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445
INDIAN LAW

cause.” Of course the relationship of master and slave cannot now be created, and it is scarcely probable that any case of inheritance could arise in which it came into question. The relationship of mawalat may, under Mahommedan law, also be created in a case where a freeman is converted to Islam. From a Mahommedan point of view he then stands alone, and would be required to attach himself to some Mahommedan family. The form of the transaction exactly indicates the nature of it. The party wishing to attach himself says to the person ready to receive him, “Thou art my kinsman, and shalt be my successor after my death, paying for me any fine or ransom to which I may be liable.” In this case also the family of the person who receives the convert is entitled, in default of other residuaries, to succeed to him as “residuaries for special cause.” But this transaction can have no meaning under English law, which does not recognize the joint responsibility of the family, and it is therefore also obsolete. In the case of mawalat the rights of the persons concerned are not reciprocal. The person received gains no right of inheritance in the family into which he enters, and incurs no responsibility for their acts. An important part may still be played in Mahommedan law by the creation of relationships by acknowledgment. Any such relationship may be created, provided that the parentage of the person acknowledged is unknown; a person of known parentage cannot be acknowledged. The age, sex and condition of the person acknowledged must also be such that the relationship is not an impossible one; for, as was said in the Roman law, fictio naturam imitatur. The relationship thus constituted is, in the ease of a father, mother, child, or wife, complete, and must be treated for all purposes as having a real existence. But in any other case the acknowledgment, although good as between the parties thereto, has no effect upon the rights of other parties. The acknowledgment which we have just been considering contemplates the possibility at any rate, and in most cases the certainty, that the relationship is entirely fictitious, and has no connexion with any rule of evidence in whatever sense the term is understood. But there is a rule of Mahommedan law that, in cases where the paternity of a child is in dispute, the acknowledgment of the child by the father is conclusive. Whether this would now be maintained in face of the Evidence Act 1870, which deals with cases of conclusive evidence, and expressly repeals all previously existing rules of evidence, may be doubtful.

Marriage is a transaction based upon consent between a man and a woman, or between persons entitled to represent them. The result of the transaction is that certain family relationships involving legal rights and duties Marriage. are created by the law, and these are not wholly under the control of the parties. But as to some of them, to some extent they may be regulated by agreement, and it is customary amongst Mahommedans at the time of a marriage to come to such an agreement. The only condition necessary to the constituting of a valid marriage between persons of full age is the consent of the parties. It is, however, the practice to conclude the transaction in the presence of two males, or one male and two female witnesses; and the omission of this formality would always throw a doubt upon the intention of the parties finally to conclude a marriage. It is even said that the absence of such witnesses would justify a judge in annulling the marriage. Minors of either sex may be given in marriage by their guardian, and the transaction will be irrevocable if the guardian be the father or any direct male ascendant. In any other case the marriage may be repudiated when the minor arrives at the age of puberty, but the repudiation is not effectual until confirmed by a judge of the civil court. A marriage may be conducted through agents. A woman can have only one husband; a man can have four wives; if he married a fifth the marriage would be annulled by a judge on the application of the woman. Mahommedans have a table of prohibited degrees within which parties cannot marry not very dissimilar to that in force in Great Britain. Nor can a man be married at the same time to two women nearly related to each other, as to two sisters. It is also considered that if a woman take a child to nurse she contracts a sort of maternity towards it, and that if a boy and girl are nursed by the same woman they become brother and sister, and, in a general way, it is said “that whatever is prohibited in consanguinity is prohibited in fosterage”; but it is doubtful whether the law goes so far. The widow, or a divorced woman, is not allowed to marry again during her iddut. This is a period of chastity which a woman is bound to observe in order to avoid confusion of issue. If she is pregnant it lasts until the child is born; if not, then in case of divorce it lasts through three periods of menstruation; if she is a widow it lasts for four months and ten days. A Mahommedan man cannot marry an idolatress, but Jews and Christians are not thereby excluded, because, although infidels, they are not idolatresses. A woman is forbidden by Mahommedan law to marry any one who is not a Mahommedan; but if the marriage took place in conformity with the Act of 1872 it might be valid, if it amounted to a repudiation by the woman of her Mahommedanism. It is important to remember, when considering the validity of a Mahommedan marriage, that a distinction is drawn between marriages which are simply void (batil) and those which can only be annulled by judicial decision (farid), for such a decision has no retrospective effect, so that the children already born are legitimate; and if no step is taken to obtain such a decision during the existence of the marriage, it cannot be questioned afterwards. What marriages are absolutely void, and what are only capable of being declared void, is not very clearly settled, but the evident leaning of Mahommedan law is against absolute invalidity, and there is strong authority for the opinion that no marriages are absolutely void except a marriage by a woman who has a husband living and such as are declared to be incestuous.

A Mahommedan has the absolute right to divorce his wife whenever he pleases without assigning any reason whatever for doing so. There are, however, very strong social reasons which have considerable influence in restraining Divorce. the arbitrary exercise of the power. The power to divorce remains notwithstanding any formal promise by the husband not to exercise it, and it is even said that a divorce pronounced in a state of intoxication, or by a slip of the tongue, or under coercion, is valid. The divorce can, however, be revoked by the husband, but not after it has been three times pronounced, or after the iddut has been passed by the woman. Nor can the husband remarry his divorced wife unless she has been again married, and has been again divorced or become a widow, and the intermediate marriage must have been consummated. The power to divorce a wife may be entrusted by the husband to an agent acting on his behalf, and this contrivance is sometimes made use of to enable a woman’s friends to rid her of her husband if he ill-treats her. The husband may even empower the wife to divorce herself. If the husband or the wife should happen to die whilst the divorce is still revocable, he or she will inherit; and even a triple repudiation pronounced during “sickness,” that is death-sickness, will not deprive the woman of her inheritance if the iddut has not been passed. Of course there is nothing to prevent the husband and the wife from agreeing to a divorce, and to the terms on which it is to take place, and such an arrangement is very common. The treatment of the wife by the husband is not a ground upon which the marriage can be dissolved, but the impotence of the husband is a ground of dissolution. The courts in India consider that they have the power under Mahommedan law to grant a decree for the restitution of conjugal rights.

Dower in Mahommedan law is in the nature of a gift from the husband to the wife on the marriage, like the donatio propter nuptias of the Roman law, or the morgengabe of Teutonic nations. It may be either “prompt,” that Dower. is, payable at once, or the payment of it may be deferred, or it may be partly the one and partly the other. The amount of the dower and the time of payment ought to be settled by agreement before the marriage takes place; if this is not done there is some trouble in ascertaining the rights of the parties. It seems clear that a woman is entitled as a matter of right to