Of the religi

on of the par

ties.

Presumption

of the master of such slave, is admissible; provided he be not already married to a freewoman.

12. Christians, Jews, and persons of other religions, believing in one God, may be espoused by Moohummudans.

13. Marriage will be presumed, in a case of proved of marriage. continual cohabitation, without the testimony of witnesses; but the presence of witnesses is nevertheless requisite at all nuptials.

Capacity to contract.

Right of guardians.

Where an infant contracts..

Limitation.

Contract

ble by the

parties.

14. A woman having attained the age of puberty, may contract herself in marriage with whomsoever she pleases; and her guardian has no right to interfere if the match be equal.

15. If the match be unequal, the guardians have a right to interfere with a view to set it aside.

16. A female not having attained the age of puberty, cannot lawfully contract herself in marriage without the consent of her guardians, and the validity of the contract entirely depends upon such consent.

17. But in both the preceding cases the guardians should interfere before.the birth of issue.

18. A contract of marriage entered into by a father when dissolu- or grand-father, on behalf of an infant, is valid and binding, and the infant has not the option of annulling it on attaining maturity; but if entered into by any other guardian, the infant so contracted may dissolve the marriage on coming of age, provided that such delay does not take place as may be construed into acquiescence.

19. Where there is no paternal guardian, the maternal Of guardians for marriage. kindred may dispose of an infant in marriage; and in default of maternal guardians the government may supply their place.

20. A necessary concomitant of a contract of marriage of dower. is dower, the maximum of which is not fixed, but the minimum is ten dirms,* and it becomes due on the Minimum of. consummation of the marriage (though it is usual to stipulate for delay as to the payment of a part) or on When duc. the death of either party, or on divorce.

amount fixed.

21. Where no amount of dower has been specified, Where no the woman is entitled to receive a sum equal to the average rate of dower granted to the females of her father's family.

ferred.

22. Where it may not have been expressed whether Whether the payment of the dower is to be prompt or deferred, prompt or deit must be held that the whole is due on demand. Bentsen B Dis M 2 1271 & 126.

tion of foster

23. It is a rule that whatsoever is prohibited by rea- Disqualificason of consanguinity is prohibited by reason of fosterage; age and conbut as far as marriage is concerned, there are one or two sanguinity. exceptions to this rule; for instance a man may marry his sister's foster-mother, or his foster-sister's mother, or his foster-son's sister, or his foster-brother's sister.

Exceptions.

24. A husband may divorce his wife without any of the rules of misbehaviour on her part or without assigning any Divorce. cause; but before the divorce becomes irreversible, according to the more approved doctrine, it must be repeated three times, and between each time the period

The value of the dirm is very uncertain. Ten dirms according to one account make about six shillings and eight pence sterling. See Note to Hamilton's translation of the Hidaya. page 122, volume 1.

Conditions precedent to re-union.

Of a deathbed divorce.

What amounts

of one month must have intervened; and in the interval he may take her back either in an express or implied

manner.

25. A husband cannot again cohabit with his wife who has been three times irreversibly divorced, until after she shall have been married to some other individual and separated from him either by death or divorce; but this is not necessary to a re-union, if she have been separated by only one or two divorces.

26. If a husband divorce his wife on his deathbed, she is nevertheless entitled to inherit, if he died before the expiration of the term (four months and ten days) of probation, which she is bound to undergo before contracting a second marriage.

27. A vow of abstinence made by a husband, and to a divorce. maintained inviolate for a period of four months, amounts to an irreversible divorce.*

Of divorce purchased.

Another mode

28. A wife is at liberty, with her husband's consent, to purchase from him her freedom from the bonds of marriage.

29. Another mode of separation is by the husband's of dovorce. making oath, accompanied by an imprecation as to his wife's infidelity, and if he in the same manner deny the parentage of the child of which she is then pregnant, it will be bastardized.

Of Impotency.

30. Established impotency is also a ground for admitting a claim to separation on the part of the wife.

There is recognized a species of reversible divorce, which is effected by the husband comparing his wife to any member of his mother, or some other relation prohibited to him, which must be expiated by emancipating a slave, by alms, or by fasting. This divorce is technically termed Zihar.-Hidaya, book iv. chap. ix.

31. A child born six months after marriage is consi- Rules relative dered to all intents and purposes the offspring of the to parentage. husband; so also a child born within two years after the death of the husband or after divorce.

32. The first born child of a man's female slave is con- Relative to sidered his offspring, provided he claim the parentage, of a female the children but not otherwise; but if after his having claimed the slave. parentage of one, the same woman bear another child to him, the parentage of that other will be established without any claim on his part.

fort 27323. id.go.

ledgment of

33. If a man acknowledge another to be his son, and of acknowthere be nothing which obviously renders it impossible parentage. that such relation should exist between them, the parentage will be established.

Term of mino

rity.

Subdivision

of.

Of their privileges.

Of guardians.

Of the same.

CHAPTER VIII.

OF GUARDIANS AND MINORITY.

1. All persons, whether male or female, are considered minors until after the expiration of the sixteenth year, unless symptoms of puberty appear at an earlier period.

2. There is a subdivision of the state of minority, though not so minute as in the Civil Law, the term minor being used indiscriminately to signify all persons under the age of puberty; but the term Subee is applied to persons in a state of infancy, and the term Moorahiq to those who have nearly attained puberty.*

3. Minors have not different privileges at different stages of their minority, as in the English law.†

4. Guardians are either natural or testamentary.

5. They are also near and remote. Of the former description are fathers and paternal grand-fathers and their executors and the executors of such executors.

"The great distinction therefore was into majors and minors; but minors were again subdivided into Puberes and Impuberes ; and Impuberes again underwent a subdivision into Infuntes and Impuberes.”—Summary of Taylor's Roman Law, page 124. In the Moohummudan Law a person after attaining majority is termed Shab till the age of thirty-four years; he is termed Kohul until the age of fifty-one, and Sheikh for the remainder of his life.

+ The ages of male and female are different for different purposes. A male at twelve years old may take the oath of allegiance; at fourteen is at years of discretion, and therefore may consent or disagree to marriage, may choose his guardian, and, if his discretion be actually proved, may make his testament of his personal estate; at seventeen may be an executor, and at twenty-one is at his own disposal, and may alien his lands, goods and chattels. A female also at seven years of age may be betrothed or given in marriage; at nine is entitled to dower; at twelve is at years of maturity, and therefore may consent or disagree to mariage, and, if proved to have sufficient discretion, may bequeath her personal estate; at fourteen is at years of legal discretion, and may choose a guardian; at seventeen may be executrix; and at twenty-one may dispose of herself and her lands. See Blackstone's Commentaries, vol. 1, page 463.