Islam Its Belief and Practices - Radical Truth

1M ISLAM ITS BELIEFS AND PRACTICES MARRIAGE AND DIVORCE 105
remains to them. (1) But if contracted by the authority
of others than their parents, each is respectively at
liberty, after they become of age, to choose whether the
marriage shall be confirmed or annulled. It is to be
observed, however, that this case applying generally to all
except the father and grandfather, includes the mother
of the infant, and also the Qadi, . because the former,
as
being a woman, is deficient in judgment; and the latter,
as a stranger, in affection. It is also to be remarked
that, in dissolving the marriage, decree of the Qa4i is a
necessary condition in al1 cases of option exerted after
marriage. (1)
The right of option in a virgin, after maturity, is
done away by her silence; but the right of option of a
man is not done away by the same circumstance, nor
until he express his approbation by word or by deed,
such as presenting her dower, having conjugal relation
with her, and so forth; and in like manner the right of
option of the female after maturity (in a case where the
husband had conjugal relation with her before she
attained to that state), is not annul1ed until she
express her consent or disapprobation in terms (as if
she were to say .. I approve," or, .. I disapprove "), or
until her consent be virtually shown by her conduct,
in admitting the husband to conjugal relation, and so
forth.
Other Conditions of the Validity of a
Muslim Marriage.
Besides the capacity of the parties to marry each
other and the celebration of the marriage the other conditions
of the validity of the celebration of a Muslim
marriage are as follows;
(1) HUla"", Eng!. Tr. Vol. I. Book II. ch. II.
(1) Declaration and Consent.
Marriage is contracted.-that is to say, is effected and
legal1y confirmed,-by means of declaration and consent,
both expressed in the preterite, because although the use
of the preterite be to relate that which is past, yet it has
been adopted, in the law, in a creative sense, to answer
the necessity of the case. This is cal1ed Ijab and Qubul,
Declaration and Acceptance.
(2) The Consent of the Woman.
According to the doctrine of Imam Abu I;Ianifa it is
not lawful for a guardian to force into marriage an adult
virgin against her consent. Imam Shafi'i on the contrary
holds a different view. He accounts an adult virgin the
same as an infant, with respect to the marriage, since the
former cannot be acquainted with the nature of marriage
any more than the latter, as being equally uninformed
with respect to the matrimonial state. The consent of a
woman, according to the teaching of Imam Abu I;Ianifa,
may be expressed or implied. The law respects the
modesty of the sex, and al10ws the expression of consent
on the part of the lady by indirect ways, even without
words. With a virgin, silence is taken as consent, and so
is a smile or laugh, because Mu!;J.ammad said: .. A virgin
must be consulted in every thing with regard to herself;
and if she be silent it signifies assent." Some doctors
have said that if her laughter or smile be in the manner of
jest or derision it is not a sign of her consent; nor is her
weeping a disapproval, if it be not accompanied with
noise or lamentation. The case of a Ihiyyaba, or a
woman who has lost the state of her virginity, is different.
It is necessary that her consent be particularly expressed
by words, such as, .. I consent to it. "