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No conditions of any sort must appear in the contract. Should this rule be transgressed, the whole would be invalid, if the conditions contained anything at variance with the essence of Mohammedan marriage, but the contract would hold good, the conditions[1] alone being invalid, if the latter did not conflict with essence of the wedded state.
Some walis, viz. those in the ascending line, have the right to give a girl in marriage without her consent, if she be a maiden. The law recommends, however, that her consent be asked, and the compulsory right ceases on her declaring that she has lost her virginity, it matters not how.
The right of compulsion is only given to these walis because it is thought that they are better able to promote her actual interests, and because her maiden shyness has yet to be overcome.
Where the girl is no longer a maiden her consent is essential; indeed the mature unmaried woman has the right to demand to be married, provided that a suitor presents himself whom the law would allow of her marrying.
We thus see how foreign to the dictum of the law is the idea that the woman is the subject of the contract. Males under age can also be married by their walis with their own consent, when the latter see it to be for their good.
The Wali.The following are proper walis of a woman according to the Shafiʾite law-books.
1°. The nearest male relative in the ascending line (the father, or if he be deceased the father's father, etc.).
2°. Brothers, first those who are the children of the same parents as the women, then step-brothers on the father's side.
3°. Male descendants in the male line of those included under 2° above, it being understood that a nearer degree excludes a more distant one, and that in each degree a descendant of a full brother of the woman takes precedence of those of her step-brother on the father's side.
4°. The brothers of the father, subject to the same rule as 2°.
- ↑ In the books of Mohammedan law certain "conditions" are cited as permissible, but these are in fact closer definitions of the subject of the contract, as for instance that the bride should be a virgin. In such cases separation (faskh) is allowable if the contrary prove to be true. What we might call conditions in the real sense of the word are not admissible under the law of Islam; the Law is supposed to regulate all the results of marriage for all alike, and if one of the parties wishes to surrender any of his or her rights, he or she can do so in practice, but cannot forego them in the contract.
