Promise of marriage can enforced. CHAPTER VI. PRECEDENTS OF MARRIAGE, DOWER, DIVORCE AND CASE I. Q. 1. A woman, for a pecuniary consideration, executes a written agreement, that she will marry her daughter (aged only three months at the time of the agreement) to the son of another woman, and takes the son into her house accordingly, and educates him. Afterwards, the mother of the daughter departs from her agreement, and refuses to permit the ratification of the contract. Under these circumstances, has the mother of the son a legal right to compel the mother of the daughter to fulfil the contract; or can she recover from her the money given in consideration of the agreement of matrimony? R. 1. The mother of the son has only a legal right to not be legally the money paid by her in consideration of the marriage, and she will recover the whole amount so paid. According to the doctrine contained in the Futawa Kazee Khan,-"A person solicited the daughter of another in marriage and sent her presents. The father of the daughter afterwards refused to fulfil the marriage contract. In this case it has been ruled, that whatever was sent as dower, or in consideration of the marriage, whether forthcoming or not, must be restored, and that whatever was sent as a present must be restored if forthcoming, but that, if lost or destroyed, it is not claimable as a debt." Q. 2. A woman solicits the daughter of another in marriage for a boy educated under her care, and gives, or sends to the house of the girl's parents, jewels, ornaments, clothes and the like. In such case, is the marriage contract complete and binding; and if not, is she legally entitled to recover the property which he had given? restored. be restored if R. 2. In such case the contract of marriage is not binding and complete, because declaration and consent by the parties are requisite to give the contract validity. Under the circumstances stated, the required declaration and consent do not appear to have taken place. But whatever was given to the parents of the girl Any thing given in con solicited in marriage, or sent to their house in consi- sideration deration of marriage, is legally recoverable. According must be to the Mokhtusur Ooshafee cited in the Futawa Masoo- If gratuitousmee,- "A man sent to the father of a girl whom he had ly given must solicited in marriage, gold, silver, clothes, or other forthcoming. property, or made him a present of some articles and repeated his presents (as is customary in modern times). A contract of marriage is not thereby executed, because marriage is legally contracted only by declaration and consent, which do not appear here to have existed." So likewise in the Dustoor-ool Koozaut. A passage in the Futawa Kazee Khan is to the following effect: "A person solicited the daughter of another in marriage, and sent her presents, &c. (above cited). CASE II. Q. Is it customary on occasions of mariage to enter into any written agreement; for instance, a man betroths his son to the daughter of a dancing woman, and that woman, having paid a certain sum of money, takes a written engagement from the father of the intended bridegroom, specifying that he had received the money and agreeing to the marriage of her daughter with his son, for such pecuniary consideration. If the person engaging should, notwithstanding this written obliga A written engagement to marry is not verable. tion, and the fact of his having kept his intended daughter-in-law in his house, omit to perform the promise therein contained, can such obligation be considered equally binding as in a case of regular sale? and would the Law recognize it as worthy of being enforced? R. Among the respectable part of the community written engagements are never entered into on such binding, but occasions. It may be customary among the inferior any sum paid in considera- classes, but if any one, for a pecuniary consideration, tion is reco- should execute an obligation of the nature described in the question, it merely amounts to a promise of giving in marriage, and by no means amounts to an actual contract of marriage; and the person executing such obligation is at liberty to depart from the terms of it, and to procure the marriage of his son with any person whom he may think fit, but, if demanded, he must refund the pecuniary consideration received. The conditions of a contract of sale are defined and specific, but no one of those conditions is found to exist in a contract of the nature here alluded to.* CASE III. Q. A man causes a contract of matrimony to be entered into between his son and his niece, without the consent of her mother, and at a time when they were both only three years of age. But the son and the niece, during their childhood, imbibed the milk of the *In this case the contract may be said to have been a Hibba-ba Shurtool Iwuz or gift on stipulation, which, in its effect only, resembles a sale, and until the consideration be received, the property parted with on one side may be held to be of the nature of a pure gift, which admits of resumption when forthcoming; or it may be held to be property parted with for a valuable consideration, of which, if itself not forthcoming, the price must be restored. In one of the cases propounded in the preceding question, of the gifts having been made simply as presents, without reference to any consideration, they would be resumable if forthcoming only, under the general Law of revocation of gifts. same woman. Under these circumstances is the mar riage conformable to Law? voidable by R. It merely appears from the question, that the son Marriage how and niece, at the same period, during their childhood, fosterage. imbibed the milk of the same nurse, but their respective ages at the time are not specified. The Law makes a distinction as to the validity or invalidity of a marriage between parties who have imbibed the same milk, depending upon their respective ages at the time they did so. If the parties imbibed the milk of the same woman, on or before their attaining the age of thirty months or two years and a half, their subsequent intermarriage will be illegal; but, if at a time subsequently to their attaining that age, it will be legal. So also if the age of one of the parties may have exceeded, and that of the other fallen short of, the prescribed age at the time of their being suckled by the same woman, the circumstance will be no impediment to their marriage.* CASE IV. Q. A person, with a view to avoid the disgrace of having fornication imputed to him, marries a pregnant woman before her delivery; but the woman continues to remain in the house of her parents. She now comes forward and claims from her husband arrears of alimony for six years. The witnesses brought forward depose to the marriage having been celebrated sixteen or seventeen years ago, and it is also proved that the wife never lived with the husband, nor received maintenance from him. Under these circumstances, is such marriage * It is a general rule that any marriage which is prohibited by reason of consanguinity, would equally be prohibited by reason of fosterage, but there are two exceptions to this rule, for which see Prin: Marriage, &c. 23. Of marriage with a pregnant woman and of cohabitation. valid? and has the wife a legal title to any arrears of alimony, claimed at a period of sixteen or seventeen years subsequent to the celebration of the marriage? R. By Law, marriage with a pregnant woman is permitted, but cohabitation is prohibited until after delivery, if the pregnancy was by any other than the husband. According to the Hidaya,-"A man may lawfully marry a woman pregnant by whoredom; but he must not cohabit with her until after her delivery." Arrears of alimony are not claimable from a husband, unless by stipulation or by a judicial decree. According to the Viqaya,-" Maintenance for a past period is not due, unless awarded by order of the Kazee, or stipulated between the parties, in which case the payment becomes obligatory." The wife's property does husband by marriage. CASE V. Q. A woman, on the occasion of her marriage, received, as a gift from her mother, eighty beegahs of land, a dwelling house and a cow house. She afterwards died, leaving a husband, an unmarried daughter and a son. Now to what proportions of the abovespecified property will her husband and her two children. be entitled on her death? R. According to Law, a woman is absolute proprietor not vest in the of all property, real or personal, whether acquired by her on the occasion of her marriage or otherwise, and therefore, when she dies, it will be distributed, according to the Law of Inheritance, into four equal shares, of which her husband will take one, her son two and her daughter one share.* The Moohummudan doctrine in this, as in most other points, more nearly resembles the Civil than the English Law. One of the most familiar instances of confusion taking place according to the English Law, is the marriage of the debtor and creditor, by which, as a general |