though the declaration should be by one of the between 
 words before mentioned, and the acceptance by the other ; ^ratTon 
 as, for example, by the guardian's saying zuwwujtoJcii, and and ac- 
 the husband's answering " I have accepted the nikdh" or ^ ™ 
 by the former's saying cmkuhtoku, and the latter's answer- quired, 
 ing, " I have accepted the tuzwe&j" when, in either case, 
 the marriage would be valid. If one person should say to 
 another, " Hast thou married thy daughter to such an 
 one ? " and the person addressed should answer, " Yes," 
 whereupon the husband should reply, " I have accepted," 
 there would be a valid marriage ; for " yes " involves a 
 repetition of the question, though it is not repeated verbally. 
 Upon this point, however, there is some room for doubt or 
 hesitation. 
 
 Neither is it required that the declaration should pre- Nor that 
 
 cede the acceptance, for if one should say tuzuwwujto, ra ti on 
 
 and the guardian should answer zuwivvjtofai, 10 the contract should 
 
 t n , , . -, precede 
 
 would be valid. ^ e ac _ 
 
 Any deviation from the two words before mentioned ceptance. 
 
 is unlawful, 11 though it were only by translating them into ^° d f via_ 
 ,. J? . . tion from 
 
 some language different from the Arabic, except in a case the ap- 
 
 of positive inability to make use of that languao-e. If P r0 P nate 
 
 I J m ° ° words al- 
 
 either of the parties is unable to use it, each of them may lowed. 
 
 employ his own language. And if both or one of them 
 
 be dumb, the person labouring under the defect of speech 
 
 may indicate his or her consent by signs. 
 
 Marriage can in no case be contracted by the words Words by 
 
 which 
 
 9 A derivative from mootci. According To the Hunifites, marriage 
 cannot he contracted by this word or any of its derivatives. — 1)., p. 15. 
 
 10 Both the words are derivatives from the same root ; but the 
 first seems more appropriate to the acceptance, and the second to 
 the declaration. 
 
 II There is a remarkable difference in this respect between the 
 two sects. — D., p. 15. 
 
 b 2 
 
MAKRIAUE. 
 
 marriage 
 is not con- 
 tracted. 
 
 No regard 
 to be paid 
 to the 
 words of a 
 minor, or 
 insane 
 person. 
 
 A guar- 
 dian not 
 required 
 to a dis- 
 creet fe- 
 male, nor 
 witnesses 
 
 beya (sale), heba (gift), tumleek (transfer), or ijaruJi 
 (lease). 12 
 
 The laws of the contract are comprehended in the 
 following cases : — 
 
 First. In marriage no regard whatever is to be paid 
 to the words of a boy, 13 whether in expressing declaration 
 or acceptance ; nor to those of an insane person. With 
 regard to marriage contracted by one so drank as to be 
 incapable of discernment, there is some difference of 
 opinion ; but according to that which is most agreeable 
 to traditional authority, it is not valid, even though sub- 
 sequently confirmed by the person when sober. 14 There 
 is one tradition, however, according to which, if a woman 
 in a state of intoxication should contract herself in 
 marriage, and afterwards, on becoming sober, should 
 declare her consent to the contract, or if, being enjoyed 
 while intoxicated, she should subsequently, on becoming 
 sober, acknowledge the man to be her husband, there 
 would, in either case, be a concluded marriage. 
 
 Second. A guardian is not required to the marriage 
 of a rasheedali, 15 or discreet female ; nor is the presence 
 of witnesses necessary in any matter regarding marriage. 10 
 And though a marriage were contracted by the spouses 
 themselves or their guardians in private, it would still be 
 
 J ~ All these words, except the last, are sufficient according to the 
 other sect. — D., p. 15. 
 
 13 Subee, that is, one under puberty. According to the other 
 sect, marriage contracted by a boy of understanding is valid, though 
 inoperative without the consent of his guardian. — (D., p. 5.) But, 
 according to the Sheeahs, " all acts which may be performed before 
 maturity and discretion are considered to be null and void." — (Im. 
 D., p. 308.) 
 
 14 " Extreme intoxication, so as to remove the power of discern- 
 ment," is a ground of nullity in sale. — Im. D., p. 11 
 
 15 From ?-ooshd. " Maturity is not sufficient without discretion 
 to remove the inhibition imposed on infants by law." — Im. D., p. 310. 
 " Discretion signifies the just and proper management of one's pro- 
 perty." — Ibid. 
 
 10 It is essential to a valid marriage, according to the other sect. 
 -D, p. 5. 
 
LAWS OF MARRIAGE. O 
 
 lawful. Nor would even a positive injunction to secresy to any 
 invalidate it. marriage. 
 
 Third. When a person, after making a declaration, has Declara- 
 
 become insane or fainted awav, the effect of the declaration tl0 }} ^ a n n " 
 •f • i celled by 
 is annulled ; and if it were subsequently accepted, the the de- 
 acceptance would be of no avail. The result would be ^larer's 
 , •/» i becoming 
 the same if the acceptance were first expressed, and a insane, 
 
 failure of understanding then taking place on the part bef ° re ac * 
 ° or- i ceptance. 
 
 of the acceptor, the guardian, or party on the other side, 
 should subsequently interpose his declaration, for in that 
 case the declaration would be equally unavailing, as in a 
 case of sale. 
 
 Fourth. An option 17 may be stipulated for with regard An option 
 to the dower especially, that is, it cannot be extended to ma ^ ere ' 
 the marriage itself; 18 and an option so restricted is quite to dower, 
 valid, without in anywise vitiating the contract. 
 
 Fifth. When a man has declared himself to be the Effect of 
 
 husband of a woman, and she has assented to the truth of acknow- 
 ledgment 
 the statement, or a woman has declared herself to be the in consti- 
 
 wife of a man, and he has acquiesced in the assertion, they tutin S 
 
 tii -it • n . marriage, 
 
 are to be adjudged as ostensibly married, and as having 
 
 mutual rights of inheritance. If one of them should make 
 such a declaration, judgment for all the effects of the con- 
 tract is to be given against him or her only, to the exclu- 
 sion of the other. 
 
 Sixth. It is required as a condition in marriage that In a con- 
 the wife be distinguished from all others by distinctly m arria°-e 
 pointing her out, or by name and description. 19 So that the wife 
 if a person should marry a man to one of his daughters, ™stinctlv 
 without anything else to indicate her, the marriage would indicated, 
 be void. 
 
 Seventh. If a man should claim a woman as his wife, Prefer- 
 ence of 
 
 17 An option is a power of cancellation, which may be reserved 
 to either party in a contract of sale by express stipulation. — See 
 Im. D., p. 39, and M. L. S., p. 63. 
 
 18 See^os^, p. 77. 
 
 19 This cannot be less necessary with respect to the husband, 
 though the wife only is mentioned, as she is seldom present at the 
 time of contract. 
 
I) MARRIAGE. 
 
 proof in and her sister should, on the other hand, claim him as 
 
 contend- j^, li US band, and both the parties offer proof in support 
 ing claims ; r l l L 
 
 by a man of their respective claims, 20 then if the man had consum- 
 
 to a wo- mated with the female claimant, the preference is to be 
 man as his _ '_ \ 
 
 wife, and given to her proof, for her claim is manifestly corroborated 
 
 ter to r h' 1S " ^y ^is own ac ^' And, i Q like manner, her proof should be 
 
 asherhus- preferred if prior in date to that tendered by the man. 
 
 But in the absence of both these circumstances in favour 
 
 of her proof, preference is to be given to that of the 
 
 husband. 21 
 
 Marriage Eighth.. When a slave who has married a bondwoman 
 
 to a bond- nas P urcnase d his wife, with his master's permission, and 
 
 woman on his account, the marriage remains as before, being quite 
 
 by her be- unaffected by the purchase. Whereas, if the purchase 
 
 cominghis were on his own account, or if he subsequently acquires 
 
 by any other means the right to his wife, and we can 
 
 properly call him her proprietor, the marriage is dissolved ; 
 
 but if we cannot make this supposition (he being a slave) 
 
 the marriage remains good as before. If the slave is 
 
 partially emancipated, and then purchases his wife, the 
 
 marriage between them is in like manner dissolved, 
 
 whether the purchase were made with his own money, or 
 
 with money the joint property of himself and his master. 
 
 Section Second. 
 
 Persons who have Power to enter into the 
 Contract} 2 
 
 Who have No person has any authority to contract another in 
 contTact° man 'i a g e except a father, a paternal grandfather in any 
 others. ~ 
 
 20 The two claims cannot be true, as a man cannot lawfully be 
 the husband of two sisters at the same time. — See post, p. 23. 
 
 21 On the subject of preference of proof, see Digest, B. xii. 
 cap. vi. 
 
 22 Awleeah, plural of iculee, the word translated guardian a little 
 above (p. 4), but here taken in a more comprehensive sense, as 
 including all persons possessed of authority. Accordingly, though 
 the section relates chiefly to guardians, cases relating to the 
 marriage of slaves and the appointment of agents will be found 
 under it. 
 
GUARDIANS IN MARRIAGE. 7 
 
 degree of ascent, a master, an executor, or a judge. 
 According to one tradition, it is a necessary condition of 
 the grandfather's authority that the father should be alive. 
 But the tradition is not free from doubt as being weakly 
 authenticated, and it would seem that the father's exist- 
 ence is not necessary to the exercise of the grandfather's 
 authority. 
 
 The authority of a father and a paternal grandfather The father 
 over a young girl 23 is clearly established, even though she ^ and . 
 should have lost her virginity ; and, according to the more father 
 approved of two traditions, she has no option after attaining t h or j ty l 
 to puberty. In like manner, if a father and grandfather contract 
 should contract a boy 23 in marriage, the contract would be $£& & 
 binding on him, and he would have no option after attain- whether 
 ing to puberty and discretion, 24 according to the most f ema i e ; 
 prevalent doctrine. But whether they have the same 
 power over a virgin who is discreet, is a question on which 
 there are several traditions. According to the most 
 generally approved of these, their authority is at an end, 
 and she is quite competent to contract herself, either by 
 a permanent or a temporary marriage ; and if either of 
 them should take upon himself to enter into the contract 
 for her, it would not be effectual without her assent. Some 
 of our masters, however, allow her to contract a permanent 
 but not a temporary marriage ; and others the reverse ; 
 while some again deny her any power as to either ; and 
 there is still another tradition that points to a partnership 
 in the authority, so that it would not be lawful for the 
 guardians to act separately from her in the contract. But 
 if her guardians should refuse to marry her to an equal, 
 when desired by her to do so, there is no doubt that she 
 may contract herself, even against the will of both. And 
 they have no power whatever over a woman who is a 
 /// uyyibah, 25 that is, not a virgin, and has attained to puberty 
 and discretion, nor over an adult male. Their power, but not an 
 
 23 Sugheerah (fern.) and sughcer (rnasc), literally, "little one." The 
 words always mean persons under puberty. 
 84 Rooshcl, see ante, p. 4, note 15 . 
 25 Usually pronounced Siyyebah in India. 
 
 adult, 
 
MARRIAGE. 
 
 unless the 
 person is 
 
 A master 
 may con- 
 tract his 
 slave. 
 
 Authority 
 of a j udge, 
 how re- 
 stricted ; 
 
 of an ex- 
 ecutor. 
 
 A person 
 inhibited 
 for prodi- 
 gality, 
 cannot 
 contract 
 himself, 
 without 
 permis- 
 sion of the 
 judge. 
 
 Excep- 
 tions. 
 
 A contract 
 entered 
 into with- 
 out autho- 
 rity, is in 
 suspense 
 till duly 
 confirmed. 
 
 however, is fully established with respect to both of those 
 persons if insane, and neither of them has any option 
 after restoration to reason. 
 
 A master may contract his female slave in marriage, 
 whether she be young or full-grown, 26 sane or insane, and 
 she has no option in the matter. The rule is the same 
 also in the case of a male slave. 
 
 The judge has no power in marriage over any one who 
 is not adult, nor over an adult who has discretion. But 
 his authority is fully established with respect to a person 
 who has attained to puberty without discretion, or one on 
 whom insanity has supervened, when marriage is for his 
 benefit. 
 
 An executor has no authority in marriage, according to 
 the most approved tradition, even if it were expressly given 
 to him by his testator. But an executor may contract a 
 person who though arrived at puberty is deficient in under- 
 standing, when there is any necessity for contracting him 
 in marriage. 
 
 A person who has been inhibited for prodigality can- 
 not lawfully marry, except in an extreme case ; and if 
 he should do so the marriage would be invalid. But 
 if desperately bent on marriage, the judge may lawfully 
 grant him permission to marry, either specifying a par- 
 ticular woman, or leaving the permission general : and if 
 he should be impatient, and contract himself before ob- 
 taining the permission, being in the condition before 
 mentioned, the marriage would be valid ; but if the dower 
 be more than what is proper for a person of the same 
 condition as the woman, it is void as to the excess. 
 
 When a stranger has taken upon him to contract a 
 person in marriage, the contract is in suspense for the 
 permission of the party to whom the right of contract 
 belongs. Some, however, have said that the contract is 
 void ; but the first opinion is niore agreeable to traditional 
 authority. 
 
 20 Kubeer (niasc.) and kubeerah (fern.), always used in opposition 
 to sughcer and suyheerah. 
 
GUARDIANS IN MARRIAGE. V 
 
 Matters connected with the Preceding. 
 First. When an adult and discreet female has given Agent of 
 a general appointment to an agent to contract her in a woman 
 
 . m CtHlTlOtj 
 
 marriage, he cannot marry her to himself without her contract 
 special permission. And though she should appoint an ^ rto lf 
 agent expressly to marry her to himself, it has been said, without 
 on the authority of one report, that such an appointment sp !f ial - t 
 would not be valid. The more approved doctrine, however, 
 is in favour of its legality. And if a woman's grandfather 
 should marry her to the son of another son than her own 
 father, the marriage would be lawful. 
 
 Second. Whether a woman who is contracted in mar- Woman 
 riage by her guardian for less than her proper dower can contracted 
 object to the contract is a question on which there is some than her 
 difference of opinion, but, according to the most authentic Jfo^fr 
 doctrine, she has the power to do so. may 
 
 Third. Full regard is to be had in the contract of object ' 
 marriage to the words of a female who is of mature age female, 
 and discreet, so that she is quite competent to contract competent 
 herself, or to be the agent of another in giving expression tract, 
 either to the declaration or the acceptance. 
 
 Fourth. The contract of marriage may, according to A contract 
 
 the most approved doctrine, remain in suspense, as alreadv °. f mar " 
 
 n n « , . riage may 
 
 mentioned, for the sanction of the person having authority remain in 
 
 in the matter ; and if a young arirl is contracted in marriage f "? p f n , se 
 
 by any other person than her father, or paternal grand- confirmed, 
 father, whether the person be nearly or remotely related to 
 her, the contract cannot pass or be operative unless sub- 
 sequently allowed or approved by herself, even though the 
 
 person were her brother or paternal uncle. In the case of Assent of 
 
 a virgin this permission or assent mav be inferred from a vir S in 
 i m " l i • may be 
 
 her silence when the matter is propounded to her ; but a inferred 
 
 woman who is not a virgin must be put to the trouble of 
 giving expression by actual speech to her permission or 
 assent. If the person contracted be a female slave, the 
 contract is in suspense until legalized by her master ; and 
 if not a slave, but under puberty, and her father or grand- 
 father allows the cou tract entered into by her, the marriage 
 is valid. 
 
 from her 
 silence. 
 
10 
 
 ,mai;i;iage. 
 
 An infidel 
 guardian 
 
 has no au- 
 thority. 
 
 Option of 
 puberty ; 
 in what 
 cases 
 allowed. 
 
 Marriage 
 of a slave 
 without 
 permis- 
 sion of her 
 master not 
 lawful. 
 
 Case 
 of two 
 infants 
 married 
 together 
 and one of 
 them dy- 
 ing before 
 puberty. 
 
 Fifth. When the guardian is an infidel 27 he has no 
 authority over his ward, and if the father be an infidel the 
 authority is established in the grandfather alone. So also 
 when the father is insane or falls into a state of temporary 
 stupor. But on the removal of the impediment his au- 
 thority revives. If the father should select one husband, 
 and the paternal grandfather another, the husband whose 
 contract was first in date is to be preferred, and the contract 
 of the other is void. But if both contracts should take 
 place simultaneously, the contract of the grandfather is 
 established in preference to that of the father. 
 
 Sixth. When the guardian of a female has married 
 her to a person who is insane or an eunuch the marriage 
 is valid, but she has an option on attaining to puberty. 
 So also when the guardian of a boy has married him to a 
 female, having one of the defects which are a sufficient 
 cause for the cancellation of marriage, he has in like 
 manner an option on attaining to puberty. But if the 
 guardian of a girl should marry her to a slave, she would 
 have no option on arriving at puberty. And the law is the 
 same with regard to a boy married in the like circumstances, 
 though some have denied its application in his case. 
 
 Seventh. The marriage of a female slave is not lawful 
 except with the permission of her owner, though the owner 
 be a woman, and whether the marriage be permanent or 
 temporary. Some, however, have maintained that the slave 
 may marry herself by a temporary contract when the owner 
 is a woman. But the first opinion is more agreeable to the 
 general principles of law. 
 
 Eighth. When the fathers of two young children have 
 contracted them to each other in marriage, the contract is 
 binding on them both ; and if one of them should happen 
 to die, the other would be entitled to share in the deceased's 
 inheritance. If any other than the fathers 28 of the 
 children should contract them in marriage, and one of 
 
 27 Kafir. The term is applied to all who are not of the Mussul- 
 man religion. 
 
 28 a Q r grandfathers " would seem to he implied. See ante, p. 0. 
 
GUARDIANS IN MARRIAGE. 
 
 11 
 
 them should happen to die before arriving at puberty, the 
 contract would be void, and both dower and the right of 
 inheritance would fail. If, again, one of them should 
 attain to puberty and be willing to abide by the contract, 
 it would be binding on the side of that person ; and if he 
 or she should subsequently die, the share of the other in 
 the deceased's estate must be reserved. If such other on 
 attaining to puberty should allow the marriage, he or she 
 must then be sworn that the marriage has not been allowed 
 from greed of the inheritance, and admitted to the reserved 
 portion if the oath be taken ; while if the person who has 
 not allowed the contract should happen to die, the contract 
 would be void, and the party would have no right to share 
 in the estate of the deceased. 
 
 Ninth. When the owner of a slave has given him 
 permission to marry, the contract entered into by him is 
 valid ; but if the permission be given in general terms, it 
 is restricted in respect of claim to the proper dower of the 
 woman who is the subject of the contract. The excess 
 over the proper dower is nevertheless obligatory on the 
 slave himself, and he may be sold for it, if he should ever 
 obtain his liberty. To the extent of the proper dower, the 
 owner is liable ; and though it has been said that the 
 proper dower attaches only to the gains or acquisitions of 
 the slave, the first opinion is more conformable to tradi- 
 tional authority. The same doctrine is true with regard to 
 the maintenance of the slave's wife, for which his master 
 is also liable. 
 
 Tenth. A partially emancipated slave cannot be com- 
 pelled by his owner to enter into marriage. 
 
 Eleventh.. When the owner of a female slave is him- 
 self subject to the authority of another, the right to give 
 her in marriage belongs to his superior ; and when the 
 superior has given her in marriage, the contract is binding 
 and cannot be cancelled by the owner, after the removal of 
 the authority to which he was subject. 
 
 It is becoming and proper for a woman before entering 
 into marriage to ask the permission of her father, whether 
 she be a virgin or not, and, when she has neither father nor 
 
 A slave 
 may law- 
 fully con- 
 tract him- 
 self in 
 marriage 
 with his 
 master's 
 permis- 
 sion. 
 
 Slave par- 
 tially free 
 not forced 
 to marry. 
 
 Power to 
 marry a 
 female 
 slave 
 when 
 master is 
 under au- 
 thority 
 belongs 
 to his 
 superior. 
 A woman 
 should ap- 
 
12 
 
 MARRIAGE. 
 
 point an grandfather, to appoint her brother to act as her agent in 
 contract such matters, giving her confidence to the eldest when she 
 
 her in ] ias m ore than one brother. If each of an elder and 
 marriage. 
 
 younger brother should select a husband for her, she 
 
 should adopt the choice of the elder ; but if both were 
 appointed her agents to contract her in marriage, and they 
 should contract her to two different husbands, the contract 
 first entered into would take effect. Yet if the second 
 marriage be consummated, and she becomes pregnant in 
 consequence, the paternity of the child is to be ascribed to 
 the man whose marriage has thus been consummated, and 
 he is liable for her dower, though the woman herself must 
 return to the husband with whom the first contract was 
 made. If, again, the contracts were entered into simul- 
 taneously, some of our doctors have maintained that a 
 preference should be given to the contract of the elder 
 brother ; but there seems no sufficient ground for this 
 opinion. While, if she had never given authority to either 
 of them, she may approve whichever of the contracts she 
 pleases, though it is considered better that she should give 
 the preference to that entered into for her by the elder 
 brother. If, however, before expressly allowing either of 
 the contracts, she consummated with one of the husbands, 
 the contract with him is binding on her. 
 
 A mother has no power in marriage over her child. 
 Nevertheless, if she should enter into such a contract for 
 her son, and he is content to abide by it, the contract is 
 binding upon him ; but if he is averse, she is responsible 
 for the dower. On this point, however, there is some room 
 for doubt, and the question of her liability is sometimes 
 held to depend on her having sought for an appointment 
 of agency from her son. 
 
 When a stranger has contracted a woman in marriage, 
 and the husband says to her, " He contracted thee with- 
 out thy consent," her word and oath are to be preferred, 
 because she is seeking to maintain the contract. 
 
 a dispute as to her consent 
 
 to a contract. 
 
 A mother 
 has no 
 power to 
 contract 
 her child 
 in mar- 
 riage. 
 
 The word 
 of a wife, 
 when pre 
 ferred to 
 her hus- 
 band's in 
 
unlawful marriages. 13 
 
 Section Third. 
 
 The Causes of 'Prohibition in Marriage. 
 
 These are six in number. 
 
 First Cause of Prohibition. 
 
 Nusub or Consanguinity. 
 
 By nusub seven different classes of women are pro- Women 
 hibited to a man. The first class comprises his mother, P^ lblt_ 
 and grandmothers how high soever, and whether paternal man by 
 or maternal. The second class comprises his daughters reaso J 1 of 
 and their daughters how low soever, and also the daughters consan- 
 of his sons to the lowest degree of descent. The third gumlty * 
 class comprises his sisters, whether by the same father and 
 mother, or by the same father only, or the same mother 
 only. The fourth class comprises the daughters of these, 
 and the daughters of their children. The fifth class com- 
 prises a man's paternal aunts, whether the sisters of his 
 father by both his parents, or by the same father only, or 
 the same mother only ; and in like manner the sisters of 
 his grandfathers how high soever. The sixth class com- 
 prises his maternal aunts, whether sisters of his mother 
 by both her parents, or only by the same father or the 
 same mother ; and, in like manner, the maternal aunts of 
 his father and mother how remote soever in ascent. And 
 the seventh class comprehends the daughters of a man's 
 brother, whether he be a brother by both parents, or only 
 by the same father, or by the same mother, and whether 
 the daughter be the immediate child of his brother, or the 
 daughter of his daughter or of his son, and their daughters 
 how low soever. 29 
 
 Among men the like classes are equally prohibited to a Like class- 
 woman. So that her father, how high soever, her brother es of men 
 and his son, her sister's son, her paternal uncle, how high to a 
 
 woman. 
 
 19 The daughters of sisters are omitted, but it would seem from 
 the next sentence, where a sister's son is among the like classes pro- 
 hibited to a woman, that this is a mere inadvertence. 
 
14 
 
 MARRIAGE. 
 
 JVttsttb es- 
 tablished 
 by mar- 
 riage, or 
 
 the sem- 
 blance of 
 it, but not 
 by zina. 
 
 Case of 
 a child 
 borne by 
 a repudi- 
 ated wo- 
 man to 
 another 
 than the 
 repudiator 
 under a 
 semblance 
 of right. 
 
 Numb of 
 
 a child, cut 
 off by lion 
 from the 
 husband 
 of its 
 mother. 
 
 soever, and her maternal uncle in like manner, are all 
 unlawful to her. 
 
 Nusuh, or consanguinity, is established by a valid 
 marriap-e 30 or the semblance of it ; and it is not established 
 by zina or illicit intercourse. Hence, if a man should 
 have such intercourse with a woman, and a child be gene- 
 rated of his seed, it is not related to him in law. Still, 
 according to the most approved doctrine, the child is pro- 
 hibited both to him and the woman, because it is in reality 
 the product of his seed, and is, accordingly, termed his 
 child in common parlance. 
 
 If a man has repudiated his wife, and she is subse- 
 quently enjoyed by another under a semblance of right, 
 becomes pregnant, and is delivered of a child at less than 
 six months from the time of the second intercourse, and 
 at full six months from her last connection with the repu- 
 diator, the child is to be ascribed to the latter ; but if, 
 when there is less than six months from the intercourse 
 with the second husband, there is more than the longest 
 period of gestation from the last intercourse with the repu- 
 diator, the child is not to be ascribed to either ; and if 
 there is a possibility of the child's being the fruit of either 
 intercourse the case is to be resolved by casting lots, sub- 
 ject, however, to some doubt whether it be not more agree- 
 able to the general principles of law to affiliate the child to 
 the second of the two parties. However the nusuh or 
 consanguinity may be determined, the law of the milk, or 
 the rules by which the prohibition of fosterage is regulated, 
 will follow it. 
 
 When a man denies the child of his wife, and takes the 
 Man or imprecation, its nusuh is cut off from the master of 
 the bed, or husband of its mother, and the milk in this 
 case, as well as in the former, follows the nusuh. But if 
 he should afterwards acknowledge the child its nusuh is 
 restored, though he can have no title to share in the child's 
 inheritance. 
 
 30 Of any of the kinds before mentioned. 
 
unlawful marriages. 15 
 
 Second Cause of Prohibition. 
 
 Fosterage. 
 
 This cause requires the consideration of its conditions Condi- 
 and effects. tions - 
 
 The first condition is that the milk must proceed from l. The 
 marriage, 31 for it does not occasion prohibition when it has n V lst 
 
 its source in zina or illicit intercourse. 32 With regard to from mar- 
 a semblable marriage there is some difference of opinion ; nage * 
 but it is most agreeable to the general principles of law to 
 place marriages of that kind on the same footing as valid 
 marriages. If a man should repudiate his wife when in 
 milk, and she should then suckle a child, illegality would 
 be incurred, in the same way as if he were still her 
 husband. And the result would be the same though she 
 should be married to and become pregnant by a second 
 husband. But if the milk be once cut off or cease, and 
 then return at a time when it may possibly belong to 
 the second husband, it will be ascribed to him rather than 
 to the first. And if it continue without intermission up 
 to the birth of a child by the second husband, the milk 
 before delivery should be ascribed to the first husband, 
 and that after delivery to the second. 
 
 The second condition has reference to the quantity of 2. The in- 
 the milk that is required to occasion prohibition ; and it bTg U ckled 
 must be such as gives increase to the flesh and strength to on the 
 the bones. 33 No effect, therefore, is allowed to anything less ^certain 
 than ten acts of suckling, except according to one report number 
 which is not well authenticated. Whether even ten be consecu- 
 sufficient to occasion prohibition is a question on which tively. 
 there are two distinct traditions, but, according to that 
 which is most valid or best supported, ten are not sufficient. 
 There is no doubt, however, that when the acts of suckling 
 
 31 In its most comprehensive sense. 
 
 33 This is contrary to the Hanifite doctrine. D., p. 195. 
 
 33 "Whatever he the quantity, it occasions prohibition accord- 
 ing to the other sect, provided that it reaches the child's stomach. 
 D , p. 193. 
 
1 6 MARRIAGE. 
 
 amount to fifteen, or are continued for a day and a night, 
 illegality is induced. But they are restricted by three con- 
 ditions. Each act must be complete in itself. They must 
 all be consecutive, and direct from the breast. In deter- 
 mining the quantity of each, regard must be had to what 
 is customary. When it is said that the acts of suckling 
 must be consecutive, what is meant is that only one 
 woman should be engaged in making up the requisite 
 number ; for if some of the acts are by one woman, and 
 another woman then intervenes before the completion of 
 the fifteen, all the first go for nothing, or if several women 
 are engaged in nursing the child, prohibition is not in- 
 curred till one of them has completed the full number of 
 fifteen in succession. So that the master of the milk, 
 when there has been a change of nurses, does not become 
 the foster-father, nor his father the foster-grandfather, nor 
 the nurse herself the foster-mother of the child. Accord- 
 ing to the prevalent opinion, it is necessary that the child 
 should be nursed direct from the breast. 34 If, then, the 
 milk is poured into the child's throat, or made to reach 
 its stomach by means of a clyster, or the like, the prohi- 
 bition of fosterage is not incurred. So, also, if it were 
 made into cheese, and the cheese were eaten, there would 
 be no prohibition. It is farther necessary that the milk 
 should be in its natural state ; for if another liquid is 
 put into the child's mouth just before it is suckled, and 
 the milk is thus so much diluted as to be no longer 
 deserving of the name, there is no prohibition. And if 
 the child is allowed to suck the breast of a corpse, or is 
 partially suckled by a woman while alive, and does not 
 complete the full number till she is dead, prohibition is 
 not incurred ; for, by death she has passed from the region 
 or cognisance of the laws, and becomes, in that respect, 
 like one of the lower animals. On this point, however, 
 there is some difference of opinion. 
 3. All the The third condition is that the suckling of the infant 
 
 acts of should take place within two years from its birth, by reason 
 suckling x 
 
 34 This is net required by the Haniiites. D., p. 196. 
 
UNLAWFUL MARRIAGES. 17 
 
 of what has been said by him on whom and his descendants must be 
 
 be blessing. 35 " There is no fosterage after weaning." ^ *g ar . 
 
 According to the most valid opinion, this has no reference of the 
 
 to the child of the nurse, so that if her own child be past birtll s 
 
 the age of ten years, and she then suckles an infant who is 
 
 under that age, prohibition is incurred. But if a child is 
 
 suckled the full number of times except one, and then 
 
 completes its two years, after which it is again suckled to 
 
 make up the full number, there is no prohibition. So, 
 
 also, there is no prohibition if the two years should expire 
 
 without any attempt to complete the number by adding the 
 
 last. But the prohibition is incurred whenever the full 
 
 number is completed within the two years. 
 
 The fourth condition is that the milk should arise from 4. The 
 
 iatercourse with one male : and if a woman should suckle P 11 must 
 
 5 be ot one 
 
 a hundred children on milk caused by the same man, they man. 
 would all be unlawful to her. So, also, if one man were 
 to marry ten women, and each of them should give suck to 
 one or more children, none of them could lawfully inter- 
 marry with any of the others of them. But if one woman 
 should suckle two children on milk caused by different 
 men, the children would not be unlawful to each other. 
 There is a tradition the other way upon this point, but it 
 is now rejected as unauthentic. There is no doubt, how- 
 ever, that the woman's own children by nusidi, or natural 
 descent, are unlawful to any who may have been nursed 
 by her. 
 
 In conclusion on this head, the woman selected for a Qualities 
 nurse should be a person of understanding and of the n ^ s 1 e roper 
 Mussulman faith, chaste and pure ; and an infidel should 
 by no means be taken for such a purpose, except in a case 
 of great necessity, when a zimmeeah, or infidel subject may 
 be employed. But she should be restrained from drinking 
 wine and eating pork ; and it is accounted abominable to 
 deliver the child to her to be nursed at her own home. The 
 abomination is aggravated when the woman employed to 
 nurse a child is a Mujooseenh, or fire-worshipper ; and it is 
 
 35 The Prophet. 
 PART II. c 
 
li 
 
 MAKKIAGE. 
 
 Effects of 
 fosterage. 
 
 The suck- 
 ling be- 
 comes the 
 child of 
 its foster- 
 parents ; 
 
 and is pro- 
 hibited to 
 every 
 child of 
 theirs. 
 
 The natu- 
 ral father 
 of the 
 suckling is 
 also pro- 
 hibited to 
 the chil- 
 dren of 
 its foster- 
 parents. 
 
 Retro- 
 spective 
 effect of 
 fosterage. 
 
 Where an 
 infant 
 wife is 
 suckled 
 
 also abominable to employ a woman for that purpose whose 
 child has been the fruit of zina, or unlawful intercourse. 
 
 As regards the effects of fosterage, several cases present 
 themselves for consideration. 
 
 First. When a prohibiting fosterage has taken place, 
 the prohibition spreads from the nurse and her husband to 
 the child whom she has suckled, and from it back to them 
 both ; so that the nurse becomes its mother, the nurse's 
 husband its father, their parents its grandparents, their 
 children its brothers and sisters, and their brothers and 
 sisters its paternal and maternal uncles and aunts. 
 
 Second. Every one in the relation of child to the hus- 
 band, either by natural descent, or by fosterage, is pro- 
 hibited to the foster-child ; and so, also, every one in the 
 relation of child to the foster-mother by natural descent, 
 how low soever, is prohibited to the foster-child, but those 
 so related to the foster-mother only by fosterage are not 
 prohibited to it. 
 
 Third. The natural father of a child that has been 
 suckled cannot intermarry with any of the children by 
 natural descent or by fosterage of its foster-father, nor with 
 any of the children by natural descent of his wife — the 
 foster-mother — for they have become like his own children. 
 Whether his other children who have not been suckled on 
 this milk can intermarry with the children of the foster- 
 mother or her husband, is a question that has been 
 answered in the negative. But it seems more agreeable to 
 the principles of law to say that such a marriage would be 
 lawful. And if a woman should suckle a son of one family 
 and a daughter of another, the brothers and sisters of one 
 of the children so suckled by her may lawfully intermarry 
 with the brothers and sisters of the other of them, for there 
 is neither consanguinity nor fosterage between them. 
 
 Fourth. A prohibiting fosterage not only forbids be- 
 forehand the intermarriage of parties between whom it 
 exists, but also cancels an existing marriage to which it 
 attaches. Thus, if a man should marry an infant at the 
 breast, and it is subsequently suckled by his mother, 
 grandmother, or sister, or by the wife of his father or 
 
UNLAWFUL MARRIAGES. 19 
 
 brother when the author of her milk, the marriage is by a rela- 
 vitiated. If the infant has taken the teat without the husband^ 
 knowledge of the nurse it has no right to dower, because 
 the marriage on which the right was founded has become 
 void ; but if the nurse has acted voluntarily in the matter, 
 it is maintained by some of our doctors that the infant is 
 entitled to half the dower, because the marriage has been 
 cancelled before consummation, and her right does not 
 abate, because the cancellation is for a cause which has not 
 proceeded from herself; while the husband has a right of 
 recourse against the nurse for whatever he may pay on that 
 account, if she actually intended to vitiate the marriage. 
 On all this, however, there is a difference of opinion arising 
 from a doubt whether the usufruct of a woman's person be 
 a fit subject for responsibility. 
 
 If a person has two wives, one adult and the other an or an in- 
 infant at the breast, and the infant is suckled by the adult . ant Y] ie , 
 ; J is suckled 
 
 wife, they are both rendered perpetually unlawful to him if by an 
 
 he had consummated with the adult wife ; but if not, the ^j^ co ~ 
 
 adult wife alone is prohibited to him. In the former case she 
 
 is entitled to her full dower, but to no part of it in the latter, 
 
 because the marriage has been cancelled by her own act ; 
 
 but the infant's right to dower is unimpaired in both cases, 
 
 because her marriage is cancelled by the conjunction, 36 and 
 
 for a cause which cannot be ascribed to her. Some of our 
 
 doctors, however, have maintained that the husband has a 
 
 right of recourse against the full-grown wife, by whose act 
 
 the cancellation of the marriage and his consequent liability 
 
 have been induced. 
 
 37 Fifth. When a man has married his infant son to or one of 
 
 the infant daughter of his brother, and one of the children pai^is 
 
 is then suckled by their common grandmother, the marriage suckled 
 
 is cancelled, because the child which has been suckled, if a common 
 
 male, becomes the paternal or maternal uncle of his wife, grand- 
 
 and, if a female, the paternal or maternal aunt of her 
 
 husband. 
 
 Sixth. When a man has a female slave whom he has or by an 
 ■ ■ ; enjoyed 
 
 36 Of two women who cannot lawfully be co-wives. See post, p. 21. 
 
 37 Some alteration has been made in the arrangement of the cases. 
 
 c 2 
 
20 
 
 MARRIAGE. 
 
 slave of 
 her hus- 
 band : 
 
 or by a 
 wife 
 whom 
 he has 
 divorced. 
 
 Further il- 
 lustration 
 of the re- 
 trospec- 
 tive ef- 
 fects of 
 fosterage. 
 
 Con- 
 tinued. 
 
 enjoyed, and his infant wife is suckled by her, they are 
 both rendered unlawful to him, and the right of the infant 
 to dower is established. In this ease, however, the man 
 has no right of recourse against the slave, because a master 
 can have no claim to any property founded on the respon- 
 sibility of his slave. If, indeed, the woman had been free, 
 and were enjoyed under a contract of marriage, he would 
 have a right of recourse against her ; and even in the case 
 before us the claim attaches in a manner to her person. 
 On this point, however, 1 38 have some doubt ; but if we 
 can say that he has in any case a right of recourse against 
 her for the dower, we may then pronounce for the sale of 
 the slave on account of it ; that is, she may be sold if she 
 should ever obtain her liberty. 
 
 Seventh. If a man should divorce his full grown wife, 
 and she should then 39 suckle his infant wife, both would 
 become unlawful to him. 
 
 Eighth. When a grown woman has married a little 
 child, and the marriage has been cancelled either for a 
 personal defect or because the woman, being a slave, has 
 been emancipated, or for any other cause, and the woman 
 has then married another man, and suckled the infant on 
 milk caused by him, she is rendered unlawful to her hus- 
 band, because she was the wife of his son, and to the infant 
 because she has become the wife of his father. 
 
 Ninth. If a man has an infant wife and two adult 
 wives, and the infant is first suckled by one of the latter 
 and then by the other, the infant and the adult wife by 
 whom it was first suckled are both rendered unlawful to 
 the husband. But not so the second wife, for at the time 
 of her suckling the infant it had already become his 
 daughter, and consequently ceased to be his wife. It is 
 maintained by some that the second wife is also rendered 
 unlawful to him, because she has become the mother of 
 one who was his wife ; and this opinion is to be preferred. 
 In these cases the marriages are cancelled by the establish- 
 ment of an unlawful conjunction, 40 and the relationship 
 
 38 That is, the author of the Shuraya. 30 See ante, p. 15. 
 
 40 See jwst, p. 21. 
 
UNLAWFUL MARRIAGES. 21 
 
 which renders the conjunction unlawful is induced by the 
 acts of suckling in the manner supposed. 
 
 Tenth. When a man has said, "This is my sister," Effect of a 
 or " my daughter, by fosterage," in such a manner as to dedara- 
 make the declaration binding upon him, and it has been fosterage 
 made before any contract with the person referred to, 3 a man# 
 judgment must be given against him in any suit for an- 
 nulling the contract, as he has apparently rendered her 
 unlawful to him. If, again, the declaration is made after 
 a contract, and it is supported by proof of the fact, judg- 
 ment is also to be given in conformity with the proof, and 
 the woman has no right to her specified dower if the de- 
 claration has been made before coition, but otherwise she 
 is entitled to the amount specified. If there is a failure 
 of proof and the woman denies the allegation, the man is 
 liable for the full dower after consummation, and to the 
 half of it if consummation has not taken place. 
 
 When a woman has made a similar declaration before By a 
 a contract, judgment is to be given against herself on the woman - 
 ground of her acknowledgment. But if the declaration is 
 made after a contract, and a claim is founded upon it by 
 the woman, the claim cannot be admitted unless supported 
 by proof. 
 
 Third Cause of Prohibition. 
 
 Affinity. 
 
 This is established by valid or lawful coition, and seem- Affinity 
 
 ino-]y also by zina or illicit intercourse, and bv intercourse f^ a ~ n , 
 
 -, , . . bhshed by 
 
 under a semblance of right, as also by seeing and touching, marriage. 
 
 But these points will be adverted to hereafter. Meanwhile, 
 
 with respect to a valid marriage : when a man has had Followed 
 
 connubial intercourse with a woman, either by virtue of a ^J connu- 
 
 contract or a right of property, he is rendered unlawful to course. 
 
 the mother how high soever of the enjoyed woman, and also 
 
 to her daughter in any stage of descent, and whether born 
 
 previously or subsequently to the intercourse, and whether 
 
 living under his protection or not. In like manner the 
 
 enjoyed woman is rendered unlawful to the father how high 
 
 soever of the man who has had intercourse with her, and to 
 
 his sons in every stage of descent, by a perpetual prohibition. 
 
22 
 
 MARRIAGE. 
 
 Effect of a 
 marriage 
 by con- 
 tract not 
 followed 
 by con- 
 nubial in- 
 tercourse. 
 
 Marriage 
 by right of 
 property 
 has not 
 the same 
 effect. 
 
 A father 
 or son 
 cannot 
 lawfully 
 have con- 
 nection 
 with the 
 slave of 
 each 
 other, 
 except by 
 virtue of 
 marriage. 
 
 If there has only been a contract of marriage without 
 coition, the wife is rendered unlawful to her husband's 
 father, and also to his son, but her daughter is not un- 
 lawful in herself to the husband, and only so in conjunc- 
 tion with her mother ; so that if he should separate himself 
 from the mother, he may lawfully marry the daughter. 
 Whether a mother is rendered unlawful to a man by a 
 mere contract with her daughter without coition, is a 
 question on which there are two different traditions. 
 According to the more authentic of these she is rendered 
 unlawful to him. But the female slave of a father is not 
 prohibited to his son by the mere fact of her being the 
 father's property ; nor is the slave of the son prohibited to 
 the father for the like cause alone. But if either of them 
 should have sexual intercourse with his slave, she would 
 then become unlawful to the other. 
 
 It is not lawful for either a father or a son to have 
 connection with the slave of the other, except under a 
 contract of marriage, or by virtue of some right of property. 
 True, that a father may value the slave of his infant son, 
 and so lawfully have connection with her by virtue of the 
 right go acquired ; but if either a father or a son should 
 have sexual intercourse with the slave of the other, without 
 at least a semblance of right, he would be a zanee or forni- 
 cator, though the son only, and not the father, would be 
 liable to the hudd or punishment specially appointed for 
 the offence ; and a semblance of right would also exempt 
 the son from its infliction. If the slave of the father should 
 become pregnant by the son under a semblance of right, 
 the child would be emancipated without any liability for its 
 value ; but if the slave of the son should become pregnant 
 by the father, the child would not be emancipated, though 
 the father would be bound to ransom it, unless it were a 
 female. If a father should have connection with the wife 
 of his son under a semblance of right, she would not 
 thereby be rendered unlawful to the son, though some have 
 maintained the contrary, as she had in a manner become 
 the wife of the father ; but the father would be liable for 
 her dower. If the son should return to his wife, and it 
 
UNLAWFUL MARRIAGES. 23 
 
 can be said that coition under a semblance of right induces 
 prohibition, he would be liable for two dowers ; but if that 
 cannot be said with propriety, as is really the case, 41 then 
 she can have no right to any dower except the first, or that 
 originally assigned to her on the marriage. 
 
 Among the consequences of affinity is the prohibition Women 
 of a wife's sister in conjunction with the wife, or of a ^Q^g 3,11 " 
 wife's niece in conjunction with her without her permis- lawfully 
 sion. With such permission the conjunction is quite lawful. °° wives of 
 The paternal or maternal aunt of a wife may be taken in the same 
 conjunction with her, even against the wife's will. But if 
 a man should marry his wife's niece, whether the daughter 
 of her brother or sister, without the wife's permission, 
 the contract would be void. Some of our doctors are of 
 opinion that in such a case the wife would have an option, 
 and might either allow the second marriage, or cancel it 
 without the cancellation being a divorce. But the first 
 opinion, according to which the contract is actually void, 
 is the most valid. 
 
 With regard to zina or fornication, if it be super- Effect of 
 venient, the prohibition of affinity is not incurred thereby. ^bKsMne- 
 Thus, if a man should marry a wife and then have illicit affinity, 
 intercourse with her mother or daughter, or be guilty of an 
 unnatural offence with her father or son, or should commit 
 fornication with the enjoyed slave of his father or his son, 
 in none of these cases would the act have a retrospective 
 effect in rendering the wife or slave unlawful to her hus- 
 band or master. But if illicit intercourse should occur 
 before a contract, then, according to the common and 
 approved doctrine, the daughter of a paternal or maternal 
 aunt would be rendered unlawful to the man who had com- 
 mitted fornication with their mothers. 42 Whether illicit 
 intercourse in other cases previous to a contract would 
 occasion the prohibition of affinity, in the same way as a 
 valid or legal intercourse, is a question in which there are 
 
 41 See post, p. 24. 
 
 42 That is, his cousin, whom he might otherwise have legally 
 married, would be prohibited to liim by his incestuous intercourse 
 with his aunt. 
 
24 
 
 MAKKIAUE. 
 
 Effect 
 of inter- 
 course 
 under a 
 semblance 
 of right. 
 
 Effect of 
 sight and 
 touch. 
 
 Conjunc- 
 tion of two 
 sisters by 
 contract. 
 
 two traditions, — according to one of which, and that the 
 most patent or generally received, it has that effect, but 
 according to the other it has not. 
 
 With regard, again, to coition under a semblance of 
 right, the Sheikh, 43 on whom be the mercy of God, puts it 
 on the same footing, in this respect, as a valid marriage. 
 But there is a difference of opinion upon this point, and, 
 according to that which is best supported by traditional 
 authority, the prohibition of affinity is not incurred by it, 
 though the nusvb, or affiliation of any child that may be 
 the fruit of it, is established. 
 
 As to sight and touch, whatever is lawful to other 
 persons than a husband, or the owner of a female slave, 
 such as the sight of the face, or touch of the palm of the 
 hand, that certainly does not occasion the prohibition of 
 affinity. Where, again, the sight or touch is not competent 
 to any other than a husband, or the owner of a slave, as, 
 for example the sight of the nakedness, or kissing, or 
 touching with desire such parts of the person as are usually 
 covered or concealed, there is a difference of opinion on the 
 subject; according to that which is best supported by 
 tradition, these are only productive of abomination, and 
 even those who consider that actual prohibition is incurred 
 by them limit its effects to the father and son of the person 
 who has seen or touched the objectionable parts of the 
 person, and do not include within them the mother or 
 daughter of the woman who has been seen or touched. 
 
 Miscellaneous Cases. 
 
 These have been arranged into two classes, as they 
 relate to unlawful conjunctions, or to women who are 
 specially prohibited for causes applicable to their particular 
 condition. The cases that relate to unlawful conjunction 
 are four in number, and as follows : — 
 
 First. 44 If a man should have married two sisters, the 
 
 43 Aboo Jafer Toosee. 
 
 44 Two have been omitted, one as being of little importance and 
 insufficiently vouched, being introduced by a keela, or " it is said ; " 
 and the other, because it more properly belongs to the next cause of 
 prohibition, under which it will be found at p. 28. 
 
UNLAWFUL MARRIAGES. 25 
 
 contract with the first is valid and that with the second 
 
 void. If both are included in one contract, it is maintained 
 
 by some of our doctors that the contract is void as to both. 
 
 But there is a tradition that he has an option, and may 
 
 choose whichever of them he pleases. The first opinion, 
 
 however, is more agreeable to the general principles of the 
 
 law, and the tradition is weak or insufficiently authenticated. 
 
 Second. If a man, after having had sexual intercourse Conjunc- 
 
 with a slave by virtue of his right of propertv in her, should tp 10 * two 
 
 . . . . . sisters, 
 
 marry her sister, it is maintained by some of our doctors one by 
 
 that the marriage is valid, and the woman first enjoyed by contr fct 
 
 right of property rendered unlawful to him so long as he other by 
 
 remains united to the second. Further, if a man, having P ro P ert y; 
 
 two female slaves who are sisters, should have connection 
 
 with them both, it is in like manner maintained that the or both by 
 
 first is prohibited to him after his intercourse with the ng °, 
 
 . ... property, 
 
 second till he has parted with his property in the second. 
 
 Some, again, are of opinion that if his intercourse with the 
 second was in ignorance of the relationship between them, 
 the first is not prohibited to him, and that if he was aware 
 of the relationship the first is prohibited to him until he 
 parts with his ownership in the second, without any inten- 
 tion of returning to the first ; for if he has any such inten- 
 tion, the first is not rendered lawful to him. It seems, 
 however, to be more agreeable to the general principles of 
 law that the second only should be prohibited to him in 
 both cases, and not the first. 
 
 Third. The marriage of a slave on a free woman, that is, Co-ad- 
 by a man who is already married to a free woman, except ^ n ^ *° n 
 with her consent, is unlawful ; and a contract entered into by con- 
 without waiting for her consent is void. 45 It is maintained Jliree ° 
 by some of our doctors that the free woman has an option, woman, 
 and may either cancel or allow the marriage with the slave, 
 or cancel her own contract. But the first opinion is more 
 agreeable to the general principles of the law. If, again, a 
 man should marry a free woman on a slave, that is, when 
 
 45 According to the Hariifite doctrine, consent is apparently in- 
 sufficient to legalize the contract. 1)., p. 36. 
 
L>G 
 
 MAKKIAGE. 
 
 Unlawful 
 to marry 
 a woman 
 during her 
 iddut. 
 
 Paternity 
 of a child 
 born in 
 such 
 circum- 
 stances. 
 
 already married to a slave, the contract would be lawful, 
 but the free woman, if ignorant of the existing connection, 
 would have an option with regard to herself. And if a free 
 woman and a slave are married by one contract, the contract 
 as to the free woman is valid, but not so as to the slave. 
 
 Fourth. When a man has had sexual intercourse with 
 a girl under the age of nine years, and has ruptured the 
 parts, 46 it is unlawful for him to have further connection 
 with her, but she is not released from her ties, if connected 
 with him by marriage or slavery. If no rupture has taken 
 place, the prohibition is not incurred according to the most 
 valid opinion. 
 
 The second class of cases, or those that relate to women 
 who are specially prohibited for causes applicable to their 
 particular condition, are six in number, and as follows : — 
 
 First. When a man has married a woman in her iddut, 
 with knowledge of the fact, she is for ever unlawful to him. 
 And even though he were ignorant of the fact, or of the 
 unlawfulness of marriage in such circumstances, yet if 
 consummation has followed, the prohibition of all future 
 connection with her is in like manner incurred. If coition 
 has not take place, the existing contract only is void, and 
 he is not prohibited from entering into another with her, 
 de 7io vo. 
 
 Second. When a man has married a woman in her 
 iddut, and pregnancy has ensued, the child of which she 
 may be delivered is to be affiliated to him, if he were 
 ignorant of its mother being in iddut at the time of her 
 marriage to him, or of the unlawfulness of marriage in 
 such circumstances, provided that the child is born at six 
 months or more from the time of consummation. The 
 parties are nevertheless to be separated, and the husband 
 is liable for the dower mentioned in the contract, while the 
 woman must complete her iddut for the first marriage, and 
 then enter on another on account of the second. 
 
 46 Afzaha. Literally, " has widened her." The legal acceptation 
 of the term in this place is utrumque meatum natures in altera 
 coalescere faciens impetu congressus. Im. D. Note, p. "2'27 . This 
 case more properly belongs to the next class. 
 
UNLAWFUL MARRIAGES. 27 
 
 Third. When a man lias had illicit intercourse with a a man is 
 woman, he is not thereby prevented from marrying her, j™* ?! ohl " 
 even though she is notoriously profligate. And, in like marrying 
 manner, if a man's wife should commit adultery, and even a woman 
 persist in such courses, she does not become unlawful to whom he 
 him, according to the most valid doctrine. But if a man j^ 5 ^ 8 ^. 
 should commit adultery with a woman who has a husband, tercourse. 
 or is in her iddut for a revocable divorce, she is rendered Unless she 
 perpetually unlawful to him according to the common or wife or in 
 generally received opinion. 47 iddut of 
 
 Fourth. A man who has done wickedly with a youth, 
 cannot lawfully contract marriage with his mother, sister 
 or daughter ; but none of these to whom he may have been 
 previously contracted is thereby rendered unlawful to him. 
 
 Fifth. When a moohrim 48 has entered into a contract ^moohrim 
 of marriage with a woman, knowing that it is not lawful cannot 
 for him so to do, she is for ever unlawful to him. But if marriage, 
 he were not aware of the illegality, though that contract is 
 vitiated, the woman herself is not prohibited to him, that 
 is, he may lawfully enter into another contract with her. 
 
 Sixth. A woman who has a husband is not lawful to The wife 
 
 another man till after her separation from him and the of one 
 
 1 man can- 
 
 completion of her iddut if she be liable to observe one. not law- 
 
 fully 
 marry 
 
 Fourth Cause of Prohibition. another. 
 
 Completion of Number. 
 
 By number is here to be understood, — First, the num- 
 ber of wives to which a man is restricted, and, second, the 
 number of repudiations which render a woman unlawful to 
 her repudiator. 
 
 First, as to the number of wives. — When a free man No man 
 has filled up the number of four wives by permanent con- ^ re *kan 
 tract, any in excess of that number is prohibited to him ; four wives 
 
 47 This important doctrine does not seem to be recognized by the 
 other sect. 
 
 48 A pilgrim after he has come within the sacred territory, and 
 put on the ihram or pilgrim's dress. He is not prevented from 
 marrying by the other sect. D., p. 20. 
 
28 
 
 MARRIAGE. 
 
 by perma- 
 nent con- 
 tract at 
 the same 
 time. 
 
 But no 
 limit by- 
 temporary 
 contract 
 or right of 
 propei ty. 
 After re- 
 pudiating 
 one of the 
 four re- 
 vocably, 
 he cannot 
 marry an- 
 other till 
 expiration 
 of her 
 iddut ; 
 
 nor two 
 others 
 by one 
 contract. 
 
 A thrice 
 repudi- 
 ated 
 woman 
 cannot be 
 re- mar- 
 ried till 
 intermedi- 
 ately mar- 
 ried to 
 another ; 
 
 nor a wife 
 nine times 
 divorced 
 be re- 
 married 
 at all. 
 
 and it is not lawful for him to have more than two slaves 
 by contract out of the four. When a slave has filled up 
 the number of four wives who are slaves, or two who are 
 free women, 49 or three, one of whom is free and the others 
 are slaves, any in excess of these is prohibited to him. 
 But each of the parties, that is, either the free man or the 
 slave, may marry by temporary contracts as many as he 
 pleases. So, also, he may retain them by virtue of bond- 
 age or right of property. 
 
 When a man has repudiated one of his four wives, he 
 cannot lawfully enter into another marriage until she has 
 completed her iddut, if the repudiation were revocable. 
 But if it was absolute or irrevocable, he may immediately 
 enter into a contract with another woman. And the rule 
 is the same as to marriage with the sister of his wife. 
 Further, it is abominable to separate from a woman for the 
 purpose of marrying her sister. 
 
 When a man has repudiated one of his four wives irre- 
 vocably, and married two others, one before the other, the 
 contract with the first is to be sustained ; but if the con- 
 tracts were simultaneous both are void. There is one 
 tradition, however, that he has a right of choice between 
 the two, but it is weak or unsufficiently authenticated. 
 
 Second, as to the number of repudiations. — When a 
 free woman has filled up the number of three repudiations 
 she is unlawful to the repudiated until she has been married 
 to another husband, 50 whether she were the wife of a free 
 man or a slave. And when a bondswoman has filled up 
 the number of two repudiations she is unlawful to her 
 repudiator until she has been married to another hus- 
 band, even though she were the wife of a free man. When 
 a repudiated woman has filled up the number of nine re- 
 pudiations for the iddut, being intermediately married to 
 two other men, she is prohibited to the repudiator for ever. 
 
 49 This is the case referred to in page 24. By the other sect a 
 slave is prohibited from having more than two wives at one time, 
 whether they be free or not. D., p. 30. 
 
 50 According to the other sect, marriage is not sufficient without 
 consummation. D., p. 44. And see posf, p. 124. 
 
UNLAWFUL MARRIAGES. 29 
 
 Fifth Cause of Prohibition. 
 Lidn or Imprecation. 51 
 
 This is a cause of perpetual prohibition of the impre- 
 cated woman to her imprecator. And such slanders of a 
 deaf or dumb woman as would occasion lidn with regard 
 to one not so afflicted, has the same effect though the lidn 
 does not actually take place. 
 
 Sixth Cause of Prohibition. 
 
 Infidelity. 
 
 It is not lawful for a Mooslim to marry any woman A Mooslim 
 
 who is not a Jcitabeeah; 62 and so far all are agreed. With cannot 
 
 . ° marry any 
 
 regard, again, to a kitabeeah who is a Jewess or a Christian, but a kita- 
 there are two traditions, and, according to the most noto- ° eeah '> 
 rious or generally received of these, a permanent marriage nor any 
 with either of them is forbidden to him, but a temporary *j" fc a 
 marriage, or one by right of property, is lawful. 53 And Ivmah by 
 the rule is the same with regard to a Mujooseah or fire- a per " . 
 worshipper. contract. 
 
 If one of two spouses should apostatize from the Mus- Marriage 
 sulman faith before connubial intercourse has taken place, cancelled 
 their marriage is cancelled on the instant, and the wife stasy. 
 has no right to dower if the apostasy be on her side ; but 
 if it is on the side of the husband she is entitled to half 
 the dower. If the apostasy does not take place till after 
 connubial intercourse, the cancellation of the marriage is 
 suspended till the expiration of the iddut, whether the 
 husband or the wife be the apostate, and no part of the 
 dower abates, because the right to it has been fully 
 established by consummation. There is an exception, 
 however, if the husband were born in the faith, for in 
 
 51 This subject is further discussed post, p. 152. It is not included 
 among the causes of prohibition by the Hanifite sect. 
 
 52 Fern, of Mtabee, relative noun, from kitab, a book ; applied to 
 all who are supposed to have divine revelation, but generally used 
 to the exclusion of Mooslims. 
 
 53 No such restriction recognized by the other sect. — D., p. 40. 
 
30 
 
 MARRIAGE. 
 
 Effect of 
 conver- 
 sion to the 
 faith of 
 Islam on 
 the mar- 
 riage of 
 Kitabees. 
 
 Its effect 
 on the 
 marriage 
 of others 
 than 
 Kitabees. 
 
 A zimmee 
 having 
 more than 
 the legal 
 number of 
 wives, 
 must, on 
 conver- 
 sion, be 
 
 that case the marriage is cancelled immediately, though it 
 should have been followed by connubial intercourse, because 
 a return to the faith is not allowed. 
 
 When the husband of a kitabeeah is converted to the 
 Mussulman faith his marriage is unaffected by the con- 
 version, whether it take place before or after consumma- 
 tion. But if the wife of a kitabee should embrace the 
 faith of Islam before her marriage has been consummated, 
 it is immediately cancelled, and she has no right to dower. 
 If, again, her conversion does not take place till after 
 connubial intercourse, the cancellation of the contract is 
 suspended till the expiration of her iddut. It is, however, 
 maintained by some of our doctors that if the husband be 
 a zimmee or infidel subject, the marriage remains as before, 
 except that he is prohibited from approaching her at night, 
 or being in retirement with her by day. But the first 
 opinion is more agreeable to the general principles of law. 54 
 
 With regard to unbelievers who are not kitabees, their 
 marriage is cancelled by the conversion of either of them 
 to the faith of Islam ; immediately if the conversion is 
 before connubial intercourse, but not till the expiration 
 of the iddut if such intercourse has taken place. If the 
 wife of a zimmee or infidel subject should go into any 
 other form of infidelity than her own religion, cancella- 
 tion would also take effect immediately, even though she 
 should return to her original faith; because no change 
 of religion is tolerated to one in her condition, except 
 a changre to Islam. 55 
 
 When a zimmee or infidel subject who has more than 
 four wives embraces the faith of Islam, his marriage is 
 sustained as to four of them who are free, or two who are 
 free and two who are slaves, that is, if he is himself free ; 
 and if he is a slave, it is sustained as to two free women 
 and two slaves. If he has no more than the legal number 
 
 54 It is obvious from this that a Mussulman woman cannot be 
 legally married to any one who is not of that faith ; by a permanent, 
 any more than by a temporary contract. See post, p. 40. 
 
 55 This distinction does not seem to prevail among the Hanifites, 
 with whom all forms of unbelief are alike. 
 
UNLAWFUL MARRIAGES. 31 
 
 of wives his marriage is sustained as to all ; but from any separated 
 
 excess above the legal number he must at once be separated. f r £ m a !} 
 
 He has, however, a right of selection, which may be ex- number; 
 
 ercised in any form of words that is sufficiently demon- but ; he has 
 
 strative of his intention to retain a particular wife, as, for choice ° 
 
 example, by his saying to one of them, " I have chosen which 
 
 thee," or " I have held to thee," or the like. When the exercised 
 
 choice has been duly made, the marriage of the four first b ^ word '■> 
 
 (in whose favour it has been exercised) is established, and 
 
 the remaining wives are discarded. If he should say to any 
 
 above the legal number, " I have elected to be separated 
 
 from you," that would be a rejection, and the marriage of 
 
 the others would be established. So also, if he were to 
 
 repudiate four, all the remaining ones would be rejected, 
 
 while the marriage of those whom he had repudiated would 
 
 first be confirmed, and they would then be divorced ; for 
 
 repudiation is inapplicable to any but wives, since it is 
 
 an appointed means of dissolving the marriage tie. But 
 
 Eela and Zihar are no evidence of election, 56 because they 
 
 are sometimes applied to other persons than wives. The 
 
 election may also be made by deed, as, for instance, by or by deed. 
 
 connubial intercourse, which is plainly an evidence of 
 
 choice. So that if a man should have such intercourse 
 
 with four of his wives, the contracts with these would be 
 
 confirmed, and all the rest would be rejected. With 
 
 regard, again, to kissing, or touching with desire, these 
 
 also may be said to be exercises of the right of choice, as 
 
 they amount to revocation in the case of a repudiated wife, 
 
 and may fairly be assumed to have the like effect in the 
 
 present instance. 57 
 
 58 If one of the wives should die after their con- Though 
 __^ one of the 
 
 56 As to these, see post, pp. 138, 147. 
 
 57 Throughout the whole of this case, it is implied that the 
 zimmee is a kitabee, and his wives kitabeeahs ; otherwise his marriage 
 would be cancelled by his conversion to the Mussulman faith. — 
 (P. 30.) 
 
 58 This case will be found at page 277 of the original, being one 
 of several cases relating to zimmees, most of which have been omitted 
 as of little practical utility in India. 
 
S9 
 
 MARRIAGE. 
 
 wives 
 should die 
 before he 
 has made 
 his elec- 
 tion, he 
 may still 
 elect her, 
 and is en- 
 titled to 
 inherit 
 from her. 
 
 Until he 
 lias made 
 his elec- 
 tion all 
 the wives 
 are enti- 
 tled to 
 main- 
 tenance. 
 
 version to the faith before he has made his election among 
 them, his right to elect her is not cancelled, and if he 
 should make her his choice, he would be entitled to par- 
 ticipate in her inheritance. So also if the whole of them 
 should die, he would still have his right of choice as to 
 four among them, and would participate in the inheritance 
 of those whom he might elect ; for election is not the 
 renewal of a contract, but only the means of determining 
 who among the subjects of valid contracts shall retain 
 their condition of wives. But if the husband as well as 
 the wives should die, then it is maintained by some that 
 the right of choice is cancelled. It seems, however, to be 
 more agreeable to principle that in such a case recourse 
 should be had to lots, as among the women there are 
 some who might be heirs to the husband, and some from 
 whom he mip-ht have inherited. If the husband should 
 die before all the wives, they must all. keep iddut, as it 
 must be incumbent upon some of them ; and as there are 
 no means of distinguishing between them, the longest of 
 the two prescribed periods 59 should be observed by way of 
 caution, when there is a possibility of each of them being 
 the widow ; and when that is not possible, 60 any among 
 them who is pregnant must keep the iddut of death, and 
 also of delivery ; and the hail (or one who is not so), the 
 largest of the two appointed for death and repudiation. 
 
 6i When the man and the women embrace the faith 
 of Islam, it is incumbent upon him to maintain the whole 
 of them until he has made his choice of four, after which 
 the right of the remainder to maintenance is cancelled ; 
 for up to the time of making his election they are all in 
 the condition of wives. And the rule is the same in the 
 event of the wives, or some of them, embracing the faith, 
 and he remaining in infidelity. If he should fail to give 
 them their maintenance they may sue him for what is 
 presently due, as also for the past, or what is in arrear ; 
 
 59 That is, of the iddut for repudiation, and the iddut for death. 
 80 As, for instance, if any of them should have remained in 
 infidelity. 
 
 61 This follows immediately after the last case in the original. 
 
UNLAWFUL MARRIAGES. 33 
 
 and that whether he embrace the faith or remain in 
 infidelity. But he is under no obligation to maintain 
 them if he is converted without them, because of the 
 obstruction to connubial enjoyment. 
 
 62 A change of religion is a cancellation of mar- A change 
 riage, not a tuldk, or divorce. If the change is on the ° ^nce" 
 side of the wife, and it takes place before consummation, lation of 
 she has no right to any dower; while if it is on the ^, t T^.' 
 side of the husband, she is entitled to half the dower, vorce. 
 according to the generally received doctrine. If the change 
 
 occurs after consummation, the woman's right, having 
 been once established, is not affected by the supervening 
 event. If the dower mentioned in the contract is invalid, 
 the proper dower is substituted for it after consummation, 
 and also before it, when half of the proper dower becomes 
 due, if the cause of cancellation be on the part of the 
 husband. If no dower whatever has been assigned by the 
 contract, a present only is incumbent on the husband when 
 he has given cause for the cancellation, though on that 
 point there is some difference of opinion. 
 
 63 "When a Mooslim has apostatized after consumma- Connubial 
 
 tion of his marriage, he is prohibited from connubial inter " 
 . L . course 
 
 intercourse with his Mussulman wife, and the marriage, prohibited 
 
 as already mentioned, is in suspense until the expiration ^ twe . en a 
 
 of the icldut. If, notwithstanding the prohibition, he who has 
 
 should have such intercourse under a semblance of right, fP osta " 
 
 & ' tized and 
 
 and continue in his infidelity till the expiration of her his wife 
 iddut, the Sheikh 6 * has said that he is liable for two ££ gthe 
 dowers, one being the dower originally specified in the 
 contract, and another on account of the intercourse under 
 a semblance of right. But on this point there is some 
 reason for doubt, since she is still in the condition of a 
 wife, provided that he was not born in the faith. 65 
 
 66 A Mooslim cannot compel his zimmeeah wife to What re- 
 wash after ceremonial pollutions, because that is not ne- ^avbe 
 cessary for the purpose of connubial enjoyment. But if imposed 
 
 62 Page 276 of the original. 65 See ante, foot of p. 29. 
 
 ,i3 Ibid. 66 Page 275 of the original. 
 
 64 See ante, p. 24. 
 
 PART II. D 
 
34 
 
 MARRIAGE. 
 
 by a Moos- she persists in what is a hindrance to such enjoyment, 
 zimmcealb sucu as ^ XG use °*" ** e ^ odours, or keeping her nails of an 
 wife. extreme and formidable length, he may oblige her to 
 
 refrain. He can also prevent her from going to Christian 
 churches or Jewish synagogues, as indeed he may prevent 
 her from going out of his house. So also he can restrain 
 her from drinking wine or eating pork, or the practice of 
 any uncleanness. 
 
 Equality 
 in respect 
 of Islam, 
 a condi- 
 tion in 
 marriage ; 
 
 but appa- 
 rently not 
 in respect 
 of eeman. 
 
 Nor is it 
 necessary 
 that a hus- 
 band 
 should be 
 able to 
 maintain 
 his wife. 
 
 Respects 
 in which 
 equality is 
 not requir- 
 ed. 
 
 Section Fourth. 
 
 Things connected with the Contract. 
 
 These are seven in number. 
 
 First. Equality is a condition in marriage, that is, in 
 respect of Islam, 67 or the general profession of the Mussul- 
 man religion. Whether it is also a condition in respect of 
 eeman, or true belief, 68 is a question on which there are 
 two traditions ; but, according to the most notorious or 
 generally received of these, equality in respect of Islam is 
 all that is required. In regard to the husband's ability to 
 maintain his wife, there is a difference of opinion ; some 
 insisting that it is also a condition of the contract, while 
 others deny this position, and their opinion is more in 
 accordance with the general principles of the law. It is 
 also a question on which there are opposing traditions, 
 whether a supervenient disability on the part of the 
 husband to maintain his wife confers on her the power 
 of cancelling the marriage. According to the most noto- 
 rious or generally received of these traditions, she has no 
 such power. 
 
 It is lawful for a free woman to marry a slave, or an 
 Arabian woman to marry a Persian, or a woman of the 
 tribe of Hashem to marry a man of another tribe, and vice 
 versa, or the reverse is also lawful. In like manner, men 
 
 07 According to the Hanifites, it is Islam of paternal ancestry 
 that is particularly meant. — (D., p. 63.) The same is probably 
 intended here. 
 
 08 The term is restricted by the Sheeahs to themselves, as dis- 
 tinguished from other sects. See Im. D., p. 426, note. 
 
UNLAWFUL MARRIAGES. 35 
 
 engaged in worldly trades may lawfully enter into the 
 contract of marriage with women possessed of property, in 
 debts owing to them and in houses. 
 
 If a moomiri, 69 or true believer, competent to maintain A true 
 a wife, should pay his addresses to a woman, it is in- ^ois* 
 cumbent on her to accept him, though he be her inferior competent 
 in respect of nusub, or ancestry ; and it would be sinful ^j™^ 1 1_ 
 in a guardian to forbid the marriage. According to some wife, and 
 of our doctors, if a man, who professed himself to be of a woman 
 one tribe, should prove to belong to another, his wife should be 
 would be at liberty to cancel the marriage. But this is 
 denied by others, whose opinion is more in conformity 
 with the general principles of the law. 
 
 It is abominable for a woman to marry a profligate ; Connec- 
 
 and the abomination is aggravated by his being a con- tl< ? I ? s . 
 
 &t3 J ° which are 
 
 firmed wine-drinker. So also it is abominable for a accounted 
 
 woman who is a true believer to marry a mookhalif, or a b ? mm " 
 opposer ; 70 but there is no objection to her marrying a 
 mooshizif, or one weak in his belief, who does not know 
 the grounds of controversy. 
 
 Second. Where a man has married a woman, and Marriage 
 
 afterwards discovers that she had been previously guilty ^^g^ 
 
 of fornication, he has no right to cancel the marriage, onaccount 
 
 nor has he anv claim against her guardian to refund the °. pre " 
 
 •> & & VIOUS 
 
 dower. There is one tradition in favour of his having a fornica- 
 right of recourse against the guardian, and one that the _Jj^° e 
 woman is entitled only to such a sudak, or dower, as may 
 be a sufficient compensation for the enjoyment of her 
 person. But the tradition is not generally received. 
 
 Third. It is not lawful to court a woman during her Not lawful 
 iddut for a revocable repudiation, for she is still the wife woman 
 of another man; but a woman who has been repudiated during her 
 three times may be lawfully courted during the iddut, revoca bi e ' 
 either by the repudiating husband or by another man, repudia- 
 though by neither should it be done in direct terms. 
 With regard, again, to a woman who has been repudiated 
 
 69 Participle, from the increased infinitive eeman. 
 
 70 Of any general usage, according to Freytay, but here probably 
 meant for some particular sect. 
 
 d 2 
 
 tion 
 
36 MARRIAGE. 
 
 nine times, with two intermediate marriages to other men, 
 it is not lawful for the repudiating husband again to pay 
 his addresses to her, but another may lawfully do so, 
 though not directly during her iddut for the first husband 
 or for either of the two others. A moodtuddah, or woman 
 in iddut, for an absolute separation from her husband, 
 either by Jchoold 71 or by cancellation, may lawfully be 
 courted by the husband or by another man, and in express 
 terms by the husband, but not so by the other. The in- 
 direct way of addressing a woman is to say, " I greatly 
 Yet if love " or " desire thee," or the like ; and the direct way, 
 
 done, that he should speak to her in langnaofe that will admit 
 
 and the r . . 
 
 woman is of no other construction than marriage, as, for example, 
 
 married ]-,„ savm pr " When your iddut is over, I will marry you." 
 on expira- J J °' J ' . 
 
 tion of the If one should make an express proposal to a woman in 
 
 ■iddut, she c i rcum stances that render it unlawful, and should after- 
 
 is not , ' 
 
 thereby wards marry the woman on the expiration of the iddut, 
 
 prohibited gne wou i,j U0 \ 1 fo e prohibited to him by reason of the 
 toherhus- L J 
 
 band. irregularity. 
 
 A woman Fourth. When proposals of marriage have been made 
 
 is not £ a W oman, and she has accepted them, it is maintained 
 
 bound by ' , . . 
 
 accepting by some of our doctors that it is unlawful for another to 
 
 a mere p a „ ^-g addresses to her ; yet, if she should marry the 
 proposal L J . 
 
 of mar- other, the contract would be valid. 
 
 nage. Fifth. When a thrice repudiated woman enters into a 
 
 entered^ 6 contract of marriage, and stipulates that, as soon as the 
 
 into by a husband has legalized her to her former husband, there 
 
 pudiated" shall be no marriage between them, such a contract is 
 
 woman on void. It is sometimes maintained, however, that the con- 
 
 f it s dition is surplusage, and that if a woman should expressly 
 
 being void stipulate for repudiation, the marriage would be valid, and 
 
 has been the condition void ; and that if consummation should take 
 
 legalized place, she would be entitled to her proper dower. If there 
 
 to her f , . . . , .... 
 
 first hus- is no express condition in the contract, and it is merely the 
 
 band, is intention of the parties, or of the wife, or her guardian, 
 not valid. ,•,„•,. ^ , -,■-,■, • 
 
 that she shall be immediately repudiated, the contract is 
 
 not invalidated. In every case in which it is said that the 
 
 71 See post, p. 129. 
 
UNLAWFUL MARRIAGES. 37 
 
 contract is valid, the woman is rendered lawful by coition 
 
 to the first repudiator, that is, after she has been legally 
 
 separated from the second husband, and her iddut has 
 
 expired ; and in every case in which it is said that the 
 
 contract is invalid, she is not rendered lawful to the first 
 
 repudiator ; for coition with another man is not alone 
 
 sufficient for that purpose, without a valid contract. 
 
 Sixth. A shighar marriage is void. That is, when two A shighar 
 
 women are married to two men with a condition that the ™^ r . iage 
 
 marriage of each is to be the dower of the other, both what it is. 
 
 marriages are void. 72 But if each of two guardians should Cases 
 
 . winch re- 
 
 marry his ward to the other, and they should stipulate for se mble it, 
 
 their respective wards a known dower, the marriages would wliere the 
 
 contracts 
 be valid. And if one of the guardians should marry his ward are valid. 
 
 to the other, and stipulate that the other should reciprocate 
 by marrying his ward to him for a known dower, both con- 
 tracts would be valid ; but the dower would be void, because 
 with it there is a stipulation for marrying, which is not bind- 
 ing on the party, and marriage does not admit of an option. 
 The woman is, therefore, entitled to her proper dower. 
 Upon this point, however, there is room for some doubt 
 or hesitation. So also, if one of the guardians should 
 marry his ward to the other, and stipulate that the husband 
 should marry such an one to him, without any mention 
 of dower, the contracts would be lawful, and the woman 
 entitled to her proper dower. 
 
 Further, if one person should say to another, " I have Con- 
 married my daughter to thee, on condition that thou shalt 
 marry thy daughter to me, so that the marriage of my 
 daughter shall be the dower of thine," the marriage of his 
 daughter would be valid, but that of the other's daughter 
 would be void. But if he should say, " on condition that 
 the marriage of thy daughter shall be the dower of mine," 
 the marriage of the speaker's daughter would be void, and 
 that of the other's daughter valid. 
 
 72 According to the Hanifites, the contracts are effected, but the 
 condition is void, and each woman is entitled to her own proper 
 dower. — Z)., p. 94. 
 
38 
 
 MARRIAGE. 
 
 abornin 
 able 
 
 Some Seventh. It is abominable for a man to enter into a 
 
 ttiatTi? 8 contract of marriage with a nurse who has brought him 
 accounted U p, and with her daughter ; or to marry his son to the 
 daughter of his wife by another husband, whom she has 
 borne after her separation from himself. But there is 
 no objection to such a contract if the daughter were the 
 fruit of a marriage previous to his own. It is also abomi- 
 nable for a man to marry a woman who was co-wife with 
 his mother, previous to her marriage to his father, or a 
 woman who has been guilty of fornication without repent- 
 ance for her fault. 73 
 
 73 Property, or one of the parties being the slave of the other, is 
 not expressly mentioned by the author of the Shurmja among the 
 causes of prohibition in marriage ; but it seems to be assumed. For 
 it ia stated at p. 48 post that, " if a person should marry a female the 
 property of several owners, and should purchase the share of one of 
 them in his wife, that would cancel the marriage ; " and the author 
 had already said, in the Book of Tijarut (p. 177), " that, when one 
 of two spouses becomes the proprietor of the other, the right of pro- 
 perty is confirmed ; but the zoiqjeeut, or relation of husband and 
 wife, is not confirmed." Moreover it is expressly stated in the 
 Imameea Digest (p. 131), on the authority of the Tuhreer, that, "if a 
 husband purchase his own wife, or a wife acquire her husband in 
 property, it is valid ; but their marriage is thereby annulled." It 
 would seem, therefore, that there is no difference between the Sheeas 
 and the Hanifites on the point in question. — See D., p. 42. 
 
( 39 ) 
 
 CHAPTER II. 
 
 OF TEMPORARY MARRIAGE. 
 
 Temporary marriages are permitted by the Mussulman 
 religion, because they were authorized by lawful authority, 
 and there is nothing to show that the permission was ever 
 abrogated. 1 The subject requires an explanation of the 
 pillars and the laws of the contract. 
 
 Section First. 
 The Pillars of the Contract. 
 
 These are four in number, — the Form, the Subject, 
 the Period, and the Dower. 
 
 First. With regard to the Form of the contract, or the Form, 
 words appropriated by law to the declaration and acceptance 
 by which it is constituted. The proper words for the decla- Words re- 
 ration are zuwwujtohu, muttudtohu, and a/rikuhtoku, any of ^sTonsti- 
 which is sufficient for the purpose ; and by none other can tution. 
 the contract be effected, as, for instance, by the words tumleek 
 (transfer), heba (gift), or ijamh (lease). The acceptance 
 may be expressed by any words indicative of assent to the 
 declaration, as "I have accepted the nikdh" or "the 
 mootd." Or it may be shortened by merely saying, " I am 
 content." If a commencement be made with the accept- 
 ance, by the man's saying, " tuzuwwwjtolri" and the 
 woman's saying, " zuwwujtoku" 2 there would be a valid 
 contract. It is, however, a necessary condition that both 
 the declaration and the acceptance should be expressed in 
 
 The Hanifites differ on this point. — D., p. 18, note 
 See ante, p. 3, note 10 . 
 
Vimah or a 
 Mtabeeah. 
 
 40 MARRIAGE. 
 
 Must be in the past tense; for if the man were to say " akbulo" or 
 tense aSt " arza " which mean, " I do or will accept," or " I am or 
 will be content," 3 there would be no contract, even though 
 he used the words intending that they should be under- 
 stood in an initiatory sense. It has been said, however, 
 that if he were to use the word atuzuwwujtoM ("I do or 
 will take thee to wife ") 4 for such a period, at such a dower, 
 with an initiatory intention, and she should say " zuivwuj- 
 tohu" there would be a valid marriage. So also, if she 
 were merely to say, " Yes." 
 Subject of Second. With regard to the Subject of the contract, it 
 
 the con- - g a necegsar y condition that the wife be a Mooslimah or 
 tract must J . _,_ . i 
 
 be a Moos- a Kitabeeah, by which is meant a Jewess or a Uhnstian, 
 
 or even a Majooseeah, according to the most common or 
 
 generally received of two traditions ; 5 and the husband 
 
 should restrain her from drinking wine and other unlawful 
 
 practices. 
 
 And a A Mussulman woman cannot enter into a mootd con- 
 
 Moodimah tract w ith anv other than one of her owu religion. Nor is 
 cannot •> . . . 
 
 enter into it lawful for a Mooslim to enter into the contract with an 
 
 ^b" than idolatress ; nor for one who is erect or straight in his own 
 
 a Mooslim. belief to contract with one of a sect who is notorious for 
 
 enmity, such as the Kharijites ; nor for a slave to be taken 
 
 in mootd by one who is already married to a free woman, 
 
 except with her consent, and such a contract entered into 
 
 without her consent would be void. So also, if a man 
 
 should marry by mootd his wife's niece, whether the 
 
 daughter of her brother or her sister, without the consent 
 
 of his wife, the contract would be void. 
 
 Other re It is proper, though not necessary as a condition of 
 
 quisites validity, that the woman who is the subject of the contract 
 
 though not should be a Moomin, or true believer, 6 and chaste; and that 
 
 a >soiu e y ^ ue j n q U i r i es \y e ma( J e m to her conduct, if liable to suspicion. 
 
 in the sub- If the woman is actually a zaneeah, or addicted to fornica- 
 
 ject of the 
 
 contract. — — 
 
 3 The original words are in the aorist tense, which is employed 
 in the Arabic language for both present and future. 
 
 4 See ante, p. 3. 5 See ante, p. 29. 
 See ante, p. 34, note 68 . 
 
TEMPORARY MARRIAGE. 41 
 
 tion, it is abominable to enter into the contract with her ; 
 and if she has ever been guilty of anything of the kind, she 
 should be strictly prohibited from a repetition of such con- 
 duct. Further, it is accounted abominable to enter into a 
 contract of this kind with a virgin who has no father ; and 
 if one should do so, he ought to refrain from connubial in- 
 tercourse with her. Still that is not actually prohibited. 7 
 
 Third. With regard to Dower. It is an essential con- Some 
 dition of this contract, and peculiar to it, that some dower must be 
 should be specified, so that if there is a failure in this specified; 
 respect, the contract is void. It is also a condition that the 
 dower be something that is actually owned and possessed, 
 and is known by measure, weight, inspection, or descrip- 
 tion. Its quantity is left to be determined by the mutual 
 agreement of the parties, whether it be much or little, even 
 so little as a handful of wheat ; and it becomes binding on 
 the husband by virtue of the contract. So that if he were and is due 
 to make the woman a gift of the term, that is, waive his l^g j^,. 
 right to her altogether, before coition, he would still be tract, 
 liable for half the dower ; and if coition should have taken 
 place, she is entitled to the whole dower, on condition of 
 her keeping the term, or adhering to him till its comple- 
 tion ; but if it is not completed, he is entitled to deduct a 
 proportionate part of the dower. If, again, it should prove 
 that there was an inherent defect in the contract, either by 
 its appearing that she was the wife of another man, or the 
 sister or mother of his own wife, or anything similar, that 
 would be a sufficient ground of cancellation ; then, if no 
 coition has taken place, she has no right whatever to 
 dower, and must return any part of it that she may have 
 received. But if the causes of cancellation do not transpire 
 till after connection has taken place, she is entitled to 
 retain whatever she may have actually received, though he 
 is under no obligation to deliver the remainder. Yet, even 
 in this case, it were perhaps better to say that it is only in 
 
 7 Three cases in the original, illustrative of the effect in a moot a 
 marriage of the conversion to Islam of one of the spouses, are 
 omitted, as being sufficiently obvious, and substantially the same 
 as those mentioned in page 30. 
 
42 
 
 MARRIAGE. 
 
 There 
 must also 
 be a fixed 
 period, 
 longer or 
 shorter as 
 may be 
 agreed 
 upon by 
 the par- 
 ties. 
 
 the event of her having been ignorant of the existence of 
 the cause of cancellation that she is entitled to retain 
 whatever portion of the dower she may have received, and 
 that if she were cognizant of the defect in the contract, she 
 is bound to refund. 
 
 Fourth. The Period. This is also an essential con- 
 dition of the mootd contract ; and if there is no mention of 
 any time, the contract becomes permanent. The extent of 
 the period is left entirely to the parties, who may prolong 
 or shorten it to a year, a month, or a day; only some 
 limit must be distinctly specified, so as to guard the period 
 from any extension or diminution. Even if the time were 
 fixed at part of a day, the contract would be lawful, 
 provided that its limit is distinctly ascertained ; as, for 
 example, by the declining or setting of the sun. It is also 
 lawful to specify a month to commence immediately after 
 the contract, or at some interval from it. If mentioned 
 generally, the month next to the contract is to be under- 
 stood. If he should abstain from her until a part of the 
 specified time has expired, that is to be deducted from the 
 contract, but she is entitled to her full dower notwith- 
 standing. If he should say " once " or " twice " without 
 fixing a time, the contract would not be valid as a mootd, 
 but would be permanent. There is, however, one tradi- 
 tion in favour of the legality of such a compact, subject to 
 this condition — that he is not to look upon her after the 
 occurrence of the specified act. But this tradition has 
 been rejected as insufficiently authenticated ; and if a con- 
 tract were made in the terms above specified, it would be 
 held to be permanent ; while if the acts were brought 
 within the compass of a particular time, the contract would 
 be valid as a mootd, or temporary one. 
 
 Section Second. 
 
 The Laivs of the Contract. 
 
 These are eight in number. 
 
 First. When the term and the dower have been men- 
 
 and if there is a failure in 
 
 The term 
 
 must both tioned the contract is valid 
 
TEMPORARY MARRIAGE. 43 
 
 respect of the dower while the term is mentioned, the be men- 
 contract is altogether void ; but if there is a failure in loned - 
 respect of the term while the dower is mentioned, the 
 contract, though void as a mootd, is valid as a permanent 
 marriage. 
 
 Second. Every condition stipulated for in this contract No stipu- 
 
 must be mentioned at the time of the declaration and latl .o n 
 
 valid 
 
 acceptance ; and no effect whatever can be given to any unless 
 previous stipulation unless it be repeated at that time, nor ™^ ^ e 
 to any condition made after it. With regard, again, to a of the 
 condition that has been mentioned in the contract, there is con iac ' 
 no necessity for its repetition after it ; though some of our 
 doctors are of opinion that the condition should be repeated 
 after the contract. This, however, is far from being cor- 
 rect. 
 
 Third. An adult and discreet female may enter into a Discreet 
 
 mootd contract : and her guardian has no right to object, female 
 
 . . ° may con- 
 
 whether she be a virgin or not. tract 
 
 Fourth. It is lawful to stipulate with the woman that herself - 
 
 she shall come by night or by day ; and also to stipulate ^J^ asto 
 
 for once or twice within the specified period. inter - 
 
 Fifth. The practice of izl 8 is lawful with a mootd wife, 
 , • _. L ., . . . tp i i i i Tne prac- 
 
 and is not dependent on her permission. It sne should t i ce f i z i 
 
 become pregnant notwithstanding the izl, the child is the lawful, 
 temporary husband's, on account of the possibility of some 
 of the seed remaining contrary to his intention. But if he 
 should deny the child, the denial is to be sustained, appa- 
 rently without any necessity for Lidn. 
 
 Sixth. This form of marriage does not admit of repu- Does not 
 diation ; but the parties become absolutely separated on ad ™^°f 
 expiration of the period. Nor does it admit of Eela or tion; 
 Lidn, according to the prevalent doctrine. With regard to 
 the operation of Zihar in such a case, there is some differ- 
 ence of opinion. According to that which is best founded 
 on traditional authority, it may be exercised under this 
 form of marriage. 9 
 
 8 Extrahere ante emissionem seminis. 
 
 9 See post, p. 140. 
 
44 MARRIAGE. 
 
 nor confer Seventh. By this contract no rights of inheritance are 
 
 of inherit- established in favour of the parties, whether there be an 
 ance. express condition to that effect, or the contract is left in 
 
 general terms, without any stipulation in either way. If 
 there is an express condition for mutual rights of inherit- 
 ance, or for such a right in favour of one of the parties, 
 some of our doctors are of opinion that effect must be 
 given to the stipulation. Others, again, insist that the 
 condition is not binding, because inheritance is not esta- 
 blished except by the law, and the stipulation would be in 
 favour of persons who are not heirs, and therefore the 
 same as if it were made in favour of absolute strangers. 
 The first opinion, however, is most generally approved. 
 An iddut Eighth. After the expiration of the period, if there has 
 
 kept at ex- ^ Gen an ^ connubial intercourse between the parties, the 
 piration of woman must observe an iddut of two returns of her courses. 
 m ' According to one tradition, indeed, a single occurrence of 
 them is sufficient ; but this tradition is rejected. If the 
 woman has never had them yet does not despair, the iddut 
 is forty-five days. For the death of her husband the 
 woman must observe an iddut of four months and ten days 
 if she is not pregnant, even though connubial intercourse 
 has not taken place ; and if she is pregnant the iddut must 
 continue till the more distant of two events, that is, the 
 completion of four months and ten days, or delivery. If 
 the woman be a slave her iddut, supposing that she is not 
 pregnant, is two months and five days. 
 
( 45 ) 
 
 CHAPTER III. 
 
 OF THE MARRIAGE OF FEMALE SLAVES. 
 
 This marriage may be either by contract, or by right of 
 property. 
 
 Section First. 
 Marriage of Female Slaves by Contract. 
 
 The contract may be either permanent or temporary, as May be 
 
 in the case of free women ; and many of the rules applic- P erma ~ 
 
 1 J x L nent or 
 
 able to both have been already set forth. To those the tempo- 
 following are now added : — rary> 
 
 First. It is not lawful for slaves, whether male or Marriage 
 
 female, to contract themselves in marriage without the ° t lawful 
 
 permission of their masters. If either of them should do without 
 
 so without such permission, the contract is dependent on ^ g ?^" 
 
 the master's assent. Some of our doctors maintain that or subse- 
 
 the assent is as a new contract, while others insist that Assent of 
 
 the contract in both cases, that is, whether the slave be master, 
 
 male or female, is absolutely void, and the subsequent renc i ers 
 
 assent therefore surplusage and of no use. There is a him liable 
 
 fourth opinion that would restrict the effect of the master's w if e ' s 
 
 assent to a contract entered into by a male slave, exclusively dower and 
 
 of one by a female. But of all these opinions the first is ance> 
 
 that which is best supported by traditional authority. So and enti " 
 . . . rr . . i • , . tlesbimto 
 
 that, when the master has given his assent, the contract t, a ]- e t i ie 
 
 is valid, and he becomes liable for the dower incumbent dower of a 
 
 on his male slave, together with the maintenance of the s i a v'e. 
 
 slave's wife, while he is entitled to the dower of his female 
 
 slave. The rule is the same whether each of the slaves W hen 
 
 there are 
 belongs to a single master, or to several masters ; and in several 
 
46 
 
 MAKRIAGE. 
 
 masters, 
 all must 
 concur. 
 
 When 
 both the 
 parents 
 are slaves 
 their child 
 is also a 
 slave- 
 
 When 
 either is 
 free, the 
 child be- 
 longs to 
 the free 
 parent. 
 
 A freeman 
 marrying 
 a slave 
 without 
 her 
 
 master's 
 permis- 
 sion, is 
 guilty of 
 zhia, and 
 the fruit 
 of their 
 inter- 
 course be- 
 longs to 
 the mo- 
 ther's 
 owner, 
 unless the 
 father 
 were igno- 
 rant of the 
 illegality, 
 in which 
 case, the 
 child is 
 free. 
 
 the latter case, though one of them should consent to the 
 marriage of their slave, the contract would not be lawful 
 without the consent of the others, or their subsequent 
 allowance of it, according to the most approved doctrine. 
 
 Second. When both the parents of a child are slaves, 
 the child is also a slave, and if they belong to one owner 
 the child is his exclusive property. If the parents belong- 
 to different owners, the child is their joint property in 
 equal shares. If there was a stipulation that the child 
 should be the property of one of them, or that the share 
 of one of them in the child should be greater than that of 
 the other, effect must be given to the condition. When 
 one of the spouses is free, the child is to be affiliated to 
 him or her, whether the free parent be the father or the 
 mother, 1 unless the master of the other had stipulated 
 that the child should be a slave, in which case effect must 
 be given to the condition according to the most approved 
 doctrine. 
 
 Third. When a freeman has married a slave without 
 the permission of her master, and, before obtaining his 
 approval of the contract, has connubial intercourse with 
 her, knowing the illegality of the connection, he is a zanee 
 or fornicator, and a liable to the hudd or punishment 
 specially appointed for the offence. If the slave were 
 also aware of the illegality she has no right to dower, and 
 any child' of which she may be delivered is the slave of her 
 owner. If, on the other hand, the freeman were ignorant 
 of the unlawfulness of the contract, or there is any 
 semblance of right in the case, he is not subject to the 
 hudd, but is liable for dower, and the child is free, though 
 his father is bound to make good to the owner of its 
 mother the value of the child as of the day on which it was 
 born alive. So also if a freeman should enter into a con- 
 tract of marriage with a slave on the faith of her own allega- 
 tion that she is free, he would in like manner be liable 
 for her dower, though some of our doctors are of opinion 
 
 1 According to the Hanifites, the child follows in all cases the 
 condition of its mother. — D., p. 363. 
 
THE MARRIAGE OF FEMALE SLAVES. 47 
 
 that the liability is only for a tenth of the dower if she 
 is a virgin, and half a tenth if she is not so ; and her 
 children by him are slaves, but it is incumbent on him to 
 ransom them by paying their value, which the master is 
 bound to accept, and to surrender them to him on these 
 terms. If the husband has no property he may work out 
 their ransom by emancipatory labour ; but whether, if he 
 refuse to do so, it is incumbent on the Imam? to ransom 
 them, is a question on which there are different opinions, 
 some maintaining the affirmative, in reliance on a weak 
 or insufficiently authenticated tradition, while others insist 
 that the ransom is by no means iucumbent on the Imam, 
 because the father is liable for the value of the children. 
 
 Fourth. When a man has married his male to his A master 
 female slave, some are of opinion that it is incumbent on man T in g 
 him to give her something by way of portion, while others to his 
 maintain that it is not so ; and it were, perhaps, more in f ^™ ale 
 accordance with the general principles of law to say, that not bound 
 it is proper and becoming in him to make her some allow- a^thin^ 
 ance on the occasion of her marriage, but by no means an by way of 
 incumbent duty. If he should die, his heirs have the P ortlon - 
 option of either allowing or cancelling the contract. 3 But ^t^his 
 the slave herself has no option in the matter. heirs may 
 
 Fifth. When a slave has married a free woman, with marriage. 6 
 knowledge on her part that it was without the permission a free wo- 
 of his master, she has no right to dower, nor even to man mar " 
 maintenance, if she were also aware of the unlawfulness of slave 
 
 such an union, and her children are slaves ; but if she without 
 ' . „. .. permis- 
 
 were ignorant or its illegality, they are free, without any sion of 
 
 liability on her part for their value. If connubial inter- !" s master 
 
 i i 1S not 
 
 course has taken place, she is also entitled to dower as entitled 
 
 against the slave, for which he may be sued if he should to dower - 
 
 ever obtain his freedom. 
 
 Sixth. When a male slave has married a female slave The issue 
 
 belonging to another than his own master, the children of °. f a mar " 
 
 ria°"e 
 the marriage belong to the masters jointly, whether they between 
 
 2 Head of the Mussulman community. 
 
 3 Even, it would seem, though the marriage had been sanctioned 
 by him. — See post, p. 50, as to purchaser's power to cancel. 
 
48 
 
 MARRIAGE. 
 
 slaves be- 
 longing to 
 different 
 masters 
 is their 
 joint pro- 
 perty. 
 
 A person 
 who mar- 
 ries a slave 
 belonging 
 to two 
 owners, 
 and pur- 
 chases the 
 share of 
 one of 
 them, is 
 prohibited 
 from con- 
 nubial in- 
 tercourse 
 with her. 
 
 Because a 
 woman 
 cannot be 
 lawfully 
 enjoyed 
 by virtue 
 of two dis- 
 tinct 
 rights. 
 
 both allow or refuse their assent to the marriage. But if 
 one only assents, the children belong exclusively to the 
 other. So, also, if a male slave should have illicit inter- 
 course with a female the property of another, the child 
 would belong to the master of the latter. 
 
 Seventh. If a person should marry a female the pro- 
 perty of several owners, and should purchase the share of 
 one of them in his wife, that would cancel the marriage, 
 and it would be no longer lawful for him to have connubial 
 intercourse with her. Even though the other partner 
 should allow the marriage subsequently to the purchase, 
 that would not remove the prohibition. Some, however, 
 are of opinion that sexual intercourse with her would 
 thereby be rendered lawful, but the opinion is not well 
 supported. If he were merely to legalize her to him, 4 
 that, according to others, would render their intercourse 
 lawful, and there is a report to that effect. But this has 
 also been denied, because the cause which renders sexual 
 intercourse lawful does not admit of division. In like 
 manner, if one were the owner of half a partially eman- 
 cipated woman, it would be unlawful for him to have such 
 intercourse with her, either by virtue of his right of pro- 
 perty or of a permanent contract. Some, however, have 
 said that it would be lawful if the contract were by mootd 
 restricted to a particular time, and there is a report to that 
 effect ; but the doctrine is still open to doubt and difficulty 
 for the reason just mentioned. 
 
 A female 
 slave 
 when 
 emanci- 
 pated has 
 an option, 
 and may 
 cancel her 
 marriage. 
 
 As adjuncts to the marriage of slaves, it is necessary 
 to consider the effects of Emancipation, Sale, and Divorce. 
 
 I. As to the effect of Emancipation on the marriage of 
 slaves. When a female slave is emancipated, she may 
 cancel her marriage, whether the husband be free or a slave. 
 Some of our doctors have made a distinction between the 
 two cases, which seems more agreeable to the general 
 principles. of law. 5 The option thus allowed to her must, 
 
 4 See post, p. 54. 
 
 5 That is, that she has the option only when he is a slave, as is 
 apparent from what follows. 
 
THE MARRIAGE OF FEMALE SLAVES. 49 
 
 however, be exercised immediately. When a male slave But a 
 is emancipated, neither he nor his master has any option, j^ 6 ,,^ 70 
 nor has his wife, whether she be free or a slave ; for, as such 
 she was satisfied with her husband when he was a slave, p 
 much more should she be so now that he is free. But if 
 they were both the slaves of one master, who emancipates 
 them both, she has her option, notwithstanding the eman- 
 cipation of her husband. And the result would be the 
 same if they were the property of different owners, who 
 concurred in emancipating them at the same time. 
 
 The emancipation of a female slave may be lawfully Theeman- 
 made the subject of her own dower, and the contract may "fg^ 1 of 
 be established against her by making the word of contract slave may- 
 precede that of emancipation, as, for example, by the ^ * ^ 
 man's saying, " I have married thee, and emancipated dower, 
 thee, and made thy emancipation thy dower ; " for if the 
 emancipation were placed first, she would have a choice 
 being free, and might either accept or reject the proposal. 
 But it has been said that this is not necessary, for phrases 
 joined together are but one sentence ; and this is correct. 
 It has been further maintained by some that the word of 
 emancipation should have the precedence, for the woman 
 is already lawful to her master, and there can be no neces- 
 sity for a contract when the right of enjoyment is already 
 established by virtue of the right of property. The first 
 opinion, however, is the most common or generally received. 
 
 An oom-i-wulud, or mother of a child, is not emanci- An oom-i- 
 
 pated till after the death of her master, and then only out wu '" - 1 ? 
 i " emanci- 
 
 of the child's share in his estate. 6 If the share is insuffi- pated at 
 
 cient to make up her value, she must herself perform te e r 1 > s m 
 
 emancipatory labour for the excess, her child being in death, out 
 
 nowise liable to work on that account. Some of our c bji<i' s 
 
 doctors, however, maintain his liability ; but the first share in 
 opinion is more agreeable to the principles of the law. 
 
 If her child should die during the lifetime of its father, and, if her 
 
 she returns to a state of absolute slavery, and may be b gf^ ies 
 
 6 According to the Hanifites, she is emancipated out of the whole 
 estate. — D., p. 378. 
 
 PART II. E 
 
50 
 
 MARRIAGE. 
 
 him, 
 
 reverts to 
 the state 
 of abso- 
 lute 
 slavery. 
 
 lawfully sold. And even while her child is alive she may 
 be lawfully sold in payment of her original cost, if still 
 due, and her master has no other property besides herself. 
 Some of our doctors go so far as to maintain that she may 
 be lawfully sold after the death of her master for the 
 payment of his debts, though there may be no original 
 cost (or, in other words, though she may not have been 
 purchased, or if purchased, though her price be no longer 
 due), when the debts absorb the whole estate so as to leave 
 nothing after they have been paid. If, while her price is 
 still due by her master, he should marry her, making her 
 emancipation her dower, then get her with child, and 
 finally die insolvent as to her price, she may be sold on 
 account of the debt. But whether her child would, in 
 such circumstances, revert to a state of slavery, is a 
 question as to which, though it has been answered in the 
 affirmative on the ground of a report hyUusban hen, Salim, 
 yet the more approved doctrine on the subject is that 
 neither the emancipation nor the marriage is cancelled, 
 and that the child does not revert to a state of slavery, 
 his freedom and that of his master's having been once 
 completely established. 7 
 
 Sale of a 
 married 
 slave equi- 
 valent to a 
 divorce. 
 
 II. As to the effect of Sale on the marriage of slaves . 
 
 Where the proprietor of a female slave has sold her, 
 this is equivalent to a divorce, the purchaser having an 
 option either to allow or to cancel the marriage. 8 But the 
 option must be exercised immediately, if he elect to cancel 
 the marriage ; for if he is aware of the contract, and delays 
 to cancel it, the contract is binding upon him. The same 
 rule is applicable to the marriage of a male slave when 
 he is married to a slave ; and even when he is married 
 to a free woman and is sold, the purchaser has an option 
 according to one tradition, but it is considered weak or 
 insufficiently authenticated. When both the married parties 
 are slaves and belong to one owner, who sells them to 
 
 7 See further on the subject of the oom-i-wulud in the section on 
 Isteelad, p. 57. 
 
 8 The purchaser has no such option by the Hanifeea code. 
 
THE MARRIAGE OF FEMALE SLAVES. 51 
 
 different purchasers, each purchaser has the option ; so, 
 also, if one person should purchase them both, he would 
 have the like option ; or if the owner should sell only one 
 of them, retaining his right to the other, the buyer and 
 seller would each have an option, and the contract between 
 the slaves would not be established without the consent of 
 both; while if there should be any children of the marriage, 
 they belong to the master of the parents. 
 
 When a man has given his female slave in marriage, If the sale 
 he is entitled to her dower as already mentioned ; but if ? a , 
 he sells her before connubial intercourse, his right to it is slave 
 extinguished, because the marriage on which his right was j|®f , 
 founded is cancelled by the sale. If the purchaser chooses fore con- 
 to sanction the marriage he becomes entitled to the dower, ^coursae" 
 because his sanction is like a renewal of the contract. If the seller 
 the sale does not take place till after connubial intercourse, ri g bt to 
 the first owner, that is, the seller, is entitled to the dower, her dower, 
 whether the second, or purchaser, sanctions the marriage Other- 
 or cancels it, because the right to the dower was completed re tains it. 
 by the intercourse while the slave was his property. On 
 this point, however, there are various opinions, though the 
 correct doctrine is as we have stated it. 
 
 If a man should contract his male slave in marriage, Effect of 
 and then sell him before connubial intercourse, it has been male 
 said that the purchaser may cancel the marriage, and that slave on 
 the seller is liable for half the wife's dower. But others ii a t>iliLy 
 of our doctors have denied both these propositions. for nalf 
 
 When a man has sold his female slave, and claims as anc i a i, s0 ' 
 
 his the child of which she is pregnant, while the purchaser on tbe affi - 
 ...... . „ ii • liation of 
 
 refuses to recognize his claim, the assertion of the seller is t i, e ^-^ 
 
 not to be received in cancellation of the sale, but is to be of whuh a 
 
 received as regards the affiliation of the child, because it pregnant, 
 
 is an acknowledgment which does not injure anybody. 9 when 
 mi . . claimed 
 
 Ihe point, however, is subject to some doubt. by the 
 
 seller. 
 
 III. As to the Power to divorce, and its Effects on the The mas- 
 marria g e of slaves. male sfave 
 
 9 A. foetus in the womb is not included in the sale of the mother. 
 — Im. B., p. 133. 
 
 e 2 
 
52 
 
 MARRIAGE. 
 
 power to 
 repudiate 
 his wife ; 
 
 unless the 
 wife is his 
 own slave. 
 
 How the 
 power 
 may be 
 exercised. 
 
 Effect of 
 its exer- 
 cise when 
 without 
 the use of 
 the word 
 tuldk. 
 
 When a male slave, with the permission of his master, 
 has married a free woman, or the slave of another, he can 
 neither be compelled to repudiate her, nor can he be pre- 
 vented from doing so. When, again, a man has married 
 his male to his female slave, though the contract is a real 
 marriage, and not the mere legalizing of sexual intercourse, 
 still the power to separate them is in the hands of the 
 master, 10 and he may exercise it without the use of the 
 word tuldk, or repudiation, as, for example, by saying, " I 
 have cancelled your contract," or by ordering one of them 
 to withdraw from the other. But whether such an expres- 
 sion would have all the effect of a tuldk is a question on 
 which there is a difference of opinion, some answering it 
 in the affirmative — so that, according to them, if it were 
 repeated twice, with an intervening revocation, the woman 
 would be prohibited to her husband until she were first 
 married to another — while others maintain that the ex- 
 pression would be a cancellation of the marriage, and this 
 opinion seems to be more in accordance with the general 
 principles of the law. If her husband should repudiate 
 her, and she is then sold by her master, she must complete 
 the iddut of repudiation. But must the seller subject her to 
 any further purification than this iddut ? This is a question 
 that has been answered both in the affirmative and the 
 negative, but the latter answer is most correct, because she 
 has been already purified by the iddut, which is sufficient. 
 
 Of two 
 kinds. 
 
 1. Where 
 the right 
 
 is to the 
 person. 
 
 Section Second. 
 
 Servile Marriage, or the Marriage of Female Slaves by 
 Right of Property. 
 
 This is of two kinds, according as the right is to the 
 person or to the usufruct of the slave. 
 
 I. When the right is in the person. There is no 
 limit to the number of women with whom a man may 
 lawfully have sexual intercourse by virtue of this right. 
 He may also be the owner at the same time of a woman 
 
 code. 
 
 He does not seem to have any such powers under the Hanifeea 
 
SERVILE MARRIAGE. 53 
 
 and her mother ; but, when he has once had intercourse 
 
 with either of them, the other is prohibited to him. 
 
 Further, he may be the owner of a woman and her sister 
 
 at the same time ; but, when he has once had intercourse 
 
 with either of them, the other is prohibited to him until 
 
 he parts with his property in the first. When he has 
 
 done this, the second is lawful to him. So, also, it is 
 
 lawful for a son to be the owner of a slave who has been 
 
 enjoyed by his father, or for a father to be the owner of a 
 
 slave who has been enjoyed by his son ; but neither can 
 
 lawfully have sexual intercourse with one who has ever 
 
 been enjoyed by the other. 
 
 When a master has given his female slave in marriage, a married 
 
 she is prohibited to him until a legal separation has been femal ? 
 1 o i slave is 
 
 made between her and her husband, and she has fulfilled prohibited 
 
 her iddut, if liable to observe one. Nor can the master to f r ,.,, 
 » _ master till 
 
 cancel her marriage, otherwise than by selling her, which lawfully 
 he is at liberty to do, when the seller will have an option, f homier 
 and may cancel it if he please. In like manner, it is husband. 
 unlawful for him to look at any part of her person that 
 may not be seen by others as well as a proprietor. 
 
 Further, it is unlawful for a man to have sexual inter- So also is 
 course, by virtue of a right of property, with any woman f^Jewho 
 whom he holds in joint ownership with another. is only 
 
 It is not lawful for the purchaser of a female slave to |^ r n ~ r . 
 
 have connection with her until she has undergone the an( j t0 a 
 
 usual purification. 11 And if the slave is married, and he purchaser 
 
 has once given his sanction to the marriage, he has no hasunder- 
 
 power after that to cancel it. So, also, if he were aware g° ne P uri " 
 1 . . ...... rieation. 
 
 of her bemsr married, and made no obiection, he is pre- _, 
 
 " <> *■ _!Nor can 
 
 eluded from cancelling the marriage, or having connection the pur- 
 with the woman, until she has been regularly separated ^^ a 
 from her husband, and has completed her iddut, if liable marriage 
 to observe one. But if he does not allow the marriage, basonce* 
 there is no necessity for an iddut, and purification is sane- 
 sufficient to legalize his connection with her. 
 
 11 That is, till after one of her monthly courses, or the lapse of 
 forty-five days from the date of the purchase, provided she has 
 arrived at puberty. — Im. I)., p. 136. 
 
 tioned. 
 
54 MARRIAGE. 
 
 Married It is lawful to purchase from enemies their married 
 
 ma'vbe women, and also their daughters, and from schismaticks 12 
 
 purchased whatever they may have captured from enemies. 
 
 mies Gne " Every one who has become the proprietor of a female 
 
 Purifica- slave, in any of the ways by which property may be 
 
 tlon acquired, is prohibited from having sexual intercourse with 
 
 necessary l ' L D 
 
 after every her until she has been purified by an occurrence of her 
 acquisi- courses. And if there is any delay in their appearance, 
 female when the woman is of the proper age, she must observe 
 an iddut of forty-five days. But there is no necessity for 
 this if, at the time of his acquiring the right to her, the 
 courses were actually on her, further than that he must 
 wait for their completion. So, also, if she belonged to a 
 just person, who informed him that she was purified, or if 
 she belonged to a woman, or is an ayessah, that is, one 
 who has despaired of offspring, or is pregnant, none of the 
 precautions would be necessary, except that in the last 
 case their omission is accounted abominable. 
 When it is When a man who is the owner of a female slave 
 
 after a emancipates her, he may lawfully enter into a contract of 
 contract marriage with her, and proceed to connubial intercourse 
 riasreiire- w ^ n ner ' without subjecting her to any purification, though 
 ceded by in this case also it were better to do so. But if a man 
 tion DCipa " should emancipate a female slave after he has had connec- 
 tion with her, it is not lawful for another to enter into a 
 contract of marriage with her until she has observed an iddut, 
 which, in this case, is three months, unless the emancipation 
 were preceded by some toohrs or intermenstrual periods. 
 Where the II. Where the right is to the usufruct of the woman, 
 
 the usu- This involves a consideration of its form, or how the right 
 fruct. may be conferred ; and its laws, or the rules by which 
 
 How the its exercise is regulated. And first as to its form or how 
 maVbe * ne r ^ht is conferred. This is done by saying, " I have 
 conferred, made it lawful for you to have connection with her," or 
 " I have given you the legal right to have connection with 
 her " 13 — and the right cannot be conferred by the word 
 areeut or commodate loan. But whether the word ibahut, 
 
 12 Literally, people of error. 
 
 13 Both expressions contain inflections of the word huW>. 
 
SERVILE MARRIAGE. 55 
 
 which signifies to permit, is sufficient, is a question on 
 which there are different opinions — of which, however, the 
 opinion which is in favour of its legal sufficiency is that 
 which is best supported by traditional authority. With 
 regard, again, to the words wuhubtoku (I have given to 
 thee), to have connection with her, suwwughtoku (I have 
 authorised thee), and mulluMoku (I have conferred on 
 thee), those who think that the word Halt id or permission 
 is sufficient maintain the sufficiency of these also. But 
 this is denied by those who insist that no form of 
 expression can be lawfully employed for the purpose except 
 some inflection of the word tuhleel. 14 
 
 Whether the expressions by which this right is con- Doubt as 
 stituted are in the nature of a contract, or of a transfer of *™ ^^ e 
 usufruct, is a question on which there is a difference of right — 
 opinion among our doctors, founded on a respect for female ^a^ 1 ". 1 
 chastity arising from an idea that sexual enjoyment is tract or a 
 unlawful under any other conditions than contract or a fgyf ru ° t 
 right of property ; but perhaps the more correct of the two 
 opinions is the last, or that which makes it a transfer of 
 usufruct. Whether, again, a female slave can be legalized 
 to a male slave, is also a point on which there are two 
 traditions. According to one of these, which is supported 
 by the consideration that the legalization is a kind of grant 
 or transfer, of which a slave can hardly be the recipient, it 
 is forbidden ; while according to the other, which is sup- 
 ported by the consideration that it is only a permission, 
 of which a slave is quite capable, it is lawful when a 
 particular female is indicated. Moreover, the last of the 
 two traditions seems to be most agreeable to the general 
 principles of the law. 
 
 A moodubburah 15 and an oom-i-wulud 16 may be legal- A moodmb- 
 
 , , , hurnh and 
 
 ized like an absolute slave. But when a man is only the an oom .- t . 
 
 partial owner of a slave, and she surrenders or legalizes wufad-na.j 
 
 be the suli- 
 herself as to the other part, the transaction is not lawful ; jectofthis 
 transac- 
 
 14 An increased infinitive of hullu. tlcm - 
 
 15 A female slave with whom her master has entered into an 
 agreement of tudbeer, or emancipation at bis death. 
 
 1U Mother of a child to her master. 
 
56 
 
 MAKRIAGK. 
 
 Laws or 
 rules. 
 
 The right 
 
 is strictly 
 limited by 
 the mean- 
 ing of the 
 language 
 in which 
 it is con- 
 ferred 
 
 The child 
 of a wo- 
 man duly 
 legalized 
 is free. 
 
 Inter- 
 course not 
 subject to 
 the same 
 restraint 
 as under a 
 contract. 
 
 though if she were the joint property of several owners, and 
 they all combined in legalizing her, it has been said that the 
 transaction would be quite lawful. The difference between 
 the two cases is that a woman cannot legalize herself. 
 
 Next as to the laws or rules by which the exercise of 
 the right is regulated. 
 
 First. The right is limited to what is strictly within 
 the meaning of the language in which the permission is 
 granted, or what the circumstances of the case demon- 
 strate was clearly intended to be included. Thus, if the 
 permission was to kiss, the licence is confined to kissing. 
 So, also, if the permission is to touch, sexual intercourse 
 is not included ; but a permission of the latter compre- 
 hends all other kinds of dalliance. If the permission is 
 to employ the woman in service, she cannot be used for 
 sexual enjoyment ; and if the permission be for sexual 
 enjoyment, she cannot be employed in service. If she is 
 enjoyed without having been duly legalized, the man who 
 has had intercourse with her is a sinner, and is bound to 
 make compensation to her owner, and any child which 
 may be the fruit of such intercourse is a slave and such 
 owner's property. 
 
 Second. The child of a female slave who has been duly 
 legalized is free ; and if freedom is expressly stipulated for 
 when the word ibahut or permission is employed, the child 
 is free in that case also, without any manner of doubt, and 
 there is no way of proceeding against the father; but in 
 the absence of any such condition it has been said that the 
 father is bound to ransom the child by paying its value. 
 It is, however, maintained, on the other hand, that he is 
 under no such obligation, and this is the better founded of 
 the two opinions. 
 
 Third. There is no objection to sexual intercourse with 
 a slave though there is another person in the same apart- 
 ment with her ; nor to the sleeping between two slaves, 
 though this is abominable in the case of free women. It 
 is also abominable to have connection with a fajirah, or 
 woman of bad character, or with one who was born of 
 fornication. 
 
servile marriage. 57 
 
 Section Third. 17 
 
 Of Isteelad}* 
 
 This requires the explanation of two matters. First, 
 how it is constituted ; and, second, the laws relating to 
 the oom-i-wulud, or mother of a child. 
 
 I. Isteelad is constituted by a female slave bearing a Constitu- 
 
 child to her master while she is his property ; for if a man , b £ a 
 
 11 J ' slave bear- 
 
 should beget a child on the slave of another, she would not ingachild 
 
 become his oom-i-wulud, though he should afterwards be- f r 
 ' ° _ master 
 
 come her proprietor. If a man should beget a child on while his 
 a free woman, and subsequently become her proprietor, P ro P ert y- 
 she would be his oom-i-wulud, according to the Sheikh ; 
 but not so according to a report of Elm-i-Warid. But if 
 a man should have connection with a slave impledged to 
 him, and she should become pregnant in consequence, she 
 would be his oom-i-wulud, and the result would be the 
 same if a zimmee, or infidel subject, should have connec- 
 tion with his female slave, and pregnancy should ensue ; 
 but here, if the slave be converted to the Mussulman reli- 
 gion, the master would be obliged to consent to her sale. 
 
 II. The laws relating to an oom-i-wulud. 
 
 First. An oom-i-ivulud is a slave, and is not enfran- Oom-i-wu- 
 chised by the death of her master, but out of the share of fran" hised 
 her child in his estate. 19 The master, however, is not at by mere 
 liberty to sell her so long as her child survives, except only ^ mas- 
 on account of her own price, when he has bought her on ter ; 
 credit, and has no other means of defraying the debt. 
 But if the child should die, the mother returns to a state 
 of absolute slavery, and may be lawfully sold, or otherwise 
 disposed of at the pleasure of her master. 
 
 17 This short section lias been introduced here from p. 368 of the 
 original. 
 
 18 The word means literally to claim a child {D., p. 377), but here 
 it is employed in a somewhat different sense. 
 
 19 According to the Ilanifites she becomes absolutely free at the 
 death of her master. — I),, p. 378. 
 
58 MARRIAGE. 
 
 but is Second. When her master has died, leaving her child 
 
 liei°chikrs surviving, she is entitled to emancipation out of the share 
 
 share in of the child in the master's property, and if the share be 
 
 ' insufficient, she is to be emancipated pro tanto, or as far as 
 
 the share will go, and to work out the remainder of her 
 
 value by emancipatory labour. 
 A bequest Third. When the master has made a bequest to his 
 
 ^wuludbv oom-i-widud, though some of our doctors maintain that 
 her mas- the legacy is to be paid to her, and she is still to be eman- 
 appiied to °ip a ted out of the portion of the child, the better opinion 
 her en- seems to be that the legacy is to be first applied to her 
 ment emancipation, and that it is only the balance, if the legacy 
 
 before should be insufficient for the purpose, that can be taken 
 the share ou * °f the portion of the child, 
 of her Fourth. When an oom-i-widud has committed an 
 
 offence, the fine or compensation due on account of it 
 
 attaches to her person, which her master is obliged to 
 
 pensation ransom, but to wbat amount is a question on which there 
 
 fences i s a difference of opinion, some saying that it is the less of 
 
 commit- two sums, viz. the irish, or established compensation of 
 ted by her, , . ... 
 
 attaches ' ^ ue offence, and her value, while others maintain, with 
 
 to her more appearance of truth, that it is the irish, whatever that 
 
 may be. He may, however, surrender the slave herself, if 
 
 he please, to the person against whom the offence has been 
 
 committed. And it is reported as from Abee Abdoollah, on 
 
 whom be peace, that the master is personally liable for 
 
 trespasses by her on the rights of individuals, but that if 
 
 it be against a jumaut, or collection of persons, he has an 
 
 option, and may either ransom her or surrender her to the 
 
 persons injured, or their heirs, in proportion to the extent 
 
 of the offence. 
 
 The fine 
 or com- 
 
( 59 ) 
 
 CHAPTER IV. 
 of causes for which marriage may be cancelled. 
 
 Section First. 
 Personal Blemishes in Man and Woman. 
 
 The personal blemishes of a man are three in number : Blemishes 
 Insanity, Eunuchism and Impotence. m a man - 
 
 The Insanity of a husband empowers his wife to cancel Insanity, 
 their marriage, whether the insanity be continued or occa- 
 sional, and so also when it is supervenient or occurs after 
 the contract, and whether before or subsequent to connubial 
 intercourse. With regard to supervenient insanity, it has 
 sometimes been made a condition of its being a cause for 
 the cancellation of marriage, that the man should not have 
 understanding sufficient to recognize the stated times of 
 prayer, but the soundness of this opinion is at least liable 
 to doubt. 
 
 Eunuchism is the loss of both the testicles, and in- Eunuch- 
 eludes in its meaning their actual destruction by castration. ism ' 
 This is a cause for the cancellation of marriage when it 
 has occurred before the contract ; and even when it is 
 supervenient to it, according to some of our doctors ; but 
 this opinion is not to be relied on. 
 
 Impotence 1 is a cause for the cancellation of marriage, Jmpo- 
 though it should not occur till after the contract, provided, tence - 
 however, in this case, that the man has had no sexual inter- 
 
 1 Iiiin. A definition of the term is given in the text, which may 
 he dispensed with, as its meaning is sufficiently expressed by the 
 English word. 
 
60 
 
 MARRIAGE. 
 
 Blemishes 
 in a wo- 
 man. 
 Insanity. 
 
 Juozam. 
 
 Burs. 
 
 Kurn. 
 
 Ifzao. 
 Urj. 
 
 course either with his wife or another woman ; for if this 
 has occurred, though only once with his wife, or if, while 
 impotent with regard to her, he has had connection with 
 another woman, the wife has no option according to the 
 most approved doctrine. So, also, if he has had connec- 
 tion with his wife against nature, 2 though impotent in the 
 natural way, she has no power to cancel their marriage. 
 Whether, again, jub or the removal of the penis only be a 
 sufficient cause for cancellation, is a point on which there 
 is a difference of opinion ; but, according to the opinion 
 which is the more agreeable to the general principles of 
 the law, it does enable the wife to cancel her marriage, 
 provided, however, that so much of the stump has not been 
 left as is sufficient for coition. 
 
 A man cannot be rejected for any other cause than one 
 of these above mentioned. 
 
 The blemishes of a woman are seven in number : in- 
 sanity, joozam, burs, kurn, ifzao, blindness, and urj. 
 
 Insanity is a total derangement of the intellect, and 
 an option is not established by slight aberrations which 
 easily subside, or by stupors, though of frequent occurrence. 
 But if these are confirmed or permanent the option is 
 established. Joozam 3 is a disorder in which there is a 
 drying up, or withering of the members, and a falling 
 away of the flesh. Burs 3 is a whiteness which appears on 
 the surface of the body from an excess of the humours ; 
 but if there is any room for doubt as to the symptoms, 
 this does not give the power of cancellation. Kurn is 
 sometimes described as a fleshy protuberance, and some- 
 times as a bone growing in the womb, which prevents 
 coition. Ifzao is the two passages of nature becoming one. 4 
 With regard to Urj there is some doubt; but it seems 
 more agreeable to traditional authority to include it among 
 female blemishes when it amounts to actual lameness. 
 
 2 There are two traditions with regard to this practice, and though 
 according to the more generally received of these it is not unlawful, 
 yet it is deemed to be utterly abominable. — Shuraya, p. 260. 
 
 3 Black and white leprosy according to Im. D., p. 82. 
 
 4 See ante, note, p. 26. 
 
CAUSES FOR WHICH MARRIAGE MAY BE CANCELLED. 61 
 
 RutuJc 5 has been placed by some among the blemishes of RutuJc. 
 
 a woman which give a right to cancel marriage, and when 
 
 it has prevented coition from the beginning, there seems 
 
 to be ground for this opinion, on account of the privation 
 
 of sexual enjoyment, — that is, when it cannot be removed 
 
 or has resisted the usual remedies. 
 
 A woman cannot be rejected for any other than the 
 seven blemishes above mentioned. 
 
 Section Second. 
 Laws relating to Blemishes. 
 
 First. Blemishes in a woman that existed before the A blemish 
 
 contract afford a cause for the cancellation of marriasre : ln a wo ", 
 
 . inn man, to be 
 
 but it cannot be cancelled on account of any that occur a ground 
 
 after the contract and connubial intercourse. With regard, f°r. cancel_ 
 
 again, to those that occur after the contract but before must have 
 
 such intercourse, there is room for doubt ; but, according to ^efti* 3 at 
 
 the opinion that is best supported by traditional authority, of the 
 
 they are not a sufficient cause for cancellation, and this is contract - 
 
 corroborated by the consideration that at the time of the 
 
 contract it was free from objection. 
 
 Second. The option of cancellation must in all cases be The right 
 
 exercised immediately, for if a blemish be known to man to cancel 
 
 or woman, and they do not hasten to cancel the contract, exercised 
 
 it becomes binding upon them. And the rule is the same immecli - 
 in the case of option on account of tudlees or deception. 
 
 Third. Cancellation on account of a blemish is not Cancella- 
 
 tuldk or repudiation. Hence, it does not give occasion for H 011 -\,% 
 
 halving the dower, 6 and is not reckoned in making up the not repu- 
 
 number of three repudiations. diation ; 
 
 Fourth. A man may lawfully exercise his right of and does 
 
 cancellation without the intervention of a iudere. And a n °t re " 
 
 , . , quire the 
 
 woman may do so also. Irue, that in establishing im- interven- 
 
 potence a judge is required to fix the period allowed to * 10 ?° f a 
 
 the man in such cases to test his inability. But on the except in 
 ______ the case of 
 
 5 Female organs so narrow as only to allow a passage for the ™P°" 
 urine. — Johnson's Arab. Diet. 
 
 6 That is, in case of cancellation before coition. 
 
62 
 
 MARRIAGE. 
 
 In dis- 
 putes as 
 to blem- 
 ish, de- 
 nier's 
 word pre- 
 ferred. 
 
 How the 
 right to 
 dower is 
 to be de- 
 termined 
 on cancel- 
 lation of a 
 marriage. 
 
 Special 
 rules for 
 the esta- 
 blishment 
 of impo- 
 tence. 
 
 expiration of the prescribed period, she can cancel the 
 marriage of herself when no connubial intercourse has 
 taken place. 7 
 
 Fifth. When there is a difference between the parties 
 as to the existence of the blemish, the word of the denier 
 is to be received in the absence of proof. 
 
 Sixtlt. When a husband has cancelled his marriage for 
 one of the blemishes before described, and this is done 
 before consummation, the wife has no right to dower; but 
 if it is not done till after consummation, she is entitled to 
 the full amount specified in her contract ; for the right being 
 once established by coition, is so completely confirmed that 
 it cannot be extinguished by cancellation. The husband, 
 however, has a right of recourse against the person by 
 whom he was deceived. In like manner, if a wife should 
 cancel her marriage before consummation, she has no right 
 to dower, except in the single case of impotence ; while 
 if she does not cancel it till after consummation, she is 
 entitled to the full sum specified in the contract. So, also, 
 where the blemish for which the marriage has been can- 
 celled is the husband being an eunuch, the wife is equally 
 entitled to her full dower if coition has taken place. 
 
 Seventh. Impotence is not established without the 
 husband's acknowledgment before the judge, or proof of 
 a previous acknowledgment by him, or by his refusal to 
 swear. If there is none of these, and the wife prefers 
 a claim on the ground of impotence, the word of the 
 husband is to be received when confirmed by his oath. 
 Some, however, contend that he should be placed standing 
 in cold water, and that if there is a contraction of the parts, 
 judgment should be given according to his assertion, while 
 if they remain relaxed, judgment should be given in favour 
 of the woman. But no reliance is to be placed on this 
 experiment as any test. If impotence has been established 
 against the husband, and he subsequently alleges con- 
 nubial intercourse with his wife, credit is to be given to his 
 assertion when confirmed by his oath. And if he alleges 
 
 7 According to the Hanirites, a decree of separation by the judge 
 seems to be necessary. — D., p. 347. 
 
CAUSES FOR WHICH MARRIAGE MAY BE CANCELLED. 63 
 
 that lie has had connection with other women, his word 
 is still to be received if accompanied by his oath. But 
 judgment should be given against him if he refuse to 
 swear. Some, however, maintain that in this case the oath 
 is to be tendered to the wife, and the opinion is recom- 
 mended by the usual course of procedure in cases of 
 refusal . 
 
 Eighth. When impotence has been established, and Course to 
 the wife is patient, or declines to proceed in the matter, be fo |" 
 nothing further is to be said ; but if she insists on bringing fore the 
 it before the judge, the case is to be postponed for a year 3 ud & e - 
 from the day of her appeal to him, and if, in the interval, 
 connubial intercourse takes place, or the husband has had 
 connection with another woman, the wife has no option ; 
 but if nothing of the kind has happened, she has a right 
 to cancel her marriage, and has a right to half the dower. 
 
 Section Third. 
 
 Tudlees* or Deception. 
 
 Where a man has married a woman on condition of a man 
 her being free, and she proves to be a slave, he has a right ^ko mar- 
 to cancel the marriage, even though connubial intercourse woman on 
 
 should have taken place. Some go further and say, that c ° ndltion 
 . t i r> ... of her be- 
 
 the marriage is void ; but the first opinion is better ing free, 
 
 founded on traditional authority. If the marriage is m ^y can- 
 cancelled before coition, the woman has no right to dower ; marriage 
 
 but if the cancellation does not take place till after it has lf she . 
 
 r _ proves to 
 
 occurred, her right to dower is fully established. Some be a slave, 
 say, however, that the dower named in the contract is 
 extinguished, and that her master can claim only the 
 tenth if she were a virgin, and half the tenth if she were 
 not so ; but the first opinion seems to be more agreeable 
 to the general principles of the law. And the husband has 
 a right of recourse for a refund of whatever he may be 
 obliged to pay, against the person who practised the decep- 
 tion upon him. If that person were the master of the 
 
 8 Literally, " concealment of faults." 
 
64 
 
 MARRIAGE. 
 
 And a 
 woman 
 has the 
 like power 
 in similar 
 circum- 
 stances. 
 
 A man 
 who con- 
 tracts 
 with ano- 
 ther for 
 his daugh- 
 ter on 
 condition 
 of her 
 being the 
 child of a 
 free wo- 
 man, may 
 cancel the 
 marriage 
 if she 
 proves to 
 be the 
 child of a 
 slave. 
 
 Every per- 
 son to 
 whom 
 another 
 woman 
 has been 
 brought 
 instead of 
 his wife, 
 
 slave, some of our doctors are of opinion that the marriage 
 is valid, and the wife made free by virtue of his declaration, 
 if the words of which he made use were such as can fairly 
 be construed to imply emancipation, while if they cannot 
 bear that construction, she is not emancipated, but has no 
 right to dower. If the woman herself were the deceiver 
 her master is entitled to compensation for the enjoyment of 
 her person ; but the husband is entitled to a refund of it 
 as against the woman herself if she should ever be emanci- 
 pated ; and if he has actually paid her the dower, he may 
 immediately recover whatever of it may be still in her 
 hands, and proceed against her for the remainder when she 
 has obtained her freedom. 
 
 When a woman has married a man on condition of his 
 being free, and he proves to be a slave, she has power to 
 cancel her marriage before or after connubial intercourse ; 
 but if the marriage is cancelled before it, she has no right 
 to dower, while her right to it is fully established if the 
 cancellation does not take place till after coition. 
 
 When a man has contracted with another for his 
 daughter on condition of her being the child of a free 
 woman, and it proves that her mother was a slave, some of 
 our doctors maintain that he has a right to cancel the 
 marriage ; and it would seem that he has such an option 
 when there was an express stipulation to that effect ; but 
 not so, if the contract were in general terms. If he should 
 avail himself of his option, and cancel the marriage before 
 coition, the woman has no right to dower ; but if the 
 cancellation does not take place till after coition, her right 
 to dower is fully established, the husband having at the 
 same time a right of recourse against the deceiver for a 
 refund of it, whether he be the father of the damsel or 
 another person. 
 
 If a man should marry his daughter to another as the 
 child of a free woman, and should send him, instead of her, 
 his daughter by a slave, the husband may return her to 
 her father ; but if coition has taken place, he is liable for 
 her proper dower ; for which, however, he is entitled to a 
 refund from the father, who must also restore to him the 
 
CAUSES FOR WHICH MARRIAGE MAY BE CANCELLED. Go 
 
 daughter whom he had actually married. So also may may re- 
 every one act to whom another than his own wife has been i,"'/',,"' 1 ' 
 brought, whom he supposes to be his wife, whether the liable fur 
 woman be higher or lower in degree than the person whom dower°jj ' 
 he has married. coition 
 
 When a man has married a woman stipulating for her p] ace . 
 being a virgin, and finds that she is not so, he has no Amanwho 
 power to cancel the marriage, because the marks of virginity marries a 
 
 i -i-i -it ii woman on 
 
 may have been destroyed by some concealed cause other than condition 
 
 coition. But he is entitled to a deduction from the dower ? f .^ er 
 
 being a 
 
 equivalent to the difference between the dower of a virgin virgin, has 
 
 and one who is not so. Some, however, maintain that the non gktto 
 
 m ' ' m cancel the 
 
 amount to be deducted is a sixth of the dower, but this is marriage 
 
 erroneous. _ JJSSsto 
 
 When a man has taken a woman in mootd, or by tern- be other- 
 
 porary marriage, and finds that she is a Kitabeeah, he 
 * J fa . , . . , . . i • A tempo- 
 
 has no power to cancel the marriage, without giving up his rary mar . 
 
 right to her during the time or period for which the marriage ria £f- can " 
 
 has been contracted ; nor can he deduct any part of the cancelled 
 
 dower. And even though the contract were a permanent because 
 
 ° t r the woman 
 
 one, the result would be the same according to one of two i s not a 
 
 opinions on the subject. If, indeed, there were a positive m0O ^j- 
 
 condition that the woman should be a Mooslimah, there is absence of 
 
 no doubt that he would have the power of cancelling the ^ n ^ ^ s 
 
 marriage should she prove to be of a different religion. 
 
 When two men have married two different women, and Case of 
 
 the wife of each has been brought to the other, and he has having the 
 
 had connection with her, each of the women is entitled to wives of 
 
 her proper dower as against the man who has had such brought to 
 
 connection with her, and must be restored to her own them on 
 
 husband, who is liable to her for the dower specified in her uf ,,„.[,. 
 
 contract ; but it is unlawful for him to have connubial marriage. 
 
 intercourse with her until the expiration of her iddut on 
 
 account of the first connection. If both the women should 
 
 die during the iddut, or the husbands should die, each of 
 
 the men would inherit to his own wife, and each of the 
 
 women inherit to her own husband. 
 
 In every place in which we have judged the contract to Whenever 
 
 be void, the wife is entitled, when connubial intercourse ig VO idaJ 
 
 PART II. P 
 
66 
 
 MARRIAGE. 
 
 initio, the 
 
 wife is 
 entitled to 
 the proper 
 dower ; 
 and wher- 
 ever it is 
 valid, but 
 cancelled, 
 she is en- 
 titled to 
 the dower 
 specified 
 in it. 
 
 has taken place, to her proper dower, and not to the dower 
 appointed for her by the contract ; and in every place in 
 which we have judged the contract to be valid, the wife is 
 entitled, on cancellation of her marriage, to the full dower 
 specified. It is maintained by some of our doctors that if 
 the marriage is cancelled on account of a blemish ante- 
 cedent to coition, the proper dower is due, whether the 
 blemish were in existence before the contract, or did not 
 occur till after it ; but the first opinion is more agreeable 
 to the general principles of the law. 
 
( 67 ) 
 
 CHAPTER V. 
 Of Muhr or Dower. 
 
 Section First. 
 
 Valid Dower. 
 
 Anything whatever which is capable of being legally Anything 
 acquired, whether it be substance or usufruct, is a valid be^^ 11 
 subject of dower ; and marriage may be lawfully contracted fully ap- 
 for the usufruct of a freeman, that is, for service to be maybethe 
 rendered by him in the teaching of a trade or instruction subject of 
 in a chapter of the Koran, or any other lawful business, or 
 even for the personal service of the husband himself for a 
 stated period, although some of our doctors have prohibited 
 the latter on the authority of a report, which, however, is 
 but weakly authenticated, and further, falls short of the 
 prohibitive sense which these doctors have put upon it. 
 
 If two zimmees, or infidel subjects, should contract Things 
 marriage together for wine, or a hog, the contract would toMussiiL- 
 be valid, because these are things which may be lawfully mans may 
 acquired by them. But if both or either of them should subject of 
 embrace the faith before possession has been taken of the dower 
 dower, the husband must deliver its value, as the thing ~|,,,^ 1 ,','.' 
 itself is incapable of being the property of a believer. And 
 it makes no difference whether the subject of the dower 
 were specific, or engaged for in general terms, and left on 
 the responsibility of the husband. If both of the parties 
 to a contract in which wine or a hog is the dower, be 
 Mooslims, or professors of the faith, or the husband only 
 be a Mooslim, some doctors have pronounced such a con- 
 tract to be null, and others have supported its validity, 
 
 F 2 
 
68 
 
 MARRIAGE. 
 
 The 
 
 amount of 
 dower is 
 dependent 
 on the will 
 of the 
 parties. 
 
 If the 
 
 subject of 
 dower be 
 seen, its 
 amount 
 need not 
 be ascer- 
 tained. 
 
 When a 
 slave or 
 house is 
 assigned 
 in general 
 terms, one 
 of medium 
 value 
 must be 
 delivered. 
 
 Dower 
 of the 
 
 soonwif is 
 500 dir- 
 
 h i ■ins. 
 
 decreeing tlie midir-ul-mithl, 1 or proper dower to the wife, 
 in the event of coition. According to a third opinion, she 
 is to receive the estimated value of the wine or hog ; but 
 the second opinion is most generally approved. 
 
 There are no bounds to the quantity or value of the 
 dower, which is left entirely to the will of the husband and 
 wife, so long as it is capable of appreciation, that is, not 
 totally destitute of value, like a single grain of wheat, for 
 example. 2 Some of our doctors have declared that a dower 
 cannot legally exceed the muhr-ul-soonnut, or the dower 
 bestowed by the Prophet on his wives, and have declared 
 that any excess over that amount must be returned to the 
 husband ; but this opinion is not to be relied upon. 
 
 It is sufficient in the assignment of dower that the 
 article which is the subject of it be seen, if produced, 
 although of unknown measure or weight, like a heap of 
 grain, for instance, or a bit of gold ; and it is lawful to 
 marry two or more women for one dower, which must in 
 that case, according to some of our doctors, be divided 
 equally among them, or, according to others, in proportion 
 to their proper dowers, — which latter opinion is more 
 agreeable to the general principles of law. 
 
 If a man should marry a woman for a servant or slave, 
 in general terms, without his being seen or described, a 
 slave of medium value must be delivered to her ; and the 
 same rule applies to a beyt, or house, stipulated for in 
 general terms, founded on a report by Aly Ebn Ally 
 Humzah ; as also to a dar, or mansion, as recorded by 
 Ben Aby Ameer from some of our doctors, quoting the 
 authority of Aby at Husn, 3 on whom be peace. 
 
 If a man should marry a woman " according to the 
 Book of God, and the soonnut, or traditions, of his 
 Prophet," without any specification of dower, she is to 
 receive, in that case, five hundred dirhems. If, again, a 
 dower is specified for the woman, and also something for 
 
 1 Usually pronounced muhr-i-misl in India. 
 
 2 According to the Hanifites, the lowest amount of dower is ten 
 dirhems. — D., p. 92. 
 
 3 The Imam Mousey Jieza. 
 
DOWER. 69 
 
 her father, the husband is legally bound only for the first, 
 and the stipulation in favour of the father is of no avail. 
 It is otherwise where a husband endows his wife with a 
 dower, and stipulates that something is to be given out 
 of it to her father ; for in that case both the dower and 
 the stipulation are valid, in opposition to the former 
 example. 
 
 It is indispensable in marriage contracts that the The dower 
 dower be specified in such a manner as to remove all 1^™^° 
 doubt and uncertainty. Thus, if the dower agreed upon as to re- 
 be instruction in a chapter of the Koran, the chapter must ™cev- 
 be specified ; and if it is left in general terms the dower tainty. 
 mentioned is invalid, and the woman must receive her 
 proper dower in the event of consummation. Whether, 
 also, the mode of reading 4 must be specified, is a question 
 which some have answered in the affirmative, and others 
 maintain that it is not necessary, but that the husband 
 must instruct her in a manner that is lawful,— which last 
 opinion appears to be the best founded. Should the wife 
 direct him to instruct another in her room, this is not 
 incumbent upon him, as not included in the stipulation. 
 
 If a husband should assign as the dower of his wife If a thing 
 the teaching her a business in which he is not expert, or ^hidf" 6 
 a chapter of the Koran of which he is ignorant, such dower proves to 
 is nevertheless valid, for the engagement is established on ful or no £ 
 the husband's responsibility ; and if he is unable to perform the pro- 
 it himself, he is bound to pay the hire of such instruction. ^j ie ^ us . 
 If, again, he assign to her as dower a vessel said to contain band, its 
 vinegar, and it afterwards appears that the contents are must be 
 wine, some of our doctors have maintained that she is given in- 
 entitled to have the value of the wine as if it were lawful, 
 and others a similar quantity of vinegar, which latter 
 appears to be the better opinion. In like manner, should 
 he assign a particular slave, and if it afterwards appears 
 that the person is free, or the property of another, the 
 
 4 This case has a reference to the seven different modes or tones 
 prescribed for reading the Koran in the science of reading the sacred 
 book, which is considered, in Arabia, a most important branch of 
 study. 
 
70 
 
 MARRIAGE. 
 
 Case of a 
 private 
 and public 
 assign- 
 ment of 
 dower. 
 
 The hus- 
 band is 
 respon- 
 sible for 
 the dower 
 unblem- 
 ished. 
 
 woman is to receive a slave of like value as the person 
 mentioned. And if lie should marry her for one dower 
 privately and another openly and in public, the first is 
 her dower. 5 
 
 The husband is responsible for the dower. If, then, 
 it should perish before delivery, he must make good its 
 value at the time of its loss, according to the most com- 
 monly received doctrine among us ; and if it is found to 
 be blemished, the wife may return it on account of the 
 defect. But if it should be blemished after the contract, 
 it has been said that she has an option, and may take 
 either the thing itself, blemished as it is, or its value. It 
 were better, however, to say that she has no title to claim 
 its value, and can only take the thing itself, with a com- 
 pensation for the blemish. 
 
 A woman may refuse to surrender her person till she 
 has received delivery of her dower, whether the husband 
 be wealthy or in straitened circumstances. But whether 
 she can do so after the marriage has been consummated, 
 is a question that has been answered both in the affirmative 
 and the negative. The latter opinion, however, is the 
 more conformable to the general principles of law, because 
 fruition is a right in the husband to which he is entitled 
 by the contract. 
 
 Moderation in the amount of the dower is commend- 
 able ; and to exceed the muhr-ul-soonmd, or dower of the 
 traditions (five hundred dirliems), is abominable. As it 
 is, also, for a husband to have connubial intercourse with 
 his wife till he has first paid her the dower, or at least 
 some part of it, or has given her something else as a 
 present or gift. 
 
 Section Second. 
 
 Tufweez, or Gratuitous Surrender . 
 
 Tufweez This is of two kinds, Tufweez-ool-Boozd, or surrender 
 
 kinds. °f t ,ne person, 6 and Tufweez-ool-muhr, or surrender of the 
 
 5 See Digest, note on p. 118. 
 
 " Literally, arvum genitale mulieris. 
 
 A wife 
 may re- 
 fuse to 
 surrender 
 herself till 
 her dower 
 is paid. 
 
 Modera- 
 tion in the 
 amount of 
 dower 
 laudable. 
 
DOWER. 7 1 
 
 dower. By the first is to be understood a contract, in 1. when 
 
 which no mention whatever is made of dower, as if an n .° m . en " 
 
 ' tion is 
 
 agent should say, " 1 have married thee to such an one," made of 
 
 or the woman herself should sav, "I have contracted myself °P WBT m 
 
 J* J the con- 
 
 in marriage to thee," the man saying, " I have consented." tract. 
 
 This species of contract includes the following cases : — 
 
 First. The mention of dower is by no means a con- A present 
 dition of validity in a contract of marriage. If, therefore, ™^ t ® 
 a person should marry a woman without any mention of the wo- 
 dower, or with an express condition that there shall be forced 
 none, the contract would be valid. And if he should before 
 divorce her before consummation, she would have no right her proper 
 to dower, though entitled to a mootdt, or present, whether dower if 
 she be free or a slave. But if divorced after consumma- divorced 
 tion, she must receive her proper dower, having no claim after it. 
 to a present in that case. Further, should one of the 
 parties die previous to coition and before settlement of 
 the dower, neither dower nor a present can be claimed in 
 such a case ; and it is to be observed that the proper 
 dower is not established in any case by virtue of the con- 
 tract alone, but is determined by its consummation. 
 
 Second. The muhr mithl? or proper dower of a woman, How the 
 is regulated by the nobility of her birth, the beauty of her ^^gj and 
 person, aud the custom of her female relatives, provided present 
 that it does not exceed the dower of the soonnut or five- ^1^°^ 
 hundred dirhems. And the mootdt or present is regulated 
 by the condition and circumstances of the husband. Thus 
 a rich man is to present his wife with a quadruped, a rich 
 dress, or ten deenars ; a man of the middle class with five 
 deenars, or a dress of middling value ; and a poor man 
 with one deenar, a ring, or the like. Further, no woman 
 is entitled to a present except a woman for whom no dower 
 has been assigned, and who has been divorced before 
 consummation. 
 
 Third. If the parties agree, subsequent to their con- Dower 
 tract of marriage, upon the settlement of a dower, it set |ied 
 
 is legal and valid, for the right is with them, whether after mar- 
 & ' & riage. 
 
 7 Usually pronounced misl in India. 
 
72 
 
 MARRIAGE. 
 
 Marriage 
 with a 
 
 slave in- 
 validated 
 by her 
 
 discreet. 
 
 the amount agreed upon is equivalent to the proper dower, 
 or is more or less than it, and whether the parties, or one 
 of them, be acquainted with the proper dower or ignorant 
 thereof, for the settlement of the dower rested with them 
 at the first, and it is equally lawful to the end. 
 
 Fourth. If a man marry a slave and then purchase her, 
 the marriage is invalidated, 8 and she has no right either 
 to dower or a present, 
 husband's purchasing her, and she 
 has no right to dower. 
 
 Tufweez Fifth. Tufweez, or voluntary surrender, is established 
 
 tothe^ase only on the part of a woman who is adult and discreet, and 
 of women is not valid if made by a child or even a full-grown woman 
 afohfand tuat is of a weak or iacile disposition. If, again, a guardian 
 should contract his ward in marriage for less than her 
 proper dower, or without any mention of dower, though 
 the contract would be valid the woman would be entitled 
 to her proper dower in virtue of the contract alone. But 
 this decision is liable to doubt on the principle that a 
 guardian is vested with powers to act as he thinks best for 
 his ward, and may therefore be trusted with the tufweez 
 or surrender of her person, in confidence that it is for her 
 benefit in the particular instance ; and this decision appears 
 to be the most proper. Supposing, however, the first to 
 be correct, and that the husband divorces his wife previous 
 to coition, she would on that supposition be entitled to 
 half her proper dower ; whilst, according to the doctrine 
 that we prefer she would be entitled to no more than a 
 present. Further, it is lawful for a master to surrender 
 his slave without any mention of dower, as he has an 
 exclusive right to the dower. 
 
 Sixth. When a master has contracted his slave in 
 marriage without any mention of dower, and has sub- 
 sequently sold her, the future settlement of dower rests 
 in that case with the husband and the second master, 
 should he ratify the marriage, and he alone is entitled to 
 
 8 According to the Hanifites, marriage is invalidated by either 
 party becoming the proprietor of the other. — D., p. 203, and see ante, 
 p. 38. 
 
 Case of a 
 female 
 slave 
 being 
 married 
 without 
 specifica- 
 tion of 
 dower, 
 and being 
 then sold. 
 
DOWER. 73 
 
 the dower without any participation of the first. But if 
 her first master should emancipate her previous to the 
 consummation of her marriage, and she should approve 
 or be content to abide by the contract, she would herself 
 alone be entitled to the dower. 
 
 With regard to the second kind of surrender, or that Second 
 of the dower, which is that kind of contract in which the ^ /(7r% 
 dower is mentioned in general terms and the amount left where the 
 to be fixed by one of the spouses. When the husband is left to be 
 the appointed judge, he is not restricted on the side of subse- 
 either more or less, and may lawfully fix anything that he nxe d. 
 pleases ; but when the amount is left to the judgment of 
 the wife, though she is in nowise restricted on the side 
 of less she is limited on the side of more, and cannot 
 lawfully exceed the dower of the soonnut, or five hundred 
 dwhems. Should the husband divorce his wife before 
 coition, and also before the settlement of the dower, the 
 person to whose judgment the matter was left must 
 immediately fix the amount, and the wife is entitled to the 
 half of it ; provided that when the wife is the party invested 
 with the power, whatever she awards must not exceed 
 the dower of the soonnut. If the judge or referee should 
 die before fixing the amount, and previous to coition, some 
 of our doctors have said that the dower is cancelled, and 
 the wife entitled only to a mooted or present, while others 
 insist that she has no right to either ; but the first opinion 
 is supported by express tradition. 
 
 Section Third. 
 
 The Laws of Bower. 
 
 These are comprehended in the following cases : — Right to 
 
 . -ill- dower not 
 
 First. When a marriage has been consummated before cancelled 
 
 deliverv of the dower, the right to it is by no means can- b y con " 
 J jo • i i • surama- 
 
 celled by the consummation, but remains a debt against t i 0D( but 
 
 the husband, for which he is responsible, however long or husband 
 
 ' L -i l i • i always re- 
 
 short may be the delay in its payment, and whether it be sponsible 
 
 demanded or not. There is indeed a report the other way, £o ^*j tai 
 
 but that has been set aside or abandoned. payment. 
 
74 MARRIAGE. 
 
 Consum- It is to be observed that by consummation, as a means 
 
 what; 0n ' °f establishing a right to dower, is to be understood actual 
 coition, either naturally or against nature, 9 and the right 
 is by no means established by mere retirement, as some of 
 our doctors have maintained, 10 the first opinion being better 
 supported by traditional authority. 
 When no Second. When no dower has been named in the con- 
 
 dower has tract, k u £ tj ie husband has given something to his wife, 
 been spe- ' ... 
 
 cified, a and then consummates the marriage, it has been said that 
 
 gift before ^ thing so given previous to coition is to be accounted 
 consurjD- o o x 
 
 mation the dower, and that the wife has no right to demand 
 assumed anything more after the coition, unless it was previously 
 to be the stipulated that the dower should consist of something else, 
 unless' This is founded on an analogical exposition of a report, and 
 otherwise is supported by the well-known opinion of our doctors. 
 s p a e . Third. When a man has divorced his wife before con- 
 titled to summation of their marriage she is entitled to half the 
 half the stipulated dower, and if the whole were paid in advance, 
 divorced be is entitled to a refund of half of it if still in existence, 
 before coi- or j ia ]f f a giniilar to it if the thing itself have perished, 
 the whole or half of its value if a similar cannot be procured. If 
 
 has been there should be any difference between its value at the 
 
 paid, must . . . . 
 
 return time of contract and at the time of taking possession, the 
 
 half, or its Wl f e lS bound only for the lowest of the two values. If, 
 value. ... . . . 
 
 again, the identical substance remain in her possession, 
 
 but it has become injured in some of its qualities, as, for 
 
 instance, if the dower were an animal which has become 
 
 blind of an eye, or a slave who has forgotten the trade 
 
 in which he was instructed, the husband is in this case 
 
 entitled to half the value, and cannot be compelled to take 
 
 the thing itself, although this decision is liable to some 
 
 doubt. If, however, the diminution of value should arise 
 
 merely from a change in the price, he is entitled to no more 
 
 than half of the article itself, as he is also, on the other 
 
 hand, entitled to the half of it if an increase in its value 
 
 should take place from a rise in the market price, because 
 
 See ante, note, p. GO. 
 
 And as is the doctrine of the Hanifite sect. — I)., p. 9G. 
 
DOWER. 75 
 
 no reference can be made to value so long as the actual 
 
 substance remains unchanged. Where, again, an essential 
 
 increase of the substance has taken place, as by natural 
 
 growth in the case of a young animal, or by an addition of 
 
 fat in the case of a lean one, he is entitled only to half of 
 
 the original value without the increase, and the wife cannot 
 
 be compelled to make over half of the thing in its improved 
 
 condition, according to the best founded opinion. Further, 
 
 any produce of the original dower, such as the milk or 
 
 young of an animal, is the exclusive property of the wife, 
 
 and the husband is entitled to no more than half of what 
 
 was specified in the contract. But if he had endowed her 
 
 with a pregnant animal as her dower, half of both the 
 
 animal and its offspring would be his ; while if instruction 
 
 in a trade were the dower, and he had divorced her before 
 
 consummation, she would be entitled to half the hire of 
 
 instruction, and if he had already instructed her previous 
 
 to the divorce, he would be entitled to a refund of half the 
 
 hire. 
 
 Fourth. If a woman exonerate her husband from the Effect of 
 
 dower, and he then divorces her before consummation, he an exone_ 
 ' ' ration by 
 
 has a claim against her for half the dower; and in like wife of the 
 manner if he should enter into a Jchoola with her, or ower > 
 bargain for release from the marriage tie, in exchange for 
 the whole dower, he would be entitled to have recourse 
 against her for a refund of half of it, if he should divorce 
 her before consummation. 
 
 Fifth. Where a man has given his wife in exchange or a com- 
 for her dower a fugitive slave, and something besides, and of the 
 then divorces her previous to coition, he has a claim dower for 
 against her for a refund of half the original dower specified j. lst , 
 in the contract, and not of that subsequently exchanged 
 for it. In like manner, if he should commute it for any 
 other article, either moveable or immoveable, restitution, 
 in the event of divorce, takes place only in the original 
 dower, and not in the article exchanged for it. 
 
 Sixth. When a moodubburah has been assigned as 
 dower, and the wife is divorced (before consummation), the rah beinj 
 slave becomes their joint property in equal shares, and !,7,h,\y ( 'r. 
 
 Case of a 
 
 inoodiilihil- 
 
76 
 
 MARRIAGE. 
 
 Unlawful 
 stipula- 
 tions in 
 marriage 
 are void, 
 and leave 
 the dower 
 unaf- 
 fected. 
 
 E fleet of 
 stipula- 
 tion for an 
 increase 
 of dower 
 if the wife 
 is taken 
 from her 
 own city. 
 
 A woman 
 entitled to 
 a second 
 
 must be set free on the husband's death. But some insist 
 that the tudbeer 11 is cancelled by the assignment of the 
 slave as dower, in the same way as a legacy, which, like it, 
 takes effect only on the death of the testator, is cancelled 
 by any disposal of its subject during his life ; and this 
 seems more agreeable to the general principles of law. 
 
 Seventh. When anything is stipulated for in a contract 
 of marriage which is contrary to law, as, for example, that 
 the husband shall not marry another wife during the life- 
 time of the party with whom the contract is made, nor 
 privately entertain a woman as his concubine, the condition 
 is void, and the contract valid together with the dower. 
 In like manner, if the husband should stipulate for the 
 payment of the dower at a certain term, and that in the 
 event of failure the contract shall be null, both contract 
 and dower are binding and the condition void. If, on the 
 other hand, it is stipulated that he shall not deprive her 
 of her virginity, the condition is valid and binding, and 
 should the wife afterwards consent to connubial inter- 
 course, that also would be lawful on account of the general 
 terms of the tradition. Some doctors have limited the 
 obligation of fulfilling this condition to cases of temporary 
 marriage alone, but the doctrine appears to be totally 
 groundless. 
 
 Eighth. If it be stipulated in a contract of marriage 
 that the husband shall not take away his wife from her 
 own city, it has been said that such a condition is binding, 
 and there is a tradition to that effect. Should he further 
 stipulate a certain amount of dower in the event of his 
 taking her away to his own country, and somewhat 
 less if she does not accompany him, and if after this 
 he attempts to carry her away to an infidel city, she is not 
 bound to comply, and is nevertheless entitled to the higher 
 amount of dower. If, on the other hand, the removal is 
 to a Mussulman city, the condition of the contract is bind- 
 ing on her ; though this is liable to some doubt. 
 
 Ninth. If a person divorces his wife, and remarries 
 
 11 See ante, note, p. 55. 
 
DOWER. 77 
 
 her during the iddut, and again divorces her before coition, dower if 
 
 she is entitled to half the dower. remarried. 
 
 Tenth. If a woman makes a gift to her husband of half ] ialf dower 
 
 the dower diffusively, and he then divorces her before; tohus- 
 
 coition, he becomes thereby proprietor of the whole, but titles him 
 
 has no further claim of recourse against her, whether the *° wlaole 
 
 dower was a debt, or something specific ; because the gift divorced 
 
 comprehends all that she had any title to. before 
 
 'Eleventh. If a husband should assign two slaves as his Twoskives 
 
 wife's dower, and one of them should die, he has a right of assigned 
 
 recourse against her for half the surviving slave, and half an( j one ' 
 
 the value of the dead one. of them 
 
 Twelfth. If an option is stipulated for in marriage, the n t'° ' 
 contract is void. 12 But there is a difference of opinion upon marriage 
 the point from a consideration, on the one hand, that the except 
 marriage is fully established, because all the legal requisites when re- 
 exist, and, on the other, that it is annulled by the option, thedower. 
 which is evidence of the absence of that complete satisfac- 
 tion which is essential to the constitution of marriage. 
 But if the stipulation for an option is restricted to the 
 dower, then the contract, the dower, and the condition are 
 all valid. 
 
 Thirteenth. The dower becomes the property of the Thedower 
 
 wife by the mere contract, and she may therefore legally IfJ^if* " 
 
 use and dispose of it, according to the most common or the wife 
 
 generally received of two reports, before taking possession m ^ re e con _ 
 
 of it. But should the husband divorce her before coition, tract; 
 
 half of it reverts to him, the other half only remaining 1 her but half of 
 
 it reverts 
 
 property; and if she should forgive him what belongs to to the lms- 
 
 her, the whole would be his. So also, if the person who b , and lf 
 
 ... she is 
 
 has power to contract the woman in marriage, that is, her divorced 
 
 guardian, as her father or paternal grandfather, should be *°re 
 
 forgive the husband the portion of the dower to which the 
 
 wife is entitled, the whole would revert to him ; 13 and some 
 
 12 See ante, p. 5. 
 
 13 Vide Sale's Koran, cap. ii. p. 43 : — " But if ye divorce them 
 before ye have touched them, and have settled a dower, they shall 
 have half what ye settle, unless they release or he release in whose 
 hands the contract of marriage is." 
 
78 
 
 MARRIAGE. 
 
 A wife 
 cannot 
 deny her- 
 self to the 
 embraces 
 of her hus- 
 band 
 when the 
 dower is 
 deferred. 
 
 Where the 
 dower is a 
 piece of 
 silver 
 which has 
 been 
 manufac- 
 tured, and 
 the wife is 
 divorced 
 before co- 
 ition, she 
 
 of our doctors have alleged that this power belongs to every 
 person who has authority to contract a woman in marriage. 
 The father and paternal grandfather may forgive the hus- 
 band a part of the dower, but neither of them can give 
 up the whole. The husband's guardian, however, has no 
 legal power to give up his ward's right to half the dower 
 in the event of a divorce previous to consummation, for he 
 is appointed to take care of the interests of his ward, who 
 can have no possible benefit from the abandonment of his 
 right. Further, when either the wife has forgiven her half 
 or the husband has forgiven his half, in neither case does 
 the right of property pass out of the person foregoing the 
 right, by the mere act of forgiveness, for that is only a gift 
 which is not completed without possession. If, indeed, 
 the dower were a debt against the husband, or if it should 
 happen to perish in the hands of the wife, mere forgiveness 
 of the responsibility would be quite sufficient, because it 
 would be a release which does not require even acceptance. 
 It is otherwise in the case of ma!, or tangible property, for 
 which a person is liable, for that cannot be transferred by 
 mere forgiveness, or anything short of actual delivery. 
 
 Fourteenth. If the dower is moowujjul, or deferred, the 
 wife cannot deny herself to the embraces of her husband ; 
 and if she has contrived to withhold herself till the arrival of 
 the stipulated period, a question may arise whether she can 
 then lawfully deny herself till the dower is paid. To this 
 question some of our doctors have answered in the affirm- 
 ative, but others in the negative, with better reason, be- 
 cause she was already bound to surrender herself before 
 the arrival of the period agreed upon for payment of the 
 dower. 
 
 Fifteenth. If the husband should assign as the dower a 
 piece of silver bullion, which the wife has converted into a 
 vessel, and he divorces her previous to coition, she has an 
 option, and may deliver half the identical article or its value 
 in money ; for it is not incumbent upon her to give up the 
 price of the manufacture. If, on the other hand, the dower 
 were a piece of cloth which she has sewed up into a shift, 
 the husband is not obliged to take it, and may demand half 
 
DOWER. 79 
 
 the value, because silver does not lose its identity by being may re- 
 manufactured, whereas it is otherwise with cloth. its value £ 
 Sixteenth. If the dower be instruction in a chapter of When the 
 
 the Koran, the husband is bound to make his wife capable ?°Y er 1S 
 ; l lnstruc- 
 
 of reading the chapter by herself, and it is not sufficient tion in a 
 
 that she merely follow him in repeating his words. True, J a ^ er , of 
 
 if rendered capable of independently reading one verse, he she must 
 
 then teaches her another and she forgets the preceding, he t e au f-t 
 
 is not bound to go over it again ; but if she require the by her- 
 
 assistance of, or be instructed by any other person than her se ' 
 
 husband, she is entitled to receive from him the hire of 
 
 such instruction, in the same way as if he had assigned 
 
 something as the dower which he is unable to deliver up. 
 
 Seventeenth. It is lawful to combine marriage and sale Sale and 
 
 in one contract, and the whole consideration must be divided m^bf c 
 
 in the proportion of the wife's proper dower and the market joined in 
 
 price of the article. But if a woman, holding a deenar in tract a ^d 
 
 her hand, should say, " I have contracted myself to thee the con .- 
 
 in marriage, and sold this deenar to thee for a deenar" the j g to be 
 
 sale would be void on the ground of usury, and the dower divided 
 
 invalidated, the marriage, however, being valid. If, again, tion to the 
 
 the articles were of different kinds, as if, for instance, a P ro P er 
 
 dower 
 garment were substituted for the first deenar, she should an d the 
 
 say, " I have sold you this garment and contracted myself m ^ rket p 
 . . jo j price or 
 
 m marriage to thee for one deenar" the whole would be the thing 
 
 valid. sold - 
 
 Branches from the Preceding. 
 
 First. If a husband should assign as his wife's dower a Case of a 
 
 slave whom she emancipates, and the wife is then divorced be - ng 
 
 before coition, she is liable for half his value. If, again, assigned 
 
 she should have made the slave a moodubbur, it is said wli0 is 
 
 that she has an option and may either revoke H or abide after- 
 
 wirds 
 
 by the tudbeer. Should she adopt the latter course, the emanc j_ 
 
 husband has half the slave, but if she decline this exercise pated by 
 
 . t.lic wife 
 
 of the option she cannot be compelled, and is only liable D r made'a 
 
 for half the value. Further, if she should pay that amount moodub- 
 
 7 x Our. 
 
 11 Tudbeer is like a legacy, and may be lawfully revoked. — 
 Shuraya, p. 358. 
 
80 MARRIAGE. 
 
 and then revoke the tudbeer, it is said that the husband 
 
 may renew his claim to half the slave, having accepted the 
 
 valne merely from the intervention of the tudbeer. But 
 
 this decision is liable to doubt, from a consideration that 
 
 by payment of the value the woman's right of property in 
 
 the slave was once fully established. 
 
 Though a Second. If a guardian contract his female ward in 
 
 g hi ld an carriage for a smaller sum than her proper dower, some 
 
 contract doctors have alleged that the dower is null, and that she is 
 
 fr less entitled to the proper dower. Others have asserted that 
 
 than her the appointed dower is valid, and this doctrine is the most 
 proper -■ 
 
 dower, approved. 
 
 it is valid. Third. If a person marry a woman, assigning as her 
 
 Cases dower some property pointed out, but of unknown weight, 
 
 exonera- which perishes before delivery, and the wife releases him 
 tionbythe f rom ^ this is valid. As also, where he has assigned her 
 her dower a dower that is invalid, and the wife being in consequence 
 is valid, entitled to her proper dower releases him from it in whole 
 it is not. or in part, such acquittal is, in like manner, valid, although 
 the amount is yet unascertained, because this is merely 
 the cancelling a right which in law is not affected by 
 io-norance of the amount. If, however, a wife should 
 exonerate her husband of the proper dower before coition, 
 such acquittal is invalid, because her right to it is not yet 
 established. 15 
 A father Fourth. If one should contract his infant son in mar- 
 
 contract- r j[ ao , e anc i the child has independent means of his own, he 
 intcliisson & ' . f . 
 
 in-mar- is liable for the dower. If the child is poor the obligation 
 
 riage is t entirely on the father, and, in the event of his death, 
 
 liable tor •> . 
 
 the dower must be discharged out of the whole of his property, whether 
 
 unless the ^ c ] n ^ c i gh^uld arrive at maturity and become wealthy, or 
 
 son iicis 
 
 means of die before it. If, therefore, the father should have paid 
 
 his own. j.j ie c ] owerj an d the youth should come to maturity and then 
 divorce his wife before coition, the son and not the father 
 has a right to reclaim half the dower, the payment by the 
 father being considered, in the light of the law, as a gift to 
 the son. 
 
 15 It is only by coition that the right to the proper dower can be 
 established. — Ante, p. 71. 
 
DOWER. 81 
 
 Fifth. If a father should gratuitously pay the dower on Adult son 
 
 account of his adult son, and the son should divorce his ^"^^.^ 
 
 ... <<> Ins wife 
 
 wife before coition, he is entitled to revert to her for half for half 
 
 the dower, and the father cannot object to his doing so, !£ ed0 j7 er 
 
 notwithstanding what we have just said in the case of an given by 
 
 infant child. But in both cases there is room for doubt. lls father - 
 
 Section Fourth. 
 
 Disputes regarding Dower. 
 
 First. If the dispute is upon the fact whether a dower Word of 
 was assigned or not, the word of the husband is to be banolTbe 
 preferred ; without any difficulty if the dispute has arisen preferred 
 previous to consummation, because a contract of marriage te is .)*" 
 without specification of dower is common and probable, to the fact 
 And though the dispute should have arisen after consum- ^ower 
 mation, here also the word of the husband is to be pre- having 
 ferred, as supporting the original and radical conclusion s io- ne d 
 of freedom from obligation until the contrary is proved. 
 Further, there is no difficulty in assigning the preference to 
 the husband's assertion if he fix an amount of dower, how- 
 ever trifling, down to a grain of rice, 16 because here the 
 probability is established, and the excess alleged being 
 contrary to the probable conclusion and unknown, must be 
 supported by proof. If the difference between the parties Or its 
 is as to the amount or quality of the dower specified, here va i ue _ 
 still the word of the husband is to be preferred. Whereas, But the 
 if he acknowledge the dower claimed by his wife, and ™ord of 
 
 ° J ' the wife 
 
 allege his delivery of it, but fails to adduce any proof of must be 
 
 his assertion, credit must in this case be given to the word j 3 /^"^. 
 
 and oath of the woman. Where, however, there has been p U te is 
 
 an actual delivery of the dower, but the wife alleges that Jj^jj^jj 
 
 what was given was intended as a gift, here, again, the dower. 
 
 word of the husband is to be preferred, as he must neces- * 
 
 sarily be best acquainted with his own intention. 
 
 Second. If the husband and wife should have retired Where the 
 
 parties 
 together, and the wife alleges that carnal intercourse took h aV e re- 
 
 16 Or it may mean the weight in money of a single grain. 
 PART II. O 
 
82 
 
 MARRIAGE. 
 
 tired to- 
 gether, 
 and the 
 dispute is 
 as to coi- 
 tion, the 
 word of 
 the hus- 
 band is 
 preferred 
 
 In dispute 
 as to in- 
 struction 
 wife's 
 word pre- 
 ferred. 
 
 Where 
 there have 
 been two 
 separate 
 contracts, 
 and the 
 man al- 
 leges that 
 the second 
 was only a 
 repetition 
 of the 
 first, the 
 word of 
 the wife is 
 preferred. 
 
 place between them, then, if the case admits of proof on the 
 part of the husband, as where the wife was a virgin at the 
 time of the marriage, and asserts coition in the natural way, 
 the decision is obvious. Where, again, she was not a virgin 
 at the time of the marriage, or alleges coition unnatur- 
 ally, 17 the husband's declaration on oath must be credited, 
 because the original condition is an absence of coition, and 
 he denies what she alleges, which therefore requires to 
 be established by proof. Some doctors, however, are of 
 opinion that her assertion upon oath must be received as 
 supported by the natural conclusion to be drawn from a 
 man and woman in good health retiring together when 
 no obstruction to the carnal act is alleged. But the first 
 doctrine is the most approved. 
 
 Third. When the dower is instruction in a chapter of 
 the Koran, or in a trade, and the wife alleges she has 
 been taught something else, her word is to be preferred, 
 for she is a denier of what he claims. 
 
 Fourth. If a woman should adduce evidence to prove 
 that her husband married her at two different times by two 
 separate contracts, as founding a claim to two dowers, and 
 he should insist that what she supposed to be two con- 
 tracts was merely a repetition of the one contract, her word 
 is to be preferred, because appearances are in her favour. 
 Whether he is liable for the two dowers is a question which 
 has been answered in the affirmative, in reliance on the fact 
 of there having been two separate acts of contract ; but it 
 has also been said that he is only liable for a dower and a 
 half. The first opinion, however, is the most approved. 
 
 17 See note on page 60. 
 
( 83 ) 
 
 CHAPTER VI. 
 
 of kism, nushooz, and shekak. 
 
 Section First. 
 
 Kism, or Partition. 
 
 Each of the spouses possesses certain rights which it is Mutual 
 incumbent on the other to respect ; and, as a husband is f ^ 
 bound to maintain his wife by providing her with raiment parties. 
 and food and a place to reside in, so also it is incumbent 
 on the wife to submit herself to his embraces, and to avoid 
 everything that may render her repulsive or disagreeable 
 to him. 
 
 Kismut, or a partition of his time amongst his wives, is Equal par- 
 a duty which is incumbent on a husband, whether he be *! tlon of 
 free or a slave, and even though he should be impotent or among 
 an eunuch ; as also though he„ be insane, but in that case j^J^^ 
 the partition should be regulated by his guardian. bent on a 
 
 Some of our doctors are of opinion that partition is not 
 
 incumbent on a husband until he has once begun to cohabit till it has 
 
 with his wives ; and this doctrine is the most approved, been once 
 
 • • /• i com- 
 
 though others have maintained its necessity from the menced. 
 
 beginning of the married state. 
 
 If a man be married to one wife she has a right to one Where he 
 
 night out of every four, and the other three are at his own n e w jf e 
 
 disposal to sleep where he pleases. If he has two wives tnree 
 
 • it • i -i ■c^ i ,i ,i nights are 
 
 they are entitled to two nights, and if he has three they are at i,j s own 
 
 entitled to three, while he has a right to dispose of the disposal, 
 
 ii T » i i and so on 
 
 excess in each case up to four, as he pleases. It he has where he 
 
 the full complement of four wives, each one of them has a has only 
 
 . two or 
 
 right to a night in her turn, and he cannot absent himself three 
 
 o 2 
 
84 
 
 MARRIAGE. 
 
 The pe- 
 riods, as 
 one or two 
 nights 
 with each, 
 to be de- 
 termined 
 with their 
 consent. 
 
 Partition 
 limited to 
 spending 
 his time 
 equally 
 with his 
 
 A free 
 woman en- 
 titled to 
 twice the 
 time of a 
 slave, and 
 a mooslim- 
 ah to 
 twice the 
 time of a 
 Jdtabeeah. 
 
 The time 
 to which 
 each wife 
 is entitled 
 may be 
 spent with 
 her in her 
 own apart- 
 ment, or 
 by calling 
 her to his. 
 
 Seven 
 nights al- 
 lowed for 
 consum- 
 mation 
 
 from the proper partner of that night without a just pretext, 
 or being on a journey, or her permission. 
 
 Whether the husband can lawfully regulate the partition 
 by giving more than one night to each wife, is a question 
 that has been answered in the affirmative, but it would 
 seem that he cannot do so without their consent. And if 
 he should marry four wives at once, the order of cohabita- 
 tion should, be determined by lot. Some, however, have 
 said that he may begin with any one of them at his 
 pleasure, and so on till he has gone through the whole, 
 after which he is bound to equality in the same order, and 
 this opinion is the most generally approved. 
 
 What is incumbent on a man in respect of partition is 
 merely to spend his time with the wife to whom it is due, 
 and does not extend to coition. It is also confined to the 
 night, to the exclusion of the day. But some say that he 
 should not only remain with her during her night, but 
 should prolong his stay for the morning, and there is a 
 tradition to that effect. 
 
 If a person be married to a slave and a free woman, or 
 several free women, each of them is entitled to two nights 
 for one to the slave, and a zimmeeah or infidel subject is 
 in respect of partition on the same footing as a slave ; so 
 that if a man be married, to a mooslimah and a Mtabeeah, 
 the former is entitled to two nights for one night to the 
 latter ; while if he has a mooslimah who is a slave, and a 
 hitabeeah who is free, they are both to be treated exactly 
 alike in respect of partition. 
 
 A woman enjoyed by right of property has no title to 
 partition, whether she be single or there be several in that 
 predicament. And a man is at liberty to go the round of 
 his wives in their own houses or apartments, or to call 
 them to his own apartment. He may also practise the 
 one course with some of them, and the other course with 
 others, impartiality in this respect not being required. 
 
 A man should remain seven nights with a virgin for 
 consummation of his nuptials, and three nights with a 
 woman who has lost her virginity, such times being spe- 
 cially appointed by law for these respectively, and he is 
 
KISM, OR PARTITION. 85 
 
 not obliged to make up to his other wives for the deficiency, of mar- 
 
 If two or more wives are conducted to a man in one nio-ht, ria ? e ) vlth 
 
 . a virgin, 
 
 he may commence, according to some, with whichever of and three 
 
 them he pleases, while, according to others, he ought to ™ ltn a 
 
 cast lots ; but the first opinion is most generally approved, 
 
 though the latter would perhaps be better. 
 
 The duty of partition abates on a journey. Some, Right to 
 however, have said that if the journey be only a migration abatesTn 
 from place to place, with intermediate residences at places a journey, 
 on the way, he ought to make up for it to his other wives 
 on his return, and that it is only with regard to distant 
 journeys that the right abates. When he intends that any 
 of his wives should accompany him on a journey, he should 
 cast lots between them. Whether he may pass by the person 
 on whom the lot has fallen, is a question that has been an- 
 swered in the negative, because she has been in a manner 
 appointed for the purpose, though the point is open to doubt. 
 
 The right of a slave to partition is not dependent on Slave's 
 the permission of her master, because this is a matter in p^ t *° n 
 which he has no portion. not de- 
 
 Equality among wives should be observed in respect of ^master. 
 
 maintenance, general behaviour, and coition. 1 A husband Equality 
 
 ought also to remain in the morning with the wife who is should be 
 
 entitled to the preceding night. Further, he should allow in main . 
 
 his wife to visit her father and mother on the approach of tenance 
 
 o ... n and gene- 
 
 death, though it is in his power to forbid her visiting them ral be ] ja . 
 
 or her other relatives, or going out of his home except on vlour - 
 necessary occasions. 
 
 Partition is a connubial right common to both husband A wife 
 and wife, or one in which both are partners, because they "p her" 
 both participate in its fruit or advantages ; and if a wife night to 
 should release her husband from the duty to her, he has b ^ dj ^ 
 an option and may accept or decline availing himself of it. her co- 
 She may also bestow her right as a gift upon her husband no^ th . 
 or any other of his wives with his consent ; and if the gift out his 
 is to her husband he may spend the night wherever he 
 
 1 That is, it is proper, though not an incuniljent duty. See ante, 
 p. 84. 
 
86 
 
 MARRIAGE. 
 
 A gift by 
 a wife of 
 her time 
 to a co- 
 wife may 
 be re- 
 tracted, 
 
 Man not 
 bound to 
 keep pro- 
 mise to 
 give an 
 exchange 
 for wife's 
 time. 
 
 Infants or 
 mad wo- 
 men not 
 entitled to 
 partition. 
 
 A husband 
 cannot 
 visit any 
 of his 
 wives dur- 
 ing the 
 night of 
 another. 
 
 pleases ; but if she bestows it upon his other wives, he 
 must divide it between them ; while if she should give it 
 to one of them in particular, it must be devoted specially to 
 the donee. In like manner, if three of them should give 
 up their nights to the fourth, it is incumbent on him to 
 remain with her constantly and exclusively. 
 
 When a wife has bestowed her right on another with 
 the husband's consent the gift is valid, and she may retract 
 the gift, but not so as to give the retraction a retrospective 
 effect. The husband, therefore, is not bound to make up 
 to her for the past, though he is obliged to have respect 
 to her right for the future. Should she revoke without 
 informing him, he is not bound to make up for any nights 
 that may have passed previous to his becoming acquainted 
 with the revocation. 
 
 If a woman should ask anything in exchange for giving 
 up her right, and he should consent, is he bound to per- 
 form ? It has been said not, because this is a right which 
 does not admit of separate valuation, and the exchange 
 therefore is not valid. 
 
 An infant has no right to partition, nor has a woman 
 who is permanently mad, nor a nashizaJi, that is, one who 
 is in a state of rebellion to her husband, nor one who has 
 gone on a journey without her husband's permission ; so 
 as to lay the husband under any obligation on account of 
 what is past. 
 
 A husband is not entitled to visit one of his wives 
 during a night belonging to another, unless she be sick, 
 when it is lawful to visit her. Whether, if he spend the 
 whole night with her, he is bound to make up for it to 
 the other, is a question that has been answered in the 
 affirmative, because she has not obtained her night, and 
 also in the negative, because it is like a visit to a stranger; 
 and this view seems most agreeable to the principles of 
 law. If he should enter the chamber of another and 
 copulate with her, and then return to the wife whose night 
 it is, he is not bound to make up for such coition to the 
 wife whose turn is thus encroached upon, for coition is not 
 one of the rights of partition. 
 
NUSHOOZ, OR REBELLION. 87 
 
 When a man has oppressed his wife in the matter of Man 
 partition, he is bound to make up to her for any deficiency boi ' nci to 
 in her nights. to wife for 
 
 When a man has four wives, and one of them is deficienc y- 
 rebellious, and he then fixes a period of fifteen nights rebellious 
 in succession for each of his wives, 2 and he has fulfilled wife re- 
 their time with two of them, after which the rebellious her obedi- 
 one returns to her duty, he is obliged to fulfil her fifteen ence - 
 days to the third wife, and five to the one who was rebel- 
 lious, giving the latter one night and the other three 
 nights for five times in succession, by which means the 
 third wife will obtain her fifteen nights, and the rebellious 
 one her five, after which he reverts to the original measure 
 of partition between the whole four alternately. 
 
 If a man has two wives in different cities, and has Case of 
 remained with one of them for ten days, it is said that j^-gT^ 8 
 he should abide for the like time with the other. ent cities. 
 
 If a man should marry a wife, and before consum- Time for 
 
 mation should have to draw lots for one of his wives to cons . um " 
 
 rnation 
 
 accompany him on a journey, and the lot should fall upon must be 
 
 her, it is lawful for him, on his return, to make up to her to ^ e "^ 
 
 her appointed time, 3 for this does not enter into the if he has 
 journey, nor does a journey enter into partition. 
 
 gone on a 
 journey 
 before it. 
 
 Section Second. 
 Nushooz, or Rebellion. 
 
 Nuslwoz in law signifies a departure from obedience, Legal defi- 
 its original meaning being elevation or raising up. And 
 it may be exhibited on the part of the husband, as well 
 as that of the wife. 4 Should the symptoms of it appear On the 
 on the part of the wife, as, for example, when she frowns tomsa 
 in her husband's face, or appears languid and wearied in wife may 
 administering to his wants, or has otherwise changed her mon j s hed ■ 
 
 2 That is, with their consent. — See ante, p. 84. 
 
 3 See ante, p. 85. 
 
 4 A husband can hardly be said to be rebellious towards his wife ; 
 and perhaps " elated," or " overbearing," better expresses tbe mean- 
 ing ol the word in its application to both the spouses. 
 
88 MARRIAGE. 
 
 respectful behaviour towards him, he should first rebuke 
 
 or admonish her ; and if she persist in such behaviour, 
 
 he may then lawfully abstain from matrimonial converse 
 
 with her, by turning his back on her in bed, or, according 
 
 to some, totally banishing her therefrom ; but there is a 
 
 but not positive tradition in favour of the first opinion. It is not 
 
 beaten lawful for him to beat her until some positive instance 
 until some _ r 
 
 positive of nushooz, by refusing to obey him in some particular 
 
 a f t ?. *g" case in which he is entitled to a compliance with his will. 
 
 When that occurs even for the first time, he may lawfully 
 
 chastise her, but only so far as may afford a reasonable 
 
 hope of her returning to obedience, and by no means to 
 
 the extent of violent blows, or the effusion of blood. 
 
 How it is When nushooz appears on the part of the husband, by 
 
 to be depriving his wife of any of her rights, she may complain 
 
 when ex- to the judge, who should compel him to their observance. 
 
 hibited by ^ w if e? however, may abandon any of her rights, as her 
 
 band. right to partition or maintenance, in order to conciliate 
 
 her husband ; and he may lawfully accept the surrender. 
 
 Section Third. 
 Shekak, or Discord. 
 
 Etymo- This is derived from the word shuJc, which signifies to 
 
 the^word separate or divide, as if the spouses were in a state of 
 
 separation from each other. 
 When it When there is nushooz on the part of husband and 
 
 the^iudge w ife> an ^ reason to apprehend an actual rupture, the judge 
 should ap- should appoint two umpires, one from among the relatives 
 persons to °f the husband, and the other from among those of the 
 arbitrate wife, to decide as may be best in the case. It is lawful, 
 the however, that these umpires be not of the family of either, 
 
 parties. or tlaat one of them be of the family of one party, and the 
 other a stranger to both. These persons should, accord- 
 ing to the most authentic doctrine, be sent, not merely as 
 agents, but with powers to decide between the parties as 
 judges. If they agree as to measures of accommodation, 
 they can give them effect without reference to the consent 
 of the parties. Except that, though the umpires should 
 
SHEKAK, OR DISCOKD. 89 
 
 agree as to the necessity of a separation between them, 
 this cannot be effected without the husband's consent, if it 
 is to be by a tuldh or a divorce ; or without the wife's 
 agreeing to a compensation, if it is to be by Jchoold or 
 release. 
 
 When the umpires have been sent by the judge, and Who may 
 the parties, or either of them, refuse to appear before t ^eab- m 
 them, some are of opinion that judgment cannot be sence of 
 given, as it would be against an absent person. But it t } c e s P a r r the 
 were better to say that it can be given, for it is limited to refusal of 
 what is for the good of the parties, and actual separation appear be- 
 is made dependent on their own permission. fore them. 
 
 Whatever is stipulated for, or directed by, the umpires, Their 
 
 must be lawful, or otherwise it may be dissolved or can- decision 
 ' J . must be 
 
 celled. If a husband should prevent the wife from exer- according 
 
 cising any of her rights, or should render her jealous by t0 law> 
 
 taking another wife, and she should in consequence expend 
 
 something on her husband as an inducement to him to 
 
 grant her a Jchoold, or release such concession on her 
 
 part would be valid, and not be considered compulsory. 
 
90 
 
 MARRIAGE. 
 
 CHAPTER VII. 
 
 OF LAWS RELATING TO CHILDREN. 
 
 Three de- 
 scriptions 
 of chil- 
 dren. 
 
 Children 
 born 
 under a 
 contract 
 of per- 
 manent 
 marriage 
 belong to 
 their 
 mother's 
 husband, 
 on three 
 condi- 
 tions. 
 
 Which are 
 indispen- 
 sable. 
 
 Section First. 
 
 Of the Establishment of Parentage. 
 
 Children are of three descriptions : children by wives ; 
 children by slaves ; and children by women enjoyed under 
 a semblance of right. 
 
 With regard to the first : — All children born under a 
 contract of permanent marriage appertain to the husband, 1 
 upon condition of coition and the lapse of not less than six 
 months 2 nor more than the longest period of gestation from 
 the time of its occurrence till the birth of the child. That 
 period is nine months, according to the most common 
 opinion ; but some of our doctors have extended it to ten 
 months, and this is considered to be good 3 or correct. 
 Others, again, have gone so far as to extend the period to 
 a year ; but their opinion is now exploded or abandoned. 4 
 
 The conditions above mentioned are indispensable. 
 So that if there has been no coition there can be no 
 
 1 It would seem, from what has been said at pp. 14, 43, that 
 children born under a temporary contract also belong to the husband. 
 
 2 This appears to be the shortest period of gestation in the human 
 species, by the unanimous consent of all Moohummudan lawyers. 
 See D., p. 393. 
 
 * Husun. See ante, p. 2, note 6 . The author of the Shwaya 
 is supported in this respect by the Sheikh, in his Mubsoot, and by 
 Allamee. 
 
 4 The Hanifites extend the period to two years, on the faith, of a 
 tradition by Ayesha of a saying of the Prophet. — D., p. 393. 
 
LAWS RELATING TO CHILDREN. 91 
 
 affiliation of the child to the woman's husband ; and though 
 such has taken place, yet if the woman be delivered, at less 
 than six months from its occurrence, of a perfect and living 
 child ; or if both the parties should concur in declaring that 
 its birth has happened at more than nine or ten months 
 from the time of coition ; or this fact can be established by 
 the husband's absence from his wife longer than the longest 
 period of gestation : in none of these cases can the child of 
 which she has been delivered be affiliated to her husband, 
 nor can he lawfully claim it as his own. But, on the other 
 hand, where all these conditions are found, though an 
 adulterer should have done wickedly with the wife, yet 
 her child belongs of right to her husband, and cannot be 
 repudiated by him, otherwise than by lidn or imprecation ; 
 for an adulterer cannot be legally the father of a child ; 5 
 and if married parties differ as to the fact of coition or the 
 birth of the child, a preference must be given to the word 
 of the husband when confirmed by his oath. With coition 
 and expiration of the shortest period of pregnancy, or 
 delivery just at six months from the act, it is unlawful for 
 the husband to deny his parentage, on suspicion of the 
 mother's misconduct, or even though he should know her 
 with certainty to have committed adultery ; and if he 
 should deny her offspring to be his child, its parentage as 
 from him cannot be rescinded in any other way than by 
 going through the process of lidn. 
 
 If a man should divorce his wife, who thereupon observes Case of a 
 an iddut or period of probation, and gives birth to a child dlvorced 
 
 11 & woman 
 
 within the longest period of pregnancy from the date of the bearing 
 
 divorce, such child belongs to him, if its mother has not been ^j^ the 
 
 intermediately enjoyed by another man under a contract of longest 
 
 marriage or a semblance of right. But if a man should Juration 
 
 have carnal intercourse with a woman, get her with child, from the 
 
 and then marry her ; or, if the woman being a slave, he divorce. 
 
 should subsequently marry her, in neither of these cases 
 
 can the child be lawfully affiliated to him. 
 
 It is incumbent on a husband to acknowledge the child , A e,lll<1 
 
 ° born in 
 
 5 See ante, p. 14. 
 
92 
 
 MARRIAGE. 
 
 wedlock 
 cannot be 
 rejected 
 by the 
 husband 
 of its 
 mother, 
 otherwise 
 than by 
 lidn. 
 
 Case of a 
 divorced 
 woman 
 bearing 
 a child 
 within the 
 shortest 
 period of 
 gestation 
 from the 
 date of the 
 divorce. 
 A man 
 who has 
 had con- 
 nection 
 with his 
 female 
 slave 
 should 
 acknow- 
 ledge her 
 offspring, 
 if born in 
 due time ; 
 but may 
 reject its 
 parentage 
 without 
 lidn. 
 
 How the 
 parentage 
 of a child 
 borne by a 
 slave, the 
 
 of his wife when he admits that he has had conjugal 
 intercourse with her, and that the child has been borne 
 by her ; and if he should deny the child his denial is of 
 no avail to the rescinding of its parentage, unless he goes 
 through the process of lidn. And the same rule holds 
 good though the parties should differ as to the period 
 between the birth of the child and the date of their 
 intercourse. 
 
 When a man has divorced his wife, who, after observing 
 an iddut, has married again, or has sold his female slave, 
 who is subsequently enjoyed by the purchaser, and the 
 woman in either case gives birth to a child at less than six 
 months from the divorce or the sale, the child belongs to 
 the first husband, or the seller ; whereas, if it is born at 
 six months or more from these respective dates, it belongs 
 to the second husband, or the purchaser. 
 
 With regard to children by slaves : — If a man has con- 
 nection with his female slave, who produces a child at six 
 months or more from the date of coition, he is bound to 
 acknowledge the offspring as his own ; but if he reject or 
 deny the parentage lidn or imprecation cannot be required 
 of him, and judgment must be given in favour of his rejec- 
 tion on the outward appearance of the case. If, however, 
 he should subsequently acknowledge the child, that would 
 establish its parentage. When a slave has been enjoyed 
 by her master, and also by a stranger, her child must be 
 decreed to the master; and if she should be transferred 
 to several owners successively, each of whom has carnally 
 enjoyed her, the offspring is in this case to be adjudged to 
 him in whose possession she is at the time of its birth, 
 provided that it take place at six months or more from the 
 date of his intercourse with her, otherwise it belongs to the 
 next antecedent proprietor, should the delivery correspond 
 to his connection with the mother ; and if not, to the next 
 preceding, and so on. 
 
 If a slave, being the joint property of several persons, 
 is carnally enjoyed by each of them, and is delivered of a 
 child, who is claimed by them all, the parentage must be 
 decided by drawing lots, and he who is thus established as 
 
LAWS RELATING TO CHILDREN. 93 
 
 the father must make good to all the other proprietors property 
 
 their shares as well in the value of the mother as of the several 
 
 partners 
 
 child on the day of its being born alive. If one only of who have 
 them should claim the child, it is to be affiliated to him, f 0V ed"her 
 and he becomes liable to the others for their shares in the is to be de- 
 value of the mother, and of the child, which he cannot 
 reject on the pretence of izl. e 
 
 If a person has had connection with his female slave The child 
 who is wickedly enjoyed by another, the offspring apper- belongs to 
 tains to her master. If at its birth there should appear her master 
 no traces of resemblance between him and the child, but she £ as 
 on the contrary there is strong reason to confirm his been 
 suspicion that the child is not his, it has been said that enjoyed 
 he cannot properly either acknowledge or deny the child, by another 
 but should bequeath something to it, and not give it a 
 claim to inheritance with his children. This opinion, how- 
 ever, is liable to some doubt arid difficulty. 
 
 With regard to children begotten under a semblance Cases of 
 of right : — If a man should erroneously cohabit with a begotten 
 stranger, supposing her to be his wife or his slave, and under a 
 she should produce a child, its parentage is established in of™^ 06 
 him. The same is the law when a person has erroneously 
 had carnal connection with the slave of another, but in 
 this case the father is liable to the mother's master for 
 the value of the child at the period of its being born alive. 
 
 If a man, supposing a woman to be unmarried, or a 
 widow, or divorced from her former husband, should enter 
 into a contract of marriage with her, and it should after- 
 wards appear that the former husband was not dead, or 
 had not divorced her, the woman must be restored to her 
 first husband, after observing an iddut on account of 
 her connection with the second ; but her child, if she is 
 pregnant, belongs exclusively to the second, subject to 
 the conditions formerly mentioned, whether she acted, in 
 the matter of the supposed death or divorce, on the decree 
 of a judge, or the information of a single person, or the 
 testimony of witnesses. 
 
 See ante, p. 43. 
 
94 
 
 MARRIAGE. 
 
 Section Second. 
 
 A wife is 
 not bound 
 to suckle 
 her child, 
 and may 
 lawfully 
 demand 
 hire from 
 her hus- 
 band for 
 doing so. 
 
 But a 
 slave may 
 be com- 
 pelled by 
 her master 
 to suckle 
 her child. 
 
 A child 
 should be 
 suckled 
 for two 
 years. 
 
 A mother 
 has a pre- 
 ferable 
 right to 
 the suck- 
 ling of her 
 child, 
 when will- 
 ing to do 
 it on the 
 same 
 terms as 
 another 
 woman. 
 
 Of the Suckling 7 and Custody 8 of Children. 
 
 A mother is not bound to suckle her child, and may 
 lawfully demand hire for doing so. If she has been irre- 
 vocably divorced from the father, it is positively incumbent 
 on him to hire her for the purpose. But some of our 
 doctors have maintained that he is under no such obliga- 
 tion if the mother be still his wife ; and it does not appear 
 to be a positive duty, though it is quite lawful to hire her 
 for the purpose in such circumstances. A master may 
 compel his slave to suckle her child. The hire for suckling 
 an infant should be paid by the father out of his own 
 pocket when the infant has no property of his own. And 
 the mother may either suckle the child herself, or employ 
 another nurse for the purpose, retaining the hire. 
 
 The time during which an infant should be suckled is 
 two years, though it may be shortened to one year and ten 
 months : but a further reduction of the time is unlawful, 
 and an act of oppression or cruelty to the child. It may, 
 however, be lawfully prolonged for a month or two beyond 
 the two years ; though the father is not liable for the hire 
 of any excess over the two years. 
 
 A mother has a preferable right to the suckling of her 
 own child when she demands no more than another is 
 willing to do it for. But if her demand is greater than 
 the other woman's, the father may remove the child from 
 its mother, and deliver it to the other. So also if a 
 stranger should offer to suckle the child gratuitously, the 
 mother has a preferable right on the same terms ; but if 
 she is not satisfied to suckle it gratuitously, the father is 
 in like manner at liberty to deliver it to the other. » When 
 the father claims that he had found a woman who was 
 willing to suckle the child gratuitously, and the mother 
 denies the fact, his word is to be preferred, because he is 
 removing a liability from himself. This, however, is subject 
 
 7 Arab., Rizaa. 
 
 8 Hizunut. 
 
LAWS RELATING TO CHILDREN. 95 
 
 to some doubt ; and it is certainly becoming and more 
 
 proper that an infant should be suckled on the milk of its 
 
 own mother. 
 
 With regard to the custody of the child, the mother has The cus- 
 
 certainly a preferable right during the whole time of suck- ^ndbe- 
 
 ling (that is, two years), whether the child be male or longs to 
 
 female ; provided that she is free, and of the Mussulman t hertill 
 
 faith, — for a slave or an infidel can have no right to the the child 
 
 custody of an infant, with a Mooslim. 9 After the child has 
 
 been weaned the father has a preferable right to its custody the cus- 
 
 if a male, and the mother if a female, until the child has tod y of a 
 
 attained the age of seven years, or ten, according to some ; child, 
 
 while others maintain the mother's right to the custody of a untl } lfc ^ as 
 
 female child till she marries. The first opinion, however, the age of 
 
 is more agreeable to traditional authority, and the father seven - 
 ° J years, be- 
 
 is then entitled to her custody. If the mother should longs to 
 
 enter into another marriage, her right to the custody of i father, 
 
 either male or female child at once drops, and the father female, 
 
 has a preferable right to the custody of both. But if he mother 
 
 should die, the mother has a preferable title over his After 
 
 executor to the custody of both the children. So also if seven 
 
 the father be a slave or an infidel, the mother has a pre- complete, 
 
 ferable claim to the custody of a child, whether male or ! he ia } her 
 
 , is entitled 
 
 female, even though she should have entered into a second to the 
 
 marriage. If, however, the father should be emancipated, c » s )°^7 
 
 he has all the rights of a free man, and the custody of his 
 
 children among them. 
 
 When both the parents of a child are dead, his or her The cus- 
 
 custody belongs to the father's father ; and, failing him, it c °iUd°b th 
 
 has been said that the custody belongs to the relatives in of whose 
 
 the same order as they are entitled to inheritance. But ^ re deacl> 
 
 this is liable to doubt. According to the Sheikh, to whom belongs to 
 
 its father's 
 God be merciful, when there are both a sister on the father's f at her. 
 
 side and a sister on the mother's, the custody of the infant 
 
 belongs to the former, because she has the larger share of 
 
 the inheritance. But there is a doubt of the preference in 
 
 this case, arising from the fact that they are both equal 
 
 9 That is, I think, the father being a Mooslim, 
 
96 MARRIAGE. 
 
 in degree ; and the same remark applies to his preference 
 
 of the paternal to the maternal grandmother. Further, 
 
 he has said with regard to a grandmother and sister, that 
 
 the former is to be preferred because she is a mother. But 
 
 he has said, with regard to the combination of a paternal 
 
 and maternal aunt, that their rights to the custody of an 
 
 infant are equal ; and that when there is a combination of 
 
 persons equal in degree, as in the case just mentioned, the 
 
 right to the infant's custody is to be determined by casting 
 
 lots between them. 
 
 In connection with what has been said of the suckling 
 
 and custody of infants it is to be observed :— 
 
 Mother First. When a mother demands more than another 
 
 loses her WO man for suckling her child, the father may, as already 
 
 right to P . 1 ji • 
 
 the cus- mentioned, deliver it to a stranger ; but there is some 
 
 i° dy hifl doubt as to the mother's losing her right to the custody 
 
 while it is of the infant in that case. The better opinion, however, 
 
 suckled by seems ^ De that she does forfeit her right. 
 
 p not iicr 
 
 woman. Second. When a child has attained to puberty 10 and 
 
 Effect of discretion, the power of the parents is at an end ; and he 
 
 on the 7 i s ^ ree to J " 1 hi mse lf to whomsoever he pleases, 
 
 authority Third. When a woman marries, she loses the right to 
 
 o paren s. ^ e custody of her child. If she is divorced reversibly, 
 
 by mar- ' matters remain as before ; but if the divorce is irreversible, 
 
 riage, though there is some difference of opinion as to the revival 
 
 losos the 
 
 custody of of her right, it seems more reasonable to say that it does 
 her child. rev [ ve { n that case. 
 
 10 Puberty is established by natural signs, which it is unnecessary 
 to mention, or by age, which is fifteen years in males, and nine in 
 females [Im. D., p. 308 ; Shuraya, p. 193). According to the Hanifites, 
 the age for both, in the absence of the natural signs, is fifteen years. 
 This is on the authority of the two disciples, and also of Aboo Huneefa 
 himself by one report; and the futioah, or judicial decision, is in 
 accordance with it — (Kafee, as cited in the Kifayah, vol. iii. p. 845, and 
 adopted by the Fut. Alum, vol. v. p. 93). There are, however, other 
 reports of sayings by Aboo Huneefa, which extend the time for males 
 to eighteen and nineteen years. It seems to be agreed by all the 
 Hanifites that no one can be adjudged an adult before twelve years 
 if a boy, or nine if a girl, though the party should claim to be so, or 
 the natural signs are present. {Fut. Al. ibid.) 
 
( 97 ) 
 
 CHAPTER VIII. 
 
 OF MAINTENANCE. 1 
 
 There are only three grounds of liability for maintenance, Three 
 viz. Zowjeeut, or the relation of a husband to his wife ; ^ oun ? s 
 Kurabut, or relationship by blood ; and Milk, or property, tenance. 
 
 Section First. 
 Of the Maintenance of Wives. 
 
 This involves the consideration of its conditions, quan- 
 tity, and appendages. 
 
 The conditions under which maintenance is due by a Condi- 
 husband to his wife, are two in number : — 1st, a permanent tl01 ? s 
 contract of marriage ; and 2nd, tumkeen, or such a placing which a 
 of herself by the wife in the power of her husband as to W1 f? t] is d 
 allow of his free access to her at all times ; for, if his mainten- 
 enjoyment of her is restricted to any particular time or ance " 
 place, to the exclusion of all others, there is no tumkeen. 
 There is some doubt as to one of these conditions being 
 sufficient of itself without the other ; and, according to 
 that opinion of our masters, which seems most agreeable 
 to traditional authority, tumkeen is indispensable to the 
 husband's liability. Consequently, it is necessary that the 
 wife should not be too young for conjugal intercourse. It 
 makes no difference whether the husband be a minor or 
 adult. The Sheikh, indeed, has said that a wife, though 
 adult herself, is not entitled to maintenance if the husband 
 has not also attained to puberty. But there is a difficulty 
 in the case, arising from the fact of the tumkeen being 
 complete on the part of the wife ; and the better opinion 
 seems to be in favour of the husband's liability. He is 
 
 1 Nufukat, pi. of nufukut. 
 PART II. H 
 
98 
 
 MARRIAGE. 
 
 The right 
 not af- 
 fected by 
 her under- 
 taking a 
 journey 
 with his 
 permis- 
 sion, or 
 without it, 
 in per- 
 formance 
 of an in- 
 cumbent 
 duty. 
 
 A di- 
 vorced 
 wife enti- 
 tled to 
 mainten- 
 ance, if 
 the di- 
 vorce be 
 revocable ; 
 otherwise 
 when irre- 
 versible, 
 unless she 
 is preg- 
 nant. 
 
 Doubt 
 as to a 
 widow's 
 
 also liable though she should be sick or afflicted with a 
 malformation of the generative organs obstructive to con- 
 nubial intercourse. 2 
 
 A husband's liability for the maintenance of his wife 
 is not suspended while she is on a journey, provided that 
 it was undertaken with his permission, or in performance 
 of some incumbent duty, such as the hujj or pilgrimage. 
 But if the duty was voluntary or self-imposed, and she has 
 departed without his permission, he is under no obligation 
 to maintain her during her absence. Where, again, she 
 has betaken herself to prayer, or fasting, or religious retire- 
 ment, he is obliged to maintain her, though she should 
 have done so without first asking his permission, because 
 it is always in his power to cancel or put a stop to that 
 by recalling her to her duties. If, however, she should 
 persist in such conduct, in opposition to his wishes, that 
 would amount to an act of nushooz or rebellion, for which 
 he would be quite justified in stopping her maintenance. 
 
 A woman revocably divorced is entitled to maintenance 
 in the same way as a wife is entitled to it. But a woman 
 absolutely separated from her husband loses all right to it, 
 whether the separation has been induced by an irreversible 
 divorce or by a cancellation of the marriage. If she be 
 pregnant, however, his obligation to maintain and provide 
 her with a residence continues until her delivery. But 
 here, according to the Sheikh, the maintenance is due, 
 not on account of herself, but of the foet us in her womb. 
 Hence, it would follow that, if a freeman should marry a 
 slave, under a condition with her master that the offspring 
 shall be slaves; or a slave should marry either a free 
 woman or a slave under a like condition with his own 
 master that the offspring shall be slaves ; and the women 
 were divorced, being pregnant at the time, there would be 
 no liability for maintenance on the part of the husband in 
 either case. On the other hand, a pregnant widow would 
 be entitled to maintenance till the birth of her child. But 
 
 2 Kurn and Hutuk are the particular deformities mentioned, for 
 which see ante, pp. 60, 61. 
 
MAINTENANCE OF WIVES. 99 
 
 with regard to her, there are two reports ; according to one title to 
 
 of which, and that the most common or generally received, ™", int f n " 
 
 & J 5 ance, even 
 
 she has no title whatever to maintenance ; and the other, though 
 that she must be maintained out of the child's share in his Levant 
 father's inheritance. 
 
 In respect of maintenance, there is no distinction between Zvmmeeah 
 a wife that is a Mooslimah and one that is a Zimmeeah, or w i ves en _ 
 infidel subject, or between one that is free and one that is titled to 
 a slave, all being alike entitled to it. ance- 
 
 As to the quantity of maintenance, the standing rule is Quantity 
 that it should be determined by the woman's requirements in te ^^'. 
 respect of food, condiments, clothing, residence, service, and 
 implements for anointing, 3 a due regard being also had to 
 the custom of her equals among her own people in the same 
 city. According to some of our doctors, the proper quantity in respect 
 of food is a moodd for high and low, without any distinction 
 between the wife of a poor and a rich man ; but, according 
 to others, whose opinion is more reasonable and generally 
 preferred, there is no fixed quantity of food, and the woman 
 should have as much as is necessary. Service is to be in respect 
 regulated by what has been usual with the woman herself. 
 If she is of the class of persons who are usually served by 
 others, she must be provided with a servant ; otherwise, 
 she must serve herself. In the former case, it is optional 
 with the husband to maintain her own servant if she has 
 one, or to buy or hire one for her, or to serve her him- 
 self, for that is sufficient. And even though she should be 
 one who has not been accustomed to have a servant, yet, in 
 the event of sickness, she must be provided with one, from 
 a regard to what is customary in such cases. In no case 
 is her husband obliged to provide her with more than 
 one servant, even though she should be a person of rank. 
 Condiments and dress are to be regulated by what is cus- in respect 
 tomary among the woman's equals in the same city. The mente 1_ 
 same rule is applicable to residence ; but the woman may dress, and 
 demand, and is entitled to, a separate apartment for her- 
 
 3 This is a literal rendering of the word, but in common parlance 
 it means, I believe, adorning generally, and includes a comb, looking- 
 glass, &c. 
 
 H 2 
 
100 MARRIAGE. 
 
 self, free from any companionship but that of her husband. 
 With regard tp dress, she has a right to something addi- 
 tional in winter, such as a cloak for warmth when awake, 
 and a quilt, for the like purpose, when asleep — the kind and 
 quality of both to be regulated by what is usual among her 
 equals ; and, if she belong to the higher orders of society, 
 she should have something better than the dress in ordinary 
 wear, equalling in splendour the dresses of women of the 
 like rank in life. 
 Appen- Of appendages the most important are comprised in the 
 
 ages ' following cases : — 
 
 Husband First. If a woman should say, " I will take the allow- 
 
 obWed ance ^ or a servain \ an d serve myself," the husband is not 
 to let wife bound to comply ; and if she should actually proceed to do 
 self^ancT wna ^ * s necessary for herself in the way of service, without 
 also allow waiting for his permission, he is not bound to pay what she 
 servant. ma y demand °f mm on that account. 
 A wife is Second. A wife, when she has placed herself in the 
 
 entitled to power of her husband, is entitled to her maintenance day 
 arrears of , , _ . , 
 
 mainten- D y day? and it he retuse to give it, and the day passes, her 
 
 *\ nce ' right is confirmed ; and so on for other days in succession, 
 
 the though the judge should never have fixed the amount, nor 
 
 amount ma de any order in her favour. 4 If when the husband has 
 
 should not J 
 
 have been agreed to pay her periodically, he has delayed to do so, and 
 
 fixed b USly ^ ie wno ^ e P er i°d has passed, she being all the while within 
 
 judge. his power, she is fully entitled to the maintenance for that 
 
 period, and for any excess during which she has maintained 
 
 herself out of other means. So also she is entitled to a new 
 
 dress, if the time has passed during which the former 
 
 should have lasted. If, on the other hand, he has paid 
 
 her maintenance in advance for a stipulated period, and 
 
 divorces her before its expiration, he is entitled to demand 
 
 back from her a proportionate part of the maintenance for 
 
 the unexpired period, 5 excepting only maintenance for the 
 
 day on which the divorce is pronounced. The same rule 
 
 4 According to the Hanifites, arrears of maintenance cannot be 
 recovered, unless it has been fixed by agreement or a judicial decree. 
 — D., p. 443. 
 
 5 This is opposed to the Hanihte doctrine. — D., p. 444. 
 
MAINTENANCE OF WIVES. 101 
 
 is applicable to any dress which he may have given to her 
 
 in advance. 
 
 Third. When consummation has taken place, and the A wife 
 
 woman has remained with her husband eating and drinking cons ' um . 
 
 at his table, she has no right to make any demand for the mation, 
 
 time during which she has thus continued to live with to live and 
 
 him. If the marriage has not been consummated, and board 
 
 with, her 
 some time has passed without her making any demand husband, 
 
 on him for maintenance, he is not obliged to render it, not e , n " 
 
 -i • i ii 7-i i o titled to 
 
 according to those who say that twmkeen is the ground of demand 
 
 the husband's liability, or a condition of it, for he may have main< jen- 
 no certainty of obtaining full power over her if he should the same 
 demand it. time - 
 
 As a consequence of this view of tumkeen, it follows Some con- 
 that if a husband should be absent, and his wife should of^"f es 
 appear before the judge offering to place herself within the being a 
 power of her husband, he would not be liable for her main- condition 
 tenance till apprised of the offer, and the lapse of a suffi- of main- 
 cient time for his coming to her, or sending an agent, with 
 the actual surrender of herself to him or the agent. If 5 
 when informed of her offer, he should be in no haste to 
 send an agent or come himself, still his liability would 
 drop for the time necessary for the journey, and he would 
 be bound only for the excess. So also, if she were contu- 
 macious, and should return to obedience, he would not be 
 liable for her maintenance till informed of her submission, 
 and the lapse of a sufficient time to allow of his own coming 
 to her or sending an agent. If a wife should apostatize 
 from the faith of Islam, her right to maintenance would 
 cease ; but it would immediately revive if she should return 
 to the faith, though her husband were absent ; for the 
 apostasy which was the cause of its abatement has ceased 
 to exist. It would not be so in the case of nushooz, or 
 contumacy, for by that she actually passes out of subjection 
 to her husband, and her right to maintenance does not 
 revive till he has again received possession of, or power 
 over her. 
 
 Fourth. When a woman, absolutely separated from her Allegation 
 
 of pre *- 
 husband, alleges that she is pregnant, maintenance must nancy on 
 
102 
 
 MARRIAGE. 
 
 the part of 
 a divorced 
 woman. 
 
 A debt due 
 by wife to 
 husband 
 may be 
 set. off 
 against 
 her main- 
 tenance, 
 if she is 
 in good 
 circum- 
 stances. 
 
 Mainten- 
 ance of a 
 wife has 
 prece- 
 dence over 
 that of 
 relatives. 
 
 be rendered to her day by day until her delivery. But if 
 it should turn out that she was not with child, she must 
 restore whatever she may have received. And no woman 
 absolutely separated from her husband, except one who 
 has been divorced and is pregnant, has any right to main- 
 tenance. The Sheikh, however, maintains, as already ob- 
 served, that every pregnant woman is entitled to it, though 
 at the expense of the child in her womb. 
 
 Fifth. When the husband has a debt against his wife, 
 he may set it off against her maintenance, day by day, if 
 she is in good circumstances ; but it is not lawful for him 
 to do so if she is indigent, as debts are payable only out of 
 the surplus that may remain over one's own food. Yet if 
 the wife is content, there is no objection to his making 
 the set-off. 
 
 Sixth. The maintenance of a wife has precedence over 
 the maintenance of relatives ; so that the surplus over the 
 husband's food is first to be expended on his wife, and 
 never to be applied to relatives unless there is a reserve 
 over what is sufficient for her maintenance, because her 
 maintenance is in the nature of an exchange for her sub- 
 jection to his will, and is established as a debt against him. 
 
 Who are 
 liable for 
 mainten- 
 ance. 
 
 Section Second. 
 
 Of the Maintenance of Relatives. 
 
 Parents and children are together liable for a person's 
 maintenance. With regard to the fathers and mothers of 
 parents, there is some doubt as to their liability ; but it is 
 most agreeable to traditional authority to say that they 
 also are liable. Beyond the two pillars, that is, ascendants 
 and descendants, the liability does not extend to any other 
 relatives, such as brothers and sisters, or uncles and aunts 
 paternal or maternal, though it is becoming and proper 
 for a person to maintain them also, 6 particularly when he 
 is one who would inherit from them. 
 
 6 According to the Ilanifites, the liability extends to all relatives 
 within the prohibited degrees. — D., p. 463. 
 
MAINTENANCE OF RELATIVES. 103 
 
 Poverty is a condition of the right to maintenance. Condi- 
 But is inability to earn anything by one's own exertions j^r^ht 
 also a condition ? It is more agreeable to traditional to main- 
 authority to answer this question in the affirmative ; for tenance 
 maintenance is measured by necessity, and one who is able 
 to earn anything for himself cannot be said to be necessi- 
 tous. It is not necessary, however, to have a judge's 
 order or decree pronouncing the poverty or inability of 
 the recipient. And though he should be profligate in his 
 manners, or an infidel, he does not thereby forfeit his right 
 to maintenance. It is otherwise if he be a slave, for then 
 his master would be bound to maintain him. 
 
 Ability on the part of the Moonfik or maintainer is a Condi- 
 condition of the liability to maintenance. When he has a ^ on 1 s . 
 surplus over what is necessary for himself, it is first to be bility to 
 applied to the sustenance of his wife, and then if there is mainten " 
 anything over, to the support of his parents and children. 
 There is no fixed quantity for the maintenance of relatives, 
 any more than of wives, the criterion being what is necessary 
 in respect of food, clothes, and residence, with something 
 extra for clothing in winter, such as a cloak for warmth 
 while awake, and a quilt for sleeping. Abstinence from 
 what is unlawful or indecorous, is not necessary on the 
 part of the person to whom maintenance is due. 
 
 Maintenance is due to a person's father, but not to the Mainten- 
 father's children, for these are in the relation of brothers due e to°the 
 and sisters to the maintainer. But it is due to a person's children 
 children, and their children, for the latter are also the f at he r S 
 children of the maintainer. 
 
 A person is not bound to repay what may have been Arrears of 
 
 laid out bv another on his maintenance ; for maintenance mainten " 
 J , . ance not 
 
 is limited to necessities, and does not constitute a debt recover- 
 against the maintainer, even though the judge should 
 have actually fixed its amount. True, that if the judge 
 should have authorised the person entitled to maintenance 
 to borrow on the credit of the maintainer, the amount so 
 borrowed is a debt against the latter, which it is obligatory 
 on him to discharge. 
 
 The maintenance of a child is incumbent first on its °^ e F m 
 
 which 
 
104 
 
 MARRIAGE. 
 
 relatives 
 are liable. 
 
 When the 
 main- 
 tainer 
 has only 
 enough for 
 one of two 
 relatives, 
 it must be 
 divided 
 between 
 them. 
 A person's 
 father and 
 son are 
 equally- 
 liable for 
 his main- 
 tenance. 
 A person 
 liable for 
 mainten- 
 ance may 
 be com- 
 pelled by 
 imprison- 
 ment, or 
 sale of his 
 property, 
 if still 
 recusant. 
 
 father. Failing him, or in the event of his poverty, it is 
 incumbent on the father's father how remote soever in 
 ascent. Failing these, it is the duty of the mother, and 
 in the event of her death or poverty, it is the duty of her 
 father and mother how high soever. The nearer in all 
 cases is liable before the more remote, and with equality 
 of degree they are all partners in the liability. 
 
 When a person has both parents equally in need of 
 maintenance, and a surplus over what he requires for 
 himself sufficient for only one of them, he should divide it 
 between them equally. So also he should make an equal 
 division between a son and a parent. But when he has a 
 father and grandfather, or a mother and a grandmother, 
 the whole must be given to the immediate parent. 
 
 When a man has a father and grandfather both in 
 good circumstances, the father is liable for his maintenance 
 exclusively of the grandfather. But if he has a father and 
 son in good circumstances the liability falls upon them 
 equally. 
 
 When there is a delay in the delivery of maintenance, 
 the judge should compel the person who is liable for it, 
 and if he is still recusant may imprison him. Further, the 
 maintenance may be taken out of his property ; or if he 
 has only goods or land, they may be lawfully sold, for the 
 maintenance is a debt against him. 7 
 
 Section Third. 
 
 How 
 
 slaves are 
 
 Of the Maintenance of Slaves and of Beasts* 
 
 The maintenance of these is incumbent on their 
 proprietors. 
 
 With regard to slaves both male and female, their master 
 
 7 Yet it has been said above that it is not a debt ; — but there the 
 reference is to arrears, which are not a debt, because maintenance to 
 a relative is due only in case of necessity, and the necessity, if there 
 ever was any, is now past, the relative having been able to maintain 
 himself. 
 
 8 Buheemah — a quadruped, or every animal without distinction. 
 — (Freytag). 
 
MAINTENANCE OF SLAVES. 105 
 
 may maintain them out of his own means, or out of the to be 
 earnings of the slave. The quantity of maintenance is not j^^ 
 fixed, but should comprise a sufficiency of food, condiments, 
 and clothing, the quality being regulated by what is usual 
 in the families of masters of like means among the people of 
 the same city. In this respect no difference is to be made 
 between the absolute slave, the moodubbur and the oom-i- 
 wulud. With the slave's consent, the master may send him 
 out to work for himself, fixing an amount which he is to 
 render to the master, and leaving him to take the surplus 
 for himself. But in no case is it lawful to fix a sum 
 exceeding the slave's earnings ; and which will not leave a 
 surplus sufficient for his maintenance. 
 
 With respect to beasts, whether fit for food or not, How 
 their owners must supply them with a sufficiency of t Q^ e s are 
 pasturage or of dry food, and if they neglect to do so, may treated, 
 be compelled to sell, or slaughter them if kept with that 
 design, or to feed them properly. If the animal has a 
 young one, it must be allowed a sufficiency of its mother's 
 milk until it is fit for pasturage, or other food, when the 
 milk may be lawfully taken by the owner. 
 
BOOK II. 
 
 OF DIVORCE. 
 
 tions : 
 Puberty ; 
 
 CHAPTER I. 
 of tulak or repudiation. 
 
 Section First. 
 Its Pillars. 
 
 These are four in number; of which the first is the First 
 Mootullik, or Repudiator ; and in him four conditions Rep^j. 
 are required. ator - 
 
 The first condition is puberty. No regard whatever is Condi- 
 to be had to the words of a boy under ten years of age. 1 
 "With respect to one who has attained to that age with 
 understanding, and repudiates his wife according to the 
 soonnut, or traditions, there is one report that the repu- 
 diation is legal, but the report is not well authenticated. 
 And if the guardian of such an one should take upon him 
 to repudiate the wife of his ward, there is no doubt that 
 the act would be invalid, because the right to repudiate 
 belongs exclusively to a husband ; and the inhibition which 
 the law imposes on a minor is one which in the natural 
 course of things will soon be removed. If, however, a 
 minor should attain to puberty and be deficient in under- 
 standing, his guardian is not debarred from exercising 
 the right of repudiation on his behalf when it is advisable 
 with a due regard to his interests ; and though some of 
 our doctors have forbidden the exercise of the guardian's 
 
 1 See ante, p. 4. 
 
108 
 
 DIVORCE. 
 
 Under- 
 standing ; 
 
 Free-will : 
 
 Intention. 
 
 authority in such circumstances, yet their opinion has not 
 been generally received or adopted. 
 
 The second condition is understanding ; aud repudiation 
 by an insane person is not valid. It is likewise invalid 
 when pronounced by one in a state of intoxication, or who 
 has lost the use of his faculties by temporary stupor, or 
 drinking a narcotic, as there can be no real intention in such 
 cases. Nor can a guardian repudiate on behalf of a person 
 in a state of intoxication, because the cause which prevents 
 his own exercise of the power is likely soon to be removed, 
 and he is for the time like one asleep. But a guardian 
 may repudiate for an insane person ; and if he has no 
 guardian, the Sultan or ruler, or any person to whom he 
 may have delegated the superintendence of such matters, 
 may repudiate on behalf of the insane person. 
 
 The third condition is choice, or free-will ; and repu- 
 diation by a person under compulsion is not valid. 2 But 
 three things are necessary to the establishment of com- 
 pulsion. The compeller must be able to do what he 
 threatens. There must be strong ground to apprehend 
 that he will do what he threatens if compliance with what 
 he desires is refused. The threat must involve some 
 serious injury to the person under compulsion, or to some 
 one dear to him as his own soul, such as a father or a 
 child. It makes no difference whether the threat be of 
 death, or wounding, or abuse, or beating. But in esti- 
 mating the quantum of abuse which may be endured 
 without amounting to compulsion, the places where the 
 compeller and the compelled are residing must be taken 
 into consideration. A trifling injury is not sufficient to 
 establish compulsion. 
 
 The fourth condition is design, or intention ; and this 
 is required though an express form of words is also neces- 
 sary ; insomuch that if there is no intention on the part 
 of the repudiator, repudiation cannot take effect; as, for 
 example, if he were careless, or asleep, or labouring under 
 a mistake. And if a person, forgetting that he is married, 
 
 According to the Hanifite sect it is valid. — D., p. 210. 
 
REPUDIATION. 109 
 
 should say, " My women are repudiated," or, " My wife is 
 repudiated," and should then recollect that he is married, 
 no separation would take place. Or if, after repudiating 
 his wife, he should say, " I did not intend it," outwardly 
 his assertion must be received and credited, though in- 
 wardly and in conscience he is bound by his intention, 
 whatever it really may have been. This is the case even 
 though he should make some delay in explaining his inten- 
 tion, provided that the woman is still in her iddut, because 
 it is a declaration of intention. 
 
 An absent person may lawfully appoint an agent to Power to 
 repudiate his wife, without any difference of opinion. And ^" late 
 so also may a husband who is present with his wife, accord- be com- 
 ing to the most valid opinion. And though the Sheikh an aRent . 
 has said that the appointment of a woman as her husband's 
 agent to repudiate herself would not be valid, yet it would 
 seem that such an appointment is lawful. If a man should or seem- 
 say to his wife, " Eepudiate thyself thrice," and she should j£| ^^ e 
 do so only once, it has been said that the repudiation herself, 
 would be void; while others insist that a single repu- 
 diation would take effect. And so also if he should say, 
 " Repudiate thyself once," and she should do so three 
 times, it has been said that the repudiation would be void ; 
 but here also others maintain that one would take effect ; 
 and this opinion is more in conformity with the general 
 principles of the law. 3 Second 
 
 The second pillar of repudiation is the Mootullukah, or P illar . tne 
 Repudiated ; and in her five conditions are required. diated. 
 
 The first condition is that she be a wife; for if one Condi- 
 should repudiate a woman whom he has enjoyed by virtue fclons : 
 of a right of property, or who is at the time a stranger to That she 
 him though he should subsequently be married to her, the a ' 
 repudiation would have no effect ; so also if a man should 
 suspend a repudiation on marriage, that is, make it con- 
 ditional on the occurrence of that event, the repudiation 
 would not be valid, and that, whether a particular woman 
 were indicated as by saying, " If I marry such a woman she 
 
 3 Ushbuho, literally, more likely. 
 
no 
 
 DIVORCE. 
 
 Married 
 by perma- 
 nent con- 
 tract ; 
 
 And not 
 in her 
 courses, 
 or in a 
 nifas. 
 
 is repudiated," or the repudiation is in general terms, as 
 by saying " Every woman whom I marry is repudiated." 4 
 
 The second condition is that the woman was married 
 by a permanent contract ; for there can be no repudiation 
 of a legalized slave, or of a woman enjoyed under a mootd 
 or temporary contract, even though she be free. 
 
 The third condition is that the woman is not in her 
 courses, or in a nifas 5 after childbirth. This condition 
 is applicable only to a woman who has been enjoyed, is 
 ordinarily subject to the courses, 6 and whose husband is 
 present with her, or if absent, has not been away from 
 her so long as to be assured that she has passed from the 
 period of purity 7 in which he had connubial intercourse 
 with her to another such period. If a man should repu- 
 diate his wife while they are both living in the same 
 city, or he has been absent from her less than the time 
 mentioned, and she is then in her courses or in a nifas, 
 the repudiation is void, whether he were aware of the fact 
 or not. If, again, he has been absent from her so long as 
 to feel assured that she must have passed from one period 
 of purity to another, and he should then repudiate her, 
 the repudiation would be quite valid, even though they 
 should both subsequently agree that she was actually in 
 her courses at the time ; so also, if he should have departed 
 from her during a period of purity 8 in which he had not 
 approached her matrimonially, or if a man should repudiate 
 a wife with whom he never had connubial intercourse, 
 the repudiation would in either case be lawful, though she 
 
 4 The repudiation would be effectual in both cases, according to 
 the other sect. — D., p. 263, et seq. 
 
 5 The puerperal discharge. The extreme legal term, according 
 to the other sect, is forty days (D., note 2 , p. 340), but by the Sheeahs 
 it is limited to ten days (Shuraya, p. 14). 
 
 6 Arab. Hail, active participle of halu, which has several mean- 
 ings. The radical idea seems to be change. I have adopted the 
 meaning which the context seems to require. In law the word is 
 frequently opposed to pregnant. 
 
 7 Arab. Koora. The word is so explained farther on. 
 
 8 Arab. Toohr. This is the usual term for the time between two 
 occurrences of the courses. 
 
REPUDIATION. Ill 
 
 were actually in her courses at the time. Some of our 
 lawyers have fixed upon a month as the period which gives 
 effect to repudiation by an absent man, relying on a tradi- 
 tion to that effect, which is strengthened by the usual recur- 
 rence of the courses at intervals of that duration. Others 
 of them, again, have fixed the period at three months in 
 a reliance on a good tradition of Aboo Abdoollah, 9 on whom 
 be peace. The result of the whole, however, or the truth, 
 is as we have stated it, even though the time mentioned 
 should be exceeded. If a husband is present, that is, in 
 the same city with his wife, without meeting her so as to 
 know when her courses are on her, he is to be accounted 
 the same as if he were absent. 
 
 The fourth condition is that the woman be moostubrat 10 She must 
 or purified ; for if a man should repudiate his wife during moostu . 
 a toohr, or period of purity in which he has had connubial brat ; 
 intercourse with her, the repudiation would be ineffectual. 
 This condition is not required in a ydissah or woman who 
 is past child-bearing, 11 nor in one who has not attained to 
 puberty or is pregnant. With regard again to a moostubrat, 
 when three months have passed without any appearance of 
 the monthly discharge, if such an one is repudiated before 
 the expiration of the three months, the repudiation is 
 without effect. 
 
 The fifth condition is that the mootullukah or repudiated And dis- 
 woman be distinctly indicated, that is, by the man's saying, ^Tcated 
 " Such an one is repudiated," or by pointing to her in 
 such a manner as to remove all doubt on the subject. If 
 he has only one wife, and should say, " My wife is re- 
 pudiated," the repudiation would be valid, as there is no 
 room for ambiguity. But if he has two or more wives, 
 and should say, " My wife is repudiated," he must intend 
 some one of them in particular to give any effect to the 
 repudiation ; and his explanation of the one whom he 
 
 9 The Imam Jaafer Sddik. 
 
 10 Participle from istibra, purification. The object of the condi- 
 tion seems to be to prevent a confusion of seed, and consequent doubt 
 of paternity, if the woman should marry again, and have a child. 
 
 11 See post, p. 162. 
 
] ] 2 DIVORCE. 
 
 intended must be received. If, again, he had no particular 
 one in his mind, or used the words without any positive 
 intention, some of our doctors maintain that they would 
 be entirely nugatory for want of distinct indication, while 
 others insist that there would be a valid repudiation, and 
 that the particular woman must be determined by lot, — an 
 opinion which seems to be more agreeable to the general 
 principles of the law. If he should say, " This one is 
 repudiated, or this one," he may, according to the Sheikh, 
 apply the repudiation to whichever of them he pleases ; 
 but many of our doctors insist- that it is void for want 
 of specification ; while, if he should say, " This one is 
 repudiated, or this one and this one," the third would be 
 certainly repudiated, and of the other two he might apply 
 the repudiation to either at his pleasure. In the event 
 of his death one of them must be taken by lot. Many, 
 however, are of opinion that in such a case the alternative 
 is between the first and the two last together ; so that he 
 must determine for either the first or for the two last. In 
 all the cases it is obvious that the difficulty arises from 
 the want of specification, or a compliance with the con- 
 dition under consideration. If a person, looking upon his 
 wife and a strange woman, should say, " One of you two 
 is repudiated," and should add, " I intended the stranger," 
 his assertion must be accepted. But if, having a wife 
 and a maid both named Sooda, he should say, " Sooda is 
 repudiated," and then assert, " I intended the maid," his' 
 word would not be accepted. For, in the first case, the 
 expression " One of you two " is equally applicable to the 
 wife and the strange woman, as both are capable of being 
 repudiated ; but in the second case, where the repudiation 
 is made' to depend on the name, it must be restricted to 
 the wife, as she is the only person to whom the repudiation 
 can be applied. If a person, supposing a stranger to be 
 his wife, should say to her, " Thou art repudiated," his 
 wife would not be repudiated, for he must be assumed to 
 have intended the person addressed. And if, having two 
 wives, Zeinub and Amrah, he should say, " O Zeinub" 
 and Amrah should answer, " Here am I," whereupon he 
 
REPUDIATION. 113 
 
 says, " Thou art repudiated," the person intended would 
 be repudiated. If he intended the one that answered, 
 supposing her to be Zeinub, the Sheikh has said that 
 Zeinub would be repudiated. But there is some difficulty 
 in the case ; for the repudiation was directed to the per- 
 son who answered, only on the -supposition that she was 
 Zeinub ; she therefore cannot be repudiated for want of 
 intention ; nor can Zeinub, for the repudiation was not 
 directed to her, but to the other; Th j rd 
 
 The third pillar of repudiation is its Form. Form'. 
 
 As a general rule, marriage, being a chaste 12 or pro- Its condi- 
 tected condition, favoured by the law, and in its own 10ns ' 
 nature not admitting of being dissolved, 13 it is necessary 
 in taking off or removing the tie to adhere strictly to the 
 terms of the legal permission. The form of words specially Words 
 appointed for that purpose is, " Thou art repudiated," I4 or ^ctal? "* 
 " Such an one," or " This person," or any similar word required; 
 clearly indicative of the individual who is intended to be 
 repudiated. And if a man should say, " Thou art the 
 repudiation," or " repudiated," or " among the repudiated," 
 the words would be without effect, even though he intended 
 to repudiate thereby. So also they would be ineffectual 
 if he were to say, " A repudiated person." The Sheikh, 
 however, has said that in this case repudiation would take 
 effect if intended ; but the opinion is not supported by 
 the grammatical construction of the phrase. On the other 
 hand, he has said that it would not take effect if a man 
 were to say, " I have repudiated such an one ; " but this 
 also is attended with some difficulty, arising from the fact 
 that if the question were asked, " Is thy wife repudiated ? " 
 and the person addressed should answer " Yes," there 
 would be an effectual repudiation. 
 
 Eepudiation cannot be effected by writing, 15 nor in any cannot be 
 other language than the Arabic when there is ability to or j n any 
 
 12 Ismut — defence, protection, chastity. 
 
 13 That is, it does not admit of Ekalut, like sale. See Im. D., 
 p. 168. 
 
 14 Arab. Unti Talikoon. 
 
 15 It may according to the Hanifites. D., p. 233. 
 
 PART II. I 
 
114 
 
 DIVORCE. 
 
 other 
 language 
 than 
 Arabic. 
 
 Words 
 that are 
 not suffi- 
 cient. 
 
 A right of 
 choice 
 given to a 
 wife is ap- 
 parently 
 not a 
 power to 
 repudiate 
 herself. 
 
 Repudia- 
 tion ef- 
 fected by 
 affirma- 
 tion to 
 question, 
 « Hast 
 thou repu- 
 diated 1 " 
 
 pronounce the words specially appointed, nor by signs ex- 
 cept where the party is unable to speak. If he is dumb, 
 repudiation may be effected by any signs sufficiently in- 
 dicative of his purpose. And, though it cannot be given in 
 writing by one who is present and able to pronounce the 
 proper words, yet if he is unable to do so and writes them, 
 fully intending repudiation, it takes effect and is quite valid. 
 Some persons have maintained that a wife may be lawfully 
 repudiated in writing by her husband when he is absent 
 from her ; but this opinion is not to be relied upon. And 
 if one should say to his wife, " Thou art vacated," or 
 " free," or " The reins are on thy neck," or " Betake thyself 
 to thy people," or " Tbou art absolutely separated," or 
 " unlawful," or " cut off," the expressions would be quite 
 nugatory, and no repudiation take place, whether it were 
 intended or not. 16 If he should say " Count," intending 
 Tuldli thereby, it is maintained that there would be a valid 
 repudiation, and there is a tradition to that effect, recorded 
 by Hulbee and Moohummud, from Aboo Abdoollah, on whom 
 be peace ; but this has been disputed by many of our 
 doctors, whose opinion is more in accordance with the 
 general principles of the law. 
 
 When a person gives his wife an option, intending that 
 she may repudiate herself, and she chooses him, or remains 
 silent without looking aside, nothing follows. And even 
 if she were immediately to choose herself, though some of 
 our doctors are of opinion that there would be an absolute, 
 and others a revocable repudiation, a third party maintains 
 that in this case also the choice would be ineffectual ; and 
 their opinion is the most common or generally received. 
 
 If a person were asked, ' ' Hast thou repudiated such a 
 person ? " and he should answer "Yes," there would be a 
 valid tuldk. But not so if the question were, " Hast thou 
 separated," or " vacated," or " released ? " and he should 
 answer in the affirmative ; for then nothing would follow. 
 
 Tidal; in respect of its form, must be entirely free from 
 
 16 If intended, they would be sufficient, according to the Ilanifites. 
 D., p. 228. 
 
REPUDIATION. 115 
 
 any condition or description, according to the most common The form 
 opinion ; 17 for 1 18 take no account of those who think differ- of t " lf ! k 
 ently on this subject. And even though the husband, in entirely 
 pronouncing the repudiation, should merely explain himself ^ndHion 
 by saying, " twice " or " thrice," some insist that it would or de- 
 be void. Others, however, maintain that a single repudia- scnp lon * 
 tion would take effect by reason of the word " repudiated," 
 the rest being surplusage according to them ; and this 
 opinion is supported by the more common or generally 
 received of two traditions. If he should say, " Thou art 
 repudiated for the soonnut," the repudiation would be valid, 
 supposing that the woman were pure 19 at the time ; and so 
 also if his words were " for the budae." But in this case 
 it were better to say that the repudiation would not take 
 effect, because we don't allow that kind of tvMk, and the 
 words would be without meaning. 20 
 
 Further, if a husband should say to his wife, " Thou iUustra- 
 art repudiated this very instant, if repudiation has effect tlons - 
 upon thee," the Sheikh has said that there would be no 
 tulaJcj by reason of its being made dependent on the con- 
 dition ; and this is right, if the repudiator were not aware 
 of the woman's state at the time. But if he knew that 
 she were in a state to be legally repudiated, effect should 
 be given to his words ; for though there is a condition in 
 appearance, there is none in reality. If he should say, 
 " Thou art repudiated the most just of repudiations," or 
 "the most perfect," or "the best," or "the worst," or 
 " the best and worst," the repudiation would be valid, as 
 it is not impaired by the words superadded to it. So also 
 it would be valid if he were to say, "the full of Mecca," or 
 " the full of the world." If he should say, " To the con- 
 tentment of such an one," intending a condition thereby, 
 or that the repudiation should be dependent on the per- 
 son's will, it would be void. Otherwise, if he had no such 
 
 17 This is opposed to the doctrine of the Hanifites. D., cap. iv. 
 and cap. ii., sect. 3. 
 
 18 The author of the Shurmja. 
 
 19 Tahir, that is, not in her courses. 
 
 20 See post, p. 118. 
 
 i 2 
 
116 DIVORCE. 
 
 intention, it would take effect, according to his purpose. 
 So also, if he should say, " In thou enterest into the house, 
 thou art repudiated," applying the vowel Jcusrah (i) to the 
 first letter of the word (so as to make it equivalent to if), 
 there would be no repudiation, while if the vowel futha (u) 
 were applied to the first letter of the word, so as to make it 
 sound un (or tliat), the repudiation would be quite valid, pro- 
 vided that he knew the distinction between the two sounds, 
 and intended that his wife should be repudiated. If he 
 should say, " I am repudiated to thee," the words would 
 have no effect, as a man is not a fit subject for repudiation. 
 Nor if he should say, " Thou art repudiated half," or " a 
 fourth," or "a sixth of a repudiation," would the words 
 have any effect, for they do not amount to one whole 
 repudiation. If he should say, " Thou art repudiated 
 (talile)" and then add, "I intended to have said, 'Thou 
 art pure (tahir), " the explanation is to be accepted out- 
 wardly, but inwardly and in conscience he is bound by his 
 real intention, whatever it may have been. If the expres- 
 sions were, " Thy hand," or " Thy foot is repudiated," they 
 would be wholly without effect. So also, if he were to say 
 " Thy head," or " thy bosom," or " thy face," or " thy 
 half," or " thy third," or " two-thirds," the expressions 
 would, in like manner, be ineffectual. 21 If he should say, 
 " Thou art repudiated before repudiation," or " after it," 
 or "before it," or " with it," nothing would follow, whe- 
 ther she were an enjoyed wife or not. But if it were said 
 that a single repudiation would take effect on his saying, 
 "Repudiated with repudiation," or "after it," or "upon 
 it," and that there would be none on his saying, " before 
 repudiation," or " after repudiation," that would be right 
 or proper. 22 If, again, he were to say, " Repudiated, two 
 halves," or " three thirds of a repudiation," there would 
 be none, according to the Sheikh. But here, also, if it were 
 said that there would be a repudiation, by force of the 
 
 21 Otherwise, according to the Hanifltes. Z)., p. 215. 
 
 22 I have translated the words literally. The distinction seems 
 to depend on the position of the term " repudiation." 
 
REPUDIATION. 117 
 
 words " Thou art repudiated," and that the rest is sur- 
 plusage, that would be right or proper. Not so, however, 
 if the husband should say, " A half of two repudiations." 
 
 Further, the Sheikh has said that if a man should say Con- 
 to his four wives, "I have effected four repudiations be- lnue * 
 tween you four," each one of them would be repudiated. 
 But the opinion is not free from doubt and difficulty. If, 
 again, a man were to say, " Thou art repudiated, three 
 except three," one repudiation would be valid, by virtue of 
 the first part of the expression, if such were his inten- 
 tion, and the exception would be void. If he should say, 
 " Repudiated without repudiation," intending revocation 
 thereby, it would be valid, because the denial of a tuldk is 
 equivalent to revocation ; while if he said, " Repudiation 
 except repudiation," the exception would be surplusage, 
 and repudiation take effect, by virtue of the words, " Thou 
 art repudiated " (supposed to precede the others). If he 
 should say, " Zeinub is repudiated," and then add, " I 
 meant Amrali" the explanation is to be received, suppos- 
 ing both the women to be his wives. And if he say, 
 " Zeinub (bid) Amrah" both are repudiated together, for 
 each was intended at the time of his naming them. But 
 this is attended with some difficulty, arising from the form 
 of the expression. 
 
 The fourth pillar of repudiation is Testimony ; 23 and it Fourth 
 is necessary that two witnesses should be present and hear gg^'of 6 " 
 the repudiation given, whether they are called upon to witnesses 
 attest it or not. It is a condition essential to the validity necessar y' 
 of a kddk that the witnesses should hear the actual words. 
 So that if they are merely present, repudiation does not 
 take effect, though all other conditions are complied with. 
 So also there can be none with only one witness, though One not 
 he be a just person, nor even with two witnesses if they 
 are not just, or are reprobates. Nay, it is required that And the 
 two witnesses of known probity should be present. Some mugt " he 
 of our lawyers, however, think it sufficient that the persons of 
 witnesses are Muoslims • but the first opinion is better 
 
 23 This is not required by the Hanifites. 
 
118 
 
 DIVORCE. 
 
 The testi- 
 mony of 
 women 
 not suffi- 
 cient. 
 
 founded on traditional authority. If one of the witnesses 
 should testify to the constitution of the tuldk, and the 
 other should then testify to it separately from the first, 
 repudiation would not take effect. But when they testify 
 to an acknowledgment of the fact, it is not necessary that 
 their testimony should be given together. Yet, if one 
 should testify to the fact of the toddle, and the other to 
 an acknowledgment of it, their testimony could not be 
 received. 
 
 The testimony of women cannot be received to repu- 
 diation, whether they are alone or together with men. If 
 a man should repudiate his wife without witnesses, and 
 then repudiate her again when witnesses are present, the 
 first repudiation would go for nothing. And the true time 
 for a tuldk taking effect is when the witnesses are present, 
 provided that the appropriate words are employed. 
 
 Two 
 
 forms : 
 
 The 
 biddut, of 
 
 which 
 there are 
 three 
 kinds. 
 
 But all 
 
 are void. 
 
 The 
 
 Sounnut : 
 Three 
 kinds : 
 Bain, or 
 irrevoc- 
 able. 
 
 Section Second. 
 Of the Different Kinds of Tuldk or Rejmdiation. 
 
 The term Tuldk includes the Biddut and the Soonnut 
 forms of repudiation. Of the Biddut, or new and heretical 
 form, there are three different kinds. The first is the repu- 
 diation of an enjoyed wife during her courses, or a nifas, 
 while her husband is present with her, or if absent from 
 her, when his absence has been short of the time con- 
 ditioned or required in such cases. 24 The second is the 
 repudiation of a wife during a toohr, or period of purity, 
 in which there has been connubial intercourse between the 
 parties. And the third is, three repudiations without any 
 intermediate revocation. All these forms of tuldk are void 
 with us, 25 no repudiation taking effect in any of the cases. 
 
 Of the Soonnut, or regular form of Tuldk, there are 
 also three different kinds, — the Bdin or absolute, the Bujdee 
 or revocable, and the Tuldk-ool-iddut, or repudiation of the 
 iddut. The Bdin or absolute is that with respect to which 
 
 24 See ante, p. 110. 
 
 25 That is, the Sheedh sect. According to the IlaniBtes they are 
 all valid, though irregular. D., p. 207. 
 
REPUDIATION. 119 
 
 the husband has no power of revocation ; and of it there 
 are six different species. The first is when the wife who 
 is repudiated is one with whom connubial intercourse has 
 never taken place. The second is when she is a ydissah, 
 or past child-bearing. The third is when she has not yet 
 attained to puberty. The fourth and fifth are when she is 
 mooJchtuUah 26 or moobardt, that is, released or freed for a 
 ransom, so long as she has not reclaimed the ransom for 
 which the release or freedom was given. The sixth is 
 when the wife is repudiated three times with two inter- 
 vening revocations. 27 
 
 The Tuldk Rujdee is that in which the husband has the Mvjdee, or 
 power of revocation whether he exercises it or not. 28 revocable. 
 
 The Tuldk-ool-iddut, or repudiation of the iddut, is Tvldh-ooV- 
 after the following manner: — A man repudiates his wife ur Z d e ~ 
 under the requisite conditions, he then recalls her before 
 the expiration of the iddut, has connubial intercourse with 
 her, and repudiates her again, but in another toohr than 
 that in which the intercourse took place, recalls her a 
 second time, has intercourse with her, and repudiates her 
 a third time, but in a subsequent toohr. She is now 
 rendered unlawful to him till she has married another 
 husband. If she should do so, be released from him, and 
 her first husband should remarry her, and repeat the series 
 of repudiations as at first, she would become a second 
 time unlawful to him until married to another husband. 
 And if this also were done and she were again free, and Renders 
 the first husband should marry her a third time, and P etuaUy 
 repeat the series of repudiations, she would become, after unlawful 
 the ninth, unlawful to him for ever. 29 It is to be observed pu^iator." 
 that the tuldk of the iddut does not take effect unless 
 there has been connubial intercourse after each revocation. 
 
 26 Wife released by khoold, for which and moobardt, see post, 
 ch. iii. 
 
 27 To these may be added the ordinary tuldk, when given in 
 exchange for property. See post, p. 137 
 
 28 The power of revocation lasts till the expiration of the iddut, 
 after which the repudiation becomes absolute. 
 
 29 This kind of repudiation is unknown to the Hanifites. 
 
120 
 
 DIVORCE. 
 
 Three 
 repudia- 
 tions 
 render a 
 woman 
 unlawful 
 to the re- 
 pudiator. 
 
 Repudia- 
 tions after 
 comple- 
 tion of the 
 iddut, 
 
 do not 
 render a 
 woman 
 perpetu- 
 ally un- 
 lawful, 
 though 
 they 
 should 
 amount to 
 nine. 
 
 A preg- 
 nant wife 
 may, after 
 revoca- 
 tion, be 
 again re- 
 pudiated 
 for the 
 iddut. 
 So also, a 
 wife that 
 is not 
 pregnant. 
 
 If he should repudiate her before such intercourse, the 
 repudiation would indeed be valid ; but it would not be a 
 tuldk or repudiation of the iddut. 
 
 Every woman on whom three repudiations have been 
 fulfilled is rendered unlawful to the repudiator until she 
 marries another husband ; and it makes no difference 
 whether he had enjoyed her or not, or whether he had 
 recalled her or abandoned her. 
 
 Miscellaneous Cases. 
 
 First. A man repudiates his wife and she completes 
 her iddut ; he then marries her a second time, repudiates 
 her again, and leaves her to complete her iddut ; after 
 which he marries her a third time, and a third time re- 
 pudiates her. She now becomes unlawful to him till she 
 has been married to another husband. After which, if 
 separated from him, and her iddut for him has expired, her 
 first husband may lawfully return to her, that is, marry 
 her again ; and a wife so treated is not perpetually pro- 
 hibited, even after the ninth repudiation. But the iddut 
 which she has to observe does not prevent her from 
 becoming immediately prohibited to him after the third, 
 that is, until she has been married to another. 
 
 Second. When a man has repudiated a pregnant wife, 
 and recalled her, he may lawfully have connubial inter- 
 course with her, and then repudiate her a second time 
 for the iddut by general consent. Some maintain that it 
 is unlawful by the soonnut ; but the opinion in favour of 
 its legality is more agreeable to the principles of law. 
 
 Third. When a man has repudiated a wife that is not 
 pregnant, and recalled her, if he then has connubial in- 
 tercourse with her, and repudiates her again in another 
 toohr, the repudiation is valid without any difference of 
 opinion. But if he repudiate her in the other toohr, with- 
 out having previously had intercourse with her, there are 
 two traditions upon the point — one of which denies the 
 efficacy of the repudiation, while according to the other 
 and more valid tradition, it takes effect. Assuming the 
 latter view to be correct, if he should now recall her again 
 
REPUDIATION. 121 
 
 and repudiate her a third time in another toohr, she would 
 become prohibited to him until married to another man. 
 In like manner, if he should repudiate her after the revo- 
 cation without having connubial intercourse with her in 
 the first toohr, there are two traditions upon this point 
 also ; but here a preference is given to that which requires 
 that the repudiations should be in different toohrs, though 
 connubial intercourse may not have taken place ; while if 
 it has, the repudiation would be positively unlawful, except 
 when given in a second toohr, if the repudiated person 
 be one with respect to whom istibra, or purification, is 
 necessary. 
 
 Fourth. When a repudiator is in doubt as to the Doubtful 
 
 efficiency of a repudiation he is not obliged to repeat it to R e P udia ' 
 J r . tion need 
 
 remove the doubt, and the marriage remains as before. not be re- 
 
 Fifth. When a man who has repudiated his wife while P eated - 
 absent from her, enters into her apartment on his return, tion UCia " 
 and then claims that the repudiation was effective, his claim during 
 is not to be received, because it is to be presumed that a canno t be 
 Mussulman's acts are in accordance with the law, and his alleged by- 
 claim gives the lie to what is tantamount to proof. Accord- resumes 
 ingly, if there is a child it is affiliated to him. cohabita- 
 
 Sixth. When a man absent from his wife has repudiated his wife. 
 her, and desires to marry her sister, or a fourth wife, he An absent 
 
 must wait for nine months for the possibility of his wife's man , . ,° 
 
 L J repudiates 
 
 being pregnant. Some of our doctors for greater caution one of 
 
 insist that he should wait for a full year, having a view to ^gt^^t 
 
 the possible pregnancy of a moostubrat, which occasionally for nine 
 
 happens. But if he knew that she was not pregnant at be fo re ^ e 
 
 the time of the repudiation, three courses and three months can marry 
 
 rr; • another. 
 
 are sufficient. 
 
122 
 
 DIVORCE. 
 
 Valid, 
 though 
 abomin- 
 able. 
 
 Its effect 
 on the mu- 
 tual rights 
 of inherit- 
 ance of 
 husband 
 and wife. 
 
 His word 
 to be cre- 
 dited 
 when he 
 says that 
 he repudi- 
 ated her 
 in health. 
 Lidn in 
 sickness. 
 
 CHAPTER II. 
 of appendages to repudiation. 
 
 Section First. 
 Of Repudiation by a Sick Man. 
 
 It is abominable for a sick man to repudiate his wife ; 
 yet if he should do so the repudiation is valid, and he is 
 entitled to a share in her estate if she should happen to 
 die during the iddut, and the revocation were revocable. 
 But he has no such right if the repudiation were bain, 
 or absolute, or her death should not occur till after the 
 expiration of the iddut. She, however, has a right to par- 
 ticipate in his estate if he should die at any time within 
 a year from the repudiation, whether it were revocable or 
 absolute, provided that she has not married in the mean- 
 time, nor he has recovered from the disease in which the 
 repudiation was given. If he should recover, fall sick again, 
 and then die, her right of inheritance would be lost, unless 
 she were still in her iddut for a revocable repudiation. 
 
 If he should say, " I repudiated three times whep in 
 good health," his word is to be received, and it bars her 
 right of inheritance, though it would seem that no credit 
 ought to be given to his word, as against her. And if he 
 should slander her, being sick at the time, and should go 
 through the form of lidn, or imprecation, against her, 
 when she would be absolutely divorced by the lidn, 1 she 
 
 1 According to the Sheeatis, tbis is the immediate effect of the lidn 
 (see post, p. 157), though by the Hanifite code there is no separation 
 of the parties without a divorce by the husband or decree of the 
 judge. D., p. 336. 
 
APPENDAGES TO REPUDIATION. 123 
 
 would have no right of inheritance in virtue of the special its effect 
 
 effect of a repudiation in sickness. But it may be asked • ht of 
 
 would she not have such a right on account of the inheri- 
 
 suspicion which attaches to his slandering her in such 
 
 circumstances ? This question has been answered in the 
 
 affirmative. It would rather seem, however, that the usual 
 
 effect of a repudiation in sickness should be given to 
 
 his act without any regard to the suspicion attaching 
 
 to it. There is also a doubt of her right to inherit when diated in 
 
 repudiated on her own solicitation. And here it is more Slc * ness 
 r * at her own 
 
 in accordance with the general principles of law to say request 
 that her right of inheritance is lost. 2 So also when she in ^ r " t ° 
 has been released from the marriage tie by a khoold or Nor one 
 
 moobardt. released 
 
 by hi wold. 
 
 Branches from the Preceding. 
 
 First. If a man should repudiate his slave wife revo- A slave re- 
 cably, and she is emancipated during the iddut, and he £" } ^ r e 
 then dies while labouring under the disease, she inherits husband, 
 during the iddut, but not after its expiration, on account c j pate ^ ^ 
 of the flaw in her condition at the time of the repudiation. 3 the iddut, 
 Yet, if it were said that she does inherit, that would be inherit 
 proper, and even though the divorce were irrevocable. 
 Some, however, contend that she has no right whatever to 
 inherit, because she had no ahleeut, or legal status, at the 
 time of the repudiation. So also if one should repudiate Case of a 
 a hitabeeah who is afterwards converted to the Mussulman *—!!* 
 religion. 4 
 
 Second. When a repudiated woman claims or alleges In a dis- 
 that the repudiation was given to her by her deceased ther a re- 
 husband when he was sick, and the fact is denied by his pudiation 
 heir, who alleges that he was in good health at the time, ^ health 
 
 2 Such is the Hanifite doctrine in that case. £>., p. 278. 
 
 3 According to the Hanifite code, that would prevent her inherit- 
 ing even during the iddut. D., p. 278. 
 
 4 That is, she would in like manner inherit during the iddut ; 
 her case, according to both codes, being similar to that of the eman- 
 cipated slave. 
 
124 
 
 DIVORCE. 
 
 or sick- 
 ness, the 
 word of 
 the heir is 
 to be pre- 
 ferred. 
 
 Case of 
 four wives 
 repudi- 
 ated, and 
 other four 
 married, 
 by a sick 
 man. 
 
 A woman 
 repudi- 
 ated three 
 times 
 must be 
 married 
 to, and en- 
 joyed by, 
 another 
 husband 
 before she 
 can be re- 
 married 
 by the re- 
 pudiator. 
 
 Such mar- 
 riage de- 
 stroys the 
 effect of 
 all pre- 
 vious re- 
 pudia- 
 tions, 
 
 the word of the heir is to be received, 5 because the pro- 
 babilities on either side are equal, and it is a principle of 
 law that there is no right of inheritance except by esta- 
 blishing a sufficient cause for it, such as consanguinity or 
 marriage. 
 
 Third. If a man should repudiate four wives during 
 his illness, marry four others, consummate with them, and 
 then die, the fourth of his estate, or in the case of his 
 having a child, the eighth of it, would be equally divided 
 between them all. 
 
 Section Second. 
 
 How the Prohihition incurred by three Repudiations 
 is removed. 
 
 When a woman has been repudiated three times with 
 the requisite conditions, she is rendered unlawful to the 
 repudiator until she has been married to another husband, 
 and in removing the prohibition regard must be had to 
 four conditions : — 1st, the new husband must be adult, 
 for though there is some difference of opinion in respect to 
 a moorahik, or boy approaching to puberty, yet it is more 
 agreeable to the principles of law to say that he is not 
 competent to legalise the woman to her first husband ; 6 
 2nd, the new husband must have carnal knowledge of the 
 woman in the natural way, so as to require ablution ; 3rd, 
 this must be under a contract, and not merely by virtue of 
 a right of property, or of permission from her master ; 
 4th, the contract must be permanent, and not by way of 
 mootd, or temporary. When all these conditions have 
 been fulfilled, the prohibition incurred by three repudia- 
 tions is removed. 
 
 With regard to the value of a second marriage in 
 effacing the effect of any number of repudiations less than 
 three, there are two traditions. The most common or 
 generally received of these is in favour of the extinction. 
 So that, if a woman who was once repudiated should be 
 
 The preference is given to her words hy the Hanifites. D., p. 282. 
 He is competent according to the Hanifites. D., p. 290. 
 
APPENDAGES TO REPUDIATION. 125 
 
 married to another man, and, after the dissolution of that though 
 marriage, should be remarried by her first husband, she th s ree 
 would abide with him on a fresh footing as to three repudi- 
 ations, the effect of the first repudiation being cancelled 
 by the intermediate marriage to another person. 
 
 If a Mussulman should repudiate his Zimmeeah wife Marriage 
 three times, and, after the expiration of her iddut, she is ^ s ^\ 
 married to a Zimmee, then absolutely separated" from him, cient in 
 and finally converted to the faith, it is quite lawful for the of Zlm _ 
 first husband to marry her by a new contract. meeah. 
 
 When a bondwoman has been twice repudiated, she is A bond- 
 rendered unlawful to the repudiator until she has been twice re- 
 married to another husband, whether she were the wife of pudiated 
 a freeman or a slave; and carnal intercourse with her marr j e( j 
 master is not sufficient to remove the prohibition ; neither and en- 
 is it removed by the repudiator himself becoming her pro- i'nother 
 prietor, because the prohibition was incurred previous to man be " 
 
 IOTP SilG 
 
 his acquisition of the right. If one should repudiate his can be re- 
 slave wife, and she is then emancipated, after which he married 
 marries her a second time or revokes the repudiation, she pudiator. 
 remains with him on the single repudiation as connected 
 with her former condition of slavery, so that, if he should 
 repudiate her again, she would become unlawful to him 
 until married to another husband. 
 
 An eunuch is competent to legalize a thrice-repudiated Aneunuch 
 
 woman to the repudiator when he has had carnal inter- I s com P e " 
 
 tJ6Hb to 
 
 course with her. But there is one tradition opposed to legalize a 
 
 his sufficiency. woman - 
 
 Intercourse with the new husband in the natural way, Emission 
 
 though it should take place without emission, is sufficient not neces " 
 
 i t i 1 • t sary. 
 
 to legalize the thrice-repudiated woman, because the act is 
 
 the occasion of mutual pleasure to the parties. 
 
 If the legalizer, after marrying a repudiated woman, inter- 
 
 should, before connubial intercourse with her, apostatize c ° urse 
 
 ' r after apos- 
 
 from the faith, any subsequent intercourse with her during tasy not 
 his apostasy would not be sufficient to render her lawful to sufficient - 
 her first husband, because the contract was cancelled by 
 his apostasy. 7 
 
 7 See ante, p. 29. 
 
126 
 
 DIVOHCE. 
 
 When the 
 word of a 
 thrice-re- 
 pudiated 
 woman is 
 to be cre- 
 dited as to 
 the fact of 
 her having 
 been sub- 
 sequently 
 married ; 
 
 and the 
 marriage 
 consum- 
 mated. 
 
 If, after the lapse of some time, a thrice-repudiated 
 woman should allege that she was duly married to another 
 husband, and, after being completely separated from him, 
 had fulfilled her iddut, and if all the occurrences could 
 possibly have taken place in the interval since the third 
 repudiation, some of our doctors maintain that her word 
 must be received, because in the whole matter a fact is 
 involved, viz. coition, which cannot otherwise be ascer- 
 tained. There is one tradition, however, to the effect that 
 it is only when she is a trustworthy person that her asser- 
 tion is to be credited in such circumstances. 
 
 When the legalizer has entered into the woman's 
 apartment, and she alleges that connubial intercourse 
 took place between them, that is sufficient to render her 
 lawful to her first husband, provided that the legalizer 
 assents to the assertion. When, on the other hand, he 
 contradicts her, some of our doctors are of opinion that the 
 conduct of the first husband should be regulated by his 
 estimate of the probability of her or of the other party's 
 speaking the truth. It would be better, however, to say 
 that he should in all cases act in dependence on her asser- 
 tion, from the impossibility of obtaining any other evidence 
 of the fact than her own word. 
 
 If connection with the legalizer should take place under 
 circumstances when connubial intercourse is interdicted, as 
 during pilgrimage or an obligatory fast, some of our doctors 
 are of opinion that the woman would not be rendered 
 lawful to her husband, because the act being prohibited, 
 cannot be supposed to be within the scope of the legis- 
 lator's intention. Others, however, insist that she would 
 be rendered lawful by the establishment of marriage on 
 a valid contract. 
 
 Section Thikd. 
 Of Rajdt or Revocation. 9 
 May be Tuldk or repudiation may be validly revoked in words, 
 
 by words as ^y saying, " I have recalled thee," or in deed, as 
 
 or by deed. — 
 
 8 Literally, return ; as if the man returned to his wife, or restored 
 her to her former position. 
 
 Doubt as 
 to connec- 
 tion with 
 legalizer 
 being 
 sufficient 
 in circum- 
 stances 
 when con- 
 nubial in- 
 tercourse 
 is prohi- 
 bited. 
 
tized from 
 the faith. 
 
 APPENDAGES TO REPUDIATION. 127 
 
 by connubial intercourse ; and even, though the husband 
 should only touch or kiss his repudiated wife with desire, 
 that would be a revocation. Permission by the repudiated 
 woman is not a necessary preliminary to the revocation, 
 for she is still his wife. And even a mere denial of the 
 repudiation would be equivalent to revocation, for it implies 
 a retention of the woman as his wife. 
 
 It is not necessary though proper to have witnesses to Witnesses 
 
 ii , • not neces- 
 
 a verbal revocation. „__ 
 
 If a husband should say to his wife, " I have recalled D 0u t>t as 
 
 thee when thou wilt or if thou wilt," the revocation would t0 revoca- 
 
 not take effect, even though she should answer, " I have pendent 
 
 willed." This, however, is open to doubt. on the 
 
 . wif e s 
 
 If a man should repudiate his wife and recall her after w iii ; 
 
 she has apostatized from the faith, the revocation would not °* a £ ter 
 be valid, as a marriage ah initio in such circumstances, that aposta- 
 is, with an apostate, would not be valid. 9 On this point, how- 
 ever, there is room for doubt, arising from the consideration 
 that the woman revocably repudiated is still a wife ; 10 and if 
 she should return to the faith the revocation would revive. 
 
 If a man having a Zimmeeah wife, should repudiate Similar 
 her revocably, and then recall her during her iddut it has ^ n tbe 
 been said that the revocation would not be lawful, for re- woman is 
 vocation is like a new contract. But it would seem that ^ ne ^ 
 the revocation is lawful, as the woman has never ceased to 
 be his wife, and the revocation is rather to be viewed as a 
 prolongation of the existing contract. 
 
 Revocation by a dumb man may be effected by intel- Eevoca- 
 ligible signs. Some say that he ought to raise the veil I'^J a 
 from off her face, but this opinion is rarely entertained. man. 
 
 When a man has repudiated his wife, and recalled her, In a dis- 
 but she denies that the marriage was ever consummated, J^sum- ° 
 with a view to avoid the necessity of iddut, 11 and to render mation, 
 the repudiation irrevocable, while he insists on the other Qf e th ^ or 
 wife to be 
 
 9 An apostate is legally disqualified from contracting marriage, received. 
 Shuraya, p. 631. 
 
 10 See above. 
 
 11 It is only on an enjoyed wife that iddut is incumlent {post, 
 j). 160). 
 
128 
 
 DIVORCE. 
 
 So also 
 when the 
 question 
 is as to 
 expiration 
 of iddut 
 by courses. 
 
 Otherwise 
 when it 
 is by 
 months. 
 
 In dis- 
 putes as 
 to preg- 
 nancy and 
 delivery, 
 whose 
 word is 
 to be re- 
 ceived. 
 
 In a dis- 
 pute be- 
 tween the 
 husband 
 and 
 
 master of 
 a slave as 
 to revoca- 
 tion dur- 
 ing iddut, 
 word of 
 former to 
 be re- 
 ceived. 
 
 hand that consummation had taken place, her word and 
 oath are to be received, for the zahir or apparent is in 
 favour of her allegation. 
 
 When a woman claims that her iddut has expired 12 by 
 occurrence of the courses, and the time admits of the fact 
 being so, while the man denies its expiration, her word 
 and oath are to be received. But if the claim be that the 
 iddut had expired by lapse of months, his assertion is to 
 be preferred ; for here the difference is merely as to the 
 time when the repudiation took effect. If, again, the 
 husband should claim that the iddut had expired, the 
 word of the wife is to be received ; for the original state of 
 things is the continuance of the marriage, which he i3 
 trying to impeach. 
 
 If the woman was pregnant and claims that delivery 
 has taken place, her word is to be received without requiring 
 her to produce the infant. But if the dispute be as to the 
 fact of her having been pregnant, which the husband denies, 
 and she produces an infant which he denies to be his 
 offspring, the word rests with him, because the fact is one 
 which admits of proof by witnesses. If she claims the 
 expiration of the iddut, and he alleges that he recalled her 
 before its expiration, the word of the woman is to be pre- 
 ferred. But if he has recalled her, and she then claims 
 after the revocation that the iddut had expired, his word is 
 to be received, since the original state of things is the 
 validity of the iddut. 
 
 If the husband of a slave should claim that he recalled 
 her during her iddut, and she confirms the allegation, while 
 it is denied by her master, who insists that the iddut had 
 expired before the revocation, the word of the husband is to 
 be received ; and some of our doctors are of opinion that 
 he is not required to confirm his assertion by his oath, 
 since the right of marriage is sustained by both the 
 spouses ; but this opinion is liable to doubt. 
 
 12 The power of revocation terminates with the expiration of the 
 iddut, as is obvious from the introduction, at this place, of the 
 remaining paragraphs of this section, which would otherwise more 
 properly belong to the chapter on iddut. 
 
( 129 ) 
 
 CHAPTER III. 
 Of Khoola and MoobarAt. 
 
 Section First. 
 
 Of Khoold : its Form, Ransom, Conditions and Laws. 
 
 In respect of form it is as if one should say, " Klmlatoki Form. 
 kuza" (" I have Mwolad thee for so much "), or 
 " Fulanutoon mookhtidkitoon ida kuza " (" Such an one is 
 khoola d for so and so ") ; ' and if it be asked whether the 
 khoold is effected by this alone, the answer must be that 
 the tradition is to that effect. The Sheikh, however, insists 
 that it is not effected by those words unless they are fol- 
 lowed up by tuldk or repudiation. And there is no doubt 
 that it is not effected by the words " Fadeetoki " (" I have 
 liberated thee for a ransom ") without the addition of the 
 word tuldk ; nor by the words " Fasukhtoki " (" I have 
 cancelled thee ") ; " Abuntoki " ("I have separated thee "), 
 or " Buttuttoki" ("I have cut thee off"); nor by tukail 
 (dissolution). 
 
 Supposing that the word khoold is sufficient, another Doubt 
 question arises whether it is a cancellation of the marriage ^ ie ierl 
 contract or a repudiation. According to Al Moortuza it cellation 
 is the latter, and his opinion is supported by tradition. 0^0.^1 
 The Sheikh, however, prefers to consider it as a cancellation ; contract 
 and in this view of it no account can be taken of it in the diation ?U ' 
 number of repudiations. 
 
 1 The author has not given any definition of khoold, and I forbear 
 to translate these terms, otherwise than by putting them into an 
 English form, though, as it will appear a little farther on that khoold 
 has the effect of an absolute divorce, they might very well be ren- 
 dered, " I have divorced thee," or "Such an one is divorced." 
 PART II. K 
 
130 
 
 DIVORCE. 
 
 Repudia- 
 tion for a 
 
 ransom is 
 absolute. 
 
 When 
 asked for 
 must be 
 given im- 
 mediate- 
 ly ; other- 
 wise it is 
 revocable. 
 
 II. The 
 
 ransom : 
 
 not 
 limited ; 
 
 but must 
 be some- 
 tliing that 
 is lawful 
 to Moos- 
 Urns. 
 
 Tuldk or repudiation when given for a ransom takes 
 effect absolutely, though no use has been made of the word 
 khoold. If a woman should ask her husband for a tuldk 
 in exchange for something, and he should khoold her with- 
 out using the word tuldk, it would not take effect according 
 to either of the opinions before mentioned. While, if she 
 asked for a klwold in exchange for something, and he gave 
 her a tuldk for it, she would not be liable for the exchange, 
 according to those who think that klwold by itself is a 
 cancellation, and liable, according to those who consider it 
 as a repudiation, or as not requiring the addition of the 
 word tuldk. Again, if the husband should say, " Thou art 
 repudiated for a thousand," or, " with a liability for a 
 thousand," the repudiation would take effect revocably 
 without any obligation on her part for the thousand, even 
 though she should afterwards voluntarily give a security 
 for it, as it would be a security for what was not due. 
 And if she should actually pay the amount, it could only 
 be considered as a new gift, and the repudiation would 
 by no means become absolute or irrevocable. Further, 
 when a woman says, " Repudiate me for a thousand," the 
 answer should be immediate ; for if there is any delay the 
 husband would not be entitled to the exchange, and the 
 repudiation, if given, would be revocable. 
 
 With regard to the ransom, whatever may be validly 
 given as dower is also valid as the ransom of khoold ; and 
 there is no limit to the amount, so that it may lawfully ex- 
 ceed whatever was given to the woman as her dower or on 
 any other account. When the ransom is not produced, 
 its kind, quality, and quantity must be mentioned ; but if 
 produced mere inspection is sufficient. When it is money 
 it must be paid in the coin most prevalent in the city, 
 unless some particular currency is mentioned, when it 
 must be paid in that. Where, again, the khoold is for a 
 thousand, and nothing has been said to show what was the 
 intention of the parties, the khoold is invalid. So also it is 
 invalid, when the ransom is something the property in 
 which is unlawful to Mussulmans, as wine for instance. 
 Some say, however, that the khoold should take effect 
 
khoolA. 131 
 
 revocably ; which would be right if it were followed by a 
 tuldh ; but otherwise, it is better to say that the Tchoold is 
 void. If the khoola was for vinegar, and it proves to be 
 wine, the transaction is valid, but the husband is entitled 
 to have the full quantity in vinegar. Where, however, the 
 ransom is the foetus of which a beast or a female slave is 
 pregnant, the khoola is not valid. 
 
 The ransom may be disbursed by the woman herself May be 
 or by her agent, or any one who has become her security J^ w0 { 
 for it, with her permission. But whether it may be paid man, or 
 by a mere voluntary is liable to doubt, the better opinion or surety.' 
 being against such payment. Yet if a person should say, 
 " Repudiate her for a thousand of her own money on my 
 guarantee," or " for this slave of hers on my guarantee," 
 the transaction would be valid ; insomuch that, though she 
 should be unwilling to deliver what was specified, the khoola 
 would be valid, and the voluntary liable on his guarantee. 
 Upon this point, however, there is room for doubt. 
 
 If a woman should enter into a khoola during her death Khoola 
 illness, the transaction would be valid though the ransom though 
 were in excess of a third of her estate. But here it is entered 
 maintained by some of our doctors that any excess over ^oman hi 
 the proper dower must come out of the third ; and the her last 
 opinion seems to be in accordance with the principles of and f ' r 
 law. If the ransom be the suckling of the husband's child, more than 
 it is valid provided that the time during which the suckling her esta te. 
 is to last is distinctly specified. So also, if a man should 
 repudiate his wife in exchange for the child's maintenance, 
 the transaction would in like manner be valid, subject to 
 the like condition that the quantity of the food and clothing 
 which may be required, and the time for which they are 
 to be provided, are all distinctly specified. If in either of 
 the last two cases the child should die before the com- 
 pletion of the time, the repudiator would be entitled to 
 a suitable compensation for so much of it as should remain 
 unexpired, namely, the hire of a nurse for so long if the 
 ransom were the suckling of the infant, and the value of 
 the food and clothing if it were the infant's maintenance. 
 
 If a husband should enter into a Tchoold with his wife If the ran- 
 som is not 
 
] 32 DIVORCE. 
 
 equal to for a consideration sufficiently described, and which when 
 Bcriptionit delivered does not come up to the description, he may re- 
 may be turn what has been so delivered, and demand its exchange 
 for something corresponding to the description. So also, 
 if the thing delivered be blemished, he may return it and 
 claim an exact similar unblemished, or its value ; or if he 
 please he may retain the thing and require a compensation 
 for the blemish. So also, the same course is open to him 
 if the consideration were a slave who proves to be of a 
 country, or a piece of cloth that is found to be of a place, 
 different to that described. Not so, however, if the con- 
 sideration was a piece of silk and it proves to be cotton ; 
 for, though in that case the khoold is valid, and the 
 husband is entitled to the value of the silk, he cannot 
 insist on retaining the cotton, by reason of the difference 
 of kind between the two things. 
 Khooldnot If a wife should deliver a thousand to her husband, 
 h l ft sa yi n £' " Repudiate me for it when you please," the 
 tothehus- payment would not be valid, and if he should repudiate 
 octJon ^ er ^ e repudiation would be revocable, and the woman 
 
 entitled to the money. 
 May be If a khoold is made with two women for one ransom, 
 
 granted to ^h e £/ t00 ^ i s valid and the ransom payable bv them equally. 
 
 two wo- . r J J I 
 
 men for If two should say, " Repudiate us for a thousand, ' and he 
 
 one repudiates only one of them, he is entitled to half the 
 
 ransom. . 
 
 sum ; but if he should subsequently repudiate the other 
 
 the repudiation would be revocable, and he would have no 
 
 title to the remainder, on account of his delay in responding 
 
 to what required an immediate answer. 2 
 
 Valid If a man should enter into a khoold with his wife for 
 
 the ran- a specific article, which proves to be the property of another, 
 
 som be it has been said that the khoold is void ; but it were better 
 
 specified 
 
 and the ' *o say that it is valid, and the man entitled to the value 
 
 property f the article specified, or a similar to it if it belong to the 
 ofano- i j. • -1 
 
 ther. class of similars. 
 
 Ransom The payment of ransom by a female slave is valid. If 
 
 paid by a permitted generally by her master the amount is limited 
 
 2 See ante, p. 130. 
 
KHOOLA. 133 
 
 to the proper dower, and for any excess beyond it she female 
 
 herself is liable, and may be sued for it if emancipated s ave ' 
 and able to pay, while she is liable for the original even in 
 
 the absence of any permission by her master. And if she appa- 
 
 should give a specific thing with his permission, both the without 
 
 Jchoold and the delivery would be valid ; otherwise, the her mas- 
 
 lihoold only would be valid, and the slave herself liable „,; m j*L " 
 
 *> > mission. 
 
 for the value or a similar of the article, to be sued for 
 after emancipation. Payment of ransom by a repudiated 
 mookatubali is also valid, and her master has no right to 
 object. 
 
 With regard to the conditions of Jchoold, those which in. Con- 
 are required on the part of the Jihali or man granting ^ tl0 7 " s _ 
 it are four in number — viz. puberty, sanity, freedom of Kequired 
 choice, and intention; so that no Jchoold is valid if made b nt ^ eius " 
 by a boy under puberty, or by an insane person, or one 
 acting under compulsion, or in a state of intoxication, or 
 in a paroxysm of anger so great as to take away all real 
 intention. If Jchoold is to be considered in the light of a 
 tuldk, or repudiation, it is void when entered into by a 
 guardian for his ward ; but if Jchoold is not a tuldl; it is 
 valid when given by a guardian for something in exchange. 
 
 The conditions required in a mookJitullah, or woman Eequired 
 receiving a JiJwold, are that she be tahir, or pure for a in * ne 
 tooJir or period of purity in which no connubial intercourse 
 has taken place ; that is, when she is a woman whose 
 marriage has been consummated, is not past child-bearing, 
 and whose husband is present with her. It is also requi- 
 site that there be some aversion on the part of the woman 
 to her husband. But though a woman should say to her 
 husband, " I will most certainly bring in upon you some 
 one whom you won't like," that would not render a Jchoold 
 imperative, though it would be proper and expedient in 
 such circumstances. KJwoId of a pregnant woman is 
 valid, though there should be some appearance of a san- 
 guinary discharge, as repudiation would be valid in such 
 circumstances, though it might be said that the courses 
 are upon her. So also it is valid in the case of a woman 
 whose marriage has not been consummated, though she 
 
134 DIVOKCE. 
 
 were actually subject to them at the time ; and a woman 
 who is past child-bearing may be the subject of a hhoold, 
 though connubial intercourse should have taken place in 
 the toohr in which it is effected. 
 Two wit- It is farther required, to the validity of the contract, 
 
 nesses ^hat ft should be entered into before two witnesses who are 
 present at the same time ; for if they are separate it is not 
 valid. It is also necessary that it be free from conditions. 
 Khoold by Khoold may be lawfully entered into by a man who is 
 an inhi- under inhibition, whether it be for profusion or insolvency ; 
 son, zim- or by a zimmee, or infidel subject, or by a hurbee or alien 
 mee or enenw. And if in the two last cases the consideration is 
 lawful! wine or a hog, the contract is valid notwithstanding ; but 
 if both or either of the parties should be converted to the 
 faith before delivery of the exchange, the woman would be 
 liable for its value. 
 KhooU The conditions that nullify a khoold are those which 
 
 nullified the contract itself does not require. For if the husband 
 tions in- should say, " If you revoke, I revoke," such a condition 
 consistent wou ld no t nullify the contract, for it is one which it 
 contract, requires. 3 So also if the wife should expressly stipulate 
 for a right to reclaim the consideration, the khoold would 
 still be valid. But if he should say, " I have given you a 
 hlioold if you will," the hhoold would not be valid, though 
 she should say, " I have willed it ; " for this is not a con- 
 dition which the contract requires. So also if he should 
 say, " If thou wilt be responsible to me for a thousand," 
 or, " If thou wilt give me," or words to the like effect ; or 
 if he should say, " when," or " whenever," or " at what 
 time," the hhoold would not be valid. 
 IV. Laws. With regard to the laws of hhoold, they may be gathered 
 
 from the following cases : — 
 Notlawful First. If a man should compel his wife into an agree- 
 
 if the wife men ^ f or a ransom, he would do what is unlawful; and if 
 
 is com- . ' 
 
 pelled to he should thereupon repudiate her, the repudiation would 
 
 be valid without any obligation on her part to deliver what 
 
 she had agreed to give. The repudiation, however, would 
 
 be revocable. 
 
 3 See next page. 
 
 enter into 
 it, 
 
ran- 
 som is re- 
 claimed 
 
 KHOOLA. 135 
 
 Second. If a husband should give a hhoold to his wife Nor when 
 
 while their dispositions or tempers are still in harmony, band and 
 
 the khoold would not be valid, and he would not become wife are 
 
 the proprietor of the ransom. And if he should repudiate °g rm °° 
 
 her for an exchange in like circumstances, he would not with each 
 become the proprietor of the exchange, but the repudiation 
 would be valid, though with liberty to him to revoke. 
 
 Third. If a woman has been guilty of any shameful Doubt 
 
 or profligate act, her husband may lawfully annoy her so profligate* 
 
 as to induce her to ransom herself. It has been said, woman 
 
 however, that this has been abrogated, and is no longer j^sed 
 
 permitted. into ran- 
 
 Fourth. When a khoold has been established, the hus- herself 
 
 band has no power of revocation. The wife, however, may Khoold 
 
 reclaim the ransom at any time during the subsistence of nofc revoc - 
 
 i-77 -n -i-i-iT i t aD ' e unt il 
 
 the iddut ; and if she should do so, he may then revoke the 
 
 the hhoold if he please. 
 
 Fifth. If a man should enter into a khoold, and stipu- by the 
 
 late for a power to revoke it, the khoold would not be Wlfe - 
 
 valid. So also repudiation for an exchange would be ^thasti- 
 
 invalid with a like stipulation. pulation 
 
 Sixth. A mookhtullah or woman who has received a 
 
 khoold is not affected by a repudiation pronounced subse- w h has 
 
 quently to it, because the latter is, in its nature, revocable, received a 
 
 m i-r>i l-i 1-i-it khoold not 
 
 true, that it she reclaim the ransom, iier husband may suscepti- 
 
 lawfullv revoke the khoold, and then repudiate her. J 3 ^ of 
 
 . beirj°* re- 
 
 Seventh. When a woman's father says to her husband, pudiated. 
 
 " Repudiate her and thou art free from her dower," and he Agree- 
 
 does repudiate her, the repudiation is valid revocably, and ™Q mai / s a 
 
 she is neither obliged to discharge her husband from the father for 
 
 payment of the dower, nor is her father responsible. tion^notT" 
 
 Eighth. When a woman has appointed an agent for valid. 
 
 khoold generally, the ransom must not exceed her proper An agent 
 
 , '. , . , . 1 i a i • vi tot Ithoola 
 
 dower to be paid in the com ot the place. And m like mus t not 
 
 manner, when the husband appoints an agent for Jchoold exceed the 
 
 • i proper 
 
 m general terms, and the woman s agent gives more than dower. 
 
 the proper dower, the ransom is void, and the repudiation 
 
 takes effect revocably, without any responsibility on the 
 
 part of the agent. And if the husband's agent should grant 
 
13C 
 
 DIVORCE. 
 
 burden of 
 proof is 
 regulated. 
 
 the Txhoold for less than the proper dower, the Tchoold would 
 be void. So also if he should repudiate her for such a 
 ransom, the repudiation would not take effect, as he acted 
 contrary to his instructions. 
 
 Connected with the laws of Jchoold, are the following 
 cases regarding disputes : — 
 In dis- First. When the parties are agreed as to the quantity 
 
 M(?oL aSt ° °f tne ransom j but differ as to its kind, the word of the 
 how the woman is to be preferred. 
 
 Second. When they agree that the quantity was men- 
 tioned, and that nothing was said as to the kind, but differ 
 as to what was intended, the khoold is void, according to 
 some of our doctors, while others maintain that the burden 
 of proof is on the husband ; and this opinion is the more 
 approved. 
 
 Third. If the husband should say, " I granted the 
 hlioold for a thousand on your responsibility," and the 
 wife should say, " Nay, but on the responsibility of Z&id," 
 the burden of proof is on him, and the oath is on her; 
 and if she should take it, she is released from the ransom, 
 though Zeid does not thereby become liable. So, also, if 
 she should say, " Such an one made the agreement with 
 you, and he is liable for the ransom," the result would be 
 the same. But if she should say, " I made the agreement 
 myself, and such an one was my surety," she is liable for 
 the thousand so long as there is no proof, and nothing is 
 established against the third party merely on the ground 
 of her allegation. 
 
 How 
 effected. 
 
 Requires 
 
 mutual 
 
 aversion. 
 
 Section Second. 
 
 Of Moobardt. 
 
 Moobardt is effected when the husband has said, 
 " Bareetolci ula kuza fu unti talikoon" (" I have liberated 
 thee for so much, and thou art repudiated "). It is founded 
 on the mutual aversion of the husband and wife ; and it is 
 a condition that the moobardt, or liberation, be followed by 
 the word tidal-, in so much that, if the husband should 
 stop at the word moobardt, no separation of the parties 
 
MOOBARAT. 137 
 
 would take effect. And though, instead of Bareetoki, 
 
 other words, such as fasukhtoki, abuntoki, were employed, 
 
 they would be equally effective if followed by the word 
 
 tuldk, since it is that word alone which is required for the 
 
 separation, and none other. Even though the husband 
 
 should merely say, " Thou art repudiated for so much," it 
 
 would be valid and a moobardt, which is only another 
 
 expression for repudiation for an exchange, with mutual 
 
 repulsion between the spouses ; in each of whom the same 
 
 conditions are required as in the case of khoold. 
 
 Repudiation for an exchange is absolute, so that the Repudia- 
 
 husband has no power to revoke it, unless, indeed, the exc hange 
 
 wife should reclaim the ransom, which she may do at any irrevoca- 
 
 time during the subsistence of the idclut ; and if she t ^ e ex _ 
 
 should avail herself of the right, he may also revoke the change is 
 _ . ° J reclaimed, 
 
 repudiation. 
 
 Moobardt is like khoold, except that the former is Distinc- 
 
 founded on the mutual aversion of the husband and wife, \ l ^ n e " 
 
 while the latter is founded on the aversion of the wife moobardt 
 
 alone, and that in moobardt no more can be taken in ^^ 
 
 exchange for it than what she had actually received from 
 
 him, any excess being unlawful, while in Tchoold it is quite 
 
 lawful. Further, we are all agreed that in moobardt the 
 
 word tuldk is necessary to effect a separation between the 
 
 parties, while with regard to its being required in Tchoold) 
 
 there is a difference of opinion among us. 
 
138 DIVORCE. 
 
 CHAPTER IV. 
 
 OF ZIHAR. 
 
 Section First. 
 Its Form, Conditions, and Effects. 
 
 I. Form. In respect of Form, it is as if one should say to his wife, 
 " Thou art on me like the back of my mother ;" so also 
 if he should say, " This person," or make use of any other 
 word indicative of a particular individual, " is on me like 
 the back of my mother," the zihar would in like manner 
 be constituted. The particular word of connection is of no 
 importance ; so that, if he should say, " Thou art to me 
 or with me," it would make no difference. If, again, he 
 should liken her to the back of any other woman related 
 to him within the prohibited degrees by consanguinity or 
 fosterage, there are two traditions on the subject, and, 
 according to the most notorious or generally received of 
 these, zihar would be effected. But if he should liken her 
 to the hand of his mother, or her hair or belly, it has been 
 said that there would be no zihar, though there is a weak 
 tradition in favour of its taking effect in such a case, while, 
 if the likening were to any other than his mother in any 
 part of the person but the back, there is no doubt that 
 there would be no zihar. And if he should liken his wife 
 to a woman prohibited to him only by affinity, even though 
 the prohibition were perpetual, as in the case of a wife's 
 mother, or the daughter of an enjoyed wife, or the wife of 
 a father or son, zihar would by no means be induced. So, 
 also, his words would be alike ineffectual if the likening 
 were to the wife's sister, or her aunt, whether paternal or 
 
ZIHAR. 139 
 
 maternal, or if he should say, " Like the back of my 
 brother," or " father," or " paternal uncle," or if she 
 should say, " Thou art on me like the back of my father,'' 
 or " my mother." 
 
 In respect of conditions, it is necessary with regard to II. Condi- 
 the zihar itself that two just persons should be present faeliJiar 
 when it is pronounced, and hear the words of the moozahir, itself. 
 or husband, pronouncing them ; and also that the zihar 
 should take effect immediately. So that if the effect 
 should be suspended till the expiration of the month or 
 the entering upon Friday, there would be no zihar, accord- 
 ing to the best opinions. Where, again, zihar is made 
 dependent on a condition, though the grant is also subject 
 to doubt, yet it is more agreeable to traditional authority 
 to say that it would take effect. 
 
 With regard to the moozahir, it is required that he be Of the 
 adult and sane, have freedom of choice and intention. So moozalar - 
 that the zihar of a child, an insane person, or one acting 
 under compulsion, or temporarily incapable of intention 
 through drunkenness, stupor, or a paroxysm of passion, 
 are all equally invalid. And if one should use the formula 
 of zihar, intending repudiation, there would neither be 
 repudiation, for want of the appropriate word tuldh, nor 
 zihar for want of intention. Zihar by an eunuch is valid, 
 if we say that dalliance short of connubial intercourse is 
 prohibited by it ; so also it is valid when pronounced by 
 an infidel or a slave. 
 
 With regard to the moozahurah, or woman who is the Of the 
 
 subject of the zihar, it is a condition that she have been ,,,looza ' 
 J _ _ Imrah. 
 
 married by contract ; and, accordingly, zihar cannot take 
 effect with reference to one who is a stranger to the 
 moozahir at the time, though he should suspend, or make 
 it dependent on his marrying her. It is further required 
 that the woman be tahir, or pure, for a toohr, or period of 
 purity during which there has been no connubial inter- 
 course, that is, provided her husband be present with her, 
 and she is of an age to be subject to the courses ; for if 
 any of these conditions are wanting the zihar is valid, 
 though they were on her at the time. As to consumma- 
 
140 
 
 DIVORCE. 
 
 III. Ef- 
 fects. 
 
 When the 
 necessity 
 of expia- 
 tion arises. 
 
 Expiation 
 not evaded 
 by repu- 
 diation 
 and recall ; 
 
 but obvi- 
 ated in the 
 case of a 
 slave wife 
 by li or pur- 
 chase. 
 
 tion being a necessary condition there is some room for 
 doubt. There is a tradition, indeed, which supports its 
 necessity ; but later opinions favour the more general view, 
 being against any restriction in this respect. With regard 
 to a woman married by a rnootd, or a temporary contract, 
 there are various opinions ; but, according to that which is 
 best supported by traditional authority, zihar may take 
 effect on such a woman. And even in the case of a woman 
 enjoyed by virtue of a right of property, there is some 
 room for doubt ; for there is a tradition in favour of its 
 efficacy in the case of a bondwoman, as well as one who 
 is free. 
 
 The effects of zihar have been arranged under several 
 cases, of which the following are the most important : — 
 
 First. Expiation is not due merely on pronouncing the 
 zihar, but is rendered incumbent by a return to the wife, 
 by which is meant an intention to resume connubial in- 
 tercourse. And the more correct view seems to be that 
 nothing is established by the zihar itself except a pro- 
 hibition of such intercourse until expiation is made. If 
 connubial intercourse should take place before expiation, 
 two expiations would be necessary, and if repeated, the 
 expiation must be repeated also. 
 
 Second. When a husband has repudiated his wife, and 
 then recalled her, that does not render her lawful to him 
 without expiation. But if she should pass out of her iddut 
 without revocation, and he were then to marry her again, 
 no expiation would be due. So, also, if the divorce had 
 been absolute, and he should marry her again in the iddut, 
 and have connubial intercourse with her, no expiation 
 would be due. Neither would it be incumbent if both or 
 either of the parties should die, or any of them apostatize 
 from the Mussulman faith. 
 
 Third. If a man should zihar his slave wife, and then 
 purchase her, the marriage being cancelled by the purchase, 
 he might have sexual intercourse with her by virtue of his 
 right of property, without any necessity for expiation. So, 
 also, if a third party should purchase her after the zihar, 
 and cancel the marriage, which he is at liberty to do, the 
 
ZIHAR. 141 
 
 effect of the ziliar would be extinguished, and if her hus- 
 band should marry her by a mere contract he would not 
 be liable to any expiation. 
 
 Fourth. If a man should ziliar four wives by one Distinct 
 expression, a distinct expiation is due for each of them ; ^km^due 
 and if he should ziliar one several times he is liable for a when four 
 distinct expiation for each time, whether the ziliars were ^//^e^ 6 
 consecutive or separated by some intervals of time, though together, 
 some of our doctors distinguish between the cases ; and if 
 he have matrimonial intercourse before making expiation, 
 he is liable for a distinct expiation on each repetition of 
 the act. 
 
 Fifth. When the ziliar is in general terms conjugal When the 
 
 intercourse is forbidden until expiation is made ; but when zllia T. ls 
 
 1 ' condi- 
 
 it is suspended, or made dependent on a condition, such tional, ex- 
 intercourse is lawful until the occurrence of the condition, P iatlon 
 
 ' not due 
 
 and consequently no expiation is due for any previous till the 
 
 intercourse. If the intercourse itself has been made the ^curs 1011 
 
 condition, the ziliar is not established till it has taken 
 
 place, nor any expiation due till a subsequent return to 
 
 the wife. Some, however, have maintained that it becomes 
 
 due on the first occurrence of the intercourse ; but this 
 
 opinion has not by any means met with general reception. 
 
 Sixth. Connubial intercourse is prohibited to the moo- When ex- 
 
 zahir until he has made expiation, whether the expiation P iatlon 1S 
 
 . com- 
 
 be by emancipation, fasting, or feeding the poor ; and if menced, it 
 
 he should break the prohibition during the fast he must must be 
 
 begin it anew, — though some few have erroneously said the prohi- 
 
 that this is not necessary if the intercourse were during broken 13 
 
 the night. But whether expiation is due for anything before its 
 
 short of connubial intercourse, such as kissing or touching, ^°™ p e " 
 
 is a question on which there is a difference of opinion ; and 
 
 the affirmative, which is maintained by some, is attended 
 
 with a good deal of difficulty. 
 
 Seventh. When the moozahir is unable to make expia- If themoo- 
 
 tion, or offer any other substitute for it than asking pardon v^t 
 
 of God, prohibition continues, according to some, until expiate he 
 
 expiation is made; but others, with more probability, p^rdoiTof 
 
 maintain that to ask pardon is enough. God. 
 
142 
 
 DIVORCE. 
 
 Course to 
 be pur- 
 sued by 
 the judge 
 when com- 
 plaint is 
 made to 
 him by the 
 wife. 
 
 Eighth. If the moozahurah or woman who is the sub- 
 ject of the zihar chooses to have patience, no other has 
 a right to object. But if she brings the matter before 
 the judge, the husband must be put to his choice, either 
 to make expiation and return to his wife, or to repudiate 
 her, and three months are to be allowed to him to make 
 up his mind. If the time is allowed to expire without 
 making his choice, he is then to be straitened in respect 
 of meat and drink, till he comes to a determination as to 
 one or other of the courses ; but he is not to be compelled 
 by means of the straitening to repudiate his wife, nor is 
 the judge empowered to make the repudiation in his stead. 
 
 Is of seve- 
 ral kinds. 
 
 That ap- 
 plicable to 
 zihar. 
 
 1. By 
 
 emancipa- 
 tion of a 
 slave ; 
 
 who must 
 be a Moos- 
 lim. 
 
 Section Second. 
 Expiation. 
 
 Expiations are of several kinds, some of which are 
 obligatory and some voluntary. In this place it is only 
 necessary to notice the expiation of Zihar, which belongs 
 to the former class, and requires the emancipation of a 
 slave, or, in case of inability to emancipate, fasting for 
 two successive months, and in the case of inability to fast 
 for that time, the feeding of sixty poor persons. 
 
 The obligation to emancipate is special to those who 
 have it in their power to do so by actually possessing a 
 slave, or by having the money and opportunity to buy 
 one. In the slave are required the three following 
 qualities. — First, he must have eeman or the true faith. 
 This is universally required in the expiation for intentional 
 homicide, and, according to the best or most approved 
 opinion, is also a condition in the other cases of obligatory 
 expiation. But here nothing more is to be understood 
 than Islam or a profession of the Mussulman faith ; and 
 it makes no difference whether the slave be male or female, 
 young or full grown. An infant may come under the 
 category of Islam, and is sufficient for the purpose of 
 expiation in zihar, if both or either of his parents be 
 of the Mussulman faith at the time of its birth. But one 
 in the womb is not sufficient, though both its parents 
 
ZIHAK. 143 
 
 should be Mooslim, and itself is such in the eye of the 
 law. When a slave who is dumb attains to puberty, and 
 professes the faith by signs, he is accounted a Mooslim, 
 and is sufficient for the purpose of expiation, though both 
 his parents should be infidels. By the quality of Islam 
 in the matter of expiation is not required such a profession 
 of the faith as entitles one to the full enjoyment of its 
 blessings. It is quite sufficient if the slave be firm and 
 established in the two testimonies, that is, the Unity of 
 God and the Mission of the Prophet ; and it is not a 
 condition that he be free from everything besides. A 
 youth under puberty, the child of infidel parents, cannot 
 be accounted a Mooslim, whether they be with him, or the 
 youth professing himself to be a Mooslim is separated 
 from them. Even a moorahiJc, or boy closely approach- 
 ing to puberty, who professes the faith, is not to be so ac- 
 counted; though on this point there is room for doubt and 
 hesitation, as also whether he should be separated from 
 his infidel parents. This question, however, though it is 
 admitted that he is still to be accounted an infidel, has 
 been answered by some of our doctors in the affirmative, 
 as a precaution to guard his good intentions from being Free from 
 ' marred by the influence of his parents. The second e ec s ' 
 quality required in the slave to be emancipated is freedom 
 from defects. So that one who is blind, leprous, or unable 
 to walk, is not sufficient. Other infirmities, however, do 
 not disqualify the slave, such as dumbness, deafness, or 
 the loss of one leg or one arm ; but one who has lost both and the 
 his legs is not sufficient because unable to walk. The nertvof°" 
 third requisite is that the slave be the entire property of the eman- 
 the emancipator. So that a moodubbur is not sufficient cipa or 
 so long as the tudbeer is undissolved, nor a mookatub who 
 has paid any part of his ransom ; but an abik or absconded 
 slave is sufficient so long as there is no positive intelligence 
 of his death. So also a moostuwludah, or slave who has 
 borne a child to her master, is sufficient, for slavery is still 
 established in her. 
 
 The emancipation is subject to some conditions. First, Condi- 
 there must be intention, that is, an intention to expiate : *! 011S of 
 
 ' ' *■ the eman- 
 
 cipation . 
 
144 DIVORCE. 
 
 for emancipation is an act of piety which is susceptible of 
 different phases, and must be pointed to one in particular 
 by intention. There must also be in the intention a 
 hoorbut, or a desire of drawing near to God. Hence ex- 
 piation by an infidel is invalid, whether he be a subject, 
 an alien, or an apostate. Second, the emancipation must 
 be entirely gratuitous ; for if the master should say to his 
 slave " Thou art free and liable for so much," it would not 
 suffice for expiation, since it is evident that he intended 
 to get something in exchange. And if a third party should 
 say to the master, " Emancipate thy slave as an expia- 
 tion, and thou hast so much against me," and he should 
 emancipate accordingly, it would not suffice for expiation. 
 Even though the master should restore the exchange after 
 he had taken possession of it, still there would be no 
 expiation ; for the emancipation being insufficient for that 
 purpose at the time it took place, cannot be rendered 
 sufficient by any subsequent act. Thirdly, there must be 
 no cause for the emancipation in an unlawful act of the 
 emancipator. Thus, if he should have put out the slave's 
 eyes, or cut off both his legs, and should emancipate him, 
 intending expiation for zihar, the emancipation would take 
 effect, but not suffice for that purpose. 
 2. Fasting In obligatory expiation fasting is required when there 
 
 necessary j s inability to emancipate : and such inability is established 
 in case of , . tit 
 
 inability either by the non-possession of a slave and the absence of 
 
 toemanci- ^he mean s of purchasing, or by the impossibility of find- 
 ing a suitable slave, though there may be the means of 
 purchasing him. Though the person should be actually 
 possessed of a slave, yet if he is required for service, or if 
 his price be necessary for the person's food or clothing, 
 he is not obliged to emancipate. Nor is he under any 
 obligation to sell his house or his clothes for the purpose 
 of buying a slave to emancipate, though any excess above 
 what is necessary ought to be sold. When inability to 
 emancipate is clearly established, it is necessary, as the 
 expiation in zihar, to fast for two consecutive months, or 
 one month if the person be a slave. If the fast is broken 
 in the first month without a sufficient excuse, it must be 
 
ZIHAR. 145 
 
 begun anew ; but should he fast, though only for one day 
 of the second month, the fast is held to be completed and 
 he is absolved. Some indeed consider him guilty of sin in 
 breaking the fast, but there is some doubt on the point, 
 and the better opinion seems to be that he is not. It may 
 be observed that the only proper excuses applicable to a 
 case of this kind are sickness, fainting, and insanity. 
 
 In the event of inability to fast, expiation must be 3. Feed- 
 made by feeding the prescribed number of persons, that is, in Q^^en 
 by giving to each one moodd} Some say indeed that the there is 
 proper quantity is two moodds, and that it is only in case ™ a f J g J y 
 of necessity that one moodd can be deemed sufficient, but 
 the first opinion is not approved. Any abatement from 
 the full number of persons to be fed is not allowed, though 
 the quantity should be the full allowance for the prescribed 
 number, — that is, when the prescribed number can be 
 found, otherwise the expiation is satisfied by repeating the 
 allowance even to one person. The kind of food should be 
 the medium of what is given to the expiator's family ; or 
 what is the prevalent food of the place may be lawfully 
 given. The prescribed number may be fed separately or 
 all together. But it is not sufficient to feed children by 
 themselves, though they may be lawfully fed among the 
 general mass. If they should be fed separately two must 
 be counted as one grown person. It is proper to confine 
 the feeding to true believers, 2 and those who are reckoned 
 as such, their children for instance. According to the 
 Mubsoot the persons to whom the food is to be distributed 
 are the same as those on whom the zukat of the fi.tr is to 
 be expended ; and those who cannot be lawfully included 
 on that occasion are not lawful here. It would seem that 
 profligate Mooslims may be included in the feeding; but it 
 is by no means to be extended to infidels. 
 
 In connection with the subject of expiation generally, Miscel- 
 
 the following cases are worthy of attention : — laneous 
 
 . . . . cases. 
 
 First. Ability has reference to the time when expiation .,.-,.. 
 
 — has refer- 
 
 1 A weight estimated at 1£ rutl. — Im. D., p. 78. 
 
 2 Moomineen, but apparently not here restricted to Sheeahs. 
 PART II. L 
 
14G 
 
 DIVORCE. 
 
 encc to 
 the time 
 of expia- 
 tion. 
 
 A man 
 who has 
 begun one 
 mode of 
 expiation, 
 not ob- 
 liged to 
 revert to 
 another 
 though 
 able. 
 
 Expiation 
 before in- 
 tention to 
 return not 
 sufficient. 
 
 Expiatory 
 food, how 
 to be dis- 
 posed of. 
 
 Value not 
 a substi- 
 tute. 
 
 Alterna- 
 tive of 
 inability 
 to fast 
 the full 
 time, &c. 
 
 is to be made, not to the time when it became incumbent. 
 So that, if a man who was at first able to emancipate, 
 should subsequently become incompetent to do so, and 
 should fast instead, he is no longer under an obligation to 
 emancipate. 
 
 Second. When a man is unable to emancipate, and has 
 begun to fast, but subsequently becomes possessed of suffi- 
 cient means to enable him to emancipate a slave, he is not 
 obliged to return to that mode of expiation. So, also, when 
 he is unable to fast, and has taken to feeding the poor 
 instead, but subsequently finds himself able to endure the 
 first mode of expiation, he is not obliged to return to it. 
 
 Third. When one has emancipated a slave before in- 
 tending to return to his wife, that, according to the 
 Sheikh, does not suffice to expiate the zihar, because the 
 expiation was made before it was due ; and the opinion is 
 quite correct. 
 
 Fourth. The food of expiation is not to be given to an 
 infant, but to his guardian. 
 
 Fifth. Nor is expiation to be expended on one whom 
 the expiator is otherwise obliged to maintain, as his father, 
 wife, children, or slaves. But it may be expended on any 
 others than these, though they should be near relatives. 
 
 Sixth. It is not sufficient to give value in a case of 
 expiation, instead of the thing itself, which is obligatory. 
 
 Seventh. Any one on whom it is incumbent to fast 
 for two months, but is unable to do so, let him fast for 
 eighteen days. If unable for that, let him bestow in 
 charity to the extent of one moodd per day. If unable for 
 that, let him ask pardon of Almighty God, and nothing 
 more is required of him. 
 
( 147 ) 
 
 CHAPTER V. 
 
 OF EELA. 
 
 In form, Eela is an oath by God, and cannot be contracted Form, 
 without one of the Divine names ; but it may be effected 
 in any language when so intended. The words by which 
 it is constituted are either plain and express, being specially 
 appropriate to sexual intercourse, or capable of being so 
 interpreted. For the former, there are no corresponding 
 terms in the English language. The latter are such as, 
 " By God, I will have no connection with thee ; " and, if 
 used designedly with a view to eela, they are sufficient 
 to constitute it; but, unless so intended, they are not 
 sufficient, while the others are sufficient in themselves. 
 Whether eela can be made in dependence on a condition, 
 is a question on which there are two reports of the Sheikh's 
 opinion. According to the most notorious or generally 
 received of these, it cannot be constituted either in depend- 
 ence on a condition or to take effect from a future time, 
 and, if attempted, the condition would be surplusage. If 
 a man should swear " by emancipation," or " by alms," or 
 " by prohibition," that he would not have connection with 
 his wife, there would be no eela, even though intended. 
 Neither would it be affected by his saying, " If I do so I 
 am liable for so much." And if a man, having properly 
 made an eela with one wife, should say to another, " I 
 have associated thee with her," there would be no eela 
 with the second, though it were intended, since eela cannot 
 be effected except by an expression involving some name 
 of God. 
 
 L 2 
 
148 
 
 DIVORCE. 
 
 Condi- 
 tions re- 
 quired in 
 thv moolce, 
 or hus- 
 band; 
 
 in the 
 
 moola, or 
 wife. 
 
 Laws of 
 eela. 
 
 Must be 
 for more 
 than four 
 months. 
 
 With regard to the moolee, or person pronouncing the 
 eela, it is required that he be adult and sane, and have 
 freedom of choice and intention. But eela by a slave is 
 valid, whether his wife be free or a bondwoman. So, also, 
 that by a zimmee and an eunuch ; even a nmjboob, or one 
 who has lost the penis, is valid, though, with regard to the 
 latter, there is some room for doubt. 
 
 With regard to the moola, or woman who is the subject 
 of the eela, it is necessary that she be married by contract, 
 and not merely by virtue of a right of property ; and also 
 that the marriage has been consummated. With regard 
 to a woman married by moota, or a temporary contract, 
 there is some doubt ; but, according to the better opinion, 
 she is not a subject for eela. It makes no difference, 
 however, whether a woman be free or a slave ; and in 
 either case she is competent to bring the matter before a 
 judge, to have a time fixed, and after its expiration to 
 demand a return to conjugal intercourse. Eela may also 
 take effect with a zimmeeah, or infidel subject, as well as 
 with a mooslimah. 
 
 The laws of eela are comprehended under the following 
 cases : — 
 
 First. Eela is not contracted unless the prohibition is 
 absolute, perpetual, or for a time exceeding four months, 1 
 or to continue until the occurrence of something which 
 certainly cannot, or in all probability will not, happen 
 before the expiration of that time, as if a man should say, 
 being in Irak at the time, " Until I go to and return from 
 a town in Turkey." If the time is four months only, 
 or somewhat less, or is limited by an event which will 
 certainly, or probably, or possibly happen within that time, 
 eela will not be effected. And if he should say, " By 
 God, I will not have connection with thee until I enter 
 this mansion," there would be no eela, for he might be 
 freed from the necessity of expiation by having connection 
 in the entrance, which would evade the eela. 
 
 Four months are sufficient, according to the other sect. — D., 
 
 p. 295. 
 
. EELA. J 49 
 
 Second. The time for the woman to wait is four months, Woman 
 whether she be free or a slave, and whether her husband ^four 11 
 be the one or the other. And this time is the husband's months 
 right ; so that within it she cannot demand his return to can lay 
 her. Nor when it has expired, is she divorced by the the matter 
 mere expiration. Neither has the judge any power to judge. 
 divorce her. But if she should bring the matter before 
 him, the husband must then make his choice either to re- 
 pudiate or to return to her. If he should repudiate her, 
 that would put an end to her right, though the repudiation 
 would be revocable, according to the best opinions. So 
 also, if he should return to her, that would equally put an 
 end to her right. But if he refuse to do either of the 
 things required of him, he is to be imprisoned and 
 straitened until he either repudiates or returns to her. 
 The judge, however, has no power to compel him to do 
 either of these in preference to the other. If the eela 
 should be for a definite time, and he procrastinates after 
 the matter is brought before the judge till the time expires, 
 the effect of the eela abates, and he is not liable for any 
 expiation, though he should have counection with his wife. 
 If she should deem it her right to demand a return, it 
 would not thereby be extinguished, for it is constantly 
 renewed ; and it is only rights that are not thus susceptible 
 of renewal that can be extinguished by forgiveness. 
 
 Branches from the Preceding. 
 
 First. If the husband should have conjugal intercourse Conjugal 
 
 within the time of expectation, he is liable to expiation ™**~ e 
 
 according to general agreement ; but if the intercourse within the 
 
 should not take place till after the expiration of that time, ^es^x- 
 
 it is stated in the Mubsoot 2 that there would be no necessity piation. 
 for expiation ; but it is said in the Khilaf 2 that he would 
 still be liable, and this opinion is the better founded. 
 
 Second. When a man has pronounced an eela with J^JJ 1 . 1011 
 
 respect to a wife who is a slave, and then purchases, quired 
 
 emancipates, and remarries her, the eela does not revive, jjj™ the 
 
 " ' being a 
 
 2 Both works are by the Sheikh. slave, is 
 
150 
 
 DIVORCE. 
 
 emanci- 
 pated and 
 remar- 
 ried by 
 her hus- 
 band. 
 
 Case of 
 four wives 
 included 
 in one 
 eela. 
 
 Eela of a 
 wife revo- 
 cably re- 
 pudiated 
 valid. 
 
 Expiation 
 in case of 
 eela. 
 
 And the result would be the same if the conditions were 
 reversed, and the wife being free should purchase, emanci- 
 pate, and then remarry her husband. 
 
 Third. When a man has said to four wives, " By God, 
 I will not have connection with you," he does not become 
 a moolee on the instant, and may lawfully have intercourse 
 with three of them ; but then the prohibition will attach to 
 the fourth, with respect to whom the eela becomes esta- 
 blished. Consequently, she may bring the matter before 
 the judge, to have a time fixed for her. If one of the wives 
 should die before the husband has had connubial intercourse 
 with any of them, he is released from his vow, for a breach 
 of it cannot be established except by connection with the 
 whole four. The case would be different if he should repu- 
 diate one or two or three of them ; for then the vows would 
 remain in full force as to the remaining wives or wife, 
 since connection with those whom he may have repudiated 
 is still within his power under a semblance of right. If, 
 however, he had said, " I will not have connection with 
 one of you," eela would be established as to all, and a time 
 must be fixed for all. True, that if he should have con- 
 nection with one of them, he would be released from his 
 vow as to the remainder ; though if he should repudiate 
 one or two or three of them, the eela would still be good 
 as to the rest. 
 
 Fourth. When a man has pronounced an eela with 
 respect to a wife repudiated revocably, the eela is valid, 
 and the icldut is to be reckoned from the expiration of the 
 time. And the rule is the same if he should repudiate 
 his wife revocably, and then pronounce an eela with respect 
 to her, and subsequently recall her. 3 
 
 It is to observed that the expiation in a case of eela 
 is the same as for a yurneen or oath ; and in expiating a 
 yumeen it is optional, either to emancipate a slave, or to 
 feed the poor, or clothe them. If clothing be preferred, 
 two garments should be given if the party be able, or one 
 
 3 Some of the cases have been omitted, as not likely to be of any 
 practical utility. 
 
EELA. 151 
 
 only if he cannot give more. Some have said, however, 
 that in either case it is optional to give only one ; and this 
 seems to be the better opinion. If, again, feeding should 
 be preferred, one moodd is the proper quantity of food for 
 each poor person, even though the party should be able to 
 give two moodds. If a man should beat his slave exces- 
 sively, it is proper to make expiation by emancipating him. 4 
 
 4 The authority for the last paragraph is taken from the chapter 
 on Zihar, pp. 341-2. 
 
152 DIVORCE. 
 
 CHAPTER VI. 
 
 OF LIAN. 
 
 Section First. 
 Its Pillars. 
 
 First These are four in number. The first pillar is its cause, 
 
 pillar: or ra ther causes, for there are two. The first cause is 
 1st. Scan- scandal ; but Lidn is not induced by this cause, except 
 dal. when a husband charges his moohsunnah, or chaste wife 
 
 whom he has enjoyed, with adultery, and alleges that he 
 has had ocular demonstration of the fact, but has no 
 other proof of it. If the woman charged be a stranger 
 to him, he is liable to the liudcl or specific punishment 
 for scandal, and there is no lidn. So also, if he should 
 charge his wife without alleging that he was witness to 
 the fact, the result would be the same. But if he has 
 proof, there is neither hudd nor lidn. So also, if the 
 accused woman be notorious for zina or adultery. It 
 follows, from ocular demonstration being required on the 
 part of the husband, that there can be no lidn for scandal 
 in the case of a blind man, though there may be for denial of 
 a child. If the accuser has proof but declines to produce 
 it in order to a lidn, it is a question whether lidn would 
 be valid. According to the Khilaf it would ; but this is 
 denied in the Mubsoot, on the ground that the want of 
 proof is made a condition in the sacred text ; * and this 
 opinion is more agreeable to the general principles of law. 
 If the charge of adultery be referred to a time previous 
 
 1 Those who charge their wives with adultery, and have no wit- 
 nesses but themselves. — See Inayah, vol. ii. p. 252. 
 
LIAN. 153 
 
 to the marriage of the parties, the husband is liable to the 
 hudd for scandal ; and whether he can avoid it by lidn is 
 a question on which the authorities differ. The author 
 of the Khilaf, looking to the fact charged, insists that he 
 cannot ; while the same author in the Mubsoot, having a 
 view to the time of the charge, maintains that he can ; and 
 this opinion seems to be most in accordance with the prin- 
 ciples of law. 
 
 It is not lawful for a husband to accuse his wife on A wife 
 mere suspicion, nor even with a strong probability of her be accused 
 guilt, founded on information given to him by a person on suspi- 
 in whom he can confide, nor though it should be a matter even ' 
 
 of common fame that such an one has committed adultery strong 
 
 presump- 
 with her. tion. 
 
 When a husband accuses his wife during her iddut for May be 
 a revocable repudiatiou, he may have recourse to lidn. a ur j no -the 
 But not so if the repudiation were absolute or irrevocable ; iddut for a 
 for in that case he would be liable to the hudd, even repuc {i a . 
 though he referred the charge to a time when she was tion - 
 still his wife. 
 
 The second cause of lidn is the denial of a child. 2nd. De- 
 But for the operation of this cause it is necessary that "^ 1 1 d ° f a 
 delivery should take place at six months or more from 
 the time of conjugal intercourse, and not beyond the 
 extreme period of gestation. It is further requisite that 
 the intercourse should have been under a permanent con- 
 tract. If the woman should give birth to a full-grown 
 child within six months from conjugal intercourse the 
 child is not affiliated to her husband, and may therefore 
 be denied by him without lidn. But if they differ, after 
 consummation, as to the time of the pregnancy, recourse 
 must be had to mutual lidn. And a child is not affiliated 
 to the husband unless access to his wife was possible, and 
 he was able for matrimonial intercourse. If, then, a boy 
 under nine years of age should go in to his wife, and she 
 should give birth to a child, it is not affiliated to him ; 
 otherwise, however, if the boy should have attained to ten 
 years or more, from the possibility of his being adult, 
 as puberty is sometimes, though rarely, found at that early 
 
154 DIVORCE. 
 
 age. Yet if he should deny the child there can be no lidn, 
 as there is no law for it in such circumstances, and it 
 must be delayed until he has attained to puberty and 
 discretion. But if he should die, whether before or after 
 attaining to both, without denying the child, it must be 
 affiliated to him, and both wife and child are entitled to 
 participate in his inheritance. A child is not affiliated 
 to an eunuch who is mujboob, though this is liable to 
 doubt ; and if the person is only one of these, that is, an 
 eunuch or a mnjboob, the child is affiliated to him, and 
 cannot be denied without lidn. 
 Child may When a husband is present with his wife at the time 
 at any °f her childbirth, and does not deny the child when con- 
 time be- gratulated on the event, he is precluded from afterwards 
 knowledg- denying it if the delay to do so exceeds what is customary 
 ment; } n such cases. It would be more proper, however, to say 
 that he is at liberty to deny it, so long as he has not 
 acknowledged the child to be his. And if he refrain from 
 denying a child of which his wife is pregnant till her 
 delivery, he may lawfully deny it after its birth, according 
 to both opinions; because he may have refrained till then, 
 on account of some doubt whether there was a real 
 pregnancy or only the appearance of it. But a person who 
 but once has once acknowledged a child expressly or in words that 
 
 acknow- l eav e no doubt of his meaning, cannot afterward deny it, as 
 ledgedcan , °' . -■ • 
 
 not be if, when congratulated on its birth, he has answered m 
 
 subse " words indicative of satisfaction. For instance, if the terms 
 quently . ' 
 
 denied; of congratulation were, "God has blessed you m your 
 
 child," and he should answer, " Amen," or " If it please 
 
 God." But if he should say by way of answer, " God has 
 
 blessed thee," or " God has done good to thee," there 
 
 would be no acknowledgment. 
 
 and, When a man has slandered his wife and denied her 
 
 though cliild, he is delivered from the hudd or specific punishment 
 
 paternity for the scandal if he can prove what he has laid to her 
 
 re"ected be cuar g e 5 but ^ ne chM cannot be rejected except by lidn. 
 
 except by And if a man should repudiate his wife absolutely, and 
 
 um ' she should be delivered of a child, it is affiliated to him 
 
 according to appearances, and cannot be denied otherwise 
 
liAn. 155 
 
 than by lidn. If she should marry again and be delivered 
 of a child at less than six months from intercourse with 
 her second husband, and at nine months or less since 
 her separation from the first, the child cannot be denied 
 by the first otherwise than by lidn. 
 
 The second pillar of lidn is the Mooldin or imprecating Second 
 husband, of whom it is required that he be adult and sane. P 1 * ]{T~ m 
 With regard to lidn by an infidel there are two reports, lain or im- 
 and, according to the more generally received of these, it j^g^*j g 
 is valid. The same may be said of a slave. And the lidn 
 of a dumb person is also valid when his meaning can be 
 ascertained by approved signs, in the same way as repudi- 
 ation and acknowledgment by him are valid. But lidn is 
 in no case valid without speech or approved signs. If a 
 person should deny a child begotten under a semblance of 
 right to intercourse with its mother, the paternity of the 
 child is negatived, and there is no room for lidn. And 
 when there is an absence of all or any of the conditions 
 of affiliation, it is an incumbent duty on a man to deny a 
 child and have recourse to lidn, that its nusub or paternity 
 may not be established in one who has no right to him. 
 But it is not lawful to deny a child on suspicion, or presump- 
 tion, or want of resemblance between it and its progenitor. 
 
 The third pillar is the Mooldinah or imprecating wife, Third 
 
 of whom it is required that she be adult and sane, and free pillar:— 
 
 -. n -, -r • • -i j.1 , i The Mo °- 
 
 from deafness or dumbness, it is also required that sue uinah or 
 
 was married by a permanent contract. With regard to impreca- 
 , at tm S wife, 
 
 consummation there are several reports. According to one 
 
 of these there is no lidn without it ; according to another 
 
 the lidn is lawful ; while a third restricts its legality to 
 
 a case of scandal, excluding denial of a child. Lidn is 
 
 established between a free man and a slave wife, though 
 
 here also there are two other opinions, one of which forbids 
 
 it, while the other allows it only for denial of a child, to the 
 
 exclusion of slander. Lidn is valid with respect to a pregnant 
 
 woman, though the hudd cannot be inflicted till her delivery. 
 
 A female slave does not become a finish or wife 2 merely Child of a 
 
 female 
 
 2 Firash means literally bed. 
 
156 
 
 DIVORCE. 
 
 Fourth 
 pillar : — 
 Form. 
 
 slave may by virtue of the right of property ; whether she becomes 
 without so ky sexual intercourse with her master is a question on 
 lidn. which there are two reports. According to that which is 
 
 best supported by traditional authority, she does not be- 
 come ajirash, and her child is not affiliated to her master, 
 without his acknowledgment. Even though he should 
 admit his intercourse with its mother, he may still deny 
 the child, and the case does not require lidn. 
 
 The fourth pillar of lidn is its form or the manner in 
 which it is conducted. It is not valid except in presence 
 of the judge, or some one appointed by him for the pur- 
 pose. Yet if the parties are content with a private person, 
 and take the lidn before him, it is lawful. Its effect is 
 established on the mere order when pronounced, though 
 some say that it requires the subsequent consent of the 
 parties. The proper form of the lidn is that the man 
 should four times call God to witness that he is among the 
 truth-speakers in respect of what he has laid to her charge, 
 and that he should then add, May the curse of God be 
 upon him if he be among the liars. The woman should 
 then call God to witness four times, that he is among the 
 liars in respect of what he has laid to her charge, and 
 should then add, May the wrath of God be upon her if he 
 is among the truth-speakers. The words of testimony are 
 as just explained, and it is proper that the man should 
 stand when uttering them, and that the woman should 
 also stand when doing so. Some, however, insist that 
 they should both be standing together before the judge. 
 The man should begin the formula as just stated, and then 
 the woman. He should also designate her in such a 
 manner as to prevent her from being mistaken for any 
 other, as by mentioning her name and that of her father, 
 or specifying some of her distinguishing marks. The 
 parties should also make use of the Arabic language if able 
 to do so, and are only to be excused by inability ; and the 
 judge, when unacquainted with that language, should take 
 the assistance of two interpreters, one being insufficient. 
 The man should begin with testifying, and conclude with 
 the word " curse ; " while the woman should also begin 
 
LIAN. 157 
 
 with testifying but conclude with the word " wrath." And 
 if, iustead of saying, " I testify by God," the parties should 
 say, " I swear," using the words husum or huluf, both 
 signifying an oath, the formula would not be lawful. 
 
 Section Second. 
 Laws of Lidn. 
 
 These are contained under several cases, of which the 
 following are the most impoi'tant : — 
 
 First. A man by slandering his wife becomes liable Its effects, 
 to the hudd, but his liability ceases on his taking the lidn, 
 and this is his right. The liability to hudd is then cast 
 upon the wife, and on her taking it four consequences 
 follow : — both the liabilities are at an end ; the child is 
 cut off from the man, 3 but not from the woman ; she 
 ceases to be a wife ; and becomes perpetually prohibited to 
 the man. If he should give himself the lie, or retract in 
 the midst of the lidn, or refuse to take it, the liability to 
 hudd is established against him, but none of the other 
 consequences are established. If she should refuse, or 
 acknowledge the truth of the charge, she is to be confined, 
 and he is relieved from the hudd, but her firash or wife- 
 hood does not abate, nor is prohibition established. If 
 he should give himself the lie, or retract after the lidn, 
 the child's paternity is restored, and with it his right of 
 inheritance ; but neither the father, nor any one related 
 through him, can inherit to the child, while the mother, 
 and those related through her, retain their right of in- 
 heritance to him. Her wifehood, however, does not return, 
 nor is there any abatement of the prohibition. On the 
 question whether his liability to the hudd revives, there 
 are two reports, but, according to that which is most in 
 accordance with traditional authority, he is not liable to 
 it. If, again, she should make an acknowledgment subse- 
 quent to the lidn, she would certainly not be liable to the 
 
 3 That is, when the cause of lidn is denial of a child. 
 
158 
 
 DIVORCE. 
 
 After de- 
 nial of 
 slander 
 recourse 
 cannot 
 be had to 
 lidn. 
 
 The hudd 
 for scan- 
 dal avoid- 
 ed by 
 proof of 
 the fact 
 alleged ; 
 
 or by 
 wife's con- 
 fession be- 
 fore lidn ; 
 
 though 
 the pater- 
 nity of a 
 child can- 
 not be 
 rejected 
 without it. 
 
 Doubt as 
 to four 
 witnesses 
 being re- 
 quired to 
 an ac- 
 knowledg- 
 ment of 
 zina, 
 though 
 necessary 
 to the fact 
 itself. 
 Lidn not 
 available 
 after 
 wife's 
 death. 
 
 hudd unless the confession were repeated four times, 4 and 
 even with that there is some doubt of her liability. 
 
 Second. When a woman complains that her husband 
 has slandered her in such a manner as to induce lidn, and 
 he denies the charge, but she adduces proof of it, he 
 cannot now have recourse to the lidn, for that would be 
 falsifying himself. 
 
 Third. When a man has slandered his wife with an- 
 other man in such a manner as to imply that they have 
 committed adultery together, he becomes liable to two 
 inflictions of the hudd, but can save himself from that due 
 to his wife by taking the lidn, and from both if he can 
 produce proof of the charge. 
 
 Fourth. When a man has slandered his wife, and she 
 confesses before lidn, then, according to the Sheikh, she is 
 liable to the hudd if the confession is repeated four times, 
 but her husband is absolved though she should confess 
 only once. If, however, the paternity of a child is 
 involved in the case, that cannot be rejected except by 
 lidn, which the husband may have recourse to of himself; 
 because the concurrence of the husband and wife as to the 
 fact of adultery does not ignore the paternity of a child, 
 since that is established by the firash, or wifehood, of the 
 woman. There is also some doubt as to the lidn. 
 
 Fifth. When a man has slandered his wife, and she 
 has acknowledged the fact, and he adduces two witnesses 
 to the acknowledgment, they cannot be received, according 
 to the Sheikh, and he is liable to the hudd. 5 There is, 
 however, some difficulty in the case, because the testimony 
 adduced is to the acknowledgment, not to the fact of 
 adultery. 
 
 Sixth. When a man has brought a scandal against 
 his wife, and she dies before the lidn, the lidn drops and 
 the husband is entitled to inherit from his wife, but is 
 liable to the hudd at the instance of her heirs. He may 
 
 4 This is required by the Imameea code, as well as by the Jtani- 
 feea. — Shuroya, p. 513. 
 
 5 Four witnesses are required to establish a charge of zina. 
 
LIAN. 159 
 
 then, however, to save himself from the hudd, have recourse 
 to the lidn. According to a report of Abu Buseer, if one 
 of her people should arise and put the husband to the lidn, 
 he would have no right in her inheritance, otherwise his 
 right remains ; and this opinion has some support from 
 the Khilaf; but the principle of law in the case is that the 
 right to inheritance is established by death, and cannot be 
 taken away by a subsequent lidn. j. . , 
 
 Seventh. If there has been a failure in any of the words valid if 
 required in the formula of lidn, it is not valid, and any faflur^of 
 order which the judge may have passed upon it is in- any of its 
 operative. ^ g££" 
 
 Eighth. The separation induced by lidn is a cancella- Separa- 
 tion of the marriage, not a repudiation. \}°, n ^ 
 ° ' x han is a 
 
 cancella- 
 tion of 
 marriage. 
 
160 
 
 DIVORCE. 
 
 CHAPTER VII. 
 
 OF IDDUT. 
 
 No woman 
 whose 
 marriage 
 has not 
 been con- 
 summated 
 obliged 
 to keep 
 iddut, 
 except a 
 widow. 
 Consum- 
 mation 
 described. 
 
 Mere re- 
 tirement 
 without 
 coition 
 does not 
 require an 
 iddut. 
 
 Section First. 
 
 Women on whom it is not Incumbent. 
 
 No woman is obliged to keep iddut whose marriage has not 
 been consummated, whether she was repudiated by her 
 husband or separated from him by a cancellation of the 
 contract, except only when the cancellation is by his 
 death. A widow is in all cases bound to observe an iddut, 
 whether her marriage was consummated or not. 
 
 Consummation is established by the insertion of the 
 glans penis, without emission, and even though the 
 husband be an eunuch. Some have said that an iddut 
 is also incumbent when he is a mujboob, from the possi- 
 bility of pregnancy by friction ; but this is liable to doubt, 
 as iddut is dependent on coition. If, however, pregnancy 
 should actually ensue, an iddut must necessarily be observed 
 till delivery. 
 
 In no case is iddut required in consequence of the 
 mere retirement of the husband and wife together without 
 coition, according to the most common or generally re- 
 ceived opinion. When retirement has taken place, and a 
 dispute subsequently arises between the parties as to the 
 fact of coition, the word of the husband with his oath is 
 to be preferred. 
 
IDDUT. 161 
 
 Section Second. 1 
 Women who reckon by Kooras. 
 These are -women who are subject to the courses, and Women 
 the iddut prescribed for them, when free, and whether to t ' he 
 their husbands be free or not, is three kooras, by which is courses 
 to be understood, according to the most common or gene- ^^ v 
 rally received of two traditions, three toohrs, or periods of for three 
 purity. If a man should repudiate his wife, and she were 
 then to menstruate a single luhzah, or instant, after, this 
 luhzah would be reckoned as one koora, and the two 
 remaining kooras would be completed on the appearance 
 of the third discharge ; so that the iddut would expire on 
 the instant. This is the case when the courses are regular, 
 returning after stated intervals. When, on the other hand, 
 there is any irregularity, the woman should wait for caution 
 till the expiration of the shortest time when they usually 
 recur, which, in reckoning for the iddut, is taken to be 
 twenty-six days and two luhzahs. Not that the last of the 
 luhzahs is included in the iddut, but it is added for greater 
 caution, as evidence of its completion. If a man should 
 repudiate his wife while the courses are actually on her, 
 the repudiation would have no effect, as already mentioned ; 
 but if the repudiation were given in a toohr, or period of 
 purity, it would be quite valid, though the woman should 
 menstruate when the man had done speaking, without an 
 appreciable instant of time intervening, because it took 
 effect in the toohr. Still, however, that toohr could not 
 be reckoned in the iddut, because it did not follow the 
 repudiation, and three new kooras would be required after 
 the menstruation. If there should be any difference on 
 this point, the wife insisting that a part of the toohr 
 remained after the repudiation, while the husband denies 
 that such was the case, the word of the woman is to be 
 preferred, because she had the best opportunity of knowing 
 the fact. 
 
 1 This and the following sections, to the fifth, relate to free women 
 who have been repudiated, or whose marriage has been cancelled 
 otherwise than by the death of their husbands. 
 
 PART II. M 
 
162 
 
 DIVORCE. 
 
 Adult 
 women 
 not sub- 
 ject to the 
 courses 
 must keep 
 ill (I ut for 
 three 
 months. 
 
 Women 
 past child- 
 bearing 
 not ob- 
 liged to 
 keep 
 iddut. 
 
 When 
 
 deemed 
 to be so. 
 
 Course to 
 be ob- 
 served in 
 a doubtful 
 case. 
 
 The 
 
 longest 
 possible 
 iddut. 
 
 Months to 
 be reck- 
 oned by 
 the moon. 
 
 Section Third. 
 Women ivho reckon by Months. 
 
 A woman who is not subject to the courses, though 
 she has arrived at the proper age, must observe an iddut 
 of three months after repudiation or other cancellation of 
 her marriage, provided that it has been consummated and 
 she is free. With regard to a ydissah, or woman who is 
 past child-bearing, and one who has not yet arrived at 
 puberty, there are two traditions. According to one of 
 these, they are both obliged to observe an iddut of three 
 months ; but, according to the other and more generally 
 received tradition, no iddut of any kind is obligatory on 
 either of them. The age when women are supposed to be 
 past child-bearing is fifty years, though it is said that, 
 among the Koreish and Nabateans, the age is sixty years. 
 If, in a particular case, the monthly discharge should have 
 ceased while women of the same age are generally subject 
 to it, the iddut is three months by general agreement. 
 In such a case, however, the woman should have regard 
 both to courses and to months ; so that, if three toohrs 
 should first be completed, or if three months should first 
 expire, the iddut would be at an end in either case. But 
 if she should perceive the discharge in the third month, 
 and the second and third appearance should be delayed, 
 she must have patience for nine months, for the possibility 
 of her being pregnant, and then keep an iddut of three 
 months. This of all idduts is the longest. A woman 
 whose courses occur only once in four or five months 
 should keep iddut by months. 
 
 When a woman has been repudiated at the beginning of 
 the hillal, or first appearance of the new moon, the three 
 months of the iddut are to be reckoned by hillals. Where, 
 again, she was repudiated in the middle of the month, the 
 iddut is to be measured by two hillals, and so much of 
 the third month as to make up for what was wanting 
 of the first. Some, however, are of opinion that here also 
 the three months must be reckoned by three hillals, and 
 
IDDUT. 163 
 
 the opinion seems to be more in accordance with the 
 general principles of the law. 
 
 If, after the iddut of a woman has expired, and she has A mar- 
 entered into a second marriage, any suspicion should arise ™|^ ?° t " 
 of her having been pregnant, the idclut is not invalidated after the 
 thereby. Nor is it invalidated even though no new mar- ^ P tJe tlCn 
 riage should have been contracted. But if there should iddut is 
 be any suspicion of pregnancy before the expiration of the ^ated^ 
 iddut, the woman ought to refrain from entering into an- 
 other marriage. And it would be proper to do so when 
 there is any suspicion of the kind, even though the iddut 
 should have expired. In this case, however, it is right to unless the 
 observe that the marriage would be lawful so long as there ^^j 1 
 is no certainty of the woman's being pregnant. But in all subse- 
 the cases, if she should subsequently prove to have been ^ove J 
 pregnant, a second marriage entered into in such circum- have been 
 stances would be void, by reason of the iddut being still a* 6 ^ 
 
 subsisting at the time of the contract. time of 
 
 contract. 
 
 Section Fourth. 
 Of Pregnant Women. 
 
 A pregnant woman, when repudiated, must keep iddut A preg- 
 till delivered of her child. If a woman, after being repu- J^' ^ en 
 diated, should allege that she is with child, her husband repudi- 
 ought to wait patiently till the extreme term of gestation, ^ 1 ^ at 
 which is nine months ; but after that her claim is no till de- 
 longer to be regarded. According to one tradition, he lvery " 
 should wait for a year; but this tradition has not been 
 generally received. If a woman is pregnant of twins, she 
 becomes absolutely separated or divorced from her husband 
 on the birth of the first of them ; though she cannot law- 
 fully enter into a second marriage until delivered of the 
 last also. It seems preferable, however, as more in accord- 
 ance with the principles of the law, to say that she is not 
 completely divorced from her husband until delivered of 
 both. But if her 
 
 If a man should repudiate a pregnant wife revocably, h usba >- lt l 
 and then die while her iddut is still unexpired, she must mustenter 
 
 M 2 
 
lG-i DIVORCE. 
 
 on a new enter anew into an iddut, on account of his death. But if 
 
 ■uidut for j ie re p U( ji a t e her irrevocably, she is only required to com- 
 
 if the re- plete the iddut already commenced for the repudiation. 
 
 pudiation When a woman has become pregnant by zina, and is 
 
 was revoc- . . _ 
 
 able. then repudiated by her husband, it is the iddut of months 
 
 Case of a which she has to observe, and not that of delivery. But 
 pregnant if sne was enjoyed under a semblance of right, and her 
 by zma, or child has been affiliated to the man with whom the inter- 
 semblance course took place, by reason of her husband being at a 
 of right, distance from her at the time, and she is then repudiated 
 by her husband, she should keep iddut till delivery, on 
 account of the father of the child, and after the delivery 
 observe a new iddut, on account of the repudiator. 
 Disputes When a husband and wife are agreed as to the time of 
 
 as to time a repudiation, but differ as to the time of delivery, the 
 livery, word of the woman is to be preferred, because the difference 
 is with regard to her own act. If, again, they are agreed 
 as to the time of delivery, but differ as to that of the repu- 
 diation, the word of the man is to be preferred, because 
 here the difference is with regard to his act. There is, 
 however, some difficulty in both the cases, because the 
 or repu- original facts are, the non-existence of the repudiation, and 
 ia ion . ^k e n on-existence of the delivery ; and according to the 
 general rules of procedure, the word of the person who 
 denies these facts should be preferred, 
 continued. If a woman should declare that her iddut has expired, 
 and be subsequently delivered of a child at six months or 
 more from the date of the repudiation, some are of opinion 
 that the child is not to be affiliated to the repudiator; but 
 the better opinion seems to be that it ought to be ascribed 
 to him, so long as the time does not exceed the extreme 
 term of gestation. 
 
 Section Fifth. 
 
 Iddut for Death. 2 
 
 For a wo- A free woman married by a valid contract should keep 
 
 man who ^j^j. f or t ] ie c i ea th of her husband during four months and 
 
 is not ° 
 
 2 This section relates to free women only. 
 
IDDUT. 105 
 
 ten clays when she is not pregnant, whatever be her age, pregnant 
 whether she is a child or full grown, and whether her jjjjjf"* 
 husband had arrived at maturity or not ; and she becomes months 
 absolutely separated from her husband, or all connection ^™ ten 
 with him entirely cut off at sunset of the tenth day, for 
 that is the end of the day. If she is pregnant the iddut For one 
 is the largest of the two periods, that is, it is prolonged to ptegnan t 
 delivery if that should not occur till after the expiration the same 
 of four months and ten days from her husband's death, liver " 
 whereas if she is delivered before the expiration of that 
 time she is to wait for its completion. 
 
 Heddd, or mourning, is incumbent on a widow ; by which Heddd 
 is to be understood abstinence from everything in dress bent on 
 and ointments intended to adorn or beautify the person, a widow. 
 There is no sort of objection to black or blue garments, for What it is 
 in these there is an entire absence of anything like orna- 
 ment. In those respects there is no difference between the 
 young and the fall grown, the mooslimah and the zimmeeah. 
 But there is some doubt with regard to a slave, on whom 
 it would seem that heddd is not incumbent. Neither Not in- 
 is it incumbent on a woman who has been repudiated by on wo _ 
 
 her husband, whether the repudiation were revocable or man who 
 , i has been 
 
 irrevocable. repudi- 
 
 A woman who has been enjoyed under a semblable ated. 
 
 contract, and whose husband has died, should observe the Tddwt of a 
 • 7 • p t woman 
 
 iddut prescribed m the case of repudiation, not that ap- enjoyed 
 
 pointed for a husband's death, whether she be pregnant unfl f^^' 1 
 
 or not ; the observance being due to the carnal intercourse, contract. 
 
 not to the contract, for in reality she is not a wife. 
 
 When a person is missing but something is known as Missing 
 
 to where he is, or his wife is maintained by his guardian or ^e° n not 
 
 some one acting on his behalf, she has no option but must heard of, 
 
 wait for his return. Where again there is no intelligence wife is 
 
 regarding him and no person who maintains her, though without 
 
 she may also in such circumstances remain content with nance " sne 
 
 her condition, and no one has a right to interfere, yet if she may apply 
 
 please she may bring the matter before the judge. In the j u dge ; 
 
 event of her taking that course the judge should postpone 
 
 the consideration of the subject for four years, and make 
 
JOG 
 
 DIVORCE. 
 
 who, if 
 nothing is 
 heard of 
 the hus- 
 band for 
 four years, 
 may direct 
 her to 
 keep iddut 
 as for his 
 death ; 
 after 
 which 
 she may 
 marry 
 again. 
 
 And she 
 is not 
 obliged 
 to keep a 
 second 
 iddut, 
 though the 
 first hus- 
 band were 
 really 
 dead. 
 
 Nor is he 
 obliged to 
 maintain 
 her if he 
 return 
 before 
 comple- 
 tion of 
 the iddut. 
 
 A repu- 
 diated 
 woman 
 may be the 
 subject of 
 another 
 repudia- 
 tion or a 
 zihar 
 during the 
 iddut. 
 
 diligent inquiry in the meantime regarding the husband. 
 If some certain intelligence of him be then received, she 
 must still have patience, but it is incumbent on the Imam 
 to maintain her out of the Beit-ool-Mal, or public treasury. 
 If, on the other hand, nothing can be heard of her husband, 
 the judge should direct her to keep iddut as for his death ; 
 and on its completion she may lawfully marry again. If 
 after all this the missing husband should appear, and find 
 that she had completed her iddut and married again, he is 
 without any remedy against her. But if he should appear 
 while she is still in her iddut, he retains his right to her. 
 Where again the iddut has expired, but she has not availed 
 herself of the privilege to marry again, there are two 
 traditions on the question of his rights ; and by the most 
 generally received of these he is entirely without any remedy 
 against her. 
 
 If she has availed herself of her right to marry again 
 after the expiration of her iddut, and it then proves that 
 the first husband is dead, the second contract is valid, and 
 she is not under any obligation to keep a second iddut, 
 whether the death occurred before or during the currency 
 of the iddut, or after its expiration ; for the first contract 
 was extinguished in the eye of the law, and no effect can 
 be given to the death of the husband, as none would be 
 given to his life if he were still in existence. 
 
 The missing husband is not liable for the maintenance 
 of his wife during her iddut, even though he should come 
 back before its expiration. This seems to be a necessary 
 effect of the judge's order of separation between the 
 parties ; but there is some doubt or difference of opinion 
 on the point. 
 
 If a husband should repudiate or zihar his wife during 
 her iddut, maintaining her at the same time, the repudia- 
 tion or zihar would be quite valid, for the coverture 3 still 
 remains. But though he should continue to maintain her 
 after the iddut has expired, a repudiation or zihar in such 
 circumstances would be entirely inept, because the cover- 
 ture has been cut off and is at an end. 
 
 3 Arab. Asmut — defence, protection modesty. 
 
IDDUT. 1G7 
 
 When a repudiated woman who has entered into a If she 
 
 second marriage is delivered of a child after the lapse of g n L r j n to 
 
 six months from its consummation, the child is to be a second 
 
 affiliated to the second husband, though it were claimed "hndborn 
 
 by the first. And even if he were to support his claim by at six 
 
 an allegation that he had privately intercourse with the be "^. 
 
 child's mother, still no regard should be paid to it. The atedtothe 
 Sheikh, however, has said that the claimants should cast 
 lots for the child. But this opinion is far from being 
 generally received. 
 
 A husband has no right of inheritance to a repudiated No right 
 
 wife if she should die after the expiration of her iddut ; mhent- 
 
 1 m ' ance in 
 
 nor has she any right to inherit from him if he should die case of 
 after its expiration. But there is some room for doubt as f at 1 
 to their respective rights if either should die during the piration 
 currency of the iddut. It seems more agreeable to the °,^/ 
 general principles of law to say that the survivor has in 
 that case a right to inherit. 4 
 
 Section Sixth. 
 The Iddut and Purification of Slaves. 
 
 The iddut of a female slave on account of repudiation, Iddvt of a 
 after her marriage has been consummated, is two Iworas ; rermdia- 
 by which is to be understood two toohrs or periods of tionistwo 
 purity. According to some doctors it is two occurrences 
 of the courses, but the first opinion is the more probable. 
 The shortest time allowed for the completion of the iddut 
 is thirteen days and two luhzahs, with the same remark 
 with regard to the second luhzah as has been already made 
 in the case of a free woman. 5 If the woman is not subject 
 to the courses, yet of an age when they usually appear, her 
 iddut is a month and a half, whether she be the wife of a 
 free man or a slave. If she is emancipated and then repu- 
 diated, her iddut is that of a free woman. So also if she 
 has been repudiated revocably and then emancipated during 
 
 4 See post, Book of Furaiz. 
 
 5 See ante, p. 161. 
 
1G8 DIVORCE. 
 
 the iddut, it is to be completed like that of a free woman. 
 
 But if the repudiation were irrevocable she is obliged to 
 
 complete the iddut only as that of a slave, notwithstanding 
 
 the emancipation. 
 
 Iddut of a The iddut of a Zimmeeah is the same as that of a free 
 
 same'as'of woman > Dotu f° r repudiation and for death, though, accord- 
 
 a free ing to one tradition, it is that of a slave ; but this is rarely 
 
 woman. , t 
 
 accepted. 
 
 Iddut of. a The iddut of a slave for the death of her husband is 
 death two ^ w0 mon ths and two days. If she is pregnant she must 
 months keep iddut for the longest of two terms, namely, that just 
 ^ w mentioned or till delivery. If she be an oom-i-wulud to 
 her master, her iddut is four inonths and ten days ; and 
 if repudiated revocably by her husband who then dies while 
 she is still in her iddut, she is obliged to keep a new iddut 
 as that of a free woman ; but if she were not an oom-i-wulud 
 the iddut for death incumbent on her would be only that 
 of a slave, while if the repudiation were absolute she would 
 only be obliged to complete the iddut required in the case 
 of divorce. 
 Case of a If the husband of a slave should die, and she is then 
 
 emanci- emancipated, she has to fulfil the iddut of a free woman, 
 pated from a preference given to the side of freedom. And if the 
 
 ^idduf ° r mas ^ er °f a female slave, after having carnal intercourse 
 with her, should make her a mooduhburah, and she should 
 consequently be emancipated at his death, her iddut would 
 be four months and ten days ; whereas, if she were eman- 
 cipated in his lifetime, it would be three kooras. 
 Purifica- Every one on whom it is incumbent to observe the 
 
 slave a purification of a slave when he has purchased her, is 
 when ne- equally obliged to observe it when he has acquired the 
 mus't^e right to her by any other means, such as spoil of war, 
 observed composition of a claim, or inheritance ; and when puriBca- 
 cases of *ion * s no ^ rec l u i re d i n the first of these cases, it is not 
 acquisi- required in the others. When a man who is the husband 
 of a slave purchases her from her owner, the marriage is 
 cancelled; but he may lawfully have carnal intercourse 
 with her without purification. And if a slave should buy 
 a female slave and purify her, that would be sufficient for 
 
 tion. 
 
IDDUT. 169 
 
 his own master if he- should desire to have carnal inter- 
 course with her. 
 
 If a man should enter into a contract othitdbut or ransom Not neces- 
 with a female slave it is no longer lawful for him to have cas g of a 
 carnal intercourse with her; but if the contract is cancelled, cancelled 
 the prohibition is at once removed, and purification is not 
 required before he proceeds to have such intercourse with 
 her. In like manner, when the master or the slave apo- 
 statizes from the Mussulman faith, and again returns to it, 
 purification is not required to legalize their intercourse. 
 
 When a female slave is repudiated by her husband her nor after 
 master cannot lawfully have carnal intercourse with her fo T \ e Z 1 _ 
 till she has fulfilled her iddut ; but the iddut suffices for diation. 
 purification. And if a man should purchase a female 
 enemy, and purify her, after which she embraces the faith, 
 any further purification of her is unnecessary. So also 
 when a moolirim, or person on pilgrimage, has purchased 
 a female enemy, and then purified her, any further puri- 
 fication is unnecessary before he proceeds to have inter- 
 course with her when it becomes lawful to do so at the 
 termination of his pilgrimage. 
 
 Miscellaneous Cases. A woman 
 
 First. It is not lawful for one who has repudiated his ^^ r g_ 
 
 wife revocably to turn her out of his house, except for vocably 
 
 i • • , , t , c . i • • • cannot be 
 
 some glaring impropriety, or at least tor something mju- turned out 
 
 rious to the other members of his family. And it is ofherhus- 
 
 forbidden to the woman herself to leave his house, except house ex- 
 
 on some urgent necessity ; and even when such an occasion ce Pt for 
 
 requires her going abroad, she should do so only at mid- fj ence ' 
 
 night, and should return before the morning. On auy nor can 
 
 . . ... she leave 
 
 less occasion she cannot go out without his permission ; j t without 
 
 but where there is any urgent necessity, and the business m ? P. er " 
 ■ Till i- mission, 
 
 cannot be otherwise accomplished, she may go out of his except on 
 
 house even without his permission. A woman repudiated ur S ent 
 
 L necessity, 
 
 absolutely may go out whenever she pleases. . 
 
 Second. A woman revocably repudiated is entitled to repudi- 
 
 maintenance, clothing, and a place to reside in during her vocably" 
 
 iddut, day by day, whether she be a mooslimah or zimmeeaJt. entitled to 
 
170 
 
 DIVORCK. 
 
 mainten- 
 ance 
 
 during the 
 iddut. 
 
 Not so one 
 repudi- 
 ated irre- 
 vocably. 
 
 Cases 
 where a 
 woman 
 repudi- 
 ated re- 
 vocably 
 is obliged 
 or entitled 
 to leave 
 her resi- 
 dence 
 during 
 iddut. 
 
 But a woman repudiated irrevocably lias no right to 
 maintenance or lodging unless she is pregnant, when she 
 is entitled to both till delivery. A woman enjoyed under 
 
 a semblance of right is bound to observe an iddut. 
 
 But 
 
 is she entitled to maintenance in the event of her becoming 
 pregnant? The Sheikh has answered this question in the 
 affirmative. But the case is attended with some difficulty, 
 because it is supposed that among women absolutely sepa- 
 rated (from those with whom they may have been con- 
 nected) it is only the repudiated woman who is pregnant 
 that is entitled to maintenance. 
 
 With more particular reference to a woman's residence 
 it may be observed, that if it has fallen to ruin, or, being 
 held only on lease or commodate loan, the term has 
 expired, she may be lawfully removed from it, or may 
 leave it herself; and if she is repudiated when living in a 
 place lower than she is entitled to, she may leave it 
 immediately for one more suitable to her condition ; but 
 this point is liable to some doubt. Further, if the house 
 in which she is living at the time of the repudiation should 
 be sold, and her iddut is one of kooras, the sale is not valid, 
 because she is entitled to remain in it for their completion, 
 the time of which is unknown, and the sale is vitiated by 
 the uncertainty. 6 If, on the other hand, the iddut is one 
 of months, the sale is quite valid, the uncertainty being 
 removed. Again, if her husband should die, leaving several 
 heirs, they are not entitled to make a partition of so much 
 of the house as is necessary for her residence without her 
 permission, or till the expiration of her iddut, because she 
 is entitled to a lodging in it. It would seem, however, 
 that after the death of her husband she has no right to a 
 residence except in the single case of her being pregnant. 
 When the woman is residing in her own house and makes 
 no demand for another residence, she is not entitled to 
 claim rent on account of her own house, because remain- 
 ing in it appears to be voluntary on her part. In like 
 
 ,; It is a condition to the validity of sale that the thing sold shall 
 be known at the period of contract. — Tin. I)., p. 24. 
 
IDDUT. 171 
 
 manner she would have no claim to rent if she should hire 
 a house and abide in it during her iddut, because, though 
 entitled to be provided with a residence, it is not where 
 she, but where her husband pleases. 
 
 Third. A widow has no right to maintenance even A widow 
 though she be pregnant. According to one tradition, she title^to 
 has a right to it in that particular case out of the share of mainten- 
 the child in her womb; but the tradition is far from being during the 
 generally allowed. And she is entitled to live wherever iddut. 
 she pleases. 
 
 Fourth. If a repudiated woman should many during Marriage 
 her iddut, the marriage is not valid, and the iddut is not w y ^ an 
 cut short by it. So that if the second marriage is not during her 
 consummated, she continues in the iddut. And even V alid 
 though it were consummated, the effect would be the same, 
 provided the husband were conscious of the illegality, and 
 that whether pregnancy follow or not. If, on the other 
 hand, he were ignorant of the illegality and pregnancy 
 has not ensued, the woman must complete the first iddut, 
 and then enter on another, on account of the second 
 marriage, according to the more generally received of two 
 traditions ; while, if she has become pregnant, and there 
 is anythiug to show that it is due to intercourse with the 
 first husband, she must keep iddut till delivery on his 
 account, and then after the delivery observe another iddut 
 of three hooras on account of the second husband. But if 
 there is anything to show that the pregnancy is the fruit 
 of intercourse with the second husband, she is to keep 
 iddut on his account till delivery, and then complete the 
 iddut for the first after delivery. If there is anything to 
 show that the pregnancy is due to neither, she is to com- 
 plete after delivery the iddut of the first, and then renew 
 the iddut on account of the second ; while, if the preg- 
 nancy may possibly be due to both, it is said that lots 
 should be cast between them, and iddut be observed on 
 account of the person to whom the child may be ascribed 
 by lot. But this is attended with some difficulty, arising 
 from the fact of the woman being the wife of the second 
 by means of the connection under a semblance of right, 
 
172 
 
 DIVORCE. 
 
 From 
 what time 
 the iddut 
 is to run. 
 
 A new 
 iddut 
 necessary 
 where a 
 repudi- 
 ated wo- 
 man is 
 recalled 
 during the 
 iddut. 
 
 Connec- 
 tion under 
 a sem- 
 blance of 
 right re- 
 quires an 
 iddut. 
 
 so that he should have the preferable right to the 
 child. 
 
 Fifth. The wife of a person who is present with her is 
 to keep iddut from the time of the repudiation or death ; 
 and the wife of one who is absent is to observe it, in the 
 event of repudiation, from the date of its occurrence, and 
 in the case of death, from the time of the accounts of it 
 reaching her, even though the tidings may be brought to 
 her by a person who may not be trustworthy ; but she is 
 not to marry again till certain of her husband's death. 
 And if she knows that she has been repudiated, bub 
 does not know the exact time, she is to keep her iddut 
 from the time of the tidings reaching her. 
 
 Sixth. When a man has repudiated his wife after 
 their marriage has been consummated, then recalled her 
 during the iddut, and repudiated her again without touch- 
 ing her, she must keep iddut anew, on account of the first 
 being nullified by the revocation. And if he should release 
 her by a hhoold after the revocation, the Sheikh has said 
 that in such a case the presumption is that there is no 
 iddut ; but this seems to be far from correct, since it is 
 hhoold from a contract which was followed by consumma- 
 tion. But if he should release her after consummation, 
 and marry her again in the iddut, and then repudiate her 
 before enjoyment, she is not bound to keep iddut, for the 
 first iddut was nullified by the bed (marriage), and the 
 second marriage was not consummated. It is said, how- 
 ever, that she ought to keep iddut, because the first iddut 
 was not completed ; but the former opinion seems more 
 agreeable to the general principles of law. 
 
 Seventh. Connection under a semblance of right does 
 not induce the necessity of hudd, or specific punishment, 
 but requires an iddut ; and if the woman was aware of its 
 illegality, but the man ignorant of it, the nusub } or child's 
 paternity, is to be ascribed to him, while she is obliged to 
 keep iddut, and is subject to the // add, but not entitled to 
 dower. If the woman was a slave, the child is to be 
 ascribed to the man, who is liable for his value to the 
 woman's master as at the time of its birth, together with 
 
1DDUT. 173 
 
 the dower of the slave, which, according to a tradition, is Two 
 
 a tenth (of her value) if she was a virgin, and a twentieth jjjjjj^ 
 
 if otherwise. when a 
 
 Eighth. When a man has repudiated his wife abso- ^° s m ^ e n en 
 
 lutely, and then had connection with her under a semblance recalled, 
 
 of right, the two idduts are mingled together, 7 because they go ur sehad 
 
 are on account of one man ; and this seems proper whether with her 
 . , , under a 
 
 she be pregnant or not. semblance 
 
 Ninth. When a woman has married in the iddut for a of right. 
 
 revocable repudiation, and become pregnant to the second Two 
 
 husband, she is to keep iddut for him till delivery, and neC essary 
 
 then complete the iddut for the first after delivery : and in case of 
 
 , . pregnancy 
 the first may recall her during this iddut, but not during under a 
 
 the time of the pregnancy. marriage 
 
 firot. 
 
 7 Arab. Tudukhool. 
 
BOOK HI. 
 OF SHOOJFA, OR PRE-EMPTION. 
 
 Shoofd is the legal title of one partner in joint property Defini- 
 te the share of another partner x therein, in consequence of lon ' 
 its transfer by sale. 
 
 CHAPTER I. 
 
 OF THE THINGS IN WHICH SHOOFA IS ESTABLISHED. 
 
 The title of Shoofd is established with respect to lands, 2 The ri°-ht 
 such as dwellings, 3 vacant spaces, and orchards, by general * 8 . esta " 
 consent. With regard to moveables, such as wearing- to lands ; 
 apparel, household utensils, shipping, animals, and the 
 like, there are different opinions. Some doctors have 
 maintained that the right extends likewise to these, to 
 obviate the inconvenience of division, and further upon the 
 ground of a report to this effect, by Yoonus, from the 
 Imam Jafer Sadik, on whom be peace. Others, again, 
 have limited the title to the former class, upon the principle 
 that the conferring of dominion over the property of a but not as 
 Mussulman ought to be restricted to those cases on which t0 move- 
 all are agreed, and also because the report alluded to is weak 
 or not well authenticated. This latter doctrine is the most 
 approved. 
 
 1 Arab, shureek. According to the Hanifites, not only a partner 
 in the property, but also one in its rights, and a neighbour, have a 
 legal claim to pre-emption. — D., p. 47G. 
 
 2 Arzeen, pi. of arz. 
 
 3 Musakin, pi. of muskin. 
 
17G 
 
 SHOOFA. 
 
 Trees, &c. 
 affected 
 by the 
 right 
 
 when sold 
 with the 
 ground ; 
 but not so 
 when sold 
 separately. 
 
 Some doc- 
 tors ex- 
 tend the 
 right to 
 slaves. 
 
 Exception 
 as to some 
 immov- 
 able pro- 
 perty in- 
 capable of 
 division 
 without 
 loss. 
 
 The right 
 also ex- 
 tends to a 
 well and 
 the ad- 
 joining 
 ground. 
 
 With respect to date and other trees and buildings, 4 
 if sold as appendages of the ground on which they 
 stand, the privilege of Shoofd is fully established ; but 
 if sold separately and distinctly, the same difference of 
 opinion above stated exists, and upon the same principle 
 the most approved doctrine in this case also rejects its 
 operation. 
 
 It is to be observed that some of our doctors distinguish 
 between slaves and the lower animals, allowing the right of 
 Shoofd in respect of the former, though denying it in the 
 case of the latter. 
 
 With regard to the establishment of Shoofd in respect 
 of rivulets, ways, baths, and other property the division of 
 which would occasion loss or damage, a considerable degree 
 of doubt has prevailed. But the most approved opinion 
 denies its operation as to these. By damage we understand 
 such as would render the property useless after division, in 
 which case the person who would be injured cannot be 
 compelled to make a partition. 5 Where, again, the bath, 
 or way, or rivulet, is of such a character that its utility 
 would not be destroyed by division, the co-owner may be 
 compelled to admit of a partition ; and if he should sell his 
 share, the right of pre-emption would have effect in favour 
 of his partner. 6 
 
 In like manner, in the case of a well to which there is 
 waste ground adjoining as an appendage, so as to admit of 
 a division without loss, by surrender of the well to one 
 person, and of the land to the other, here also the judg- 
 ment of law would enforce a partition of the joint property, 
 and establish the right of pre-emption if one partner should 
 sell his share. With regard, again, to the apparatus of a 
 well, such as wheels and buckets made use of in drawing 
 water, which, though strictly moveable, are by custom never 
 removed from the well, there is some doubt whether the 
 
 4 Abneeut. 
 
 5 A mere diminution of value would prevent a compulsory parti- 
 tion, according to the authority cited in the Im. D., p. 425. 
 
 8 It would seem, from this, that the right of shoofd is in some 
 way dependent on that of partition. 
 
THINGS IN WHICH SHOOFl IS ESTABLISHED. 177 
 
 right of shoofd applies to those when sold together with the 
 ground ; but with respect to the ropes on which these 
 buckets are suspended, their exclusion from its operation 
 is universally allowed, except by those who maintain that 
 the right attaches generally to every kind of property sold — 
 a doctrine which we have already shown to be the least 
 approved. 
 
 The right of pre-emption has no effect with respect to But not 
 
 fruits, even when sold on date or other trees in connection a i t houeh 
 
 with the roots and ground which they occupy. It is other- sold with 
 
 wise in the case of lands which have been divided off, where on e w [^ch 
 
 the roads or rivulets passing through them continue to be it grows, 
 
 held in joint property, and one of the partners in the latter affects 
 
 sells his share together with his portion of the divided lands 
 
 land ; for there the other partner's right of pre-emption divided 
 
 attaches not only to the share in the road or rivulet which off, by 
 
 was held in joint property, but extends also to the portion par t n er- 
 
 of the land divided off, as being connected in sale with the shi P in 
 
 other. If, however, the land should be sold separately, an d r j vu . 
 
 there can be no ground for the claim of pre-emption in } ets P ass_ 
 
 respect of it ; aud even with respect to the road or rivulet through 
 
 which continued in joint property, it is only when suffi- tliem - 
 ciently wide to admit of a division that the right can 
 attach to either of them. 7 
 
 If a person should sell a piece of land his own exclusive Land not 
 
 property, and with it his share in another joint tenement, yJe neht° 
 
 by one sufkut or bargain, 8 the right of pre-emption attaches though 
 
 to the share exclusively, at a due proportion of the general ^° er °^£ 
 
 price. a share in 
 
 It is an indispensable condition of the right of pre- lanfl 
 emption, that the share of property to which the claim is Property- 
 preferred should have been actually transferred by sale, for disposed 
 if it has been assigned as the dower of a wife, or given in alone 
 charity, or bestowed by way of gift or in composition for a affected 
 debt, it is by no means subject to. the claim of pre-emption. 
 In like manner, if a mansion shuold be partly wulf, or p erson en _ 
 
 7 See ante, p. 17G. 
 
 8 Literally, " striking of hands." 
 PART II. N 
 
 # 
 
178 SHOOFA. 
 
 titled to appropriated to pious or charitable purposes, and partly 
 
 the benefit f and ^ i a tter portion of it is sold, the person entitled 
 
 of a rvukj r . . L . 
 
 has no to the benefit of the appropriation has no right ot pre- 
 
 title to emT) tion, not even if he be a single individual, because he 
 claim it. * ° ' m 
 
 is not the proprietor of the substance of the vimkf, and is 
 
 entitled only to its usufruct. 
 
( ^79 ) 
 
 CHAPTER II. 
 
 OF THE SHUFEE OR PERSON TO WHOM THE RIGHT OF 
 PRE-EMPTION BELONGS. 
 
 The Shufee is every partner of a share in joint and un- The right 
 divided property who is able to pay the price at which it £elomns to 
 has been sold. It is, however, a condition that he be a every 
 Mooslim when the purchaser is of that religion. par nei ' 
 
 There is no privilege of pre-emption to a neighbour, but not 
 nor in property that has been divided, unless the road or to ^.™ ere 
 rivulet of water running through it is still held in partner- bour, 
 ship. The privilege is established by general assent when it affects 
 there are only two partners. When there is more than only J^ 
 one claimant opinions are divided. Accordiug to one of partners, 
 these it is established absolutely whatever be the number. 
 By another it is established with a plurality of partners in 
 the case of lands but not of a slave. By the third it is not 
 established in respect of anything when there is more than 
 one partner. And this last opinion is the most prevalent 
 and best supported by traditional authority. 1 
 
 The right of shoofd is extinguished by the shufee s May be 
 inability to pay the price, and also by his delay to claim d ^] ay ^ 
 the privilege, or absconding at the time of sale. If he claim it ; 
 should claim the privilege, but allege the absence of funds 
 to pay for it, a delay of three days must be allowed to him, 
 at the expiration of which, if he is unable to produce the 
 money, his right is extinguished. If, again, he should 
 assert that his property is in another city, a delay pro- 
 
 1 According to the Hanifites, several persons may have the right 
 and exercise it. — D., p. 494. 
 
 N 2 
 
180 
 
 SIIOUFA. 
 
 but not by 
 absence, 
 minority, 
 &c, in 
 which 
 cases the 
 guardian 
 should 
 exact it ; 
 and his 
 derelic- 
 tion does 
 not affect 
 the right. 
 
 It holds in 
 favour of 
 infidels 
 against 
 infidels, 
 but not 
 against 
 believers. 
 
 A father 
 or grand- 
 father sell- 
 ing his 
 child's 
 share in 
 property 
 held joint- 
 ly with 
 himself, 
 may assert 
 the right 
 of pre- 
 emption. 
 
 portionate to the distance should be given him, to enable 
 him to obtain the money, and three days additional, unless 
 the purchaser would be injured thereby. 
 
 The privilege of shoofd is established in favour of 
 absent persons, and such as are imbecile, insane, or minors, 
 of all of whom their guardians should avail themselves of 
 the right, if for the advantage of their wards ; and if the 
 guardian should abandon the claim, the minor on attain- 
 ing to puberty, and the insane person on recovering his 
 reason, may still assert it, because in either case there 
 is a sufficient legal excuse for the delay in prosecuting it. 
 Where, again, the assertion of the claim is of no advan- 
 tage to the ward, but the guardian has nevertheless 
 assumed it, such assumption is invalid, and may be repu- 
 diated by the party himself on attaining to puberty or 
 recovering his reason. 
 
 The right of shoofd is established in favour of an 
 infidel against a purchaser of his own persuasion, but 
 not against a Mooslim, even though he should have 
 purchased from a Zimmee or infidel subject. 2 But it is 
 established in favour of a Mooslim against a Mooslim and 
 an infidel. 
 
 If a father or grandfather should sell the share of his 
 child or grandchild in property held in joint ownership 
 with himself, he may lawfully assert the right of pre- 
 emption in his own favour, any ground of objection being 
 obviated by the consideration that it is no more than sell- 
 ing the ward's share directly to himself. 3 But has an 
 executor the same power ? The Sheikh has answered this 
 question in the negative, on account of the suspicion which 
 naturally attaches to such a transaction ; the affirmative, 
 however, appears to be better supported, as in the case of 
 an agent who may lawfully claim the privilege in such 
 circumstances. 4 
 
 - This distinction is not recognized by the Hanifites. — D., p. 473. 
 
 3 Which it is quite lawful for him to do. — Im. D., p. 14. 
 
 4 That he can lawfully sell to himself, seo ibid. pp. 15 and 10, 
 and post, p. 192. 
 
THE SHUFEE OR PRE-EMPTOR. 181 
 
 A mooJiatub 5 may assert a right of slioofd and his master It also 
 
 cannot object. But if an agent in Moozarubut 6 should ^ YO l^ 
 
 purchase property of which the owner of the capital stock a mooka- 
 
 is the shufee, the latter would become the proprietor by not ' of an 
 
 the mere act of purchase, and not by virtue of any right of agent in 
 
 pre-emption. Nor could the agent make any objection ^ 
 unless there should appear to be some profit on the trans- 
 action. He would, however, be entitled to the hire of his 
 agency in the transaction. 7 
 
 5 A slave with whom his master has entered into a contract of 
 emancipation for a ransom. 
 
 6 A contract in which the capital is contributed by one party and 
 the labour and skill by the other, with a mutual participation of 
 profits. See 1m. D., p. 433. 
 
 7 The author here enters into a long digression, comprised in what 
 he terms ten branches, on the supposition of the right of shoofd being 
 established when there is plurality of shufees. But as he has admitted 
 that the doctrine which rejects the right in such a case is most in 
 conformity with traditional authority, and the branches afford no 
 illustration of general principles, I have omitted them entirely as of 
 no practical utility. They also appear to have been omitted in the 
 Dic/est of Imameea Law, compiled under the superintendence of 
 Sir William Jones. 
 
182 
 
 SIIOOFA. 
 
 CHAPTER III. 
 
 OF THE MANNER IN WHICH THE CLAIM OF SHOOFA IS 
 TO BE ASSERTED. 
 
 A slntfee 
 is entitled 
 to claim 
 on the con- 
 clusion 
 of the 
 contract ; 
 
 but not to 
 partial 
 exercise of 
 his right ; 
 
 and must 
 pay the 
 full price, 
 but is not 
 liable for 
 contin- 
 gent 
 charges. 
 
 Augmen- 
 tation or 
 
 The shvfee is entitled to assert his claim on the conclusion 
 of the contract and expiration of the option, 1 for it is then 
 that the contract becomes binding. Some doctors, however, 
 maintain that the right is established by the mere contract, 
 without waiting for the expiration of the option, on the 
 principle that a transfer is legally effected by the mere 
 contract ; and this opinion is the most generally approved ; 
 while in cases where an option is stipulated only to the 
 purchaser there can be no doubt that the shufees right is 
 established on the mere conclusion of the contract, 2 which 
 in such case completes the transfer to the purchaser. 
 
 A shufee is not entitled to relinquish his privilege in 
 part and to exact it as to the remainder of the property to 
 which it applies ; but, on the contrary, must take the whole 
 or abandon his right entirely. Further, he must take it 
 at the price of the contract whether more or less than the 
 value of the share ; but, on the other hand, he is not liable 
 for any contingent charges incurred by the purchaser, such 
 as brokerage, agency, or the like. 
 
 If the purchaser should add something to the price 
 after completion of the contract and expiration of the 
 
 1 The doctrine of option in contracts is fully explained under the 
 head of sale. — 1m. D., p. 33. 
 
 2 From what is said {post, p. 191) it would seem that it is only 
 when the option is reserved to the purchaser that the Sheikh con- 
 sidered the right of shoofd to be established on the mere conclusion 
 of the contract. 
 
MANNER OF ASSERTING THE CLAIM OF SHOOFA. 1 83 
 
 period of option, such addition is not considered in law an the price 
 increase of the price, but a gift, and the shufee is under cius[ n°or: 
 no obligation to pay it. In cases, again, where this the con- 
 augmentation is made daring the period of option the J^^g^ 
 Sheikh has declared that it constitutes a part of the the shufee. 
 original price, and is the same as if stipulated for in 
 the contract ; but this opinion is attended with some 
 difficulty, as being inconsistent with what has been already 
 said of the transfer being completed by the contract. 3 In who, on 
 
 like manner, if the seller should make any abatement from the other 
 
 ' J _ hand , does 
 
 the price, such abatement is unconnected with the contract, not benefit 
 
 and the purchaser is by no means bound to surrender the b ^ ^ ny 
 
 share until he has received the full price originally agreed mentfrom 
 
 upon. 4 it - 
 
 If a person should purchase by one bargain or sufkut where a 
 a share in property, together with something to which sna j e \ s 
 the right of si t oof a does not apply, the share may be property 
 taken at its proportion of the general price, and the to w ; nch 
 purchaser has no option in consequence to rescind his does not 
 contract, because the claim of shoofd is supervenient on & f^J] ^ 
 what is his own property. take the 
 
 If the price be of the class of similars, such as gold j^^ice 
 or silver, the shufee must produce a similar to it, that is, jf tne 
 an equal quantity of either metal. Where, again, there is P rice con " 
 no similar to the price, as where it is an animal, or a similars, 
 piece of cloth, or a jewel, some doctors have said that the lt must 
 right of shoofd must drop for want of a similar to the price, charged 
 and also by reason of a tradition by Aly Ben Rabey from the m the 
 Imam Jdfer Sddik, on whom be peace. Others, however, kind ; 
 maintain that the shufee may take the article at its value ? uc } wliere 
 
 it; IS £1 
 
 at the time of purchase ; and this doctrine is more generally specific 
 
 approved. tbin S' b 7 
 
 A shufee should prefer his claim as soon as he is value. 
 
 informed of his right ; but should he delay to do so from A neces- 
 
 any necessary cause preventing his personal appearance, or ^^j^ y 
 
 the appointment of an agent to assert it on his behalf, his the privi- 
 lege does 
 
 3 Ante, p. 182. 
 
 4 According to the Hanifites, the shufee is entitled to the benefit 
 of the abatement. — Hidayah, vol. iv. p. 933. Trans., vol. iii. p. 581 • 
 
1SL 
 
 SIIOOFA. 
 
 not extin- 
 guish the 
 right ; 
 nor even 
 a total 
 derelic- 
 tion of it, 
 when pro- 
 ceeding 
 upon error 
 of infor- 
 mation. 
 
 The 
 slut fee, 
 however, 
 is bound to 
 make all 
 proper 
 expedi- 
 tion in 
 preferring 
 his claim : 
 
 and 
 should 
 he neglect 
 it without 
 
 a valid 
 cause, the 
 right is 
 lost. 
 
 It is not 
 cut off by 
 a dissolu- 
 tion of the 
 sale. 
 
 right is not extinguished. In like manner, if he should 
 abandon his claim, supposing the price to be high when 
 it was really moderate ; or that it was gold when it 
 turns out to be silver; or an animal when it proves 
 to be some other article ; his dereliction in such circum- 
 stances would have no effect in extinguishing his right. 
 So, also, if he were imprisoned for a claim which he is 
 unable to discharge, or is unable to appoint an agent to 
 prefer a claim on his behalf, the apology would be suffi- 
 cient to preserve his right notwithstanding his delay to 
 assert it. 
 
 It is at the same time incumbent on him to use all 
 proper diligence in preferring his claim as soon as he 
 becomes acquainted with his right, that is, so far as is 
 customary, in so much that when travelling with that 
 intent, he is not obliged to use greater expedition in his 
 journey than is habitual to himself. Further, should he 
 be engaged in the performance of any religious duty, 
 whether indispensable or discretionary, he is not obliged 
 to break it off, but may lawfully wait till it is completed. 
 In like manner, if the time of prayer is at hand, he may 
 lawfully wait till he has purified himself, and then per- 
 formed his devotion without hurry or restraint. Again, 
 should he receive intelligence of the occurrence of his 
 right whilst on a journey, and be unable to prosecute his 
 claim by personally appearing or appointing an agent, the 
 right is not extinguished, even although he should also 
 neglect to call upon witnesses to attest his intention to 
 demand it. 5 If, however, while able to use the proper 
 exertions, either in person or by appointing an agent, he 
 should neglect to do so, his right is entirely lost. 
 
 The right of shoofd is not annulled by a dissolution of 
 the sale on the part of the seller and purchaser, because it 
 is established by virtue of the original contract, and cannot 
 be cut off by any subsequent act of the parties. More- 
 over, the du /■/.-, or future responsibilities, rest still on the 
 
 :> This should not be omitted, according to the Ilanifites. — D., 
 p. 483. 
 
MANNER OF ASSERTING THE CLAIM OF SHOOFA. 185 
 
 purchaser. True, that if the shufee should acquiesce in 
 the sale, and the buyer and seller should then concur in 
 dissolving it, he could not again lay claim to the privilege, 
 because the dissolution of the contract is a cancellation, 
 not a sale de novo. 
 
 If the purchaser of a share in property should sell it. Sales and 
 the shufee is entitled to annul the sale, and take the n 0S aia f" 
 property from the first purchaser ; and he may also take the pro- 
 it from the second. So, in like manner, if the purchaser ^ p Ur f 
 should make a wukf, or appropriation of the property to chaser 
 any special purpose, or should convert it into a musjid or ^celled 
 place of worship, the shufee may do away with all such by the 
 acts, and take possession of the property under his right 
 of pre-emption. 
 
 The shufee takes the property from the purchaser on The shufee 
 
 whom the durh or future responsibility lies, and does not takes * he 
 
 L _ J property 
 
 take it from the seller, except that if, when he makes his from the 
 demand on the purchaser, the property is still in the P u j; chaser > 
 hands of the seller, it may fairly be said to him, " Take seller, 
 it from the seller, or relinquish your right ; " and the j^ufo^hig 
 purchaser cannot be put to the trouble of taking posses- posses- 
 sion from the seller if he decline to do so, even though re- f 1011, 
 quired by the shufee. In such circumstances, the shufee s 
 possession comes into the place of the purchaser's, the 
 durh, however, or responsibility for future claims, still 
 resting on the purchaser ; and the shufee has no right to 
 cancel the sale. On the contrary, if he attempt to do so, and 
 take possession from the seller, the act would be invalid. 7 
 
 If the subject of sale should perish or become damaged, If the 
 
 and this happens either by the act of the purchaser, or P ro P ert y 
 
 without his instrumentality, before demand by the sh afee, ruin, pre- 
 
 the latter has an option, and may take the property at the ^ 10 t 1 ] 8 
 
 full price, or abandon it entirely ; and, in the event of his shufee 1 s 
 
 taking it, he is entitled to all the ruins or fragments that he^ust 
 
 6 That is, as the shufee takes his title from the purchaser, the 
 latter remains responsible to him, notwithstanding the dissolution, 
 for all future claims that may be made against his title. 
 
 7 If valid, the act would necessarily be suicidal, as his own right 
 is dependent on the sale. 
 
186 
 
 SHOOFA. 
 
 take it at 
 the full 
 price or 
 relinquish 
 his claim ; 
 
 but if 
 damaged 
 by the 
 purchaser 
 subse- 
 quent to 
 demand, 
 he is re- 
 sponsible. 
 
 If the 
 purchaser 
 plant trees 
 or erect 
 buildings 
 he is 
 
 entitled to 
 remove 
 them ; 
 
 and should 
 he decline 
 to do so, 
 the shufee 
 has three 
 courses in 
 his option. 
 
 An in- 
 crease 
 connected 
 with the 
 subject 
 belongs to 
 the shufee ; 
 but if 
 separated, 
 it belongs 
 to the pur- 
 chaser. 
 
 Case of a 
 date-tree 
 which has 
 only blos- 
 
 remain, whether they are still on the spot or have been 
 removed from it, because they are obviously opposed to 
 part of the price. If, on the other hand, the injury to the 
 property has been done by the purchaser after demand by 
 the shufee, the purchaser is responsible, although some 
 doctors have denied his responsibility, on the ground that 
 the shufee does not become proprietor in virtue of his 
 demand, but rather by taking possession. The first 
 opinion, however, appears to be better supported and 
 more generally adopted. 
 
 If the purchaser of ground subject to the right of 
 sJwofd should plant trees or erect buildings upon it, and 
 the shufee should afterwards demand possession, the pur- 
 chaser is entitled, if he think proper, to pull up and 
 remove his trees and buildings, and it is not incumbent 
 on him to level the ground ; but, on the other hand, it is 
 optional to the shufee to take it at the full price, or to 
 relinquish his right altogether. If, again, the purchaser 
 should decline to remove his trees or buildings, the sh ufee 
 has three things in his option : he may either remove them 
 himself, paying the purchaser a compensation for any loss 
 he may sustain thereby, or he may take possession of the 
 whole, paying, in addition to the price, the value of the 
 trees or buildings, which thus become his property, with 
 the consent of the purchaser, or he may abandon his claim 
 altogether. 
 
 If the subject of shoofi should increase in such a 
 manner that the increase remains connected with it, as, 
 for example, if a young plant or shoot of a date or other 
 tree is sold together with the ground on which it stands, 
 and it becomes enlarged by natural growth, the advantage 
 belongs to the shufee ; but if the increase be separated 
 from the original subject, such, for instance, as of residence 
 in a mansion, or the fruit of a tree, it belongs to the 
 purchaser. If, however, a date-tree should blossom in the 
 buyer's possession, but is assumed by the shufee before 
 impregnation, 8 the Sheikh, to whom God be merciful, has 
 
 8 Arab, tabeer. It seems to be the universal practice in Arabia 
 to impregnate the female date-trees. — Im. D., note, p. 56. 
 
MANNER OF ASSERTING THE CLAIM OF SHOOFA. 187 
 
 declared that the blossom in this case belongs to the somen, 
 shufee, considering the blossoms in the same light as the taken cos- 
 branches ; but this principle applies exclusively to sale by session 
 traditional authority, and cannot, therefore, be extended ° s ] m J ee 
 
 to the case before us, according to the most approved before im- 
 
 • • q pregna- 
 
 opinion. 9 tionhas 
 
 If a person should sell his shares in two mansions, taken 
 
 and the partner or shufee in both is one and the same , , ' 
 
 person, he may take or abandon both, or he may take one f two 
 
 and forego his claim to the other. But in the case of mansions 
 
 . . may take 
 
 a single mansion he cannot assert his claim as to part both or 
 
 of it, and forego his claim to the remainder. one at his 
 
 ' . ° . . . . option. 
 
 If the price is a specific article and it turns out to be If th 
 
 the property of some other person than the purchaser, there price turns 
 can be no right of shoofd, for the sale is null. But if the the pro . e 
 price was not specific, and merely stipulated for in general perty of 
 terms, 10 the right would be fully established, because the ^his can- 
 purchase would be good in such circumstances. And eels the 
 although the price after delivery by the shufee should turn t j ie ^ght 
 out to be the property of another person, that would not or shoofd. 
 affect his right in either of the cases supposed. 
 
 If the subject of sale should appear to be defective, Any com- 
 
 and the purchaser in consequence should receive a com- ]? ^gfgii 
 
 pensation for the defect, the shufee is entitled to a similar received 
 
 deduction from the price. And if the purchaser should p ^ rc jjaser 
 
 determine to keep the subject of sale without seeking any must be 
 
 compensation for the defect, the shufee must either take the shufee 
 it at the full price or abandon his claim altogether. 
 
 Miscellaneous Cases. 
 
 First. If a person should say, " I purchased the half Slmfee's 
 
 for a hundred," upon which the shufee relinquishes his \^\ not 
 
 claim, and it subsequently appears that the fourth was relin- 
 
 purchased for fifty, the privilege is not lost, and he c l UIshm . ent 
 
 may still assert his claim. So, also, if it were said, " I formation 
 . by the pur- 
 
 9 The fruit of an unimpregnated date-tree belongs to the buyer 
 of the tree. — Ibid. p. 57. 
 
 10 As if it were a quantity of some commodity estimable by weight 
 or measure. 
 
188 
 
 SHOOFA. 
 
 chaser as 
 to the 
 terms of 
 his pur- 
 chase. 
 
 Declara- 
 tion by the 
 s7t u/er that 
 he has 
 assumed 
 his right 
 invalid if 
 he were 
 ignorant 
 of the 
 price. 
 
 The price 
 must be 
 paid to the 
 purchaser 
 before 
 delivery. 
 Eelin- 
 quishment 
 by the 
 shufee, on 
 misinfor- 
 mation 
 regarding 
 the pur- 
 chaser, 
 does not 
 invalidate 
 his right. 
 
 Shoflfd 
 cannot be 
 enforced 
 on sown 
 land until 
 the crop is 
 gathered. 
 
 purchased the fourth for fifty," upon which the shufee 
 relinquished his claim, and it should subsequently appear 
 that the half was purchased for a hundred, the privilege 
 would not be lost; because in the one case the shufee 
 might not be able to give the larger price ; and in the other 
 he might not be inclined to avail himself of the defective 
 or partial sale. 
 
 Second. If, when intelligence of the sale has reached 
 the shufee, he says, " I have taken the thing sold under 
 my right of pre-emption, being at the time cognizant of 
 the price," the declaration is valid ; but not so if he was 
 at the time ignorant of the price. And even though he 
 should say, " I have taken it at the price whatever it may 
 amount to," still the declaration would be invalid if he 
 were ignorant of the actual price, as leaving room for 
 deception which ought to be avoided. 
 
 Th ircl. The price must first be delivered by the shufee, 
 and if he should refuse to deliver it, the purchaser is not 
 bound to make delivery of the subject of sale till he has 
 received the full amount. 
 
 Fourth. If the shufee is informed that there are two 
 purchasers, and thereupon abandons his claim, after which 
 it appears that there was only one, or if he was informed 
 that there was only one purchaser, and it turns out that 
 there were two ; or should he be told that the purchaser 
 bought for himself, and it afterwards appears that he 
 bought for another, or the reverse of this is the case, in 
 all these instances the right is not lost, because in each 
 he might have a different object in view which was 
 frustrated by the false information. 
 
 Fifth. When the subject of sale is a sown field, it 
 must be suffered to remain in that state until the crop is 
 gathered, 11 and the shufee may either take immediate pos- 
 session of the ground, allowing the crop to remain, or he 
 may wait until it is reaped ; because in this option he has 
 a manifest interest, viz. the use of his money, while he 
 is debarred from all benefit from the land, which is 
 
 See 1m. D., p. «5G. 
 
MANNER OF ASSERTING THE CLAIM OF SHOOFA. 189 
 
 rendered useless to him by the crop remaining on it. 
 There is, however, some doubt as to the legality of this 
 delay without prejudicing the right of sJioofd. 
 
 Sixth. If the seller should ask the shufee to dissolve Dissolu- 
 the sale, and he should do so, the dissolution would be s ^°g{L 
 invalid, because it is only the contracting parties them- shufee, at 
 selves, that is, the seller and purchaser, that can dissolve l^i^T 
 a sale. invalid. 
 
190 
 
 SIIOOFA. 
 
 CHAPTER IV. 
 
 APPENDAGES TO THE ASSUMPTION OF PROPERTY UNDER A 
 RIGHT OF SHOOFA. 
 
 In case of 
 a purchase 
 on credit 
 the shufee 
 may take 
 posses- 
 sion, on 
 giving 
 security 
 for the 
 price 
 when it 
 becomes 
 due. 
 
 The right 
 of shoofd 
 is here- 
 ditary, 
 
 First. When a person has purchased for a price deferred, 
 or on credit, the Sheikh has declared in his Mabsoot that 
 the shufee may take possession immediately on paying 
 down the price, or may wait till the stipulated time 
 of payment arrive, and then pay the price and take pos- 
 session. 1 But the same author has stated in his Nihuijah, 
 that the shufee may take immediate possession of the 
 subject of sale on his own responsibility for the price, 
 provided that, if not in opulent circumstances, he must 
 give security for the amount. And this doctrine is the 
 more approved. 
 
 Second. Mofeed and Moortuza have both pronounced 
 the right of shoofd to be hereditary. But the Sheik has 
 declared that it is not so, founding his decision on a report 
 by Tulha Ben Zeyd, who, however, is a Butturee ; 2 and 
 the first doctrine is more approved, as being agreeable to 
 the general and comprehensive sense of the sacred text on 
 the subject of inheritance. 3 
 
 1 That is, he is not entitled to the benefit of the credit, which is 
 agreeable to the Hanifeea doctrine on the subject. — D., p. 491. 
 
 2 A particular sect of the Zeydians, held in necessary detestation 
 by the followers of the twelve Imams, as disputing the title of 
 their seventh spiritual leader, the Imam Moosexj Kasim, son of J&fer 
 Sddik, in favour of another brother. — See Sale's Preliminary Dis- 
 course to his Translation of the Koran. 
 
 3 According to the Hanifites the right abates on the death of the 
 shvfec—D., p. 499. 
 
ASSUMPTION OF PROPERTY UNDER SHOOFA. 191 
 
 Third. The right is inherited like any other property, like any- 
 other 
 property. 
 
 so that if the shufee should leave a widow and a child, the c 
 
 widow would take an eighth and the child the remainder. 
 Further, if one heir should relinquish his share of the 
 right, it would not drop or be extinguished, but the other 
 might take the whole. This, however, is liable to some 
 slight doubt. 
 
 Fourth. When the shufee sells his own share of the it is ex- 
 property, with a full knowledge of his right of pre-emption, t in g uisn ed 
 the Sheikh has declared that his right is extinguished, shufee 
 
 because such share is the sole ground of his claim : but sellin £ his 
 
 D _ J own share 
 
 that if he should sell his share before he has been informed of the 
 
 of his right, it would not be extinguished, as existing P ro P ertv ; 
 
 previous to his own sale. It would, however, appear to be 
 
 better to say that in neither of these cases would he have 
 
 any claim to the exercise of the right. 
 
 Upon a principle formerly laid down by the Sheikh* and is 
 it would follow as a necessary consequence, and the Sheikh ?- s \ a ^ ■ 
 has declared, that if a partner should sell his share of any first pur- 
 joint property with an option to the buyer, and the shufee cnaser - 
 should afterwards sell his own share, the right of shoofd in 
 such share will belong to the first purchaser ; whereas if in 
 the first contract an option had been reserved to the seller, 
 or to both the parties, the right of shoofd would belong to 
 the seller ; because, in the first case, the transfer would be 
 completed by the contract alone, while in the second, its 
 completion would not take place till after the lapse of the 
 period of option. 5 
 
 Fifth. If a person on his deathbed should sell his share In the case 
 of joint property to one of his heirs by a contract of ^Muha- 
 muhabat, that is, for a price under its value, and if the deathbed, 
 
 4 See ante, p. 182, note 2 . It would seem that the Sheikh was of 
 opinion that it is only in cases where an option is reserved to the 
 purchaser that the right of shoofd is established by the contract of 
 sale, without lapse of the period of option. 
 
 5 The more prevalent opinion being that the transfer is com- 
 pleted in both cases by the contract alone, the right of shoofd 
 ought to belong to the first purchaser alike in both. — See ante, 
 p. 182. 
 
192 
 
 SHOUFA. 
 
 the 
 
 x J/ 1/ fee's 
 right can 
 operate 
 only as to 
 so much of 
 the share 
 as is com- 
 pensated 
 for by the 
 price, and 
 so much 
 more of it 
 as falls 
 within a 
 third of 
 the de- 
 ceased's 
 estate. 
 
 The right 
 is extin- 
 guished 
 by the 
 shufee' 1 s 
 com- 
 pounding 
 it; 
 
 but not 
 by his 
 guarantee- 
 ing the 
 sale, or 
 acting as 
 agent for 
 either 
 party 
 therein. 
 
 The shufee 
 after tak- 
 ing posses- 
 sion may 
 return the 
 property 
 for a 
 defect. 
 
 abatement does not exceed a third part of his estate, 
 the contract of sale is valid, and establishes a right of 
 pre-emption in the partner of the deceased. Should the 
 abatement exceed a third part of the deceased's estate, 
 and the other heirs refuse to ratify the sale, it is valid only 
 to such extent as is opposed to the price, and so much 
 more as the third of the estate will admit of; and, conse- 
 quently, to this extent only the privilege of shoofd can 
 operate in favour of the partner. Some doctors, however, 
 have maintained that the muhabat is good as against the 
 whole of the deceased's property, and that the shufee is 
 accordingly entitled to take the whole, on the principle 
 that no limitation to a third can affect deathbed acts, which 
 are absolute and unconditional. 
 
 Sixth. If a shufee agree to compound his privilege for 
 a compensation, it is valid, and his claim is thereby ex- 
 tinguished ; for it is a right to property, and, therefore, 
 a fit subject of composition. 
 
 Seventh. If a share of joint property be sold, and the 
 shufee should himself become zamin Vil durk, or general 
 security, either for the seller or purchaser, or if both 
 should stipulate an option to the shufee, his right of 
 pre-emption would not be extinguished in either case. 
 Neither would it be so if he acted as agent in the sale 
 for either of the parties. 7 Upon this point, however, there 
 is room for some doubt, founded on his apparent acqui- 
 escence in the sale. 
 
 Eighth. When the shufee has taken possession of the 
 property and discovered a defect in it which existed prior 
 to the sale, then, if both he and the purchaser were aware 
 of the defect, neither has any option in the matter ; but if 
 they were both ignorant of the defect, and the shufee 
 returns the property to the purchaser, the latter has an 
 option either to reject the sale altogether, or to demand 
 a compensation for the defect from the seller. If, however, 
 the shufee should elect to retain the property, the purchaser 
 
 6 To which amount the operation of deathbed gifts is limited. 
 —Post, p. 209. 
 
 7 See ante, p. 180. 
 
ASSUMPTION OF PROPERTY UNDER SHOOFl. 193 
 
 lias, in that case, no right to cancel the sale, because the 
 share has passed out of his hands. And the Sheikh has 
 said that he has no right to demand a compensation for 
 the defect ; but on this latter point the more prevalent 
 opinion is in favour of his claim. So also if the shufee 
 were acquainted with the defect, and the purchaser igno- 
 rant of it. 8 But if the purchaser was informed of it and 
 not the shufee, the latter only would have the right of 
 rejection. 
 
 Ninth. If a person should sell his share in joint property Case of 
 
 for a specific thing which has no similar, as a slave, for defect 
 
 x ° ' in price 
 
 example, and we adopt the doctrine that, in such a case, when it is 
 
 there is no right of pre-emption, 9 nothing farther is to be a sp ecmc 
 said. If, on the other hand, we adopt the more prevalent 
 opinion which supports the right of the shufee on payment 
 of the value, and he avails himself of his privilege, but the 
 slave, for example, is found to be defective, the seller has 
 a right to return him to the buyer, and demand from him 
 the full value of the share, unless prevented by some recent 
 obstacle, such as a new blemish occurring in the slave 
 while in his possession ; but cannot demand restitution 
 of the share from the shufee, because no subsequent can- 
 cellation of a sale originally valid can extinguish the right 
 of shoofd. Further, should the share revert to the pur- 
 chaser by a new title of property, such as gift or inherit- 
 ance, he cannot return it to the seller ; nor, if the latter 
 should call upon him to do so, on account of the defect in 
 the price, is he bound to comply with the request. Again, 
 if in the like circumstances the value of the share were less 
 than the value of the slave, the shufee, according to the 
 most prevalent doctrine, has no recourse for the difference, 
 for the price to him is that which was stipulated in the 
 contract. Further, if whilst the share remains in possession 
 of the purchaser the seller should reject the price in conse- 
 
 8 That is, the shufee having no option in the case, the purchaser 
 could not cancel the sale, but he would still have a right to claim 
 compensation for the defect, which, when obtained, must in all cases 
 be allowed to the shufee, in abatement of the price — Ante, p. 187. 
 
 9 See ante, p. 183. 
 
 PART II. O 
 
194 SHOOFA. 
 
 quence of the defect, he cannot thereby prevent the shufee 
 from exercising his right, for it was established prior to 
 the rejection, and he is entitled to take possession on 
 paying the value of the price, that being what the contract 
 required, and the seller has merely a right to the value of 
 the share from the buyer. If, again, the value of the share 
 were more than the value of the price, and any new 
 obstacle has occurred whilst it remained with the seller 
 to prevent its return, he may have recourse against the 
 purchaser for a compensation for the defect, but has no 
 such recourse against the shufee, since he took the share 
 for the value of an exchange or consideration supposed to 
 be free from defect. 
 Case of Tenth. If a mansion is the joint property of a person 
 
 the sale of on ^ ie s „ {. anc j one wno j s absent, and the share of the 
 share in L ' . 
 
 the ab- absentee being in the hands of a third party is sold by him, 
 
 sence of alleging that he has the authority of the absent owner, the 
 the owner, ° ° . . . . . \ 
 
 by a per- Sheikh has said in his Khilaf that the right of shoofd is 
 
 son pre- fully established : but the contrary would seem to be the 
 
 tending to J J 
 
 have his more approved opinion, because the right of shoofd is 
 
 authority. c "i e p euc ] en fc on the validity of sale, which cannot be esta- 
 blished without the owner's consent. If, therefore, the 
 shufee has taken possession of the mansion, and the owner 
 should appear and admit his authority for the sale, there is 
 no room for objection ; but if he deny it, his assertion upon 
 oath must be credited, and he will recover not only his 
 share in the property, but also the hire or rent thereof, 
 from the time that possession of it was taken until it is 
 restored ; and his claim for rent may be made against the 
 seller, as the primary cause of his loss, or against the 
 shufee, as the immediate agent therein. Should he elect 
 to proceed against the pretended agent, and recover from 
 him, the latter has no recourse against the shufee ; whereas, 
 if he sue and recover from the shufee, the latter has a good 
 ground of recourse against the agent, on account of the 
 deceit practised against him. The Sheikh has expressed 
 a different opinion, but this is the most approved and pre- 
 valent doctrine. 
 
 If a person should purchase a share of joint property 
 
ASSUMPTION OF PROPERTY UNDER SHOOFA. 195 
 
 for a hundred (deenars), and deliver to the seller an article 
 equal in value only to ten, the shiifee is nevertheless bound 
 either to pay the full hundred or to relinquish his claim ; 
 because the price which he must pay is to be determined 
 by the contract of sale, not by any subsequent arrangement 
 between the parties. 
 
 Questions connected tvith the voiding of the right of Shoofd. 
 
 Shoofd is extinguished by a failure to institute the Shoofd is 
 claim after information thereof, unless under some valid delay^to' 
 excuse. 10 Some doctors have maintained that no delay claim it 
 can extinguish the claim unless it is expressly released ^ffirieniT 
 by the party himself; but the first opinion appears better excuse; 
 supported by traditional authority. Further, if a shufee gyenTy 
 should himself expressly relinquish his claim previous to express re- 
 sale of the property, the right is not thereby forfeited in m entprior 
 the event of a subsequent sale, because that would be can- to sale, 
 celling a right which has no legal existence. This doctrine, 
 however, is liable to difficulty, and has given rise to a 
 difference of opinion; n and the same difficulty applies" to 
 the case of a shufee being present and witnessing the sale, 
 or congratulating the purchaser or the seller on the con- 
 clusion of the bargain, or authorising the former to make 
 the purchase ; in neither of which cases is the right of 
 shoofd extinguished, because none of them affords a 
 stronger proof of acquiescence on the part of the shufee 
 than his express declaration before the sale. 
 
 If intelligence of the sale is conveyed to the shufee in a delay 
 such a manner as to establish the truth of its having taken to claim 
 place, such as the concurrence of several successive reports, ceiving 
 or the testimony of two upright witnesses, notwithstanding credlble 
 which he delays to prefer his claim, pretending to distrust tionof'the 
 their authority, the right is forfeited, and such pretext ri £ nt in " 
 cannot be admitted in law. If, on the other hand, his forfeiture; 
 
 information was received from a youth under age, or from b , ut P **^ 
 
 . & ' the mfor- 
 
 afasik, or profligate person, he is not bound to receive it, mation 
 
 Ante, p. 184. 
 
 On the ground of acquiescence. — See ante, p. 192. 
 
 o 2 
 
190 
 
 shoofA. 
 
 docs not 
 amount to 
 legal 
 evidence. 
 
 When the 
 price can- 
 not be as- 
 certained 
 the right is 
 necessa- 
 rily extin- 
 guished. 
 
 Also when 
 it turns 
 out to be 
 the pro- 
 perty of 
 another j 
 or is 
 
 known to 
 have been 
 usurped ; 
 
 or is lost 
 or destroy- 
 ed previ- 
 ous to pos- 
 session by 
 the seller. 
 
 Devices 
 by which 
 the right 
 may be 
 evaded. 
 
 and his right is not forfeited by the delay. So, also, 
 his right is not forfeited if the information is conveyed to 
 him by only one just person, and he fails to act upon it, 
 because the evidence of a single individual is not proof 
 in law. 
 
 If both the purchaser and shufee are ignorant of the 
 price (having perhaps forgotten it) the right is necessarily 
 extinguished from the impossibility of delivering the price, 
 and if the property to which the right applies is in a distant 
 country, and the shufee postpones his claim until his arrival 
 there, this invalidates his title altogether. Further, if the 
 price paid by the purchaser should turn out to be the 
 property of another person, this also, invalidating the sale, 
 has necessarily the same effect on the right of the shufee. 
 In like manner, if both the purchaser and shufee knew the 
 price to have been usurped, or if the latter only should 
 acknowledge this fact, he is thereby debarred from making 
 any claim. And further, where a specific article stipulated 
 to be the price has perished previous to possession of it by 
 the seller, here also, the original contract being null, the 
 right of slioofd also becomes void. This point, however, is 
 the subject of doubt and difference of opinion. 
 
 Some of the devices for defeating the right of shoofl 
 are as follow : — The property may be sold for a price above 
 its value, and then something of trifling value may be 
 received in exchange for it, which would compel the shufee 
 to pay the full price stipulated in the contract if he chose 
 to avail himself of his privilege. Again, if the property is 
 sold at an excessive price, and the seller receives part of it, 
 giving a release of the remainder, this also obliges the 
 shufee to submit to a considerable loss or to abandon his 
 claim. In like manner, if the seller transfer his share 
 without sale, as by gift or composition, and on a purchase 
 being alleged, the buyer should admit the fact, but say 
 that he had forgotten the price, in such a case his word 
 must be credited when accompanied by his oath ; and if he 
 should swear, the right of shoofd would be extinguished. 
 If, however, he should merely say that he does not know 
 the quantity or amount of the price, that would be no valid 
 
ASSUMPTION OF PROPERTY UNDER SHOOFA. 197 
 
 answer, and he must be required to give one more explicit. 
 The Sheikh, however, has declared that the shufee must in 
 that case be called upon to swear. 12 
 
 12 Literally, " that the oath must be returned to the shufee," that 
 is, that he must specify and swear to a price, and the purchaser's 
 knowledge of it, both of which seem necessary to the validity of his 
 claim. According- to the Imameea jurisprudence, when a plaintiff, 
 in default of evidence, refers the matter to the defendant's oath, the 
 latter has the option of swearing to the negative of the plaintiff's 
 assertion, or calling upon him to confirm the affirmative by his own 
 oath (Shuraya, p. 477), a course not open to him by the Hanifeea 
 code. 
 
198 
 
 SIIOOFA. 
 
 CHAPTER V. 
 
 OF DISPUTES RELATIVE TO SHOOFA. 
 
 In dis- 
 putes re- 
 garding 
 the price 
 between 
 the pur- 
 chaser and 
 sliufee, the 
 assertion 
 of the for- 
 mer is pre- 
 ferred ; 
 
 as also the 
 evidence 
 adduced 
 by him. 
 
 His evi- 
 dencelike- 
 wise pre- 
 ferred in 
 disputes 
 between 
 him and 
 the seller 
 regarding 
 the price. 
 
 First. If the purchaser and sliufee differ as to the price, 
 and neither of them has evidence, the assertion of the 
 former upon oath is to be credited, for he is the person 
 whose possession of the property is disputed, and who is 
 consequently defendant in the cause. But if one of the 
 parties should be able to adduce evidence this must 
 necessarily guide the decision. The testimony of the 
 seller, however, it is to be observed, is inadmissible on the 
 part of either. If, again, both the parties should adduce 
 evidence, that of the purchaser must be preferred, although 
 there is nearly equal ground for giving the preference to that 
 of the sliufee, who is out of possession and therefore the 
 plaintiff in the cause. 1 If the difference as to the price is 
 between the seller and purchaser, and only one of them 
 has evidence, such evidence, by whichever of them it is 
 produced, must guide the decision. If, on the other hand, 
 evidence is adduced by both parties, the Sheikh has declared 
 that the case must be decided by casting lots. But this is 
 attended with difficulty, for the casting of lots is a method of 
 decision strictly confined to cases of perfect equality on both 
 sides, which cannot be said to exist in this case, for there 
 is a general rule with regard to contracts of sale that where 
 the thing sold is still in existence the word upon oath of 
 
 1 There was a difference upon this point among the Hanifite 
 doctors also — Aboo Huneefa and Moohummud supporting the evidence 
 of the shufee, while Aboo Yoosuf was in favour of that of the pur- 
 chaser. — See Hamilton's Hedeya, vol. iii. p. 578. 
 
DISPUTES RELATIVE TO SHOOFA. 199 
 
 the seller is to be credited, whence it follows that when both 
 adduce evidence that of the purchaser must be preferred ; 2 
 and when the price is thus determined, it rests with the 
 sliufee to make his choice either to take possession at that 
 price or to relinquish his right altogether. 
 
 Second. If one of the partners in joint property should If one 
 allege that he has sold his share to a stranger, and the ^now- 
 stranger denies the purchase, the Sheikh has said, in the ledges the 
 Kkilaf, that the apparent acknowledgment involved in g^ are 'q^ 8 
 the suit of the seller is sufficient to sustain the right of acknow- 
 shoofd in his partner. But this decision has been ques- though ' 
 tioned on the ground that slioofd is dependent on the denied by 
 establishment of purchase. It nevertheless appears to be c t^ser 
 most generally approved, and is supported by the common sufficient 
 rule of law, that the acknowledgment of a possessor is valid the sJm . 
 as against himself. fee's right. 
 
 Third. If one of two owners in joint property should Case of 
 claim the right of slioofd against the other, by asserting dls P u e ^ 
 priority of purchase, which the other denies, the word of tual claim 
 the latter upon oath must be credited, and it is sufficient ° rt ™e rs 
 if he merely swear that there is no right of slioofd as founded 
 against him; and he cannot be required to swear that °" p"°" y 
 his purchase was not subsequent to that of the claimant, chase. 
 If, again, both the partners should allege priority of 
 purchase respectively, and consequently a right of slioofd 
 over the share of the other, as in that case they are both 
 equally claimants, if neither of them can adduce proof, 
 each must be called upon to swear in refutation of the 
 other's priority of purchase, which being done, the property 
 is established between them as before. Further, should one 
 of the partners adduce evidence in general terms to prove 
 merely his purchase, still no decision can be given in his 
 favour, as in the matter of priority he has no advantage over 
 the other. If, however, there is testimony in favour of one 
 as to his priority of purchase, this must necessarily determine 
 the decision ; but if both adduce proof of their purchase 
 in general terms without assigning any dates, or of the 
 
 - See Im. D., p. 00 
 
con- 
 tinued. 
 
 200 SHOOFA. 
 
 purchase of both being on the same day, there can be 
 no preference to either. If, again, the witnesses of each 
 should testify to his priority of purchase over the other, 
 some doctors have said that recourse must be had to lots 
 for deciding the case; while others maintain that the 
 claims of both the parties must drop, and the property 
 remain in partnership as before. 
 
 Fourth. When a claim of shoofd is made by one of the 
 partners on the ground of a purchase, and the other 
 alleges that he acquired his share by inheritance, and both 
 parties offer evidence of their assertion, the Sheikh has 
 declared that a reference must be had to lots by reason 
 of the perfect equality on both sides. If, however, the 
 defendant should plead that the possession of the claimant 
 is in virtue of a deposit by the owner, and both parties 
 should offer proof, preference must be given to that of the 
 shufee, or claimant ; because deposit does not controvert 
 the establishment of purchase. 3 If, on the other hand, 
 the witnesses of the claimant should merely testify to the 
 purchase generally, while those of the other party testify 
 that the depositor, being in possession of the subject of 
 dispute, made the deposit of it subsequently to the alleged 
 purchase, the Sheikh has said that preference must be 
 given to the proof of deposit, with this further proviso, 
 that the depositor is to be written to, and that if he 
 confirm the statement, judgment is to be given in terms 
 of the proof, and for rejection of the shufee's claim ; but if 
 he should deny the statement, judgment should be given 
 in terms of the shufee's evidence, and consequently in 
 his favour. If, again, the witnesses of the shufee should 
 testify that the seller sold at a time when he was actually 
 proprietor, while those for the deposit merely testify to it 
 in general terms, the witnesses produced by the shufee are 
 to be preferred, and there is no occasion for any reference 
 to the alleged depositor. 
 
 3 For, though the property were deposited, it might be subse- 
 quently purchased from the owner by the trustee. 
 
DISPUTES KELATIVE TO SHOOFA. 201 
 
 Fifth. If both the seller and purchaser of a share in Concur- 
 joint property unite in declaring that the price was usurped, j^e^eller 
 while the shufee denies the assertion, his word is to be and pur- 
 credited without any necessity for his oath, unless they no ^ to 
 
 assert his knowledge of the usurpation. 4 the shu- 
 
 fee's right. 
 
 4 The price may have been "an animal, or a piece of cloth, or a 
 jewel," (ante, p. 183,) and so have been usurped, in which case 
 the sale would be invalid, a d if so there could be no right of shoofd, 
 but the concurrence of the seller and purchaser as to that fact is 
 not proof against the shufee. 
 
BOOK IV. 
 OF HEBBAT, OR GIFTS. 
 
 CHAPTER I. 
 
 INTRODUCTORY. 
 
 Held, or gift, is a contract by which the property of a Defini- 
 substance 1 is transferred immediately and unconditionally, tl0n- 
 without any exchange, and free from any pious or religious 
 purpose on the part of the donor ; 2 and it is sometimes 
 termed in law nuhulut and dteeut. This contract requires How con- 
 declaration and acceptance, with seizin or taking posses- s x u e • 
 sion. 3 By declaration is here to be understood every word 
 that serves to express a transfer of property as above 
 described, such as " I have given you," or " I have made 
 you the proprietor of this." But the contract is not valid 
 except when proceeding from a person who is of full age, 
 sound understanding, and unrestrained in the use of his 
 property. 4 
 
 The donation of a debt, or what rests on the obligation Gift of a 
 
 of another, is not valid to any other than the debtor or de , t ? t ; not 
 . . . .. valid to 
 
 person by whom it is due, according to the most approved any other 
 
 doctrine, by reason of the condition already mentioned, * h ^ the 
 
 that it requires possession to complete it; whereas, if made t0 whom 
 
 to the debtor himself, it is quite valid, and operates as a it is a re- 
 lease. 
 
 1 Ayn: Res prsesens ; Rei substantia, essentia. — (Freytag.) 
 
 2 This distinguishes it from tvuJcf. 
 
 3 Kubz, inf. of kubuzu, cepit. — (Freytag.) 
 
 4 According to Allamee, in his Tuhre.er, the donee must also be of 
 mature age and intellect ; but this seems inconsistent with what is 
 said hereafter of gifts to minors. 
 
204 
 
 GIFTS. 
 
 Gift not 
 complete 
 without 
 seizin by 
 the donee; 
 and if 
 donor die 
 before 
 seizin the 
 gift re- 
 verts to 
 his estate. 
 
 Permis- 
 sion of the 
 donor a 
 condition 
 of valid 
 seizin. 
 
 Gift by a 
 parent to 
 his child 
 of a thing 
 in his own 
 posses- 
 sion com- 
 plete by 
 the con- 
 tract. 
 
 Gift of 
 mooshaa 
 
 valid. 
 
 release of the debt ; a release not requiring acceptance, 
 according to the most approved opinion. 
 
 No decree can be given for a gift until it is completed 
 by seizin or taking possession. Yet, if the donor should 
 acknowledge the gift and delivery of possession, 5 judgment 
 must be given against him on his own acknowledgment, 
 though the thing given may be still in his hands ; and any 
 subsequent denial of it cannot be received. 
 
 If the donor should die after the contract, and before 
 possession has been taken of the gift, it falls back into his 
 inheritance. 
 
 Permission of the donor is a condition of valid seizin ; 
 and if the thing given be taken possession of without his 
 permission, it is not transferred to the donee. 6 But if a 
 thing be given which is already in the hands of the donee, 
 that is sufficient, and the donor's permission to take pos- 
 session is not required, nor is it necessary that any time 
 should elapse to enable the donee to repeat his seizin, as 
 some of our doctors have said. 
 
 When the father or grandfather of a little child has 
 made him a gift, it is complete and binding on the donor 
 by the contract itself, because seizin by the guardian is 
 seizin on his part. But if any other than the father or 
 grandfather of the child should make him a gift, the 
 donor's possession would not be sufficient, whether he 
 have power over the child or not ; 7 and the legal guardian 
 of the judge must obtain power over the gift in order to 
 complete the right of the child. 
 
 The gift of mooshdd or a share in joint and undivided 
 property is lawful, and seizin of it is to be taken in the 
 same way as seizin in sale. 8 And if a thing is given to two 
 
 5 Ikbaz, causal form of kubz. 
 
 B Even, according to the author of the Tuhreer, though the donor 
 were present at the time. 
 
 7 According to the other sect, possession of a gift to a minor 
 may be taken by any person in whose family he is living. — D., p. 530. 
 
 8 That is, by mere surrender or vacating by the donor. Accord- 
 ing to Allamee, in his Tuhreer, this is sufficient in all cases of gift 
 where the subject is immoveable ; where it is moveable, actual 
 transportation or removal seems to be required. 
 
INTRODUCTORY. 205 
 
 persons jointly, and they both accept and both take pos- 
 session, each donee becomes the proprietor of the portion 
 given to him. If, again, one only of them should accept 
 the gift, and take possession, while the other refuses, the 
 gift to the acceptor is valid. 9 
 
 A father may lawfully give a preference to one child A father 
 over another in gifts and presents; but it is accounted ^ore^o 6 
 abominable in him to do so. one child. 
 
 After possession has been taken of a gift, it cannot be Gift to 
 lawfully retracted when made in favour of parents, accord- lat j oncan _ 
 ing to general agreement, nor even when the donee is any not be 
 other relative by consanguinity of the donor, though on this 
 point there is some difference of opinion. But if the gift to a 
 be to a stranger, it may be retracted at any time, so long ^ n {[g r 
 as the substance of the thing given is in existence. After revoked, 
 it has perished, there can be no retractation. In like Excep- 
 manner, a gift cannot be retracted if anything has been tl0n - 
 received in exchange for it, though the exchange should 
 be of little value. Whether, again, mere use by the donee 
 has the effect of doing away with the donor's power of 
 retractation, is a question to which some lawyers have 
 answered in the affirmative, whilst others have denied 
 that effect ; and their opinion is the more reasonable and 
 approved. 10 
 
 Presents to relatives, and especially to children, are Presents 
 
 highly proper and becoming. In presents to children, JjJjJjjjJ 11 
 
 equality should be observed. Further, it is abominable in tives pro- 
 per and 
 
 9 The whole doctrine with regard to mooshdd is opposed to that becoming, 
 of the other sect. — D., p. 515. 
 
 10 The regular forms of retractation of gifts, according to the 
 author of the Tuhreer, are that the donor should say, "I have 
 retracted," " I take back my gift," or " demand its restitution," and 
 all similar expressions, which sufficiently establish the retractation 
 without any decree of the judge, for this is by no means required for 
 its confirmation ; whilst, on the other hand, mere re-assumption of 
 the gift from the donee, without some other proof of revocation on 
 the part of the donor, does by no means constitute this act in law ; 
 and should he die without affording any other proof of his intention 
 to retract the gift, it is still, although fouud in the donor's possession, 
 the lawful property of the donee.— From MSS. of the translator of 
 the first volume of the Im. 1). 
 
20G GIFTS. 
 
 a wife to retract a gift made to her husband, and in a 
 husband to retract a gift made to his wife. Some doctors 
 have considered a husband and wife in respect to their 
 mutual gifts on the same footing as kindred by consan- 
 guinity ; but the first opinion appears to be better supported 
 by analogy. 11 
 
 11 According to the other sect, the marriage relation prevents the 
 revocation of gifts. — D., p. 525. 
 
( 207 ) 
 
 CHAPTER II. 
 
 OF THE LAWS OF GIFT. 
 
 These are comprehended in the following cases : — 
 
 First. If a person should make a gift, put the donee Sale by a 
 
 in possession, and then sell it to another, the sale is donor of 
 
 invalid if the donee were a relation by consanguinity ; so already 
 
 also though he were a stranger, if he had given anything £ lv .en of 
 
 „ -r, .« ° which the 
 
 in exchange for the gift. But if the donee were a stranger, donee has 
 
 and had not given anything in exchange for the gift, some tak€ ; n P os_ 
 ° J ° . ° session, 
 
 have said that the sale would be void, as of a thing not not valid, 
 the property of the seller, while others maintain that it 
 would be valid, because he has the power of retractation ; 
 but the first opinion is best supported. 1 If, however, the 
 gift were invalid, there is no doubt that the sale would be 
 good in both views of the case. And the effect would be 
 the same with respect to the sale by an expectant heir of 
 property belonging to his ancestor, when he believes the 
 ancestor to be alive ; for if it should prove that he was 
 actually dead at the time, the sale is valid. So also in the 
 case of a bequest by a person of his slave whom he had 
 emancipated, if it should prove that the emancipation was 
 invalid, the sale would be good. 
 
 Second. If there has been any delay after the contract The trans- 
 in giving possession of the gift, but possession is at length ferof pro- 
 given, the transfer of property is to be decreed as having gift dates 
 
 taken effect from the time of seizin, not from the date of * rom ^ e 
 
 . . tlme of 
 
 the contract. It is not so in the case of a bequest ; for taking 
 
 there the transfer is to be decreed as having 1 effect from P. osses " 
 
 ° sion. 
 
 1 See ante, p. 205, note 10 . 
 
208 
 
 GIFTS. 
 
 When the 
 donor ad- 
 mits the 
 gift, but 
 denies de- 
 liverj 7 , his 
 word to be 
 credited. 
 
 On retrac- 
 tation of 
 a gift the 
 donor is 
 not en- 
 titled to 
 compensa- 
 tion for 
 defects. 
 
 Retrac- 
 tation 
 barred by 
 accept- 
 ance of 
 any ex- 
 change 
 subse- 
 quent to 
 the gift. 
 
 the death of the testator, if the bequest is accepted by the 
 legatee, and not from the date of taking possession, though 
 there should have been some delay in taking it. 
 
 Third. If a person should say, "I gave, but did not 
 put him in possession, '' the word is with the donor, but the 
 donee may demand his oath if he insists that possession 
 was given. So also if a person should say, " I gave him 
 and made him the proprietor of it," and then deny the 
 giving possession; for it is possible that he may have 
 made the first statement, supposing that seizin was not 
 necessary to make the donee proprietor of the gift. 
 
 Fourth. When a person has retracted a gift and finds 
 it to be defective, he has no claim to any compensation on 
 account of the defect. If the gift has increased, and the 
 increase is of such a nature as to be united to the original, 
 it belongs to the donor. But if the increase be separated 
 from the original, as the fruit of a tree, or the child of a 
 slave, and if it be entirely new, it belongs to the donee, 
 while if it were formed, or in existence at the time of the 
 gift, it is the property of the donor. 
 
 Fifth. When a person has made a gift in general terms 
 there is no condition or obligation on the part of the donee 
 to give any gratuity in return. Still if he should do so, 
 the donor would thereby be debarred from retracting the 
 gift. If again a reciprocal gratuity were actually stipulated 
 for at the time of the contract, the condition would be valid, 
 whether the article to be given were indefinite or parti- 
 cularly specified, and the original donor would retain his 
 power to retract until the stipulated exchange were actu- 
 ally delivered to him. When the stipulation is entirely 
 indefinite as to the quantity, the donee may make any re- 
 turn, however small in value, and should the donor accept 
 and take possession of the exchange, he is no longer at 
 liberty to retract his gift. Further, the donee cannot be 
 compelled to make the stipulated return ; nay, he is ab- 
 solutely free in the matter, and if the gift should perish 
 or suffer any injury in such circumstances, he is in nowise 
 responsible for the loss or injury which has occurred while 
 the thing was actually his property ; although upon this 
 
LAWS OF GIFT. 209 
 
 point there is some room for doubt, on account of the 
 stipulation for an exchange. 
 
 Sixth. When the gift is of a piece of cloth, and the Case of a 
 donee has dyed it, this, according to those doctors who think £|^ be _ 
 that use by the donee of the subject of the gift debars the ing dyed 
 donor from retracting it, has the effect of preventing the ^ 0U qq 
 retractation ; but if we agree with those who say that use 
 of the gift is no impediment to its retractation though the 
 donee is a stranger, 2 he becomes in the event of such 
 resumption a partner with the donor for the value of 
 the dye. 
 
 Seventh. When a person has made a gift, being Gift in 
 dangerously ill at the time but afterwards recovers, the z^zr. '^a 
 gift is valid. If, however, he should die of the disease, only to a 
 and the heirs refuse their assent to the gift, it is valid only Jjjj" ° 
 
 to the extent of a third of his estate, according to the best donor's 
 
 , iv i ,i •, estate, 
 
 traditional authority. 
 
 2 The more approved opinion. — Ante, p. 205. 
 
 TART II. 
 
BOOK V. 
 
 OF WOOKOOF 1 AND SUDUKAT, OR APPROPRIA- 
 TIONS AND ALMS. 
 
 stituted. 
 
 CHAPTER I. 
 of wukf, or appropriation. 2 
 
 Section First. 
 
 Introductory. 
 
 Wukf is a contract the fruit or effect of which is to tie up Defini- 
 the original of a thing and to leave its usufruct free. The lon- 
 only express word by which it can be constituted is How con- 
 " Wukufbo" " I have appropriated ; " for with regard to 
 " Hurrumto" " I have consecrated," and " Suddukto" " I 
 have bestowed," they are not sufficient to constitute wukf 
 without accompanying circumstances, as by themselves 
 they are susceptible of another interpretation besides wukf. 
 If, however, they are used with the design of constituting 
 wukf, they are obligatory on the conscience of the person 
 employing them without any circumstances to fix their 
 meaning. And if he should actually acknowledge that he 
 used them with that design, judgment should be given 
 against him in terms of his acknowledgment. 3 It has been 
 said, indeed, that if he should say, " Hubbusto* o subbidto," 6 
 wukf would be constituted even without any circumstances 
 
 1 Plural of wukf. 
 
 2 Literally, detention. 
 
 3 That is, when completed by giving possession. 
 
 4 Increased conjugation from hoobs, which has the same meaning 
 as wukf, and is used instead of it by the followers of Malik. 
 
 b From subeely a way. 
 
 v 2 
 
212 
 
 APPROPRIATIONS AND ALMS. 
 
 Not obli- 
 gatory till 
 possession 
 is given. 
 
 When 
 made in 
 death ill- 
 ness valid 
 only to the 
 extent of 
 a third of 
 deceased's 
 property. 
 
 The wukf 
 
 of a sheep 
 includes 
 the exist- 
 ing wool 
 and milk. 
 
 to point their meaning, because He on whom be peace has 
 said, " Huhbis ul usul o subbil id thoomrut" ("Tie up the 
 original and give way to the fruit"). Others, however, 
 have maintained that there would be no wukf in the case 
 without corroborative circumstances, as the words by them- 
 selves would not commonly be so understood ; and this is 
 the more approved opinion. 
 
 The contract is not rendered obligatory except by 
 giving possession ; 6 but when so completed it cannot be 
 revoked if made in health, and even when made in death 
 illness it is equally valid if allowed by the heirs, though, 
 if disallowed by them, it is valid only to a third of the 
 deceased's estate, in the same way as a gift or a muhabat 7 
 in sale. Some of our doctors iusist that it should be 
 sustained out of the whole of the estate ; but the first 
 opinion is the more approved. If one in death illness 
 should make a wukf, a gift, a muhabat sale, and also 
 emancipate a slave, and neither of the acts is allowed by 
 his heirs, all are valid if they can be carried into effect out 
 of a third of his estate. Otherwise, they are to be pre- 
 ferred according to priority of date, and effect given to each 
 in order until the third of the estate is exhausted, after 
 which any that remain are void. The same rule is to be 
 observed when a man has made bequests in excess of a third 
 of his property. If the priority cannot be determined, some 
 of our doctors maintain that the third should be rateably 
 divided among the different objects; but the better opinion 
 seems to be that the question should be determined by lot. 
 
 If a man should appropriate a sheep, the wool and 
 milk existing at the time are included in the wukf, unless 
 specially excepted, from a regard to custom, and as would 
 be the case if the animal were. sold. 
 
 Ikbaz. See ante, p, 204. Not required by the Hanifites. 
 7 Where the price is inadequate, there is said to be muhabat in 
 the transactkm. 
 
appropriation. 213 
 
 Section Second. 
 Condition*. 
 
 These are of four kinds. 
 
 First Conditions that relate to the moivkoof* or thing Condi- 
 appropriated, which are also of four kinds. It must be a re i ate t 
 substance, the property of the appropriator, capable of being t,ie tiling 
 used without being consumed, and also capable of being prfated. 
 delivered. Hence, the wukf of anything which is not in ayn, 
 or distinctly specified, as deyn or indeterminate things, is not 
 valid. 9 So also if one should say, " I have appropriated a 
 horse, or a mansion," without mentioning some one in parti- 
 cular, the wukf would be invalid. But the appropriation of 
 dkai\ , or lands and houses, of clothes, furniture, lawful instru- 
 ments, 10 and generally of everything from the use of which 
 any benefit can be lawfully derived with the preservation of 
 the thing itself, is quite valid. ' ' So also the wukf of a trained 
 dog or of a cat, from the possibility of employing them for 
 some useful purpose. But the wukf of a hog is not valid, 
 because it cannot lawfully be the property of a Mooslim, 
 nor of an absconded slave, because he cannot be delivered. 
 Whether, again, deenars and dirhems can be validly ap- 
 propriated, is a question which some of our doctors have 
 answered in the negative ; and their opinion is the most 
 manifest, or best supported by traditional authority, because 
 they are things from which no benefit can be derived except 
 by spending them. Others, however, insist that the appro- 
 priation of them is valid, because some advantage from 
 them may easily be imagined, with preservation of the 
 originals. 12 If one should appropriate a thing which is 
 
 8 Pa9t participle of wukf. 
 
 9 For the meaning of deyn, as distinguished from ayn, see Im. D., 
 p. 60, note t. 
 
 10 For such as are unlawful see Im. I)., p. 3. 
 
 11 According to the Hanifites, no moveables, unless attached to 
 lands or houses, except beasts of burden, weapons of war, and 
 things which it is customary to appropriate, can be made the subject 
 of wukf.— I)., p. 5G1. 
 
 12 Money usually falls under the head of deyn or indeterminate 
 things, and must, therefore, be made ayn, by actual production or 
 specification, before it can in any view be made the subject of wukf. 
 
214 
 
 APPROPRIATIONS AND ALMS. 
 
 Condi- 
 tions that 
 relate to 
 the appro- 
 priator. 
 
 He may 
 lawfully 
 reserve 
 the super- 
 intend- 
 ence to 
 himself or 
 appoint 
 another. 
 
 Condi- 
 tions that 
 relate to 
 the per- 
 sons for 
 whose 
 benefit the 
 appropria- 
 tion is 
 made. 
 
 not his own, the wvkf would not be valid. But if the real 
 owner should sanction the appropriation, that would give 
 it validity according to some of our doctors, the sanction 
 being tantamount, in their opinion, to a new appropriation. 
 And the wvJcf of a mooshdd, or undivided share in a thing, 
 is valid, and possession of it is to be taken in the same 
 way as in a case of sale. 
 
 Second. Conditions that relate to the icakif, 13 or appro- 
 priate r. And of him it is required that he be of full age, 
 sound understanding, and unrestrained in the use of his 
 property. With regard to one who has attained to ten 
 years only, there is room for doubt, as there is a report 
 which favours the legality of charity by such an one. But 
 the preferable opinion seems to be that appropriation by 
 him is forbidden, because the inhibition under which he is 
 placed by reason of his youth is not removed until he has 
 attained to puberty and discretion. 
 
 It is lawful for an appropriator to retain the super- 
 intendence of the ivulif to himself, or to appoint another 
 to the office. If he has not appointed any superintendent, 
 the office belongs to the person on whom the settlement 
 has been made, 14 because the right of property is vested in 
 him. 
 
 Third. Conditions that relate to the mowlcoof alehi, or 
 person on whom the settlement is made. And in him 
 three conditions are required. He must be in existence, 
 and capable of owning property ; he must be distinctly 
 indicated ; and he must be one on whom it is not unlawful 
 to make a wuJcf. Hence, if one should make a settlement 
 beginning with a person not in existence, as for instance, 
 one to be born, or a foetus not yet separated from its 
 mother, the wul-f would not be valid. But if it were in 
 favour of one not in existence, in succession to a person 
 actually in being, it would be quite good. Where, again, 
 
 is p resen t participle of wukf. 
 
 11 When the appropriation is for the benefit of persons, I use the 
 word settlement, as in the Digest, though the original word is the 
 same. 
 
APPROPRIATION. 215 
 
 a commencement is made with one who is not in existence, 
 followed by a person in being, some of our doctors main- 
 tain that the wukfia not valid, while others insist that it 
 should be sustained so far as concerns the person in being ; 
 but the first opinion is the more approved. So also where 
 the person first in order is oiie who cannot be the owner 
 of property, and he is followed by one who can ; but here 
 there is some room for doubt, though the better opinion 
 seems still to be that which is against the ivukf. A settle- 
 ment in favour of a slave is not valid, and the thing appro- 
 priated caunot be made use of by his master, which would 
 be contrary to the intention of the appropriator. 
 
 A wukf for musalih,* 5 or works of general utility, such Wukffox 
 as bridges and musjids, or places of worship, is quite °{^i c s ° 
 valid ; for such a wukf is, in truth, a settlement on all utility, 
 Mussulmans, though some only can participate in their va 1 ' 
 adv antages. 
 
 A Mooslim cannot make a settlement on an alien Appro- 
 enemy, though his blood relation ; but he may make it on P ri ^ n ° n ^. 
 a zimmee, or infidel subject, even though a stranger, or in lim in 
 no way related to him. Yet an appropriation by him ^'aHen 
 for Jewish synagogues or Christian churches is not valid, enemy or 
 So, also, if he should make an appropriation in favour of f ^ ob- W " 
 fornicators, or highway robbers, or drinkers of wine, or jects, not 
 for the copying of what are now called the Toiureet and 
 Injeel (the Law and Gospels), for they are altered or 
 perverted versions. But if the appropriation were by an 
 infidel it would be lawful. 
 
 If a Mooslim should make an appropriation for the Appro- 
 poor, it is to be applied for the benefit of poor Mooslims P nat £ ons 
 only, to the exclusion of all others ; and a similar appro- poor, how 
 priation by an infidel is to be applied in like manner to the fc ° b f ap " 
 poor of his own persuasion. 
 
 An appropriation in favour of Mooslims is to be applied Mooslims 
 
 for the benefit of all those who pray towards the Kiblah. 16 described. 
 
 But one in favour of the moomineen, or true believers, is ],/o " vn - 
 
 ' ' neen, who 
 
 15 PI. of mushi/iut, commodum, res conveniens. — (Freytag.) 
 
 16 Mecca. 
 
 are. 
 
21 G APPROPRIATIONS AND ALMS. 
 
 to be applied only for the benefit of the followers of the 
 Twelve Imams. 17 Some, however, maintain that it is for all 
 those who abstain from grave offences against the law ; but 
 the first opinion is the more approved. If the appropria- 
 tion be for Sheeahs, it is to be applied to Imameeans and 
 Ja/roodians, to the exclusion of all other Zeydeeans. In 
 like manner, whenever the mowkoof alehi is described by 
 a particular relationship, all those who come within it are 
 held to be included in the benefits of the wukf\ so that if 
 the wukf is on Imameeans, it is for all the followers of the 
 Twelve Imams. In like manner, when it is for Zeydeeans, 
 all those who assert the Imamship of Zeyd, the son of Aly, 
 are included. So, likewise, when the connection is rela- 
 tionship to a particular ancestor, all those lineally descended 
 from him by their fathers are included. As, for instance, 
 Hashemees who comprehend all those descended from 
 Hashem, through Aboo Talib, IlarWi, Abbas, and Aboo 
 Luhub; or Talibees, who comprehend the descendants of 
 Aboo Talib, on whom be peace, both males and females 
 participating if connected with him on the side of their 
 fathers, from a regard to custom ; though upon this point 
 there is some difference of opinion. 
 Who are If ° ue should make an appropriation for neighbours, 18 
 
 neigh- a reference must be made to custom for determining who 
 bours. 
 
 are to be included. 19 Some say, however, that any one 
 
 whose house is within forty cubits is a neighbour, and this 
 
 opinion is good, or well supported ; while others maintain 
 
 that the meaning of the term extends to all the occupants 
 
 of forty houses on either side; but this opinion is now 
 
 abandoned. 
 
 Wuhflat If one should make an appropriation for a nvusluhui, 
 
 \ut h" or °^J ec ^ °f g enera l utility, which has ceased to be used, 
 
 no longer it is to be applied to any good and pious purposes. 20 And 
 
 bifap- ^ ^ * s ^ or suc ^ P ur P oses generally, it is to be expended on 
 
 plied to ■ 
 
 good pur- iv Athna-asheriat ; literally, twelve-eans. 
 
 poses. 18 Jeeran 
 
 19 According to the Hauifites, all who worship in the same 
 Musjid.—D., p. 579. 
 
 20 IVoojooh-ool-birr. 
 
APPROPRIATION. 217 
 
 the poor and indigent, and in any other way by which an 
 approach is made to Almighty God. 
 
 If one should make an appropriation for the Bunee Wukffa 
 Tumeem, it would be valid, and should be applied to any T umeem 
 of them who can be found. Some say, however, that such valid. 
 an appropriation is not valid, because the persons referred 
 to are unknown ; but the first opinion is more in con- 
 formity with our way or doctrine. A wukf in favour of a 
 zimmee or infidel subject is lawful, because it is a transfer 
 of property, and is like a permission to take the usufruct. 
 Some say, however, that it is not valid, because it implies 
 a pious intention, and is good only when made for the 
 benefit of a parent ; while others maintain that it is good 
 when for the benefit of any relative. But the first opinion 
 (which sustains it generally) is the most approved. So 
 also a settlement in favour of an apostate is valid, while 
 there is some doubt as to one in favour of an alien enemy, 
 the more approved opinion being entirely against it. 
 
 If a man should make an appropriation without men- Wukf not 
 tioning its objects, the appropriation would be void. So ™ hcl , 
 also where the objects are not distinctly specified, as if he object is 
 should say, " For one of these two," or " For one of the "g^^. 
 two Musltldds" 2I or " two Fureels," the whole would be fined, 
 void. 
 
 If one should make a settlement on his children, and Settle- 
 his brethren or his kindred, so general an expression re- "^jv on 
 quires the participation of males and females, and of the brethren, 
 near and the remote, with equality of partition among ^ A ™" 
 them, unless some order or detail is made a condition, or prehends 
 some one is specially indicated. If the settlement were on ^ jj 
 maternal and paternal uncles, they would share equally 
 together. But if it were for the nearest of mankind to 
 him, his parents and children, how low soever, should first 
 be taken, and so long as one of them survives none other 
 of his relatives can be allowed to participate. After those 
 above mentioned, when they all fail, the grandparents and 
 brethren with their children, how low soever, would be 
 
 21 Sepulchres of Aly and IIoo?sein. 
 
218 
 
 APPROPRIATIONS AND ALMS. 
 
 Condi- 
 tions that 
 relate to 
 the wukf, 
 which are 
 four. 
 
 Illustra- 
 tions of 
 the first ; 
 
 of the 
 second ; 
 
 of the 
 
 third ; 
 
 of the 
 fourth. 
 
 entitled ; and after them paternal and maternal uncles in 
 the order of inheritance ; all (in each class) participating 
 equally, unless some are specially mentioned in detail. 
 
 Fourth. Conditions that relate to the wukf itself, which 
 are four in number. 1st, it must be perpetual ; 2nd, 
 absolute and unconditional ; 3rd, possession must be given 
 of the mowJeoof or thing appropriated ; and, 4th, it must 
 be entirely taken out of the wakif or appropriator himself. 
 So that, if the appropriation is restricted to a particular 
 time, or made dependent on some quality of future occur- 
 rence, it is void. So also when made in favour of persons 
 who will probably fail, as, for instance, if one should make 
 a settlement on Zej/d, with a restriction to himself, or extend 
 it only to generations that will probably fail, or say gene- 
 rally, " for his successors," without mentioning what is to 
 be done after they fail, — in all these cases it is maintained 
 by some that the wukf would be entirely void ; but others 
 insist that due course should be given to the purposes 
 actually named, which seems more reasonable. Then, 
 when they do fail, the property will revert to the heirs of 
 the wahif or appropriator ; but some of our doctors main- 
 tain that it reverts to those of the mowkoof alehi. The 
 first opinion, however, is best supported by traditional 
 authority. If one should say, " I have appropriated " when 
 the beginning of the month has come, or if Zeyd shall 
 arrive, the appropriation would not be valid. Seiziu is a 
 condition of the validity of wukf. So that, if one should 
 make an appropriation, and die without giving possession, 
 the subject of it would be part of his inheritance. But if 
 it were in favour of his young children, his own possession 
 would be possession on their behalf. So also in the case 
 of a grandfather on the father's side. But with regard to 
 a wusee or executor, there is some room for doubt, though 
 the validity of the settlement in such a case is better 
 supported by traditional authority. 
 
 If a person should make a settlement on himself, it 
 would not be valid. So also if it were first on himself and 
 then upon another, though some maintain that it would 
 be void only with respect to himself, and valid with regard 
 
APPROPRIATION. 
 
 219 
 
 to the other ; the first opinion, however, is the more approved. 
 In like manner, if the settlement were on another, with a 
 condition for the payment of the wahif's debts or current 
 expenses, it would not be valid. But if one should make an 
 appropriation for the poor and should himself subsequently 
 become poor, or for lawyers, and himself become a lawyer, 
 there is no objection to his participating in its benefits. 
 
 If one should make an appropriation with a condi- 
 tion that the property is to revert to him in case of need 
 the condition would be valid, but the wukf void, and the 
 property would remain in the condition of a hoobs 22 until 
 the occasion should arise, while if he should die it would 
 go to his heirs. And if he made it a condition that he 
 shall have the power of excluding whomsoever he may 
 please, that would invalidate the wukf. But if the con- 
 dition were that he may add to those in whose favour the 
 appropriation has been made some yet to be born, the con- 
 dition would be lawful, whether the appropriation were for 
 others or his own children. If, again, the condition were 
 that he may make an entire transfer from those on whom 
 the settlement has been made to others subsequently to 
 come into being, that would not be lawful, and the wukf 
 would be void. Some have said that when one has made a 
 settlement on his young children, he may lawfully make 
 others to participate with them without reserving any 
 express power to that effect ; but this opinion is not to be 
 relied upon. 
 
 The seizin which is required is that of the first of the 
 mowkoof alehi, or persons for whom an appropriation is 
 made ; and all regard to possession ceases in the subsequent 
 steps. In the case of an appropriation for the poor, or for 
 lawyers, a kuyyim^ or superintendent must be appointed to 
 take possession, while in the case of an appropriation for 
 a mndnhut, or useful purpose, the creation of the wukf 
 is sufficient, the condition of acceptance being entirely 
 dispensed with, and as to possession that of the Nazir or 
 superintendent is sufficient. If one should appropriate a 
 
 Condi- 
 tions that 
 vitiate the 
 wukf. 
 
 Possession 
 by first in 
 order suf- 
 ficient, 
 when wukf 
 is for par- 
 ticular 
 persons ; 
 but when 
 it is for 
 the poor a 
 Jaiyyim 
 must be 
 appointed 
 
 22 See post, p. L>26. 
 
 23 See D., p. 587, note \ 
 
220 AITROrRIATIONS AND ALMS. 
 
 musjid or place of worship, it is valid though only one 
 person should pray in it. So also if the appropriation is 
 of a cemetery, it becomes a wukf by the interment in it 
 of a single corpse. But though people should pray in a 
 musjid, or bury in a cemetery, without the formal words 
 of wukf being pronounced, neither would pass out of the 
 property of the original owner. So, also, the result would 
 be the same, though the proper words were used, if pos- 
 session were not also given of the subject of the wukf. 
 
 Section Third. 
 
 Appendages. 
 
 The right First. The wukf or subject of appropriation is transferred 
 
 t i^ 1 t T /° r " so as *° become the property of the mowkoof alehi, for he 
 wukf is has a right to the advantage or benefits to be derived from 
 redTcMhe **' an( ^ ^ ie P r °hikiti° n to sell does not negative his right of 
 inon-koof property in the substance, any more than it has that effect 
 in the case of an oom-i-wulud or mother of a child; and 
 indeed, the sale of the wukf is sometimes in a manner 
 valid, as will be seen hereafter. If then a person should 
 appropriate his share in a slave, and subsequently emanci- 
 pate him, the emancipation would not be valid, because the 
 right of property in the slave has passed out of him ; but 
 neither would it be valid if the mowkoof alehi should 
 emancipate the slave, because of the right which future 
 generations have in the slave. 
 How a Second. When a person has made an appropriation " In 
 
 v-nht " in f] ie wa y f Q oc y jt i a applied to whatever is productive of 
 God" is to reward in a future state, such as religious warfare, the 
 be ap- greater and lesser pilgrimages, and the erection of Musjids 
 
 or places of worship, and bridges. So, also, if he should 
 say " In the way of God, and way of reward, and way of 
 good," the purposes are all considered as one or the same, 
 and there is no necessity for dividing the proceeds of the 
 wukf into three different parts. 
 
 In a wnTbf Third. When a man has made a settlement 21 "on 
 on cliil- 
 
 21 See ante, p. 214, note u . 
 
APPROPRIATION. 221 
 
 the children of his children," the children of sons and dren's 
 daughters participate, both males and females, without y|))! f { ien ' 
 any superiority of one over another. But if he should say of sons 
 " those among them who are lineally related 25 to me,'' the f l , , 
 children of daughters would not be included. And if the partici- 
 settlement were " on his children," it should be applied j^^i- 
 only to the children of his loins, the children of his children 
 being excluded. Some maintain that they would all par- 
 ticipate together; but the first opinion is more agreeable 
 to traditional authority, for by the word child, the child of 
 a child would not generally be understood. 26 And if he 
 should say " on my children and children of my children," 
 it would be confined to two generations. While if he said 
 " on my children, and when they fail, and the children of 
 my children, then to the poor," the wukf would be for his 
 children, and though on their failure some of our doctors 
 are of opinion that the proceeds should be expended on the 
 children of his children, and only when they fail on the 
 poor, yet others maintain that the proceeds are not to 
 be expended on his children's children, for they are not 
 comprehended in the wukf their failure being only a 
 condition of the application to the poor ; and this opinion 
 is more likely to be right as being more conformable to 
 the grammatical construction of the words. 
 
 Fourth. When a person has made a wukf of a musjid, The grant 
 
 and it has fallen to ruins, or the village or muhullah °f amuSm 
 
 / -i • • \ ■ • i ■ • -it 3 oes 
 
 (district) in which it is situated has gone to decay, the not cease 
 
 property does not revert to the appropriator ; nor does the j? be ™ w */ 
 
 space of ground on which it was built cease to be wukf, nor the musjid 
 
 can it be sold. f n 1 ° u : ld 
 
 fall to 
 
 Fifth. If the mansion belonging to a wukf should fall decay. 
 
 into ruins the space would not cease to be wukf nor would Sam f rul e 
 
 its sale be lawful. But if dissensions should arise among to a man- 9 
 
 the persons for whom it was appropriated, insomuch as to s j on - 
 
 give room for apprehension that it will be destroyed, its sale tion. 
 
 25 An inflection of the word nusub is here employed, on which 
 the distinction depends. 
 28 See L>., p. 570. ■ 
 
222 
 
 APPROPRIATIONS AND ALMS. 
 
 Query, 
 whether 
 the lease 
 of a wiikf 
 is cancell- 
 ed by 
 death of 
 the 
 lessees. 
 
 In a ivul'f 
 lor the 
 poor, 
 
 those pre- 
 sent in 
 the town 
 are to be 
 under- 
 stood. 
 
 would be lawful. And even though there should be no 
 such differences, nor room for such apprehensions, but the 
 sale would be more for the advantage of the parties inter- 
 ested, some are of opinion that the sale would be lawful, 
 but it would rather seem that it ought to be forbidden. 
 And if palm-trees are rooted out of appropriated ground, 
 the same persons would say that it may be sold, on the plea 
 that no benefit can otherwise be derived from it ; but others 
 are of opinion that it cannot lawfully be sold in such 
 circumstances, from the possibility of turning it to some use 
 by letting it on hire; and this opinion seems the more 
 reasonable. 
 
 Sixth. When the first generation has granted a lease 
 of the wuhf for a certain term, and all die in the midst of 
 the term, then if we can say generally that all leases are 
 cancelled by death, nothing farther need be said in the 
 matter ; if we cannot go so far as that generally, 27 then 
 it may be asked whether it has that effect in this particular 
 case, and there is room for doubt as to the proper answer 
 to be given to the question. But it is more agreeable to 
 traditional authority to say that it is cancelled, for we have 
 already explained that this part of the term does not really 
 belong to the lessors. The second generation would 
 therefore have an option either to cancel the remainder of 
 the lease, or to grant a new lease, leaving the tenant to 
 have recourse to the estates of the first generation for so 
 much of the term as belongs to the second. 
 
 Seventh. "When a man has made a wuhf for the benefit 
 of the poor it is to be applied to the poor of the town who 
 are present. In like manner when a wukf is for the descend- 
 ants of Aly the income is to be similarly applied to those of 
 them who are present. So also, when it is for the children 
 or descendants of an ancestor who are scattered in different 
 places, the income is to be applied to those extant, and there 
 
 27 There are different opinions on the subject, some saying that 
 it is cancelled by the death of the lessor, some by that of the lessee, 
 and others that it is not cancelled by the death of either, which 
 last is the opinion of the moderns, and most approved. — Shuraya, 
 p. 220. 
 
APPROPRIATION. 223 
 
 is no necessity for following into difficult places those who 
 are not present. 
 
 It is not lawful for the mowlcoof alehi of a female slave Not law- 
 to have connection with her, for she is not his sole property, mon . lwo f 
 but if he should get her with child the child would be free alehi of a 
 without any liability on his part for its value, as a person £™ e to 
 cannot be creditor to himself. With regard to the mother have con- 
 some of our doctors maintain that she would become an witll her< 
 oom-i-wulud, and be therefore entitled to emancipation on 
 the death of the child's father, his estate being liable for 
 her value to the person next in succession. But this 
 opinion is open to doubt. It is quite lawful to give a female 
 slave who is the subject of an appropriation in marriage, and 
 her dower will belong to the mowlcoof alehi, for this is an 
 advantage arising from the wukf, in the same way as the rent 
 of a mansion. He is in like manner entitled to her children, 
 for they are her increase, whether they be the fruit of mar- 
 riage with a slave or of illicit intercourse. Where, however, 
 they have been begotten by a free man under a valid marriage 
 they are free, unless there was a stipulation in the contract 
 that they should be slaves. And though begotten only under 
 a semblance of legality they are still free, but in that case 
 the father is liable for their value to the mowlcoof alehi. If 
 the wdkif or appropriator should have connection with the 
 slave whom he has appropriated the consequences would be 
 the same as if he were a stranger. 
 
224 
 
 APPROPRIATIONS AND ALMS. 
 
 CHAPTER II. 
 
 OF SUDUKAH, OR ALMS. 
 
 Requires 
 declara- 
 tion and 
 accept- 
 ance and 
 putting in 
 posses- 
 sion. 
 
 Cannot be 
 revoked. 
 
 Cannot be 
 bestowed 
 on descen- 
 dants of 
 llashem. 
 
 Cannot be 
 
 revoked 
 
 though 
 
 bestowed 
 
 without 
 
 exchange 
 
 on a 
 
 stranger. 
 
 May be 
 bestowed 
 on a 
 Zimmee. 
 
 This is a contract wHich requires declaration and accept- 
 ance, and also delivery of possession. 1 And if the donee 
 sliould take possession without the assent of the donor, 
 there would be no transfer of property to him. Among 
 its conditions is an intention on the part of the donor of 
 an approach to Almighty God. And after possession has 
 been given it is not lawful to retract the gift, according to 
 the most valid doctrine, for the hire or object in view has 
 been attained, and the gift is like one for .which an 
 exchange has been made. 
 
 When the sudukah is an incumbent duty, it is not 
 lawful to bestow it on the descendants of Hashem, unless 
 it is a Hashemy sudukah, or when it is any other, except 
 in a case of urgent necessity. But when the suduJiah is 
 voluntary, there is no objection to bestowing it upon 
 them. 
 
 Miscellaneous Cases. 
 
 First. It is not lawful to revoke a sudukah after posses- 
 sion has been given of it, whether an exchange has been 
 received or not, and whether the person on whom it has 
 been bestowed be or be not a blood relation, according to 
 the most valid doctrine. 
 
 Second. It is lawful to bestow charity on a zimmee or 
 infidel subject, though an entire stranger to the donor, by 
 
 Ikbaz. See ante, p. 204. 
 
ALMS. 225 
 
 reason of a saying of his, on whom be peace, and of the 
 sacred text, " God has not given any prohibition against 
 those who do not contend with you in religion." 
 
 Third. It is better to give one's charity in secret than Should be 
 in public, unless to obviate the suspicion of avarice, when vately P 
 it is allowable to do so openly. 
 
 PART II. 
 
226 
 
 AITKOPKIATION AND ALMS. 
 
 Requires 
 declara- 
 tion and 
 accept- 
 ance with 
 
 Different 
 names. 
 
 Words by 
 which it is 
 consti- 
 tuted. 
 
 It is ren- 
 dered ob- 
 ligatory 
 by seizin, 
 
 CHAPTER III. 1 
 
 OF SOOKNA AND HOOBS. 2 
 
 This is a contract which requires declaration and accept- 
 ance, with seizin or taking possession ; and its object or 
 the advantage to be derived from it is the empowering a 
 person to receive the profit or usufruct of a thing, with a 
 reservation of the owner's right of property in it. It is 
 known by different names, according to the difference of 
 connection. Thus, if connected with the oomr or life of the 
 grantee, it is called oomra ; if with iskan 3 or residence, it 
 is called soohna ; and if with a term, it is called rookba. 
 
 The words of constitution are, " I have bestowed on 
 thee" (askuntoku, admurtolni, arkubtohu, or the like,) 
 " this mansion, or this land, or this dwelling, for thy 
 life or my life, or for a fixed period ; " and the contract 
 is rendered binding or obligatory on the donor by seizin 
 on the part of the donee. Some of our doctors main- 
 tain that it is not rendered obligatory, while others 
 maintain that it is so only when there is an intention 
 on the part of the donor of an approach to God. But the 
 first opinion is the most common or generally received. 
 If one should say, " The residence of this mansion is to 
 thee while thou survivest or livest," the contract would be 
 lawful, and after the death of the person so addressed, the 
 mansion would revert to the speaker, according to the 
 most reasonable and approved opinion. While, if he 
 should say, " When you die it will revert to me," the 
 reversion would take place on that event without any 
 question. If he should say, " I have given this mansion 
 
 1 This is the subject of a separate book in the original. 
 
 2 Retention ; but also devotion to a particular purpose. 
 
 3 Active or causal form of sukunu, " he inhabited." 
 
SOOKNA AND HOOBS. 227 
 
 to tliee for life, and to thy successor," it would be only an 
 oomra, or for his own life, and there would be no transfer 
 to the life holder, according to the most approved opinion ; 
 just as if he had not said " to thy successor." When a and can- 
 term is specified for the residence, the contract becomes "° ketl 
 binding by possession, and cannot be lawfully revoked 
 until after expiration of the time. So also, if the residence 
 is to be for the life of the proprietor, the contract cannot 
 be revoked, though the life tenant 4 should die, and what 
 was his is transferred to his heir till the death of the 
 proprietor. But if it were for the life of the tenant, and 
 he should die, there would be no transfer to his heir, and 
 the house would revert to the proprietor. If the period is 
 left in general terms without any exact definition, the pro- 
 prietor may revoke whenever he pleases. 
 
 Of everything of which the vmkfia valid the (dinar b or Every- 
 
 granting for life is valid also, such as a mansion, a slave, "JJPS of 
 
 . o . . . which 
 
 furniture, &c. ; and the grant is not invalidated by a sale mukfis 
 
 of the thing, for the purchaser must fulfil to the life tenant , valld ™ a ^ 
 ° . . . . be granted 
 
 whatever was conditioned on his behalf. When the resi- for life. 
 
 dence is left in general terms, it is restricted to the grantee Grantee of 
 
 himself, his family, and children ; and it is not lawful for ^annoTlet 
 
 him to allow any others to occupy the house, unless there it, or allow 
 
 is a stipulation or condition that he may do so. Nor ° han him _ 
 
 is it lawful for him to let the house to hire, as it is not self and 
 
 lawful for him to allow another to reside in it without r e S ide in 
 
 permission of the mooshin 6 or granter. it. 
 
 When a man has devoted 7 his house " in the way of A slave or 
 God," or his slave for the service of a house, or of a b 10l ] Sen J a ^ 
 musjid, the act is lawful ; and he cannot lawfully make any in this 
 alteration, so long as the thing lasts. But if he should w . ay ° 
 devote the house or slave to a person without specifying a other pur- 
 time, and the hcibis or devoter should die, the house or slave pos 
 would be part of his heritage. And so also if a time were 
 specified and it should expire, they would be heritage, and 
 belong to the heirs of the hdbis or devoter. 
 
 4 Arab, moodmur. 
 
 5 Infinitive, of which the preceding is the past participle. 
 
 6 Active participle of Iskan, 7 Hubusu, from Jwobs. 
 
 Q 2 
 
BOOK VI. 
 OF WILLS. 1 
 
 CHAPTER I. 
 
 INTRODUCTORY. 
 
 To bequeath is to confer a right to the substance or the Defini- 
 
 usufruct of a thing after death : and it requires declaration tlon ^ nd 
 ° , , , constit u- 
 
 and acceptance. By declaration is to be understood any tion. 
 
 word demonstrative of such an intention, as if a person 
 should say, " Give such an one after my death," or, " This 
 is for such an one after my death," or, " I have bequeathed 
 it to him." And by these or the like expressions a transfer 
 is effected to the legatee on the testator's death and the 
 legatee's acceptance. It is not effected by the death alone 
 without acceptance, according to the most authentic Accept- 
 doctrine. If the legatee should accept before the death f e l ^ e tee y 
 of the testator, the acceptance is lawful or discretionary ; necessary, 
 but if interposed after his death, it is established or con- 
 clusive, even though it should be delayed for some time 
 after the occurrence of that event, provided that the legacy 
 has not been rejected. And though a legacy should be 
 rejected during the lifetime of the testator, it may still be 
 accepted after his death, as such a rejection has no effect 
 in law. But if rejected after his death, without having 
 been accepted, the legacy is cancelled. So also, even 
 though possession has been actually taken, provided there 
 has been no acceptance. Where, again, there has been 
 
 1 Wusaya, plural of wusiyyut, a will or bequest, or the act of 
 bequeathing. — See I)., p. 613, note -. 
 
2:!(l 
 
 WILLS. 
 
 May be 
 partial. 
 
 In the 
 event of 
 
 legatee's 
 death, his 
 heirs may 
 accent. 
 
 Bequest 
 for sinful 
 purposes 
 not valid. 
 
 no possession, but the legacy is rejected after death 
 and acceptance, it is cancelled, according to some of our 
 lawyers, while others maintain that it is not ; and this 
 opinion is more approved. If, however, there has been 
 both acceptance and possession, and the legacy is subse- 
 quently rejected, there is no doubt that the rejection is 
 ineffectual, and the legacy is not cancelled according to 
 general agreement, because the right of property has then 
 become firmly established in the legatee. 
 
 If a legatee should reject part of a bequest and accept 
 the remainder, such partial acceptance would be valid, and 
 his right established to that extent. 
 
 If a legatee should die before acceptance, his heirs 
 come into his place, and may accept the bequest. Hence, 
 if a person being possessed of a female slave who is 
 married and pregnant by her husband, should bequeath 
 both the slave and the foetus in her womb to the husband, 
 and he should die without accepting the legacy, the right 
 of acceptance would descend to his heir ; and if the heir 
 should accept, he would become the proprietor of the child, 
 provided that he is one who can validly become its pro- 
 prietor ; 2 for the child has not been emancipated as against 
 the original legatee (his father), who could not acquire 
 a right of property in him after death ; nor is he heir to 
 his father, being a slave, unless he is so nearly related 
 to the heir as to entitle him to emancipation against 
 the heir, in which case they would be heirs together — 
 the child inheriting by reason of his emancipation before 
 partition. 
 
 A bequest for sinful purposes is not valid ; thus, if a 
 person should make a bequest of property for the building 
 of Jewish synagogues or Christian churches, or for trans- 
 scribing what are now termed the Towraet and Injeel (the 
 
 2 When a man or woman becomes the owner of a parent or 
 ancestor how high soever, or child or descendant how low soever, 
 the slave is emancipated on the instant ; and the effect is the same 
 when a man becomes the owner of any blood relation within the 
 prohibited degrees, though not so when a woman becomes the owner 
 of such a relation. — Shuraya, p. 35G. 
 
INTRODUCTORY. 231 
 
 Law and Gospels), or aiding a tyrant or oppressor, the legacy 
 would be void. 
 
 A bequest is a contract discretionary and reversible on A bequest 
 the part of the testator so long as he lives, whether it be Revoked t 
 of property or a nomination of executor ; 3 and the revo- any time 
 cation is established in law either by express language or t J tor ie es " 
 by any act which ignores or contradicts the legacy. Thus, 
 if the testator should sell the subject of bequest, or by 
 another will direct it to be sold, or should bestow it in 
 gift, putting the donee in possession of it, or should 
 pledge it, every such act would be a revocation of the 
 first bequest. In like manner, if he should make such 
 a use' of it that it could no longer be called by the same 
 name ; as, for instance, if he had made a bequest of grain, 
 and should afterwards grind it into flour or meal, or a 
 bequest of flour or meal, and should then convert it into 
 leaven or bread, this would be a revocation of the bequest. 
 Further, if a person should bequeath a quantity of oil, and 
 afterwards mix it with some of a better quality, or of grain, 
 and then mix it with some of another species, so as to 
 remove the possibility of distinguishing and separating one 
 from the other, that likewise would be equivalent to a 
 retractation of the bequest. Whereas, if he should make 
 a bequest of bread, and subsequently break it into crumbs, 
 there would be no revocation of the legacy. 
 
 3 Wilayut, literally, power or authority. 
 
232 
 
 WILLS. 
 
 CHAPTER II. 
 
 OF THE MOOSEE OR TESTATOR. 
 
 Must be 
 sane and 
 adult. 
 
 Will by a 
 suicide, 
 when 
 valid. 
 
 None but 
 a father or 
 grand- 
 father can 
 appoint a 
 guardian 
 to a child. 
 
 Perfect intellect and freedom in a testator are indis- 
 pensably requisite to the validity of a bequest ; and the 
 will of a madman or a youth under ten years of age is 
 not valid. When he has attained to that age all proper 
 bequests by him in favour of his relatives and others are 
 lawful according to the most common and approved doctrine 
 — if he is capable of discernment. 1 Some have maintained 
 that such bequests are valid though he should be no more 
 than eight years of age, but the tradition in favour of this 
 opinion is uncommon and not well authenticated. 
 
 If a person should wound himself mortally and then 
 make a will his bequest would not be valid ; whereas if he 
 should first make the will and then commit suicide, there 
 would be no objection to the validity of the bequest. 
 
 A testamentary appointment of a guardian to children 
 is invalid, except by their father or paternal grandfather ; 
 and a mother can neither be herself the guardian of her 
 children, nor can she make a testamentary appointment of 
 guardians to them. Should she, however, bequeath any 
 property to them, and appoint an executor for its manage- 
 ment, his intromissions to the extent of a third of the 
 estate she may have left, as well as for the payment of her 
 debts, are quite valid, but he has no authority over the 
 children. 
 
 1 According to the other sect, a bequest by a person under 
 puberty is not lawful. — D., p. 617. 
 
( 233 ) 
 
 CHAPTER III. 
 of the moosa-bihi, or thing bequeathed. 
 
 Section First. 
 
 What may he Bequeathed. 
 A bequest may be either of the substance or the usufruct A bequest 
 of a thing ; but with regard to both it is indispensable that som ething 
 they are such as can lawfully be possessed or enjoyed, that can 
 Hence the bequest of wine, or a hog, or of a noisy or fu i ly pos . 
 common dog, or of anything from which no benefit can be sessed; 
 derived, is illegal and invalid. 1 Further, legacies whether and can- 
 of substance or of usufruct are restricted to one third of the a tni * rd of 
 testator's estate ; and if the whole of his bequests should the tes- 
 exceed that amount they are void as to the excess, unless estate; 
 allowed by the heir. When there is a plurality of heirs, 
 
 and one or more of them allows the excess, it is valid to unless 
 
 • mi /> allowed 
 
 the extent of his share m it. lhe allowance of an heir is by the 
 
 effective when conceded after the testator's death. Whether neirs - 
 
 it is equally valid before his death is a question on which 
 
 there are two opinions, the more common and approved 
 
 of which is in favour of its being binding on the heir. 2 
 
 When the consent is interposed after the testator's death, 
 
 it is a ratification of his act, and not a gift de novo from 
 
 the heir ; consequently it does not require possession by 
 
 the legatee to complete its validity. 
 
 1 All traffic in these is illegal and prohibited. — Im. D., pp. 2 
 and 3. 
 
 2 The other sect differs on this point. — D., p. 615. 
 
234 
 
 WILLS. 
 
 Testator's 
 directions 
 must be 
 strictly 
 followed. 
 
 The third 
 which a 
 person 
 may law- 
 fully be- 
 queath is 
 a third of 
 what he 
 may be 
 possessed 
 of at his 
 death. 
 
 If the 
 testator is 
 murdered, 
 the deeut, 
 or fine of 
 death, 
 falls into 
 his estate. 
 
 Testator 
 may direct 
 the whole 
 of his pro- 
 perty to 
 be em- 
 ployed in 
 moozaru- 
 but. 
 
 Bequests 
 for the 
 perform- 
 ance of 
 duties, 
 some in- 
 cumbent 
 and others 
 discre- 
 tionary. 
 
 It is incumbent on the legatee to obey implicitly the 
 directions of his testator in respect of the legacy if they 
 are not contrary to law. 
 
 The third of a testator's property, and consequently 
 the extent to which he may lawfully bequeath out of it, is 
 determined by its state at the time of his death, and not 
 by its state at the time of making his will. So that if a 
 person who was in good circumstances at the time of 
 making his will should be indigent at the time of his 
 death, no regard is to be paid to his previous wealth in 
 determining the amount of his valid bequests. In like 
 manner if he were poor at the time of making his will, and 
 has become opulent at the time of his death, it is his 
 latter condition and not the former that must determine 
 the legal amount of his legacies. 
 
 If a man after making his will is murdered or wounded, 
 his legacies have effect over a third of what he has left, 
 and of the deeut or fine of blood, and the irish or com- 
 pensation for the wound ; both of which form a part of the 
 testator's estate. 
 
 If a person should bequeath the whole or a part of his 
 property to be employed by the legatee in moozaruhut* on 
 the terms of an equal division of profits between him and 
 his heirs, the bequest is valid. Some of our doctors have 
 restricted this kind of bequest to a third of the testator's 
 property ; but the first doctrine is supported by positive 
 tradition. 
 
 When a person has bequeathed property for the per- 
 formance of certain duties, some of which were incumbent 
 on the testator, and others only discretionary, they are all 
 to be carried into effect if a third of his estate be sufficient 
 for the purpose. If the third should not suffice, and the 
 heirs refuse their consent, those duties that were incum- 
 bent on the testator must first be discharged out of the 
 general mass of his estate, and then the others out of a 
 third of what remains, beginning with the first mentioned 
 by the testator, and so on in order. If none of the duties 
 
 Set' ante, p. 181, note 1 '. 
 
THING BEQUEATHED. 235 
 
 are of the incumbent description, but all discretionary, 
 they can take effect only to the extent of a third of the 
 estate, and are to be discharged beginning with the first 
 mentioned by the testator, and so on in order until the 
 third is exhausted. 
 
 If a person should bequeath a third of his estate to one In be- 
 legatee, a fourth to another, and a sixth to another, and Jj^ r s J t 
 the heirs should refuse to confirm his bequests, a third of portions, 
 the estate is to be given to the first legatee, and the other ° ame * r _ 
 legacies are void. 4 But if he should bequeath a third of tion, to 
 his estate to one person, and then a third, or the same w atees 
 portion, to another, this would be a revocation of the prefer- 
 legacy to the first in favour of the second ; 5 and should a ^eter- 
 doubt arise as to the person first mentioned, it must be mined, 
 determined by drawing lots. 
 
 If a person should direct by his will the emancipation General 
 
 of his slaves, the bequest would include not only those bec i ues * of 
 ' ^ y emancipa- 
 
 who are his exclusive property, but also his share in those tion to 
 of whom he may be joint owner with others ; and such eludes" 1 ' 
 share is emancipated accordingly. Some of our doctors those of 
 are further of opinion that the shares of his copartners in ^stator is 
 the slaves are also to be valued as against him if a third only part 
 of his estate will bear it, and the slaves are to be totally 
 emancipated. Otherwise, that is, if the third will not 
 suffice for their complete emancipation, they must be 
 partially emancipated to the full extent of the third. A 
 tradition is quoted in favour of this opinion, but it is 
 weak or of questionable authenticity. 
 
 If a person bequeaths one article to two persons, and Distinc- 
 the value of the article exceeds a third of his estate, while t ^g en e a 
 the heirs refuse their assent to the excess, so much of specific 
 the article as is covered by a third of the estate is the ^^^ r . ° 
 joint property of the legatees. If, on the other hand, he sons and 
 
 4 According to the other sect, the third is to he divided between 
 the legatees, though as to the proportions there is some difference of 
 opinion between Aboo Huneefa and his two disciples. — D., p. G2G. 
 
 5 According to the other sect, the third is to he equally divided 
 anion": the legatees. — Ibid. 
 
236 
 
 WILLS. 
 
 a bequest 
 to each of 
 the two. 
 
 Assent by 
 heirs to a 
 bequest in 
 excess of 
 the third ; 
 how af- 
 fected by- 
 subse- 
 quent de- 
 claration 
 that they 
 thought 
 the excess 
 was 
 trivial. 
 
 The be- 
 quest of a 
 third 
 share un- 
 dividedly 
 entitles 
 the 
 
 legatee to 
 a third of 
 every- 
 thing. 
 
 And the 
 bequest of 
 a specific 
 thing en- 
 titles him 
 to the 
 whole of 
 it, if not 
 in excess 
 of a third 
 of the 
 estate. 
 
 bequeath a thing to each of the two, a beginning must 
 be made in favour of the person to whom the bequest 
 was first made, and the deficiency must fall solely on the 
 second. 6 
 
 If a person should make a bequest of half of his 
 property, for example, and the heirs at first should assent, 
 but afterwards declare that they thought the amount to be 
 trifling, decree is to be given against them for the amount 
 which they insist that they thought the legacy to be, and 
 they are to be put upon their oaths as to the excess ; but 
 this is subject to some doubt. And if the bequest were of 
 a slave or a mansion, and the heirs, after first assenting 
 to it, should then allege that they thought it was no more 
 than a third of the deceased's estate, or if more, only 
 so in a trifling degree, such claim or allegation on their 
 part cannot be attended to, because their consent in this 
 case involves a known object of the value of which they 
 cannot pretend ignorance at the time of assenting to the 
 bequest. 
 
 If a person should bequeath a third of his property by 
 way of mooshdd, or undividedly, the legatee is entitled to 
 a third of everything of which he died possessed. If, 
 again, he bequeaths a specific article which is of the value 
 of a third of his estate, the legatee becomes by his death 
 the sole proprietor of the article bequeathed ; nor have 
 the heirs any ground of objection thereto. And if the 
 deceased should have left both present and absent effects 
 (such as ready money and debts, for example), so much of 
 the specific thing must be surrendered to the legatee as a 
 third of the property presently available will admit of, 7 
 while he will have to wait for the remainder of it until it 
 is recovered by the heirs ; since what is absent is liable 
 to loss or destruction, and may never be realized. Con- 
 sequently, if the bequest were of a third of his slave, two- 
 
 6 According to the other sect, they would apparently become 
 partners in the thing bequeathed. — I)., p. 620. 
 
 7 There is some obscurity in the passage, but this is, I think, its 
 meaning, and it tallies with what follows, which in the original is 
 marked as a branch of what precedes it. 
 
THING BEQUEATHED. 237 
 
 thirds of whom prove to be the property of other parties, 
 effect is to be given to the bequest over the whole of that 
 third which belonged to the testator, and it is not restricted 
 to a third of the third ; because effect can be given to 
 the will without encroachment on the rights of the heirs, 
 that is, assuming that the rest of the testator's property is 
 equivalent in value to two-thirds of the slave. 
 
 If a person should grant a specific' legacy by a name When the 
 which is applicable to what is lawful and to what is gp™ffi° a 
 forbidden, the former construction must be put on the bequest is 
 bequest, to preserve the intention of a Mooslim free from ^ what is 
 what is unlawful; as, for instance, if the bequest were of lawful and 
 an ood out of the eedan 8 in his possession, the name being ^ t milst b ' e 
 applicable both to a staff, or lawful implement, and a flute, taken in 
 which is forbidden, 9 the testator must be held to have sense . 
 intended the former. If, however, no other than the latter 
 is found in his possession, some lawyers have declared 
 the legacy to be void ; while others maintain its validity, 
 but say that the forbidden quality must be defaced from 
 it, and that it is only when that is impossible without 
 destroying all that is of any use in the article, that the 
 legacy is void. 
 
 Bequests of dogs, the property of the testator, are valid, Bequest of 
 such as dogs trained for hunting, or catching of game, or ^3^^ 
 for domestic purposes — as guarding homes and watching ful. 
 in corn-fields. 
 
 Section Second. 
 
 Of Ambiguous Legacies. 
 
 When a person has bequeathed a joozz, or part of his Meaning 
 property, there are two traditions as to the proper in- ° J00 ~~ 
 terpretation of his words. Of these the most authentic 
 assigns a tenth of the testator's estate to the legatee ; but, 
 according to the other, he should receive only a seventh of 
 the third. If, again, he should bequeath & u suhum"or Of suhum. 
 share, the proper interpretation is an eighth ; while if it 
 
 8 Plural of the same word. ° See Im. D., p. 3. 
 
238 wills. 
 
 were sltci, or a thing, it should be interpreted as meaning 
 
 a sixth. 10 
 
 Executor If a person should make a bequest for several purposes, 
 
 forgetting ^ w ] 1 j c ] 1 ^ Q exe cutor has forgotten one or more, he should 
 
 purpose or _ & ' 
 
 a bequest dispose of it in some good or proper way, 11 although some 
 
 aDDlvit in °f our law y ers have expressed an opinion that it should 
 
 some good fall back into the deceased's inheritance. 
 
 way ' If a person should bequeath a particular sword which 
 
 a sword i s m a scabbard, the scabbard and mounting or ornaments 
 
 includes are included in the bequest. In like manner, if he should 
 
 it s scufo- 
 
 bard. bequeath a box containing clothes, or a boat or vessel 
 
 And of a which has merchandise on board of it, or a bag containing 
 
 box or a li ne n, in all these cases, the things actually bequeathed, 
 
 contents, and the other things contained in them, are included in 
 
 the legacy. There is, however, another opinion on this 
 
 matter, though it merits but little attention. 
 
 A will ex- If a person should make a will excluding some of his 
 
 eluding children from their shares in his succession, the exclusion 
 children _ ' 
 
 from their is not valid. But whether his words are to be treated as 
 d ^ased' entirely inept is a question on which there are two opinions. 
 estate in- According to one of these, they are quite futile and of no 
 efficacy whatever ; but, according to the other, the same 
 effect should be given to them as in the case of the bequest 
 of the whole of a person's estate to a stranger, excluding 
 his heirs, when the bequest is valid as far as a third of his 
 And in- property, and the heirs have their legal portion in the re- 
 effectual mam i nS f two-thirds. 12 The first opinion, however, appears 
 even as to ° . . 
 
 a third. to be better founded in law, though the other is supported 
 
 by a tradition which is now rejected. 
 
 Where the If a person should make a bequest in terms so ambi- 
 
 bequest is g U0US fj ia t the law affords no interpretation of them, it 
 altogether ° . . . 
 
 uncertain, must be left to the heir to explain them as he may think 
 
 10 The constructions are probably founded on the traditions 
 referred to, as they do not correspond with the literal meanings of 
 the words. 
 
 11 Woojooh-ul-birr. See ante, p. 216. 
 
 12 That is, those who are of this opinion would deprive the dis- 
 inherited children of any interest in a third of the estate, leaving 
 them only their legal portion in the remainder. 
 
THING BEQUEATHED. 239 
 
 proper ; as, for instance, where the testator has said, " Give its inter- 
 him a part ,3 of my property," or " a lot," 14 or " portion," 15 g^fj^J 
 or " a little " or " a trifle," " a valuable," or " a handsome to the 
 present." If, again, the testator should say, " Give him ieir " 
 much of my property," some lawyers are of opinion that 
 eighty dirhems should be given to him, as in the case of a 
 vow, whilst others have maintained that this construction 
 is peculiar to the case of vows, as being so limited in the 
 place where this is recorded of them. 
 
 It is preferable that bequests should be kept below a Modera- 
 third of the testator's property, insomuch that the bequest tlon Jj 1 .^* 
 of a fourth is better than that of a third, and of a fifth better recom- 
 than a fourth. mende(L 
 
 In cases, like the preceding, of ambiguous legacies, if in dis- 
 
 the legatee should specify any particular thing, and insist P utes as to 
 
 ° ,... -, deceased s 
 
 that such was the testator's intention in the words employed intention, 
 
 by him in making the bequest, the word of the heir is tlie word 
 
 preferred, accompanied by his oath, if the legatee should heir to be 
 
 also assert his knowledge of the fact, but otherwise there P referred - 
 
 is no necessity for the heir's confirmation of his word by 
 
 his oath. 
 
 13 Huzz. M Kist, 15 Nuseeb. 
 
2-40 WILLS. 
 
 CHAPTER IV. 
 
 OF THE LAWS OF BEQUESTS. 
 
 Repug- When a person has made a bequest, and then another 
 quests 6 " which is repugnant to it, effect must be given to the 
 
 latter. 
 Bequest of If a person should bequeath a foetus in the womb, and 
 a rd"f *^ e birth should take place within six months from the 
 born time of the bequest, the legacy is valid ; but if the birth 
 
 months' 31 * should not take place till ten months from the date of the 
 from its bequest, the legacy would not be valid. If, again, the 
 birth should occur at any period intermediate between six 
 and ten months, and the mother should have neither 
 master nor husband, the child is still to be decreed to the 
 legatee. But if the mother has either a master or a 
 husband, the offspring cannot be decreed to the legatee, 
 because, while it is possible that it may have been con- 
 ceived at the time of the bequest, it is also possible that 
 the conception may not have occurred till after it. 
 Case of a When a person has said, " If there be a male in the 
 
 bequest to wom k f this woman he is to have two dirhems, and if 
 
 a foetus in . . 
 
 the womb there be a female she is to have one dirhem, and the 
 
 varied mother is delivered of both a male and a female, they are 
 
 ciccordiDsr 
 
 to its sex. to have three dirhems ; but should he have said, " If what 
 
 is in her womb be a male he is to have so and so, and if a 
 
 female so and so," and the woman is delivered of both a 
 
 male and a female, they are not to have anything. 
 
 Bequest of The bequest of a foetus in the womb, or of whatever 
 
 a foetus, or ma y ^ e p r0( j uce d by a female slave, or a particular tree, is 
 
 future quite valid, as is also that of the residence of a mansion for 
 
 produce of a f u ^ ure p er i d. Further, if a person should bequeath the 
 
THE LAWS OF BEQUESTS. 241 
 
 service of his slave, the fruit of his garden, the residence of or of 
 his house, or anything else of a usufructuary nature, for ever y a ™£ 
 or for a fixed time, the advantage or profit to arise there- Usufmc- 
 from must be valued, and should it not exceed a third of tor y be- 
 the testator's estate the bequest is valid, while if more than 
 a third the legatee is to have as much as the third will 
 cover, and the legacy is void as to the excess. 
 
 When a person has bequeathed the service of his slave When the 
 for a fixed period, the expense of the slave's maintenance a g laV g is 
 must be defrayed by his heirs, as this is a duty which bequeath- 
 follows or is dependent on the ownership of the slave, and m ^ st be 
 the legatee is entitled to no more than the service of the maintain- 
 slave, while all the other rights of ownership appertain heir, 
 to the heirs, as sale, manumission, and the like, none of 
 which, however, has the effect of invalidating the rights 
 of the legatee. 
 
 If a person should bequeath a hows or bow, this is to How the 
 
 be construed as meaning an Arabian bow for shooting wo . . * 
 ° ° or bow is 
 
 arrows, or what is known as a Jcows at nushab, hows al nuhl, to be in- 
 
 and husban, unless there is some circumstance from which er P retec - 
 
 it may be inferred that he meant a bow of some other 
 
 description ; and in all cases where a testator may have Generally 
 
 employed a term which is common or equally applicable where a 
 
 i -, . ii-i • n 1 • i word is ap- 
 
 to several things, the heirs have an option to fix on which- piicableto 
 
 ever of the things they please and give it to the legatee. f^ ere ^ 
 
 If, again, the testator should say, "Give him my bow," heirs have 
 
 and only one is found in his possession, that one must be f 11 ^- 1 ^ 
 
 given to the legatee of whatsoever description it may be. either. 
 
 If a person should bequeath to another " one of his So also if 
 slaves," the option of fixing upon one in particular belongs the ^ e ." . 
 to the heirs, and they may give the legatee a young or an "one of 
 old, a perfect or defective one, as they think proper. But |™ t f s " 
 if all the slaves but one should die after the testator's slaves," 
 decease, that one must be given up in terms of the bequests, ^J ™ ay 
 while if they should all die the legacy is null. But not so one they 
 if they are murdered ; for in that case the heirs have still p ease ' 
 their option to fix on a particular slave, and must give the 
 legatee his value if recovered from the murderer, and other- 
 wise leave him to his remedy against the latter. 
 
 PART II. K 
 
242 
 
 WILLS. 
 
 Wills re- 
 quire two 
 witnesses 
 for their 
 establish- 
 ment ; 
 
 except 
 where pro- 
 perty only 
 is con- 
 cerned, 
 when one 
 ma}' suf- 
 fice. 
 
 Appoint- 
 ment of 
 executors 
 or guar- 
 dians re- 
 quires 
 two. 
 
 Testi- 
 mony of 
 an execu- 
 tor cannot 
 be receiv- 
 ed in 
 matters 
 connected 
 with his 
 executor- 
 ship. 
 
 Wills or bequests are established in law by the testi- 
 mony of two witnesses who are mooslims, and just persons, 
 or in case of necessity, when two just mooslim witnesses 
 are not to be had, by that of two zimmees or infidel subjects. 
 And in cases where property only is concerned, the testi- 
 mony of one witness on oath may be received, or of one 
 male witness and two females, and the testimony of even 
 a single female witness may be received as establishing the 
 right of a legatee to a fourth part of what she testifies to, 
 of two women as supporting his claim to a half, of three 
 as to three-fourths, and of four as to the whole. 1 But 
 an appointment of executors or guardians by will can be 
 established only by the testimony of two male witnesses ; 
 and in this case the testimony of women cannot be received ; 
 nor further, according to the most obvious analogy, can that 
 of one male witness on his oath be received, although with 
 respect to the latter there is some difference of opinion. 
 
 The testimony of an executor cannot be received in 
 matters connected with his own executorship, nor as to any 
 thing from which he may derive advantage to himself or 
 to his office. And if appointed executor for the expendi- 
 ture of a specific part of his testator's property, his testi- 
 mony cannot be received in favour of the deceased to prove 
 that this property does not exceed a third of his estate. 
 
 When the 
 testator 
 has direct- 
 ed the 
 eman- 
 cipation of 
 all his 
 slaves, and 
 the third 
 of his 
 estate is 
 
 Miscellaneous Cases. 
 
 First. If a person should direct by his will the emanci- 
 pation of all his slaves, when he has no other property 
 besides them, a third only of the number can be emanci- 
 pated, and these are to be determined by lot. Should the 
 testator have arranged them in any order for emancipation, 
 the first in the order is to be first emancipated, and so 
 on as to the remainder, until the third of the property is 
 
 1 In questions relating to debts and property generally, the testi- 
 mony of one man or two women is held to be sufficient ; and in 
 questions relating to legacies and inheritance, the testimony of one 
 woman is enough, but only to the extent above mentioned. — Shuraya, 
 ]>. 306. 
 
THE LAWS OF BEQUESTS. 243 
 
 exhausted ; and the bequest is void as to any that may be insuffi- 
 over. If, again, he direct a certain number to be set free, tlie p ' ai !_ ow 
 without specifying the individuals, so many are to be deter- ticular 
 mined by lot. According to some the heirs are at liberty to l be Ae _ 
 select the number specified ; but the mode of determining termined. 
 by lot is recommended by its justice, and is the most 
 approved. 
 
 Second. If a person should on deathbed emancipate a Emanci- 
 slave by free gift without any compensation, and having deathbed 
 no other property besides, some of our doctors have good only- 
 maintained that the slave is emancipated in into, while third of 
 others are of opinion that he is emancipated only to the tlie slave's 
 extent of a third, and that he must perform emancipatory w here the 
 
 labour to the heirs for the remaining two thirds. This deceased 
 ... r leaves no 
 
 latter opinion is the more common or approved, should other pro- 
 
 the deceased have emancipated only a third of the slave, P ert y- 
 
 he has also in this case to work out the remainder of his 
 
 value. But if the deceased has left any other property 
 
 the remainder of the slave must also be emancipated out 
 
 of the third of his estate. 
 
 Thirdly. If a person should direct by his will the Where the 
 
 emancipation of a slave who is a true believer, it is an ^ectsth 
 
 incumbent duty to give effect to the will, and should no einancipa- 
 
 slave of this description be found, one must be emancipated s iave°who 
 
 who is not known to be a nasib or enemy of the sect of is a true 
 
 Aly : and if the executor, supposing a slave to be a true J^"' 
 
 believer, should emancipate him, and it should afterwards one must 
 
 appear that the slave is the reverse of this, the pious f or S ei ^an- 
 
 intention of the testator is notwithstanding effectual with cipation. 
 regard to him. 
 
 Fourthly. If a person should bequeath a specific sum Where a 
 
 for the emancipation of a slave, and none can be found at not^e* 11 " 
 
 that price, it is not incumbent on the heirs to make any found im- 
 
 purchase, but they may wait till one can be found at the i th ' e " 
 
 specified price ; or if they can find one at a less price, they heirs are 
 
 should purchase and emancipate him, and bestow on him to wait 
 the remainder of the sum. 
 
 h 2 
 
214 
 
 WILLS. 
 
 CHAPTER V. 
 
 OF THE MOOSA-LUHO OR LEGATEE. 
 
 He must 
 be in 
 existence 
 at the 
 time 
 of the 
 bequest. 
 
 Legacies 
 to stran- 
 gers, 
 heirs, or 
 Zvmmees 
 valid ; 
 
 but rot to 
 
 hostile 
 
 infidels. 
 
 Legacies 
 to the 
 slaves of 
 others 
 invalid. 
 
 Otherwise 
 to one's 
 
 own 
 slaves. 
 
 It is an indispensable condition that the legatee be in 
 existence at the time of the bequest, and if he should not 
 be then alive the legacy is not valid, in the same way as a 
 legacy to a person deceased, or to one supposed to be alive 
 but who afterwards proves to have been dead at the time 
 of the bequest. In like manner, if one should make a 
 bequest in favour of a foetus hereafter to be conceived by 
 a particular woman, or "to whomsoever may hereafter 
 be found of the children of such a man," the bequest is 
 altogether null and void. 
 
 A legacy is valid whether it be in favour of a stranger, 
 or an heir, or a zimmee, though he be a stranger. Some 
 doctors, however, have maintained the last, or legacies by 
 a Moohummudan to a zimmee, to be absolutely unlawful, 
 while others have restricted their legality to cases where 
 the legatee is a consanguineous relative of the deceased. 
 But the first doctrine, or that which sanctions the legacy 
 without any qualification, is the most approved. With 
 regard, again, to legacies in favour of Hurubees or hostile 
 Infidels, there is some doubt ; but according to the most 
 authentic traditions they are forbidden and null. 
 
 Bequests in favour of the absolute slave of a stran- 
 ger, and of his moodubbur, oom^i-umlud, and provisional 
 mookatub, or one who has not paid any part of the 
 stipulated ransom, are all equally invalid, even though 
 sanctioned by the master. But legacies in favour of the 
 testator's own slave, moodubbur. mookaiub^ and oom-d-wulud 
 
LEGATEES. 245 
 
 are all valid, provided that they do not exceed a third of 
 his estate. Should the legacy to the slave be equivalent 
 to his value, he is forthwith emancipated, and the amount 
 bequeathed reverts to the heirs. Should it exceed his 
 value, the slave himself is entitled to the balance ; and, 
 upon the other hand, should it fall short of his value, the 
 slave must make up the difference by working for the heirs 
 till his full value is completed, unless his value should be 
 double the amount bequeathed, in which case the legacy is 
 void. Some lawyers, however, consider that it is still valid, 
 and that the slave must work out the difference whatever 
 it may be ; and this opinion is the most entitled to appro- 
 bation. 
 
 When a person who is in debt directs by will the Effect of a 
 
 emancipation of his slave, and the value of the slave is directlon . 
 1 ' . , to emanci' 
 
 twice the amount of the debt, the slave is emancipated, but pate a 
 
 must labour for five-sixths of his value : but if the value sl t ve ^ 
 
 ' _ when the 
 
 of the slave is less than the debt the legacy is void. The testator is 
 
 reason is that debts taking precedence of legacies must be m e t- 
 
 first discharged, and it is only out of a third of what 
 
 remains of the estate that the emancipation can take effect. 
 
 It is otherwise in the case of a gratuitous emancipation 
 
 by a master on his deathbed, when the law is as before 
 
 mentioned, on the ground of an express decision recorded 
 
 by Abd-oor-Ruhman as of the Imam Jdfer S&dik, on whom 
 
 be peace. 
 
 If a person makes a bequest in favour of the absolute Bequest 
 
 or unconditional mooTcatub of another, and the mookatub a *A^^ " 
 
 has already paid a part of his ransom, he is entitled to as has paid 
 
 much of his legacy as is equal to the amount of the ransom 113 
 
 ransom so discharged. And when a person makes a Q ues ti n 
 
 bequest to his own oom-i-wulud, the legacy is valid, as as to a 
 
 already mentioned, to the extent of a third of the estate. om3 '' s own 
 
 But whether her emancipation is to be put to the account oom-i- 
 
 of the legacy, or to the share of her son in the testator's whether it 
 
 estate, is a question that admits of different solutions, is t ° be 
 
 • i , . -, .<. -,, applied 
 
 some saying that she is to be emancipated out of the child s towards 
 
 share and to have her legacv besides, while others argue n . er e . man * 
 . .. , cipation 
 
 that she is to be emancipated out of the legacy because or to be 
 
246 
 
 WILLS. 
 
 paid to 
 her. 
 
 A legacy 
 to several 
 persons to 
 be equally 
 divided 
 among 
 them, 
 without 
 regard 
 to sex, 
 though 
 they 
 
 should be 
 the testa- 
 tor's chil- 
 dren. 
 
 Bequestto 
 kindred, 
 how inter- 
 preted ; 
 
 to howm ; 
 alil-beit ; 
 asheerah ; 
 jceran. 
 
 A bequest 
 to a foetus 
 valid if it 
 is born 
 alive. 
 
 there is no inheritance according to law until after pay- 
 ment of legacies. 
 
 When a legacy is bequeathed to several persons abso- 
 lutely, it is to be construed as divisible equally among 
 them. Thus, if a person should make a bequest to his 
 children, some of whom are males and some females, they all 
 take alike. So also in the case of a legacy to his uncles and 
 aunts, whether paternal or maternal. In like manner if the 
 legacy were both to his maternal and paternal uncles, they 
 would all take equally according to the most valid doctrine, 
 though there is a tradition the other way, which, however, 
 is rejected as unauthentic. On the other hand, should the 
 testator make a distinct allotment of shares to each, giving 
 more to some than to others, his directions must be strictly 
 followed. 
 
 If a person should make a bequest to his kindred 
 (zuvee hurabut), it is to be understood as intended for all 
 known to be of his race (nusub') or of the same paternal 
 descent. Some writers have said that it includes all 
 those who are related to him through his most remote 
 progenitors, both father and mother, who professed the faith 
 of Islam ; but this opinion is destitute of any testimony in 
 its support. If, again, the bequest be to his howm or nation, 
 it includes all those who speak the same language ; and if 
 to the people of his house (ahl-beit) it includes his children, 
 father and paternal grandfather. Further, if he say to his 
 ashe&rah (family), the nearest only of his nitsub are to be 
 understood as included in the bequest. 
 
 If a person make a bequest to his neighbours (jeeran), 
 it includes, according to some doctors, all those whose 
 houses are within forty cubits (ziraas) of his in every direc- 
 tion. But there is another opinion which is far fetched 
 and unreasonable, that extends it to the occupants of 
 forty houses one ither side of his. 1 
 
 A bequest to a foetus in the womb actually existent is 
 valid as already described, but it requires that the child be 
 produced alive, and if it is still-born the bequest is void. 
 
 1 See ante, p. 21 G. 
 
LEGATEES. 247 
 
 While if it is bom alive, though it should die immediately 
 after, the legacy descends to its heirs. 
 
 When a Mooslim has made a bequest to beggars (fuJieer) Bequest to 
 it is payable only to those of his own religion ; and in like be^mHed 
 manner if the testator be an infidel, such a bequest is to those of 
 payable only to those of his own persuasion. religion b 
 
 In all cases of bequest where the legatee happens to die Legacy 
 before the testator, some doctors are of opinion that the j e b 
 legacy is void ; but others have maintained that, although death of 
 if the testator should retract the bequest it would be null, ac c rdin°- 
 whether the retractation take place before or after the death to the best 
 of the legatee, yet if there is no retractation the legacy he has left 
 descends to the heirs of the legatee. This of the two heirs, 
 reports is the most authentic and approved. If, however, 
 the legatee should leave no heirs the legacy reverts to 
 those of the testator. 2 
 
 If a person should say, " Give such an one such a sum," When a 
 without specifying any purpose, it must be given to the ^q°7 l I 
 legatee, who may dispose of it without restriction in any to be ap- 
 way he pleases. If again the testator should direct it to particular 
 be expended in the way of God (subeel allahi), the bequest way, tes- 
 must be applied in some way in which reward is promised rect j ons 
 in a future state ; but according to some, exclusively in holy must be 
 warfare. The first opinion, however, appears to be better obeyed, 
 founded. 
 
 A bequest in favour of one's kindred is highly proper Bequest to 
 whether they be his heirs or not ; and when a person £ ear f^ of 
 bequeaths a legacy to his akrub, or nearest of kin, it is to be construed, 
 regulated by the rules of inheritance, and nothing is to be 
 given to a remote heir while there is a nearer in existence. 
 
 2 See D., p. 614, note 2 , where it is inferred " that the death of the 
 legatee before the testator would occasion a lapse of the legacy." 
 The inference is founded on death being a substitute for acceptance, 
 which, according to the Hanifites, " must be after the testator's death." 
 But according to the Sheeahs, it may be in his lifetime. — Ante, p. 220. 
 
248 
 
 WILLS. 
 
 Must be 
 Mooslvms. 
 
 Query 
 
 whether 
 they must 
 also be 
 just at the 
 time of 
 appoint- 
 ment. 
 
 If they 
 subse- 
 quently 
 prove to 
 be fasil :or 
 profligate, 
 they may 
 be remov- 
 ed by the 
 judge. 
 
 A slave 
 cannot be 
 appointed 
 an execu- 
 tor, nor a 
 minor 
 singly. 
 
 CHAPTER VI. 
 
 OF EXECUTORS. 1 
 
 It is requisite that an Executor should be a person of 
 understanding and a Mooslim, as also, according to some 
 doctors, that he be an adil or just person, because a fasik 
 or profligate is unworthy of trust. Others again consider 
 that this is unnecessary because all Mooslims are trust- 
 worthy, and may accordingly be agents and depositaries, and 
 also because the appointment of an executor is dependent on 
 the devise of the testator, and is established by it. Yet if one 
 who was adil or just at the time of his appointment should 
 prove to be fasik after the death of the testator, we may say 
 that the appointment is nullified, for the confidence placed 
 in him by the testator was founded on a belief of his probity, 
 and would have been withdrawn on its decline ; the judge 
 should therefore remove him and appoint another in his 
 place. 
 
 It is not lawful to appoint a slave as an executor without 
 the consent of his master, nor a minor singly, though he 
 may be validly joined with an adult in the office; but even 
 in that case he cannot interfere with the management of the 
 deceased's estate until he has attained to puberty. When 
 two persons are appointed executors, one of whom is a 
 minor and the other adult, the adult executor may act alone 
 until the minor has arrived at puberty, but when that 
 happens the adult executor can no longer act singly. If, 
 however, the minor should die, or on attaining to puberty 
 should prove to be of unsound judgment, the other may 
 
 Awseeah, pi. of Wusee. 
 
EXECUTOKS. 249 
 
 continue to act singly, and the judge cannot in this case 
 
 force an associate on hirn, because there is still an executor 
 
 to the deceased, appointed by himself. Farther, whatever 
 
 may have been done by the adult executor during the 
 
 minority of the other cannot be undone by the latter on his 
 
 attaining to puberty, unless contrary to the nature and 
 
 object of the trust. 
 
 An infidel cannot be lawfully appointed executor to a An infidel 
 
 Mooslim, even though he be his relation by blood ; but an ma y be 
 • ,. t i i i ■ -n executor 
 
 inndel may be the executor to one like himself. Jb urther, to an- 
 
 a woman may be legally appointed an executrix when found other. 
 in possession of the qualities and conditions requisite for ma ^°^ an 
 the office. appointed. 
 
 When two persons have been appointed in general joint ex- 
 terms, or with an express condition that they are to act ecutors 
 
 ' x •> cannot act 
 
 jointly, one of them cannot act singly without the other, singly, 
 
 and if either of them should persist in doing so, none of 
 
 his acts are lawful except such as are positively incumbent 
 
 or necessary, as for instance the providing of clothes and 
 
 food for the young children of the testator. Further, 
 
 it belongs to the judge to compel them to act jointly, and 
 
 if that be impracticable, he may appoint others in the stead 
 
 of both. Further, should they make a partition of the 
 
 property between themselves for the purpose of separate 
 
 management, that also is unlawful ; and if one of them 
 
 should fall sick or become incapable of performing the 
 
 duties of the office, the judge must appoint an associate to 
 
 the other who is competent; whereas if one of them should 
 
 die or become profligate, the judge has no such power, and 
 
 the remaining executor is empowered to act singly, 2 the except in 
 
 iudsfe having no authority while there is an executor of the tne caseof 
 J ° ° t J # survivor- 
 
 deceased surviving and competent to act. This point, how- ship, 
 
 ever, is open to some doubt and difficulty. If the testator 
 
 has made it a condition that the executors are to act or under 
 
 jointly and separately, the intromissions of each singly are s I J( ^ ial 
 
 in that case quite lawful. They may also lawfully divide by the 
 
 testator. 
 
 2 According to the Hanifites, the interposition of the judge seems 
 necessary. — D., p. 671. 
 
250 WILLS. 
 
 the property between them and each take upon him the 
 
 management of a part, in the same way as they might have 
 
 acted separately before the partition. 
 
 An execu- An executor may lawfully reject his office while the 
 
 tor may testator is alive, provided that he is duly informed of the 
 refuse to L ... 
 
 accept the rejection ; but if the testator should die before the rejection, 
 
 or after it without the information having reached him, no 
 effect can be given to the rejection, and it is incumbent on 
 the executor to take upon him the duties of the office. 3 
 To an in- If an executor is incapable of discharging the duties of 
 
 com Petent k' g fg ce ^q judge may appoint an assistant to him ; but 
 an assist- if he is guilty of fraud he must be displaced and another 
 be ap-^ appointed in his room. 
 
 pointed. An executor is an ameen or trustee, and therefore not 
 
 Executor responsible for any loss or destruction of the deceased's 
 sponsible property, unless occasioned by his departure from the 
 except for conditions or rules of his office, or by some personal 
 neglect. And if he be a creditor of the deceased, he may 
 and may lawfully pay himself out of the property in his hands, 
 pa ^ ?l im " without the order of a judge when he has no proof of the 
 creditor debt. According to some lawyers he may do so absolutely ? 
 l° the * , that is in all cases without a judge's order. But whether 
 and even he can purchase the deceased's property from himself on 
 bis™ ro- 6 n * s own accoun * i s a question that admits of some doubt, 
 perty at a though, according to the most approved doctrine, he may 
 just price. lawfully do so at a j ust valuation. 
 
 But can- When an executor has his testator's authority for 
 
 not at bequeathing the management of the estate at his own 
 
 clcitli cIg- 
 
 volve bis death, he may lawfully do so by general agreement, But 
 
 authority w i ie t] ie r he can do so when the testator has neither 
 
 on another 
 
 unless authorized nor forbidden such appointment, is a question 
 
 sanction- on w ] 1 i c } 1 there are different opinions. 4 Of these the 
 
 ed by the . . . 
 
 testator ; opinion which forbids such exercise ot power on his part is 
 
 and the that which is most approved. Accordingly in such case 
 
 care of the at j^g ^^th the superintendence of the original testator's 
 original 1 
 
 3 I think some previous acceptance is implied. See ante, p. 229, 
 and D., p. 6G6. 
 
 4 He can, according to the Ilanifites, without any difference of 
 opinion. — D., p. G72. 
 
EXECUTORS. 251 
 
 estate devolves upon the judge. In like manner, if a estate 
 person should die without appointing an executor, the t^ e °^f c L e 
 superintendence and care of his estate belongs to the 
 judge. And if there is no judge present on the spot, any- 
 true believer in whom confidence can be placed may law- 
 fully assume the care and management of the estate. But 
 on this point there is room for doubt and difference of 
 opinion. 
 
 If a person whose father is alive should appoint a Aguar- 
 stranger his executor to superintend the property of his not be ' " 
 son the appointment is not valid, and the power over the pointed by 
 orphan belongs to his grandfather, to the exclusion of the to his son 
 father's executor. But some doctors are of opinion that when the 
 the nomination by the father is valid to the extent of a f at h e r is 
 third of his property, and for the discharge of all rights or alive, 
 claims upon his estate. 
 
 When a person has appointed an executor for the Limited 
 superintendence of one particular matter, his power is ghi 
 restricted to that specific object, and any other intromis- 
 sions by him with the estate are unlawful ; an executor 
 being in this respect exactly like an agent who is strictly 
 confined to the bounds of his commission. 
 
 Miscellaneous Cases. 
 
 First. The qualifications required in an executor have Qualifica- 
 reference to the time of his appointment. Some lawyers, Q^fwatoi 1 
 however, maintain that they should be referred to the have re- 
 death of the testator, and that, accordingly, if a youth tbe tirae 
 should be appointed an executor and become adult before of his ap- 
 his death the appointment is valid ; and in like manner as ment _ 
 to the conditions of freedom and understanding. But the 
 former doctrine is the most generally approved. 
 
 Second. The appointment of an executor or guardian A testa- 
 
 to every one over whom the testator has control is valid, as ™f "^^ 
 J guardian 
 
 for example a child how low soever in descent, provided may be 
 
 that he is of tender age or a minor. But if a person ^awone 
 
 should nominate an executor for his children who are over 
 
 adult and of sound understanding, the nomination is of deceased" 
 
 no value and cannot be sustained. And even though the has con- 
 trol. 
 
252 wills. 
 
 appointment should be for the superintendence of property 
 which the testator himself has left to the parties, the exe- 
 cutor has no right to intromit with it, not to the extent 
 even of a third. He may, however, lawfully separate from 
 it what lawfully belongs of right to the deceased, that is, 
 enough for the discharge of his debts and alms. 
 Superin- Third. It is lawful for every one who has the superm- 
 
 an or- ' teudence of the property of an orphan to take from it the 
 phan's ordinary hire or recompense due for his trouble. Some 
 may de- doctors are of opinion that he is limited to what may be 
 duct bis sufficient for his expenses ; while others maintain that he 
 may take both (that is, hire and expenses). But the first 
 opinion is the most approved. 5 
 
 5 That is, I suppose, hire only, as including expenses. 
 
( 253 ) 
 
 CHAPTER VII. 
 
 Appendages. 
 
 These are of two kinds, the first of which comprehends 
 the following cases. 
 
 First. When a person has bequeathed to a stranger Bequest of 
 
 the like of his son's portion, having only one child, this is the ^ e 
 
 1 ° J ' a sons 
 
 in fact a partition of his estate between them, and the portion, 
 legatee is entitled to a half of it, unless the heir refuses his 
 consent to the full bequest, in which case the legatee's in- 
 terest is reduced to a third. If, again, the testator has two 
 sons, the legacy is a third of the estate ; and if three, it is a 
 fourth. The general rule is that the legatee be added to 
 the other heirs and treated as one of them, if they are all 
 entitled to share equally in the inheritance ; while if their 
 shares differ, some being more and some less, he ranks with 
 the weakest of them, or the one whose share is the least, 
 unless the testator has expressly said that his share is to be 
 equal to that of the highest, 1 in which case effect must be 
 given to the terms of the bequest. Further, if the testator The like 
 should have said " like the share of my daughter," the °} a o ., _ 
 legatee, according to us, is entitled to a half when there is ter's when 
 no other heir besides the daughter ; but his share is reduced ^o^her 
 to a third if she refuses her consent to the full legacy, heirs, 
 because, according to our doctrine, 2 daughters inherit the 
 whole estate to the exclusion of the asubdli or residuaries, 
 and the legatee thus becomes like a third daughter. 
 
 If a person having three half-sisters by the mother, The like of 
 one of his 
 
 1 Or like some one's in particular, as in the case of the son's 
 portion. 
 
 2 As opposed to that of the Hauifites. 
 
254 
 
 WILLS. 
 
 heirs, 
 when he 
 has left 
 only half- 
 brothers 
 and half- 
 sisters. 
 
 The like 
 of a 
 
 daughter's 
 when he 
 has left 
 one and a 
 widow. 
 
 The like of 
 one of 
 them 
 when he 
 has left 
 four wives 
 and a 
 daughter. 
 
 Bequest of 
 his child's 
 portion ; 
 
 of the like 
 to the 
 share of a 
 son who 
 after be- 
 comes a 
 parricide ; 
 
 and three half-brothers by the father, should bequeath to 
 a stranger the like of the portion of one of his heirs, the 
 legatee is to be treated as one of the sisters, and so to receive 
 one share out of ten parts into which the estate must be 
 divided, while the half-sisters take three, and the half- 
 brothers the remaining six, conformably to the rules of 
 intestate succession. If, again, the testator having a wife 
 and daughter bequeaths " the like of the share of my 
 daughter," and the heirs assent, the legatee is entitled to 
 seven parts of the estate, the daughter to as many, and the 
 wife to two, the whole being divisible in such a case into 
 sixteen portions. Nevertheless, it would be more proper to 
 say in this case that the wife is entitled to no more than one 
 part out of fifteen, that being the number of shares into 
 which the estate should be divided. 3 If, again, a person 
 having four wives and a daughter should say " like the share 
 of one of them," the division of the estate would be into 
 thirty-two portions, whereof an eighth or four shares would 
 be equally divided among the wives, the legatee would take 
 one share like one of them, and the remaining twenty- 
 seven would pass to the daughter. Yet if we were to say 
 in this case that the division should be into thirty-three 
 shares, it would be more agreeable to the general principles 
 of law. 
 
 Second. If a person should bequeath to a stranger "the 
 portion of his child/' the bequest according to some is void, 
 because it is a bequest of what belongs to another ; 4 but it 
 is more agreeable to principle to say that the bequest is 
 valid, and should be construed in the same way as if it were 
 the like to his share . If, again, the testator, having a son 
 who afterwards becomes his murderer, should bequeath the 
 like to his share, here, though some say that the bequest is 
 valid, yet it is more in conformity with the principles of law 
 to say that it is invalid. 
 
 3 The original division being into eight parts, of which one is to 
 the wife and seven to the daughter, a " like to the share of my 
 daughter" is seven, and 7 + 7 + 1 = 15. 
 
 4 The Ilanihtes appear to be of this opinion. — D., p. G20. 
 
AITENDAGES. 25d 
 
 Third. When a person has bequeathed the double of of the 
 his child's portion, the legatee has two equivalents of the ?? Gild's 
 portion ; and if he were to say zodfan (in the dual) or two portion, 
 doubles of it, the legatee would have an equivalent to four 
 portions, but only to three according to some whose opinion 
 is preferred as being more certain : and the same is the law 
 when the testator has used the expression zodf-i-zodf, or 
 double of the double of his portion. 
 
 Fourth. When a person whose property is scattered Bequest to 
 about in different places has bequeathed a third of it to the 1^° ° t r v ° 
 poor it is lawful to apply whatever is found in the city to the at differ- 
 poor of the place ; and even the whole of it may be lawfully hoJ^cfloe 
 expended on the poor of the testator's city, and on those of disposed 
 them who are on the spot, without following or searching for 
 any who are absent. The number of those who are to share 
 in the gift must, however, be three or more, by reason of the 
 testator's expression being in the plural, according to the 
 best authority. In like manner, if he should say, " Eman- 
 cipate slaves," in the plural, it is incumbent on the executor 
 to emancipate at least three, unless a third of the testator's 
 estate should fall short of the object. 
 
 Fifth. When a person has bequeathed a slave to one, Bpquestof 
 and the whole of the remainder of the third of his estate me a nsone 
 to another, and the slave becomes defective previous to his that is not 
 delivery to the legatee, the other legatee is entitled only to e ^ 
 the balance of the third, after deducting the value of the 
 slave, if supposed to be perfect or without defect ; because 
 the testator evidently intended a perfect slave and the 
 balance, as the subjects of his respective legacies. In like 
 manner, should the slave die before the testator, though the 
 first ]egacy is necessarily annulled, the second legatee is 
 entitled to no more than the balance of the third after 
 deducting the value of the slave, as if the slave were still 
 alive and in good condition ; and if such value should 
 amount to a third of the testator's estate, the second 
 legacy would also be annulled. 
 
 Sixth. When a person has bequeathed his slave to the A slave 
 slave's own son, who accepts the bequest on his deathbed, gdtcfhis" 
 the slave is emancipated as against the whole property of own son, 
 
256 wills. 
 
 and ac- the legatee, according to all our doctors, without any re- 
 
 deathbed" ference to the value of the slave coming within a third 
 
 is cmanci- of it, for this necessarily refers only to what a testator 
 
 against bequeaths out of his own property, and here the father 
 
 the whole becoming the property of the son by his acceptance of the 
 
 perty. l e o ac Yj n ^ s emancipation immediately follows as a necessary 
 
 consequence. 
 
 Bequest of Seventh. When a person has bequeathed a mansion 
 
 which * wmcn f a U s down and is levelled to the ground before the 
 
 falls down testator's death, the legacy is void because the name of 
 
 testator's mansion (dar) is no longer applicable to it. But this is 
 
 death. liable to doubt. 
 
 Joint be- Eighth. When the testator has said, " Give Zeid and 
 
 an indi- the poor such a sum," Zeid, according to some doctors, is 
 
 vidua! and entitled to a half, but, according to others, only a fourth. 
 
 poor. But the first doctrine is the best supported. 
 
 Acts on The second kind of appendages relates to disposals of 
 
 deathbed. p r0 p er ty by a sick person, or on deathbed. These are of 
 
 are not to two descriptions — or such as are deferred or not to take 
 
 take effect e ff ec fc -fcill after the testators decease, and such as take effect 
 
 immedi- . ' 
 
 ately are immediately. The first are to be treated in every respect 
 
 *° b f t as legacies according: to the unanimous consent of our 
 treated as ° . & 
 
 legacies, doctors, and like the acts of a person in health which 
 
 are done with reference to his death, so as not to take 
 
 effect till after it. 
 
 Such as The second description of acts, or such as are of imme- 
 
 aretotake ,. . . , . 
 
 effect im- diate operation, like muhabat or connivance at loss m con- 
 
 f 36 j 1 -^ 8 " tracts of exchange, and gift, appropriation and emancipa- 
 
 ence of tion. These are good according to some of our doctors as 
 
 opinion against the whole of the maker's property, and according to 
 
 regarding D . ... , 
 
 them. others only as against a third. 5 Both opinions, however, 
 
 agree in this, that if he should recover from his sickness 
 
 they are valid against himself and against his heirs ; and 
 
 the difference of opinion is only when he dies of the same 
 
 disease. 
 
 Death, Here it is necessary to note the diseases which restrain 
 
 illness. 
 
 ; ' This is the opinion of the Hanifites. See D., pp. 542, G01 ) 
 and 040. 
 
APPENDAGES. 257 
 
 a man from disposing of more than a third of his property. 
 Upon this point, then, we may say that every disease which Danger- 
 is usually accompanied with apprehension of death, is easeg ls " 
 said to be dangerous, such as hectic fever, consumption, 
 haemorrhage, bilious or bloody swellings, fetid purgiugs, 
 and such as are mixed with oleaginous matter or black 
 excrement, and the like. Diseases, again, from which there Diseases 
 is usually recovery have no other effect on a man's disposal JqL™ u " 
 of his property than if he were in a state of health, such as con- 
 temporary fever, headache whether with continued augmen- S1 erea " 
 tation or not, ophthalmia, and a tubercle on the tongue. 
 Diseases, again, which admit of being classed as either, Dubious, 
 that is as dangerous and undangerous, are putrid fever, 
 diarrhoea, and phlegmatic swelling. It were, however, General 
 better to ascribe the effect under consideration to all ru e " 
 diseases which are in fact accompanied with or terminate 
 in death, whether they are customarily dangerous or not. 
 But occasions of actual conflict in war, or of childbirth in 
 women, or of storms at sea, have not the effect alluded to, 
 namely, that of impairing a person's power to dispose of 
 his property, because, in point of fact, the term disease is 
 quite inapplicable to them. 
 
 Here some miscellaneous cases present themselves for 
 consideration. 
 
 First. When a person in sickness has made a gift and Gratu- 
 also entered into a muhabat transaction, and the third of n ^eath- 
 his property suffices for both purposes, there is no question bed take 
 that effect is to be given to both. But if it should fall oo^urto 
 short, the first act of the deceased is entitled to a preference, priority. 
 and so on as to the others in succession, until the third is 
 exhausted, when the deficiency falls solely upon the last. 
 
 Second. When a gift of immediate operation, and one But pre- 
 
 whose effect is postponed or suspended, are entered into at „i ven to 
 
 the same time, a preference is to be given to the former, those of 
 
 effect being also given to the latter if the third of the estate diate 
 
 is sufficient for both purposes ; but if not, the latter is operation 
 
 valid so far as the third will bear, and void as to the as al . e 
 
 remainder. deferred. 
 
 Third. When a sick person having no more than a la & mu- 
 habat of 
 PART II. S 
 
258 
 
 WILLS. 
 
 grain on 
 deathbed, 
 
 where the 
 loss ex- 
 ceeds a 
 third of 
 the estate, 
 how the 
 excess is 
 to be 
 restored 
 so as to 
 avoid the 
 objection 
 of usury. 
 
 Muhabat 
 of a slave 
 on death- 
 bed for 
 half his 
 value, 
 how to be 
 adjusted 
 between 
 the pur- 
 chaser 
 and the 
 heirs when 
 they re- 
 fuse to 
 allow it. 
 
 Case of 
 emancipa- 
 tion of a 
 female 
 slave and 
 marriage 
 with her 
 on death- 
 bed, both 
 valid. 
 
 Jcoorr of grain of some kind, of the value of six thenars, 
 sells it for a Jcoorr of inferior grain of the value of three 
 deenars, the loss by the muhabat is a half of his whole 
 estate, whereas all that he can lawfully dispose of is no 
 more than a third, and the purchaser should accordingly 
 restore a sixth to the heirs, but that would be usurious, 
 and in order to make a valid transaction, it is necessary 
 that he should give back to the heirs one-third of their 
 good l-oorr, and that they should give back to him one- 
 third of his inferior l-oorr ; there will thus remain with the 
 heirs two-thirds of the l-oorr, or two deenars in value, and 
 with the purchaser two-thirds of a Jcoorr, or four deenars in 
 value, which will only be an excess of two deenars or one- 
 third of six (the whole estate), which is just the amount 
 which the seller could lawfully dispose of in his last 
 illness. 
 
 Fourth. If a sick person should sell a slave of the 
 value of two hundred for one hundred, and afterwards 
 recover of his disease, the contract is necessarily binding. 
 But if he should die, and the heirs refuse to ratify the 
 sale, it is valid so far as a half of the slave is opposed to 
 what he actually paid, and that is three parts out of six, 
 and the muhabat is good as to two-sixths, or one-third of the 
 six, and these together amount to five-sixths of the slave, 
 to which extent, then, the sale is valid, and void only as to 
 the remaining one-sixth, which therefore must be returned 
 to the heirs. The purchaser, however, has an option, and 
 may cancel the sale on account of the partial invalidity of 
 the bargain, or abide by it ; but should he adopt the latter 
 alternative and offer the heirs a compensation for a sixth 
 of the slave, they also have an option either to reject or 
 accept, their right being involved in the substance or 
 person of the slave. 
 
 Fifth. When a person in his mortal sickness has 
 emancipated a female slave, married and consummated 
 with her, the emancipation and the contract are both valid, 
 and the widow is entitled to succeed as an heir to her 
 husband, if her value is within a third of his estate. But 
 if her value exceeds the third there is the same difference 
 
APPENDAGES. 259 
 
 of opinion with respect to all three, that is, the eman- 
 cipation, marriage, and right of inheritance, as has been 
 already described regarding the immediate acts of a person 
 on deathbed. 6 
 
 Sixth. If a sick person should emancipate his female But if her 
 slave whose value amounts to a third of his property, Amounts 
 marry her at a dower equal to another third of his pro- to a third 
 perty, consummate his nuptials with her, and then die, ° sta 'jp tl 
 the marriage is valid, but the specified dower is void, be- specified 
 cause it is in excess of the third. The widow, however, is VO j^ ei ls 
 entitled to her share as an heir according to the ordinary 
 rules of inheritance. And some doctors are of opinion 
 that she is farther entitled to the muhr-i-misl, or proper 
 dower. On this point, however, there is room for doubt. 
 Others again maintain her right to the whole, or emanci- 
 pation, marriage, and dower. 
 
 6 See ante, p. 256. 
 
 s 2 
 
BOOK VII. 
 OF FURAIZ, OR INHERITANCE. 
 
 CHAPTER I. 
 introductory. 
 
 Section First. 
 
 Causes of Inheritance. 
 
 The right to inheritance is founded on nusub or con Two 
 
 sanguinity, and on subub or special connection. Under ?*J^.° 
 
 nusub are comprehended three classes or series of persons : ance : 
 
 First, the parents, and the children how low soever. Nusub or 
 
 Second, the brethren and their children, how low soever, gum 'ity; 
 
 and the grandparents, how high soever. And third, the 
 
 maternal and paternal uncles and aunts. Subub is of two Snbub or 
 
 kinds : zoivjeeut, or the relation between husband and special 
 , . . „ corinec- 
 
 wife ; and wula, or dominion — of which there are three tion. 
 
 descriptions : the wula of emancipation, the wula of 
 
 responsibility for offences, and the wula of Imamut, or 
 
 headship of the Mussulman community. 
 
 Heirs may be divided into three classes. First, those Heirs 
 who have no right except byfwrz, or special appointment ^vided 
 by law to a share in the deceased's estate ; second, those classes. 
 whose right is sometimes by furz, and sometimes by 
 liiimhut, or kindred to the deceased; third, those whose 
 right is exclusively by hurabut. 1 
 
 The first class comprehends the mother from among First 
 those whose right is by nusub or consanguinity, and the class - 
 
 1 The enumeration must not be considered as indicating any 
 order of precedence. The third class, in fact, includes the son. 
 
202 
 
 INHERITANCE. 
 
 Second 
 class. 
 
 husband and wife from among those whose title is by 
 8ubvb or special connection. The second class compre- 
 
 Third 
 
 class. 
 
 Kindred 
 who are 
 not 
 sharers 
 
 the whole 
 
 estate 
 
 directly. 
 
 hends Ihe father and the daughter or daughters, the sister 
 or sisters, and the Tculalut of the mother, or those rela- 
 tives who are connected through her only. The third 
 class comprehends all other heirs besides those who are 
 comprehended in the two first classes. 
 
 When the heir is a person for whom no share has been 
 appointed, and there is none to participate with him, that 
 is, no other heir equal to him in degree, the whole inherit- 
 stand 6y ance i- s his, whether his right be by nusub or by subub. If 
 alone take there is another associated with him, for whom also no 
 share has been appointed, they take the inheritance between 
 them. When associates in the succession differ in the 
 channels through which they are connected with the 
 deceased, each set (stirjps) takes the portion of the person 
 through whom they are connected with him ; as, for in- 
 stance, when there are maternal and paternal uncles or 
 aunts of the deceased, the former take the portion of a 
 mother, which is a third, and the latter the portion of 
 a father, which is two-thirds. 
 
 When the heir is a zoo fv/rz or sharer, he takes his 
 appointed portion as such ; and if he has no equal, that is, 
 if there is no other heir in the same degree, he takes the 
 surplus also by rudd or reversionary right. Thus, when 
 there is a daughter with a brother, or a sister with a 
 paternal uncle, the daughter or sister takes first her ap- 
 pointed portion, and the remainder then reverts to her 
 because she is nearer to the deceased. 
 
 It is to be observed that the surplus never reverts to a 
 wife, and reverts to a husband only in the single case of 
 there being no other heir than the Imam. 
 
 If the sharer has an equal in degree who is a sharer 
 also, and the shares are not in excess of the whole estate, 
 it is to be divided according to the shares ; and if there is 
 any surplus it returns to them all by reversionary right, 
 unless any of them is excluded by a li<tjil>,~ or unless a 
 
 Sharers 
 when 
 alone take 
 their 
 shares, 
 and then 
 the re- 
 mainder 
 by right 
 of return. 
 
 No return 
 to a wife. 
 
 When 
 there is a 
 deficiency 
 it falls 
 upon 
 t hose re- 
 lated 
 
 Active participle of hujub, exclusion, for which see post, p. 270. 
 
INTRODUCTORY. 263 
 
 single one of them is entitled to the surplus by virtue of through 
 
 tip i 
 his connection with the deceased. If there is a deficiency, cease ^» a 
 
 it falls upon the portion of the daughter or daughters, father. 
 
 or those who are related by the lather to the deceased, 
 
 and not upon those whose relationship is only through the 
 
 mother. 3 
 
 As examples of the first case, or that where the shares Examples. 
 are not in excess of the whole estate, suppose that the 
 deceased has left both parents, and two or more daughters, 
 — or two children of his mother, that is, half-brothers or 
 sisters on her side, with two full sisters or two half-sisters 
 on the father's side — or a husband with a half-sister by 
 the father. As an example of the second case, or that 
 where there is a surplus, suppose that the deceased has 
 left both parents and a daughter. And as an example of 
 the third case, or that where there is a deficiency, suppose 
 that the heirs are both parents, a husband and two daugh- 
 ters, — or both parents, a husband and a daughter, — or a 
 husband or wife and two children of the mother only, with 
 two full sisters or half-sisters on the father's side. 4 
 
 If the equal of the sharer is not himself a sharer, he A non- 
 takes the whole of what remains after satisfying the shares ; ^^ a ' 
 as in the case of both parents or one of them, and a son, sharer, 
 — or a father with a husband or wife, — or a son with a wno i e SU r- 
 husband or wife, — or a brother with a husband or wife. plus. 
 
 Section Second. 
 
 Impediments to Inheritance. 
 
 Three im- 
 The impediments to inheritance are three : — Infidelitv, pediments 
 
 Homicide, and Slavery. 5 to inherit- 
 
 J ance. 
 
 By infidelity as an impediment to inheritance is to infidelity, 
 be understood everything that excludes the believers in 
 
 3 According to the Hanifites, it is distributed among all the sharers 
 by what is called the Awl, or increase. — See M. L. I., p. 89, and 
 IX, p. 713. 
 
 4 Illustrations of these cases will be found post — of the first at 
 p. 395, of the second at p. 399, and of the third at p. 396. 
 
 •' According to the Hanifites, difference of religion generally, and 
 difference of country, are impediments to inheritance. — M. L. Z,p. 21. 
 
264 
 
 INHERITANCE. 
 
 Conver- 
 sion after 
 the an- 
 cestor's 
 death re- 
 moves the 
 impedi- 
 ment. 
 
 Excep- 
 tions. 
 
 it from the title of Islam. And no unbeliever, whether a 
 subject or an alien, nor an apostate from the Moohummudan 
 faith, can inherit to a Mooslim ; but a Mooslim may inherit 
 to an original infidel or to an apostate ; and if an infidel 
 should die leaving several heirs who are infidels and one 
 heir who is a Mooslim, the whole inheritance would go to 
 the Mooslim, though he were only an emancipator or a 
 patron by responsibility, 6 to the total exclusion of the infi- 
 dels however near they might be by blood to the deceased. 
 If, however, an infidel should have no heir whatever who is 
 a Mooslim, another infidel may in that case inherit to him, 
 provided that the deceased were an infidel by origin ; but 
 if he were an apostate, the inheritance would devolve on the 
 Imam upon failure of Mussulman heirs. According to one 
 report the infidel heir would in that case also be entitled 
 to inherit ; but the report is not considered authentic. 
 
 If a believer has left only infidel heirs, they do not 
 inherit his property, which goes to the Imam upon failure 
 of Mussulman heirs. If, however, an infidel should embrace 
 the faith after his ancestor's death, previous to the partition 
 of the property, he would be entitled to participate with 
 those who are equal to him in degree, or be preferred to the 
 whole inheritance if nearer to the deceased than the other 
 heirs. But if the conversion does not take place till after 
 the partition of the estate, or if there is only one other 
 heir (when of course no partition would be required), the 
 conversion of the infidel is of no avail, and he has no 
 share in the inheritance ; except that in cases where there 
 is no other heir than the Imam, and an unbelieving heir 
 embraces the faith, he is to be preferred to the Imam 
 according to a report by Aboo Buseer. Some, however, 
 have alleged that conversion only when previous to the 
 transfer of the property to the public treasury confers a 
 preferable title on the heir, and that after such transfer 
 it confers no right whatever. While others, again, have 
 denied his right in both cases, upon the ground that the 
 Imam ought properly to be considered the same as a single 
 
 See post, p. 30] , 
 
INTRODUCTORY. 2G5 
 
 heir. If the heir is a husband or wife, and there is another 
 heir who is an infidel but embraces the faith of Islam, he is 
 entitled to the surplus after payment of the share appointed 
 to the husband or wife. Such at least is the prevalent 
 opinion, but it is liable to some difficulty arising from the 
 impossibility of making a partition in the case of the 
 husband; and if therefore it were said that the convert 
 participates with a widow only, and not with a husband, it 
 would appear to be the most just decision, because in the 
 case of the widow partition is possible as the convert has a 
 preferable title to the Imam, whereas a husband in virtue 
 of his reversionary right becoming entitled to the surplus, 
 there is no room for partition in his case, — which is like 
 that of a believing daughter and an infidel father, or a 
 believing sister and an infidel brother. 
 
 Connected with this impediment of infidelity are the 
 four following cases : — 
 
 First. If one of the parents of an infant be a believer, Construc- 
 
 the construction of law is in favour of the Islam of the infant, tionof law 
 
 and if one of the parents of a child, both being infidels f a child 
 
 at the time of its birth, should embrace the faith during' or ! e of 
 . „ . . whose 
 
 its infancy, the rule of law is the same. If the child on parents is 
 
 attaining to puberty should reject the faith, he is to be Mousl ' m 
 . , -. . .or con- 
 
 treated rigorously and accounted an apostate if he persist verted in 
 
 in his rejection of it. l ts in " 
 
 a • • fancy. 
 
 Second. If a Christian should leave infant children, children 
 
 and a brother's son and a sister's son who are believers, the of a 
 estate must be divided between the believers, the brother's w hose ian 
 son taking two-thirds, and the sister's son one-third, but heirs are 
 they must maintain the children of the deceased by con- mus t ^e 
 tributions proportionate to their respective shares. If on main- 
 attaining to puberty the children should profess the faith them in 
 of Islam, they have a preferable title to the inheritance, proportion 
 according to a report of Malik Urn Ayoon\ but if they shares, 
 make choice of infidelity, the property of the heirs is 
 established in what they first inherited, and the children 
 are entirely excluded. This decision, however, is not free 
 from difficulty, because, in the first place, an infant is in 
 the same situation as its parent in respect of infidelity; 
 
266 
 
 INHERITANCE. 
 
 Difference 
 of sect no 
 impedi- 
 ment. 
 
 Male apo- 
 states who 
 were born 
 in the 
 faith ac- 
 counted 
 dead from 
 the date 
 of their 
 apostasy ; 
 but 
 
 females 
 not so. 
 
 And males 
 not born 
 in the 
 faith are 
 allowed 
 time to 
 repent. 
 
 Homicide 
 when in- 
 tentional 
 prevents 
 succes- 
 sion, but 
 not when 
 acci- 
 dental. 
 
 and secondly, because a partition of property previous to 
 an adoption of Iddm precludes any future right to it. 
 
 Third. Believers inherit to each other, though they 
 belong to different sects ; and infidels inherit to infidels, 
 though of different persuasions. 
 
 Fourth. The property of an apostate who was by birth 
 or parentage a believer, is to be divided amongst his heirs 
 at the date of his apostasy ; and his wife also becomes 
 immediately divided from him, and must observe an iddut 
 as in the case of her husband's death, whether he is imme- 
 diately slain or continues to live ; and he is not to be called 
 on to repent. A woman, however, is not to be slain for 
 her apostasy, but is to be imprisoned and scourged at the 
 times of prayer, and her property is not to be divided until 
 her actual death. With regard to a male apostate who 
 was not by birth or parentage a believer, he is to be first 
 called to repentance, and if he repent, well ; if not, he is 
 then to be slain, but his property is not to be divided until 
 his actual death, either naturally or by the hand of justice. 
 The iddut of his wife, however, commences from the date 
 of his change of religion ; and if he returns to the faith 
 before the expiration of the iddut he has still a preferable 
 right to her ; but if the iddut has once expired his right is 
 gone for ever, and he has no means of retaining her. 
 
 By homicide as an impediment to inheritance is to be 
 understood that a person who has slain another wilfully 
 and unjustly is precluded from inheriting to him ; but if 
 the deed has been done rightfully, it is no impediment. 
 Homicide by mistake also is no legal bar to succession, 
 according to the most prevalent doctrine, 7 although Mofeed 
 has, apparently with some propriety, excluded from the 
 operation of this rule the deeut or fine to be paid in expia- 
 tion of the deed, which the slayer is prevented from in- 
 heriting. This impediment applies equally to the father 
 and the child, and all others connected with the deceased, 
 whether by consanguinity or special connection ; and if 
 there is no other heir besides the slayer, the inheritance 
 must go to the public treasury. 
 
 7 It is, according to the Ilanifites. — M. L. I., p. 23, and D., p. 697. 
 
INTRODUCTORY. 267 
 
 If a person should slay his father, and the parricide Child of a 
 
 has a child, this child may inherit from the grandfather, ™" r ^ r 
 
 should he leave no issue of his loins, for the crime of a barred 
 
 father is no bar to the succession of his children ; but if cess i on ^ y 
 
 the heir of the murderer be an infidel, they are both his 
 
 excluded together, and the inheritance goes to the Imam, c 'rime • 
 
 unless the infidel should embrace the faith, when he would unless an 
 
 be entitled both to the inheritance and the quest of blood. w hen the 
 
 But upon this point there are the following cases : — Imam is 
 
 the heir. 
 
 First. If a murdered person leave no other heir than j w ^ mmay 
 
 the Imam, he may either demand retaliation, or the expia- follow the 
 
 tory fine with the consent of the murderer, but he is not blood °but 
 
 at liberty to forgive the offence altogether. cannot 
 
 Second. The fine of blood is considered by law as the ^ on f ' 
 
 property of the person slain, and is subject to the payment blood is in 
 
 of his debts and legacies, whether the homicide were inten- ^ h ^ ar 
 
 tional or murder, supposing the fine to be accepted, or by estate of 
 
 mistake. *•£— 
 
 Third. All persons connected with the deceased, whether an d may 
 by consanguinity or special connection, may lawfully in- beinherit- 
 herit the deeut or fine of blood, except those connected heir ex- 
 only through the mother, with respect to whom there is a ce l 3t one , 
 
 conncct(j< 1 
 
 difference of opinion. And a husband or wife does not only 
 
 inherit the right of retaliation for the murdered spouse ; by * be 
 
 but if the right is commuted by mutual consent for the 
 
 deeut or expiatory fine, they enjoy their appointed shares 
 
 of the amount. 
 
 The third impediment or slavery operates with respect slavery 
 
 to both the heir and the ancestor. 8 If therefore a person °P erates 
 
 11-iTi- . -, both as to 
 
 should die leaving an heir who is free and another who is a the heir 
 
 slave, the whole inheritance would go to the former, though and the 
 
 . ° ' ° ancestor. 
 
 remote, to the exclusion of the latter, though near. But if 
 the slave heir should have a child who is free, he is not 
 debarred from the succession by the slavery of his parent. 
 And, further, if there are two or more heirs, one of whom 
 is a slave at the ancestor's death but is emancipated before 
 the partition of the property, he is entitled to participate in 
 
 8 Mowroos, literally, inherited. 
 
2 68 INHERITANCE. 
 
 the succession if equal iu degree to the others, or to take 
 the whole alone if he is nearer to the deceased. But 
 emancipation after partition confers no title to a share in 
 inheritance. So, also, it is ineffectual when there is only 
 one person who is entitled to the inheritance, and there is 
 consequently no occasion for partition ; — in which case the 
 slave gets nothing by his emancipation. 
 When a When the deceased has left no other heir than a slave, 
 
 slave is f.] ie s j ave i s £ fog purchased out of the estate and then 
 
 the sole . L 
 
 heir he is emancipated, whereupon he becomes entitled to the residue, 
 
 to be pur- an( j ^-g proprietor may be compelled to dispose of him. 
 
 chased out L * J x * 
 
 of the es- Should the property left by the deceased be inadequate to 
 
 tate and ^ Q p U1 -chase, some doctors have said that the slave must be 
 
 emanci- x ' 
 
 pated, and ransomed to the extent of the property, and left to work 
 
 to the ° u * *^ e remam der of his price by emancipatory labour, while 
 residue. others have maintained that he is in no respect to be ran- 
 somed, but that the whole property goes to the Imam ; and 
 this opinion is better supported by traditionary authority. 
 So, also, if the deceased have left two or more heirs who 
 are slaves, and the share of each or of one of them should 
 fall short of his value, none is to be ransomed, but the 
 whole estate passes to the Imam. If, however, a slave is 
 partially emancipated, he is entitled to receive out of his 
 share a part proportioned to the extent of his freedom, 
 while he is debarred from a portion proportioned to the 
 extent of his slavery. The same rule is applicable to the 
 person from whom an inheritance is derived ; and female 
 slaves are considered by law in the same predicament with 
 males. Upon these points two cases arise : — 
 Slaves to First. It is universally agreed that parents are to be 
 
 somed'out ransomed out of the property of free children ; but with 
 of pro- respect to the converse of this, or the ransom of children 
 by their ou ^ °^ the estate left by their deceased parents, there is 
 free chil- some doubt. The affirmative is, however, the better founded 
 opinion. With regard to all others besides parents and 
 children, whether they are to be ransomed or not, there 
 is also a difference of opinion, but the negative of this 
 proposition appears to be the more prevalent and is better 
 founded. 
 
INTRODUCTORY. 269 
 
 8econd. An oom-i-wulud, or female slave who has borne An oom-i- 
 a child to her master, has no claim to inherit from him. ^ gliare 
 So, also, neither has a rnoodubbur, or person to whom free- in her 
 clom has been granted at the proprietor's death, though } n 'i ier i_ 
 he should happen to be in the predicament of heir to tance. 
 his moodubbir or person who has so granted him his 
 freedom. And in like manner with respect to a mooka- 
 tub or person who has stipulated to pay a ransom for his 
 liberty, whether the contract were conditional or absolute, 9 
 provided that no part of the ransom has been paid. 
 
 As appendages to the whole subject of impediments 
 to inheritance the following cases present themselves for 
 consideration : — 
 
 First. Lidn, or imprecation, has the effect of cutting Lidn cuts 
 
 off the nusub, or descent of a child. But if the child be . 
 
 succession 
 
 subsequently acknowledged by the husband, the connection of a child, 
 between him and the child is so far restored that the child 
 can inherit from him, though he cannot inherit from the 
 child. 
 
 Second. When a person is absent from his home or The pro- 
 country, at so great a distance as not to be known or heard P erfcv of 
 
 . t • -i • -i an absent 
 
 of, Ins property cannot be divided among his heirs until or missing 
 
 his death is fully established, or until such a period shall P erso °- 
 
 J ' L . cannot be 
 
 have elapsed as to remove all probability of a person like divided 
 
 him being still alive. His property may then be decreed ^ 0U S h ™ 
 
 to his heirs who may be in existence at the time of the it may be 
 
 decree. Some, however, have said that the division should re ^ son " 
 ' ' ably pre- 
 
 be made after the expiration of ten years, while others have sumed 
 denied the legality of the distribution altogether, directing j™* 1S 
 that the property should be entrusted to the keeping of an 
 heir in opulent circumstances. But the first opinion is to 
 be preferred, as best founded in reason and justice. 
 
 Third. A foetus, or embryo in the womb, is entitled to A/cetus 
 inherit if born alive, but if still-born it has no title to any u^.V^" 
 
 9 The distinction between the two kinds of Moolcatubut is, that 
 in the one there is a condition that, on any failure in payment of the 
 ransom, the mookatub shall revert to a state of absolute slavery ; and 
 in the other, the contract contains merely the term, the ransom, and 
 the intention. — Shuraya, p. 320. 
 
270 
 
 INHERITANCE. 
 
 produced 
 alive. 
 
 Debt ex- 
 cludes any 
 claim of 
 inheri- 
 tance 
 until it is 
 paid. 
 
 portion ; whereas if born alive, though death should ensue 
 immediately after its birth, its share belongs to its own 
 heirs. If miscarriage is produced by violence, regard is 
 to be had to any motion which may be exhibited by the 
 child, whether it be such as cannot proceed except from a 
 living being, or is merely a quivering 10 of the limbs, which 
 sometimes takes place involuntarily after death, and the 
 child is to be pronounced as having been born alive or dead 
 accordingly. 
 
 Fourth. When a person has died involved in debt to 
 the full amount of his property, it is not to be transferred 
 to his heir, but remains subject to the same conditions as 
 if it still belonged to him. If the debts should not absorb 
 the whole of his estate, so much of it as is required for the 
 payment of his debts remains subject to the same condi- 
 tions, while the surplus is to be transferred to his heirs. 
 
 Entire or 
 partial. 
 
 Entire — 
 the nearer 
 excludes 
 the more 
 remote. 
 
 Illustra- 
 tions. 
 
 Con- 
 tinued. 
 
 Section Third. 
 
 Exclusion from Inheritance. 
 
 Exclusion is either from the whole inheritance or from 
 a part of one's share. With regard to the first, the rule of 
 law is that respect is to be paid to nearness of blood to the 
 deceased. Thus the child of a child cannot inherit with a 
 child whether male or female, in so much that there is no 
 inheritance for a son's son, when there is only a daughter ; 
 whilst, when there are several children's children toge- 
 ther, the nearer of them always excludes the more remote. 
 Further, a child excludes all persons who are related to 
 the deceased through his parents, or one of them, — as bro- 
 thers and sisters and their children, grandfathers and their 
 parents, paternal and maternal uncles and aunts and their 
 children ; and none can participate with children in the 
 inheritance, except the immediate parents of the deceased 
 and a husband or wife. 
 
 Upon failure of parents and children of the deceased, 
 brothers and grandfathers succeed, a brother excluding the 
 
 10 Arab. Tukulloos. 
 
INTRODUCTORY. 271 
 
 child of a brother, and when there are several generations 
 together, in different degrees of descent, the nearer is 
 always preferred to the more remote. Further, brothers 
 and sisters and their children, however remote, exclude all 
 those who are related through grandfathers — as paternal 
 and maternal uncles and their children — but do not exclude 
 the parents of these grandfathers, for a grandfather, how 
 high soever, is always a grandfather, though when there 
 are several generations together, in different degrees of 
 ascent, the lowest in descent, or nearest to. the deceased, is 
 always preferred to the more remote. 
 
 Uncles, paternal or maternal, and their children, how Con- 
 low soever, exclude the paternal and maternal uncles of tinueo -- 
 the father, and, in like manner, the children of the father's 
 paternal or maternal uncles exclude the paternal and 
 maternal uncles of the grandfather. 
 
 Further, a person who is related to the deceased by the Full kins- 
 father only is excluded by one who is related to him by ™ ei l ex " 
 
 both father and mother, provided they are equal in class half by 
 
 j j father 
 
 and degree. only . 
 
 Lastly, a relation by blood, however remote, excludes an <j any 
 
 an emancipator ; and, in like manner, an emancipator, or blood re- 
 
 his representative in the inheritance of the freedman, eludes an 
 
 is preferred to the surety for offences, and the surety for eman ci- 
 offences is preferred to the Imam. 
 
 Partial exclusion, or the diminution of a share, is of Partial ex- 
 two kinds : exclusion by a child, and exclusion by brothers clusion - 
 and sisters. A child, how low soever, and whether male A child 
 
 or female, excludes the parents of the deceased from more * educes 
 
 . L . , the shares 
 
 than two-sixths of the estate, except in the case where, with of pa- 
 one daughter or two or more daughters, there is only one ren , ts ; f 
 parent ; and reduces the husband or wife from the highest husband 
 
 to the lowest share appointed for them respectively. Here a ^ e ' 
 ri . . w h° may 
 
 it may be observed that there are three states in which a be in 
 
 husband or wife may be with reference to the inheritance. st 1 j e 3 3 
 
 First, there may be a child in any degree of descent, and 
 
 in that case the share of the husband is a fourth, and that 
 
 of a wife an eighth. Second, there may be neither a child 
 
 nor any descendant of a child, and then the husband's 
 
212 INHERITANCE. 
 
 share is a half, and the wife's a fourth ; and these shares 
 can never he reduced by aid or increasing the divisor, 
 as aid is not recognized by us. Thirdly, there may be 
 neither an heir by blood nor any other by special connec- 
 tion, and in that event a husband has his half and the 
 remainder by virtue of the return or reversionary right, 
 while the widow is restricted to her fourth. Upon this 
 point, however, there are three different opinions. Accord- 
 ing to one of these, she takes the remainder by virtue of 
 reversionary right ; according to another it never reverts to 
 her ; while according to the third opinion, it reverts to her 
 on failure, that is, during the absence of the Imdm, u but 
 not if he is present. The right doctrine, however, is that 
 it never reverts to her. 
 Brothers With regard to exclusion by brothers and sisters, they 
 
 an< r prevent a mothers share from exceeding a sixth of the 
 
 sisters f . 
 
 reduce the inheritance upon four conditions. 
 
 mother s First. That they consist of two or more males, or one 
 
 share to a J 
 
 sixth, male and two females, or four females. 
 
 condi-^ Second. That they be neither infidels nor slaves. 
 
 tions. Whether a murderer would exclude is liable to doubt ; but 
 
 according to the most prevalent doctrine he would not. 
 Third. That the father of the deceased be in existence. 
 Fourth. That the brothers or sisters themselves be 
 either of the full blood, that is, connected with the deceased 
 by both parents, or be of the half blood on the father's side ; 
 as also according to the best founded opinion, that they exist 
 separate from the mother, not in her womb. Further, 
 the children of brothers and sisters have no effect in 
 excluding the mother or reducing her share ; nor of her- 
 maphrodites have less than four any such effect, from the 
 possibility of their all being females. 
 
 11 " By all the followers of the twelve Imams, Imam Mtjhtjdy, their 
 twelfth and last spiritual as well as temporal leader, is believed to be 
 still living, but to have retired from human observation since his last 
 appearance on earth." — Im. D., note p. 142. 
 
introductory. 273 
 
 Section Fourth. 
 
 Shares and their Combinations. 
 
 The shares are six in number : a half, a fourth, and Shares 
 an eighth, two-thirds, one-third, and a sixth. A half is p ersons 
 the share of a husband when there is no child nor de- for whom 
 scendant of a child how low soever, of a single daughter a iiot,ted. 
 and of a single sister of full blood, or of half on the father's 
 side. A fourth is the share of a husband when there is 
 a child or descendant of a child how low soever, and of 
 a widow when there is none of these. And an eighth is the 
 share of the widow when there is a child or descendant of 
 a child how low soever. 12 Two-thirds are the share of two 
 or more daughters, and of two or more sisters of the full 
 blood, or half blood on the father's side. A third is the 
 share of the mother when there is no child nor descendant 
 of a child, nor two brothers or sisters, to exclude or reduce 
 her share in manner before mentioned, and of two or more 
 children of the mother only, that is, half brothers or sisters 
 of the deceased on the mother's side. And a sixth is the 
 share of each one of the immediate parents of the deceased 
 when he has left a child or descendant of a child how low 
 soever ; and of his mother when he has left full brothers 
 or sisters or half brothers or sisters on the father's side, 
 the father himself being also in existence ; and also the 
 share of a single child of the mother only, that is a half 
 brother of the deceased on her side, whether the child be 
 male or female. 
 
 Of the above-mentioned shares, some are susceptible Shares 
 of combinations with others, and some are not. Thus, a an ^ ^° 
 half may be combined with its like, and with a fourth and not com- 
 an eighth ; but it does not combine with two-thirds, on o^ersT * 
 account of the nullity of the doctrine of the awl, the 
 deficiency in case of such a concurrence falling entirely 
 on the two or more sisters, to the entire immunity of 
 
 12 When there is more than one wife, the fourth or eighth, as the 
 case may be, is divisible among them equally. — Post, p. 294. 
 
 PART II. T 
 
274 
 
 INHERITANCE. 
 
 Usubat, or 
 lineal re- 
 latives, 
 when 
 equal in 
 degree to 
 sharers, 
 take the 
 residue. 
 
 The. Awl 
 not recog- 
 nized by 
 Slteeahs. 
 
 the husband. The half may also be combined with a 
 third and with a sixth. A fourth and an eighth do 
 not combine ; but a fourth may be combined with two- 
 thirds, one-third, and a sixth. An eighth combines 
 with two-thirds and a sixth ; but does not combine 
 with a third. A third does not combine with a sixth by 
 name. 13 
 
 Connected with this subject of shares and their com- 
 bination, are the two following rules : — First. There is no 
 room with us for succession by taaseeb or lineal right 14 so 
 long as there is any right by fureezut or appointment of 
 shares ; so that, when there is an equal in the case, but 
 one who has himself no share, he takes the surplus after 
 the others have had their portions, by virtue of kurabut, or 
 nearness of relationship to the deceased. Thus, suppose 
 that there are both parents and a husband or wife. Here, 
 the mother has a third of the estate, the husband or wife 
 his or her share, and the father 15 the surplus ; and, if there 
 were brothers also who would reduce the mother's share 
 to a sixth (without deriving any benefit themselves), she 
 would have that share, the husband a half, and the father 
 the remainder. So also in the case of both parents, a 
 son, and a husband, or of a husband and two half-brothers 
 on the mother's side, and a full brother or sister, or half 
 on the father's side. Further, if the lineal relative be 
 remote, he has no portion in the inheritance, and the 
 surplus reverts to the sharers, with exception of the 
 husband and wife ; as, for instance, when there are both 
 parents, or one of them and a daughter and a brother or 
 paternal uncle. 
 
 Secondly. The awl is null or not recognized with us. 
 The occasion for it arises only in consequence of conflict 
 between the claim of a husband or wife with the claims of 
 the other heirs, and in cases of that kind the loss falls 
 
 13 p or examples of the above combinations, see post, p. 382. 
 
 14 That is, for the succession of Usubat, as such, according to 
 the Hanifites. 
 
 15 The father, though sometimes a sharer, is here only a resi- 
 duary, his share being merged in the residue. 
 
INTRODUCTORY. 275 
 
 upon the father, 16 or the daughter or daughters, or a sister 
 or sisters related by both parents, or on the father's side 
 only, to the exception of those who are related only 
 through the mother ; as, for instance, when the deceased 
 has left a husband, both parents, and a daughter, or a 
 husband, one parent, and two or more daughters, or a 
 widow, both parents, and two daughters, or a husband 
 with relatives on the mother's side, and a sister or sisters 
 by father and mother or by the father only. 17 
 
 16 So in the original ; but in pp. 263, 395, the deficiency is said to 
 fall only on the daughters, or sisters by full or half-blood, without 
 any mention of the father. 
 
 17 These cases will be found on p. 396. 
 
 t 2 
 
276 
 
 INHERITANCE. 
 
 Three 
 
 classes : 
 
 Class 
 
 First, 
 
 Parents 
 
 and 
 
 children. 
 
 Parents 
 when 
 there are 
 no chil- 
 dren. 
 
 Children 
 when 
 there are 
 no pa- 
 rents. 
 
 Parents 
 and 
 
 children 
 together. 
 
 With a 
 husband 
 
 or wife. 
 
 CHAPTER II. 
 
 OF INHERITANCE BY " NUSUB " OR CONSANGUINITY. 
 
 This comprises three classes or series of persons. The 
 first class comprehends the father and mother of the 
 deceased and his children. 
 
 If the father be alone, the whole property is his ; and 
 if the mother be alone, a third of the property is hers in 
 right of her share, and the remainder by virtue of the 
 return or reversionary right. If the deceased has left both 
 his parents and no children, his mother has a third, and 
 his father the remainder. But if there are also brethren 
 of the deceased, the share of the mother is reduced to a 
 sixth, and the father has the remainder, while the brethren 
 have nothing. 
 
 If the son be alone, the whole property is his ; and if 
 there are more sons than one, it is divided equally among 
 them. If a daughter be alone, half the property is hers 
 in right of her share, and the remainder by virtue of the 
 return. If there are two or more daughters, they have 
 two-thirds as their share, and the remainder by the return. 
 When there are children of both sexes, the portion of each 
 male is double that of a female. 
 
 When parents are combined with children, or when 
 one parent is combined with children, each parent or the 
 single parent, as the case may be, has a sixth, and the 
 children have the remainder equally if they are all males, 
 and if there is a female or females among them, each male 
 has the portions of two females. And if the deceased has 
 left a husband or wife with parents and children, the 
 husband or wife takes the lowest share appointed for them 
 
INHERITANCE BY NUSUB OR CONSANGUINITY. 277 
 
 respectively, and the parents in like manner, and the 
 remainder goes to the children. When with the parents 
 there is only one daughter, the parents have two-sixths, the 
 daughter a half, and the remainder reverts to them all in 
 fifths. 1 But if there be also brethren of the deceased on 
 the father's side, the remainder reverts to the father and 
 daughter in fourths. 2 If there is a husband with the 
 parents and daughter, the husband takes the smallest 
 share to which he is entitled ; so also do the parents, and 
 the daughter has the remainder. 3 While, if for the hus- 
 band we substitute a wife, each sharer takes his or her share, 
 and the remainder reverts to the parents and daughter, 
 to the exclusion of the wife. But if there were brethren, 
 the remainder would revert to the daughter and the father 
 in fourths. 4 If there is only one of the parents with a 
 daughter, the property 5 belongs to them both in fourths ; 
 and if there is a husband or wife with them, the surplus 
 reverts to the daughter and the single parent, to the ex- 
 clusion of the husband or wife. When there are two or 
 more daughters, the parents have two-sixths, and the two 
 or more daughters two-thirds equally divided among them. 
 If to these we suppose a husband or wife to be added, he 
 or she would take the lowest share appointed for them 
 respectively, the parents would have two-sixths, and the 
 two or more daughters the remainder; while, if there is 
 only one parent, he or she would have a sixth, the two or 
 more daughters have two-thirds, and the remainder reverts 
 to them in fifths ; and if there were a husband also, the 
 deficiency would fall on the two or more daughters. If 
 
 1 That is, one-fifth of it to each parent, and three-fifths to the 
 daughter. 
 
 2 One to the father and three to the daughters, in proportion to 
 their original shares. 
 
 3 Here there is a deficiency of one-twelfth, which falls on the 
 daughter. — See ante, p. 263. 
 
 4 Because brethren reduce the mother to a sixth. — See ante, 
 p. 272. 
 
 5 Arab. Mai. Here it matters not whether the whole property 
 or the remainder be mentioned, for they are divisible in the same 
 proportions. 
 
278 
 
 INHERITANCE. 
 
 Children's 
 children 
 represent 
 their 
 parents ; 
 
 but are 
 excluded 
 by im- 
 mediate 
 children, 
 
 and the 
 nearer 
 genera- 
 tions of 
 them ex- 
 clude the 
 more 
 remote. 
 
 again there were a widow, she would have her share, 
 which would be an eighth, and the remainder would pass 
 to the single parent and the daughters in fifths. But if 
 there is a husband with both parents, he would have a 
 half, the mother a third of the original estate, and the 
 father the remainder ; while, if we suppose brethren to be 
 added to these, the mother's share would be only a sixth, 
 while the father would still have the remainder. If with 
 both parents there is a widow, she has a fourth, the mother 
 a third of the original, if there are no brethren, or a sixth 
 if there are, and the father the remainder. 
 
 Miscellaneous Cases. 
 
 First. When there are no immediate children of the 
 deceased, the children of his children represent their own 
 parents, dividing the property with the immediate parents 
 of the deceased. It seems to have been once made a con- 
 dition of the succession of children's children that there 
 should be a failure of both the parents of the deceased ; 
 but this opinion is now exploded, and has been abandoned. 
 But children prevent the succession of every one connected 
 with the deceased through them, and also of every one con- 
 nected with him through his parents, as his brethren and 
 their children, his grandparents and more remote ancestors, 
 and his paternal and maternal uncles and their children. 
 And all the descendants of the deceased are so arranged 
 that the nearest to him is nearest also in succession to his 
 property; so that one generation does not inherit with 
 another that is nearer than it to the deceased, and each 
 person inherits the portion of the person through whom 
 he is connected with the deceased. Hence, the child, 
 whether male or female, of a daughter inherits her portion 
 (which is a half if she was alone or in conjunction with 
 both parents), and the remainder reverts to such child in 
 the same way as it would have done to her mother if she 
 were alive; and the child, whether male or female, of a 
 son inherits the whole property if he was alone, and the 
 surplus, after deducting the shares of other heirs, if there 
 were any in conjunction with him, as, for instance, 
 
INHERITANCE BY NUSUB OR CONSANGUINITY. 279 
 
 parents, or one of them, and a husband or wife. If there 
 are only children of a son and children of a daughter, the 
 former take two-thirds of the property, and the latter one- 
 third, according to the best-founded doctrine. And if the 
 deceased should have left a husband or wife, he or she 
 would take the lowest share appointed for them respect- 
 ively, while of the remainder, a third would pass to the 
 children of the daughter, and two-thirds to the children of 
 the son. 
 
 Second. In the division of a daughter's share among Children 
 her children a male takes the portion of two females, in ^^^j. 
 the same way as in the division of a son's share among his take in 
 children. But it has been said that a daughter's children p0 ^^" f 
 
 share her portion equally. This opinion, however, is now two shares 
 
 , -, -. to a male 
 
 abandoned. and one t0 
 
 Third. The following things are to be given to the a female, 
 eldest child of the deceased out of his property, viz. his body Pm ^°' re 
 clothes, his ring, his sword and his Koran ; and he is liable how far 
 for the payment or fulfilment of his unperformed prayers ^^" 
 and fasts. Among the conditions of his right to these 
 things it is required that he be neither a prodigal, nor 
 deficient in understanding according to the approved opi- 
 nion, and that the deceased should have left some other 
 property besides them ; for if he has not, the eldest child 
 has no special right to them. And if the eldest child be 
 a female, they are to be given to the eldest male. 
 
 Fourth. The grandfather and grandmother have no Grand- 
 right to any part of the deceased's estate when he is sur- p ^™ c | S be 
 vived by either of his immediate parents ; but it is proper maintain- 
 and becoming that a sixth of the original property should the°sha°res 
 be bestowed on them when the parent's own portion exceeds of imme- 
 that amount ; as for instance, when the deceased has left paren t s 
 both parents, with a paternal and maternal grandfather 
 and grandmother, his mother, having a third of the pro- 
 perty, should bestow a half of her portion on his grand- 
 father and grandmother equally, or if there is only one of 
 them give the whole of the half to that one ; and the father 
 having two-thirds should bestow a sixth of the original 
 property on the grandfather and grandmother equally, or 
 
280 
 
 INHERITANCE. 
 
 Class 
 second — 
 Brethren 
 and 
 grand- 
 parents. 
 
 Full 
 brothers 
 and sis- 
 ters. 
 
 Half- 
 brothers 
 and sisters 
 on the 
 father's 
 side. 
 
 On the 
 
 mother's 
 
 side. 
 
 if there is only one of them give the whole of the sixth to 
 that one. If one of the parents should obtain only a sixth 
 of the inheritance and no more, while the other obtains a 
 sixth and something in excess of it, the duty of maintaining 
 the grandparents falls upon the latter to the exclusion of 
 the former. And, if the deceased has left both parents and 
 brethren, the maintenance of the grandparents is incum- 
 bent on the father alone and not on the mother ; while if 
 the deceased is survived by both parents and a husband, 
 the duty of maintaining the grandparents falls on the mo- 
 ther exclusively of the father. The paternal grandfather 
 and paternal grandmother have no claim to maintenance 
 except in the case of the deceased being survived by his 
 father, nor the maternal grandfather or maternal grand- 
 mother any claim to maintenance except in the case of 
 the deceased being survived by his mother. 
 
 The second class of consanguineous heirs comprehends 
 brethren and grandparents. 
 
 When a full brother stands alone without any other 
 heirs, he has the whole property. When there is another 
 full brother or brothers with him, the property is equally 
 divided amongst them. If among the brethren there is a 
 female or females, each male takes two portions and each 
 female one portion. If there is a full sister and no other 
 heirs, she takes a half of the property as her share, and the 
 remainder reverts to her by the return ; while if there are 
 two or more full sisters alone, they take two-thirds of the 
 property in the first instance, and the remainder reverts 
 to them in like manner. 
 
 When there are no full brothers or sisters, the half- 
 brothers and sisters on the father's side come into their 
 place. And the rule for them, when single or several, is 
 the same as is applicable to the full brothers and sisters in 
 like circumstances. No brother or sister on the father's 
 side only can inherit with a full brother or sister, by reason 
 of the union of two causes of inheritance in the latter. 
 
 When a child of the mother only, that is, a half-brother 
 or sister of the deceased on her side, stands alone without 
 any other heir, the child, whether male or female, takes a 
 
INHERITANCE BY NUSUB OR CONSANGUINITY. 281 
 
 sixth first, and then the remainder by the return ; and if 
 there are two or more such children, they take a third 
 equally divided among them, whether they be males or 
 females, or males and females. 
 
 If there are brethren of different kinds, those con- Full 
 nected by the mother only take a sixth if there is only one or j^ ' 
 such, or a third if there are two or more, the third being on the 
 equally divided among them in that case ; and those con- s ^ e witll 
 nected by father and mother take two-thirds, whether half on 
 there be one or more ; but if there is only one, and that ther'sside. 
 one a female, she has a half of the two-thirds by appoint- 
 ment, and the remainder by the return ; while if there are 
 two or more, and they are females, they take two-thirds 
 by appointment, and the surplus, if any, 6 by the return. 
 Again, if those connected by the father be males, the 
 remainder, after satisfying the portions of those connected 
 by the mother only, belongs to them equally ; while if 
 there are both males and females, the division among them 
 is in the proportion of two shares to each male, and one 
 share to each female. 
 
 The grandfather when alone takes the whole property, Grand- 
 wh ether he be on the father's or mother's side. So also P arents - 
 the grandmother. And if there is a grandfather or grand- 
 mother, or both, on the mother's side, together with a 
 grandfather or grandmother, or both, on the father's side, 
 those connected through the mother take a third in equal 
 portions, and those connected by the father take two-thirds 
 in the proportion of two parts to a male and one part to a 
 female. 
 
 When a maternal grandfather and grandmother, or one Grand- 
 of them, is combined with half-brethren on the mother's ^ n n s 
 side, the grandfather is as a brother and the grandmother brothers 
 as a sister, and the mother's third is divided among them 
 all equally. And in like manner, when a paternal grand- 
 father and grandmother, or one of them, is combined with 
 a sister, or two or more sisters, by father and mother, or 
 by the father's side only, the grandfather is as the brother, 
 
 6 As there would be with only one half-brother or sister. 
 
282 
 
 INHERITANCE. 
 
 Husband 
 or wife 
 with 
 brethren. 
 
 Great • 
 grand- 
 parents 
 inherit 
 
 and the grandmother as the sister, and the remainder, 
 after satisfying the relatives connected by the mother, is 
 divided among them in the proportion of two parts to the 
 male for one part to the female. 
 
 The husband and wife take the largest shares appointed 
 for them respectively, when they are combined with bre- 
 thren, whether the brethren agree or differ as to the side of 
 their connection with the deceased ; those on the mother's 
 side taking their appointed portions of the original estate, 
 and the surplus passing to those connected by father and 
 mother, or failing them, to those connected through the 
 father only. The deficiency, if any, falls on the portions 
 of the full brethren or of those connected only by the 
 father ; as when the deceased has left a husband with a 
 half-brother or sister on the mother's side, and a full 
 sister ; and if there is a surplus, as when there is only 
 one on the mother's side and a sister by both father and 
 mother, the surplus goes to her alone. But if instead of a 
 sister by both father and mother there were a sister by the 
 father only, would she also have this special right to the 
 surplus after satisfying the shares ? The question has 
 been answered in the affirmative, because the deficiency, 
 if there is any, by reason of the contending claims of a 
 husband or wife, falls upon her, and also by reason of 
 what is reported from Aboo Jaafer, on whom be peace, in 
 the case of the son of a half-sister by the father and the 
 son of a half-sister by the mother, in which he said, " A 
 sixth to the son of the sister by the mother, and the 
 remainder to the son of the sister by the father." But the 
 report is weak, and it has also been maintained that 
 the surplus should revert to those connected through the 
 mother, and to the sister or sisters on the father's side, 
 in fourths or fifths, as there may be one or more of them, 
 on account of the equality of degree ; and this opinion is 
 preferred. 
 
 Miscellaneous Cases. 
 
 First. A grandfather though remote participates with 
 brethren when there is none lower than him or nearer to 
 
INHERITANCE BY NUSUB OR CONSANGUINITY. 283 
 
 the deceased : but if there are grandfathers in different with 
 degrees of ascent in combination with brethren, the lower ^ ei ^ e 
 participate and the higher are excluded. there are 
 
 Second. When the deceased has left a paternal grand- p° r f ^ " 
 father and grandmother of his father, and a maternal Great- 
 grandfather and grandmother of his father, and the like grand- 
 of his mother, her grandparents have a third of the pro- paternal 
 
 perty in fourths, and the grandparents of the father have and 
 
 r J ' ° L maternal. 
 
 two-thirds of it between them m thirds, two of these being 
 
 for his grandparents on the father's side in the proportion 
 
 of two parts to a male and one to a female, and the other 
 
 of them being for his grandparents on the mother's 
 
 side, according to what has been reported by the Sheikh, 
 
 on whom may God have mercy. So that the original 
 
 number of shares, or three, has to be divided among two 
 
 classes, and four must be multiplied by nine, and the 
 
 product, or thirty-six, again multiplied by three, which 
 
 will give one hundred and eight as the number of parts 
 
 into which the estate must be divided in order to give 
 
 the several parties their respective portions without a 
 
 fraction. 7 
 
 Third. When there is a half-brother by the mother, Ahalf- 
 
 and the son of a full brother, the former has the whole of tl ™ m e Q r _ y 
 
 the inheritance because he is nearer to the deceased. But ther pre- 
 
 Ibn Shazan maintains that he ought to have only a sixth, a full 
 
 and the son of the full brother the remainder, by reason brother's 
 
 of the junction of two causes of inheritance in his case. 
 
 The reason, however, is weak, for the rule with regard to 
 
 the junction of several causes has effect only when accom- 
 
 7 The 108 parts are thus apportioned : — One-third, or thirty-six 
 parts, to the grandparents of the mother (being nine to each of the 
 four), and two-thirds, or seventy-two parts, to those of the father. 
 Of these seventy-two, one-third, or twenty-four, go to the father's 
 grandparents on the mother's side, among whom, being equally 
 divided, they give twelve to each ; and two-thirds, or forty-eight, go 
 to his grandparents on the father's side, but must further be divided 
 between them, giving two-thirds, or thirty-two, to the grandfather, 
 and sixteen to the grandmother. If these are all collected, it will be 
 found that they make the exact sum of 108. 
 
281. 
 
 INHERITANCE. 
 
 Brothers 
 and sis- 
 ters repre- 
 sented by 
 their chil- 
 dren. 
 
 And on 
 failure of 
 children 
 of full 
 brethren, 
 those of 
 the half 
 on the 
 father's 
 side come 
 into their 
 place. 
 
 parried with equality of degree, 8 and does not operate when 
 the degrees differ. 
 
 Fott rtlt. On failure of brothers and sisters their chil- 
 dren come into their places, and each one among them 
 inherits the portion of the person through whom he is 
 connected with the deceased. If there be only one, he 
 takes the whole of the portion, or if there be several and 
 they are all males or all females, they take the portion 
 equally between them ; but if they are partly male and 
 partly female, the division between them is in the propor- 
 tion of two shares to a male for one to a female, unless 
 they are children of half-brethren on the mother's side, 
 when the division among them is also equal. And the 
 children of a brother take the remainder, like their father ; 
 the children of a full sister take a half, that is, the share 
 of their mother, but take nothing by way of return ; and 
 the children of two or more sisters have two-thirds, except 
 when there is a deficiency of property by reason of the 
 concurrence of a husband or wife, when they have the 
 remainder, as happens to those who are connected with 
 the deceased through his father. 
 
 If there are no children of full brethren the children of 
 half-brethren by the father come into their place ; and the 
 children of a half-brother or sister on the mother's side 
 have a sixth ; while if there are children of both they have 
 a third, each set taking the share of the person through 
 whom they approach to the deceased, and dividing it 
 among themselves equally. If there are children of 
 brethren of different kinds, the children of half-brethren 
 on the mother's side take a third, and the children of full 
 brethren take two-thirds, while the children of half-brethren 
 by the father are entirely excluded. If in combination 
 with them there is a husband or wife, these take respectively 
 the largest share appointed for them ; and those connected 
 through the mother only take a third if they are more than 
 one, or a sixth if only one, and the remainder goes to the 
 full brethren whether it be more or less, or, failing them, 
 
 See p. :!.'5l\ 
 
INHERITANCE BY NUSUB OR CONSANGUINITY. 285 
 
 to the children of brethren connected through the father 
 only, though as to the more there is some doubt, as has 
 been already said. And if grandfathers are combined with 
 them, they divide the estate with them, as they do with 
 brethren, as already explained. 
 
 The third class of consanguineous heirs are the Class 
 paternal and maternal uncles and aunts of the deceased. H 1 ^ ^ : 
 A paternal uncle, when he stands alone without other and aunts, 
 heirs, inherits the whole property. So also do two or ^ oma 
 more such uncles in the like circumstances, dividing it maternal, 
 equally among them. The same is true with regard to 
 one or more paternal aunt or aunts. When there are 
 paternal uncles and aunts together, each male has the 
 portion of two females. When they are of different kinds, 
 the half paternal uncle or aunt on the mother's side has 
 a sixth, or if there is more than one, a third, males and 
 females taking equally, and the remainder goes to the full 
 paternal uncle or uncles, and aunt or aunts, in the pro- 
 portion of two shares to a male for one to a female ; half 
 paternal uncles and aunts on the father's side being entirely 
 excluded by full paternal uncles and aunts, and coming 
 into their place when there are none. 
 
 The son of a paternal uncle does not inherit with a Paternal 
 
 paternal uncle, nor anv one who is more remote from the unc ! e e *- 
 \ -..,..," . . . eludes the 
 
 deceased inherit with one who is nearer to him, except m son of 
 
 one case, which is that of the son of a full paternal uncle one * 
 
 with a half paternal uncle on the father's side, when the 
 
 former is preferred while the case remains exactly so ; but 
 
 if it is changed by the addition of a maternal uncle the son 
 
 of the paternal uncle is excluded. 
 
 A maternal uncle when he stands alone without other Maternal 
 
 heirs has the whole property. So also have two or more unc } cs 
 
 1 . l ■; and aunts. 
 
 maternal uncles ; and in like manner a maternal aunt, 
 or two or more maternal aunts. When there are both 
 maternal uncles and aunts, there is no distinction in 
 favour of the male sex and all share alike. But if they are 
 of different kinds, those connected through the mother only 
 have a sixth if single, or a third if there are several of them, 
 males and females sharing alike, and the remainder passes 
 
28G 
 
 INHERITANCE. 
 
 Paternal 
 
 and 
 
 maternal 
 
 uncles 
 
 and aunts 
 
 combined. 
 
 Paternal 
 and 
 
 maternal 
 grand- 
 uncles 
 and aunts 
 combined. 
 
 to the full maternal uncles and aunts in the proportion of 
 two parts to a male and one to a female ; the half maternal 
 uncles and aunts on the father's side being excluded by 
 them or coming into their place when there are none. 
 
 If there are both paternal and maternal uncles or aunts, 
 the maternals take a third, even if there is only one of 
 them, and whether male or female, and the paternal s two- 
 thirds, even though there is only one of them, and whether 
 male or female. If the maternals are of one kind, a male 
 has the portion of two females. But if they are of different 
 kinds, those connected by the mother only take a sixth of 
 the third if single, or a third of it if there are more than 
 one in equal shares, and the remainder of the third goes to 
 those among them who are connected by both father and 
 mother, and the paternals take the remaining two-thirds, 
 in the proportion of two parts to a male for one to a female, 
 if they be all on the same side ; and if they be of different 
 sides, then those connected by the same mother only take 
 a sixth if single, or a third if two or more equally between 
 them ; and the remainder of the two-thirds goes to the full 
 paternal uncles, in the proportion of two parts to a male 
 for one to a female ; and those of them who are connected 
 by the father only are entirely excluded except on failure 
 of those connected through both father and mother. 
 
 When a paternal and maternal uncle and aunt of the 
 father, and a paternal and maternal uncle and aunt of the 
 mother are combined, it is said, in the Nihaijah, that 
 those connected through the mother only have a third 
 equally between them ; and those connected through the 
 father have two-thirds, one being fcr his maternal uncle 
 and aunt equally, and two-thirds for his paternal uncle and 
 aunt in the proportion of two parts to a male for one to a 
 female ; so that the original number of shares, or three, 
 being divisible among two classes, four must be multiplied 
 by nine, and the product, or thirty-six, again multiplied 
 by three, which will give oue hundred and eight, as the 
 number of parts into which the estate must be divided to 
 give the several parties entitled their respective portions 
 without a fraction. 
 
INHERITANCE BY NUSUB OR CONSANGUINITY. 287 
 
 Miscellaneous Cases. 
 
 First. Paternal uncles and aunts of the deceased and Uncles 
 their children, how low soever, and maternal uncles and ^ their* 
 aunts of the deceased and their children, how low soever, children 
 have a better right to his succession than the paternal and t^o-rand- 
 maternal uncles and aunts of his father, and the paternal uncles 
 and maternal uncles and aunts of his mother, because his 
 own uncles and aunts are nearer to him in degree, and 
 their children come into their places. When there is a 
 failure of full paternal and maternal uncles and aunts of 
 the deceased and of their children, how low soever, the 
 paternal and maternal uncles and aunts of his father, and 
 the paternal and maternal uncles and aunts of his mother 
 and their children, how low soever, come into their places ; 
 and so on to other ascending generations, the lower gene- 
 ration being always preferred to the higher. 
 
 Second. The children of uncles and aunts on different Children 
 
 sides take the shares of their parents : so that the sons of take . tne 
 
 . . portions 
 
 a half paternal uncle on the mother's side take a sixth ; of their 
 
 and if there are sons of two such uncles, they take a third, P arents - 
 
 while the sons of the full paternal uncle and aunt have the 
 
 remainder. And the same rule is applicable to the sons 
 
 of maternal uncles and aunts. 
 
 Third. When two causes of inheritance combine in the When two 
 
 same person, he inherits by virtue of both, if one of them combine 
 
 does not counteract or impede the operation of the other ; in one 
 
 as in the case of a son of a half paternal uncle on the ^ rh0n ie 
 
 father's side, who is also the son of a half maternal uncle inherit by 
 
 on the mother's side, or the son of a paternal uncle who ° ' 
 
 is also the husband, or the daughter of a paternal uncle 
 
 who is also the wife, or a half paternal aunt on the father's 
 
 side who is also a half maternal aunt on the mother's side. 
 
 If one of the causes is an impediment to the operation of 
 
 the other, the person in whom they combine inherits by 
 
 virtue of the impeding cause, as in the case of the son of a 
 
 paternal uncle who is also a brother, and inherits by virtue 
 
 of brotherhood alone. 
 
288 
 
 INHERITANCE. 
 
 Husband 
 or wife 
 combined 
 with 
 uncles 
 and aunts 
 have their 
 highest 
 shares. 
 
 Children 
 of ma- 
 ternal 
 uncles 
 and aunts 
 when 
 combined 
 with a 
 husband 
 or wife 
 follow the 
 same rule 
 as their 
 parents. 
 
 Fourth. When there is a husband or wife with maternal 
 uncles and aunts and paternal uncles and aunts, the hus- 
 band or wife takes the highest share appointed for them 
 respectively, and those connected by the mother have their 
 original share of the inheritance, while the remainder goes 
 to those who are connected both by father and mother ; 
 or failing them, to those connected through the father only. 
 
 Fifth . The rule for the children of maternal uncles and 
 aunts combining with the husband or wife is the same as 
 the rule for the uncles and aunts themselves in that com- 
 bination. Thus, if there is a husband or wife with sons of 
 a maternal uncle, and also sons of a paternal uncle, the 
 husband or wife takes his or her appointed share, and the 
 sons of the maternal uncle have a third of the original 
 estate, while the remainder passes to the sons of the 
 paternal uncle. 
 
( 289 ) 
 
 CHAPTER III. 1 
 
 OF THE ACKNOWLEDGMENT OF NUSUB. 
 
 This comprehends the following cases : — 
 
 First. The acknowledgment of a young child's niisub 
 is not established unless the sonship be possible, the child 
 unknown, and there is no one who disputes it with the 
 acknowledger. The acknowledgment is restricted by these 
 three conditions, so that, if the person acknowledged be 
 older than the acknowledger, or his equal in age, or only 
 so much younger than him that the difference between 
 their ages is less than is usual between parent and child 5 
 the acknowledgment cannot be accepted. So, also, if one 
 should acknowledge the child of a woman belonging to 
 him, between whom and himself there has been such a 
 distance as to preclude his having access to her during the 
 like of the child's age, 2 or if the child be of known nusub, 
 the acknowledgment cannot be accepted. In like manner, 
 if there is any one who disputes the sonship of the child 
 with the acknowledger, the acknowledgment cannot be 
 received without proof. The assent of a young child is 
 of no importance. But should not some regard be had 
 to the assent of the person acknowledged when he is 
 adult ? Apparently not, according to what the Sheikh has 
 said in the Nihayah; but otherwise, according to what he 
 has said in the Mubsoot, and is most agreeable to the 
 general principles of the law. So that, if the adult should 
 
 1 This short chapter has heen introduced here from the Book of 
 Ikrar, or acknowledgment. — Sliuraya, p. 376. 
 
 2 Oomr. The words which I have translated literally seem to 
 indicate access, at or about the time of the child's conception. 
 
 PART II. U 
 
 Three 
 conditions 
 necessary 
 to esta- 
 blish the 
 acknow- 
 ledgment 
 of a young 
 child. 
 
 Its assent 
 of no im- 
 portance. 
 
 Otherwise 
 when the 
 person 
 acknow- 
 ledged is 
 adult. 
 
290 
 
 INHERITANCE. 
 
 And as- 
 sent of the 
 person 
 acknow- 
 ledged 
 essential 
 in the case 
 of any 
 other 
 relation. 
 
 Acknow- 
 ledgment 
 not de- 
 feated by 
 child's 
 denial on 
 attaining 
 puberty. 
 
 If the 
 child of a 
 deceased 
 person 
 acknow- 
 ledges 
 another to 
 be his 
 child, and 
 they both 
 acknow- 
 ledge a 
 third, his 
 nusub is 
 esta- 
 blished. 
 
 An heir to 
 a deceased 
 person 
 who ac- 
 know- 
 ledges 
 another to 
 
 deny the nitsub, it is not established. And it is quite clear 
 that the nusub of any other than a child cannot be esta- 
 blished by acknowledgment, without the assent or concur- 
 rence of the person in whose favour it is made. When 
 the acknowledgment is of any other than a child of the 
 loins, and the acknowledger has no other heirs, and the 
 person acknowledged has assented to the truth of the 
 acknowledgment, mutual rights of inheritance are esta- 
 blished between the parties ; so, however, as not to affect 
 the rights of others than themselves. And if the acknow- 
 ledger has any known heirs, his acknowledgment of nusub 
 is not to be accepted. 
 
 Second. When a person has acknowledged a young 
 child as his offspring, and the nusub is established, but 
 is subsequently denied by the child on his attaining to 
 puberty, no regard can be had to his denial, because the 
 nusvb had already been established previously to it. 3 
 
 Third. When the child of a deceased person has 
 acknowledged another to be his child also, and the two 
 then concur in acknowledging a third, the nusub of the 
 third is established, provided that the two first are just or 
 righteous persons ; but if the third should deny the second, 
 the nusub of the second would not be established, and the 
 third would take half the estate, the first a third, and the 
 second a sixth, being the complement of the share of the 
 first. If, again, the two first were of known nusub, and 
 should both acknowledge the third, his nusub would be 
 established, provided the two were just or righteous per- 
 sons ; and though the third should deny the nusub of either 
 of the other two, no regard should be had to his denial, 
 and the estate of the deceased must be divided among 
 them all in thirds. 
 
 Fourth. If a deceased person has left brothers and 
 a wife, and the wife acknowledges a child to be his, her 
 share of the estate is only an eighth ; and if the brother 
 should assent to her acknowledgment, the whole of the 
 
 3 This reason would apply equally to a suhsequeut denial by the 
 acknowledger himself. 
 
THE ACKNOWLEDGMENT OF NUSUB. 291 
 
 remainder would go to the child, to their own entire ex- be nearer 
 elusion. In like manner, every one who is in appearance leased 
 an heir, and acknowledges another person to be nearer to must sur- 
 the deceased than himself, must surrender to such person proper t y 
 the whole of whatever may be in his hands that belonged to him. 
 to the.deceased. But if the person acknowledged is equal 
 in degree to himself, he has only to surrender out of his 
 own share a due proportion for the share of the person so 
 acknowledged. If the brothers in the supposed case 
 should deny the person acknowledged by the wife, they 
 would take three-fourths of the property, and the remainder 
 of her share would go to the child. 
 
 Fifth. When a youth 4 of unknown nusub has died, and Acknow- 
 a person acknowledges him to have been his son, the nusuh of C f ment 
 is established, whether he were of tender age or more deceased 
 advanced, 5 and whether he has left any property or not. ^known 
 Accordingly, his inheritance belongs to the acknowledger ; nusub 
 and the case is not affected by any suspicion that may thYac- S 
 attach to his motives in such circumstances, as it would be know- 
 if the person were alive and had property. In the case of to £ is 
 a deceased person, the absence of assent is of no import- heritage, 
 ance, even though he were adult, for, being dead, he comes 
 within the meaning of the case of a little child. So also, 
 if a person should acknowledge an insane person to be his 
 son, the absence of his assent is of no consequence, as no 
 regard can be had to the words uttered by a person in such 
 circumstances. 
 
 Sixth. When a female slave has borne a child, and her Case of an 
 
 master acknowledges the child to be his son, it is affiliated i er i "meiit 
 
 to him, and adjudged to be free, provided that the woman by a 
 
 has no husband. And if a man should acknowledge as tne c y,ii c i 
 
 his son the child of one of his slaves, particularizing: the of one of 
 
 . his female 
 
 child, he is in like manner to be affiliated to the acknow- s i ave s. 
 
 ledger ; and if another of his slaves should allege that it 
 
 was her child which he acknowledged, the question is to 
 
 be determined by the word and oath of the acknowledger. 
 
 4 Subee. 
 
 5 The word in the original is hubeer ; but its usual meaning, 
 adult, is inconsistent with his being a subee. 
 
 v 2 
 
292 
 
 INHERITANCE. 
 
 When the 
 slave has 
 several 
 children 
 and the 
 acknow- 
 ledgment 
 is only of 
 one of 
 them. 
 
 Two male 
 witnesses 
 required 
 to esta- 
 blish a 
 case of 
 nusub. 
 
 Testimony 
 of two 
 brothers 
 of a de- 
 ceased 
 person in 
 favour of 
 a child 
 sufficient 
 to esta- 
 blish its 
 mi sub. 
 
 Acknow- 
 ledgment 
 of the heir 
 of a 
 
 deceased 
 person of 
 two others 
 as prefer- 
 able to 
 himself, 
 does not 
 establish 
 their 
 nusub but 
 
 If he should die without particularizing the child, the 
 Sh&ikh has said that the heir should specify some one in 
 particular, and that, if he should refuse to do so, the 
 question must be determined by casting lots. But it were 
 better to say that recourse should be had to lots absolutely, 
 that is, without any such distinction, when the acknow- 
 ledger himself has died without particularizing the child. 
 
 Seventh. If a person having three children by a slave 
 should acknowledge one of them to be his son, then, 
 whichever of them he may particularize as the one in- 
 tended, would be free, and the others be slaves ; and if 
 there should be any doubt as to the individual particu- 
 larized, or the acknowledger should die without particu- 
 larizing any of them, the individual must be determined 
 by casting lots. 
 
 Eighth. The testimony of two just or righteous men is 
 required for the establishment of a case of nusub. The 
 testimony of one man and two women is not sufficient 
 for the purpose according to the most approved opinion. 
 Nor can it be established by the testimony of one man and 
 an oath ; nor by the testimony of two profligates, even 
 though they should be heirs to the deceased. 
 
 Ninth. If two brothers, being just persons, should 
 testify to another being a son of the deceased, his ntisub 
 and right to the inheritance would be established, but there 
 would be no reciprocity ; and if the brothers are profli- 
 gates, though his nusub would not be established, he would 
 still have a right to the inheritance in preference to them. 
 
 Tenth. If a person should acknowledge two heirs of a 
 deceased person preferable to himself, and each of them 
 should assent for himself, their nusub would not be esta- 
 blished, but they would still have a right to the inheri- 
 tance, and he must surrender to them whatever may have 
 come to his hands that belonged to the deceased ; and 
 though they should mutually deny as between themselves, 
 that is, each deny the right of the other, no regard is to 
 be had to their denial. If again, a person should acknow- 
 ledge an heir preferable to himself, and then acknowledge 
 another preferable to them both, and the person first 
 
THE ACKNOWLEDGMENT OF NUSIJB. 293 
 
 acknowledged should assent to or confirm the latter obliges 
 acknowledgment, any property which belonged to the g^J^de 
 deceased in the hands of the acknowledger must be sur- the pro- 
 rendered to the person secondly acknowledged. But if j^em ° 
 the person first acknowledged should refuse his assent to 
 the second acknowledgment, the property must be surren- 
 dered to the person first acknowledged, and the acknow- 
 ledger become debtor to the person secondly acknow- 
 ledged. Where the person secondly acknowledged is equal 
 in degree to the person first acknowledged, and the latter 
 has refused his assent to the second acknowledgment, the 
 acknowledger must make over to the person secondly 
 acknowledged a similar half of what was obtained by the 
 first. 
 
 Eleventh. If a person should acknowledge another as An heir 
 
 the husband of a deceased woman who has left a child, he f^?^ 
 
 leclgmg 
 
 must give up a fourth of his own share, or a half if there another 
 be no child, to the person so acknowledged ; and if he husband 
 should then acknowledge another husband, the acknow- or wife of 
 ledgmenfc could not be received. If the person first cease( j" 
 acknowledged should negative the acknowledgment in must give 
 his favour, he would make the acknowledger debtor to adequate 
 the person secondly acknowledged for a similar of what portion of 
 the first acknowledger may have obtained. If again, a s hare. 
 person should acknowledge a woman to be the wife of 
 one deceased, who has also left a child, he must give up 
 to her one-eighth of whatever may be in his hands, or a 
 fourth if there be no child. If he should now make a 
 similar acknowledgment in favour of another woman, he 
 becomes debtor to that other for a similar to half of the 
 portion of the first, that is, if she refuse her assent to the 
 second acknowledgment ; and if he should acknowledge a 
 third, he must give her a third of the share ; and if he 
 should acknowledge a fourth, he must give her a fourth of 
 the wife's share ; and if he even go so far as to acknow- 
 ledge a fifth, and one of the others should deny it, no 
 regard is to be had to the denial so far as he is concerned, 
 and he must give to the person last acknowledged an 
 equivalent to the portion of one of the others. 
 
294 
 
 INHERITANCE. 
 
 CHAPTER IV. 
 
 RULES REGARDING THE INHERITANCE OF SPOUSES TO 
 EACH OTHER. 
 
 Mutua 
 
 rights of 
 inherit- 
 ance not 
 affected 
 by repu- 
 diation if 
 revocable. 
 
 Otherwise 
 if irre- 
 vocable. 
 
 When 
 there are 
 several 
 wives they 
 share 
 equally. 
 
 Case of 
 one being 
 repudi- 
 ated and 
 another 
 married in 
 her stead. 
 
 Case of 
 children 
 married 
 by their 
 
 First. A wife inherits from her husband, though he 
 should not have consummated with her; and he in like 
 manner inherits from her. And though she should have 
 been revocably repudiated, yet still their mutual rights of 
 inheritance remain if one of them die during the iddut. 
 But a woman absolutely separated from her husband has 
 no right to inherit from him, nor he from her ; as for ex- 
 ample, a wife who has been repudiated three times, or 
 before consummation, or when past child-bearing, or not 
 within the years of menstruation, or one who has been re- 
 leased by khoold, 1 or moobardt, 2 or is in her iddut after con- 
 nection under a semblance of right, or after cancellation. 
 
 Second. A wife, when there is no child of the deceased, 
 has a fourth part of his estate, and an eighth if he has left 
 a child. If there are more wives than one, they divide the 
 fourth or the eighth, as the case may be, equally between 
 them. 
 
 TJtird. When a man has repudiated one out of four 
 wives, and married another, and there is a doubt as to 
 which of the first four the repudiation applied, the last 
 married has a fourth of the eighth, and the remainder is 
 to be divided amongst the others equally. 
 
 Fourth. When a girl under puberty has been married 
 by her father or paternal grandfather, her husband inherits 
 from her, and she from him. So also if two young children 
 
 1 See ante, p. 129. 
 
 Ante, p. 136. 
 
INHERITANCE OF SPOUSES TO EACH OTHER. 295 
 
 are married to each other by their fathers or paternal father or 
 grandfathers, they have mutual rights of inheritance. But ^.^™ a 
 if they should be contracted in marriage by any other than father, 
 their fathers or paternal grandfathers, the contract remains By others 
 in suspense till assented to by the spouses themselves after t h ese . 
 arriving at puberty and discretion ; and if one of them 
 should die before such assent has been given, the contract 
 would be void and there would be no right of inheritance. 
 And the same would be the result though one of them 
 should attain to puberty and assent to the marriage, if the 
 other should die before puberty. But if the one who 
 assented should die, the share of the other ought to be 
 separated from the rest of his or her estate, and kept while 
 the other survives, and if on attaining to puberty he or she 
 should reject the marriage, the contract would be void, and 
 the party have no right to a share in the inheritance. If, 
 on the other hand, the marriage were assented to, the 
 contract would be valid, and the party must be sworn that 
 the assent has not been given from greed to partake in the 
 deceased's inheritance. 
 
 Fifth. When the wife has had a child by the deceased A wife 
 she inherits out of all that he has left ; and if there was ^^ n ^ b 
 no child she takes nothing out of the deceased's land, 3 but child does 
 her share of the value of the household effects 4 and build- ? n her 
 ings is to be given her. It has been said, however, that husband's 
 she is to be excluded from nothing except the mansions 
 and dwellings ; while Moortuza (may God be pleased with 
 him) has expressed a third opinion to the effect that the 
 land should be valued and her share of the value assigned 
 to her. But the first opinion is that which appears to be 
 best founded on traditional authority. 
 
 Sixth. Marriage contracted by a man in sickness is Marriage 
 dependent on consummation. So that if he should die °°ac*ted in 
 of the illness without having consummated the contract, death 
 it is void, and the woman has no right to dower or a share 8 o i( j ne8i 
 in his inheritance. This doctrine is according to a report if not 
 of Zwa/rut, from one of the two on whom be peace. mated. 
 
 3 Arab. Arz. 4 Arab. Aldt. 
 
29G 
 
 INHERITANCE. 
 
 CHAPTER V. 
 
 OF INHERITANCE BY WULA OR PATRONAGE. 
 
 Three 
 kinds. 
 
 This cause of inheritance is of three kinds, as already 
 
 mentioned : — l 
 
 Emanci- 
 pator is 
 heir to his 
 freedman. 
 
 When 
 there are 
 several 
 emanci- 
 
 I. — The Wula of Emancipation. 
 
 The emancipator is heir to the freedman when the 
 emancipation is voluntary and gratuitous, and when the 
 emancipator is not freed from responsibility on account of 
 his offences, provided that the freedman has no consan- 
 guineous heir to succeed to him. But if the slave were 
 emancipated as a matter of duty, as in the case of expia- 
 tions or vows, the emancipator has no right to his inheri- 
 tance. So also if, in making the emancipation, he stipulated 
 to be freed from responsibility on account of the slave's 
 offences. Here a question arises whether it be necessary 
 for security from such responsibility that witnesses should 
 be called upon to attest the stipulation. It would seem 
 not. When the responsibility for offences is renounced 
 at the time of the emancipation, the slave is termed a 
 saibah. If the emancipated slave has a consanguineous 
 heir, whether he be near or remote, a sharer or otherwise, 
 the benefactor has no title to the succession. And if the 
 slave has left a husband or wife, the spouse's share is to be 
 deducted, and the remainder only given to the benefactor, 
 or his representative in the event of his death. 
 
 When all the above conditions concur, the benefactor, 
 if alone, takes the inheritance ; or if there are several of 
 
 1 Ante, p. 261. 
 
INHERITANCE BY WULA OR PATRONAGE. 297 
 
 them, they are partners in the wula in shares, 2 whether pators the 
 
 they be one man and one woman, or there be several of ^^^ 
 
 each sex. On failure of the benefactor, the ivula belongs amongst 
 
 to his children, both male and female, according to Elm 
 
 Babooya ; and the opinion is good, and agreeable to what the eman- 
 
 is stated in the Khilaf in the case of a male emancipator, cipator, 
 
 But according to Mofeed, the wula belongs only to the children 
 
 male children, to the exclusion of females, whether the succeed. 
 
 benefactor were male or female. While the Sheikh 
 
 has said, in the Niha/yah, that the wula belongs to the 
 
 males, exclusively of females, if the emancipator were a 
 
 male ; and if she were female, that it belongs to her asubdt, 
 
 or paternal male kindred. And this opinion is attested or 
 
 confirmed by several traditions. 
 
 The father and mother of thee mancipator participate But if he 
 
 with his children in the wula or inheritance of his freed- . a , s , e 
 
 rather or 
 
 man ; but none other of his relatives share, so long as mother 
 there is any of these. And the children's children come gh^ar- 01 
 into the place of their parents on failure of them, each ticipates. 
 taking the share of the person through whom he was con- 
 nected with the deceased emancipator, as in the case of 
 ordinary inheritance. On failure of parents and children Then his 
 of the emancipator, his brothers succeed. But as to the bretiren * 
 right of sisters to participate in the inheritance, there is a 
 difference of opinion, though, according to that which is 
 best supported by traditional authority, they ought to suc- 
 ceed ; for wula corresponds to nusub or consanguinity. 
 Grandfathers and grandmothers participate with brothers ; With his 
 and, on failure of all these, paternal uncles and aunts and £^™ al 
 their children, the nearer being preferred to the more fathers 
 remote; while no relative connected only through his a " ancl . 
 mother with the emancipator, such as his brethren on her mothers, 
 side, and his maternal uncles and aunts, or grandfathers 
 and grandmothers, has any title to inherit the ivula. On 
 failure of relatives of the benefactor, the Moolee-al-mowld 3 
 inherits ; and on his failure, his relatives on the father's 
 
 2 I suppose in proportion to their original shares in the slave. 
 
 3 Emancipator of the emancipated. This supposes that the 
 emancipator may have been an enfranchised slave. 
 
298 
 
 INHERITANCE. 
 
 Freedman 
 not the 
 heir of his 
 emanci- 
 pator. 
 I Vula can- 
 not be sold 
 or given. 
 
 The in- 
 heritance 
 of the 
 children 
 of an en- 
 franchised 
 slave be- 
 longs to 
 their own 
 emanci- 
 pator. 
 
 But if 
 born after 
 the 
 
 mother's 
 enfran- 
 chise- 
 ment, and 
 their 
 
 father is a 
 slave and 
 alive, 
 their wula 
 belongs to 
 the eman- 
 cipator of 
 the 
 mother. 
 
 Though 
 the father 
 were en- 
 fran- 
 chised, 
 yet, if he 
 deny the 
 
 side succeed, to the exclusion of those related only through 
 the mother. 
 
 In no case is the freedman heir to his benefactor, 
 whose inheritance, if he has left no heirs of his own, 
 belongs to the Imam, to the exclusion of the freedman. 
 And ivula can neither be sold, nor given, nor made the 
 subject of a condition in sale. 
 
 Miscellaneous Cases. 
 
 First. The inheritance of the children of an enfran- 
 chised female belongs to their own emancipator, though 
 they were emancipated with their mother, in the womb, 
 and their ivula is not shifted or transferred to her eman- 
 cipator. But if not conceived till after her emancipation, 
 their wula would belong to the mother's emancipator if 
 their father be a slave. If, however, their father were 
 free by origin, the wula of the children would not belong 
 to the emancipator of their mother ; while if their father 
 was an enfranchised slave, it would belong to his eman- 
 cipator. And in like manner if their father were eman- 
 cipated after their birth, their wula would shift from the 
 emancipator of their mother to the emancipator of their 
 father. 
 
 Second. If a slave should marry an enfranchised 
 woman, and have children by her, their wula would belong 
 to their mother's emancipator. But if the father were 
 dead, and their grandfather were emancipated, the Sheikh 
 has said that the ivula would shift to the emancipator of 
 the grandfather, because he is in the place of the father. 
 And in like manner, if the father were alive, and should 
 be emancipated after all this, the wula would shift from 
 the emancipator of the grandfather to the emancipator of 
 the father, because he is nearer in degree. 
 
 Third. If an enfranchised slave should deny the child 
 of his enfranchised wife, and the child should die without 
 any consanguineous heir of his own, his wula would belong 
 to the emancipator of his mother. And though the father 
 should subsequently acknowledge the child, neither he nor 
 his emancipator would have any title to his inheritance ; 
 
INHERITANCE BY WULA OR PATRONAGE. 299 
 
 for though the nusub or paternity of the child revives in children, 
 
 such a case, the father does not inherit to him, nor, con- ro ^ stil i 
 
 sequently, any one connected through him with the child, belongs to 
 
 Fourth. Wula shifts from the emancipator of the einanc i_ 
 
 mother to the emancipator of the father, and, failing him, pator. 
 
 to the usubah, or lineal relative, of the emancipator, and, Jf«fc* 
 
 failing him, to the emancipator of the usubah of the father's f rom the 
 
 emancipator ; and it does not revert to the mother's eman- mother's 
 
 cipator. If, then, the emancipators and their usubat 4 father's 
 
 should all fail, and the enfranchised slave should have left emanci- 
 
 . 1 pator. 
 
 any one responsible for his offences, such person would 
 
 take the wula, otherwise it passes to the Imam. 
 
 Fifth. A woman has emancipated a slave who sub- The wula 
 sequently emancipates another; if the first should die ° nf ^a n - Ve 
 without consanguineous heirs, his inheritance would be- chised by 
 long to his emancipator; and if the second should die ^^be- 
 without such heirs, his inheritance would belong to his longs to 
 emancipator; and if he be dead without leaving heirs m e ^' 
 of blood, the wula of the second would belong to the him and 
 emancipator of the first. And if a woman should purchase ^Vis" ' 
 her father, and he becoming free in consequence should emanci- 
 emancipate another slave, and subsequently die, after all 
 which the slave enfranchised by the father should die also 
 without any other heir besides the woman, the inheritance 
 of the emancipated slave would belong to her, — half by 
 name or as her share, and the remainder by virtue of the 
 return, and not by tdseeb or lineal right, if we can say that 
 the children of an emancipator inherit the wula, though 
 they be females ; but if we cannot say so, she succeeds by 
 virtue of the wula. 
 
 Sixth. If a slave should beget two daughters on an The in- 
 enfranchised woman, and they should both concur in pur- ^ "^ave 
 chasing their father, and he being now free should then purchased 
 die, his inheritance would belong to the daughters by virtue daughters 
 of their appointed shares in his estate, or their right to the and conse- 
 return, and not by right of wula ; for inheritance by the become 
 
 latter right does not combine with inheritance by nusub free, be- 
 
 longs to 
 
 4 PI. of Usubah. 
 
300 
 
 INHERITANCE. 
 
 them as 
 ordinary 
 heirs, and 
 not by 
 wula. 
 
 The in- 
 heritance 
 of a slave 
 purchased 
 and en- 
 franchised 
 by a 
 
 f ather and 
 one of his 
 two sons, 
 belongs, 
 in case of 
 the 
 
 father's 
 death, to 
 the two 
 sons, in 
 the pro- 
 portion of 
 three- 
 fourths 
 and one- 
 fourth. 
 
 The wula 
 of a son 
 begotten 
 by a slave 
 on a freed- 
 woman 
 belongs to 
 her eman- 
 cipator, 
 but shifts 
 to the 
 emanci- 
 pator of 
 the father 
 if he is 
 enfran- 
 chised. 
 
 or consanguinity. And if the two daughters should die, or 
 one of them should die, leaving the father surviving the 
 inheritance would belong to the father ; but if he were dead 
 the inheritance of the daughter who died first would belong 
 to her surviving sister by share and return, and there would 
 be no inheritance for emancipators by reason of the existence 
 of an heir of blood. If we suppose the surviving sister 
 were to die, would the emancipator of her mother inherit ? 
 Upon this point there is some doubt, the removal of which 
 depends on the question whether the wvla is drawn to the 
 daughters by means of the emancipation of their father or 
 not ? Perhaps, however, it is nearer the truth to say that 
 there would be no such drawing of the inheritance on the 
 ground that ivida does not combine with consanguinity and 
 emancipation. 
 
 Seventh. If one of two sons should concur with their 
 father in purchasing a slave and then emancipating him, 
 and the father should then die, after which the enfranchised 
 should also die, the child who purchased him in concurrence 
 with the father would have three-fourths of his inheritance, 
 and his brother the remaining fourth. 
 
 Eighth. When a slave has begotten a son on a freed- 
 woman the wula of the son belongs to the emancipator of 
 his mother, and if the son should purchase a slave and 
 emancipate him, the wula of that slave would belong to the 
 son. But if the same slave should purchase the father of 
 his emancipator, and then enfranchise him, the wula of the 
 son would shift from the emancipator of his master to the 
 emancipator of his father, and each of the two (that is, the 
 son and the slave) would become mowla to the other. If in 
 these circumstances the father should die, his inheritance 
 would belong to the son, but if the son should die with- 
 out a consanguineous heir, his wula would belong to the 
 emancipator of his father ; and if the enfranchised slave 
 should die without consanguineous heirs his wula would 
 be for the son who originated his emancipation, and if 
 they both die without consanguineous heirs the Sheikh 
 has said that the emancipator of the master would have a 
 preferable right to the wvla ; but this is liable to doubt. 
 
INHERITANCE BY WULA OR PATRONAGE. 301 
 
 II. — The Wula of Responsibility for Offences. 
 When one person engages with another that he will be How this 
 responsible for whatever may happen to him, and have his cons ti- 
 wula, the engagement is valid, and the inheritance of the tuted. 
 person on whose behalf the engagement is made is the 
 established right of the engager. But such an engagement 
 can be entered into for asaibah only who is not subject to a 
 wula, as, for example, one enfranchised for expiation or in 
 performance of vows, — or for one who has no heir of origin ; 
 and such a person, that is the engager, does not inherit 
 except on entire failure of consanguineous heirs, and on 
 failure of an emancipator. But he is before the Imam. A 
 husband and wife, however, take with him the highest shares 
 appointed for them respectively. 
 
 III. — The Wula of Imamut. 
 
 When there is no surety for offences the Imam is the heir The Imam 
 of a person who has no other heirs ; and this is the third j UBrei 
 kind of wula. If then the Imam be present 5 the property 
 belongs to him to do with it as he pleases. Aly, on whom 
 be peace, was accustomed in such cases to give the property 
 to the poor and indigent of the deceased's city, and the 
 weak and infirm among his neighbours, gratuitously. And 
 if the Imam is absent 5 the property is to be divided 
 among the poor and indigent, and not to be given up or 
 surrendered to any other but a righteous sultan or ruler, 
 except under fear or actual compulsion. 
 
 Miscellaneous Cases. 
 First. Whatever is taken from associators 6 in actual Spoils of 
 warfare belongs to the combatants, after deducting the wjLto" 
 lihooms or prescribed fifth. But whatever is taken from the com- 
 them by a band of assailants 7 without the permission of but what 
 
 is taken 
 from in- 
 
 5 See ante, p. 272, note n . ridels by 
 
 6 All people who deny the unity of the Deity, among whom troops act- 
 Christians are supposed to be included. ing with- 
 
 7 Literally, cavalry from five up to three or four hundred. 
 Freytag. 
 
 out the au- 
 
302 INHERITANCE. 
 
 thority of the Imam belongs to him ; and whatever is abandoned by 
 belonesto assoc i a tors through fear, or becomes separated from them 
 him. without warfare, also belongs to the Imam ; while what is 
 
 taken from them by way of composition or juzyut (poll- 
 taken 1S * ax ) belongs to the warriors, and failing them is to be 
 from them divided among poor Mooslims. 
 
 peace Second. What is taken by sudden attack from enemies, 
 
 must be if in time of peace, must be restored to them; otherwise 
 
 it belongs to the takers, but is subject to the fifth. 
 uUimus Third. When a soldier dies leaving property and having 
 
 hares of no i ien . thg property belongs to the Imam. 
 soldiers. 7 r c j o 
 
( 303 ) 
 
 CHAPTER VI. 
 appendages to the legal causes of succession. 
 
 Section First. 
 
 Of Succession to the Child of a Moolainah, or Woman who 
 has been separated from her Husband by Lidn, and to a 
 Wulud-ooz-zina or Illegitimate Child. 
 
 The heirs to the child of a woman who has been sepa- The heirs 
 
 rated from her husband by lidn are his own children c hii ( i fan 
 
 and his mother ; the mother taking a sixth, and the impre- 
 
 . . cated 
 
 children the remainder, in the proportion of two shares woman 
 
 to a male for one to a female. If there is no child, the are his 
 
 whole of the property goes to the mother, a third as her children, 
 
 appointed share, and the remainder by virtue of the return. ancl rela " 
 t-T t ^ ■ ^ • i -i-tt tions b y 
 
 iiut, according to one report, she inherits only a third, and his 
 
 the remainder goes to the Imam, who is responsible for motn er's 
 the fines of such a person. The first, however, is the more 
 prevalent doctrine on the subject. Upon failure of both 
 mother and offspring, the inheritance of such persons 
 passes to their brothers and sisters on the mother's side, 
 and their children in due order, and to their maternal 
 grandfather, however remote in ascent, in order of proxi- 
 mity ; on failure of these it passes to maternal uncles and 
 aunts in the usual order of inheritance. In all these degrees 
 males and females inherit alike. When all the relatives 
 on the mother's side have completely failed so as not to 
 leave a single one of them to succeed as the heir, the 
 inheritance passes to the Imam. In all cases, however, 
 it is to be observed that the husband and wife take the 
 shares respectively appointed for them, that is, a half 
 
304 INHERITANCE. 
 
 and a fourth when there is no child, and a fourth and an 
 To whom eighth when there is one. With regard, again, to the 
 also he right of children of the description under consideration to 
 herit. succeed to the relatives of their mother, some have said 
 
 that the j have the right because their nusnb or descent on 
 her side is established, while others have maintained that 
 they have no such right of succession, unless subsequently- 
 acknowledged by their father; but this opinion is now 
 abandoned. The father and those related through him 
 can never inherit to such a child, even though it were 
 acknowledged by him after the lidn ; but in that case the 
 child would inherit to the father. It does not follow, 
 however, that the child should, after the acknowledgment, 
 be entitled to inherit to the relatives of his father, and 
 according to the more prevalent opinion, neither does he 
 inherit to them nor they to him, since his nusub, or 
 paternal descent, has been entirely cut off by the lidn, and 
 because the effect of an acknowledgment is confined to the 
 person who makes it. 
 
 Miscellaneous Cases. 
 Paternal First. In distributing the inheritance of persons of 
 
 ship not this description paternal relationship is not taken into 
 taken into account at all ; and thus, should the deceased have left 
 with re- *wo brothers, one of them by both father and mother, and 
 spect to the other by the same mother only, they share the inherit- 
 persons. ance equally. By the same rule, if there had been two 
 sisters, or a brother and sister, one by the same father 
 and mother, and the other by the same mother only, they 
 would be equal sharers in the estate. Aud further, if he 
 left the son of a sister by both parents, and the son of a 
 sister by the same mother only, or a brother and sister by 
 both parents, with a grandfather or grandmother, the pro- 
 perty would be divided between them in thirds, as the 
 paternal relationship is entirely disregarded. 
 
 Second. If the mother of such a person dies leaving no 
 other heir besides him, the whole of her inheritance must 
 go to him ; but if with him her parents, or one of them, 
 should exist, these together receive two-sixths, or one of 
 
SUCCESSION TO AN ILLEGITIMATE CHILD. 305 
 
 them receives one-sixth, and the remainder goes to the 
 son. If instead of a son she had left a daughter, the 
 half of the estate would go to her, and the surplus would 
 revert to all of the heirs in proportion to their respective 
 shares. 
 
 Third. If a husband disavows the parentage of a Case of a 
 foetus or embryo in the womb of his wife, and the lidn or f ]i^vow- 
 mutual imprecation takes place, after which she produces ing the 
 twins, they are both heirs to each other as brothers by the of a /«£«*. 
 mother's side, but not by the father's. 
 
 Fourth. If a father should renounce before the Sultan Renuncia- 
 
 or ruler all responsibility for the offences of his child and f^her^of 
 
 right to his inheritance, and the child should subsequently his right 
 
 die, the Sheikh (on whom God be merciful) has said in his heritance 
 
 Nihayah, that the succession of such a child rests with the to his son 
 
 itsubdt or male kindred of his father, and not with those of a fj ec t his 
 
 his mother. But this opinion is now obsolete ; and the title > but 
 
 ,.-.,. . . „ , , . , , , is in itself 
 
 prevalent doctrine maintains the father s right, notwitn- invalid.. 
 
 standing his renunciation. 
 
 The ivulud-ooz-zina, or illegitimate child, 1 has no nusub An ille- 
 or parentage. Consequently, neither the zanee, or he who g p|?u te 
 has unlawfully begotten, nor she who bore him, nor any of no parents 
 their relations, can be his heir, 2 nor has he any title to ^ndhis 
 their succession. His inheritance, therefore, is only for only heirs 
 his own children, and on failure of them it goes to the c hndren 
 Imam. This law, however, does not affect the rights of a and fail- 
 husband or wife, who accordingly receive their appointed ^| imdn 
 shares, the lowest if there be issue of the deceased, and 
 the highest if there be none. According to one report, 
 the mother and her relatives can inherit the property of 
 a widud-ooz-zina in the same way as that of the child of 
 a woman separated from her husband by lidn ; but this 
 report is now rejected. 
 
 1 Literally, child of fornication or adultery. 
 
 2 There is a remarkable difference between the Imameea and 
 Hanifeea codes on this point, for which see Digest, p. 411. 
 
 PART II. 
 
30G INHERITANCE. 
 
 Section Second. 
 
 Of a Foetus or Embryo in the Womb, and of Lost or 
 Missing Persons. 3 
 
 Title of a A foetus inherits if brought forth alive ; so also if still- 
 
 inherit 10 born m consequence of violence to its mother, or without 
 such violence if it has shown any signs of life at the birth. 
 But if when half-born these signs of life should appear, 
 and totally cease before complete separation from the 
 womb, no right of inheritance is established. In like 
 manner, if it exhibits motions that are not indicative of 
 life, as those of an animal just slaughtered, it has no claim 
 to inheritance. But, on the other hand, it is reported by 
 Rubdy, from Aboo Jdfer, 4 on whom be peace, that when 
 an infant displays at its birth evident motion as if it were 
 alive, it both inherits and is inherited from. And there 
 is a report to the same effect by Aboo Buseer, from Aboo 
 Abdoollali? on whom be peace. It is by no means a ne- 
 cessary condition that the child should be produced alive 
 before the death of the ancestor ; insomuch that, if born 
 at six months from the death of its father, the right of 
 inheritance is established ; or even if born at nine months, 
 if its mother has not married again. 
 In cases of When a deceased has left both his parents, or one of 
 an exist-^ them, or a husband or wife, and also a foetus in the womb, 
 ing all the sharers take their lowest appointed shares, and the 
 
 take the residue is secured till the birth of the child ; and if born 
 lowest dead the shares are then to be completed in full, 
 shares. If a person deceased should leave an existing son and 
 
 a foetus in the womb, the Sheikh, to whom God be 
 merciful, has declared that only one-third is to be given 
 to the existing son, and two-thirds must be reserved for 
 the event of the birth, because it is probable that these 
 may be twins ; but more than two is extremely rare, 
 though possible. If, on the other hand, the existing 
 
 3 The first part of this section, which, in the original, is occupied 
 with hermaphrodites and monsters, has been omitted as of little 
 practical use. 
 
 1 The Imam Mohvmmud Bdkir. 5 The Imam Jdfer Sddik. 
 
SUCCESSION TO AN EMBRYO. 307 
 
 child be a female only, a fifth part of the estate is to be 
 given to her, and the remaining four-fifths reserved for 
 the event of the birth. This doctrine is good or univer- 
 sally approved. 
 
 The fine or penalty for occasioning the death of an Fine erf 
 embryo is inherited by both its parents and relatives blood how 
 through them jointly or through the father only, whether inherited, 
 by descent or special cause, as emancipation or otherwise. 
 
 If two persons mutually acknowledge each other as Mutual 
 
 relations, thev inherit as such from each other, and are acknow- 
 
 * leagnienc 
 
 not obliged to prove their connection. But if generally of rela- 
 
 known to be of a different numb or descent than that co ^g r g P ~ 
 
 implied in their acknowledgment, their word alone cannot mutual 
 i . n title of 
 
 be received. succes . 
 
 Of lost or missing persons, the property is to be sion. 
 
 reserved for a term ; but with respect to the length of °f lost or 
 
 • • o t 1 missing 
 
 this term there are various opinions, feome doctors nave persons, 
 
 prescribed four years, and this is founded on a report of the P r ?' 
 
 pcrty is 
 Asman Ben Eesa from Summit, as having been so decided no t in- 
 
 by Aboo Abcloollah, on whom be peace ; but this report is heritable 
 
 . • -i /-a i i until their 
 
 weak or not sufficiently authenticated. Others have death is 
 
 alleged that the mansion of such a person may be sold 
 after ten years ; and this is approved by Moofeed, on the 
 ground of a report of Alt/ Ben Muhria/r, as having been so 
 decided by Aboo Jdfer, on whom be peace, with respect 
 to the sale of a small part of a mansion ; but a general 
 inference from a decision of this nature appears to be un- 
 reasonable. And the Sheikh, to whom God be merciful, 
 is of opinion that the property may be lawfully given up 
 to persons who are present on their becoming responsible 
 for it. Further, according to a report by Ishdk Ben Omar 
 of a decision by Aboo Abdoollah, on whom be peace, the 
 property of the absent person may be divided among his 
 heirs when they are in opulent circumstances, to be re- 
 stored to him if he should return. But, with regard to 
 Ishdk, there are some doubts of his fidelity, and though 
 his report is maintained by Suit til Ben Zeead, it is stl 
 considered weak or insufficiently authenticated. Upon the 
 whole, the opinion upon the point stated in the Khilaf, 
 
 x 2 
 
 ascer- 
 tained. 
 
308 
 
 INHERITANCE. 
 
 that the property of a missing person is not to be distri- 
 buted among his heirs until such a time has elapsed that 
 there is no probability of a person of his age being alive, 
 is that which is preferred or most generally approved. 
 
 Persons 
 drowned 
 or over- 
 whelmed 
 in ruins, if 
 the time 
 of the 
 death is 
 unknown, 
 are heirs 
 of each 
 other, if 
 connected 
 so as to 
 form a 
 title to in- 
 heritance. 
 
 This rule 
 applies 
 only to the 
 original 
 property 
 of each, 
 not to 
 what one 
 has in- 
 herited 
 from the 
 com- 
 panion of 
 his fate. 
 
 Section Third. 
 
 Of Persons drowned or overwhelmed in Ruins. 
 
 These inherit from each other when all or some of 
 them leave property, and they are so connected as to be 
 heirs to each other, and that they died in such circum- 
 stances as to render it doubtful which of them died first. 
 If, therefore, they had no property, or if there were no 
 mutual right of inheritance between them, or if one was 
 heir to another without his companion being heir to him, 
 as in the case of two brothers one of whom has left a 
 child, in none of these cases has this law any effect ; nor 
 further when their death is not from the same cause, nor 
 where they are all known to have died at the same instant 
 of time, nor where one is ascertained to have died before 
 another. Whether, again, the application should be ex- 
 tended to the case of dying together by any other cause 
 than that of being drowned or overwhelmed in ruins, 
 where a doubt prevails as to the time of the respective 
 deaths, is a question upon which there is a difference of 
 opinion, though the Sheikh, in his Nihayah, has expressly 
 extended it to all cases where this doubt may prevail. 
 
 Supposing all the conditions to be established, the 
 parties dying together succeed respectively to the original 
 property of each other, but not to that which is inherited 
 from himself by the other, as maintained by Mofeed, 
 because the principle of law in this case proceeds upon the 
 supposition of a possibility, whereas making a person the 
 heir of propertj^ inherited from himself would require him 
 to be alive after we have supposed him to be dead, which 
 is impossible. Moreover, there is an express tradition to 
 the effect that " where one only of the parties has property, 
 it goes to him who has none." 
 
 As to the necessity of presuming that the person 
 
SUCCESSION AMONG PERSONS DROWNED TOGETHER. 309 
 
 having the weakest right of inheritance — that is, the 
 smallest share — should have survived the other, there is 
 considerable doubt. The Sheikh, in his Eejaz, has posi- 
 tively rejected the maxim. But in reality, as observed by 
 him in the Mubsoot, its application does not alter the 
 effect of the law, unless we follow out the doctrine of 
 Mofeed, in which case the effect of the preference is 
 obvious. The opinion, however, expressed in the Eejaz, 
 that there is no necessity in law for observing the arrange- 
 ment, seems to be by far the best founded ; and even 
 if the necessity for the supposition were established, it 
 could be of no advantage to either of the parties. 
 
 Thus, if a husband and wife are drowned together, Case of a 
 we first suppose the death of the husband, and append hu ^ ban ^ 
 to the widow her share in his estate; we then suppose 
 the death of the wife, and append to the husband his share 
 in her original estate ; but by no means a share in that 
 which we suppose her to have inherited from himself. 
 In like manner, if a father and son are drowned together, Of a father 
 the share of the father is first assigned, and then that of anc son ' 
 the son ; but if each should have a preferable title to the 
 remainder of the other's estate than his other heirs, a 
 mutual transfer, or an exchange of property takes place, 
 and the succession of each devolves upon the heirs of the 
 other. For example, the son leaves brothers or sisters 
 on the mother's side only, and the father also leaves 
 brothers, in which case the property of the son is trans- 
 ferred to the father, and the property of the father is 
 transferred to the son, and then what has thus become 
 the property of each devolves upon his own heirs respec- 
 tively. If, again, we suppose that each one of the parties 
 has associates with him in his right of inheritance, as, 
 for instance, when the father had other sons than the one 
 drowned with him, and the son leaves also children of his 
 own, the father, in this case, being first supposed the 
 survivor, has a sixth part of the son's property added to 
 his ; and then supposing the son to have survived, a 
 portion of the inheritance, in common with the other 
 children, is set apart in his name, which portion, together 
 
310 
 
 INHERITANCE. 
 
 JVvsub and 
 subub in 
 the case of 
 m ujonsees 
 may be 
 valid and 
 invalid. 
 
 Nvsnb a 
 good 
 
 ground of 
 inherit- 
 ance 
 whether 
 valid or 
 invalid, 
 but suhnb 
 so only 
 when 
 valid. 
 
 with the remainder of his own original property, descends 
 to his own children. 
 
 Where, again, the heirs who perish together have equal 
 rights in the succession of each other, as, for instance, 
 two brothers, neither is supposed to have preceded the 
 other, and the rights of both being equal, the estate of 
 each one of them is transferred to the other: and if neither 
 of them leaves any heir, the succession to both devolves 
 on the Imam ; or if one of them leaves an heir, what has 
 become his property by the transfer goes to such heir, 
 and what has become the property of the other goes to the 
 Imam. 
 
 Section Fourth. 
 Of the Inheritance of Mujoosees, or Fire-Worshippers, 
 
 Mujoosees sometimes enter into unlawful marriages 
 which have a semblance of right, as being permitted by 
 their own religion. Hence arises both a valid and an 
 invalid nusub, or consanguinity, and a valid and invalid 
 subub, or special connection, as causes of inheritance 
 among them. By invalid, we mean what results from a 
 marriage that is unlawful with us but not so with them ; 
 as, for example, when one of them marries his mother and 
 begets a child by her, the numb of the child is invalid, 
 and also the subub, or marriage relation between the parties 
 themselves, is invalid. 
 
 Some of our doctors have held that there is no true title 
 of inheritance except for a valid nusub and a valid subub ; 
 and this was the doctrine of Yoonus Ben Abdooruhman 
 and his followers. Others, again, allow the title by a valid 
 and invalid nusub, and by a valid subub to the exclusion of 
 a subub that is invalid, and this was preferred by Fuzl Ben 
 Shazan as the doctrine of the ancients on the subject. It 
 has also been adopted by our Sheikh Mofeed, and is generally 
 approved. The Sheikh Aboo Jdfer admitted succession by 
 both nusub and subub, whether valid or invalid ; — and upon 
 this supposition, if two causes of succession should meet in 
 the same person, he or she would be entitled to inherit by 
 virtue of both, as, for example, a mother who is also a wife 
 
SUCCESSION TO FIRE-WORSHirPERS. 311 
 
 would have both a wife's share, which is a fourth on failure 
 of issue, and a master's, which is a third if there were none 
 to participate with her such as a father, while the remainder 
 would revert to her in the latter capacity ; — or a daughter 
 who is also a wife would have a half and an eighth, while the 
 remainder would revert to her by reason of propinquity to 
 the deceased when there is no other heir associated with 
 her; — or a sister who is also a wife would have a fourth 
 and a half as her shares, with the remainder by reversionary 
 right if there is no other heir. 
 
 If two causes of succession are combined, one of which When two 
 would have the effect of excluding the other, inheritance ^herit 
 can only be by virtue of the excluding cause ; as for instance ance com- 
 in the case of a daughter who is also a half-sister on the delusive 
 mother's side and would have a half as a daughter's share of the 
 and nothing in the other capacity, because with us a sister ^ rs ^J nly 
 has no title to inheritance when the deceased has left a effectual, 
 daughter, — or a daughter who is also a daughter's daughter, 
 and would have a share in the first capacity but none in the 
 second ; — or a paternal aunt who is also a half-sister on 
 the father's side, and would have a share only as a sister, 
 to the exclusion of her title as an aunt ; — or a paternal aunt 
 who is also the daughter of such an aunt, and would have 
 only an aunt's share. 
 
 Miscellaneous Cases. 
 
 First. A Mooslim has no title to inheritance for an An invalid 
 
 invalid subub. So that if we were to marry a relative sububno 
 
 .. ground of 
 
 within the prohibited degrees, neither of them would be inherit- 
 
 heir to the other, whether the prohibition is one as to which a ," ce /. or a 
 ' , L . Mooslim. 
 
 all are agreed, as for instance when a man marries his 
 
 mother by fosterage, or one with regard to which there is a 
 
 difference of opinion, as when he marries the mother of a 
 
 woman with whom he has had illicit intercourse ; and it otherwise 
 
 makes no difference whether the husband were aware of the as to , 
 
 nusub, 
 
 illegality or not. which is a 
 
 Second. A Mooslim. however, may inherit for both a good , 
 ' ' J > ground 
 
 valid and invalid nusub ; for a semblable contract is like a whether 
 valid one in establishing the paternity of a child. invalid 1 
 
312 
 
 INHERITANCE. 
 
 Extrac- 
 tors are 
 numbers 
 by which 
 the shares 
 can be 
 extracted 
 without a 
 fraction. 
 
 CHAPTER VII. 
 
 of the computation of shares. 
 
 Section First. 
 
 Extractors of the Six Shares, and hoiv they are to be 
 treated when severed Persons are entitled to the same 
 Share. 
 By the extractor of a share we mean the smallest number by 
 which the share which it represents can be extracted from the 
 mass of the deceased's property without a fraction ; and for 
 the six appointed shares there are five such numbers. Thus, 
 a half can be extracted by the number 2 ; a fourth by 4, an 
 eighth by 8, one-third and two-thirds by 3, and a sixth by G. 
 So that every case that presents two halves, or one half and 
 a remainder, is to be arranged by the number 2, and every 
 case that presents a fourth and a half, or a fourth and a 
 remainder, is to be arranged by the number 4. Where, 
 again, there is an eighth with a half, or an eighth with a 
 remainder, the arrangement is by 8 ; where one-third and 
 two-thirds combine, or there is one of these with a 
 remainder, the arrangement is by 3 ; where there are a 
 sixth and a third, or a six and two-thirds, or a sixth and 
 a remainder, it is by 6 ; where there is a half with a third, 
 or two-thirds and a sixth, or with one of these two, it is 
 by 6 ; but if for the half we substitute a fourth, the arrange- 
 ment must be by 12 ; while if, in the place of the half, we 
 put an eighth, it must be by 24. ' 
 
 1 In all cases the estate is to be divided into the number of parts 
 indicated by the extractor. 
 
COMPUTATION OF SHARES. 313 
 
 This being premised, we have next to consider whether 
 the number of parts into which the deceased's estate has 
 to be divided agrees with the shares, or exceeds, or falls 
 short of them. 
 
 I. Let us suppose that the parts agree with the shares, When the 
 and that each of the shares can be divided among the indi- ^ichan 
 viduals entitled to it without a fraction. On this supposi- estate is 
 tion no difficulty can arise; as, for instance, where the aoT eewith 
 deceased has left a sister by the same father, with her the shares, 
 
 And picti 
 
 husband, and the estate is to be divided into two parts, or sfia re is 
 
 where the survivors are two daughters and both parents, divisible 
 
 or both parents and a husband, in each of which cases the fraction, 
 
 division is by six, and the estate can be distributed among extractor 
 
 . \ r • remains 
 
 the persons entitled to it without a traction. unchang- 
 
 But though the parts into which the estate is to be ed - 
 
 . When the 
 
 divided may agree with the shares, yet the shares may not ts 
 
 be divisible among the individuals entitled to them without agree 
 
 a fraction; and this may happen with one share, or with shares, but 
 
 several. When there is only one share in this predica- one of tne 
 
 . . P . . . , . , shares is 
 
 ment, the original extractor ol the case is to be multiplied not 
 
 by the number of the individuals entitled to the share, that divisible 
 . . , . , . among the 
 
 is, when there is no common measure between the indi- individu- 
 
 viduals and their share. Thus, take the case of the de- a . ls , e "" 
 
 titled to 
 
 ceased being survived by both parents and five daughters ; it, the 
 
 here the extractor is six, and the share of the daughters extr ^t°r 
 
 ' ° must be 
 
 four-sixths, but these cannot be divided among five without multiplied 
 a fraction ; and there is no common measure of four and f * b g f 
 five : the extractor is accordingly to be multiplied by the the par- 
 whole number of the daughters, and the product (6x5 = 30) | es ' 
 will be the new extractor of the case ; the share of each 
 heir, as it stood before the multiplication, being now also 
 multiplied by five, the product will be the amount that unless 
 each is entitled to. When, again, there is only one share C o^ mo s n a 
 that cannot be divided without a fraction among the in- measure 
 dividuals who are entitled to it, but there is a common share^nd 
 measure between the individuals and the share, the ex- of the 
 tractor is to be multiplied by the measure out of the als wrien 
 number of individuals, not out of the shares ; or, in other the latter 
 words, the number of individuals is to be divided by the divided 
 
314 
 
 INHERITANCE. 
 
 by the 
 
 measure, 
 
 and the 
 
 extractor 
 
 multiplied 
 
 by the 
 
 quotient. 
 
 When 
 there is 
 more than 
 one share 
 indivisible 
 without a 
 fraction, 
 the same 
 course to 
 be follow- 
 ed with 
 the shares 
 in that 
 predica- 
 ment. 
 
 And the 
 resulting 
 number 
 operated 
 with 
 
 different- 
 ly, accord- 
 ing as they 
 are inootu- 
 mathil, 
 
 measure, and the extractor multiplied by the quotient. 
 Thus, take the case of two parents and six daughters ; 
 here, the share of the daughters being four-sixths, it 
 cannot be divided among them without a fraction ; but 
 there is a common measure (2) of the share (4), and the 
 number of individuals (6) ; the extractor is accordingly to 
 be multiplied by half of the number, or three, by which 
 means it will be raised to eighteen, and as the shares of 
 the parents, in the original division, were two, they are 
 now also to be multiplied by three, by which means 
 they will become six, while the four shares of the 
 daughters, in the original division, being multiplied in 
 the same way, will become twelve, giving two portions 
 to each. 
 
 "When there is more than one share that cannot be 
 divided without a fraction among the persons who are 
 entitled to it, there may be a common measure of all the 
 shares that cannot be so divided, and of the individuals 
 entitled to them, or there may be no common measure in 
 any of the cases, or there may be a common measure in 
 one of the cases and none in the others. In the first of 
 these cases, the number of the person is to be reduced in 
 correspondence with the common measure ; in the second, 
 the numbers are to be dealt with as they stand ; in the 
 third, the single class in which there is a common measure 
 between their numbers and their shares is to be reduced 
 in correspondence with the common measure, and the 
 others to be dealt with as they stand. After all this has 
 been done, the resulting numbers will be found to be 
 mootumatlril (equal), or mootudakhil (one an aliquot part 
 of the other), or mootuwafiJc (commensurable), or mootu- 
 bayyun (prime) to each other. If they are the first or 
 equal, it is sufficient to take one of the numbers, and 
 multiply the original extractor by it, as, for instance, 
 where the deceased has left two brothers by the same 
 father and mother, and two brothers by the same mother 
 only. Here, the extractor being three, the shares cannot 
 be divided among the persons entitled to them without a 
 fraction, but one only of the numbers or two is to be 
 
COMPUTATION OF SHARES. 315 
 
 taken to multiply the extractor, or three, which will thence 
 become six, and give two parts to the brothers by the 
 mother only, and four parts to the brothers by father and 
 mother, to be divided among them equally. Where again 
 the numbers are mootudakhil, or one a measure of the or moot u- 
 other, reject the least of the numbers, and multiply the ** 
 
 extractor by the greater. Thus, where the deceased has 
 left three brothers by the same mother only, and six by 
 the father, the estate is to be arranged into three parts ; 
 but these cannot be divided among the parties without a 
 fraction ; the number, however, of one of the classes is 
 half that of the other, the numbers being mootudahhil, the 
 extractor is accordingly to be multiplied by the higher of 
 the numbers, or six, and will thus be raised to eighteen, 
 by which it will be found that the estate can be arranged 
 without a fraction. When the numbers are mootuwafik or mootu- 
 or commensurable, you are first to multiply one of the 7Va J l » 
 numbers by the measure of the other (that is, by the 
 quotient of the other when divided by the measure), and 
 then multiply the original extractor by the product. 
 Thus, where the deceased has left four wives and six 
 brothers, the extractor is four, but the estate cannot be so 
 divided without a fraction ; there is, however, a measure 
 of four and six, which is two, and you are to multiply one 
 of them (six) by half of the other (four), and you have 
 twelve, by which you are now to multiply the original, 
 which is four, and you have in the result a number which 
 will satisfy the case. If the numbers are mootubcvyyun or or moot u- 
 prime to each other, one of them is first to be multiplied 
 by the other, and then the original extractor by the pro- 
 duct. Thus, when there are two brothers by the same 
 mother only, and five by the same father, the original 
 extractor being three, the estate cannot be divided without 
 a fraction among the persons entitled to it, and the num- 
 bers are neither commensurable nor one a part of the 
 other ; one of them is accordingly to be multiplied by the 
 other, which will give ten, and that number multiplied by 
 the original extractor, when the product will be found to 
 satisfy the case. 
 
316 
 
 INHERITANCE. 
 
 Difference 
 of num- 
 bers ex- 
 plained. 
 
 When the 
 number of 
 parts into 
 which an 
 estate is 
 divided 
 falls short 
 of the 
 shares. 
 
 Numbers are either equal 2 or different, and if different, 
 they are mootudakhil, mootuwafilc, or mootubayyun. They 
 are mootudakhil when the smaller being subtracted once or 
 more times from the greater, exhausts it completely, and 
 the smaller does not exceed half the greater. If you like, 
 you may call them mootunasib or proportional, as three 
 to six and nine, or four to eight and twelve. They are 
 mootuwafik when the smaller being subtracted once or 
 oftener from the greater, the remainder is more than one ; 
 as, for instance, ten and twelve, for when you subtract the 
 former from the latter, the remainder is two ; and if you 
 subtract two from ten several times, the latter is com- 
 pletely exhausted. 3 When the remainder 4 is two, the 
 numbers are said to agree in a half; when it is three, the 
 agreement is by a third ; and so on up to ten. When it 
 is eleven, you must take one part of that number to express 
 the agreement. 5 The numbers are mootubayyun when, if 
 you subtract the less from the greater once or oftener, the 
 remainder is unity ; as, for instance, thirteen and twenty, 
 for if you subtract the former from the latter, there remain 
 seven ; and if seven from thirteen, there remain six ; and 
 if six from seven, there remains only one. 
 
 II. Let us now suppose that the number of parts into 
 which the deceased's estate must be divided falls short 
 of the shares to be provided for, — a case that can only 
 happen when a husband or a wife intervenes ; as, for 
 example, when the deceased has left both parents, two or 
 more daughters, and a husband or wife, — or both parents, 
 a daughter and a husband, — or one parent, two or more 
 
 2 These are what are previously described as mootumathil, which 
 literally means similar. 
 
 3 If it be considered that, division is only a continued subtrac- 
 tion, this rule is the same as our own for finding the greatest common 
 measure. 
 
 4 That is, a remainder which, being subtracted from the last 
 subtrahend, completely exhausts it. 
 
 6 The numbers in Arabic above ten are compound, as 1-10, 2-10, 
 &c, and there is no word to express a part of them, as an eleventh, 
 or a twelfth, Sec. 
 
COMPUTATION OF SHARES. 317 
 
 daughters and a husband. In all these cases the husband 
 or wife takes the lowest share appointed for them respec- 
 tively, each parent has a sixth, and a daughter or two or How the 
 more daughters the remainder, as the extractor is never to ig e t0 be y 
 be increased. In like manner, when there are two brothers adjusted, 
 by the same mother only, two or more sisters by the same 
 father and mother, or by the same father only, with a 
 husband or wife, — or one brother or sister by the same 
 mother only, with a sister and a husband, — in these cases 
 the husband or wife takes the highest share appointed for 
 them, and the deficiency falls specially on the sister or 
 sisters by the same father and mother, or the same father 
 only. If the estate can now be divided without a fraction, 
 well ; if not, you must multiply the shares 6 of those 
 whose portions will not divide among them without a 
 fraction by the original extractor. As an example of the 
 first case, let us suppose that the deceased has left both 
 parents, a husband, and five daughters ; here the extrac- 
 tor being twelve, the husband has three ot the parts, 
 the parents four, and the remaining five, which are the 
 daughters, are divisible among them without a fraction. 
 As an example of the second case, let us substitute three 
 daughters for five, when the remaining five shares will not 
 be divisible among them without a fraction ; and here we 
 must multiply the original extractor by three, when it will 
 be found that the product will divide among them without 
 a fraction. 
 
 III. We have now to suppose that the number of When the 
 
 shares into which the estate is to be divided exceeds the nulnber of 
 
 parts into 
 amount of the shares. When this happens,' the excess or which an 
 
 surplus is to be returned to the sharers, excepting the |? •5 e i s 
 
 husband and wife, the mother, when there are brothers, exceeds 
 
 according to what has been already stated, and a person j^e shares, 
 
 who has only one cause of inheritance when there is plus is 
 
 another who has only two causes, — in which case the ^ t u ^" e 
 
 master of two causes has a preferable right to the return sharers. 
 ^^ Excep- 
 tions. 
 6 Arab. Si/tam. But from the second example it would appear 
 that it is the number of individuals that is to be multiplied. 
 
318 
 
 INHERITANCE. 
 
 Examples 
 of the 
 return. 
 
 over the master of one. As general examples of the 
 return, take the following cases: — 1st. Both parents and 
 one daughter : here, if there are no brothers, the return is 
 in fifths ; but if there are brothers, it is in fourths, and 
 the original extractor of the case is to be multiplied by the 
 extractor of the return. 7 2nd. One parent and two or 
 more daughters : here the surplus reverts by fifths, and 
 the original extractor is to be multiplied by five. 3rd. One 
 brother or sister by the mother only, with a sister by the 
 same father only : when the return is in fourths, according 
 to the most authentic report. 4th. Two brothers or sisters 
 by the same mother only, with a sister by the father: when 
 the return is in fifths, and the original extractor is to be 
 multiplied by five, when it will be found that the product 
 will dispose of the case without a fraction. 
 
 Section Second. 
 
 When one 
 of the 
 heirs dies 
 before 
 partition, 
 his portion 
 to be 
 separated 
 from the 
 general 
 mass ; 
 
 Of Moonasulihat, or Vested Interests. 
 
 By this we understand that a man has died, and that 
 before a partition has been made of his estate one of his 
 heirs has died also, so that two partitions are to be made 
 of one original estate. The way to dispose of this case is 
 to arrange the first estate, and take a portion out of it for 
 the second, then if the heirs of the second deceased are 
 the heirs of the first, without any difference in the parti- 
 tion, there is, in fact, but one estate to divide; as, for 
 instance, when the deceased has left three brothers and 
 three sisters, all related on the same side, and one of the 
 brothers dies, then another, after which one of the sisters 
 dies, and then another, leaving one brother and one sister 
 surviving, among whom the property of the original 
 
 7 From the author's extreme brevity it is difficult to follow him ; 
 but this, I believe, is his meaning: — The return being a fifth, its 
 extractor must be 5 ; and the original extractor (6) multiplied by it 
 becomes -'iO, which being divisible into fifths, gives 2-5ths, or 12, to 
 the parents, and 3-5ths, or 18, to the daughter. 
 
COMPUTATION OF SHARES. 319 
 
 deceased is to be divided in thirds. But if there is any and if it 
 
 difference in the right or in the heirs, or in both right and ^^out a 
 
 heirs, then it must be considered whether the portion of fraction 
 
 the deceased heir will divide among his own heirs without own^feirs* 
 
 a fraction, and if so, nothing further is necessary ; as if a nothing 
 
 person should die leaving a widow, a father, and a daughter, necesS ary. 
 and the widow's share being an eighth is three parts out 
 of twenty-four, but she dies leaving a son and a daughter, 
 when her share is obviously divisible without a fraction. 
 
 If the share ascribed to the second deceased cannot be If it can- 
 divided among his own heirs without a fraction, the case j — j 6 / 
 o divided, 
 
 presents two aspects : — 
 
 First. If there is a common measure of the portion but there 
 
 is a 
 
 of the second deceased out of the first estate, and of the 
 
 ' _ t common 
 
 number of parcels into which the second is to be divided, measure 
 
 w r e multiply a portion of this latter number correspond- a ndthe 
 
 ing to the measure (that is its quotient when divided by persons 
 
 the measure) by the whole number of parcels into which quotient 
 
 the first estate was divided, and the product will arrange of the 
 
 both estates. Thus, if the deceased should have left two divided bv 
 
 brothers by the same mother, and also two by the same the mea- 
 
 father, with a husband, and the husband dies leaving a multiplied 
 
 son and two daughters : here the original extractor, which bv tlie 
 
 is 6, must be raised to 12, on account of the fraction (as T11 ' 
 
 ' ' v Illustra- 
 
 one-sixth, the share of the two brothers by the mother, tion. 
 cannot otherwise be divided among them), and the hus- 
 band's share being a half of these twelve parts, or 6, is 
 plainly indivisible, without a fraction, into four parts (as 
 required for the distribution of his estate) ; but there is a 
 common measure of 6 and 4, which is 2, and the part of 
 four corresponding to it, or a half, that is 2, is accordingly 
 to be taken, and the original extractor (12) to be multi- 
 plied by it, when the product (21) will be found to satisfy 
 the whole case, and each person who had anything in the 
 first estate will now have that share also multiplied by two. 
 
 8eco7id. When there is no common measure of the If there is 
 
 portion of the second deceased out of the first estate no com " 
 
 -, if i • • mon lrie a- 
 
 and the number of parcels into which his own must be sure, the 
 
 divided, then the whole number of the parcels is to be f xtractor 
 
 1 to be mul- 
 
320 
 
 INHERITANCE. 
 
 tiplied by 
 the whole 
 number of 
 persons 
 entitled to 
 the second 
 estate. 
 
 Illustra- 
 tion. 
 
 Similar 
 course to 
 be adopt- 
 ed when 
 two or 
 more heirs 
 die before 
 partition 
 as in the 
 case of 
 
 taken, and the original extractor multiplied by it, and 
 every one who had anything in the first estate is to take 
 his portion multiplied by the same number also. Thus, 
 when the deceased has left a husband, two brothers or 
 sisters by the same mother, and a brother by the same 
 father, and the husband has then died, leaving two sons 
 and a daughter, the original estate being divisible into 
 six parts, three of them, which is the husband's share, 
 cannot be divided without a fraction into five parts ; and 
 there is no common measure between three and five, three 
 is accordingly to be multiplied by five, and the product 
 will satisfy both estates. 
 
 When the moonasuJxhat presents more than two estates, 
 that is, when more than one of the heirs has died before 
 partition of the first estate, you are to proceed, with respect 
 to the third in reference to the two first estates, in the 
 same way as you proceeded with one of them in respect 
 of the other. And so on, if we suppose that there has 
 been a fourth death or more. 
 
 Section Third. 
 
 How to ascertain an Heirs Portion of the Twrkah or 
 
 Deceased's Estate. 
 
 Several methods have been devised for this purpose, of 
 which the following is the simplest : — Set aside for the heir 
 so much of the assets of the estate as may be proportionate 
 to his part in the Fureezut, or number into which the whole 
 must be divided to give each heir his portion without a 
 fraction. With this view you may either divide the amount 
 of assets by the fureezut, and multiply the quotient, or 
 result of the division, by the number in the fureezut allotted 
 to the heir, or you may multiply the assets by the heir's 
 allotment, and divide the product by the fureezut, when the 
 result will be the same. 8 
 
 8 Thus, if the assets are 24 deenars, the fureezut 12, and the heir's 
 allotment a fourth, or 8-12ths, you either divide 24 by 12, and multiply 
 the quotient (2) by 3; or multiply 24 by 3, and divide the product 
 (72) by 12, when the result is in either case 6 deenars, as the heir's 
 allotment. 
 
COMPUTATION OF SHARES. 321 
 
 So far when the assets are a whole number. Now 
 suppose that there is a fraction above the whole number, 
 as for instance so many deenars and two-thirds of a deenar. 
 Here you are first to multiply the whole number by the 
 denominator of the fraction, and add its numerator to 
 the product ; you are then to proceed with the sum thus 
 obtained in the same way as you have been directed to 
 do in the first instance. When you have thus arrived at 
 the heir's portion, you are to divide the amount by the 
 denominator of the fraction, as by two if the fraction were 
 a half, three if it were a third, and so on. If there is a 
 remainder which does not amount to a deenar, you are to 
 expand the remainder by reducing it to kerats, and then to 
 divide the product. If there is a remainder which does 
 not amount to a kerat, you are to expand it in like manner 
 by a reduction to hoobbas, dividing the product as before, 
 and so on to aroozz and jooza as far as may be necessary. 9 
 
 To prove the work you are to add all the portions of the 
 different heirs together, and if they make the exact sum of 
 the assets the work is right ; if not, there is an error some- 
 where. 
 
 9 There is some obscurity in this case, but it may be illustrated 
 thus : Taking the assets at 24 and 2 thirds, and substituting for 
 deenars, pounds sterling, the subdivisions of which are more familiar, 
 we have first 24 x 3 + 2 = 74 ; then 74 x 3-^12 = 18, with a remainder 
 of 6-12ths, which is the portion of the heir as exhibited in thirds, 
 and being divided by 3 gives 6 and 2-12ths ; now reducing 2-12ths 
 of a pound to shillings and pence, we have 6/. 3s. Ad. as the heir's 
 one-fourth share of 24 2-3rds of a pound, or 24/. 13s. Ad. 
 
 PAKT II. 
 

( 323 ) 
 
 BOOK VIII. 1 
 INHERITANCE. 
 
 INTRODUCTION. 
 
 The causes which operate in law a title to succession are Grounds 
 
 three, as prescribed by our holy religion : first, nusub or of inheiifc - 
 
 i • i p • i ance, 
 
 consanguinity : that is, the connection ot one person with three. 
 
 another by any of the ties of blood or descent established 
 
 by birth ; second, subub or affinity : that is, the connection 
 
 of one of two persons with the other, produced by marriage 
 
 which is established betwixt them by contract ; and third, 
 
 ivula, dominion or patronage : 2 that is, the connection of 
 
 one with another by manumission, or other legal cause to 
 
 be hereafter explained, not however produced either by 
 
 birth or marriage. 
 
 Of Inheritance by Consanguinity. 
 
 Under the first title are comprehended several classes The right 
 
 or series, each of which, in the order here described, enjoys of . c ° nsan - 
 
 . . . . gumity 
 
 a preference in succession over that which follows it, to the involves 
 
 utter exclusion of the latter : and thus, whilst of the first j? r f. e , 
 
 ' ' , distinct 
 
 class a single member, whether male or female, exists, classes of 
 there is no title of inheritance in the second ; and the s- 
 same of the second with respect to the third. 
 
 1 This additional book on Inheritance is from a manuscript by the 
 late Lieutenant-Colonel John Baillie, who translated the first volume 
 of the Du/est of Imameea Lcnc, compiled under the superintendence 
 of Sir William Jones, and it is believed, for the reasons mentioned 
 in the Introduction, to be a translation of a further part of that 
 digest. 
 
 2 Included by the Shuraija under Subub. — Ante, p. 261. — Ed. 
 
 y 2 
 
124 
 
 INHERITANCE. 
 
 Class first, 
 
 immediate 
 
 parents 
 
 and 
 
 children 
 
 how low 
 
 soever. 
 
 Parents 
 inherit 
 with 
 children 
 how low 
 soever, but 
 grand- 
 children 
 are ex- 
 cluded by 
 children, 
 and great- 
 grand- 
 children 
 by the 
 former 
 
 Any indi- 
 vidual of 
 this class 
 excludes 
 the two 
 following, 
 as grand- 
 fathers, 
 brothers, 
 and 
 uncles. 
 
 The first 
 class in- 
 volves two 
 descrip- 
 tions : the 
 deceased's 
 root, and 
 his off- 
 spring. 
 
 Of whom 
 neither 
 excludes 
 the other 
 from 
 succes- 
 sion, be- 
 cause 
 proximity 
 of degree 
 can only 
 operate 
 
 In the first class are included by law the father and 
 mother, or immediate parents only, of the deceased, with- 
 out extending to more remote ancestors, and his children, 
 extending to the lowest, as grandchildren, great-grand- 
 children, and so on, however remote in descent, with this 
 proviso, that of these the nearer always excludes from 
 succession one more remote in degree. Thus the father 
 and mother of a person deceased inherit with his children, 
 his children's children, and his children's children's chil- 
 dren, and so on ; whereas grandchildren do not inherit 
 with the immediate offspring of the deceased, nor do great- 
 grandchildren with the latter ; but, on the contrary, each 
 degree of posterity totally excludes that more remote from 
 any title to succession. Further, no member of the two 
 following classes can inherit, whilst any individual, even a 
 female of this series, exists, and however remote in descent 
 such female may be. Thus, a grandfather of the deceased 
 cannot inherit with any one of the immediate parents, nor 
 of the children how low soever; and in like manner a bro- 
 ther of the deceased is completely excluded by the existence 
 of any member of this series ; as are also all uncles both 
 paternal and maternal, whom we shall hereafter describe 
 as being placed in the third series of consanguineous 
 heirs. 
 
 The first class, as may have been observed, comprehends 
 two descriptions, viz., first, the root of the deceased, which is 
 limited in number, as including only the immediate parents, 
 whose place in succession with children cannot be supplied 
 by ancestors more remote ; and second, the branch or offspring 
 of the deceased, which is unlimited in number and degree, 
 as comprehending children and children's children however 
 remote in descent, observing always the rule of precedence 
 by proximity in degree, and thus supplying the place of 
 each step in event of failure, by the next thereto in descent. 
 It is further to be observed of these two descriptions, that 
 no member, even the nearest one, as a father, for example, 
 of the deceased, can exclude from succession the most 
 remote of the other as a great-grandchild ; but, on the 
 contrary, this exclusion by proximity of degree takes effect 
 
HEIRS BY CONSANGUINITY. 325 
 
 only where the heirs are of one and the same description, exclusion 
 like a son, for instance, or a daughter of the deceased, who heirs are 6 
 necessarily excludes a grandchild from inheritance. of one 
 
 These principles of law are established as well by t jo^ rip " 
 unanimous consent of most of our doctors as by express p r00 f by 
 traditions of the two holy Imams, 3 on whom be peace, tradition 
 reported by Zuraru in these words : " Not one of the foregoing 
 creation of God can inherit with a child of the deceased, principles, 
 except the immediate parents and the husband, or wife ; 
 should there be no immediate children, grandchildren, 
 whether male or female, supply their place in succession : 
 those from a son inheriting the share of a son, and those 
 of a daughter taking her portion of the inheritance ; and 
 be these ever so remote in descent, whether two or three 
 generations, or more, still they inherit the portion of 
 immediate offspring, and exclude from succession every 
 description of heirs that a child begotten by the deceased 
 would have excluded if in existence." Further, by a report 
 of BooliGyr from the Imam Mohummud Bdkir, on whom be 
 peace, in these words, '*' no brother or sister even by the 
 full blood, and no brother or sister by the father's or by the 
 mother's side, can take any part of the inheritance with the 
 father of the deceased." Likewise by a decision of the 
 same Imam, quoted by Aboo Baseer in the case of a person 
 who died, leaving his father, paternal uncle and grand- 
 father, to this effect : " The succession rests solely with 
 the father, and neither uncle nor grandfather can inherit 
 any part thereof." Also by a tradition of this holy Imam, 
 recorded by Yuzeed Kunsaij in these words : " Your son 
 is preferred in succession to your grandson, and your 
 grandson excludes your brother." To the same effect are a grand- 
 various other reports generally known, in some of which, motner 
 however, a species of exception from the foregoing rules in inherit a 
 favour of a grandmother only, 4 although not positively ®! xth with 
 enjoined, would appear strongly recommended, viz. that immediate 
 
 3 Mohummud Bakir, the fifth Imam, and his son Jafer Sadik, or 
 the Just. 
 
 4 According to the Shuraya the benefit of the exception extends 
 to the grandfather also. — Ante, p. 279. — Ed. 
 
326 
 
 INHERITANCE. 
 
 parents, 
 which is 
 recom- 
 mended as 
 a gratuity. 
 
 But not in 
 virtue of 
 a legal 
 title. 
 
 Class 
 
 second, 
 
 remote 
 
 ancestors 
 
 and 
 
 brothers 
 
 and 
 
 sisters. 
 
 Grand- 
 fathers 
 exclude 
 great- 
 grand- 
 fathers, 
 as do 
 brothers 
 and sisters 
 nephews 
 and nieces, 
 by reason 
 of prox- 
 imity of 
 degree. 
 
 Two 
 separate 
 descrip- 
 tions : 
 
 in each of 
 which the 
 heirs are 
 preferred 
 by prox- 
 imity, but 
 not in both 
 promiscu- 
 ously. 
 
 she shall receive a sixth part of the inheritance in cases 
 where, from failure of children, the portion of the immediate 
 parent, her child, whether father or mother, is increased ; 
 this, however, is to be understood as a gratuitous subsis- 
 tence, and by no means in virtue of a legal title to suc- 
 cession, from which, as we have already seen, all more 
 remote ancestors are entirely excluded by the existence of 
 an immediate parent. 
 
 The second class of consanguineous heirs comprehends 
 grandfathers and grandmothers of the deceased, how high 
 soever in degree of ancestry, and brothers and sisters 
 and their children however remote in descent, the nearest 
 always excluding one more removed ; — thus, a grandfather's 
 father cannot inherit with a grandfather or grandmother, 
 and even a brother's son has no title with a brother or 
 sister of the deceased ; a brother's grandson is excluded by 
 a brother's or by a sister's son ; and, in short, the arrange- 
 ment respecting children and children's children of the 
 deceased, formerly explained, has a similar influence exactly 
 over members of this class ; of which, further, no individual 
 can possibly inherit whilst any member, even a female of 
 the first series, exists. 
 
 This second class likewise involves two separate de- 
 scriptions of heirs : one comprehending all grandfathers 
 and grandmothers of the deceased, how high soever in the 
 line of ancestry, with application of the rule of precedence 
 by proximity, to the nearer first and then the more remote ; 
 and the other including all brothers and sisters and their 
 children, how low soever, always observing the same rule. 
 To each of these descriptions there belong unlimited degrees 
 of ascent and descent — thus, the degree of grandfathers and 
 grandmothers is nearer to the deceased, and necessarily 
 excludes that of their parents, and the degree in like manner 
 of brothers and sisters nearer than that of their children ; 
 but no member of one description, even the nearest in de- 
 gree, can exclude even the most remote of the other from 
 inheritance, because exclusion by proximity can only take 
 effect amongst heirs that are of one and the same descrip- 
 tion, in the same manner as a child of the deceased, even 
 
HEIRS BY CONSANGUINITY. 327 
 
 the most remote in descent, is not excluded by the exist- 
 ence of both father and mother, or any one of them. For 
 example, a grandfather of the deceased, however near, in- 
 herits with the immediate offspring of a brother or sister, 
 and their children's children how low soever ; but does by 
 no means exclude them from succession ; and in like manner 
 a brother or sister of the deceased may be associated with 
 a great-grandfather or grandmother however remote in as- 
 cent. Upon this principle, if a brother dying should leave 
 his brother, his grandfather's grandfather, and a brother's 
 or sister's son, the inheritance would be divided betwixt his 
 brother and grandfather's grandfather, and no part thereof 
 would fall to the nephew who is excluded in this example 
 by a nearer in degree of the same description. Upon the 
 same principle, were the deceased to leave a brother's or 
 sister's son, his grandfather and a grandfather's father, the 
 property would in the case be divided betwixt the two 
 former, and no part whatever thereof could be claimed by 
 the great-grandfather, he being, in this example, excluded 
 by one nearer in degree of the same description of heirs. 
 
 'Further, whilst any individual, whether male or female, Any in- 
 in whatever degree or description of this series, exists, Jj id | 
 no member of the third or following class can have any excludes 
 
 title to inheritance. f\ the . 
 
 following. 
 
 These principles regarding the second class of heirs by Tradi- 
 consanguinity are established not only by what has been tional 
 already stated in treating of the first, and by the general 
 assent of our doctors, but also by a judgment of the Imam 
 Jdfer Sddik, on whom be peace, reported by Humza Elm 
 Humrdu in the following words : "I inquired respecting 
 Kulalut or distant kindred : he replied, ' These inherit only 
 upon failure of children and parents' " — likewise by a report 
 of Ismdiil Jdfy in these words : " I heard the Imam 
 Mohummud Bdkir, on whom be peace, declare, that a 
 grandfather divided the inheritance with brothers of the 
 deceased, (that is, inherits with them,) be their number 
 what it may, even to an hundred thousand." Further by 
 what is related of the Imam Jdfer Sddik, on whom be 
 peace, by Ahdn Ebn Tughlib, in these words : " I asked 
 
328 INHERITANCE. 
 
 regarding a brother's son and a grandfather ; he answered, 
 ' They divide the inheritance by halves.' " Again, by a 
 decision of the same Imam, in the case of a person who 
 left his daughter, and a sister by the same father and 
 mother, viz., " that the whole property descends to his 
 daughter, and the sister inherits no part thereof." By 
 another, in a case where the deceased had left a daughter's 
 daughter and his brother, to this effect, " the succession 
 is to the nearest of kin, viz. the grandchild only," and by 
 a third, when the Imam was interrogated respecting an 
 uncle's son, and a grandfather, he replied, " the whole 
 property goes to the grandfather alone." 
 
 To the same effect are various other authentic traditions 
 generally known, which demonstrate the association of 
 grandfathers with brothers in the right of succession, com- 
 prehending as well the most remote as the nearest in 
 degree, with application always of the rule of precedence 
 by proximity in each, as laid down by express traditions, 
 which, whilst they require a preference to the nearest 
 grandfather in exclusion of one more remote, leave the 
 common right of succession in this description with that of 
 brothers perfectly established. Nor does it by any means 
 affect this principle of law whether a brother's son, for 
 example, of the deceased, be in a more remote degree than 
 that of the grandfather in ancestry or otherwise, because 
 proximity of degree can only have effect where the heirs 
 are of one description, that is, in the same relation to the 
 deceased, and by no means where their relation is different, 
 which is indeed clearly proved by the traditional report of 
 Abdn, formerly quoted, directing an equal distribution of 
 inheritance by halves in the exact example before us of a 
 brother's son and a grandfather. 
 Class Under the third class of consanguineous heirs are com- 
 
 third, prehended brothers of the deceased's father, brothers of 
 
 uncles ana . 
 
 aunts and the mother, and the sisters of both ; commonly known 
 
 t ! 1 ?, 1 ^ bv the characteristic appellation of paternal and maternal 
 
 children J l r , * • 
 
 how low uncles and aunts ; and upon failure of these, their children 
 
 soever. anc j Q^i^en'g children, and so on, the nearest in descent 
 always excluding one more remote. Thus, the son of a 
 
HEIRS BY CONSANGUINITY. 329 
 
 paternal uncle does not inherit with a paternal uncle or 
 aunt ; and in like manner the son of a maternal uncle is 
 excluded by a maternal uncle or aunt. 
 
 This class, it may be observed, involves only one All form- 
 general description of heirs, because their title to succes- ge f, era i 
 sion is derived from one general relation to the deceased, descrip- 
 viz. that of brotherhood or sisterhood to his parents, for 
 brothers and sisters we have already seen to be included in 
 one description of the second series ; and consequently all 
 persons connected by this tie must also be considered in 
 one and the same description, which, however, like the 
 former unlimited, possesses numberless degrees of proximity 
 and distance that are necessarily referred to in settling the 
 succession. Thus, a paternal uncle or aunt is obviously 
 nearer in degree to the deceased than the son of a paternal 
 or maternal uncle, and an uncle or aunt by the mother's 
 side, nearer than the son of a paternal or maternal uncle Without 
 or aunt. It follows, therefore, that with a maternal uncle t jQ n mc " 
 only of the deceased, or with a single maternal aunt, not betwixt 
 one of their children, nor the children of a paternal uncle ancTma^er- 
 or aunt, can have any title to inheritance ; and by the same nal, but 
 rule, if a paternal uncle or aunt of the deceased exist, no c \ n ^ es the 
 part of the succession can go to their children, or to those descend- 
 of a maternal uncle or aunt. In short, the rule of preference t h e ther 
 in succession by proximity of degree has an uniform in- as well as 
 fluence over this description of heirs, their children and 
 children's children ad infinitum, with one only exception, With one 
 
 which the ereneral assent of all our doctors has ratified and exception 
 ° _ in favour 
 
 confirmed, viz. that the son of a paternal full uncle 5 ex- of the son 
 
 eludes a paternal half uncle only of the deceased, and takes ° , , 
 
 the whole inheritance preferably to the latter^ although excludes a 
 
 nearer in degree, if the succession should be limited to , a " l ! nc e 
 o ' from m- 
 
 these two ; and it is in virtue of this exception that, had heritance. 
 the Prophet of God, on whom and his posterity be blessing 
 and peace, left no issue at the period of his dissolution, 
 his whole succession must by law have devolved on the 
 
 5 That is, the son of an uncle who was full brother to the 
 deceased's father by the same father and mother. 
 
330 
 
 INHERITANCE. 
 
 Proof by- 
 traditions 
 of the 
 general 
 rule. 
 
 Commander of the Faithful Alt/, on whom be the blessing 
 of God, in preference and complete exclusion of Abhass ; 
 for Aboo Tdlib was the full brother of Abdoolla, both by- 
 father's and mother's side, and consequently his son, the 
 Commander of the Faithful, although more remote in degree, 
 must have excluded Abbass, half-uncle of the Prophet, as 
 being brother to Abdoolla by the father's side only. 
 
 The general principles of law first described regarding 
 this third class of consanguineous heirs are established in 
 part by the reports and traditions formerly quoted, and 
 further by a judgment of the Imam Jdf&r Sddik, recorded 
 by Aboo Buseer, in the case of a person who dying had 
 left an aunt by the father's side, and also a maternal 
 aunt, to this effect: "Two-thirds of the succession to the 
 deceased's paternal aunt, and one-third to his aunt by 
 the mother's side." Likewise by a tradition of the same 
 Imam quoted by Aboo Buseer in these words : " A 
 maternal uncle and aunt may inherit the whole property 
 of a person deceased, if there be none other nearer in 
 degree, as Almighty God hath declared ' Relatives by 
 blood are preferred in succession some of them to others.' " 
 Further by a decision of the Imam Mohummud Bdki/r, on 
 whom be peace, recorded by Iloosein Ebn Hufcum, in the 
 case of a person who dying had left two maternal uncles 
 and his master, by whom he was emancipated, upon which 
 the Imam decreed, applying the sacred text " Relatives 
 by blood are preferred," " that the property is between 
 the two uncles." Also by a report of Ebn Mohurez to 
 this effect, " that he put the case of a paternal uncle's son 
 and maternal aunt to the Imam Jdfer Sddik, on whom be 
 peace,, and was answered, 'The property goes all to the 
 aunt.' " Likewise the case of a paternal uncle's son with 
 a maternal uncle, which was decided " The whole inherit- 
 ance to the uncle." Farther, the case of a paternal uncle's 
 son with the son of a maternal aunt, which was answered 
 in the words of the Koran, "To the male the share of 
 two females." And, lastly, by the same Imam, in the 
 case of a paternal uncle and aunt, in confirmation of the 
 foregoing principles, we have the following decision : "To 
 
HEIRS BY CONSANGUINITY. 331 
 
 the uncle two-thirds of the inheritance and one-third to 
 the aunt." 
 
 To the same effect are many other authentic traditions Proof of 
 generally known, and with respect to the particular excep- tion exce P" 
 tion above described, in addition to the unanimous assent 
 of all our doctors, it is established by an express tradition 
 of the Imam Jdfer Sddik, on whom be peace, recorded 
 by Hoosein Elm Amaru in these words. " The Imam, on 
 whom be peace, put this question to me : ' Who is 
 preferred in succession to a jDerson deceased, the son of 
 a paternal full uncle, or his paternal uncle by the same 
 father only ? ' I replied that I had heard a tradition from 
 the Commander of the Faithful to this effect : ' The sons 
 of paternal full uncles are preferred to kinsmen by the 
 father's side only.' He observed, ' You have explained it 
 in a clear and obvious manner. Verily, Abdoolla, father 
 to the Prophet of God, was full brother of Aboo Tdlib by 
 the same father and mother, whence the Commander of 
 the Faithful, as son of Aboo Tdlib, had no issue of the 
 Prophet remained, would have excluded Abbass, his uncle 
 by the same father only, from inheritance.' " 
 
 And hereupon a question has arisen whether the This 
 
 exception is by law restricted to the particular instance exce P t i° r ^ 
 . " l restricted 
 
 before us without application to any other, or may be also to the 
 
 leafaliy extended to all similar cases. The most common P articular 
 ° J case 
 
 and prevalent doctrine has restricted its influence to this described. 
 
 particular case alone, and the author of the Shuraya has 
 
 expressly declared that if with these two persons, viz., the 
 
 son of a paternal full uncle and a paternal uncle of the 
 
 half blood, any other heir, even a maternal uncle, should 
 
 exist, the decision of law would be completely altered, and 
 
 the title of the uncle's son entirely cut off. 
 
 Upon failure of the various degrees already mentioned On failure 
 
 of this third class, viz. paternal and maternal uncles and JL^^g 
 
 aunts and their children, however remote in descent, the the 
 
 inheritance of a person deceased falls by law to the paternal goesTcT 011 
 
 and maternal uncles and aunts of his father and mother, grand- 
 
 and after them to their children's children how low soever, !L. an( j_ 
 
 observing always the rule of precedence by proximity and aunts and 
 
 their 
 
332 INHERITANCE. 
 
 descend- arrangement conformable thereto, already so often described. 
 
 ants These may be denominated the second step of this third 
 
 the second series of consanguineous heirs, and if of them no individual 
 
 ff"? p of . should exist, the inheritance reverts to paternal and maternal 
 this series; ' r 
 
 after uncles and aunts of the deceased's grandfather and grand- 
 
 whom are j^q^qj, a ft er whom to their children and children's chil- 
 
 the great- ' 
 
 grand- dren, how low soever, observing the rule of precedence by 
 
 auntf and proximity as above. These form the third step of this 
 forming series ; and upon entire failure of them the uncles and 
 steo of aunts of a great-grandfather and grandmother succeed to 
 this series; the deceased; after whom their children and children's 
 upon children, and so on. These latter constitute the fourth 
 
 failure of & ^ e ^ f ^ e ger i es . an ^ ? upon the same principle, we may 
 great- suppose a further progression, ad infinitum, which principle 
 
 f r f, nd " of law is fully established by the preference expressed in 
 uncles and the sacred text to " relations by blood, and by the universal 
 
 aunts maxim of inheritance which places " every zoo rult/um, or 
 
 succeed, _ . . 
 
 forming distant kinsman, in the exact situation of that person 
 
 nearer to the deceased, through whom his relation is 
 
 derived." 
 
 Full This leads us to describe the following three general 
 
 relations, ru ] es respecting succession, to which it is particularly neces- 
 male or sary that attention should be paid. The first of these is 
 female, ^^ ever y p erson related to the deceased by both sides, 
 those by viz., the father's and mother's, in any degree of consan- 
 f th r's guinity, excludes from inheritance a person in the same 
 side from degree by the father's side only, and this whether a male 
 o^ r ;f";„ or female* the latter being deprived of every title to sue- 
 
 hucg ir in * o j. •/ 
 
 the same cession. Thus, a brother, for example, or a sister of 
 degree, ^ e deceased by the same father and mother, excludes a 
 an d b brother or sister being in the same degree by the same 
 sisters, father only. The same principle likewise applies to 
 paternal uncles and aunts of the deceased, and also to 
 maternal uncles and aunts, provided they are in one and 
 the same degree of propinquity. Thus the son of a brother 
 by the same father and mother does not exclude a brother 
 by the same father only, because those degrees of relation- 
 ship are different ; whereas the son of this latter, as in the 
 same degree, would be entirely excluded by the former. 
 
 the fourth 
 step 
 
uncles and 
 aunts, 
 
 GENERAL RULES OF SUCCESSION. 333 
 
 A paternal uncle, again, related by both sides, meaning paternal 
 thereby a brother of the deceased's father, by the same 
 father and mother, does not exclude a brother of the de- 
 ceased by the same father only, nor even the son of such 
 brother ; but certainly excludes an uncle by the same father 
 only. Further, the son of a full paternal uncle does not 
 exclude an uncle, whether paternal or maternal, by the 
 father's side only, except in the particular case formerly 
 quoted, on which all our doctors are agreed ; but would, of 
 necessity, exclude the son of such uncle, as being in the 
 same degree. If, for example, therefore, a person dying 
 should leave a brother by the same father only, and a 
 sister by the same father and mother, the brother could in 
 this case take no part of the inheritance, which would 
 descend entirely to the sister ; and this rule universally 
 applies not only to all brothers and sisters with regard to 
 each other, and to their children in like manner, but also 
 to all paternal uncles and aunts with respect to each other, 
 and to their descendants ; and likewise to all maternal maternal 
 uncles and aunts, and to their children, how low soever. uncles and 
 
 It does not, however, we observe, apply to paternal 
 uncles and aunts, with regard to those on the mother's promise^ 
 side, promiscuously, although these are all, as already ously , 
 observed, included in one description of the same class or both the 
 series. Their general relation to the deceased, it is true, 
 as derived through one medium, viz., brotherhood with his 
 father and mother, would appear to require the general 
 application of this rule without distinction to them all, in 
 the same manner as it applies to all those related by 
 brotherhood with the deceased himself; for of the latter a 
 full brother excludes entirely a sister by the same father 
 only, and vice versa, as has already been stated. This 
 objection, however, is removed when we consider that the 
 relation of paternal and maternal uncles and aunts being 
 derived through the father and mother, or roots of the 
 deceased, betwixt whom, though equal in degree, no ex- 
 clusion can take place, their shares or ranks in succes- 
 sion being separate and distinct, it follows that these 
 uncles and aunts, related through them respectively, must 
 
 latter. 
 
334 INHERITANCE. 
 
 have likewise separate and distinct ranks in succession ; 
 and hence the rule of exclusion cannot operate promis- 
 cuously, notwithstanding their equality in degree. It is 
 therefore established by unanimous assent that a paternal 
 uncle or aunt of the deceased, being of the full blood 
 in manner above alluded to, does not exclude from in- 
 heritance a maternal uncle or aunt of the half-blood only, 
 but certainly excludes another paternal uncle or aunt of 
 this latter description. In like manner, a maternal uncle 
 or aunt, who is full brother or sister to the mother of the 
 deceased, does not exclude a paternal uncle or aunt of 
 the half-blood only, but would certainly exclude another 
 maternal uncle or aunt who bore only this imperfect 
 relation. 
 
 For example, if a person dying should leave a paternal 
 half-uncle and a maternal full aunt, no exclusion here 
 taking place, the former would inherit two-thirds of the 
 property, and one-third thereof would descend to the 
 latter. Again, if he should leave a maternal half-uncle 
 and a paternal full aunt, the division of inheritance would 
 be guided by the same rule, viz. to the former one-third, 
 as deriving his title from the mother, and two-thirds 
 to the latter ; for it is reported by Ahoo Ayoob, from the 
 Imam Jdfer Sddik, on whom be peace, to be written in 
 the book of Alt/, on whom be blessing and peace, " That a 
 paternal aunt is by law in the exact situation of a father ; 
 a maternal aunt in that of a mother ; and, in general, every 
 distant kinsman in the situation of that relation more near 
 through whom his title is derived." 
 Proof by The principle of exclusion by double tie or full blood 
 
 relationship is established by the following tradition of the 
 Imam Jdfer 8ddik, recorded by Ynzeed Kunasy in these 
 words : " Your full brother by the same father and 
 mother is preferred to your half-brother by the same 
 father only ; and also the son of your full brother is pre- 
 ferred to the son of your half-brother only ; your paternal 
 uncle, the full brother of your father, to your paternal 
 uncle his brother by the same father only ; and the son of 
 such paternal full uncle to the children of a paternal half- 
 
 traditions. 
 
kinsmen 
 exclude 
 
 residue. 
 
 GENERAL RULES OF SUCCESSION. 335 
 
 uncle only." Likewise, by a tradition of the Commander 
 of the Faithful, quoted by Earns in these words : " Surely 
 kinsmen by the same father and mother shall inherit in 
 preference to kinsmen by the same father only." 
 
 The second general rule regarding inheritance to be Full 
 described is, " That every person related to the deceased 
 by both sides, viz. the father's and mother's in any degree those by 
 of consanguinity, excludes a person having the same rela- *J* e mo " 
 tion by the mother's side only from all title to the residue from the 
 or surplus of an estate after distribution of the shares, but 
 not from his appointed share of inheritaDce, provided they 
 are both in the same degree ; " for a paternal uncle having 
 this full relation does not exclude a sister of the deceased 
 by the same mother only, either from her residuary title 
 or her appointed share, by reason of their disparity in de- 
 gree. As an example of this general rule, if we suppose 
 the case of two sisters of a person deceased, one his full 
 sister by both parents, and the other his half sister by the 
 mother only, the appointed share of the former being a 
 half, and of the latter a sixth as one, or a third in the 
 event of plurality, which leave a surplus of a third in the 
 first case, and a sixth of the estate in the latter, this 
 surplus or residuum would go exclusively to the full sister, 
 in addition to her share, and no part thereof to the other. 
 Again, if we suppose two brothers of the deceased, one by 
 the same father and mother, and the second by the same 
 mother only, the latter, as one in this case, receives only 
 a sixth, or a third, in the event of plurality, viz. his ap- 
 pointed share of inheritance, and all the residue thereof 
 goes to the full brother. The rule is exactly the same 
 with respect to children of brothers and sisters, and to 
 paternal and maternal uncles and aunts and their de- 
 scendants in the order so often adverted to. 
 
 Such, at least, is the most common and prevalent doc- 
 trine amongst our lawyers, of whom many have asserted 
 its confirmation by general assent, seeing that the deficiency 
 or loss by defalcation of an estate, howsoever occasioned, 
 must invariably affect the relation by both sides ; and con- 
 sequently the surplus or residuum after the distribution of 
 
336 INHERITANCE. 
 
 the appointed shares should in justice be applied to com- 
 pensate their loss. For example, if we suppose, together 
 with a full sister and one by the mother only, a husband 
 also, or a widow of the deceased, to exist, the full sister can 
 only receive what remains of the estate after distribution of 
 the appointed shares to the other two ; and thus, as the 
 husband, for example, is entitled to one-half of the whole 
 property, and the sister, by the mother's side, to a sixth, 
 there remains only a third for the full sister, who conse- 
 quently, in this example, suffers a deficiency of one-sixth 
 in her appointed share of succession. There is, besides, 
 an express tradition of the Commander of the Faithful, 
 upon whom be peace, in confirmation of this rule recorded 
 by Aboo Omar al Abdy, in these words : " Brothers or 
 sisters by the mother can never inherit more than a third, 
 nor can their share be less than a sixth." 
 As do also It is further to be remarked that a person related by 
 
 * latedbv ^ ne Cher's side only supplies the place of a full kinsman 
 the upon failure of the latter in all cases, and therefore excludes 
 
 skle 6r S those related by the mother's side from all residuary title, 
 in like manner as the former. This is agreeable to the 
 doctrine of SudooJc and most of our lawyers, because the 
 full kinsman and he by the father's side only, on failure 
 of the former, suffering alike the loss or deficiency, they 
 ought in justice to have a similar exclusive title to the 
 residuum or surplus. Besides, there is a positive judgment 
 to this effect of the Imam Mohummud Bdkir, on whom 
 be peace, quoted by Mohummud Elm Mooslim, in these 
 words : "I inquired respecting the son of a sister by the 
 father's side, with the son of a sister by the same mother 
 only. He replied, 'To the latter a sixth, and all that 
 remains to the former.' " 
 A person The third general maxim alluded to is, " That every 
 
 having person having two different relations to the deceased of a 
 tions does nature whereof one impedes not the other, does not exclude 
 notex ,". a person having only one relation, provided it be in the 
 
 elude him 
 
 having same degree ; but the former receives two portions of 
 
 one,_but inheritance in virtue of his double title, and the latter 
 receives a . }J 
 
 twofold has only oue portion in virtue of his single relation. 
 
GENERAL RULES OF SUCCESSION. 337 
 
 This principle is ratified by unanimous assent without portion of 
 any difference of opinion, because exclusion from inherit- ance 
 ance is founded by law on the disparity of degrees in pro- 
 pinquity and distance, and by no means on the unity or 
 plurality of relationship. 
 
 If, therefore, a person deceased should leave one 
 maternal uncle, and a paternal uncle who is also uncle 
 by the mother's side, the maternal uncle would receive 
 first a third of the inheritance, the paternal uncle as such 
 alone would inherit two-thirds ; and further, in virtue of 
 his relation by the mother's side, would be entitled to half 
 the portion first allotted to the maternal uncle ; in reality 
 the latter's portion would be only one-sixth of the estate, 
 and five-sixths thereof would go to the former, in the same 
 manner as if the deceased had left one paternal uncle and 
 two uncles by the mother's side, because each of the sides 
 by which the first is related founds equally a title to 
 succession, as is clearly proved by the absolute terms in 
 which the various traditional documents to this effect are 
 conveyed. 
 
 To illustrate the possibility of these two relations Example 
 being combined in one person, let us suppose that Zuyd, of tl ^. 
 for example, marries Tulha, who is half-sister to his half- nation, 
 brother, either by the father's or mother's side, but in 
 such manner as that no relation subsists between the 
 spouses: that Zuyd has a son by a former wife, and Tulha 
 has had a daughter by a former husband ; these two in- 
 termarry, and have a son named Omur; Zuyd also has a 
 son by his wife Tulha, whom we shall call BuJcur. Now 
 this Biikur is consequently paternal uncle to Omur, being 
 the half-brother of his father, whilst he is also maternal 
 uncle, being half-brother by the mother's side of his 
 mother. 
 
 But a more simple and obvious example occurs in 
 supposing any person whom we shall name Zuyd to have 
 a half-brother by the father's side, and a half-sister by the 
 mother's, and these two to intermarry, in which event 
 Zuyd is manifestly both paternal and maternal uncle to all 
 the offspring of that marriage. 
 
 PART II. Z 
 
338 
 
 INHERITANCE. 
 
 Marriage. 
 
 A husband 
 and wife 
 univer- 
 sally re- 
 ceive a 
 fixed share 
 of inherit- 
 ance from 
 which no 
 heir can 
 exclude 
 them : the 
 former a 
 half or a 
 fourth, 
 and the 
 latter a 
 fourth or 
 an eighth 
 
 Of Inheritance by Affinity. 
 
 The second cause which operates in law a title to 
 succession is affinity or marriage, by virtue of which a 
 surviving husband and wife enjoy respectively a definite 
 and fixed share of the deceased spouse's inheritance, nor 
 can either be excluded from that share by any heir what- 
 soever; but, on the contrary, they are associated and 
 inherit with every class and description of heirs, whether 
 by consanguinity or patronage, and this by unanimous 
 assent, agreeable to the word of Almighty God : " And 
 for you is the half of what your wives shall leave if they 
 have no issue ; but if they have issue, then ye shall have 
 a fourth part of what they leave after the legacies they may 
 bequeath and payment of their debts. They also shall 
 inherit the fourth of what ye shall leave in case ye have no 
 issue ; but if ye have issue, then they shall receive an 
 eighth part of your inheritance, after the legacies ye may 
 bequeath and payment of your debts." Further, there is 
 a tradition of the Imam Mohummud Bdkir, upon whom be 
 peace, quoted by Aboo Midzd in these words : " Verily, 
 Almighty God hath included a husband and wife amongst 
 every description of heirs, and their shares of inheritance 
 can, therefore, never be less than a fourth and an eighth of 
 the property." Another tradition of the same Imam is 
 reported by Mohummud Elm Mooslim in these words: "A 
 husband can never receive less than a half, if there be no 
 issue, nor can the share of a wife be less than a fourth, if 
 there be no issue ; but if there should be issue, the 
 husband in this case takes a fourth, and the share of a 
 widow in this event is an eighth of the property." To the 
 same effect are many other authentic documents. 
 
 Thus, a husband and wife have each their appointed 
 shares of inheritance in every possible situation, and the 
 remainder of the estate, only after payment of these, 
 descends to the other heirs, whether by consanguinity or 
 patronage, if such exist ; if otherwise, as where a wife 
 may die leaving no heir of any description, save her 
 husband, and the succession is thus limited to him and 
 
HEIRS BY AFFINITY. 339 
 
 the Imam or public treasury, the husband in this event A husband 
 takes not only his appointed share, viz., a half, but has res ^a u ^L a 
 also a residuary title to the remainder. Such, at least, is title in 
 the most common and prevalent doctrine, which, further, eric/to 
 the two Shaikhs, 6 as well as Suyd Moortuza, have declared the public 
 to be incontestable, by reason of an authentic tradition t ' u y ' 
 related by Aboo Buseer in these words : " I was present 
 with the Imam Jdfer Sddik when he assembled the people 
 to prayer, and was informed of a woman's decease, who 
 had left her husband, and no other heir. He replied, 
 ' The property goes all to her husband.' " And another 
 decision of the same Imam., in the case of a woman who 
 left her husband, and no other relations known, viz., " The 
 succession is for the husband entirely ; " as well as several 
 other authentic documents to a similar effect. 
 
 It is otherwise in the case of a husband's decease leaving A widow 
 no heirs of any description save his widow, for she receives r^^uai-v 
 only her appointed share, viz. a fourth part of his pro- title, 
 perty, and the remaining three-fourths go to the Imam 
 or public treasury, as a widow has no residuary title in 
 any situation whatsoever, according to the most prevalent 
 opinion, and to a positive judgment of the Imam Mohinn- 
 mad Bdkir, on whom be peace, quoted by Mohummiid Ebn 
 Mooslim, in the instance of a man who died leaving only 
 his widow, to this effect : " She receives only a fourth 
 part, and the residue goes to the Imam." To the same 
 purport are several other authentic documents ; aud the 
 distinction between a surviving husband and a widow is 
 further expressly confirmed by Allamee in his Tuhreer, by 
 the Martyr in his Loomaa, and likewise by the Shaikh. 7 
 
 It is a prevalent opinion amongst all our doctors, that 
 marriage contracted in sickness or upon deathbed does not 
 found a title to inheritance in the widow ; that deathbed 
 divorce, on the other hand, does not operate her exclu- 
 sion; and, further, that temporary marriage, or contracts 
 
 Shaikh Aboo Jdfer Tocsij and Shaikh Moofeed. 
 Aboo Jdfer Toosy, ' 
 
 i 2 
 
340 
 
 INHERITANCE. 
 
 of Mootd, by no means establish a title to succession in 
 either of the parties. To illustrate these principles of law, 
 the following three sections are requisite : — 
 
 Deathbed 
 contracts 
 of mar- 
 riage if 
 not con- 
 summated 
 found no 
 title to in- 
 heritance. 
 
 If the 
 
 husband 
 consum- 
 mates or 
 recovers, 
 and after- 
 wards 
 dies, the 
 right of 
 inherit- 
 ance is 
 esta- 
 blished 
 
 If the wife 
 should die 
 
 Section First. 
 
 If a sick man contract marriage with a woman, whether 
 his distemper be dangerous or otherwise, and die of that 
 distemper, without intervenient recovery or convalescence, 
 previous also to consummation of his nuptials, such contract 
 of marriage is thereby null, or in other words, is not con- 
 sidered to be established in law, until consummation, or 
 recovery of the husband from that disease with which he 
 was afflicted at the time. It follows that in this case there 
 can be no title of inheritance between the parties, no dower 
 even incumbent on the husband, and that the woman is not 
 bound to observe an Iddut or term, of probation. This law 
 of annulment of contracts entered into by parties legally 
 qualified to contract, without divorce or voluntary dissolu- 
 tion, may certainly at first sight appear irreconcilable, but 
 all objection and doubt is removed necessarily by a refer- 
 ence to those authentic proofs of their nullity, already 
 detailed in the " Book of Marriage." 8 
 
 If, on the other hand, the contracting party should die 
 of any other complaint, or of that same distemper after in- 
 tervenient recovery, or after consummation of his marriage, 
 the contract is, in this case, valid and binding, consequently 
 the right of succession fully established beyond the possi- 
 bility of doubt by reason of the absolute and comprehensive 
 sense of the sacred text already quoted, and the particular 
 traditions establishing, in this case, the validity of contract 
 which were formerly referred to in treating of marriage. 9 
 
 If, again, the woman should die previous to consum- 
 
 8 This Book, which was probably added to the Digest compiled 
 under the superintendence of Sir William Jones, by the translator, 
 was never published, and has not been found among his papers 
 which have come to my bauds. — Ed. 
 
 e See last note. 
 
HEIRS BY AFFINITY. 341 
 
 mation of the marriage with a man who was sick at the the hus- 
 period of contract, and notwithstanding survives her, his inherits, 
 right of inheritance is liable to difficulty and doubt, arising, 
 on the one hand, from the validity of contract, which, if 
 allowed, gives room for the application of the sacred text ; 
 and, on the other, from a consideration that its validity is 
 suspended upon recovery, or consummation of the husband, 
 neither of which is in this case established. The first 
 suggestion, however, appears the stronger, as, from the 
 husband's survival, in whose prior death alone, without con- 
 summation or recovery, the objection to validity of contract 
 could in such cases occur, there appears full ground for 
 the application of the sacred text regarding inheritance by 
 marriage. 
 
 Upon this principle, further, if a woman on her death- As also 
 bed, or whilst afflicted with any distemper, should contract ^ on e t "^ ct g 
 ••herself in marriage to a man in health at the time, but who herself in 
 dies without consummation, and she thus survives him, the ^nd sur- 
 contract is perfectly valid according to the best authority, vives, her 
 and the right of inheritance fully established, which doctrine su g ccess i on 
 both Alldma and the Martyr have approved. The various is esta- 
 arguments and further examples connected with this subject 
 may be found at large in the " Book of Marriage."' 
 
 Section Second. 
 
 If a husband divorce his wife upon deathbed or whilst Deathbed 
 afflicted by any distemper, of which, without intervenient ^^not 
 recovery, he afterwards dies, such divorce has no operation cut off the 
 in law to deprive the widow of her right of succession, ^ ce ^ on 
 unless a full year shall have elapsed from the date thereof unless a 
 until his death, or that she herself in the meantime have elapse ^ 
 married another. If, on the contrary, the husband survive 
 a full year from the date of divorce, or recover of that dis- 
 temper, and afterwards die within the year ; or the widow 
 herself has during his illness taken another husband : in 
 each and all of these cases, she has no title whatever to 
 inherit any part of his property. 
 
 This principle is established by various authentic Proof. 
 
342 INHERITANCE. 
 
 traditions generally known, of which one is reported by 
 Aboo Abbass from the Imam Jdfer Sddik, on whom be peace, 
 in the following words :— 
 
 " If a man divorce his wife whilst in sickness, she is still 
 considered as having a right to inherit whilst he continues 
 in that sickness, even after her iddut has elapsed, should he 
 not recover therefrom." The reporter thus proceeds : "I 
 inquired what if his distemper should be prolonged ? He 
 replied, ' She inherits although it should last for a year ; ' ' 
 or, as this answer has been conveyed by another reporter, 
 " She inherits if he should die of that distemper during 
 the influence of which he divorced her without intervenient 
 convalescence." A further judgment of the same Imam is 
 recorded by Abdool Ruhman Elm Hujjaj upon the question 
 of deathbed divorce to the following effect : " Should the 
 husband die of that disease and the woman have continued 
 single, she enjoys her share of his succession ; but should 
 she marry another person, as this clearly demonstrates her 
 satisfaction at what he has done, she can have no claim to 
 inheritance." This decision is reported by Sumda in a 
 manner somewhat differing from the above, viz. : " She 
 inherits as long as she continues in her iddut (i.e. does not 
 marry another), and if he has divorced her with an inten- 
 tion to injure her by depriving her of this title, she inherits 
 although he should survive a full year ; but if beyond this 
 time even a single day, she has no longer, in any event, a 
 claim to inheritance." In another report it is expressed 
 that the following question was particularly put to the 
 Imam : " What is the longest term of sickness during 
 which the right of a divorced wife to inherit may be 
 preserved ? " and this answer is also recorded : " that the 
 husband shall continue ill thereof until he dies, and that 
 within a year." 
 
 Another tradition of the Imam Jdfer Sddik, on whom 
 be peace, as recorded by Yoonas Ebn Ycukoob in these 
 words : "I inquired of him the cause why a wife when 
 divorced by her husband in sickness with the intention 
 to injure her should, notwithstanding, enjoy her portion 
 of inheritance, whilst the husband, should he survive her 
 
HEIRS BY AFFINITY. 343 
 
 after divorce, has no title whatsoever to her succession." 
 He replied, " That intention to injure is itself the mani- 
 fest cause ; for as the husband, conceiving himself to be 
 on deathbed, thus attempts to deprive his wife of her 
 inheritance, the right is protected and secured by law as 
 a punishment for his unjust attempt." 
 
 In consequence of this report a question of some diffi- Distinc- 
 culty has arisen, viz. whether the right of a wife in these t^t; 6 " 
 cases of divorce depends upon the suspicion of intended divorce 
 injury by the husband; or whether it is a consequence ^Lnt^L 
 of deathbed divorce alone, even although the suspicion be to injure, 
 obviated. A majority of our lawyers have adopted the ^" mu t l ua i 
 latter opinion, founded on the absolute and general sense consent. 
 of most traditions upon this subject ; but the Sheikh,, in 
 his Estulisdr, has expressed a decided preference of the 
 former doctrine, on account of the particular cause assigned 
 in some traditions as above, from which it may be obviously 
 inferred that if the suspicion of injury be removed, as where 
 a wife solicits her own divorce, she can have no title to 
 inheritance. This opinion is further strengthened and 
 confirmed by a report of Mohummud JEbn Basem from the 
 Imdm Jdfer Sddik, on whom be peace, in the following 
 words : " No woman who solicits and obtains her own 
 divorce, whether by Jchoold or paying a compensation, 
 by mabaraat or mutual release, or in any other mode, at 
 her own request, from her husband in sickness, can in- 
 herit his property if he dies, because all connection and 
 mutual regard betwixt them is thereby dissolved." And 
 doubtless such transactions as these have an obvious effect 
 to remove all suspicion or reproach against the divorcer, 
 whose act, on the contrary, under such circumstances, can 
 only be considered as proceeding upon the wife's consent 
 and acquiescence in the surrender of her rights; conse- 
 quently the general sense of those traditions alluded to, 
 must be restricted by this latter, nor are they by any 
 means difficult to be reconciled. 
 
 At the same time the obvious meaning of all traditions 
 recorded upon this subject must lead us to consider death- 
 bed divorce as improper and highly unbecoming in a 
 
344 
 
 INHERITANCE. 
 
 A husband 
 has no 
 claim to 
 inherit 
 from a 
 wife irre- 
 versibly 
 divorced. 
 
 But a re- 
 versible 
 divorce 
 does not 
 preclude 
 his right 
 of succes- 
 sion. 
 
 husband, from its tendency to injure as depriving his wife 
 of her right of inheritance, although such act of divorce is 
 valid in law, and entitles the woman to marry again after 
 lapse of her iddut. Should she avail herself of this privi- 
 lege, and should the husband's illness be prolonged above 
 a year, or should he recover for a period and die of a new 
 distemper, in all and each of these cases there is no right 
 of inheritance betwixt them ; whereas in every other case 
 a wife divorced upon deathbed takes her share of the hus- 
 band's succession, provided she observe the appointed iddut, 
 or term of probation and abstinence after his death. 
 
 All that has been hitherto observed proceeds, however, 
 solely on a supposition of the husband's death after irre- 
 versible divorce of his wife. If, on the other hand, the 
 wife should die after the divorce, there is no difficulty 
 whatever in pronouncing the husband's total and universal 
 want of title to her succession, provided the divorce was 
 irreversible, in the same manner as our doctors have agreed 
 that reversible divorce, should the wife die before expiration 
 of her iddut, does not debar her husband from inheritance, 
 because a woman repudiated by a reversible divorce is still, 
 in law, considered a wife, as long as she continues in her 
 iddut ; and, consequently, the right of inheritance continues 
 established betwixt them, whether he or she dies first ; 
 which principle is further confirmed by an authentic tradi- 
 tion of the Imam Mohummud Bdhir, on whom be peace, 
 quoted by Zurara, in these words: "If a man divorces 
 his wife they are still the heirs of each other so long as 
 she continues in her iddut ; but should he repudiate her by 
 three divorces, he can never after return, and there is no 
 longer inheritance betwixt them." 
 
 Tempo- 
 rary mar- 
 riage, or 
 Mootd, 
 founds no 
 title of in- 
 heritance. 
 
 Section Third. 
 
 There is no right of inheritance betwixt persons con- 
 nected in temporary marriage, or under a contract of mootd, 
 according to the most general and prevalent opinion, because 
 the name of a wife does not in reality apply to a woman 
 contracted in mootd, for of these a man may lawfully 
 
HEIRS BY WULA OR PATRONAGE. 345 
 
 possess more than four at a time, agreeable to a report of 
 Aboo Buseer from the Imdm Jdfer Sddik, on whom be peace, 
 in the words : "I inquired respecting women contracted 
 in mootd, whether their number was restricted to four. 
 He replied, ' No ! nor to seventy ; ' " whereas of wives it is 
 universally agreed that their number cannot exceed four. 
 Since then it appears that these women are not in reality- 
 wives, it follows that they cannot be included in the law 
 of marriage, nor comprehended in the sense and intention 
 of the sacred text already quoted. Besides, we have an 
 express tradition of the Imdm Jdfer Sddik, on whom be 
 peace, to this effect, quoted by Sdeed Elm YuJiar, in the 
 words: — "I inquired regarding a woman who contracts 
 herself in mootd without stipulating the right of inherit- 
 ance. He replied, ' There is no such title betwixt them, 
 whether it be stipulated or not.' " To the same effect are 
 various other authentic traditions generally known, of which 
 one is quoted by Foozei/l Ebn Yusdr, from the Imdm Jdfer 
 Sddik, on whom be peace, in these words : " I asked 
 repecting a woman contracted in mootd. He replied, 
 ' She is one of your female slaves.' " Another tradition of 
 the same Imdm is in these words : " Connection 10 with 
 women is of three sorts : one establishing the right of 
 inheritance, which is that by permanent marriage ; one 
 that does not establish this title, viz. mootd ; and, thirdly, 
 milk ool yemeen, or property." 
 
 Of Inheritance by Dominion or Patronage* 
 
 The third cause described in the opening of this book Wula, or 
 
 as founding in law a title to succession was wula, a term P atrona g e - 
 
 of various application, but signifying in this place the 
 
 connection of one of two persons with the other, produced Of three 
 
 first by emancipation from slavery ; second, by responsibility descnp- 
 
 for crimes, observing, however, this order in succession ; and inheriting 
 
 thirdly, upon failure of these two descriptions, bestowing ln order 
 
 a title of succession upon the Imdm or public treasury failure of 
 
 at his disposal, who is by law the heir of every person 1 . pre " 
 * J j i ceding. 
 
 10 Literally, " Pudenda Mulierum." 
 
346 
 
 INHERITANCE. 
 
 But 
 
 neither 
 with blood 
 relations. 
 
 deceased having no heir besides, and thus may be con- 
 sidered in the third class or degree of succession by wula. 
 
 It is scarcely necessary to remark that no right of in- 
 heritance can be founded on this title expect upon entire 
 and absolute failure of all connections by blood ; and that 
 whilst of the latter any individual, however remote, exists, 
 no matter if an enfranchised slave, no patron or surety 
 for offences can claim any right of succession, nor can 
 this right by any means devolve on the Imam. This 
 principle is established by unanimous assent, both on 
 account of the sacred text, " Eelations by blood are pre- 
 ferred," &c, and of a tradition reported by Jdber Ansary 
 from the Imam Mohummud Bdkir, on whom be peace, to 
 this effect, " The Commander of the Faithful Alij uniformly 
 bestowed the inheritance of persons deceased upon their 
 blood relations in preference of manumittors and patrons." 
 Also of a tradition quoted by Mohummud Elm Keys from 
 the same Imam, in these words : " The Commander of the 
 Faithful, on whom be blessing and peace, was appealed 
 to in the case of a maternal aunt who disputed with the 
 master of a freedman deceased regarding his succession, 
 upon which, pronouncing aloud the words of the sacred 
 text" (above quoted), "he adjudged the whole inherit- 
 ance to the aunt, excluding the manumittor entirely," to 
 which effect there are many other authentic traditions 
 generally known. 
 
 Under this third title of inheritance there are three 
 classes of heirs to be considered ; and, first, 
 
 The manu- 
 mittor is 
 heir to his 
 freedman, 
 but not the 
 freedman 
 to his 
 manumit- 
 tor. 
 
 Of the Wula of Manumission. 
 
 The inheritance of a freedman or enfranchised slave is 
 particularly ordained by law to descend to his manumittor, 
 or the person who had set him free, but by no means 
 that of the latter to the former according to the most 
 prevalent opinion, on which the Sheikh has even denied 
 the possibility of doubt by reason of various authentic 
 traditions, particularly that recorded by Ilulby and 
 Mohummud Ebn Mooslim from the Imam Jdfer Sddik, 
 on whom be peace, in these words : " The Prophet of 
 
HEIRS BY WULA OR PATRONAGE. 347 
 
 God hath declared that the ' Wula of a slave belongs to 
 the person who emancipates him ; ' " and another of still 
 more obvious effect recorded from the Prophet in these 
 words : " Verily Wula is to him only who emancipates." 
 Because the restrictive sense of the word only applied in 
 this tradition clearly proves the exclusion of him who has 
 not emancipated or the person set free. Further, it is 
 recorded by Sabil Elm Dinar as part of a discourse upon 
 rights and duties by the fourth Imdm, u on whom be peace, 
 that he thus expressed himself, " But with regard to your 
 slave whom you have benevolently set free, know that 
 Almighty God will render his ransom a medium of your 
 approach to Himself, and of your salvation from the fire 
 of hell, that your reward in this life is his inheritance 
 should he have no relation by blood, as a compensation 
 for your loss of property, and heaven in the life to come." 
 
 Besides, a title to inheritance can only be established 
 by a legal cause in law, and there is obviously no cause 
 in law why a person already benefited by obtaining his 
 freedom should be heir to his benefactor, whence a mani- 
 fest distinction occurs betwixt the right of inheritance 
 by blood and marriage where the parties are reciprocally 
 heirs to one another, and that by wula when the title 
 is limited to the benefactor alone. 
 
 In cases, however, of mutual wula betwixt two par- c ase f 
 ties, mutual or reciprocal succession may necessarily be reciprocal 
 
 _ veil L'lC 
 
 established by reason of the existence of a legal cause, 
 viz. manumission on both sides ; and thus if a freedman 
 should purchase the father of his emancipator and set him 
 free, such freedman might necessarily inherit from the 
 father of his benefactor, in the same manner as the latter 
 would be heirs to the freedman. 
 
 In order to establish the right of inheritance by emanci- The eman- 
 pation, certain conditions are imposed by law. Of these, ^^be 
 the first is that it should be a voluntary and gratuitous voluntary, 
 act, not urged by necessity or legal obligation of any sort. 
 Thus, if a person emancipate his slave through necessity, 
 
 11 Zeyn ool Abedeen, surnamed Sujjad. 
 
548 
 
 INHERITANCE. 
 
 Tradi- 
 tional 
 proof of 
 this condi- 
 tion. 
 
 as an atonement for a crime, performance of a vow, and 
 the like, or if a slave become free, sui juris, as where 
 maimed by his master, infected by a pestilential disease, 
 or by relation to his master within the prohibited degrees, 
 all these modes of emancipation constitute the slave what 
 is termed in law a Sdeeba, and by no means establish the 
 right of wvla in the master ; but, on the contrary, of such 
 freedmen the Imam is sole heir, should they have no 
 patron or surety for their offences, in which event the 
 patron's right of inheritance is preferred. 
 
 This principle is demonstrated by several authentic 
 traditions, of which one is reported by Elm Bubdb in the 
 following words : " I asked the Imcim MoJtummud Bdkir, 
 on whom be peace, respecting Sdeebas; he replied, ' Observe 
 in the Koran wherever the freeing of a slave is enjoined, 
 and every such slave is in law a Sdeeba over whom there 
 is no wula (i.e. no right of inheritance,) to any person 
 save God, and whatsoever appertaineth to God belongs of 
 necessity to the Prophet, after whom to the Imam, who is 
 therefore liable for the fines or offences of such slave, and 
 consequently takes the inheritance.' " To the same effect 
 is a report of Omar Ebn Alij Alvwas, from the same Imam, 
 on whom be peace ; but the general law expressed in both 
 these, as well as in many other similar traditions, for 
 vesting succession in the Imam, must obviously be limited 
 to such cases where no individual has taken upon him- 
 self responsibility for the slave's fines or offences, which 
 restriction is indeed fully established by several other 
 documents. 
 
 The above condition is further supported by a tradition 
 of the Imam, Jdfer Sddik, on whom be peace, quoted by 
 Hashemy in these words: "I put the case of an eman- 
 cipated slave, inquiring the extent of his freedom and 
 whether he could nominate whom he pleased, his patron 
 or heir ? The Imam replied that if emancipated gratui- 
 tously and voluntarily for the sake of God, the emancipator 
 is still his patron and heir ; but if created a Sdeeba he is 
 entirely at his own disposal, and may constitute whom he 
 pleases his heir ; " that is, in other words, if a master should 
 
HEIRS BY WULA OR PATRONAGE. 
 
 349 
 
 voluntarily, with a pious intention, liberate his slave, he is 
 the patron and heir of that freedman, unless at the period 
 of emanc ipation he should disavow and renounce all future 
 responsibility for his fines or offences ; in which case any 
 other person taking upon himself this responsibility is the 
 heir, as will hereafter appear ; but should the manumittor 
 continue responsible he is still the heir of his freedman. 
 
 To the same effect is a tradition of the Imam Mohummud 
 Bdkir, recorded by Aboo Buseer in these words : " The 
 Commander of the Faithful, on whom be blessing and 
 peace, passed judgment in the instance of a person who 
 had maimed his slave, that such slave is thereby absolutely 
 free, his former master has no authority over him what- 
 soever, and he is Saeeba, may go where he pleases, and 
 may constitute whom he pleases his patron, such person 
 becoming liable for his fines or offences, and eventually 
 inheriting his property under this latter title, not by the 
 right of manumission." 
 
 This doctrine is further confirmed by the obvious sense 
 of his saying, on whom be the blessing of God, wula 
 is for him who emancipates, because hence it is evident 
 that the act of the manumittor establishes this title, and 
 consequently the slave's emancipation sui juris, or by a 
 necessity of law, cannot possibly found a claim thereto. 
 
 The second condition required to establish inheritance 
 by emancipation is : " That the manumittor shall not have 
 qualified his act with a renunciation of all future responsi- 
 bility for the freedman's fines or offences ; " because should 
 he declare himself absolved of these he can have no fur- 
 ther claim of wula whatsoever against the freedman by 
 unanimous assent of all our doctors ; but, on the contrary, 
 whoever becomes responsible is the heir ; and of coarse 
 the succession is vested in the Imam, as is demonstrated 
 by the report of Hashemi/ above quoted, and by another 
 of Aboo Rooba from the Imam Jdfer Sddik, on whom be 
 peace, in these words : " Being asked regarding a Sdeeba 
 or absolute freedman," he replied, " As where a man 
 emancipates his slave, saying, Go wherever you please, I 
 have nothing to do with your inheritance, nor am I here- 
 
 Emanci- 
 pation 
 must not 
 be quali- 
 fied by 
 renuncia- 
 tion of 
 future pa- 
 tronage or 
 liability 
 for fines. 
 
350 
 
 INHERITANCE. 
 
 Renuncia- 
 tion as a 
 bar to in- 
 heritance 
 does not 
 require 
 that wit- 
 nesses be 
 adduced. 
 
 The freed- 
 man must 
 have no 
 blood rela- 
 tions qua- 
 lified to 
 inherit. 
 
 after liable for your offences ; and calling two witnesses to 
 witness his renunciation." 
 
 To the same effect there are also other authentic docu- 
 ments, and hereupon a question of some importance has 
 arisen amongst our doctors, viz. " Whether or not it is 
 necessary, in order to do away the right of wula in 
 a master by renunciation of responsibility, that he shall 
 have called evidences to witness his release ? " The opinion 
 of the Sheikh, as well as of Sadook and of Askofy, would 
 lead us to consider this evidence as indispensable to the 
 validity of the master's renunciation, as is the case in 
 declarations of divorce, and which is doubtless also appa- 
 rently intended by the sense of the foregoing and other 
 similar traditions ; yet it is by far the more general opinion 
 that adducing of evidence is required merely to establish 
 the master's release where alleged in disputes with third 
 parties, and by no means to the validity thereof, as doing 
 away the right of inheritance. This latter would appear 
 also the best supported doctrine ; for the intention of those 
 traditions in directing evidence is that, since the establish- 
 ment of release from responsibility before a judge neces- 
 sarily depends upon proof by the claimant, it is proper 
 that the master should be prepared by having called wit- 
 nesses at the time, lest he be afterwards subjected for the 
 consequence ; but not by any means that the validity of 
 his renunciation as a personal bar to inheritance is sus- 
 pended upon this form; and to this effect we have many 
 documents on traditional record. 
 
 Thirdly. It is an obvious indispensable condition of 
 inheritance by manumission that the freedman shall leave 
 no consanguineous heirs, because these have a necessary 
 preference in law over every description of claimants by 
 wula : as has already been particularly detailed from express 
 traditions. With respect, on the other hand, to the exist- 
 ence or failure of relations by affinity, this is no condition 
 by unanimous assent ; for these may be associated and 
 inherit with heirs of every description, as has already been 
 observed in treating of inheritance by marriage. Thus, if 
 an emancipated slave should leave either a husband or a 
 
HEIRS BY WULA OR PATRONAGE. 351 
 
 wife, these take their appointed share of the estate, and the 
 remainder goes to the manumittors. 
 
 The fourth condition required bylaw to establish the If any of 
 title of succession by emancipation, is, " That none of the parents 
 parents of the freedman or freed woman shall have been were ori- 
 originally a free subject ; because, if one of the parents f™ t ^ ere 
 was originally free, the children are by law dependants is no title 
 upon that one in original freedom, and consequently there 
 can be no emancipation of them, nor any right of wula 
 in the emancipator of their other parent. This principle 
 would appear to be established by the unanimous assent of 
 all our doctors, although certainly contradicted by a tradi- 
 tion to be hereafter quoted as on record by Ayees Ebn 
 Ka&im, and to which, therefore, we now refer. 
 
 If, however, all those conditions required in wula 
 should exist, the manumittor, whether male or female, one 
 or more invariably succeed to the property of their eman- 
 cipated slaves, and this without any dispute or difference 
 of opinion by reason of the various traditions already 
 quoted, and many others to a similar effect. Upon failure, 
 again, of the immediate manumittor, the settlement of 
 succession admits of more difficulty, and has given rise to 
 a variety of opinions. The Sheikh, in his Nelidyut, and 
 others who follow his doctrines, have declared that the 
 inheritance in this case descends to the male children of 
 the manumittor, but not to the females ; and on failure of 
 those, to his dsbdt, or those paternal male relations who 
 are his akilas, i.e. liable for the payment of all fines that 
 may be imposed upon him by law for offences committed 
 through error or misadventure. These are his brothers by 
 the same father and mother and by the same father only, 
 paternal grandfathers and paternal uncles and their sons, 
 both full uncles and those by the same father only. This, 
 however, upon the supposition that the manumittor was a 
 man. Where, on the other hand, a woman emancipates 
 her slave, his inheritance, should she die before him, goes 
 to her dsbdt, or paternal male kindred above mentioned, in 
 preference and exclusion of all her children, whether male 
 or female, who have no portion whatever. 
 
352 INHERITANCE. 
 
 This doctrine of the Sheikh's is the best and most 
 approved of all the various opinions recorded on the 
 subject, and is confirmed by many authentic traditions 
 generally known. Of these, one is reported by Booreyd 
 Ajaly, in the following words, from the Imam Jdfer 
 Sddik, on whom be peace : "I stated the case of a person 
 who had resolved to emancipate a slave, but dying before 
 he could execute his intention, directed by will that his 
 son should perform it. The son accordingly purchases 
 a slave, and sets him free, in name of his deceased parent. 
 Should this freedman die leaving property, who is his 
 heir ? The Imam replied, 'If the emancipation resolved 
 on by the father was voluntary, so as to establish the 
 right of wula, and he directed the son to perform it in 
 his name, the inheritance of such freedman descends in 
 common to all the male children of the deceased, and this 
 particular son, who has purchased and emancipated by the 
 father's command, is merely as one of the others, although 
 the purchase may have been made with his own exclusive 
 property.' " 
 
 Another decision particularly in point is quoted by 
 Mohummud Ebn Keys, of the Imam Mohiimmud BdMr, on 
 whom be peace, in the instance of a man who had eman- 
 cipated his slave, stipulating the right of ivula, and died 
 leaving no children, except females, after which the freed- 
 man dying possessed of property, a dispute arose between 
 the daughters and paternal male relatives of the manu- 
 mittor respecting the succession, and the Imam adjudged 
 the whole inheritance to the latter or akelas, who were 
 responsible for his fines. A second tradition from the 
 same Imam is quoted in the following words : " The 
 Commander of the Faithful, upon whom be peace, was 
 appealed to, in the instance of a woman deceased, who 
 had emancipated her slave, stipulating wvla, and left a 
 son, who claimed the freedman's succession ; he adjudged, 
 however, the whole inheritance to her cLsb&t or paternal 
 kindred and akelas, in preference and exclusion of her 
 children." 
 
 The imme- It is further a common and established maxim amongst 
 
 diate pa- 
 
HEIRS BY WULA OR PATRONAGE. 353 
 
 our doctors that the father and mother of a manumittor rents of a 
 
 must be associated with his male children in the right of ?™ numit - 
 
 o tor are as- 
 
 succession to his freedman, and also upon failure of his sociatedin 
 
 immediate male offspring that their children supply their ] e 7 ^ a 
 
 places, observing always the rule of precedence by prox- with his 
 
 imity in degree, already so often described in treating of c | ren u ^ 
 
 consanguinity. Thus, if a manumittor should leave his failure of 
 
 father and mother and also male children, each of the t j ieir c j e _ 
 
 parents enjoy their appointed share of the freedman's sue- scendants 
 
 cession, as do also the sons their regular portion, in the place. 
 
 same manner as under a consanguineous title, being all in 
 
 the same class and degree ; and if only one parent or one 
 
 son of the manumittor exist, such individual takes the 
 
 whole property of his freedman. With respect, further, And 
 
 to grandchildren upon failure of immediate sons, each of th e °huter 
 
 these takes the share allotted to him through whom their males and 
 
 f i 
 relation is derived, without distinction of male or female ; are witn . 
 
 for amongst the lower descendants this distinction is not out dis- 
 cs ,. . 
 
 observed, their first ancestor from the manumittor being j nc i uc i e( j. 
 a male. 
 
 Brothers, again, of a manumittor do not inherit with All these 
 his sons, or with their descendants, how low soever in the ^^ 
 degree, nor do paternal uncles with brothers ; and, in who in- 
 general, the same arrangement is here to be observed accorc iing 
 respecting succession to the right of wula, and prece- to proxi- 
 dence therein by proximity, as formerly detailed for in- da^a'cd 
 heritance by blood. Thus, if a manumittor leave his degree, 
 father and one son, the former takes a sixth part of the 
 freedman's succession, and all the remainder goes to the 
 son. If, in the room of a father, we substitute in this 
 example the manumittor's grandfather, the whole property 
 of the freedman would descend to the son; and, further, 
 if we suppose a brother and grandfather of the manumit- 
 tor to exist, the property would be divided equally betwixt 
 them. Also, if we suppose a brother's son and a grand- 
 father to remain, each of these would inherit half the 
 freedman's property, neither excluding the other as being 
 of separate descriptions iD one series or class, whereas, in 
 the case of a grandfather and paternal uncle, the former 
 
 PART II. A A 
 
354 
 
 INHERITANCE. 
 
 Sisters 
 and 
 grand- 
 mothers 
 have no 
 right of 
 mula, 
 nor have 
 any ma- 
 ternal re- 
 lations a 
 claim 
 thereto. 
 
 A title to 
 succession 
 by mula, 
 like all 
 other 
 ground of 
 inherit- 
 ance, is in- 
 capable of 
 transfer in 
 property. 
 
 would take all the succession, excluding the latter entirely 
 by reason of his precedence in class, as has already been 
 proved by many authentic reports and traditional docu- 
 ments. 
 
 As a necessary consequence of this settlement of suc- 
 cession to emancipated slaves in the dsbdt or paternal 
 male kindred above mentioned, who are akelas of the 
 manumittor, after failure of his male offspring and their 
 descendants, however low, which has been established by 
 express traditions, it follows that sisters and grandmothers, 
 whether by the father's or mother's side, have no title 
 whatsoever of inheritance by imda, in the same manner 
 as all relations by the mother's side only are totally 
 excluded from the benefit of this title, like brothers and 
 sisters of the manumittor by the same mother only, his 
 maternal uncles and aunts, and grandfathers and grand- 
 mothers by the mother's side, because neither of all these 
 are considered dsbdt in law, nor do they bear any respon- 
 sibility for crimes or offences, as will appear from a refer- 
 ence to the book of Deedt on fines. 
 
 It has never been disputed by any of our doctors that 
 tvula is a legal ground of inheritance ; but whether it is to 
 be considered as actual property in the person who possesses 
 this title, capable of transfer and the other uses to which 
 property may be applied, is a question that has admitted of 
 opposite solutions. A majority, however, have decided in 
 the negative, as being the radical condition of all legal 
 claims, to oppose or obviate which no traditional authority 
 or other just cause can be alleged ; and besides to demon- 
 strate that ivula is not property we have the saying of 
 him, on whom be blessing and peace: "The relationship 
 of wula is like that of consanguinity, which can neither be 
 sold nor given away." 
 
 Since, therefore, the right of inheritance by blood is 
 not considered property in law, and neither admits of sale, 
 donation, reservation in sale, or any of the other modes 
 of transfer, so also the title of wula, which is expressly 
 as above declared to resemble it. Further, to prove the 
 invalidity of its reservation in sale, we have an express 
 
HEIRS BY WULA OR PATRONAGE. 355 
 
 tradition recorded by Ai/ees Elm Rasem from the Imam 
 Jdfer Sddik, on whom be peace, in these words : " Aysha 
 reported to the Prophet, on whom be blessing and peace, 
 that the family of Boorei/ra had sold a female slave, re- 
 serving by stipulation the right of wula to themselves 
 in event of manumission by the purchaser. He replied, 
 ' Wula belongs to the emancipator,' and annulled their 
 stipulation." 
 
 It is to be observed that, in the same manner as a Manumit- 
 manumittor and his heirs above specified succeed to the *° r5 ! a ° . 
 property of his enfranchised slave upon failure of con- inherit 
 sanguineous relations to that slave, so also they inherit the h °j™ }l !gn 
 property of his children, should these latter leave no con- of their 
 sanguineous heirs. Thus, if a man dies leaving no consan- iee men ' 
 guineous heir, his property goes to his manumittor ; if not 
 himself an enfranchised slave, his inheritance is for the 
 manumittor of his father : if his father was not emancipated, 
 the succession is with his grandfather's manumittor, and so 
 on ; as is expressed in a tradition of the Imam, Jdfer Sddik, 
 on whom be peace, quoted by Ayees Elm Rasem in these 
 words : "I inquired respecting a person who had purchased 
 a slave, having children by a free woman, and afterwards 
 set him free : he replied, ' The wula of these children 
 belongs to his manumittor.' " 
 
 If a man dies who was not himself emancipated, but his The fa- 
 father the enfranchised slave of one person, and his mother nt ^;^p* 
 emancipated by another, it is the common and prevalent is pre- 
 opinion that the right of succession in this case is vested in th ' e mo _ 
 the father's manumittor, in preference and exclusion of the ther'a in 
 mother's, because parentage is stronger and more noble on tneir 
 the father's side than on the mother's ; and consequently offspring, 
 that side must be preferred in law. True, in cases where the 
 father is still a slave, and the mother only has been emanci- 
 pated, the right of wula must belong to her manumittor 
 of necessity from failure of the father's ; which necessity, 
 however, being the sole cause of its establishment, should 
 the father be afterwards set free and the cause thereof thus 
 obviated, the title reverts to his master, in whom it is 
 permanently established. This is termed in law Jmr-ool- 
 
 A A '2 
 
35G 
 
 INHERITANCE. 
 
 Case of 
 a mother 
 emanci- 
 pated 
 whilst 
 both fa- 
 ther and 
 grand- 
 father are 
 slaves. 
 
 If the 
 grand- 
 father is 
 first set 
 free tvula 
 shifts 
 from the 
 mother's 
 master 
 to his. 
 
 If the 
 father be 
 
 ivula, i.e. shifting or transferring the right of inheritance 
 by emancipation, first established in the mother's manu- 
 mittor from necessity by failure of the father's, to its radical 
 possessor upon the removal of the cause. 
 
 It is, however, to be observed that this transfer can only 
 take place in those instances where the necessity may be 
 obviated previous to the child's death : for after decease and 
 possession of the inheritance by the mother's manumittor, 
 there can be no transfer to the father's master in consequence 
 of his subsequent emancipation, by reason of the prior title 
 on the mother's side, which cannot be done away after 
 possession, as all our doctors have agreed. 
 
 If of the child above mentioned the mother had only 
 been emancipated, whilst both father and grandfather 
 were slaves, consequently the right of ivula from necessity 
 established in the mother's manumittor, and we suppose 
 the grandfather now to be set free previous to the father, 
 a question of some importance upon this example may 
 arise, viz. " whether the right of wvla would here shift 
 and be transferred from the mother's master to the grand- 
 father's ? " The Sheikh has expressly decided in the 
 affirmative, considering the grandfather invariably in the 
 place of a father, i.e. on the strongest side of parentage, 
 and consequently that by the same rule which transfers 
 wula from the mother's manumittor to the father's, this 
 title must also be shifted to the grandfather's should 
 he be first set free, which decision is further confirmed 
 by Allama Hilly and several others. The author of 
 the Shuraya, V2 however, would appear to have entertained 
 doubts as to this decision, founded upon the objection 
 stated by many to a grandfather being considered in 
 reality the same as a father during the existence of the 
 latter even in slavery, who, as obviously nearer in degree, 
 although himself debarred from succession bv slavery, 
 ought nevertheless to impede the establishment of this 
 title in one more remote. 
 
 Considering, however, the doctrine of the Sheikh as 
 
 12 About Kasim, suraauied MohuTcMk. 
 
HEIRS BY WULA OR PATRONAGE. 357 
 
 established, and deciding the example above, if we sup- subse- 
 pose the father's • subsequent emancipation after transfer <l uentl y 
 of wvla to the grandfather's master from the mother's, pated, a 
 this title must now again be shifted to the father's manu- ^ansfer 
 mittor, for its establishment in the grandfather's pro- of wvla 
 ceeding evidently upon necessity, or the slavery of the *^ e a e 
 father, which is now obviated and removed, the title must 
 revert to its radical possessor by the same rule already 
 described for transfer from the mother's to the father's 
 manumittor, and this species is termed in law Jmr-ool-jurr, 
 or transfer of a transfer, the right being first shifted to 
 the grandfather's master from the mother's and then again 
 from him transferred to the emancipator of the father. 
 According to the other doctrine, if we suppose the father's 
 emancipation as above, the ivula would at once be trans- 
 ferred from the mother's master to his ; and hence it 
 appears that this latter species of Jurr cannot at all be 
 established if we admit the force of the objection stated 
 against the title of the grandfather's manumittor. If, on 
 the other hand, the father should die a slave, and admitting 
 the force of the above objection, should the right of wula, 
 or should it not, now at all events, be shifted to the grand- 
 father's manumittor from the mother's, in virtue of his 
 previous emancipation ? This question still admits of a 
 doubt on the one hand, because the only objection to its 
 former transfer being the father's existence in slavery, 
 which is now obviated by his death, there appears strong 
 ground for renewing the claim of the grandfather's manu- 
 mittor, and shifting the vjula from the mother's; whilst 
 on the other hand, as this transfer did not immediately 
 follow the grandfather's emancipation, but, on the contrary, 
 the right was established in the person of the mother's 
 master, there does not appear sufficient cause now to 
 annul it. 
 
 Upon the whole, seeing the various difficulties and 
 disadvantages which would occur from the admission of 
 this latter doctrine, and the obvious facility of decision 
 in all cases by following the opinion of the Sheikh and 
 others in support of the first and second species of transfer, 
 
INHERITANCE. 
 
 If any one 
 of the 
 parents 
 was 
 
 originally 
 free, there 
 is no jvula 
 by eman- 
 cipation 
 of the 
 other. 
 
 If the pa- 
 rent and 
 child are 
 emanci- 
 pated by 
 distinct 
 owners, 
 each has 
 separately 
 the wula 
 of his own 
 freed man. 
 
 The 
 
 ir i/la of 
 a child's 
 emanci- 
 pator can 
 never be 
 
 we may safely consider his opinion as a fixed and established 
 rule of law. Further, it appears proper here to remark 
 that if any one of the parents of such person, not himself 
 emancipated, was originally or independently free, there 
 can be no title of wula over him to any person whatever, 
 as has indeed already been hinted at in delineating the 
 conditions of this right, because a child is bylaw a dependant 
 of the noblest of his parents, or the parent who is originally 
 free. If, therefore, such person should leave no consan- 
 guineous heir, his inheritance must go to the Imam, or to 
 the surety for his fines by contract in preference, should 
 any person have taken this responsibility, but can by no 
 means be claimed under the wula of emancipation by 
 the manumittor of the other parent. This doctrine has 
 never been apparently contradicted by any of our doctors, 
 although the foregoing tradition, quoted by Ayees, has an 
 apparent tendency to controvert it. 
 
 If the owner and manumittor of a child and of his 
 parents should be different and distinct persons, each 
 has separately, the ivula of his own immediate freed- 
 man, that of the child resting with his manumittor, and 
 that of the parents entirely with theirs. Thus, if the 
 child were to die without consanguineous heirs, his inherit- 
 ance goes to his own manumittor alone, and by no means 
 to the emancipator of his parents, because the obvious 
 intention of his saying, upon whom be peace, " Wula is 
 for him who emancipates," confers this title upon the 
 immediate and actual emancipator of the slave, who must 
 therefore necessarily be preferred to the benefactor of his 
 parents. Upon failure of him the title descends to his 
 male children and their descendants, after whom to his 
 dsbdt, but can never be transferred from him to the manu- 
 mittor of the freedman's parents, because the authority of 
 law for shifting this right is expressly and particularly 
 limited to its transfer from a weaker to a stronger claimant, 
 and by no means from a stronger to a weaker. The wula, 
 therefore, of an actual manumittor over his freedman can 
 never evidently be shifted from him to any other person, 
 by reason of the weakness of all other claims in comparison 
 
HEIRS BY WULA OR PATRONAGE. 359 
 
 to his, and the inheritance of such freedman, upon failure trans- 
 of him and his heirs above mentioned, must invariably go tlie 
 to the Imam. parent's 
 
 This fixed principle of law preventing transfer from a 
 stronger to a weaker has a necessary tendency further to the fa- 
 prevent the shifting of wula from a father's emancipator thers 
 
 i i it -r > /» l master 
 
 to the master oi a m other; and hence if a persons father to the 
 
 be emancipated whilst his mother is a slave, and the motners « 
 father's manumittor dying should leave no male children 
 or dsbdt, the mother's subsequent emancipation cannot 
 shift the title of wula to her master for the exact reason 
 already described. It is otherwise when a female slave 
 being emancipated afterwards conceives and bears a child 
 to a husband in slavery, for here the wula of such child 
 must evidently belong to the mother's manumittor, by 
 reason of the father's bondage, and consequent incapacity 
 of his master, whilst the mother's manumittor has a right 
 of property in the child, whose freedom, depending in this 
 case upon that of the mother, is an effect of his bounty, 
 and consequently he alone can be entitled to the wula. 
 
 To conclude, the arrangement of law with respect to 
 inheritance by the wula of manumission may be thus 
 computed in a few words. Upon failure of the immediate 
 manumittor of a freedman, his children and dsbdt, the in- 
 heritance goes to the manumittor's manumittor if he had 
 any, after whom to his children and dsbdt. Should there 
 be no wula by immediate emancipation, the inheritance 
 goes to the father's manumittor, after whom to his children 
 and dsbdt, and on failure of those to the manumittor of 
 the father's manumittor, after whom to his children and 
 dsbdt, in the same manner and by the same rule which 
 applies to immediate emancipation. Lastly, upon failure 
 of all right of wula by manumission on the father's side : 
 that is, where neither the deceased, his father, grandfather, 
 or other male ancestor has been emancipated, then the 
 inheritance must go to the mother's manumittor and his 
 dsbdt, on failure of whom to her manumittor's manumit- 
 tor and his dsbdt. After these to the manumittor of the 
 maternal grandfather, and so on ; observing the foregoing 
 
360 
 
 INHERITANCE. 
 
 The pa- 
 tron by 
 contract 
 is heir to 
 his client. 
 
 Upon 
 failure of 
 all blood 
 relations 
 and claims 
 in virtue 
 of manu- 
 mission. 
 
 But a con- 
 tract of 
 clientage, 
 should 
 any of 
 these 
 exist, is 
 totally 
 null. 
 
 Whilst its 
 validity is 
 totally in- 
 dependent 
 
 arrangement and the rule of precedence in each class to 
 the nearest, as already so often described. 
 
 Of Wvla by Responsibility for Offences. 
 
 The second class of heirs by wvla comprehends such 
 persons as undertake by contract with a person who has no 
 heir either by blood or manumission, the responsibility for 
 all crimes and offences to be by him committed through 
 error or inadvertency, and thereby requiring expiation 
 by fine. That this species of responsibility is one of the 
 causes which operate in law a title to succession, all our 
 doctors are agreed, by reason of a tradition of the Imam 
 Jdfer Sadik, on whom be peace, quoted by Husham Elm 
 Salim in these words : " If one person becomes bound 
 for another by Muvdldt, or contract of amity and patron- 
 age, he has a title to his inheritance, and is respon- 
 sible for his fines." Another judgment of the same 
 Imam to a similar effect is recorded in the case of a 
 person who had embraced the faith and entered into a 
 contract of clientage with a believer, viz., " If that be- 
 liever has become responsible for his fines and offences 
 he is his patron and heir." And to the same purport are 
 many other authentic traditional documents. 
 
 The right of inheritance, however, upon this title 
 cannot of necessity be established except upon entire and 
 absolute failure of all heirs by consanguinity, and also by 
 manumission, in whatsoever class or degree, whereas its 
 establishment does by no means depend upon the exist- 
 ence or failure of heirs by affinity or marriage. Thus, if a 
 person who enters into an engagement of clientage have a 
 single consanguineous heir, however remote, if his emanci- 
 pator, or any other person capable of claiming under this 
 title should exist, the contract is totally invalid, and founds 
 no title to succession whatsoever, as is clearly demon- 
 strated both by the sacred text respecting blood relations 
 formerly quoted, and by the various traditions introduced 
 regarding inheritance by manumission. If, on the other 
 hand, the party contracting should have a husband or wife, 
 these take respectively their highest appointed shares of 
 
HEIRS BY RESPONSIBILITY FOR OFFENCES. 361 
 
 the property, but do by no means affect the validity of of the title 
 contract, in virtue whereof the remainder of the client's r ia^ ar ' 
 estate goes to his patron who became responsible. 
 
 This contract, it is further to be observed, does not This con- 
 found a mutual or reciprocal title to inheritance betwixt not f oun( j 
 the parties, but, on the contrary, he who becomes respon- a mutual 
 sible, or the patron, alone enjoys this right over his client, h er it anC e. 
 and not the latter by any means over the former. Hence, 
 if one person should say to another, " I have contracted 
 with you that you shall be liable for all my fines, surety 
 for my offences, that you shall assist and protect me, and 
 when I die you are my heir," which treaty the other 
 ratifies and accepts, he the acceptor, or responsible person, 
 alone is the heir, and by no means the declarer or client, 
 unless the responsibility should be mutual, in which case Except 
 doubtless the advantage or title of succession must be in cases 
 also established in favour of both ; as where, for example, responsi- 
 one person should say, " I have contracted with you to * JT V 5 
 this effect, that you are my akila, or responsible for my 
 fines, and I also become liable for yours ; that you afford 
 me your aid and protection, and I shall assist and protect 
 you ; that you are my heir, and I also am yours," which 
 mutual engagement the other ratifies and accepts. This 
 principle is established as well by unanimous assent as by 
 the obvious spirit and intent of the foregoing traditions. 
 
 This contract, being evidently suspended upon mutual Requires 
 consent of the parties and formal expression of that con- ^ ^^ 
 sent, requires, like all other valid contracts, declaration of acquies- 
 one, and acceptance of the other party, to be conveyed 
 in the manner laid down for similar transactions in the 
 former books of this digest ; but whether it is to be con- 
 sidered in law one of those permanent and binding con- 
 tracts which cannot after conclusion be annulled by either 
 party without consent of the other, is a question upon 
 which our doctors have disagreed. A majority, however, 
 have decided in the affirmative, by reason of the common 
 and general rule of law : " That contracts and conditions 
 
 must be adhered to;" whilst the Sheikh, in his KhUaf, 
 
 i ,! ,-.!-!. -,. But may 
 
 has, on apparently strong grounds, declared it to be dis- be dis- 
 
362 
 
 INHERITANCE. 
 
 solved by 
 either 
 party at 
 pleasure 
 so long as 
 both con- 
 tinue in 
 statu quo 
 ante 
 pactum. 
 
 Is re- 
 stricted to 
 the patron 
 alone. 
 
 cretionary, and that each party therein is at full liberty to 
 dissolve the contract whenever he pleases, so long as the 
 client shall have committed no offence which the patron 
 has expiated by paying the fine ; because in this event 
 there can be no doubt that it becomes perpetually binding 
 in regard of the offender, and can never afterwards be by 
 him dissolved to the injury of his patron suffering by 
 responsibility. 
 
 To conclude, this title of inheritance does not descend 
 to the heirs or relations of the patron, but is limited by 
 law to himself alone, conformably to the nature and con- 
 dition of his contract, as well as to guard, in matters 
 which oppose radical principles of law, against trans- 
 gressing the bounds of certainty on infallible traditional 
 proof; for since the responsibility for the client's fines or 
 offences cannot extend to the children or relations of his 
 patron, so it necessarily follows that the advantage con- 
 nected with this responsibility, viz., inheritance at his 
 death, can be enjoyed by the patron himself alone. 
 
 Of the Wula of the Imam, or Doctrine of Escheats to the 
 Public Treasury. 
 
 Nature of The last species of wula, or legal title to inheritance 
 
 orthetitle thereby, is that enjoyed by the Imam, in virtue whereof if 
 a person die leaving no heirs by consanguinity, no hus- 
 band or widow, with the provisions and restrictions already 
 quoted respecting the latter, no emancipator and no surety 
 for fines, the property or inheritance of such person is by 
 law entirely vested in the Imam, who is, in other words, 
 the sole heir of every person deceased leaving no individual 
 member of any of the foregoing classes. This principle is 
 established, according to the Sheikh, as well by universal 
 assent as by an authentic tradition of the Imam Mohummud 
 BdJcir, on whom be peace, quoted by Booreyd Ajaly in 
 these words : " If a person should not have engaged in a 
 contract of clientage with any believer previous to his 
 death, the inheritance of such person is vested in the high 
 priest of the Faithful," that is, the Imam • to which effect 
 there are many other traditions generally known. 
 
 of the 
 Imam 
 
EXCLUSION. 
 
 363 
 
 With respect to the application of this fund, during The fund 
 the absence of the Imam, the doctrine of Mdh ukMk in his a p p necl to 
 Shuraya, as well as of most other lawyers, prescribes its the poor 
 partition amongst the poor and indigent of our sect, by sect 
 reason of the impossibility to deliver it to him upon whom 
 be blessing and peace, and consequently the preferable title 
 of his indigent posterity and followers to enjoy it, in the 
 same manner as they enjoy his fifth of spoils taken in battle, 
 of mines, and of the various other subjects with which this 
 right is connected. To this effect we have also a tradition 
 recorded by Hulby from the Imam Jdfer Sddik, on whom 
 be peace, in explanation of the sacred text, " They will 
 ask you concerning spoils," &c, which is in these words : 
 " If a person should die who has no heir or Mowla (patron) 
 his property is as spoil." Another tradition of the Imam 
 Mohummud Bdkir, on whom be peace, quoted by Mohum- 
 mud Ebn Mooslim, is in these words: ""Whosoever dies 
 leaving no heirs either by relationship, manumission, or 
 responsibility for fines, verily his property is as spoil." 
 And to the same effect there are various other documents, 
 from all which it is evidently deducible that such property 
 belongs to the Imam ; for since, by the word of the most 
 High, " the division of the spoils belongeth unto God and 
 his Apostle," and whatsoever belongs to God and his 
 Prophet appertains of right to the Imam, and these have 
 expressly applied them to their followers, this affords an 
 obvious proof of their being made over to the poor and needy 
 of our sect, as well as also in reality to the rich, for both 
 are alike comprehended in the division of spoils. 
 
 Of Exclusion. 
 
 Exclusion from inheritance is described by the author Exclusion 
 of the Shuraya as being of two sorts, either entire or par- 
 tial, that is from a part of the share. With respect to the Entire by 
 first, the uniform criterion of law is that respect and atten- £f Ibi 1 "^ 
 tion be paid to nearness of blood, upon which principle it as of 
 follows that a grandchild cannot at all inherit with a child Irenlf 111 " 
 of the deceased, whether male or female, not even a son's imme- 
 son with a daughter, and that whenever an assemblage of 
 
 diate off- 
 spring ; 
 
3G4 
 
 INHERITANCE. 
 
 also of 
 brothers, 
 grand- 
 fathers, 
 and 
 
 uncles, by 
 these. 
 
 A brother 
 excludes a 
 nephew, 
 &c. : 
 
 also an 
 uncle and 
 his de- 
 scendants, 
 but not a 
 grand- 
 father in 
 any de- 
 gree of 
 ascent. 
 
 Uncles 
 exclude 
 grand- 
 uncles ; 
 
 Full kins- 
 men those 
 by father's 
 side only. 
 
 Any blood 
 relation 
 excludes a 
 rnanumit- 
 tor, who 
 excludes a 
 patron, &c. 
 
 Partial ex- 
 clusion of 
 
 children's children occurs, however low in descent, the nearer 
 always exclude those who are more remote. Further, chil- 
 dren in whatsoever degree exclude all persons related to 
 the deceased through his parents or one of them, as 
 brothers or sisters and their children, grandfathers and 
 their parents, paternal and maternal uncles and their 
 children ; and, in general, no relation can inherit with 
 children of the deceased, except immediate parents and a 
 husband or wife. 
 
 Upon failure of parents and children of the deceased, 
 brothers and grandfathers form the second class ; of these 
 therefore, upon the same principle, a brother, for example, 
 excludes a brother's son, and if we suppose an assemblage 
 of the members of this class in different degrees of descent, 
 the nearest always excludes one more remote. Further, 
 brothers and sisters of the deceased or their descendants in 
 any degree, exclude all those related through grandfathers, 
 as uncles paternal or maternal and their children, but do 
 not exclude the parents of those grandfathers, for a grand- 
 father in any degree of ascent, however remote, is still 
 considered a grandfather with respect to the other descrip- 
 tion of this class ; whilst, at the same time, if we suppose 
 an assemblage of them in different degrees of ascent, the 
 lowest or nearest to the deceased would always exclude one 
 who is higher or farther removed. 
 
 Uncles again, whether paternal or maternal, of the 
 deceased, and their children how low soever, exclude 
 entirely all uncles of his father, who, in like manner, and 
 their descendants exclude all uncles of a grandfather. 
 
 Further, every person related to the deceased by both 
 father's and mother's side excludes entirely from inherit- 
 ance a person related by the father's side only, provided 
 they are equal in class and degree. 
 
 Lastly, a blood relation, however remote, excludes en- 
 tirely a manumittor, a manumittor or his representative 
 excludes a patron by contract or surety for offences, and 
 the latter precludes escheat of his client's effects, or, in 
 other words, prevents the title of the Imam. 
 
 Partial exclusion or diminution of shares is of two kinds : 
 
EXCLUSION. 365 
 
 that by a child, and by brothers or sisters. A child or parents by 
 descendant of the deceased, however remote in degree, c * 
 restricts the share of his immediate parents to two-sixths 
 of the inheritance, except in the case where, with one, two, 
 or more daughters, there is only one of the parents remain- 
 ing. Further, a child of the deceased, whether male or And also 
 female, restricts also the husband or widow to these lowest jjLf'.jlJf" 
 appointed shares of inheritance, agreeable to the words of widow, 
 the sacred text formerly quoted. Husbands and wives there- 
 fore may be said to take in three cases : first, with a child 
 in any degree of descent, the husband takes a fourth, and 
 the widow an eighth, of the property ; second, upon failure 
 of children and children's children how low soever, the 
 husband has in this event a half, and the widow a fourth 
 of the inheritance : but neither of these shares can be 
 diminished by Aid or increasing the divisor, because this 
 practice is totally forbidden by our law ; thirdly, upon 
 failure of all other heirs whatsoever, whether by consan- 
 guinity or patronage, the husband takes not only his highest 
 appointed share, viz. a half of the wife's estate, but receives 
 also the remaining half by return in virtue of the resi- 
 duary title formerly specified. The widow, also, in this 
 case receives first her appointed share, viz. a fourth of her 
 husband's estate ; but with respect to her residuary title 
 there are three opinions : one confirming her right, another 
 which totally rejects it, and a third admitting her claim 
 during the absence of the Imdm, but rejecting it, were he 
 present. The most approved doctrine, however, as formerly 
 expressed, denies any title to the return on the part of a 
 widow. 
 
 Brothers and sisters, again, of the deceased restrict Brothers 
 
 the share of the mother to one-sixth of the inheritance °, r . 8i . st . e * 3 
 t • t-v dimmish 
 
 upon these four conditions : First, that they consist of the mo- 
 two or more males, or of one male and two females, or of ^^ 
 
 3 > share upon 
 
 four females without a male ; second, that they be neither four con- 
 infidels nor slaves, as will immediately at more length dltions ' 
 appear in treating of the impediments to succession. 
 Whether on the part of a murderer this exclusion can 
 take place, is a question admitting of doubt, but the most 
 
366 
 
 INHERITANCE. 
 
 But not 
 their chil- 
 dren. 
 
 Impedi- 
 ments. 
 
 Infidelity. 
 
 Conver- 
 sion sub- 
 sequent 
 to the an- 
 cestor's 
 death re- 
 
 prevalent doctrine has decided in the negative. Third, 
 that the father of the deceased shall also be in existence ; 
 and, fourthly, that the brothers or sisters themselves be 
 either of the full blood, that is, by both parents, or by the 
 father's side, as also agreeable to the best founded opinion, 
 that they exist separate from the mother, not in her womb, 
 for a foetus does not operate this limitation of her share. 
 Further, the children of brothers or sisters do not in any 
 degree affect the share of a mother, nor of hermaphrodites 
 a less number than four, by reason of the possibility that 
 they may all be females. 
 
 Of Impediments to Succession. 
 
 Impediments to succession (as described in the Shuraya) 
 are three — Infidelity, Murder, and Slavery. 
 
 By infidelity, as impeding succession, is here to be 
 understood every belief or persuasion which excludes its 
 votaries from the title of Islam, for no alien, whether 
 hostile or tributary, and no apostate from the Moohum- 
 mudan faith, can inherit the property of a believer : whereas 
 the latter may be heir either to an original infidel or an 
 apostate ; and hence if an infidel should die leaving several 
 heirs unbelievers, with one who has embraced the faith, 
 the whole inheritance would go by law exclusively to the 
 latter, however remote, even an emancipator or patron by 
 contract, although the former were the nearest relations 
 by blood. If, however, the deceased infidel should leave 
 no heir whatsoever a believer, an infidel would in this 
 case succeed, whereas of an apostate the inheritance 
 devolves on the Imam upon failure of Moohummudan 
 claimants ; and this decision is applied in one report to 
 the case of an original infidel, but the report is considered 
 unauthentic. 
 
 If a believer leave infidel heirs, they do not inherit his 
 property, which, on the contrary, goes to the Imam, upon 
 failure of heirs who are believers. If, however, an infidel 
 should embrace the faith after his ancestor's death, previous 
 to division of the inheritance, this impediment is thereby 
 removed, and the proselyte is associated with all other 
 
IMPEDIMENTS. 367 
 
 heirs who are equal in degree, or preferred to the whole moves the 
 succession if nearer ; but after distribution of the estate, ™P® 1_ 
 or total appropriation thereof to a single heir, his conver- 
 sion has no effect to remove the impediment except in 
 cases of competition with the Imcim, to whom, even after 
 the transfer is made, his conversion bestows a preference, 
 according to a tradition reported by Aboo Buseer. Some 
 doctors, however, have alleged that conversion only when 
 previous to transfer of the property into the public trea- 
 sury confers a preferable title on the heir, whereas after 
 this transfer is made he can have no claim whatsoever. 
 Others, again, have disputed his title in both cases, upon 
 the ground that the Imclm ought properly to be considered 
 in the exact situation of a single heir, to whom, therefore, 
 independent of any transfer, the inheritance belongs upon 
 the ancestor's death, and cannot be wrested from him by 
 subsequent conversion of a nearer heir. 
 
 If the husband or widow of a person deceased is a 
 believer, and there be also some other heir who is an 
 infidel, but embraces the faith after the ancestor's death, 
 such proselyte becomes thereby entitled to the residue of 
 the estate, after payment of the appointed share to the 
 former. Such, at least, is the prevalent opinion, liable, 
 however, manifestly, to difficulty and doubt, which arises 
 from the impossibility of distribution in the case of a 
 husband ; and if, therefore, we pronounce that the pro- 
 selyte is associated with a widow only, and not with a 
 husband, it would appear the most just decision ; because 
 with the former the Imam's title being likewise invalid, 
 distribution is obviously possible, — whereas a husband, in 
 virtue of his reversionary title becoming alone sole pro- 
 prietor of the estate, there is no room for division, and 
 consequently no claim through subsequent conversion. 
 The case is, in fact, therefore, like that of a daughter 
 professing the faith and the deceased's father an infidel, or 
 a sister believing with an infidel brother, in neither of 
 which, evidently, subsequent conversion could have any 
 effect. 
 
 If any one of the parents of an infant child be a believer, Cons truc- 
 
 ' tion of 
 
3G8 
 
 INHERITANCE. 
 
 law in 
 
 favour of 
 an infant 
 should one 
 of the pa- 
 rents be a 
 believer. 
 
 Case of in- 
 fant chil- 
 dren of an 
 inridel 
 with more 
 distant re- 
 lations 
 who are 
 believers. 
 
 Difference 
 of sect is 
 no im- 
 pediment 
 to succes- 
 sion. 
 
 Apostates 
 are con- 
 sidered 
 dead in 
 law from 
 the date of 
 their apo- 
 stasy. 
 
 Bu1 fe- 
 male apo- 
 states are 
 otherwise. 
 
 the construction of the law is in favour also of the infant, 
 and if further any one of the parents, both infidel at its birth, 
 should embrace the faith during its infancy, the rule is 
 exactly the same ; but should such infant when arrived at 
 maturity reject the profession of faith and persist in denial, 
 apostasy is thereby established. 
 
 If an infidel dying should leave infant children and a 
 brother's son and sister's son, for example, who are believers, 
 the estate must in this case be divided betwixt these two, 
 two-thirds to the former and one-third to the latter, and 
 they maintain the children of the deceased until maturity 
 by contribution proportionate to their respective shares. If 
 on maturity the children profess the faith, they are still 
 preferred and assume the succession agreeable to a decision 
 reported by Malek Ebn Ayoon, but if they avow infidelity 
 the property of the former heirs is established by virtue of 
 the first distribution ; and the children are excluded entirely. 
 This decision, however, is by no means free from difficulty, 
 because in the first place children of infidel parents ought 
 naturally to be considered infidels themselves, and secondly 
 at all events the distribution of property previous to their 
 profession of faith would appear to preclude any future 
 title. 
 
 Difference of sect or persuasion in Mohummudism is no 
 impediment to succession, and thus it is to be observed 
 that all professors of our faith inherit from one another 
 promiscuously, without regard to their particular tenets, as 
 on the other hand do also all infidels in general although 
 of even different religions. 
 
 The property of an apostate who was by birth or 
 parentage a believer comes under the law of inheritance and 
 is devisable amongst his heirs at the date of his apostasy, 
 which period fixes also the date of divorce from his wife, 
 and commencement of her iddiit, which is exactly that 
 appointed for a widow, whether he is immediately put to 
 death or survives in apostasy. 
 
 It is otherwise with respect to a female apostate, 
 because she is not liable to immediate death, but must be 
 imprisoned and scourged at the appointed times of prayer : 
 
IMPEDIMENTS. obU 
 
 consequently her property cannot be devisable as inherit- 
 ance until her actual death. Further, with regard to a male 
 apostate not by birth or parentage a believer, but who had 
 himself first embraced the faith, and afterwards apostatized 
 he also is not subject to immediate death, but must be 
 called to repent, and only on persistence is liable to capital 
 punishment ; consequently, his property does not become 
 devisable until his actual decease, either natural, or by the 
 hand of Justice, but his wife nevertheless commences her 
 iddut from the date of his apostasy. Should he therefore 
 return to the faith previous to expiration of this iddut, he 
 is entitled to take her back, but if the iddut has once 
 expired the divorce is thereby irreversible, and he has no 
 future claim whatsoever. 
 
 By murder as an impediment to succession, it is here Murder 
 
 to be understood, that a person who slays another wilfully P revents 
 J- J J succes- 
 
 and unjustly is not permitted by law to inherit from the sion, bin 
 
 slain, but that a person put to death for a just cause as by *j° , a( J cl " 
 
 retaliation may be inherited from by his slayer. Accidental homicide. 
 
 or unintentional homicide also is no legal bar to succession 
 
 according to the most prevalent doctrine, although Shaikh 
 
 Mofeud has expressed an apparently very proper limitation of 
 
 this rule, viz., that the slayer can inherit no part of the fine 
 
 he has paid in expiation. This impediment applies equally 
 
 to parents and children and to all relations, whether by 
 
 blood, affinity, or otherwise, and if therefore a person 
 
 thus wilfully murdered should have no other heir than 
 
 his murderer, his inheritance must go to the public 
 
 treasury. 
 
 If a person should murder his own father and the par- Children 
 
 ricide has a child, this child may inherit from the grand- °, a mur " 
 
 J & derer are 
 
 father, should he leave no issue of his loins, for the crime not de- 
 of a father is no bar to the succession of his children ; f^m sue- 
 but if the heirs of the murderer be infidels, they are all cession on 
 excluded together, and the inheritance goes to the Imam, their 111 
 unless they should embrace the faith, in which case both father's 
 the right of inheritance and retaliation is established. This 
 latter title leads to the following cases : — Murder 
 
 First. If a murdered person leave no heir but the Imam, cannot be 
 
 i'oreriver. 
 PART II. 1? 6 
 
370 INHERITANCE. 
 
 he may either demand retaliation or may accept the ex- 
 piatory fine should the murderer tender it, but is not at 
 liberty to forgive altogether. 
 The fine of Second. The fine of blood is considered by law as 
 heritable property of the person slain, subject therefore to the pay- 
 as pro- ment of his debts and legacies, and this whether the murder 
 pe y ' was wilful, supposing the fine to be accepted, or uninten- 
 tional, when it follows of course. 
 By all re- Third. All relations, whether consanguineous,by affinity, 
 
 lations ex- Qr otherwise, may lawfully inherit the Deeut or fine of blood, 
 
 cept those ' J J 
 
 by the except those connected by the mother's side, with respect 
 
 mother s ^ Q w } lom there is a diversity of opinion, but the most approved 
 doctrine excludes them. A husband or widow further can- 
 not inherit the right of retaliation for the murder of the 
 deceased spouse, but if commuted by mutual consent for 
 an expiatory fine they enjoy their appointed shares of the 
 amount. 
 Slavery The third impediment to succession, or slavery, has by 
 
 botlTaTto ^ aw an ec l ua l operation both as to the heir and ancestor, 
 the heir If 5 therefore, a person should die leaving one heir who 
 ^ or " is free and another in servitude, the inheritance goes all 
 
 to the former } however remote, in preference and exclusion 
 of the latter, however near in degree, but should such 
 slave have a child who is free, the latter is not debarred 
 from succession by the parent's bondage ; and further, in 
 the case of two or more heirs who are free with one a slave 
 at the ancestor's death, but emancipated previous to distri- 
 bution of the property, he becomes thereby entitled to his 
 portion if equal in degree, or takes the whole succession if 
 nearer than the others. Emancipation, however, subsequent 
 to distribution confers obviously no title to a share of the 
 inheritance, and consequently, upon the same principle 
 formerly described regarding conversion to the faith, should 
 there be only one heir of the deceased besides a slave, so 
 as to obviate the necessity of division ; manumission after 
 the ancestor's death is also ineffectual to found a claim 
 of succession. 
 A slave it is, however, to be observed, if a person deceased 
 
 bole heir should have no heir except a slave, his property must be 
 
IMPEDIMENTS. 371 
 
 applied to the purchase and emancipation of such slave, must be 
 who, upon being set free, inherits the residue, and the p"^ cl " 
 proprietor may be legally compelled to dispose of him. from the 
 This on the supposition that the deceased's property is ^ n d in- 
 adequate to the purchase ; should it fall short, some doctors herit the 
 are still of opinion that the heir must be released from 
 bondage to the extent thereof, and perform emancipatory 
 labour for the balance of his price. Others have rejected 
 this doctrine, and adjudged the succession to the imam, 
 which latter decision appears better supported by traditional 
 authority. In like manner, if the deceased shall have left 
 two or more heirs who are slaves, and the shares of all or 
 of any one should fall short of their price, not one is in 
 this case entitled to manumission, but the property must 
 all descend to the Imam. 
 
 Further, if an heir is partly emancipated and partly a 
 slave, he receives a part of his appointed portion of inherit- 
 ance proportioned to the extent of his freedom, and is de- 
 barred or excluded in proportion to his bondage. The same is 
 exactly the rule in every situation with respect to ancestors ; 
 
 and female slaves are considered by law in the same pre- 
 3 . . .,i t Parents of 
 
 dicament with males. free cnil _ 
 
 It is established by unanimous assent that parents dren, if 
 
 who are slaves must be emancipated by succession to the must {, e 
 
 property of their free children ; and with respect to the emanci- 
 
 converse, or emancipation of children by succession to their f rom the 
 
 free parents, doubts have been suggested, but the affirm a- lnDent - 
 
 tive is the best founded opinion. With regard, however, v - we versa, 
 
 to this necessity in the case of more remote relations, bu , fc ^ ls 
 
 rUiG GOGS 
 
 although by some extended even to a husband and wife, not apply 
 
 and to all other heirs whatsoever, the negative appears far to ar >y 
 
 ° other more 
 
 more prevalent and better supported. remote 
 
 An Oom-i-widud, or female slave who has borne a child neirs - 
 
 to her master, has nevertheless no claim to his inheritance, ^f^oj 
 
 nor further a Moodubbur, i.e. a slave to whom freedom has Moochib- 
 
 been granted at the proprietor's death, although related in c ^ m + n ° 
 
 a degree, which founds by law a title to succession if not inherit- 
 thus counteracted. The same is the case of a Mookatub or 
 
 person who has stipulated to pay a ransom for his liberty, Mookatub, 
 
 n n 2 
 
6TI 
 
 INHERITANCE. 
 
 unless 
 some part 
 of his ran- 
 som has 
 been paid. 
 
 Leaan 
 impedes 
 the right 
 of succes- 
 sion. 
 
 The pro- 
 perty of 
 absent or 
 missing 
 persons 
 cannot im- 
 mediately 
 be inhe- 
 rited. 
 
 A/wti/s 
 ma} r in- 
 herit if 
 produced 
 alive. 
 
 whether such stipulation was absolute and in general terms, 
 or limited to a particular term of payment, unless somo 
 part of the ransom has been paid. 
 
 As appendages of, and connected with the impediments 
 to succession already detailed, we describe the four follow 
 ing circumstances : — 
 
 First. Leaan, or accusation of adultery upon oath by 
 a husband, as disproving the descent of his nominal off- 
 spring, necessarily cuts off their right of succession to his 
 estate. If, however, subsequent thereto he should acknow- 
 ledge their parentage, such confession removes the impedi- 
 ment as to them, and they inherit their father's property ; 
 but he is for ever debarred by a personal objection from 
 claiming any part of their inheritance should he survive 
 them. 
 
 Second. Absence. If a person absent from his house 
 or country at so great a great distance as not to be known 
 or heard of, should be reported dead, his property cannot 
 come under the laws of inheritance, until his death is fully 
 established, or until such period shall have elapsed as by 
 the death of all his contemporaries to remove the pro- 
 bability of his existence, after which it may be divided 
 amongst the heirs who are then existing, without retro- 
 spect to such as may have died previous to the division. 
 Some doctors have prescribed a period of ten years from 
 his absence, and others have disputed the legality of 
 distribution altogether, directing the surrender of his pro- 
 perty in trust to the nearest relation in opulent circum- 
 stances, but the first doctrine is obviously best founded on 
 reason and justice. 
 
 Third. Aftetus or embryo in the womb at the ancestor's 
 death is by law considered an heir upon condition of being 
 brought forth alive, but if produced dead, no portion of 
 inheritance can be claimed in its name. Whereas imme- 
 diate death, if once seen in existence separate from the 
 womb, does not impede the right of succession. In cases 
 again of miscarriage by violence, the criterion of law is 
 that there be observed in the child that species of motion 
 by which life is proved, or which cannot proceed from a 
 
CLAIMANTS UNDER AN APPARENTLY LEGAL TITLE. 873 
 
 dead body, but not merely a shaking or contraction 13 of the 
 limbs, which is often observed to take place after death 
 involuntarily. 
 
 Fourth. Debt. If a person die who is involved in 
 debt to the full amount of what he leaves behind him, 
 his property cannot be transferred to the heirs, but must 
 continue as if in possession of the deceased burthened 
 with payment of his debts. Should these not involve the 
 full amount of his estate, the excess is considered inherit- 
 ance, and may be immediately transferred to the heirs, 
 leaving a proportion adequate to the debt still attachable 
 by his creditors, as if in possession of the deceased. 
 
 Debt of 
 the de- 
 ceased 
 excludes 
 every 
 claim of 
 inherit- 
 ance. 
 
 Having thus described all the legal causes which ope- 
 rate a title to succession, and the various impediments 
 that prevent in law the operation of those causes, we 
 proceed to consider the situation of claimants under an 
 apparently legal title, but whereof the cause was originally 
 contrary to law. 
 
 All our doctors are agreed that such cause cannot in 
 any situation found a valid title to inheritance betwixt 
 believers ; and thus if a Mohummudan should marry a 
 woman who is forbidden to him, or with whom marriage 
 is unlawful, either radically, that is, from their birth, 
 or by some recent occurrence, such as fosterage, former 
 marriage, or any other cause, there is no right of inherit- 
 ance betwixt them in virtue of such marriage, whether it 
 proceeded upon an error or otherwise, because it is not 
 established in law, like the right of wula claimed by a 
 person who emancipates the slave of another without his 
 authority or consent ; and of the same nature is the birth 
 or descent of children begotten under such unlawful con- 
 tract of marriage, except in the case of error, for they 
 cannot inherit from their parents, as will hereafter be 
 more fully explained in treating of children whose mother 
 is divorced for adultery. 
 
 It is otherwise with respect to children produced 
 
 Children 
 begotten 
 under an 
 illegal 
 contract 
 of mar- 
 riage, and 
 their pa- 
 rents, do 
 not inherit 
 each 
 other. 
 
 13 Arab. Tukulloos. 
 
 Except in 
 the case of 
 error. 
 
374 INHERITANCE. 
 
 by erroneous connection of their parents, for these have 
 an undoubted title of inheritance by unanimous assent, 
 although the cause of their birth is certainly illegal as 
 unsupported by valid marriage, and thus, if a man should 
 have carnal connection with a woman through error, 
 supposing her to be his wife, which proves not to have 
 been the case, the offspring of such connection is held in 
 law to be the child of both its parents, if both were alike 
 in error, or of that one alone who was influenced by the 
 mistake, because the laws of descent or establishment of 
 parentage expressly include the case of erroneous connec- 
 tion, and consequently the right of inheritance founded 
 upon descent must be equally established. 
 Infidels From this principle it would appear as a necessary 
 
 in lent consequence to follow, that if a man have carnal connection 
 grounds with his own wife, supposing her the wife of another, and 
 unlawful wishing to commit adultery, the offspring of this connec- 
 according tion is not to be held in law as of the father, although 
 viidhul'" 1 ' ne cessarily the child of his wife, if she did not labour 
 faith. under the mistake but knew him to be her lawful husband. 
 
 All our doctors are, however, agreed that the parentage 
 of such child is established in this case in the father 
 also, because the mother, being in reality his wife, any 
 doubt or error upon his part can only prove him guilty 
 of a carnal intention, and has no other effect whatsoever 
 in law. 
 
 With respect again to zimmees, or tributary infidels, 
 the right of succession may be fully established betwixt 
 them upon grounds, whether of descent or marriage, that 
 are prohibited by our law, provided they are authorized in 
 the belief or according to the rites of their own religion, or 
 have proceeded upon doubt or ignorance of the parties that 
 they are forbidden ; but if, on the contrary, these grounds 
 are illegal also in their own belief and to their knowledge, 
 we decide upon them according to our law. Such is the 
 opinion of the Sheikh as expressed both in his Nehdyut 
 and Tuhzeeb, as well as of many other authors ; and, indeed, 
 appears fully supported by what Sukoony relates to have 
 been told him by the Imam Jdfer Sddik, as a judgment 
 
MUTUAL ACKNOWLEDGMENT OF RELATIONSHIP. 375 
 
 of Aly, upon whom be blessing and peace, viz. that he 
 confirmed the title of a Mujoosy, 14 who had married his 
 own mother, to a twofold portion of her inheritance, one 
 as being her son, and the other her husband. This report, 
 if its authenticity or the fidelity of Sukoony be questioned, 
 would not only reflect discredit upon the judgment of 
 many of our doctors who have uniformly adopted his 
 authority as the guide of their opinions and decision, but 
 would also appear unjust as to himself, who is reckoned 
 amongst the number of our best and most accurate tra- 
 ditionists. It is, besides, further strengthened by a say- 
 ing of the Prophet, on whom and his posterity be blessing 
 and peace : " Every nation or tribe professing a par- 
 ticular faith or religion is bound to abide by the laws 
 thereof; " and another quoted by SudooJc in these words, 
 " Every individual who professes the religion of any nation 
 or tribe, is bound to abide by their laws ; " also by a report 
 of Obbry to this effect, " I heard the Imam Jdfer SddiJc 
 declare that the Prophet of God, upon whom and his pos- 
 terity be blessing and peace, expressly prohibited the 
 custom of reviling female slaves as bastards, or unlawfully 
 begotten, because every nation has particular rites and 
 laws regarding the marriage state or connection betwixt 
 the sexes." Further, it is related by Abdoolah JEbn Imam 
 that a person having once in the presence of the Imam Jdfer 
 Sddik reproached a Mujoosy for being casually connected 
 with his own mother and sister, the Imam rebuked that 
 person severely, observing, " that such was a lawful 
 marriage amongst them according to the tenets of their 
 religion," which tenets did we not apply in our decisions 
 respecting their professions, these various traditions could 
 never have appeared upon record. 
 
 And here, as an appendage to the legal causes of Acknow- 
 succession by birth and affinity, we observe the mutual f^f- 
 acknowledgment of two persons with respect to each other estab- 
 of a relationship establishing the right of inheritance, ^ht of 
 
 14 Magician, or worshipper of fire. 
 
$7$ 
 
 INHERITANCE. 
 
 succes- 
 sion, with- 
 out any- 
 further 
 proof. 
 
 Except 
 when the 
 parties are 
 of known 
 parentage 
 and con- 
 nections. 
 
 provided both these persons be of unknown parentage and 
 connections. Thus, if two persons mutually recognize 
 each other by the titles, for example, of father and son, or 
 any other founding claim to succession, who are not known 
 to the contrary, they are by law acknowledged as the heirs 
 of each other, nor can either be called upon to prove the 
 truth of his confession, because the right is confined to 
 themselves, and there is no person to oppose it, as well as 
 by the saying of him, on whom be peace, " Acknowledg- 
 ments of sane people are valid and binding as to them- 
 selves." Further, it is related by Abdool Ruhman Eon 
 llijuj Bijlly that he asked the Imam Jdfer Sddik, upon 
 whom be peace, respecting a woman brought prisoner from 
 her own country, and with her an infant child whom she 
 called her son ; and a man also a prisoner, who, meeting 
 by accident with his brother, recognized him by that title, 
 and they both knew each other, but neither could adduce 
 any proof of their relation except this mutual acknowledg- 
 ment. The reporter thus proceeds, " The Imam inquired 
 of me my own opinion of these cases ; I observed that the 
 parties could not inherit from each other as having no 
 proof of their relationship from being born in a foreign 
 country. He exclaimed, ' Almighty God ! if a mother has 
 brought with her into captivity a son or a daughter, whom 
 she constantly acknowledges as such, or when a man re- 
 cognizes his brother, and they both being of sane mind 
 continue to acknowledge the relations, surely they must be 
 considered the lawful heirs of each other.' " 
 
 If, however, the acknowledging parties should be 
 generally known as not related to each other by the tie, 
 whether of blood or affinity, which they allege, such ac- 
 knowledgment cannot in law be received, as obviously in 
 this case tending to affect the rights of third parties ; for 
 the title of succession is established by law in the known 
 heirs of the acknowledger, and his simple confession in 
 favour of another, as tending to exclude these, or at least 
 to introduce a sharer in their rights, cannot be received 
 without proof, although verified by the person in whose 
 favour it is made. 
 
DOCTRINE OF SHARES. 377 
 
 With respect, again, to the case of parents and their Acknow- 
 
 infant children reciprocal acknowledgment is not required o ^ _f™^_ n 
 
 by law to establish the right of succession, but on the con- rent is 
 
 trary, the simple declaration of the parent, or adoption of ^ esta _ 
 
 the child as his own, is perfectly sufficient to establish in- blish the 
 
 . child's 
 
 heritance betwixt them, as has already been fully explained title to 
 
 in treating of the acknowledgment of parentage, and there succes- 
 is no distinction upon this point betwixt a father and 
 mother, as a majority of our doctors have decided. 
 
 This right of inheritance by mutual acknowledgment, 
 except in the instance of parent and child, is invariably 
 restricted to the acknowledging parties themselves, and 
 does by no means, according to the most prevalent opinion, 
 descend to their heirs, unless the latter should also verify 
 and avow the connection. Thus, if a person declare another 
 to be her brother, who on his part also avows the relation, 
 and they are not known to the contrary, the right of in- 
 heritance is thereby established betwixt them as to each 
 other, but does not extend to the other brothers for example 
 of either, nor to any relations besides. It is otherwise with 
 respect to parents and children. If one person acknow- 
 ledges himself the father of another, who verifies and avows 
 the filial tie, these are not only by law the heirs of each 
 other, but this right also extends to all the heirs or de- 
 scendants of both. This distinction betwixt the two cases, 
 however, is founded upon a principle whereof the grounds 
 are by no means obvious ; and the various objections thereto 
 may be seen at large with their answers in their proper place. 
 
 Of the Doctrine of Shares and Mode of distributing 
 
 Inheritance. 
 Know that every heir whom Almighty God hath named Distriba- 
 in the Koran, and for whom He hath allotted a specific heritance" 
 portion of inheritance, is by us denominated Zoo furz, or a 
 sharer ; in the same manner as we term that portion of sharers, 
 inheritance assigned furz, or a share ; and further, that every 
 heir to whom a specific share has not been allotted in the and resi- 
 Book of God is called Zoo Kurabut 15 or a residuary. Now duaries * 
 
 15 Literally, master of a relationship. 
 
378 
 
 INHERITANCE. 
 
 The 
 sharers 
 are nine 
 persons ; 
 
 of whom 
 five are 
 some- 
 times resi- 
 duaries. 
 
 The shares 
 of inherit- 
 ance are 
 six. 
 
 Two- 
 thirds go 
 to two or 
 more 
 
 daughters, 
 if there be 
 
 it often happens that the same heir is in one case a 
 sharer, and in another a residuary. The sharers men- 
 tioned in the Book of God are nine persons : a single 
 daughter if there be no son of the deceased ; two or more 
 daughters also on failure of a son; a single sister by the 
 same father and mother, or by the same father only, if 
 there be no brother or grandfather ; two or more sisters 
 also on failure of a brother and grandfather ; a father if 
 there be issue of the deceased ; a mother in all situations ; 
 a husband and a widow in every situation ; and lastly, a 
 relation who is connected with the deceased, by the mother's 
 side only. Of these, the first five are often residuaries also, 
 as where, with a daughter or with two daughters, there is 
 a son ; where, with a sister, or two or more sisters, there is 
 a brother, or grandfather ; and where, with a father, there is 
 no issue of the deceased. The remaining four, again, can 
 never in any situation be residuaries, except upon entire 
 failure of every heir that is capable of being associated with 
 them, in which case of necessity they take the whole in- 
 heritance, first as share and then the residuum or return. 
 All heirs of whatsoever class or description besides these 
 nine are denominated simple residuaries. 
 
 The Foorooz or shares are six : two-thirds, a half, one- 
 third, a fourth, a sixth, and an eighth, agreeable to a 
 tradition of the Imam Mohiimmud Bdkir, on whom be 
 peace, recorded in these words, " Verily the shares of in- 
 heritance do not exceed six ; " to which effect there are 
 many other authentic documents. Now the persons entitled 
 to those shares are as follows. Two-thirds are allotted in 
 two cases ; first to two or more daughters ot the deceased 
 if there be no son, by unanimous assent agreeable to the 
 word of Almighty God : " God hath directed you con- 
 cerning your children ; a male shall have as much as the 
 share of two females ; but if there be females only and 
 above two they shall have two-thirds of the inheritance ; 
 and if there be but one, she shall have a half." Upon this 
 point the author of the Bafy 16 has a passage highly worthy 
 
 16 A compilation of traditions known also by the title of Culeny, 
 from the birthplace of its author Mohummud Jukool. 
 
DOCTRINE OF SHARES. 379 
 
 of question : " Mankind have argued much respecting the 
 right of two daughters, and whence it arises that they enjoy 
 by our law two-thirds of the estate, whereas Almighty God 
 hath expressly stipulated that they be above two in number. 
 Some have ascribed this decision to the general assent of 
 the learned independent of any other authority ; some have 
 attempted to deduce it from reason upon this principle, that 
 as one daughter has a half, it follows that two-thirds must 
 be the share of every member above one ; others again, 
 finding no reason, have followed the majority ; but in fact 
 not one of them has ever discovered the true cause, which 
 is clearly the Divine Authority in these words, " To a male 
 as much as the share of two females," and may be thus 
 exemplified : — If a person deceased should leave only one 
 daughter and a son, the male has as much as two females, viz. 
 two-thirds, consequently two-thirds is evidently the share 
 allotted to two daughters; which explanation affords suffi- 
 cient proof of the decision alluded to, and has notwithstand- 
 ing been omitted by all former writers on the subject." 
 The second case of allotment of two-thirds is to two or and to two 
 
 more sisters of the deceased by the same father and mother, °. r more 
 
 J _ ' sisters, on 
 
 or by the same father only, upon failure of brothers and failure of 
 grandfathers : and this also by unanimous assent on account a broth " 
 of the saying of Almighty God : " If a man die having no father, 
 issue, and leave a sister, she shall have half of what he 
 shall leave, and he is her heir if she have no issue ; but if 
 there be two sisters, they shall have two-thirds of what he 
 shall leave, and if there be brothers and sisters, a male 
 shall have as much as the share of two females." Further, 
 in a tradition of the Imam Jdfer Sddilc, on whom be peace, 
 quoted by Bookeyr Ebn Ayoon, the word sister in this text 
 is explained to mean a sister either by the same father and 
 mother, or by the same father only ; to which effect there 
 are also other documents. With respect, again, to the 
 case of more than ttro sisters, in addition to the unanimous 
 assent of all our doctors, it is established by traditional 
 record from the particular occasion on which this portion 
 of the sacred text was revealed, viz. that of a person 
 named Jabu, who being ill, and having seven sisters, 
 
380 
 
 INHERITANCE. 
 
 A half 
 goes to one 
 daughter, 
 if there be 
 no son ; 
 to one 
 sister, on 
 failure of 
 brothers 
 and 
 grand- 
 father ; 
 and to a 
 husband, 
 if there be 
 no issue. 
 
 One-third 
 goes to the 
 mother, if 
 not par- 
 tially ex- 
 cluded. 
 
 And to 
 two or 
 more re- 
 lations 
 by the 
 mother's 
 side only. 
 
 asked the Prophet concerning their share of his inherit- 
 ance. 
 
 A half is the share allotted to three different persons : 
 to a single daughter if there be no son of the deceased, 
 according to the sacred text above quoted ; to one sister 
 upon failure of brothers and grandfathers, agreeable to the 
 last passage of the holy book ; and to a husband, if there 
 be no issue, as well by unanimous assent of the learned as 
 by express divine authority. " And ye shall have half of 
 what your wives shall leave, if they have no issue ; but if 
 they have issue, then ye shall have a fourth part," &c. 
 
 A third is allotted in two cases : first to a mother 
 if not partially excluded by children however low, or by 
 brothers or sisters of the deceased, who diminish her share 
 as formerly mentioned, and by unanimous assent according 
 to the saying of Almighty God : " And the parents of the 
 deceased shall have each of them a sixth part of what is 
 left if there be issue ; but if there be no issue, then the 
 mother shall have a third, unless there should be brothers 
 or sisters, in which case she shall have a sixth." Further, 
 in a tradition of the Imam Jdfer Sddik, on whom be peace, 
 reported by Aban Elm Tuglilub in the case of a person 
 deceased who left both his parents, we have this decision : 
 " To his mother a third and the residue to his father ; " 
 which decision, however, proceeds clearly on the supposition 
 that there were no children nor brothers of the deceased, 
 because these restrict the share of the mother to a sixth, as 
 has already been mentioned, upon the conditions formerly 
 detailed. Secondly, this share is allotted to relations of 
 the deceased by the mother's side only, if there be more 
 than one in number, whether male or female, or both, 
 agreeable to the saying of Almighty God : " And if a man or 
 woman's property be inherited by a distant relation, and 
 he or she have a brother or sister, each of them shall 
 have a sixth part of the estate ; but if there be more than 
 one, they are all equal sharers in a third." Now in a 
 tradition of the Imam Jdfer Sddik, upon whom be peace, 
 explanatory of this passage quoted by Bodkeyr Ebn Ayoon, 
 we have these words : "By brothers and sisters are here 
 
DOCTRINE OF SHARES. 381 
 
 to be understood those by the same mother only with the 
 deceased, for I particularly suggested the case of a woman 
 who left her husband, brothers by the same mother, and 
 brothers by the father also, to which he replied, ' The hus- 
 band takes a half, or three shares ; a third or two frac- 
 tions go to the brothers and sisters by the mother's side, in 
 which male and female are alike ; and the residue to those 
 by the same father, a male having as much thereof as the 
 share of two females.' " 
 
 The condition again of plurality in brothers and sisters 
 by the mother's side to their enjoying a third is established 
 by unanimous assent ; but whether it is also required in 
 the case of more distant maternal relations, as of a grand- 
 father or uncle, is a question that has admitted of contrary 
 solutions. 
 
 A fourth is allotted also in two cases : to a husband, if a fourth 
 
 there be issue, whether male or female, of his deceased p estothe 
 
 ./.,*. n , husband, 
 
 wile, by unanimous assent, on account ol the sacred text if there be 
 
 issue : 
 
 formerly quoted ; and to a widow, if there be no child of 
 her husband, which is likewise established in the same ^idow \i 
 manner. It is to be observed, however, respecting the there be 
 latter, that this share is not affected in any degree by dren U " 
 supposing one or a plurality of wives ; for should there be 
 four, a fourth part only of the deceased husband's property 
 is to be divided equally amongst them ; and upon this 
 point all lawyers are agreed, both by reason of the abso- 
 lute and unqualified sense of the sacred text, and also of 
 a tradition recorded by Aboo Omar Abdy from the Com- 
 mander of the Faithful, on whom be peace, in these 
 words : " The share of a husband can never be more than 
 a half or less than a fourth, and that of widows never 
 more than a fourth or less than an eighth ; should they be 
 four, or below that number, they are equal sharers in this 
 portion of inheritance ; " to which effect there are many 
 other authentic reports. 
 
 A sixth comprehends three cases : It is the share of a sixth 
 a father with children of the deceased, agreeable to the S oes to a 
 sacred text formerly quoted ; of a mother, in the case of with issue 
 
 issue ; or of brothers and sisters who occasion her partial of the 
 
 1 deceased ; 
 
182 
 
 INHERITANCE. 
 
 to a 
 mother, 
 with issue 
 or bro- 
 thers. 
 
 And to 
 one ma- 
 ternal 
 relation. 
 
 An eighth 
 is the 
 share of 
 a widow 
 with 
 issue. 
 
 Combina- 
 tions of 
 shares in 
 one estate. 
 
 exclusion, as already detailed, agreeable also to the sacred 
 text ; and, thirdly, it is allotted to a single relation by the 
 mother's side only, upon which, in the case of a brother or 
 sister, all our doctors are agreed, by reason of the fore- 
 going sacred text, and several express traditions generally 
 known ; but which, in the case of more remote maternal 
 kindred, as a grandfather or uncle, has admitted a diversity 
 of opinion. 
 
 The last appointed share of inheritance, viz. an eighth, 
 is that of a widow with issue of her deceased husband, 
 by unanimous assent, without distinction also betwixt the 
 case of one and plurality ; for should there be four, this 
 share is to be equally divided amongst them, of which rule 
 the undoubted proof has already been stated. 
 
 Of these shares some are of a nature capable of being 
 combined with others in one estate, and there are some 
 which do not admit of this combination. Of the first class 
 are two-thirds with one-third, as in the case of two sisters 
 by the same father and mother, or by the same father 
 only, with two or more brothers or sisters by the mother's 
 side ; also with a sixth, as two daughters with any one of 
 the parents, or two full sisters with a brother by the same 
 mother only ; likewise with a fourth, as two sisters with a 
 widow ; and with an eighth, as in the case of two daugh- 
 ters with a widow of the deceased. Further, a half is 
 capable of being combined with a half, as in the case of a 
 husband with a full sister, or one by the father's side ; 
 also with a third, as a husband with a mother, or with 
 brothers and sisters by the mother's side ; likewise with a 
 sixth, as in the case of a full sister, or one by the father's 
 side with a sister by the same mother only ; further, with 
 a fourth, as a full sister with a widow, or a daughter with 
 a husband of the deceased ; and, lastly, with an eighth, as 
 in the case of a daughter and a widow. Again, a third 
 may be combined with the following shares : a half and 
 two-thirds, of both which examples have been given ; and 
 with a fourth, as in the case of a widow with brothers or 
 sisters by the mother only. A fourth may also be com- 
 bined with two-thirds, with a half, and with one-third, of 
 
DOCTRINE OF SHARES. 883 
 
 all which examples have preceded ; and, lastly, with a 
 sixth, in the case of a widow, with any one relation by the 
 mother's side only. Further, a sixth admits of combina- 
 tion with two-thirds, with a half, and with a fourth, as 
 formerly exhibited ; with a sixth, as in the case of both 
 parents should there be issue of the deceased ; and, lastly, 
 with an eighth, as in the case of a child with the widow 
 and both parents, or any one of them. To conclude, an 
 eighth may be combined with two-thirds, with a half, and 
 with a sixth, of all which examples have been already 
 offered. 
 
 Those shares of inheritance, on the other hand, which 
 do not admit of combination, and can never be allotted 
 from one and the same estate, are as follows : — Two-thirds 
 with two-thirds and with a half; cme-third cannot be com- 
 bined with a third, nor with a sixth, nor with an eighth ; 
 one-eighth can never be allotted with an eighth, nor with 
 a fourth : and, lastly, two-fourths can never be assigned 
 from the same estate. This incapacity of combination in 
 some of the eight foregoing cases, and the various grounds 
 thereof, will be evident from a retrospect to the shares and 
 persons entitled to them with the established conditions 
 on which they are allotted ; but a further cause of inca- 
 pacity in some will hereafter be made manifest when we 
 come to describe the nullity, according to our law, of the 
 doctrine of Aid, a prevailing system amongst all doctors of 
 the opposite sect. 
 
 And here it is proper to describe certain general rules a father, 
 to which strict attention is indispensable. The first of "P on 
 these is. " That a father of the deceased, upon failure of is SllCi j s a 
 issue, is not a specific sharer in the estate, but has by law residuary, 
 merely a residuary title to all that remains after distri- 
 bution of the other shares." Thus, if a person deceased 
 should leave, for example, a father, a mother, and a 
 husband, the mother, in this case, takes a third, if not 
 partially excluded by brothers or sisters ; the husband also 
 enjoys his appointed share, viz., a half, and the remaining 
 sixth is all that would go to the father ; whereas, if we 
 substitute a widow in room of the husband, a residuum of 
 
381 INHERITANCE. 
 
 five-twelfths, after payment of her share and the mother's, 
 would in this example be inherited by the father. By 
 the same rule, if the father and mother only of a person 
 deceased should remain, the former would receive two- 
 thirds of the estate, and the latter one-third, if not par- 
 tially excluded by brothers or sisters, whereas if these 
 existed, the mother's share being consequently reduced 
 to a sixth, the father would enjoy five-sixths of the estate 
 in virtue of his residuary title. 
 
 This doctrine admits of no difference of opinion, by 
 reason of an authentic report thereupon in the collection 
 of Mohummud Elm Mooslim, to this effect: "The Imam 
 Mohummud BdMr, on whom be peace, showed me a book 
 of inheritance dictated by the Prophet of God, and in the 
 handwriting of Alt/, which contained the case of a woman 
 deceased, leaving her husband and both parents, whose 
 estate was thus distributed : to her husband, a half, or 
 three fractions out of six ; to the mother, a third, or two- 
 sixths ; and one-sixth, or the residuum, to the father." 
 Again, in a report of Ismail Jafy, the following decision 
 is quoted from the Imam Jdfer SddiJc, on whom be peace : 
 " If a man dying should leave his widow and both 
 parents, a fourth of his estate goes to the widow, one- 
 third thereof to his mother, and his father inherits the 
 residuum." Further, in a report of Aban Ebn Tughlidi, 
 from the same Imam, we have the case of a person dying 
 who left only her father and mother, thus divided : " To 
 the mother, a third part, or her appointed share, and all 
 the residuum to the father ; " to which effect there are various 
 other authentic documents, all of them, however, obviously 
 proceeding on the supposition of failure of brothers and 
 sisters, who necessarily limit the mother's share to a sixth, 
 as has already so often been mentioned. 
 Daughters The second general rule to be observed is, " that in 
 
 made resi- distribution of inheritance to children of the deceased, if 
 duanes by ' 
 
 a son. amongst them there should be a son, the male has always 
 
 a portion equal to that of two females, by unanimous assent ; 
 
 which affords another example of a sharer becoming a 
 
 residuary, like that of a father under the foregoing general 
 
DOCTRINE OF SHARES. 600 
 
 rule. This principle is established not only by the sacred 
 authority formerly quoted, but also by several authentic 
 traditions generally known. In one of these which is 
 reported by Ahwul we have the following words : " The 
 son of AbooAuja having expressed his ignorance and doubt 
 of the cause why a female, the weakest and most helpless 
 of the two, should enjoy only half the portion of inheritance 
 bestowed upon a male, some of our companions stated this 
 matter to the Imcim Jcifer Sddik, on whom be peace ; he 
 replied, a female is excused from the performance of many 
 duties imposed by law upon a male, such as service in 
 the Holy Wars, maintenance or support of relations, and 
 payment of expiatory fines, and for this reason her share 
 of inheritance has been justly limited to half the portion 
 of a male." 
 
 This principle equally applies to sisters in distribution Also sis- 
 with a brother or grandfather, for they also become resi- brother & 
 duaries like daughters with a son, unless they are by the 
 mother's side only, and this by unanimous assent ; on ac- 
 count not only of the sacred text formerly quoted, but also 
 of various traditional authorities to be hereafter adduced, if 
 it please God. 
 
 The third general rule to be described is, " that the Every re- 
 portion of every person related to the deceased through one ™° o e t j J ? ir> 
 of his parents, whether related also through the other or self a 
 not, provided such person be not himself a specific sharer, take-ins 
 is exactly the portion of that parent, or in other words is portion of 
 the portion of that person from whom the title or relation of Monsan- 
 to the deceased, by however many intermediate steps, is guinity 
 derived, whether such mean of consanguinity was a specific c i ecease( j 
 sharer or not." Thus, the children of a daughter or of two 
 daughters supply the place in succession of their mother's, 
 taking either a half or two-thirds of their grandfather's 
 estate, and also the surplus or return should there be any, 
 in the same manner as their mothers, if existing, would have 
 done. Again, the children of a son supply the place of 
 their father from whom their title is derived, and enjoy his 
 portion of the inheritance. And if we suppose an assem- 
 blage of the children of sons and daughters, each class take 
 PART II. C c 
 
386 
 
 INHERITANCE. 
 
 Example 
 in grand- 
 children. 
 
 Great 
 grand- 
 children. 
 
 Brother's 
 and sis- 
 ter's chil- 
 dren. 
 
 Grand- 
 fathers 
 and 
 grand- 
 mothers. 
 
 Uncles 
 and aunts. 
 
 the portion of inheritance which their own root or immediate 
 ancestor would have enjoyed if in existence. For example, 
 if a person deceased should leave a son's son and children 
 of a daughter, the former would receive two-thirds, and 
 one-third only would go to the daughter's children. Upon 
 the same principle, should there be children of a son's son, 
 and a daughter's daughter, the former would have two- 
 thirds of the estate and one-third goes to the daughter; 
 and if we substitute in the room of children a single 
 daughter of the son's son, the case is exactly the same, as 
 such daughter being a descendant in the male line would 
 still receive two-thirds or the portion of her root. Further, 
 if we suppose the deceased to leave children of his daughter's 
 son, and a daughter of his son's daughter, the former as 
 descended from a female would inherit amongst them only 
 one-third of his estate, whilst the daughter would receive 
 two-thirds thereof. If, on the other hand, a person should 
 leave children of the son of one daughter, and the 
 daughter's daughter of another, here, as all are descended 
 from a female root, the former would receive one-half of 
 the estate amongst them, and the other half would go to 
 the latter singly, their portions being in this case composed 
 both of shares, and the return. In short, each individual 
 or class of descendants receives the portion of his or their 
 own immediate ancestors or root, in the same manner as 
 that ancestor takes the portion of his root, and so on, to 
 the deceased. 
 
 The children also of a brother or sister, whether by the 
 father's or mother's side, receive exactly that portion of 
 inheritance which their parent, such brother or sister, would 
 have enjoyed, upon the same principle and by the same 
 rule with grandchildren and great-grandchildren, whether 
 their ancestor was a sharer or residuary. Further, the 
 share of a maternal grandfather is exactly that of a mother, 
 as is also that of a maternal grandmother, a paternal grand- 
 father's that of a father, and likewise a paternal grand- 
 mother's. A paternal uncle also receives the portion of a 
 father through whom he is related, as does also a paternal 
 aunt : a maternal uncle has that of a mother through 
 
DOCTRINE OF SHARES. 
 
 387 
 
 whom his title is derived, and likewise a maternal aunt. 
 The children, again, of uncles, whether paternal or maternal, 
 inherit the portions of their parents ; and in general every 
 branch as representing its root in succession receives by 
 law the portion of inheritance assigned to that root, without 
 any distinction whatsoever except this, that in the secondary 
 distribution betwixt relations by both parents or by the 
 father's side, attention must be always paid to sex, the 
 male having a portion adequate to two females ; whereas 
 amongst relations by the mother's side only, in the distri- 
 bution of their ancestor's portion males and females are 
 perfectly alike, there being no preference to one over the 
 other. Thus, the children of brothers or sisters by the 
 same father and mother only, the same father only, paternal 
 grandfathers and grandmothers, paternal full uncles and 
 aunts, paternal half uncles and aunts if by the father's 
 side, and their children, divide the portions of inheritance 
 enjoyed by them, to a male as much as the share of two 
 females ; whereas the children of brothers and sisters by the 
 mother's side, maternal grandfathers and grandmothers, 
 paternal half uncles and aunts if by the mother's side only, 
 maternal uncles and aunts of every description and their 
 children, divide their portions of inheritance as derived 
 through the female line equally without distinction or 
 preference of sex whatsoever. This rule is universally 
 prevalent amongst our doctors, and has by some been 
 further extended in its application to the children or de- 
 scendants of daughters, amongst whom, in their opinion, 
 as equally in the female line, no distinction of sex can be 
 observed. This opinion is, however, now generally aban- 
 doned, and we may therefore lay it down as a fixed maxim, 
 that amongst the children of daughters as of sons, the 
 distribution is to a male double the portion of a female, 
 notwithstanding their relation through the mother, consider- 
 ing them as in the place of immediate offspring, to whom 
 the application of the sacred text is therefore indispensable. 
 The traditional documents which establish the fore- 
 going general rule are contained first in a report of Aboo 
 Ayoobj from the Imam Jdfer Sddik, on whom be peace, to 
 
 c c 2 
 
 And their 
 children. 
 
 In the 
 secondary 
 distribu- 
 tion atten- 
 tion is paid 
 to sex, re- 
 lations in 
 the male 
 line, or of 
 full blood, 
 sharing a 
 male dou- 
 ble the 
 portion of 
 a female, 
 and those 
 in the 
 female 
 line all 
 equally. 
 
INHERITANCE. 
 
 All rela- 
 tions by 
 the full 
 blood, or 
 by the 
 father's 
 side, are 
 residu- 
 aries, 
 when com- 
 bined with 
 those by 
 the 
 
 mother's 
 only. 
 
 Example 
 in brothers 
 and sis- 
 ters. 
 
 the following effect : " It is written in the book of At//, 
 on whom be peace, that a paternal aunt supplies the place 
 of a father in succession, a maternal aunt that of a mother, 
 the children of paternal uncles, in the situation of paternal 
 uncles, and in general every remote kinsman in the place 
 of that nearer relation through whom his title is derived, 
 unless some heir nearer to the deceased should exist, who 
 necessarily excludes him altogether." Further, in a report 
 of Soliman Ebn Khalid, from the Imam Jdfer Sdclik, on 
 whom be peace, in these words : " The Commander of 
 the Faithful, Aly, on whom be peace, always considered a 
 paternal aunt in the situation of a father as to inheritance, 
 a maternal aunt in that of a mother, a brother's son as 
 a brother, and every relation not personally entitled to a 
 share in the situation of that heir through whom his title 
 was derived." Again, in a decision of the Imclm Mohummud 
 BdJcir, on whom be peace, quoted by Aboo Buseer, to this 
 effect : " That being asked respecting the case of a hus- 
 band and grandfather, he adjudged an equal division be- 
 twixt them of the deceased's property." And, lastly, in 
 a judgment of the Imam Jdfer Sddik, on whom be peace, 
 reported by Sulma Elm Malmrez, upon the case of a 
 paternal uncle and aunt, viz., " Two-thirds to the uncle, 
 and one-third to the aunt," the reporter thus proceeds : 
 " I inquired respecting a paternal uncle's son with the 
 son of a maternal aunt. He replied, ' To the male double 
 the share of the female.' " And to the same effect are 
 various other authorities. 
 
 The fourth general rule to be observed is, " That 
 whenever an assemblage occurs of relations by both parents 
 or by the father's side with relations by the mother only, 
 the latter, if one, takes a sixth part of the estate, or a 
 third in the event of plurality, to be divided equally, with- 
 out distinction of male or female, and all the residuum, 
 goes to the former, divisible to a male double the por- 
 tion of a female." Thus, if we suppose a brother by the 
 same father and a sister by the mother only to exist, the 
 latter receives her appointed share, viz., one-sixth of the 
 deceased's estate, and the residuum, or five-sixths, go to 
 
DOCTRINE OF SHARES. 389 
 
 the brother. If, again, brothers and sisters by the father 
 
 are combined with brothers and sisters by the mother, the 
 
 latter receive a third part of the estate, to be divided 
 
 equally amongst them without distinction of sex ; and 
 
 two-thirds thereof go to the former, divisible to a male 
 
 double the portion of a female. Further, if we suppose 
 
 children of a brother by the mother's side only, with the 
 
 son of a sister of the same father, the former would receive 
 
 only a sixth part of the estate as the appointed share of 
 
 their father, to be divided equally amongst them, and the 
 
 remaining five-sixths would go all to the sister's son. 
 
 The same is invariably the rule with respect to all other 
 
 shares of inheritance, attention being paid in their primary 
 
 allotment to the third or preceding general rule. Thus, if Paternal 
 
 there be children of paternal uncles or aunts of different aun * s > and 
 
 . uncles, 
 
 descriptions assembled as the heirs of a person deceased, and their 
 
 those descended from one paternal half uncle or aunt by chlldren - 
 the same brother only with his father receive a sixth part 
 as the portion of their ancestor, or a third if descended 
 from two or more, which is divisible equally amongst them, 
 to a female the same as a male, and all the residuum goes 
 to the children of those half uncles and aunts who were 
 brothers or sisters by the father's side to the deceased's 
 father, divisible amongst them to a male double the por- 
 tion of a female. Again, should there be children of Maternal 
 
 maternal uncles and aunts of different descriptions, those unc l esand 
 
 1 aunts, and 
 
 connected by the mother's side receive as above a sixth their chil- 
 part if descended from one ancestor, or a third if from two n ' 
 or more, and those by the father's side take all the 
 residuum ; but here the secondary distribution to both 
 classes is made without distinction of sex, a female re- 
 ceiving in each the same portion with a male, because all 
 are alike related to the deceased through the medium of 
 a female, his mother. 
 
 Lastly, we shall suppose an assemblage of the children Children 
 of paternal uncles of different descriptions with the chil- ^K r " 
 dren of maternal uncles also varying in description ; and maternal 
 here the primary distribution would be, as formerly men- pro n ^ s( . u _ 
 tioned : one-third of the estate to the latter class, and the ously. 
 
390 INHERITANCE. 
 
 residuum, or two-thirds, to the former. Secondly, the third 
 assigned to the children of maternal uncles would be thus 
 distributed : To those whose ancestor was related only 
 by the mother's side, a sixth part thereof if one, or a 
 third in case of plurality, and the residuum to the full 
 maternal uncle's descendants, or those of one related by 
 the father's side ; but the final distribution as to both 
 these classes would be without distinction of sex, to a 
 male the same portion with a female. With respect, 
 again, to the two-thirds first allotted to the paternal 
 uncle's descendants, the secondary distribution would be 
 to those of a half uncle by the mother's side, a sixth, or a 
 third in case of plurality, divisible equally amongst them 
 without distinction of sex ; and to those of full uncles, 
 or of half uncles by the father's side, all the remainder, 
 divisible amongst them to a male double the portion of a 
 female. 
 
 This rule of inheritance is universally prevalent amongst 
 our doctors, and is established not only by several tradi- 
 tions already quoted, but also by a report of Booheyr Ebn 
 Ayoon from the Imam, Jdfer Sddik, on whom be peace, 
 in these words : "I inquired concerning the estate of a 
 woman deceased who had left her husband, some brothers 
 and sisters by the same mother, and also brothers and 
 sisters by her father. He replied, ' The husband takes 
 one-half of her inheritance or three fractions, one-third 
 goes to her brothers and sisters by the mother, which is 
 to be equally divided amongst them, to a male the same 
 as to a female, and the residuum or one-sixth goes to the 
 brothers and sisters by the father's side, a male having 
 double the portion of a female, for verily the appointed 
 shares of an inheritance cannot be diminished by Avl (or 
 increasing the number effractions), and a husband's share 
 cannot be less than a half in this case, nor that of brothers 
 and sisters by the mother less than a third, agreeable to 
 the saying of Almighty God : If there be more than one 
 they are equal sharers in a third, and if only one, he or she 
 has a sixth part, &c.' " Further, by a tradition of the 
 Imam Mohummud Bdkir, on whom be peace, recorded by 
 
DOCTRINE OF SHARES. 391 
 
 Bookeyr in these words : " A person having asked the 
 Imam concerning the inheritance of a woman deceased, 
 who had left her husband, two brothers by the same 
 mother, and a sister by her father, he replied, ' The 
 husband takes a half or three fractions, a third or two 
 go to her brothers by the mother, and the residuum or 
 one-sixth goes to her sister by the father.' " Again, it 
 is recorded by Mohummud Ebn Mooslim that he put the 
 following case to the Imam Mohummud Bdlcir, on whom 
 be peace : "A person deceased leaves the son of a sister 
 by his father, and a son of his sister by the mother ; how 
 is his estate to be divided ? The Imam decreed to the 
 latter a sixth part, or his mother's appointed share, and all 
 that remains to the former," to which effect there are also 
 other traditions. 
 
 The last general rule to be described is, "that when- Paternal 
 
 (ryori r\ m 
 
 ever grandfathers and grandmothers, both paternal and fathers 
 
 maternal, are assembled with half brothers and sisters by rank 
 
 the father's and by the mother's side, or with their children, succession 
 
 a maternal grandfather and grandmother are by law on an witn ful1 
 
 equal footing in succession with a brother and sister by r those by 
 
 the same mother only, and a paternal grandfather and the father, 
 
 grandmother equal to a full brother and sister or to those maternal 
 
 by the father's side ; but should these ancestors stand K rancl - 
 . •■ . • t . ., ,, n fathers 
 
 single m succession, that is, upon iailure ol brothers and w ith 
 
 sisters and their children, then thev are considered in the brothers 
 
 by the 
 situation of immediate parents, or of a father and mother mother's 
 
 respectively. side onl y- 
 
 This principle is established by a tradition of the f a ji ure f 
 
 Imam Jdfer Sddik, on whom be peace, quoted by Foozei/l brothers 
 
 Elm Yesa/r, in these words : " Verily a grandfather is sisters 
 
 associated in succession with brothers, his portion is equal their rank 
 
 to one of theirs and neither more nor less. Further, by i' mme . 
 
 an authentic report of Aboo Buseer from the same Imam. diate P a " 
 
 rents 
 in these words : "I stated the case of a person who died 
 
 leaving six brothers and a grandfather ; he replied, ' The 
 
 grandfather is as one of the brothers.' " By another 
 
 decision in the case of a brother's son and a grandfather, 
 
 to this effect : " The property is to be divided equally 
 
392 INHERITANCE. 
 
 betwixt them ; " and by another in the instance of a sister's 
 daughters with, a grandfather, to this effect : " To the 
 sister's daughters one-third, and the remainder to the 
 grandfather," which last decision obviously proceeds on 
 the supposition that both sister and grandfather were 
 related by the same side, whence the distinction of male 
 and female would have bestowed a double portion on the 
 latter. 
 
 A single If there should be only one heir of a person deceased, 
 
 descrii> ny such individual takes the whole property to himself, what- 
 
 tion takes ever the nature of his title may be, consanguineous, emanci- 
 the whole r. -, , -, -!•>_• 
 
 inherit- P a ^ or y; or °* patronage, m whatsoever class or description 
 
 ance. he may be placed, and if even the lowest or most remote 
 
 member of that, class, without any distinction whatsoever, 
 Ifasharer, and this by unanimous assent. The only distinction that 
 distinct can occur is this : that where such individual or sole heir 
 titles. happens to be of the class of sha/rers, he inherits under 
 
 two separate titles : first, his own appointed share and 
 And if a then the return as a residuary. Where, on the other hand, 
 residuary, ne is n °t a sharer, his simple residuary title alone 
 under this embraces the whole property at once, whether founded 
 upon emancipation, patronage, or any other ground what- 
 soever. Thus, if we suppose a sister by the mother's side 
 to be the sole heiress of a person deceased, she receives 
 first her appointed share, viz., a sixth part of the estate, 
 and then the remainder as a residuary. If, again, a 
 brother by the father should be sole heir, he inherits the 
 whole property at once as a residuary, having no specific 
 share allotted to him ; and upon these two examples all 
 other classes and degrees may be conceived without repeti- 
 Exccpt a tion. In the case of a husband, the principle is exactly 
 
 widow, the same, according to the most prevalent doctrine, but 
 
 who is ' ° ... 
 
 always with regard to a widow, her residuary title in any case 
 
 tnT- * s mos t generally denied, and the grounds of its rejection 
 
 share. have already at great length been detailed. 
 
 As establishing the general principle in addition to 
 
 unanimous assent, we have the following traditional 
 
 documents : First, a report of Sulma Ebn Mohuruz, from 
 
DOCTRINE OF SHARES. 393 
 
 the Imam Jdfer Sddik, on whom be peace, to this effect : 
 
 " I reported the death of a man who had bequeathed to 
 
 me all his property by will, having at the same time a 
 
 daughter. The Imam inquired if there were any witnesses 
 
 to the will, and upon my answering in the negative, 
 
 directed me to surrender all the property to the daughter 
 
 as hers of right." Secondly, by a report of Abdoolla Elm 
 
 Sindn from the same Imam, in these words : "I inquired 
 
 concerning a person deceased who had left a brother by 
 
 his mother and no other heir besides. He replied, ' The 
 
 property goes all to that brother.' " Further, in the 
 
 commentary of Aly Ebn Ibrahim, a tradition is quoted 
 
 from Boolieyr Ebn Aijoon of the Imam Mohummud Bdkir, 
 
 on whom be peace, to this effect : " If a man die leaving 
 
 an only sister, she takes first her appointed share, viz. 
 
 one-half of his inheritance, agreeable to the sacred text, in 
 
 the same manner as a daughter would have done if in 
 
 existence, and the remaining half also reverts to her should 
 
 there be no other nearer heir, in virtue of a residuary title." 
 
 If instead of this sister there be a brother of the deceased, 
 
 he inherits the whole property under one general title, 
 
 agreeably to the saying of Almighty God, " And he is sole 
 
 heir if there be no issue." Again, should there be two 
 
 sisters, these receive first two-thirds of the estate as their 
 
 appointed share in the Book of God, and the remaining 
 
 third reverts to them as residuaries." To the same effect 
 
 are various other documents. 
 
 If there be more than one heir of a person deceased, Case of a 
 
 some of whom do not exclude the others from inheritance, of "heirs'^ 
 
 then attention must be paid to their titles and lines of who are 
 
 descent, and if amongst them no specific sharer should d uar i es " 
 
 appear, the property must be divided according to their 
 
 own respective portions ; as where, for example, a person 
 
 leaves children, male and female, in which case each of the 
 
 former has double the portion of one of the latter ; and 
 
 where also he leaves brothers and sisters all by the same 
 
 father and mother, or by the same father only, in which 
 
 case the same rule is observed, and so on. 
 
 If, again, amongst these heirs, neither of whom If some 
 
 arc sharers 
 
:; ( .M 
 
 INHERITANCE. 
 
 to their 
 
 full 
 
 shares. 
 
 and some excludes any other, some sharers and some residuaries are 
 aries "the observed, the former are preferred to their appointed shares 
 former are in the first place, and the remainder of the estate goes to 
 the residuaries ; as where, for example, a woman leaves 
 both her parents, her husband, and children, both male and 
 female, in which case the parents take a third part of her 
 estate betwixt them, her husband takes a fourth, and the 
 remaining five-twelfths go to her children, of whom a male 
 has the portion of two females ; and when, also, a woman 
 leaves her husband, a paternal and a maternal uncle, in 
 which case the husband takes a half, his appointed share, 
 her maternal uncle, being also a sharer, receives his third, 
 and the residue, or one-sixth only, goes to the paternal 
 uncle. Again, the case is exactly the same where, with 
 her husband, a woman leaves children of her paternal and 
 of a maternal uncle, for here, also, the husband takes his 
 half, the maternal uncle's children, in right of their father, 
 a third, and the remaining sixth part goes to the children 
 of the paternal uncle. Upon these three examples all 
 similar cases may be conceived, without the trouble of 
 repetition ; and this preference of law to sharers over resi- 
 duaries is established not only by many traditions already 
 quoted, but also by a report of AJxba Elm Busheer from 
 the Imam Molvummud Bdhir, on whom be peace, in the 
 case of a woman who died leaving her husband and both 
 her parents, upon which this decision was pronounced : 
 " To the husband one-half of her estate, a third thereof to 
 the mother, and the residue, or one-sixth, to her father." 
 Again, in the case of a woman who left her husband, her 
 father and mother, a decision of the Imam Jdfer Sddik, 
 on whom be peace, is recorded by Aboo Buseer, to this 
 effect : " The distribution of her estate is into six equal 
 portions, three of which, or one-half, of the whole inherit- 
 ance, is the share of her husband ; a third, or two portions, 
 go to the mother ; and the residue, or one-sixth, to her 
 father ; " to which effect there are various other traditional 
 documents. Now it has already been stated, as written in 
 the book of Alij, on whom be peace, that a paternal aunt 
 of the deceased is exactly in the situation of a father, and 
 
DOCTRINE OF SHARES. 395 
 
 a maternal aunt in that of a mother, as to inheritance. It 
 follows, therefore, of necessity that a paternal uncle or 
 aunt, and an uncle or aunt by the mother's side, if com- 
 bined with a husband or widow, form a case exactly similar 
 to that of a father and mother of the deceased, when com- 
 bined with a husband or widow, without any difference or 
 distinction whatsoever. 
 
 If all the heirs of a person deceased should be specific Case when 
 sharers in the estate, without any individual amongst heirs are 
 them who claims under a simple residuary title, this case specific 
 admits of three different suppositions — first, that the estate and tne ' ir 
 is capable of embracing and discharging all the appointed appointed 
 sharers without surplus or deficiency of any fraction what- ex i mus t 
 soever ; second, that it falls short of all the shares ; and the estate 
 third, that, after payment of them all, a surplus of some fj. ac ti n. 
 fraction remains. Under the first supposition no difficulty 
 whatever occurs; for each individual must, in this case, 
 receive his full appointed share by unanimous assent, as 
 when, for example, a person deceased may have left two 
 daughters, his father, and mother, in which case the 
 former have two-thirds of the estate, or four fractions 
 produced by a divisor of six, and each of the latter one of 
 these fractions, thus involving the whole of the deceased's 
 property. In like manner, when he may have two sisters 
 by the father's side, and brothers or sisters by the mother's, 
 as two-thirds go in this case to the former, and one-third 
 is the share of the latter, likewise involving the whole of 
 the property ; or where, for example, a woman may leave 
 her husband and one sister by the father's side, each of 
 these taking a half of her property ; and all similar cases 
 in which the divisions have been already established, both 
 by divine and traditional authority. 
 
 Under the second supposition, again, viz., when the If the 
 property falls short in distribution of all the appointed f*[(lf g hort 
 shares, and which can only happen when a husband or of the 
 widow interferes, all our doctors are agreed that the loss XireTtho 
 or deficiency must invariably Ml upon daughters or sisters loss must 
 of the deceased by both parents, or by the father's side ; affect^ ' ' 
 in other words, there are only four of the appointed shares daughters 
 
o96 INHERITANCE. 
 
 or sisters of inheritance which can be affected by any deficiency 
 bloodor arising in the distribution, viz., the share of one daughter 
 by i lie and of two or more daughters, the share of one sister 
 and of two or more sisters, either by both parents, or by 
 the father only. Thus, if a woman leave her husband and 
 two sisters, either by the same father and mother, or the 
 same father only, the husband is entitled to a half, and 
 the sisters to two-thirds ; consequently, the regular divisor 
 of these shares is six, whereas their appointed portions 
 amount to one fraction more than this division would 
 admit of. 
 
 Again, if we suppose with a husband of the deceased 
 one sister by the father's side, and a sister by the mother's, 
 both the husband and first sister being entitled to a half, 
 and the latter's share being a sixth, here also a deficiency 
 of one-sixth would occur. Further, if we suppose with the 
 husband as above, two daughters and both parents of the 
 deceased, here the divisor being necessarily twelve, of 
 which three, viz., a fourth, is the husband's share, eight, 
 or two-thirds, that of the daughters, and each of the 
 parents take a sixth, or two fractions, it follows that a 
 deficiency of three-twelfths would arise in the distribution. 
 Lastly, if with the husband there should be one daughter 
 and both parents of the deceased, here also a deficiency of 
 one-twelfth would arise, because the daughter's share is a 
 half, or six fractions produced by a divisor of twelve, the 
 husband is entitled to a fourth, or three, and each of the 
 parents to a sixth, or two parts, in this division ; all 
 which making thirteen, exceed the estate by a twelfth. 
 Let us now apply the loss or deficiency in each of these 
 four examples agreeably to the principle laid down, and 
 affecting the shares therein mentioned, which must in- 
 variably guide the distribution in all similar cases. In 
 the first example, therefore, the two sisters receive only 
 the half which remains after the husband's share, instead 
 of two-thirds, thus suffering the loss of a sixth. In the 
 second, the sister by the father's side submits also to the 
 loss of a sixth from her appointed share, receiving only 
 two parts instead of three. The two daughters again, in 
 
DOCTRINE OF SHARES. 397 
 
 the third example, suffer a deficiency of three-twelfths in 
 
 their share, receiving only the five which remain after 
 
 payment of the husband's share and that of both parents. 
 
 Lastly, in the fourth example, the single daughter by the 
 
 same side loses one-twelfth part of the inheritance, receiving 
 
 only five parts instead of six under a division by twelve. 
 
 This principle is established by the unanimous assent 
 
 of all our doctors, to whom God be gracious, following the 
 
 express conditions of our Holy Imams, upon whom be 
 
 the blessing of God, in such a manner as to render its 
 
 belief and practice one of the essentials of our religion : 
 
 whilst the uniform doctrines of the vulgar sect have insti- But can 
 
 tuted and supported the practice of aid : that is, increasing never be 
 11 x ' ' o rendered 
 
 the divisor, or number of shares, and thereby proportion- general by- 
 ally diminishing the value of all in cases of defalcation in !;? cr ?? ,s . m £ 
 
 J & the divisor 
 
 the estate. By application of this practice to the four or number 
 examples we have given, the division in the first would be 8 iares * 
 by seven instead of six. Of these seven parts the husband 
 would receive three, and four would go to the two sisters. 
 In the second example, also, the husband would receive 
 three parts out of seven, the sister by the father's side like- 
 wise three, and one seventh part would go to the sister 
 by the mother. In the third example, again, the divisor 
 being increased to fifteen, the husband would receive three 
 of these parts, the two daughters eight, and to each of the 
 parents two fifteenth parts of the inheritance would go by 
 application of this practice. Lastly, in the fourth example, 
 the distribution would take place into thirteen parts instead 
 of twelve, whereof the husband would receive three, six 
 would go to the one daughter, and each of the parents 
 receive two. And a similar increase of divisors may be 
 conceived in all other similar cases. 
 
 From our pure and holy Imams, however, upon whom Aul is 
 be the peace and blessing of God, there are innumerable unlawful - 
 traditions recorded and generally known, which expressly 
 annul and prohibit this practice, and in which they not 
 only in the strongest terms deny its legality, but also 
 prove in the most satisfactory manner the perverseness of 
 those doctors of the vulgar sect who recommended it and 
 
398 
 
 INHERITANCE. 
 
 If a sur- 
 plus 
 should 
 remain 
 after dis- 
 tribution 
 of all the 
 shares it 
 reverts to 
 the con- 
 sanguin- 
 eous 
 
 sharers, in 
 propor- 
 tion to 
 their 
 original 
 allotment. 
 
 applied it. In one tradition, reported by Aboo Murium 
 Ansary from the Imam MoJiummud BdMr, on whom be 
 peace, there are the following words : " Verily He who 
 knows the number of the sands of Aaluj (i.e. Almighty- 
 God) knows also that the appointed shares of inheritance 
 cannot be increased above six." Now Aaluj is a place in 
 Arabia, famed for the extent of its sands, and the meaning 
 of his expression, on whom be peace, " the shares cannot 
 be increased above six," is obviously this, that although 
 for the convenience of distribution the number of fractions 
 are necessarily increased under a fixed rule, still the six 
 radical shares of inheritance must be preserved, viz., two- 
 thirds, a half, one-third, a quarter, a sixth, and an eighth. 
 To which effect there is another express tradition re- 
 corded by Booheyr from the Imam Jdfer Sddih, on whom 
 be peace, in these words : " The radical shares of inherit- 
 ance can only be six ; they can neither be increased above 
 the number, nor can they be altered by aid ; and after this 
 radical division, the property must be allotted to the several 
 sharers who are mentioned in the Book of God." Again, 
 in a report of Hussumy from the same Imam, on whom be 
 peace, we have these words : " Elm Abbas was wont to 
 declare that He who could number the sands in the desert of 
 Aaluj, knew that the radical shares of inheritance cannot 
 be increased above six ; " and to the same effect are various 
 other authentic documents generally known. 
 
 Under the third and last supposition regarding an 
 estate to be distributed, viz., that a surplus thereof shall 
 remain after payment of all the shares, we observe that 
 this surplus reverts by our law to the consanguineous 
 sharers in proportion to their respective shares, and is 
 divisible amongst them either by fourths or by fifths ; for 
 the return, or reversion, admits of no other distribution. 
 Thus, if there be one daughter and the mother of a person 
 deceased, the latter takes first her appointed share, or a 
 sixth part of the property, the regular divisor being six : 
 the daughter has her moiety, or three parts, produced by 
 this division ; and the remaining two-sixths are divided 
 betwixt them by fourths in the return, one-fourth to the 
 
DOCTKINE OF SHARES. 399 
 
 mother and three to the daughter, corresponding, this 
 latter division, obviously to their original shares of the 
 inheritance. If, again, with a daughter there be both 
 father and mother of the deceased, each of the latter taking 
 first a sixth part of the property, and the daughter her 
 half or three-sixths thereof, the surplus in this case of 
 one-sixth returns to all proportionally, and is, therefore, 
 divided into five parts, one-fifth thereof to each of the 
 parents, and the remaining three to the daughter. But a 
 more simple and easy method of distribution, in examples 
 of this nature, occurs by a primary arrangement of their 
 shares, in cases where the return is by fourth parts into 
 four, and where by fifteenths into five ; and thus in the 
 first example the mother would at once receive a fourth 
 •part of the estate, and three-fourths go to the daughter. 
 Hence in every case where the surplus or return is divisible 
 by fourths, a primary arrangement of the whole estate into 
 four parts must obviously answer all the purposes of dis- 
 tribution ; and in like manner where by fifths, an arrange- 
 ment into five will produce the true shares without any 
 fraction. This simple and summary method would appear 
 to be alluded to in a traditional report of Salman Ebn 
 Mohuruz ; but another authentic report of Mohummud 
 Mm Mooslim affords equal support to both the modes 
 defined, viz., the common and prevalent one, which com- 
 prehends, first, the distribution of the appointed shares, 
 and then division of the surplus or return by fourths or 
 by fifths, and also this simple and summary method of 
 arranging the whole property at once into four parts or 
 into five. 
 
 It is to be observed that there is no return of any part There is no 
 of the surplus to a husband : nor to a widow, whilst any [^^"nd & 
 consanguineous relation exists ; nor to the mother, except or widow, 
 on failure of brothers and sisters, who exclude her, as has consan- ,ny 
 already been mentioned, although they do not themselves guineous 
 inherit, nor to any relation by the mother's side only e xists-nor 
 whilst a relation by both parents or by the father exists, to a 
 as shall be hereafter at more length explained ; and upon t ] )ere b ' 
 
 these maxims all our doctors are agreed, although opposed brothers 
 
 or sisters; 
 
400 
 
 INHERITANCE. 
 
 nor any 
 residuary- 
 title in the 
 (/.shut, or 
 paternal 
 male kin- 
 dred, 
 whilst a 
 consan- 
 guineous 
 sharer 
 exists. 
 
 by those of the vulgar sect, who here introduce their 
 doctrine of dsbdt, following their pretended Imams, who 
 lead them to hell fire by supporting a false residuary title, 
 which would confer the surplus or reversion of an estate 
 after payment of the appointed shares upon the male 
 relations of the deceased's father ; and under this title, 
 if we suppose the mother and a daughter of any person 
 deceased to exist, the surplus of two-sixths of the estate 
 would devolve on his brother by the father's side or on his 
 paternal uncle's. 
 
 The fallacy, however, of this principle has ever been 
 considered a fundamental and necessary part of our legal 
 creed, as established by the authentic traditions of our 
 pure and holy Imams, upon whom be the blessing of God. 
 In one of these reported by Hoosim Zuddd are the follow- 
 ing words : "I was directed to ask the Imam Jdfer 
 Sddik, on whom be peace, to whom doth the property of a 
 person deceased of right appertain ? to his own nearest 
 relation or to his dsbdt ? He replied : ' Verily it be- 
 longs to the nearest relation, and as to the dsbdt or 
 more distant male kindred, Dust in their jaws.' " But 
 in reality the sacred text of the Koran regarding rela- 
 tions by blood sufficiently demonstrates the fallacy of the 
 residuary title as expressed in the commentary of Ay ashy, 
 from Zuraru, who quotes the words of the Imam Molutmmud 
 Bdkir, on whom be peace : " Of relations by blood, some 
 are preferred to others in the Book of God ; that is, some 
 are preferred to others in inheritance, because the nearest 
 in blood to the deceased is necessarily preferred, and 
 excludes all more remote. Now (adds the holy Imam'), 
 who is nearest to the deceased, and who ought to have 
 a preference — his mother or his brothers ? Is not the 
 mother nearer than any brother or sister ? " Again, in 
 the authentic collection of Mohummud JEbn Mooslim, we 
 have the following details: "The Imam Mohurrvm/ud 
 Bdkir, on whom be peace, showed me a chapter on inherit- 
 ance in the handwriting ofAly, and dictated by the Prophet 
 of God, on whom and his posterity be blessing and peace. 
 In it I observed the case of a man who died leaving a 
 
DOCTRINE OF SHARES. 401 
 
 daughter and his mother thus decided : — To the daughter 
 a half, or three fractions, out of six, and to the mother, as 
 her share, a sixth, or one fraction ; but, for simplicity, the 
 property to be at once divided into four equal parts, of 
 which three to the daughter, and one-fourth to the mother. 
 Again, I observed therein the case of a man who had left 
 his father and a daughter thus decided : — The daughter's 
 share is a half, or three portions out of six, and the father's 
 a sixth, or one portion : but the property here also, in order 
 to simplify the return, to be divided into four parts, of 
 which three to the daughter, and one-fourth to the father. 
 Further, I found the case of a person leaving both parents 
 and a daughter thus decided : — To the daughter, as her 
 share, a half, or three-sixths, and to each of the parents 
 a sixth, or one portion ; but to include, to reversion, the 
 whole property at once divided into fifths, of which three 
 to the daughter, and two to both the parents," Further, 
 in a report of Sulma Ebn Mohuruz, from the Imam Jdfer 
 Sddik, on whom be peace, we have the following decisions : 
 " In the case of a daughter and the father, he decreed, 
 first, to the daughter a half, and to the father a sixth part, 
 and then of the surplus, or remaining two-sixths, three- 
 fourths to the daughter, and one-fourth to the father, by 
 return. In reality, the decision was the same as if the 
 whole property had been first divided into four equal 
 parts, whereof three went to the former, and one-fourth to 
 the latter, for these have surely a better title to the surplus 
 than a paternal uncle, or a brother, or any more remote 
 male relations, because Almighty God hath appointed 
 shares for them in his sacred word, and to them, therefore, 
 the surplus must revert, in proportion to these shares." 
 Again, in a tradition reported by Zuraru from both these 
 Imdms,on whom be peace, the following words are contained : 
 " If a person deceased leave his mother or father, his wife 
 and a daughter, the distribution of his inheritance is into 
 twenty-four equal parts : to the widow an eighth of the 
 whole, or three of these portions ; to the parent, whether 
 father or mother, a sixth of the whole, or four of these 
 parts ; and to his daughter a half, or twelve parts. Now, 
 
 PART II. D D 
 
402 
 
 INHERITANCE. 
 
 Maternal 
 relations 
 are ex- 
 cluded 
 from the 
 return by 
 those of 
 the full 
 blood or 
 by the 
 father. 
 
 the surplus, or five remaining fractions, are returned to 
 the daughter and parent in proportion to their original 
 shares; but no part of them whatsoever reverts to the 
 wife. If, again, he should leave both parents, his wife, 
 and a daughter, here also the division is into twenty-four, 
 whereof eight go to the parents, four to each ; three to the 
 widow, or one-eighth of the whole; and twelve, or a half, 
 to the daughter ; but the surplus, or one twenty-fourth 
 part, which remains, is in this case to be divided amongst 
 the daughter and both parents, in proportion to their 
 original shares, and no part whatever thereof reverts to the 
 widow. Further, if a woman deceased should leave her 
 father, her husband, and one daughter, the distribution of 
 her estate is, in this case, into twelve, of which two parts, 
 or a sixth, goes to the father ; three, or a fourth, to her 
 husband ; and six, or a half, to the daughter ; the surplus, 
 or remaining sixth, reverting to the father and daughter, 
 in proportion to their original shares ; but no part thereof 
 whatsoever going to her husband." To this effect there 
 are many other authentic reports generally known. 
 
 All that has here preceded respecting the return to 
 consanguineous heirs in general must, however, be par- 
 ticularly understood as applying only to those cases where 
 relations by both parents or by the father are not combined 
 with relations by the mother only. In other words, as 
 applying only to a case where all the heirs are either of 
 the first series of relations by consanguinity, or of the 
 second with this proviso, that they be all either related 
 by both parents or by the father, or all related by the 
 mother's side only. If, therefore, on the contrary, in the 
 second class of consanguineous heirs there should be some 
 related by both parents and some by the mother's side 
 only, the prevalent opinion in this case is, that the surplus 
 or return must be conferred on the former, to the entire 
 .exclusion of the latter. And this doctrine may, indeed, 
 be considered as established by unanimous assent. Thus, 
 if a person leave a brother or sister by the same father and 
 mother, with a brother or sister by the same mother only, 
 the latter receives but a sixth part of the estate, and all 
 
DOCTRINE OF SHARES. 403 
 
 the remainder goes to the relation by both parents, whether 
 a specific sharer or not, by reason of his uniting two causes 
 of relationship to the deceased, viz. the paternal and ma- 
 ternal side, in consequence of which he enjoys a natural 
 preference in succession over the relation by the one side 
 only ; and, further, because the loss or deficiency, should 
 there be any, as where a husband or widow of the deceased 
 interferes, must invariably fall on the relation by both 
 sides, as already explained, whence obvious justice would 
 necessarily dictate his superior title to the surplus or 
 return, when these do not interfere, to make up for his 
 loss in the other event ; and this doctrine is particularly 
 supported by a tradition of the Imam Mohummud Bdlcir, 
 on whom be peace, recorded by Mohummud Elm Mooslim 
 in these words : "I inquired concerning the son of a 
 sister by the father's side with the son of a sister by the 
 same mother only. He replied, 'To the latter a sixth 
 part of the estate, and all that remains to the former.' " 
 Now, it is evident that, if the relation by the father's side 
 were not expressly preferred, the surplus or residue in this 
 example, after distribution of a half and a sixth, would 
 necessarily have been divided betwixt the sons of both 
 sisters by fourths, in proportion to their specific shares ; 
 whereas this decision clearly demonstrates the exclusive 
 preference to one. And if this preference is expressly con- 
 ferred on a relation by the father's side, it must belong 
 to one by both parents a fortiori. 17 
 
 17 The manuscript from which the preceding has heen taken 
 concludes with several sections which are contained in Chapter V. of 
 Book VII. and being all from the same authority need not to be 
 repeated. There is also a section on Hermaphrodites which has 
 been omitted as of no practical utility. 
 
INDEX. 
 
 ACKNOWLEDGMENT. 
 
 effect of, in constituting marriage, 5. 
 
 of zina, doubt whether it requires four witnesses, 158. 
 
 of a possessor, valid against himself, 199. , 
 
 of gift and delivery of possession by donor, 204. 
 
 of wukf, 211. 
 
 of a child, three conditions necessary to, 289. 
 
 effect of, not defeated by child's denial on arriving at 
 
 puberty, 290. 
 
 by an heir of another person as being nearer to the deceased, ib. 
 
 of a deceased youth of unknown nustib as a son, entitles acknow- 
 ledger to his heritage, 291. 
 
 by a master of the son of his female slave, ib. 
 
 mutual, establishes right of succession without further proof, 375. 
 
 except when the parties are 
 
 of known parentage, 376. 
 
 by a parent, sufficient to establish child's right of succession, 377. 
 
 ADULTERY. 
 
 by a married woman, or one in idd-ut, for a revocable divorce, 
 renders her for ever unlawful to adulterer, 27. 
 
 AFFINITY. 
 
 establishment and effects of, see Marriage Prohibited, 
 as a cause of inheritance, see Husband and Wife. 
 
 AGENT. 
 
 for marriage cannot contract to himself, 9. 
 
 should be appointed by a woman, 11. 
 
 may be appointed to repudiate a wife, 109. 
 for hhoold must not exceed the proper dower, 135. 
 for sale may assert his own right of sJwofd, 180. 
 lawfully sell to himself, ib. note. 
 
 ALMS. 
 
 See Sudukak. 
 
 APOSTASY FROM ISLAM. 
 
 marriage cancelled by, of either party, 29. 
 
 connubial intercourse between an apostate and his Mooslim wife 
 
 prohibited during the iddut, 33. 
 apostate cannot inherit to a Mooslim, 26L 
 
 male, who was by birth a 3Iooslim, estate of, immedi- 
 ately divisible among his heirs, 2GG, 3G8. 
 
406 INDEX. 
 
 APOSTASY FROM ISLAM— continued. 
 
 apostate male who was not by birth a Moosllm allowed time to 
 
 repent, ib. 
 apostate female, estate of, not divisible till death, ib. 
 
 APPROPRIATION. 
 
 definition of, 211. 
 
 how constituted, ib. 
 
 not obligatory, till possession is given, 212. 
 
 in death-illness, valid only to the extent of a third of deceased's 
 
 estate, ib. 
 conditions of 
 
 that relate to the thing appropriated, 213. 
 
 to the appropriator, 214. 
 
 to the persons for whom it is made, ib. 
 
 to the appropriation itself, 218. 
 
 that vitiate it, 219. 
 
 superintendence of, may be retained by the appropriator himself, 
 
 214. 
 superintendence of, belongs to the party for whom the appropria- 
 ,, tion is made, if no other superintendent has been appointed, ib. 
 
 for objects of public utility, valid, 215. 
 by a Mooslim for unlawful objects, not valid, ib. 
 for the poor, how to be applied, ib. 
 for neighbours, how to be applied, 216. 
 not valid where the object is not properly denned, 217. 
 for children, brethren, and kindred, comprehends all equaUy, ib. 
 for one's self, not valid, 218. 
 
 when for particular persons, possession of first sufficient, 219. 
 transfer of property, effected by, 220. 
 "in the way of God," how to be applied, ib. 
 of a 7>ivsjid, or a mansion, does not cease though it should fall to 
 
 decay, 221. 
 lease of, cancelled by death of lessor, 222. 
 
 ASSETS. 
 
 how to ascertain an heir's portion of, 320. 
 
 AUL. 
 
 described as an increase of the divisor of shares, 397. 
 practice of, unlawful, ib. 
 
 BEQUEST. 
 
 acceptance by legatee necessary, 229. 
 
 of, may be partial, 230. 
 
 heirs of legatee may accept in the event of his death, ib. 
 
 for sinful purposes, not valid, ib. 
 
 may be revoked at any time by testator, 231. 
 
 must be of something that can be lawfully possessed, 233. 
 
 must not exceed a third of testator's estate, ib. 
 
 among several bequests in excess of third, preference, how deter- 
 mined, 212. 
 
 testator's directions respecting, must be strictly followed, 233. 
 
 for the performance of duties, some incumbent and others dis- 
 cretionary, 234. 
 
 of different portions, or of the same portion to different legatees, 
 235. 
 
 distinction between specific, to two persons, and a bequest to 
 each of the two, ib. 
 
 of a third share undividedly entitles legatee to a third of every- 
 thing 236. 
 
INDEX. 407 
 
 BEQUEST— continued. 
 
 of a specific thing entitles him to the whole of it, if not in excess 
 
 of a third of deceased's estate, ib. 
 altogether uncertain, to be interpreted by the heirs, 238. 
 when repugnant to another, last to be preferred, 240. 
 of a foetus or of future produce, valid, ib. 
 to a foetus, case of varied according to sex, ib. 
 usufructuary, valid, 241. 
 requires two witnesses, 242. 
 
 relating only to property may be established by one witness, ib. 
 to heirs, valid, 244. 
 to hostile infidels, invalid, ib. 
 to slaves of others, invalid, ib. 
 
 testator valid, ib. 
 
 to a mooltatub who has paid part of his ransom, 245. 
 
 to an oom-i-wulud, how to be applied, ib. 
 
 to several persons, to be equally divided, 246. 
 
 to kindred, ib. 
 
 to a foetus valid, if born alive, ib. 
 
 to beggars, to be applied to those of testator's religion, 247. 
 
 to nearest of kin, ib. 
 
 does not lapse by death of legatee before testator, ib. 
 
 of the like of a son's portion, 253. 
 
 a daughter's portion when testator has no other 
 
 heirs, ib. 
 of a child's portion, 254. 
 of the double of a child's portion, 255. 
 to the poor, of propertj 7 at different places, ib. 
 of a slave, means one that is unblemished, ib. 
 of a mansion which falls down before testator's death, 256. 
 joint, to an individual, and to the poor, ib. 
 
 BLEMISHES. 
 
 in man, 59. 
 
 in woman, 60. 
 
 marriage cannot be cancelled for any other, 60, 61. 
 
 must have existed at the time of the contract, to be a ground for 
 
 cancellation, 61. 
 option to cancel must be exercised immediately on discovery of 
 
 blemish, ib. 
 cancellation on account of, not a divorce, ib. 
 does not require intervention of judge 
 
 except only in case of impotence, ib. 
 in disputes regarding, how preference is to be determined, 62. 
 
 BROTHER. 
 
 included in the second class of heirs, 280, 326. 
 when alone, takes the whole estate of deceased, ib. 
 with other brothers shares equally, ib. 
 with sisters, takes a double portion, ib. 
 full, excludes half by father's side, 271. 
 
 on failure of, half by father's side comes into his place, 280. 
 
 half on the mother's side, his share, ib. 
 
 with a sister on same side shares 
 
 equally, 281. 
 
 CHILD. 
 
 paternity of, cut off by lidn, 14. 
 
 under a semblance of right, 24, 93. 
 
408 INDEX. 
 
 CHILD — continued. 
 
 paternity of, established, though mother married during iddut, 26. 
 maybe denied at any time before acknowledgment, 
 
 154. 
 paternity of, if born in wedlock, cannot be rejected except by 
 
 linn, 92, ib. 
 paternity of, born of a female slave, maybe rejected without linn, 92. 
 ■ ■ — — — T not affiliated to her master 
 
 without his acknowledgment, 156. 
 Stntus of, as to freedom or slavery, 46. 
 once acknowledged cannot be subsequently denied, 154. 
 one of whose parents is a Mooslim, or a convert to the faith, in 
 
 its infancy is a Mooslim, 265. 
 included in the first class of heirs, 324. 
 illegitimate has no parentage, except from mother in the case of 
 
 lion, 91, 157, 305. 
 male, share double that of a female, 276. 
 
 CHILDREN. 
 
 by wives, 90. 
 
 by slaves, 92. 
 
 begotten under a semblance of right, 93. 
 
 suckling of, 94, 
 
 custody of, 95. 
 
 CONSANGUINITY. 
 
 See Numb, and marriage prohibited. 
 
 CONVERSION TO ISLAM. 
 
 effect of, on marriage of kitabees, 30. 
 
 unbelievers other than kitabees, ib. 
 
 after ancestor's death, removes impediment to inheritance, 264. 
 by a parent, effect of on religion of a child, 265. 
 
 DAUGHTER. 
 
 included in the first class of heirs, 324. 
 share of one, 273, 276, 380. 
 
 two or more, 273, 276, 378. 
 
 is half that of a son, 276. 
 
 is a residuary with a son, 384. 
 
 DEATH-ILLNESS. 
 
 gift in, valid only as to a third of donor's estate, 209. 
 
 ivnlf in, valid only as to a third of grantor's estate, 212. 
 
 acts in, that are not to take effect immediately, to be treated as 
 
 legacies, 256. 
 to take effect immediately, difference of opinion 
 
 regarding, ib. 
 diseases not usually considered dangerous, 257. 
 
 dubious, ib. 
 
 general rule regarding, ib. 
 
 gratuitous acts in, take effect according to priority, ib. 
 
 Muhabat in, ib. 
 
 marriage by a man in, if not consummated, void, and does not 
 
 found a title to inheritance in widow, 295, 340. 
 divorce in, does not exclude widow from inheritance, ib., 341. 
 
 DEBT. 
 
 gift of, not valid except to debtor, 203. 
 to debtor is a release, ib. 
 
INDEX. 409 
 
 DECEPTION. 
 
 See Tudlees. 
 
 DISCORD. 
 
 when it appears between spouses, arbitrator to be appointed, 88. 
 in cases of, arbitrator may decide in absence of parties, 89. 
 arbitrator's decision must be according to law, ib. 
 
 DISCRETION. 
 
 required to remove inhibition of minority, 4, note. 
 
 female having, may contract herself or another in marriage, 9. 
 
 DIVORCE. 
 
 See Repudiation. 
 
 on death-bed, when given with an intention to injure, 343. 
 without intention ta injure, ib. 
 
 DOWER. 
 
 anything lawful may be the subject of, 67. 
 
 things unlawful to MoosUmsmay be subject of, among zimmees, ib. 
 
 amount of, dependent on will of parties, 68. 
 
 of the Soo7mut or Traditions, is 500 dirhems, ib. 
 
 should be moderate, and any excess over amount of Soonmit is 
 
 abominable, 70. 
 proper, how regulated, 71. 
 private and public assignment of, 70. 
 husband responsible for, unblemished, ib. 
 
 — till paid, 73. 
 
 wife may refuse herself to husband till it is paid, but not when 
 
 the dower is deferred, 78. 
 when none mentioned in the contract, and woman is divorced 
 
 before coition, a present is due, 71. 
 , is divorced after coition, 
 
 proper dower is due, ib. 
 how present, and proper dower are regulated, ib. 
 may be settled after marriage, ib. 
 how to be fixed when left to be so settled, 73. 
 right to, established by consummation, 74. 
 wife entitled to half, if divorced before consummation, ib. 
 exoneration of, by wife, 75. 
 valid and invalid cases of, 80. 
 
 not affected by unlawful stipulations in contract of marriage, 76. 
 gift of, by wife to her husband, 77. 
 becomes property of the wife by the contract, ib. 
 in disputes regarding, when husband's and when wife's word is 
 
 to be preferred, 81. 
 
 EELA. 
 
 form, 147. 
 
 conditions, 148. 
 
 laws, ib. 
 
 conjugal intercourse within the time of, induces expiation, 149. 
 
 of wife revocably repudiated, valid, 150. 
 
 expiation in case of, ib. 
 
 EMANCIPATION. 
 
 effect of, on marriage of female slave, 48. 
 
 male slave, 49. 
 
 of female slave may be the subject of dower, ib. 
 Wula of, 296, 345. 
 
410 INDEX. 
 
 EMANCIPATOR. 
 
 is heir to his freedman, in default of other heirs, 296, 346. 
 failing him, his heirs inherit to freedman, 297, 354. 
 conditions of his right to inherit, 347 et seq. 
 and his heirs inherit to children of freedman, 355. 
 
 EQUALITY. 
 
 in respect of J slam, a condition of marriage, 34. 
 
 Eeman, apparently not required, ib. 
 
 free woman may marry a slave, or an Arabian woman a Persian, ib. 
 among wives should be observed by a husband in respect of main- 
 tenance and general behaviour, 85. 
 
 ESCHEAT. 
 
 doctrine of, 301, 362. 
 
 in the absence of the Imam, belongs to the poor of the sect, 301, 
 363. 
 
 EUNUCHISM. 
 
 a cause for the cancellation of marriage, 59. 
 
 EXCLUSION FROM INHERITANCE. 
 entire, 270, 363. 
 partial, 271, 364. 
 
 full kinsmen exclude those by father's side only, 332, 364. 
 prouf of this rule, 334. 
 
 ■ those by mother's side only from right to 
 
 residue, 335. 
 
 proof of this rule, ib., 336. 
 half-kinsmen by father's side exclude those by mother's only from 
 right to residue, 336. 
 proof of this rule, ib. 
 
 EXECUTOR 
 
 must be sane, and a Mooslim, 248. 
 
 a slave cannot be appointed, nor a minor singly, ib. 
 
 intidel may be, to another, 249. 
 
 a woman may be appointed, ib. 
 
 joint, cannot act singly, ib. 
 
 exception, ib. 
 
 may refuse to accept the office, 250. 
 
 assistant may be appointed by judge to one who is incompetent, ib. 
 
 may be removed by judge for fraud, ib. 
 
 not responsible except for neglect, ib. 
 
 may pay himself if a creditor, ib. 
 
 cannot devolve his trust on another at death, ib. 
 
 limited like an agent, and strictly confined to the bounds of his 
 
 commission, 251. 
 has no authority in marriage, 8. 
 qualifications of, have reference to the time of his appointment, 
 
 251. 
 
 EXPIATION. 
 
 several kinds of, 142. 
 applicable to ziliar. 
 
 1. Emancipation of a slave, ib. 
 
 conditions, 143. 
 
 2. Fasting for two consecutive months, 144. 
 
 3. Feeding the poor, 145. 
 
 before intention to return to wife not sufficient, 146. 
 
INDEX. 411 
 
 EXPIATION— continued. 
 
 applicable to cela. 
 
 optional to emancipate a slave or feed the poor, 150. 
 
 EXTRACTOR. 
 
 is the smallest number by which a share can be extracted without 
 
 a fraction, 312. 
 when it remains unchanged, 313. 
 when and how it must be multiplied. Ib. et seq. 
 
 FATHER. 
 
 included in the first class of heirs, 276, 324. 
 
 when alone, takes the whole estate, ib. 
 
 with the mother, has the residue, ib. 
 
 with children, has a sixth, 276, 381. 
 
 with one daughter, has a sixth, and participates in the return , 
 
 277. 
 upon failure of issue is a residuary, 383. 
 
 FOSTERAGE. 
 
 See Marriage. Prohibited. 
 
 GIFT. 
 
 definition of, 203. 
 
 how constituted, ib. 
 
 of debt, not valid except to debtor, ib. 
 
 to debtor is a release, ib. 
 
 not complete without possession by donee, 204. 
 
 donor's permission necessary condition to possession of, ib. 
 
 by parent to a child of a thing in parent's possession, complete by 
 
 the mere contract, ib. 
 of mooshdd, valid, ib. 
 
 to a blood relation cannot be revoked, 205. 
 to a stranger may be revoked, ib. 
 to a wife or husband may be revoked, ib. 
 
 cannot be revoked if anything has been received in exchange, ib. 
 to children and relatives proper and becoming, ib. 
 retractation of, ib., note. 
 
 transfer of property by, dates from taking possession, 207. 
 sale by donor of thing given, not valid, ib. 
 on retractation of, donor not entitled to compensation for defects, 
 
 208. 
 retractation of, barred by taking anything in exchange, ib. 
 in death-illness, valid only to a third of donor's estate, 209. 
 
 GRAND-PARENTS. 
 
 included in the second class of heirs, 280. 
 
 those on father's side take double of those on mother's, 281. 
 
 among themselves, grandfather takes 
 
 double of grandmother's portion, 282. 
 those on the mother's side take half of those on father's, 281. 
 among themselves take equally, 282. 
 
 GREAT GRAND-PARENTS. 
 
 inherit with brethren when there are no grand-parents, 282. 
 
 GRAND UNCLES AND AUNTS. 
 
 second series of third class of heirs, 331. 
 
 succeed on failure of uncles and aunts and their descendants, ib. 
 
 failing them, their children's children succeed, ib. 
 
412 INDEX. 
 
 GREAT GRAND UNCLES AND AUNTS, 
 third series of third class of heirs, 332. 
 failing them, their children's children, ib. 
 
 GREAT GREAT GRAND UNCLES AND AUNTS, 
 fourth series of third class of heirs, 332. 
 failing them, their children's children, ib, 
 
 GUARDIAN. 
 
 infidel, has no authority in marriage, 10. 
 
 none but a father or grandfather can appoint to a child, 232. 
 
 mother cannot be or appoint, ib. 
 
 cannot be appointed by a father to his son while his grandfather 
 
 is alive, 251 . 
 testamentary, 251. 
 
 HEDAD. 
 
 meaning of, 165. 
 
 incumbent on a widow, ib. 
 
 not incumbent on a repudiated woman, ib. 
 
 HEIRS. 
 
 by consanguinity, 261. 
 
 three classes of, 276, 323. 
 
 each class of, preferred to that which follows it, 323. 
 
 first class, deceased's parents and his offspring, 324. 
 
 proof of their right, 325. 
 second cfess, grand-parents and brethren, 326. 
 
 proof of their right, 327. 
 third class, uncles and aunts and their children, 328, 329. 
 
 proof of their right, 330. 
 
 second series of, grand-uncles, grand-aunts, and their 
 children, 331. 
 
 thh-d series of, great-grand-uncles and aunts, &c, 332. 
 by affinity. See Husband, Wife, 
 by wula. See that head. 
 
 HOOBS. 
 
 See Soohia. 
 
 HUSBAND. 
 
 responsible for wife's dower, 70. 
 bound to maintain his wife, 83. 
 when he has several wives, to divide his time equally 
 
 between them, ib. 
 when he has only one wife three nights are his own, two when 
 
 he has two, and one when he has three, ib. 
 allowed seven nights for consummation with a virgin, and three 
 
 with a siyyibah, 84. 
 cannot visit any of his wives during the night of another, 86. 
 inherits from a wife repudiated revocably if she die during the 
 
 iddut, 294. 
 marriage by, in death-illness, void, if not consummated, 295. 
 share of, in deceased wife's estate, 273, 338. 
 takes the residue of wife's estate, if she has no other heir than 
 
 the Imam, 262, 339. 
 
INDEX. 413 
 
 ID DVT. 
 
 marriage during, unlawful, 26, 171. 
 
 no woman, except a widow, whose marriage has not been consum- 
 mated, obliged to keep, 160. 
 
 of women subject to the courses, 161. 
 
 not subject to the courses, 162. 
 
 women past child-bearing not obliged to keep, ib. 
 
 the longest possible, ib. 
 
 marriage after expiration of, void if woman should prove to have 
 been pregnant at time of contract, 163. 
 
 of pregnant women, ib. 
 
 of widows, 164. 
 
 of women enjoyed under asemblable contract, 165, 172. 
 
 when to be observed by wife of missing person, 166. 
 
 of a slave, 167, 168. 
 
 woman repudiated revocably entitled to maintenance during, 169. 
 
 widow not entitled to maintenance during, 171. 
 
 from what time it is to run, 172. 
 
 two iddicts necessary in certain cases, 173. 
 
 IMPOTENCE. 
 
 a blemish for which marriage may be cancelled, 59. 
 mode of establishing, 62. 
 
 INFIDEL. 
 
 cannot be executor to a Mooslim, 249. 
 
 may be executor to another infidel, ib. 
 
 cannot inherit to a Mooslim,, 264, 366. 
 
 may inherit to another who has no Mooslim heir, ib. 
 
 though of a different persuasion, 368. 
 
 INFIDELITY. 
 
 described, 366. 
 
 an impediment to marriage. See that head. 
 
 inheritance, 263, 366. 
 
 INHERITANCE. 
 
 causes of, 261, 323. 
 
 two, combining in one person, he inherits by both, 287. 
 
 impediments to, 263, 366. 
 
 exclusion from, 270, 363. 
 
 by Misub or consanguinity, 276, 323. 
 
 by affinity, or of spouses to each other, 294, 338. 
 
 by Wula or patronage, 296, 345. 
 
 of a foetus in the womb, 306. 
 
 of missing persons, 307. 
 
 of persons drowned together, 308. 
 
 of fire- worshippers, 310. 
 
 right of, not transferable, 354. 
 
 three general rules of, 332. 
 
 full relations exclude half by father's side, ib. 
 
 mother's side from the residue, 335. 
 
 A person having two relations to deceased receives a twofold 
 portion, 336. 
 
 INSANE PERSON. 
 
 no regard paid to words of, 4. 
 
 may be contracted in marriage by father, grandfather, or judge 
 
 7, 8. 
 wife of, may be repudiated by guardian, 108. 
 
414 INDEX. 
 
 INSANITY. 
 
 a cause for cancellation of marriage, 59. 
 
 JUDGE. 
 
 authority of, in marriage, 8. 
 
 cancellation of marriage for a blemish does not require his inter- 
 vention, except in the case of impotence, 61. 
 
 application to, by wife of missing person, 165. 
 
 may remove an executor who has become profligate, 218. 
 
 is guilty of fraud, 250. 
 
 is superintendent of estate of a deceased person who has not 
 appointed an executor, 251. 
 
 KIIOOLA. 
 
 form of, 129. 
 
 doubt whether it be a cancellation of marriage or a repudiation, ib. 
 ransom for, may be anything that is lawful as dower, 130. 
 valid, though entered into by a woman in her last illness, and 
 
 for more than a third of her estate, 131. 
 not valid, when left to husband's option, 132. 
 ransom for may be paid by a female slave, ib. 
 conditions of, on part of the husband, 133. 
 
 . wife, ib. 
 
 two witnesses necessary for, 134 
 
 nullified by conditions inconsistent with the contract, ib. 
 
 not lawful, if wife acts under compulsion, ib. 
 
 when parties are on good terms with each other, 135. 
 
 cannot be revoked by husband till ransom is reclaimed by 
 
 wife, ib. 
 woman who has received, cannot be repudiated, ib. 
 agent for, must not exceed the proper dower, if/. 
 in disputes regarding, how burden of proof is regulated, 136. 
 
 LEGATEE. 
 
 must be in existence at the time of bequest, 214. 
 
 L1AN. 
 
 its pillars, 152. 
 
 first pillar — causes, ib. 
 
 charge of adultery, ib. 
 
 — denial of wife's child, 153. 
 
 second pillar — imprecating husband, 155. 
 
 must be sane and adult, ib. 
 
 . ■ may be a minor or slave, ib. 
 
 third pillar — imprecating wife, ib. 
 
 — must be sane, adult, and neither 
 
 deaf nor dumb, ib. 
 
 — married by permanent contract, ib. 
 
 fourth pillar— form, 156. 
 
 effects of, 157. 
 
 not available after wife's death. 158. 
 
 separation by, is a cancellation of marriage, not a repudiation, 157. 
 
 MAINTENANCE. 
 
 three grounds of, 97. 
 
 of wives, ib. 
 
 not affected by being on a journey, 98. 
 
INDEX. 415 
 
 AINTENAN01— continued. 
 
 of wives, quantity of, 99. 
 
 appendages to, 100. 
 
 arrears of, recoverable, ib. 
 
 debt due by wife, may be set off against, 102. 
 
 of relatives, ib. 
 conditions of right to, 103. 
 
 liability to, ib. 
 
 — arrears of not recoverable, ib. 
 
 of slaves, 105. 
 
 of beasts, ib. 
 
 wife of missing person left without, may apply to judge, 165. 
 
 woman repudiated revocably entitled to, during iddut, 98, 169. 
 
 irrevocably not entitled to, 98, 170. 
 
 widow has no title to, during iddut, 171. 
 
 even though pregnant, 99. 
 
 MARRIAGE. 
 
 Three kinds of, 1. 
 Permanent, ib. 
 
 established by declaration and acceptance, ib. 
 words appropriate to declaration, ib. 
 
 to acceptance, 2. 
 
 no deviation from the proper words allowed, 3. 
 words by which it cannot be established, ib. 
 
 declaration and acceptance must both be expressed in the past 
 tense, 2 ; or one in the past when the other is in the impe- 
 rative or future, ib. 
 effect of acknowledgment in constituting, 5. 
 laws of the contract, 4. 
 
 no regard paid to the words of an infant or insane person, 
 
 ib. 
 parties must be distinctly indicated, 5. 
 option cannot be reserved except as to dower, ib. 
 marriage cancelled by either party becoming slave of the 
 other, 6, 38. 
 who can contract. 
 
 a discreet female may contract herself, 9. 
 — cannot be contracted without her con- 
 sent, 7. 
 
 — consent of, how established, 9. 
 
 her word as to, preferred, 12. 
 
 father and grandfather may contract a minor, and an 
 adult, if insane, 7. 
 
 master may contract his slave, 8. 
 
 judge may contract an insane person, ib. 
 
 executor has similar powers, ib. 
 
 person inhibited for prodigality cannot contract without 
 permission of judge, ib. 
 
 contract entered into without authority remains in sus- 
 pense till confirmed, 9. 
 
 infidel guardian lias no authority, 10. 
 
 a mother has no power to contract her child in marriage, 
 12. 
 Prohibited. 
 
 Causes of Prohibition, 13. 
 1. consanguinity, ib. 
 
 women prohibited to a man by reason of, ib. 
 
 men prohibited to women by reason of, /'/;. 
 
 established by marriage, or semblance of it, 11. 
 
416 INDEX. 
 
 MARRIAGE — continued. 
 
 not established by zina or illicit intercourse, ib. 
 acknowledgment of, see Numb. 
 
 2. fosterage. 
 
 conditions of constitution, 15. 
 
 the milk must proceed from marriage, ib. 
 
 be caused by one man, 17. 
 
 child must be suckled on same milk, for fifteen times 
 
 consecutively, 15. 
 acts of suckling must be consecutive and all within two 
 
 years, 15. 
 effects of. 
 
 the suckling becomes the child of foster parents, 18. 
 
 is prohibited to every child of theirs, ib. 
 
 its natural father is prohibited to children 
 
 of foster parents, ib. 
 cancels existing marriage, ib. 
 
 cases in illustration of this effect, 18, 19, 20. 
 declaration of by a man, 21. 
 by a woman, ib. 
 
 3. affinity. 
 
 established by marriage, ib. 
 
 effects of, when followed by coition, ib. 
 
 . not followed by coition, 22. 
 
 women who cannot be lawfully conjoined as the wives of 
 one man, 23. 
 
 how far established by zina, ib. 
 
 sexual intercourse under a sem- 
 blance of right, 24. 
 
 sight or touch with desire, ib. 
 
 cases of unlawful conjunction, ib. 
 
 man already married to a free woman cannot marry a 
 slave without her consent, 25. 
 
 woman in her iddut cannot be lawfully married, 26. 
 
 wife of one man cannot marry another, 27. 
 
 4. completion of number, 27. 
 
 no man allowed more than four wives by permanent con- 
 tract, ib. 
 no limit to number by temporary, or bondage, 28. 
 women repudiated three times cannot be re-married till 
 
 married to another husband, ib. 
 women repudiated nine times can never be re-married, ib. 
 6. Lian, for which see that head. 
 6. Infidelity. 
 
 Mooslim cannot marry any but a kitabeeah, 29 ; nor any 
 
 but a Mooslimah by permanent marriage, ib. 
 Mooslimah cannot marry any but a Mooslim, 30, 40. 
 effect of conversion to Islam on marriage of Kitabees, 30. 
 
 ■ — of other unbelievers, ib. 
 
 change of religion is cancellation of marriage, not a 
 divorce, 33. 
 connections which are considered abominable, 35. 
 entered into by a thrice repudiated woman on condition of its 
 being void after she has been legalized to her first husband, 
 not valid, 36. 
 Shighar marriage void, 37. 
 Temporary. 
 established by declaration and acceptance, which must both be 
 in the past tense, 39. 
 
INDEX. 417 
 
 MARRIAGE— continued. 
 
 words appropriate to its constitution, ib. 
 
 wife must be a Mooslimah or Kitabceah, 40. 
 
 husband of a Mooslimah must be a Mooslim, ib. 
 
 some dower must be specified, 41. 
 
 some period must be fixed, otherwise the contract is permanent, 
 
 42. 
 no stipulation valid unless made at the time of contract, 43. 
 stipulation as to particular times, and as to izl, lawful, ib. 
 does not admit of repudiation, ib. 
 
 confer any right of inheritance, 44, 344. 
 
 iddut must be observed at expiration of term, ib. 
 
 Servile. 
 
 1. where the right is to the person of the female, 52. 
 
 no limit to the number of wives by, ib. 
 
 2. where the right is to the usufruct, 54. 
 
 how the usufruct may be conferred, ib. 
 doubt as to the nature of the right, 55. 
 a moodubburah and oom-i-tvulud may be the subject of it, 
 
 ib. 
 right strictly limited to terms of the grant, 56. 
 child of a woman duly legalized is free, ib. 
 
 Of Female Slaves, see Slave. 
 
 Cancellations of, see Blemishes, and Tudlees, or Deception, 
 unlawful, confers no right of inheritance, 373. 
 
 children begotten under, and their parents, do not 
 
 inherit to each other, except in case of error, ib. 
 
 MINOR. 
 
 no regard paid to words of, 4. 
 
 whether male or female, may be contracted in marriage by a 
 
 father or grandfather, 7. 
 case of two minors being married, and one of them dying before 
 
 puberty, 10. 
 guardian to. See Guardian. 
 See Puberty. 
 
 MISSING PERSON. 
 
 wife of, left without maintenance, may apply to judge, 165. 
 course to be observed by judge with regard to, ib. 
 wife of, after expiration of her iddut, may marry again, 166. 
 property of, may be divided among his heirs when it ma} r be 
 reasonably presumed that he is dead, 269. 
 
 MO OB AR AT. 
 
 how effected, 136. 
 
 requires mutual aversion, ib. 
 
 distinction between it and khoold, 137. 
 
 MOOSLIM. 
 
 cannot marry any but a kitabeeah, 29. 
 
 • Mooslimah by permanent emit met, ib. 
 
 appropriation by, in favour of an alien enemy, unlawful, 115. 
 
 described, ib. 
 
 may be heir to an infidel or apostate, and is preferred to infidel 
 
 heir, 264, 366. 
 no infidel or apostate can be heir to, ib. 
 child of, is a Mooslim, 267. 
 
 PART II. E E 
 
•418 INDEX. 
 
 MOOSLTMAIT. 
 
 cannot marry any but a Mooslim, note, 30, 40. 
 
 MOTHER. 
 
 has no power to contract her child in marriage, 12. 
 
 can neither be guardian, nor appoint one, to her child, 232. 
 
 included in the first class of heirs, 261. 
 
 her share, a third in child's estate, 273, 27G, 324, 380. 
 
 reduced to a sixth by brethren, 272, 3(55, 380. 
 
 NURSE. 
 
 qualities of a proper, 17. 
 
 NUSROOZ, or REBELLION. 
 
 denned, 87. 
 
 on first appearance of, wife may be admonished, ib. 
 
 how to be treated when exhibited by husband, 88. 
 
 NUSUB, OR CONSANGUINITY. 
 
 how established, 14. 
 
 illegitimate child has none, 14. 
 
 a cause of inheritance, 261. 
 
 acknowledgment of, 289 et seq. 
 
 testimony of two witnesses necessary to its establishment, 292. 
 
 OOM-I-WULTJD. 
 described, 55. 
 
 not enfranchised by mere death of her master, 57. 
 enfranchised out of her child's share in her master's estate, 49. 
 reverts to state of absolute slavery if her child dies before her 
 
 master, ib. 
 cannot be sold so long as her child lives, 57. 
 may be the subject of an usufructuary marriage, 55. 
 has no share in her master's inheritance, 269. 
 
 OPTION. 
 
 described, note, p. 5. 
 
 may be reserved as to dower, 5, 77. 
 
 cannot be stipulated for in marriage, ib. 
 
 of puberty, in what cases allowed, 10. 
 
 of emancipation, 48. 
 
 ■ not allowed to male slave, 49. 
 
 PARENTAGE. 
 
 establishment of, 90. 
 
 PARTITION. 
 
 of time among wives incumbent on a husband, 83. 
 
 does not extend to coition, 84. 
 
 confined to night, ib. 
 
 free woman entitled to twice the time of a slave, ib. 
 
 right to, abates on a journey, 85. 
 
 common to husband and wife, ib. 
 
 a wife may give up her time to husband, or to a co-wife, with his 
 
 consent, ib. 
 infants or mad women not entitled to, 86. 
 
 PARTNER. 
 
 in joint property entitled to pre-emption, 175. 
 in roads and rivulets has a right of pre-emption to lands through 
 which thev na.ss. 1 77 
 
 which they pass, 177. 
 
INDEX. 419 
 
 PRE-EMPTION. 
 See Shoo/a. 
 
 PUBERTY. 
 
 the option of, 10. 
 
 how established according to Sheeahs, note, 96. 
 
 to Hanifites, ib. 
 
 RELIGION. 
 
 change of, a cancellation of marriage, 33. 
 
 effect of, on wife's dower, ib. 
 
 difference of, no impediment to inheritance among infidels, 266. 
 sect of, difference in, no impediment to inheritance among 
 Mooslims, ib. 
 
 REPUDIATION. 
 
 pillars of, four in number, 107. 
 repudiator, first pillar, ib. 
 
 conditions required in, ib., 108. 
 
 may appoint an agent, 100. 
 
 wife to repudiate herself, ib. 
 
 repudiated, second pillar, ib. 
 
 must be a wife by permanent contract, ib. 
 
 - not be in her courses or a nifas, 110. 
 
 be a moostubrat, 111. 
 
 distinctly indicated, ?i». 
 
 . provided with maintenance and residence if 
 
 repudiated revocably, 163. 
 form of, third pillar, 113. 
 
 words specialty required, ib. 
 
 cannot be in writing, ib. 
 
 words that are not sufficient, 114. 
 
 must be entirely free from condition or description, 
 115. 
 presence of witnesses, fourth pillar, 117. 
 
 one witness not sufficient, ib. 
 
 testimony of women not sufficient, 118. 
 different kinds of, ib. 
 heretical kinds of, all void, ib. 
 regular kinds of, three in number, ib. 
 absolute or irrevocable, ib. 
 revocable, 119. 
 of the iddut, ib. 
 
 power of, may be committed to an agent, 109. 
 by a sick man, valid though abominable, 122. 
 
 effects of, on mutual rights of inheritance, ib. 
 
 revocation of, 126. 
 
 for a ransom is absolute or irrevocable, 130. 
 
 revocable if ransom is reclaimed, 137. 
 
 if asked for and not given immediately is revo- 
 cable, 130. 
 
 RESIDENCE. 
 
 See Soohna. 
 
 RESIDUARIES. 
 
 who are, 377. 
 
 some sharers are sometimes, 378. 
 
 father, upon failure of issue, is a residuary, 383. 
 
 daughters made, by a son, 384. 
 
 sisters made, by brothers, 385. 
 
420 INDEX. 
 
 RESIDUARIES— contra ued. 
 
 all relatives by the full blood, or on the father's side, are, when 
 
 combined with those on the mother's only, 388. 
 case of plurality of heirs, who are, 393. 
 sharers with, are preferred to their full shares, ib. 
 
 EETURN. 
 
 sharers when alone take surplus by virtue of right to, 202. 
 
 no right of, to wife, ib. 
 
 husband's right to, limited to case of there being no heir, but the 
 
 Imam, ib. 
 no right to, in asbat whilst a consanguineous heir exists, 400. 
 maternal relations excluded from, by those of the full blood, or 
 
 half on the father's side, 402. 
 
 SAEEBA. 
 
 a slave free sui juris, 348. 
 
 may constitute whom he pleases his heir, ib. 
 
 Imam his sole heir, if he has no one responsible for his ofience,ib. 
 
 SETTLEMENT. 
 
 how the word is used, 214, note. 
 
 on whom it may be made, ib. 
 
 on children, brethren, and kindred, comprehends all equally, 217. 
 
 when on several in succession, possession by the first is sufficient, 
 
 219. 
 when on children's children, those of sons and daughters share 
 
 equally, 221. 
 on children, applicable only to children of the loins, ib. 
 
 SHARES. 
 
 number of, and persons for whom they are appointed, 273, 378. 
 
 detail of, and how allotted, 378, et, scq. 
 
 that do and do not combine with each other, 273, 382. 
 
 computation of, 312. 
 
 extractors or divisors of, ib. 
 
 when they remain unchanged, 313. 
 
 and how they are to be multiplied, ib. et seq, 
 
 when the estate is insufficient to meet them, how the deficiency 
 
 is to be adjusted, 262, 316,395. 
 in excess of shares, surplus to be returned to 
 
 consanguineous heirs, 317, 398. 
 
 SHARERS. 
 
 number of, and who they are, 378. 
 
 when all the heirs are, and their shares exhaust the estate with- 
 out a fraction, 395. 
 
 and the estate falls short of their por- 
 tions, ib. 
 
 SHOOFA. 
 
 definition of, 175. 
 
 established as to land, but not as to moveables, ib. 
 
 trees and buildings subject to, when sold with the land, 176. 
 
 immoveable property incapable of division, not subject to, ib. 
 
 extends to a well and the adjoining ground, ib. 
 
 fruit not subject to, though sold with the trees on which it c;rows, 
 
 177. 
 land, though divided off, subject to, by virtue of partnership in 
 
 roads and rivulets, ib. 
 
INDEX. 421 
 
 SHU UFA .—con tin ued. 
 
 property disposed of by sale, alone affected by, ib. 
 
 in which there is more than two partners, not affected by 
 
 it, 179. 
 right to may be asserted on the conclusion of sale, 182. 
 
 . cannot be asserted partially, ib. 
 
 not extinguished by a necessary delay in asserting it, 183. 
 
 — by dissolution of sale, 184. 
 
 cannot be enforced on sown land until the crop is gathered, 188. 
 
 right of, hereditary, 190. 
 
 extinguished by shufee selling his own share in the 
 
 property, 191. 
 
 compounding it, 192. 
 
 by delajdng to claim it, without sufficient 
 
 cause, after credible information of sale, 195. 
 
 when the price cannot be ascertained, 196. 
 
 devices by which it may be evaded, ib. 
 
 disputes relative to, 198. 
 SHUFEE. 
 
 is every partner in joint property able to pay the price, 179. 
 
 may lose his right by delay to claim it, ib. 
 
 infidel cannot be, as against a believer, 180. 
 
 Mooslim, may be, as against a dfooslim, or unbeliever, ib. 
 
 father or grandfather selling minor's property may assert his own 
 right as, ib. 
 
 entitled to claim on conclusion of a sale, 182. 
 
 must pay the full price, ib. 
 
 not affected by any augmentation of the price, ib. 
 
 does not benefit by any abatement of the price, 183. 
 
 does not lose his right by a necessary delay in asserting it, ib. 
 
 — relinquishment on misinformation, 184, 
 
 188. 
 
 bound to use all proper diligence in preferring his claim, ib. 
 
 not affected by sales or other disposals of the property by pur- 
 chaser, 185. 
 
 must take the property at the full price, though it fall to decay 
 before his demand, ib. 
 
 entitled to any increase of the property which remains connected 
 with it, 186. 
 
 must pay the price before he can demand delivery from the pur- 
 chaser, 188. 
 
 after taking possession may return the property for a defect, 192. 
 
 does not lose his right by guaranteeing the sale or acting as 
 agent for either party, ib. 
 SISTER. 
 
 included in the second class of heirs, 280. 
 
 share of, 273, 379. 
 
 when alone, takes whole estate, 280. 
 
 with brother, takes half his share, ib. 
 
 half on father's side comes into place of full, ib. 
 
 — mother's side shares equally with brother, 281. 
 
 SLAVE. 
 
 may be contracted in marriage by master, 8. 
 
 marriage of, without master's permission or subsequent assent, 
 unlawful, 10, 45. 
 
 partially emancipated, cannot be forced to marry, 11. 
 
 may contract himself with master's permission, ib. 
 
 marriage of, by a man already married to a free woman, unlaw- 
 ful, 25. 
 
422 INDEX. 
 
 SLAVE — continued. 
 
 marriage of, to a free woman, lawful, 34. 
 
 female may be married by permanent or temporary contract, 45 
 
 ■ — master of, entitled to her dower, ib. 
 
 marriage of, may be cancelled by master's heirs, 47. 
 
 — by purchaser, 50. 
 
 male, cannot be forced, or prevented to repudiate his wife, 52. 
 
 married female, prohibited to her master till separated from her 
 husband, 53. 
 
 purification of, ib., note. 
 
 female must be purified after every purchase or other acquisi- 
 tion, 53. 
 
 child of female, duly legalized, is free, 56. 
 
 female, who has borne a child to her master becomes an oom-i- 
 wulud, 57. 
 
 repudiated by her husband, but emancipated during iddnt, en- 
 titled to 'inherit, 123. 
 
 emancipated for zihar must be a MooaUm,free from defects, 142. 
 
 entire property of emancipator, 
 
 143. 
 
 iddut and purification of female, 167. 
 
 purification of, when necessary, must be observed in all cases of 
 acquisition, 168. 
 
 may be the subject of shoo/a according to some doctors, 176. 
 
 excluded from inheritance, 267. 
 
 child of, if free, not debarrred from inheriting, ib. 
 
 when sole heir, is to be purchased out of the estate, and eman- 
 cipated, 268. 
 
 to be ransomed out of property left by his or her children, ib. 
 
 SON. 
 
 included in the first class of heirs, 324. 
 when alone, takes the whole estate, 276. 
 two or more sons share equally, ib. 
 with a daughter, takes double her share, ib. 
 with one or both parents takes the residue, ib. 
 
 SOOENA AND HO OB 8. 
 
 requires declaration and acceptance with possession, 226. 
 
 words by which it is constituted, ib. 
 
 rendered obligatory by donee's possession, ih. 
 
 cannot be revoked, 227. 
 
 a slave or house may be devoted in this way, ib. 
 
 house or musjid may be devoted in this way, ib. 
 
 after expiration of term, property belongs to the devoter, ib. 
 
 SUDUKAH, OR ALMS. 
 
 requires declaration and acceptance with possession, 224. 
 cannot be revoked, ib. 
 
 bestowed on descendants of Hashem. ih. 
 
 may be bestowed by a Mooslim on a zimmee, ib. 
 should be given privately, 225. 
 
 TESTATOR. 
 
 must be sane, free, and not less than ten years old, 232. 
 
 suicide, when will by, valid, ib. 
 
 directions of, must be strictly followed, 234. 
 
 TUDBEEB. 
 
 described, note p. 55. 
 
 cancelled by the assignment of a slave as dower, 76. 
 
 like a legacy, may be lawfully revoked, note, 70. 
 
INDEX. 123 
 
 TUBLEES, OR DECEPTION. 
 
 as to freedom of husband or wife, gives the party deceived a right 
 
 to cancel marriage, 63. 
 as to wife's virginity, affords no ground for cancellation, G5. 
 case of two men having the wives of each other brought to them 
 on the night of marriage, ib. 
 UNCLES AND AUNTS. 
 
 are the third class of heirs, 285, 328. 
 
 each of them excludes the children of others, as well as their 
 
 own, 329. 
 exception to this rule, ib. 
 
 restricted to single case, 285, 331. 
 
 paternal — among them a male has double the portion of a female 
 285. 
 
 combined with maternal, former have two-thirds, and 
 
 latter one-third, 286. 
 maternal — among them all share alike without distinction of 
 
 sex, 285. 
 on failure of, their children and children's children succeed, 328. 
 VESTED INTERESTS. 
 
 described, 318 et seq. 
 
 VIRGIN. 
 
 assent of, to marriage, may be inferred from silence, 9. 
 WIDOW. 
 
 always bound to observe iddut, 160. 
 
 iddut of, 164. 
 
 hedad, or mourning, incumbent on, 165. 
 
 has no right to maintenance during the iddut, 171. 
 
 share of, in husband's estate. See Wife. 
 WIFE. 
 
 no man can have more than four wives by permanent contract, 27. 
 
 no limit to number of wives by temporary contract, or by right 
 of property, 28. 
 
 may refuse herself to her husband till dower is paid, 70. 
 
 repudiated three times unlawful to repudiator till married to 
 another husband, 120. 
 
 ■ nine times, forever unlawful to repudiator, 119. 
 
 revocably, inherits to her husband if he die during 
 
 the iddut, 294. s 
 
 gift by, to husband may be retracted, 206. 
 
 to, by husband may be retracted, ib. 
 
 share of, in deceased husband's estate, 273, 294, 338, 381. 
 
 who has no child does not share in land left by her husband, 
 
 has no right to residue of her husband's estate, 262, 339. 
 
 term not properly applicable to woman contracted in vwotd, 344 
 WILL. 
 
 definition of, 229. 
 
 by a suicide, when valid, 232. 
 
 requires two witnesses for its establishment, 242. 
 
 excluding children from their share in deceased's estate, invalid, 
 238. 
 
 relating to emancipation of slaves, 245. 
 
 for other matters relating to, see Bequest. 
 WULA, OR PATRONAGE. 
 
 a cause of inheritance, 296, 323. 
 
 is of three kinds, 296, 345. 
 
i24 INDEX. 
 
 WULA, OR PATKONAGE— continued. 
 
 of emancipation, ib. 
 
 conditions of, 347 et seq. 
 
 of responsibility for offences, 301, 360. 
 
 conditions of, 360 et seq. 
 
 of Imrtmvt, 301,362. 
 
 no right of inheritance founded on, except on failure of blood- 
 relations, 346. 
 case of reciprocal, 347. 
 title to succession by, not transferable, 354. 
 shifting of, 355 et seq. 
 
 ZIHAR. 
 
 form, 138. 
 conditions. 
 
 of the eihar itself, 139. 
 
 of the moozahvr, or husband pronouncing it, ib. 
 
 of the moozahurah, or wife the subject of it, ib. 
 
 effects, 140. 
 
 prohibition of conjugal intercourse till expiation is made, 140. 
 
 expiation, see that head. 
 
 not evaded by repudiation and revocation, 140. 
 
 alternative of, in case of inability, 141. 
 
 ZIMMEE. 
 
 having more than four wives, must, on conversion to Islam, be 
 
 separated from the excess, 31. 
 has a right of choice in that case, ib. 
 may exercise his right of choice after death of one of them, ib. 
 
 ZIMMEEAH. 
 
 what restraints may be imposed on, by a Mouslim husband, 33. 
 iddut of, 168. 
 
 ZINA. 
 
 effect of, in establishing affinity, 23. 
 parties guilty of, may intermarry, 27. 
 previous to marriage, no ground for cancellation, 35. 
 
INDEX 
 
 TO 
 
 AEABIC WORDS EXPLAINED IN THE TEXT. 
 
 Abik 
 
 
 
 . 143 
 
 Deeut 
 
 . 234 
 
 Abneeut . 
 
 
 
 note 176 
 
 Deyn . 
 
 . 203 
 
 Adil 
 
 
 
 . 248 
 
 Durk . 
 
 . 184 
 
 Ahl-beit . 
 
 
 
 . 246 
 
 
 
 Ahleeut . 
 
 
 
 . 123 
 
 Eedan . 
 
 . 237 
 
 Akar 
 
 
 
 . 197 
 
 Eela 
 
 . 147 
 
 Akilas . 
 
 
 
 . 351 
 
 Eeman . 
 
 . 34 
 
 Akrub . 
 
 
 
 . 247 
 
 Ekalut . 
 
 note 113 
 
 Alat 
 
 
 
 . 295 
 
 
 
 Ameen . 
 
 
 
 . 250 
 
 Fajirah . 
 
 . 56 
 
 Areeut . 
 
 
 
 . 54 
 
 Fasik . 
 
 . 248 
 
 Arz 
 
 
 
 . 175 
 
 Firash . 
 
 . 155 
 
 Arzeen . 
 
 
 
 note lb. 
 
 Foorooz 
 
 . 378 
 
 Asheerah 
 
 
 
 . 246 
 
 Fukeer . 
 
 . 247 
 
 Asmut . 
 
 
 
 . 166 
 
 Fureezut . . 
 
 . 274 
 
 Asubah . 
 
 
 
 . 253 
 
 Furz 
 
 . 261 
 
 Ateent . 
 
 
 
 . 203 
 
 
 
 Athna-asheria 
 
 t 
 
 
 . 216 
 
 Habis 
 
 . 227 
 
 Awl 
 
 
 
 . 274 
 
 Hail 
 
 . note 110 
 
 Awleeah 
 
 
 
 note 6 
 
 Hajib 
 
 . 262 
 
 Awseeah 
 
 
 
 . 248 
 
 Halu 
 
 , note 110 
 
 Ayessab 
 
 
 
 . 54 
 
 Heba 
 
 . 4 
 
 Ayn 
 
 
 
 note 203 
 
 Hebbat . 
 Hedad . 
 
 . 203 
 . 165 
 
 Bain 
 
 
 
 . 118 
 
 Hillal . 
 
 . 162 
 
 Beya 
 
 
 
 . 4 
 
 Hizanut 
 
 . 94 
 
 Beyt . 
 
 
 
 . 68 
 
 Hoobs . 
 
 . 226 
 
 Bidaut . 
 
 
 
 . 118 
 
 Hudd . 
 
 . 46 
 
 Bubeemah 
 
 
 
 note 104 
 
 Hubusu . 
 
 note 227 
 
 Butturee 
 
 
 
 . 190 
 
 Hujj . . . 
 Huluf . 
 
 . 98 
 . 157 
 
 Dar 
 
 
 
 . 68 
 
 Hurbee . 
 
 . 134 
 
 Deeat 
 
 
 
 . 354 
 
 Husban . 
 
 . 241 
 
 F F 
 
426 
 
 INDEX TO ARABIC WORDS. 
 
 Husun . 
 
 . note 2 
 
 Kuyyim . 
 
 . 219 
 
 Huzz 
 
 . 239 
 
 Lian . . 
 
 . 29 
 
 
 
 Luhzah . 
 
 . 157 
 
 Iamar 
 
 . 227 
 
 
 
 Ibabut . 
 
 . 54 
 
 Mai 
 
 note 277 
 
 Ifzao 
 
 . 60 
 
 Mooamur 
 
 . 227 
 
 Ibram . 
 
 note 27 
 
 Mooatuddah . 
 
 . 36 
 
 Ijaruh . 
 
 . 4 
 
 Moobarat . . 
 
 . 136 
 
 Ikbaz 
 
 note 204 
 
 Moodd . 
 
 . 145 
 
 Imam 
 
 . 47 
 
 Moodubbir 
 
 . 269 
 
 Irnamut . 
 
 . 261 
 
 Moodubbur . 
 
 . ib. 
 
 In . 
 
 . 116 
 
 Moodubburah 
 
 note 55 
 
 Inin 
 
 . 59 
 
 Moohrim 
 
 note 27 
 
 Injeel 
 
 . 215 
 
 Moohsunnah . 
 
 . 152 
 
 Irish 
 
 . 234 
 
 Mookatub 
 
 . 244 
 
 Iskan 
 
 . 226 
 
 Mookatubah . 
 
 . 133 
 
 Ismut 
 
 note 113 
 
 Mookatubut . 
 
 note 269 
 
 Isteelad . 
 
 . 57 
 
 Mookhalif 
 
 . 35 
 
 Istibra . 
 
 note 111 
 
 Mookbtullah . 
 
 . 133 
 
 Izl . 
 
 . 43 
 
 Moola . 
 
 . 148 
 
 
 
 Moolain . 
 
 . 155 
 
 Jecran . 
 
 . 246 
 
 Moolaunah 
 
 . ib. 
 
 Joozam . 
 
 . 60 
 
 Moolee . 
 
 . 148 
 
 Joozz 
 
 . 237 
 
 Moolee-al-mowlah . 
 
 . 297 
 
 Jub 
 
 . 60 
 
 Moomin . 
 
 . 35 
 
 
 
 Moomineen . 
 
 . 215 
 
 Kafir 
 
 . 10 
 
 Moorahik 
 
 . 143 
 
 Khali . 
 
 . 133 
 
 Moosa-bihi 
 
 . 233 
 
 Kharijee 
 
 . 42 
 
 luho 
 
 . 244 
 
 Khoola . 
 
 . 129 
 
 Moosee . 
 
 . 232 
 
 Khooms . 
 
 . 301 
 
 Mooshaa, 
 
 . 204 
 
 Kiblah . 
 
 . 215 
 
 Mooskin 
 
 227 
 
 Kismut . 
 
 . 83 
 
 Mooslim 
 
 . 215 
 
 Kist 
 
 . 239 
 
 Mooslimah 
 
 . 40 
 
 Kitabee . 
 
 note 29 
 
 Moostubrat . 
 
 . Ill 
 
 Kitabeeah 
 
 . ib. 
 
 Moostuwludah 
 
 . 143 
 
 Kit abut . 
 
 . 169 
 
 Moostuzif 
 
 . 35 
 
 Koora 
 
 . 161 
 
 Moota . 
 
 . 2 
 
 Koorbut 
 
 . 144 
 
 Mootubayun . 
 
 . 314 
 
 Koor 
 
 . 258 
 
 Mootudakhil . 
 
 . ib. 
 
 Kowm . 
 
 . 246 
 
 Mootullik 
 
 . 107 
 
 Kows 
 
 . 241 
 
 Mootullukah . 
 
 . 109 
 
 al Nushab 
 
 . ib. 
 
 Mootumathil . 
 
 . 314 
 
 al Nulil . 
 
 . ib. 
 
 Mootuwafik . 
 
 . ib. 
 
 Kubeer . 
 
 note 8 
 
 Moowujjul 
 
 . 78 
 
 Kubeerah 
 
 . ib. 
 
 Moozahir 
 
 . 139 
 
 Kubz 
 
 note 203 
 
 Moozaknrah . 
 
 . ib. 
 
 Kulalut . 
 
 . 262 
 
 Moozarubut . 
 
 note 181 
 
 Kurn 
 
 . 60 
 
 Mowkoof 
 
 . 213 
 
 Kusum . 
 
 . 157 
 
 Mowkoof alelii 
 
 . 214 
 
INDEX TO ARABIC WORDS. 
 
 427 
 
 Mowroos 
 
 Muhabat 
 
 Muhr 
 
 Muhr-al-soonnut 
 
 Muhr-i-misl 
 
 Muhr-i-mithl 
 
 Muhullah 
 
 Mujboob 
 
 Mujoosee 
 
 Mujooseeah 
 
 Musakin 
 
 Musalib . 
 
 Mushhid 
 
 Musjid . 
 
 Muskin . 
 
 Musluhut 
 
 Nasbizah 
 
 Nasib 
 
 Nazir 
 
 Nifas 
 
 Nikah 
 
 Nikab-al- 
 
 Nuhlut 
 
 Nufukat 
 
 Nufukut 
 
 Nusbooz 
 
 Nuseeb 
 
 Nusub 
 
 Daim 
 
 Ood 
 
 Oom-i-wulud 
 Oomr 
 Oomra . 
 
 Rizaa 
 
 Rookba . 
 
 Roosbd . 
 
 Rudd . 
 
 Rujaee . 
 Rujat 
 
 Rutuk . 
 
 Sheeah . 
 Shei 
 
 Shekak . 
 Sbighar . 
 Shoofa . 
 yhufee . 
 Sb.uk . 
 Sbureek . 
 
 note 
 
 267 
 
 256 
 
 67 
 
 68 
 
 69 
 
 . ib. 
 
 . 221 
 
 . 148 
 
 . 310 
 
 . 17 
 
 note 175 
 
 . 215 
 
 . 217 
 
 . 185 
 
 note 175 
 
 note 215 
 
 , 86 
 243 
 219 
 110 
 1 
 ib. 
 note 203 
 note 97 
 . ih 
 . 87 
 . 239 
 . 13 
 
 . 237 
 
 note 55 
 
 . 226 
 
 . ib. 
 
 note 94 
 
 . 226 
 
 note 4 
 
 262 
 
 118 
 
 126 
 
 61 
 
 216 
 
 238 
 88 
 37 
 
 175 
 
 179 
 88 
 note 175 
 
 Siham . 
 Siyyebab 
 Sookna . 
 Soonnut . 
 Subee 
 Subeel . 
 Subeel allabi 
 Subub . 
 Sudak 
 Sudukat . 
 Sudukah 
 Sufkut . 
 Sugheer . 
 Sugheerah 
 Suheeb . 
 Subum . 
 Sukunu . 
 
 Taaseeb . 
 
 Tabeer . 
 
 Tahir . 
 
 Talik . 
 
 Thuyyibah 
 
 Toohr . 
 
 Towreet . 
 
 Tudakhool 
 
 Tudbeer . 
 
 Tudlees . 
 
 Tuf weez . 
 
 Tufweftz-al-Booza 
 
 Tufweez-al-Mubr 
 
 Tuhleel . 
 
 Tukail . 
 
 Tukulloos 
 
 Tulak 
 
 Tulak Bain 
 
 Tulak Bidaut 
 
 Tulak-ool-Iddut 
 
 Tunak-oos-Soonnut 
 
 Tulak Rujaee 
 
 Tumkeen 
 
 Tumleek 
 
 Tumuttooa 
 
 Tuzweej 
 
 Un. 
 Urj 
 
 Ushbubo 
 Usubab 
 
 Usubat 
 
 note 
 
 note 317 
 
 note 7 
 . 226 
 . 68 
 . 4 
 
 note 211 
 . 221 
 . 261 
 . 35 
 . 211 
 . 224 
 . 177 
 
 note 7 
 . ib. 
 
 note 2 
 . 237 
 
 note 226 
 
 . 274 
 note 186 
 note 115 
 116 
 7 
 110 
 215 
 173 
 55 
 63 
 70 
 ib. 
 ib. 
 55 
 129 
 '270 
 33 
 118 
 ib. 
 119 
 118 
 ib. 
 97 
 4 
 3 
 2 
 
 116 
 
 60 
 109 
 
 229 
 ib. 
 
 vote 
 
428 
 
 INDEX TO ARABIC WORDS. 
 
 Wakif . 
 
 . 214 
 
 Zahir 
 
 
 
 . 128 
 
 Wilayut . 
 
 . note 231 
 
 Zamin b'il durk 
 
 . 192 
 
 Woojooh-ool-birr 
 
 . note 216 
 
 Zanee 
 
 . 22 
 
 Wookoof 
 
 . 211 
 
 Zaneeah . 
 
 
 
 . 40 
 
 Wukf . 
 
 . ib. 
 
 Zihar 
 
 
 
 . 138 
 
 Wula . 
 
 . 261 
 
 Zimmee . 
 
 
 
 . 30 
 
 Wulee . 
 
 . note 6 
 
 Zimmeeah 
 
 
 
 . 17 
 
 Wulud-ooz-zina 
 
 . 305 
 
 Zina 
 
 
 
 . 17 
 
 Wusaya . 
 
 .. note 229 
 
 Ziraa 
 
 
 
 . 246 
 
 Wusiyyut 
 
 . ib. 
 
 Zoafan . 
 
 
 
 . 255 
 
 Wusee . 
 
 . note 248 
 
 Zoaf-i-zoaf 
 Zoo f urz . 
 
 
 
 . ib. 
 
 . 262 
 
 Yaissah . 
 
 . Ill 
 
 Zowjeeut 
 
 
 
 . 261 
 
 Yumeen . 
 
 . 150 
 
 Zuvee kurabut 
 
 
 . 246 
 
 THE END. 
 
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 LONDON 
 
 
Date Due 
 
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