Skip to main content

Full text of "Mohamedan law relating to marriage, dower, divorce, legitimacy and guardianship of minors, according to the Soonees. vol. I-III"

See other formats


This  is  a  digital  copy  of  a  book  that  was  preserved  for  generations  on  library  shelves  before  it  was  carefully  scanned  by  Google  as  part  of  a  project 
to  make  the  world's  books  discoverable  online. 

It  has  survived  long  enough  for  the  copyright  to  expire  and  the  book  to  enter  the  public  domain.  A  public  domain  book  is  one  that  was  never  subject 
to  copyright  or  whose  legal  copyright  term  has  expired.  Whether  a  book  is  in  the  public  domain  may  vary  country  to  country.  Public  domain  books 
are  our  gateways  to  the  past,  representing  a  wealth  of  history,  culture  and  knowledge  that's  often  difficult  to  discover. 

Marks,  notations  and  other  marginalia  present  in  the  original  volume  will  appear  in  this  file  -  a  reminder  of  this  book's  long  journey  from  the 
publisher  to  a  library  and  finally  to  you. 

Usage  guidelines 

Google  is  proud  to  partner  with  libraries  to  digitize  public  domain  materials  and  make  them  widely  accessible.  Public  domain  books  belong  to  the 
public  and  we  are  merely  their  custodians.  Nevertheless,  this  work  is  expensive,  so  in  order  to  keep  providing  this  resource,  we  have  taken  steps  to 
prevent  abuse  by  commercial  parties,  including  placing  technical  restrictions  on  automated  querying. 

We  also  ask  that  you: 

+  Make  non-commercial  use  of  the  files  We  designed  Google  Book  Search  for  use  by  individuals,  and  we  request  that  you  use  these  files  for 
personal,  non-commercial  purposes. 

+  Refrain  from  automated  querying  Do  not  send  automated  queries  of  any  sort  to  Google's  system:  If  you  are  conducting  research  on  machine 
translation,  optical  character  recognition  or  other  areas  where  access  to  a  large  amount  of  text  is  helpful,  please  contact  us.  We  encourage  the 
use  of  public  domain  materials  for  these  purposes  and  may  be  able  to  help. 

+  Maintain  attribution  The  Google  "watermark"  you  see  on  each  file  is  essential  for  informing  people  about  this  project  and  helping  them  find 
additional  materials  through  Google  Book  Search.  Please  do  not  remove  it. 

+  Keep  it  legal  Whatever  your  use,  remember  that  you  are  responsible  for  ensuring  that  what  you  are  doing  is  legal.  Do  not  assume  that  just 
because  we  believe  a  book  is  in  the  public  domain  for  users  in  the  United  States,  that  the  work  is  also  in  the  public  domain  for  users  in  other 
countries.  Whether  a  book  is  still  in  copyright  varies  from  country  to  country,  and  we  can't  offer  guidance  on  whether  any  specific  use  of 
any  specific  book  is  allowed.  Please  do  not  assume  that  a  book's  appearance  in  Google  Book  Search  means  it  can  be  used  in  any  manner 
anywhere  in  the  world.  Copyright  infringement  liability  can  be  quite  severe. 

About  Google  Book  Search 

Google's  mission  is  to  organize  the  world's  information  and  to  make  it  universally  accessible  and  useful.  Google  Book  Search  helps  readers 
discover  the  world's  books  while  helping  authors  and  publishers  reach  new  audiences.  You  can  search  through  the  full  text  of  this  book  on  the  web 


at|http  :  //books  .  google  .  com/ 


HARVARD  LAW  SCHOOL 
LIBRARY 


X 


•V 


^^ 


^  ■■  ■      !    '  -  •  9  y- 

f agflrje  $Hto  g^i: tares— 1891-92. 


MAHOMEDAN  LAW 


RELATING  TO 


X       * 


MARRIAGE,  DOWER,  DIVORCE,  LEGITIMACY  AND 

GUARDIANSHIP  OF  MINORS,  ACCORDING 

TO  THE  SOONNEES. 


voii.  HI. 

ON  DIVORCE  AND  MATTERS  RELATING  TO  DIVORCE. 

BY 

HON'BLE  MOULVI  MAHOMED  YUSOOP  KHAN  BAHADUR, 

PLEADER  or  THE  CALCUTTA  HIGH  COURT. 


^  CaUntta:  '''..; 

\ 

THACKER,    SPINK4C0. 

f 

yttbltsfFets  to  tf^e  Calnitts  l[nibmnts. 

Bombay  :  THACEER  k  CO.,  Limitbd.    Madbas  :  HIGGINBOTHAM  k  CO. 

London  :  W.  THACKER  k  CO. 


1898. 


<« 


M2I& 


CALCUTTA  ; — PRINTED   AT  THE   BAPTIST  MISSION   PRESS. 
1898. 


MAR  2    1909 


I 

J 


TAGORE  LECTURES,  1891-92. 


TABLE  OF  CONTENTS  TO  VOLUME  IIL 

Paff9. 
1788-     (888.)    Definition  of  Divorce.    Oontonte  of  Part  II    ...  ...  ...  1 

1789.  (889.)    Contents  of  flnt  Chapter  ...  ...  ...  ...        ih. 

1790.  (880.)    Contents  of  first  Section  ...  ...  ...  ...        ib. 

1791.  (881.)    Words  denoting  divorce  will  cause  divorce  whatever  be  the  intention : 

Words  denoting  mere  intention  not  snfflcient                 ...                ...  ib, 

1792.  (882.)    Effect  of  the  nse  of  a  partionlar  set  of  words                  ...               ...  2 

1798.     (888.)     Express  or  9nreeh  words  of  divorce  do  not  require  intention  to  sup- 
port them.    Illustrations             ...                ...                ...                ...  ib, 

1794.  (884.)    When  a  leasee  has  passed  a  decree  of  divorce  on  the  testimony  of 

competent  witnesses,  the  decree  is  irrevocable.    Dlustrations        ...  3 

1795.  (895.)    If  "  Yes  "  (or  Naam)  is  spelled  out  and  not  uttered  in  answer  to  the 

question — "Have  you   divorced   your  wifeP"   the  effect   will  be 
divorce     ...  ...  ...  ...  •••  .••        tb. 

1796.  (896.)    Of  tlie  effect  of  a  husband  saying  to  the  wife,  "Every  woman  whom  I 

shall  marry  is  divorced  and  you  are  divorced,"  and  the  husband's 
explanation  thereof    ...  ...  ...  ...  4 

1797.  (S97.)    Of  a  man  saying,  "Every  woman  that  I  shall  .marry  is  divorced  and 

you  (too)"  ...  ...  ...  ...  ...        ib, 

1798.  (898.)    And  if  he  says,  "  The  woman  so  and  so,  whom  I  shall  marry  to-morrow, 

.  she  shall  become  divorced  and  you  (too) "    ...  ...  ...        ib* 

1799.  (899.)    Of  the  effect  of  a  man  saying,  "  The  woman  I  shall  marry  to-morrow, 

she  shall  be  divorced  and  you  (too)  "  ...  ...  ...        ib. 

1800.  (900.)    And  if  he  says,  "Every  woman  I  shall   marry   and  my  wives    are 

divorced"  ...  ...  ...  ...  ...  6 

ISOl.     (901.)    Of  the  effect  of  a  man  saying  to  his  two  wives,  "  This  is  divorced  and 

this  (too) "  .••  ...  «.•  ...  ...        ib, 

1802.  (902.)    Of  a  man  saying  in  respect  to  his  wife  "  divorced  *'  when  he  has  one 

well-known  wife         •••  ...  ...  ...  ...        ib, 

1803.  (903.)    Of  the  effect  of  a  man  who  has  two  well-known  wives  saying,  **  My 

wife  is  divorced "       ...  ...  ...  ...  ...        ib, 

1804.  (904.)    Of  the  effect  of  a  man  saying,  "  I  owe  to  my  wife  one  thousand 

dirhems"  and  he  has  a  well-known  wife      ...  •••  ...        ib, 

IS06.    (906.)    And  if  he  says,  "  My  wife  is  divorced  and  I  owe  her  a  thousand  dir- 

hems"       •«•  ...  ...  ...  •••  ...        ib. 


11 


INDEX. 


isoe. 

(906.) 

1807. 

(907.) 

1808. 

(908.) 

1809. 

(909.) 

1810.  (910.) 


1811.  (911.) 


1812. 

(912.) 

1818. 

(918.) 

1814. 
1815. 

(914.) 
(916.) 

1816. 

(916.) 

1817. 

(917.) 

1818. 

(918.) 

1819.  (919.) 


1820. 
1821. 


(920.) 
(921.) 


1822.  (922.) 


1828. 
1824. 


(923.) 
(924.) 


1825.  (925.) 


1826. 
1827. 


8.) 
(927.) 


1828.  (928.) 


Of   the  effeofc  of   a  man  saying,    "  My  wife  ia  divorced "  and  then 

shortly  after  saying,  "  I  owe  to  my  wife  a  thonsand  dirhems  " 
Of  the  effect  of  a  man  having  two  wives,  &c.,  &o.,  saying,  "  My  wife  is 

.  divorced,  my  wife  is  divorced/'  &c.,  &c. 
A  woman  says  to  her  hnsband,  "  Divorce  me, "  and  the  hnsband  says 

"  I  have  done  so,"  what  is  the  effect  ? 
Of   a  woman  saying  to  her  hnsband,  "  give  me  three  divorces  "  and 

the  hnsband  says  "  I  have  done  so, "  or  he  says,  *'  I  have  divorced 

thee,"  Ao.f  &o. 
A  man  says  to  his  wife,  "Divorce  yonrself "  and  she  says,  "I  am  nnlaw- 

fnl  to  yon"  or  "  I  am  separated  (bain) "  or  "  I  am  without  you" 

or  "  released  from  yon  "  is  sufficient  to  cause  divorce     ... 
Of -a  man  sayiog  to  a  woman  ''Oomrah,  the  daughter  of  Soobah,  is 

divorced,"    whilst    his    wife    is  named   Oomrah,    but  she   is  the 

daughter  of  Hufa.     Other  cases   .. 
Of  the  effect  of  a  man  saying,  *'  My  Negro  wife  is  divorced  "  whilst 
-   his  wife  is  not  of  Negro  origin    ...  ...  •.. 

Of  the  effect  of  a  man  saying,  "  My  blind  wife  is  divorced "  pointing 

to  his  wife  who  is  not  divorced     ... 
A  peculiar  case. 
When  a  woman  meant  to  be  divorced  is  identified,  the  mention  of  a 

wrong  name  is  immaterial  ...  ... 

Of  a  man  saying  to  his  wife,  "  MThen  I  shall  divorce  thee,  thou  shalt 

be  divorced,"  &o.,  &o. 
Of  the  result  of  a  man  saying,  "  Whenever  (iooUuma)  I  shall  divorce 

thee,  thou  art  divorced  "  and  then  divorcing  her  once 
Three  divorces  will  result  from  a  man  saying,  "  Whenever  the  divorce 

caused  by  me  shall  be  caused  on  thee,  thou  shalt  be  divorced  "  and 

then  divorcing  her  once 
Of  the  effect  of  a  man  saying  to.  his  wife,  "  Thou  art  divorced  ;  thou 

art  divorced  "  without  using  the  word  *' and  "  .., 

Of  a  case  where  one  divorce  will  be  effected     ... 
Of  the  meaning  and  effect  of  using  the  phrases  *'  Aammut-ul-Tulak  " 

or  "  Jool-ul-Tulak,"  Ac,  Ac. 
Of  the'  ^ect  of  a  man  saying,  **  Thou  art  divorced  by  most  of  the 

divorces"  (Aksur-uUTulak) 
Of  the  effect  of  a  man  saying,  "Thou  art  divorced  by  numbers 
Of  the  resnit  of  a  man  saying, "  Thou  art  divorced  until  three  divorces 

are  complete"  ...  ...  ...  ...  „. 

Of  the  husband  saying  to  his  wife,^*  Thou  art  divorced  by  every  portion 

of  a  single  divorce  "  (Eool-ul-Tutleekut)     ... 
Instances  in  which  three  divorces  will  be  caused  ...  ••• 

Of  a  man  saying  to  one  of  his  four  wives,  "  Thou  art  divorced  with 

«very  wife  of  mine,"  Ac,  Ac.      ...  ».. 

Of  the  effect  of  a  man  saying  to  his  wife,  **  Thou  art  divorced  three 

halves  of  divorce  "     „, 


Page, 

5 

6 

ib. 

ib. 


8 

ib, 
ib. 

ib. 

ib. 


ib. 

ib. 
ib. 

ib. 

11 

ib. 

ib. 

ib: 
ib. 

12 

ib. 


IKDHC. 


Ill 


1820. 

(92».) 

1880. 

(980.) 

1881. 

(881.) 

1882. 

(98a) 

1838..  (983.) 


1884. 
1886. 
1886. 

(984) 
(986.) 
(986.) 

1887. 
1888. 

(987.) 
(938.) 

1889. 
1S40. 

(939.) 
(940.) 

1841. 
1842. 

(941.) 
(9ffl;) 

1848. 
1844. 
1846. 
1846. 

(948.) 
1944.) 
(946.) 
(946.) 

1847. 

(947.) 

1848. 

(948.) 

1849. 

(949.) 

1850. 
1861. 

(960.) 
(951.) 

1862. 

(962.) 

1868. 

<963.) 

Page, 
The  UM  of  the  phrase,  "  Thou  &rt  diForoed  by  two  half  divorce  "  will 

canse  one  divorce      •..  «..  ...  ...  •..        12 

If  a  man  says,   "  Then  art  divorced  by  half   divorce   and  one- third 

divorce  and  one-fonrth  divorce, "  then  three  divorces  shall  be  caused, 

^kc,  &o»  ••#  ••••  «..  ..•  ..t        ih. 

A  man  is  old  that    "So  and  so  has  divorced  thy  wife^"  and  he  says, 

<'Wltat  he  has  done  is  good,"  or   <'What  he  has  done  is  bad." 

Difference  of  opiuion  among  lawyers  4,,  ...  ...        13 

When  a  man  says  to  another,  "  1  have  divorced  thy  wife,  "  and  the 

latter  says  by  way  of  sarcasm  "  Yoa  have  done  well,"  and  other 

cases         ...  ...  ...  ...  ..»  ...        ib, 

A  man  says  to  his  wife,  "  Thon  art  divorced  by  the  number  of  the  hair 

of  Satan,"  one  divorce  shall  be  caused         .••  ...  ...        ib. 

A  similar  case  ...  ...  ..«  ...  ..*         14 

Another  similar  ease       ...  ...  ...  ...  ...        ib, 

A  man  says  to  his  wife,  "  Three  divorces  ace  upon  thee, "  she  shall  be 

divorced  thrice  ...  •••  ..•  ...  ...        t6. 

A  case  where- three  divorces  shall  be  caused     ««.  ...  ...        ib* 

Of  a  man  saying  in  Persian,  **  A  thousand  divorces  for  thee  I  have 

made  into  one,"  ^.,  Ao.  ...  ...  ...  •••         16 

Of  a  man  saying  to  his  wife  in  Persian,  "  To  thee  three  divoroes  "     ...        ib. 
Interpretation  ol  the  phrase,  "  I  have  given  divorce  to  thee  "  when 

said  in  Persian  ...  •.  •••  •••  •••        t6. 

The  use  of  an  ambiguous  Arabic  ezpressionr      ...  ...  «..        tflr« 

If  a  man  says  to  his  wife,  **  On  account  of  defect  I  have  returned 

thee, "  and  intends  thereby  divorce,  then  divorce  shall  be  caused, 

^.,  Ac.     ..»  •••  •••  «••  •••  •••        lo 

The  same  case  as  in  para.  936  ^  ..•  •••  ...        ib. 

Of  a  man  saying  to  hifrwife,  "  Thy  divorce  is  binding  upon-me,^'  &c.,  &o.        ib. 
Some  oases  in  which  lawyers  differ  in  opinion  ...  ...  ...        ib. 

Of  the  effect  of  a  man  saying  to  his  wife,  "  Oh,  the  divorced  one,"^  in 

different  cases  ...  ...  •«•  •.•  .••        17 

If  the  husband  says  to<  his  wife,  '<  I  haye  abandoned  thee  "  intending 

divorce  thereby,  then  divorce  shall  be  caused  «••  ...        ib. 

Of  the  effect  of  a  man  saying  to  his  wife^  *'I  hav»  given-  to  thee  (Aasto.) 

thy  divorce  by  way  of  a  loan       „*  «••  ...  •.•        ib. 

When  the  husband  says  to  his  wife,   *'  I  have  pledged  to  thee  thy 

divorce.  '*  The  correct  rule  is  that  no-divorce  is  caused,  &o.,  &c.  ..•  18 
Of  the  result  of  saying,  "  I  have  set  at  liberty  thy  divorce,"  Ac.  ...  19 
Divorce  shall  not  be- caused  by  the  husband  saying  to  his  wife,  "  I  have . 

turned  away  from  thy  divorce "  ...  ...  ...  ...        i^. 

If  a  man  addresses  his  wife  jointly  with  a  man  saying,  '*  One  of  you 

two  is  divorced,"  then  the  divoroe  shall  be  caused  on  his- wife  ...  ib% 
Of  the  result  of  a  man  addressing  his  wife  jointly  with  a  strange 

woman  and  saying,  **  I  have  divorced  one  of  yon  twa"  ..»       ibt. 


IT 


IirDEX. 


1854. 

(864.) 

1865. 

(865.) 

1860. 

(866.) 

1867. 

(867.) 

1868. 

(868.) 

1859. 

(868.) 

1860. 

(860.) 

1861. 

(861.) 

1862. 

(862.) 

1868. 

(868.) 

1864. 

(964) 

1666. 

(966.) 

1866.  (966.) 

1867.  (967.) 

1868. 

1869« 

1870. 
1871. 


(969.) 

(970.) 
(971.) 


1872.    (972.) 


Page, 

Of  fcho  roKilt  of  the  husband  joining  his  wife  with  a  qoadrnped  or  a 

■tone  and  saying,  "  One  of  yon  two  is  divoroed"  ...  ...        19 

If   the  man  joins  his  living  wife  with  his  deceased  wife,  and  says, 

"  One  of  yon  two  is  divorced, "  his  living  wife  shall  be  divoroed    ...        ib. 

Of  a  man  saying,  "  So  and  so  is  divorced  thrice,  and  so  and  so  is  with 

her"  ...  ...  ...  ...  ...  ...        2Ci 

If  a  man  says  to  his  four  wives,    "  Among  yon  is  one  divorce, "  each 

of  them  shall  have  one  divorce   ...  ...  ...  ...        i&. 

And  if  he  says,  "  Among  yoa  are  five  divorces^"  then   each  wife  shall 

have  two  divorces      ...  ...  ...  ...  ..•        31 

A  case  where  a  man  says  to  bis  f oar  wives,  *'  I  have  rendered  yon 

partner  in  one  divorce "  ...  ...  ...  ...        «&• 

If  a  man  intends  to  say,  ^  I  divorce  yoa, "  he  most  ose  the  past  tense 

and  say  <' I  have  divoroed  yon,"  &o.,  &o.      ...  ...  ...        «&« 

A  man  says  to  his  wife,  "  Thoa  art  divorced  three  times  every  year  " 

three  divorces  shall  be  caosed  instantly        ...  ...  ...        22 

If  a  man  says  to  his  wife  in  Persian,  *'  If  this  year  I  marry  a  woman 
then  she  is  divoroed, "  and  he  marries  a  woman  before  the  expiry 
of  the  year,  then  the  woman  shall  become  divoroed      ...  ...        %b. 

Of  the  result  of  a  man  who  has  divorced  his  wife  saying  to  her  daring 

Iddut  "  Verily  have  I  divorced  thee ,"  or  similar  phrases  ...        tb. 

A  man  says  to  his  wife,  "  Thoa  art  divorced  or  not, "  No  divorce  shaU 

be  cansed  according  to  the  three  Imams.    Other  oases  ...        tb. 

Effect  of  certain  statements  made  by  a  husband  in  reply  to  a 
wife's  request  to  give  her  divorce.  [His  statements  '*  Consider 
that  I  have  given,"  *'  Consider  that  I  have  done,"  "  Be  it  that 
I  have  given,"  "Be  it  that  I  have  done"  do  not  constitute 
divorce  if  he  does  not  intend  to  divorce.  They  constitute  one 
reversible  divorce  if  he  does.  His  statements  *'  I  have  done, " 
'*  I  have  given, "  *'  It  has  been  done, "  etc.;  amount  to  reversible 
divorce,  —  intention  immaterial.]  ...  ...  ...        24 

The  effect  of  the  husband's  statement,  *' Consider  thyself  not  kept" 
in  reply  to  wife's  request,  "  Do  not  keep  me, "  depends  upon  the 
husband's  intention     ...  ...  ...  ...  •..        25 

The  effect  of  the  husband's  statement,  **  Consider  that  I  have  with- 
drawn it "  in  reply  to  wife's  request,  depends  upon  the  husband's 
intention  ...  ...  ...  ...  ...  ...        ib, 

Bffect  of  the  statement,  **  It  is  true  that  on  her  (he)  has  given  a 

thousand  divorces "  ...  ...  ...  ...        ih, 

Bffect  of  the  statement,   "  Thou  art  not  to  me  a  wife, "  **  I  am  not 

husband  for  thee "     ...  ...  ...  ...  ...        fb. 

Bffect  of  the  denial  by  a  husband  that  he  has  a  wife  ...  ...        tb. 

Effect  of  the  husband's  statement,  "  By  Gk)d,  thou  are  not  my  wife, " 

"  I  did  not  marry  thee, "  &c.        ...  ...  ...  ...        ih» 

Bffect  of  the  statement,  **  Every  one  of  my  wives  is  divoroed  "  ...        26 

Bffect  of  the  statements,  '*  I  have  divorced  yoa   once  completely  or 


INDKX.  ▼ 

Pag€, 
bain ''  md  of  "  I  have  given  a  xerenible  divoree  "  or  "  Given  yoa 
adiroroe"  ...  ...  •••  ...  ...        26 

1878.    (073.)     Bffeot  of  the  statements  by  which  a  portion  of  a  woman  or  oertain 

parts  of  her  body  or  her  blood  is  divorced  ...  ...  ...        t&. 

1874.  (974.)    Sfleot  of   the  statements,  *' Inform  my  wife  of  her  divoroe/'  "TeU 

her  that  she  is  diToroed  "  "  Tell  her,  then  art  diroroed  "  ...        27 

Authority  to  a  wife  to  diToroe  herself  ...  ••.  ...        ih. 

1875.  (975.)    Sifect  of  the   statement,  "  Write  to  her,  her  divoroe."    This  is  admis- 

sion of  diToroe,  whioh  takes  effect  whether   the  writing  does  or 

does  not  reach  the  wife  ...  ...  ...  ...        28 

1876.  (976.)    Legal  oonseqaenoe  in  oases  where  the  wife  is  diyoroed  **  like  the 

weight  of  a  Oanik  ",  Like  the  Sanja  of  a  Danik  and  moiety  or  "  like 

two  dirhems ,"  or  like  eight  two-anna  pieces,"  ^.         ...  ...        ib. 

1877.  (977.)    When  in  reference  to  t#o  wives  one  yalidly  and  the  other  invalidly 

married,  the  hasband  says,  "  One  of  yon  two  is  divorced, "  or  "  1  have 
diTorcedeither  of  yon  two"        ...  ...  ...  ...        29 

1878.  (978.)    When,  in  reference  to  two  wives  one  validly  and  the  other  inyalidly 

married  bat  bearing  the  same  name,  e.^.,  Zynub,  the  husband  says* 

**  Zynnh  isdiTorced"  ...  ...  ...  ...         %b. 

When,  in  reference  to  two  wives  one  validly  and  the  other  invalidly 

married,  the  husband  says,  **  One  of  my  wives  is  divorced  "       ...        ib, 

1879.  (979.)    When,  in  reference  to  two  similar  wives  or  to  a  wife  and  a  stranger,  the 

husband  says,  "  I  have  divorced  one  of  you  two"         ...  ...        %b, 

1880.  (980.)    When  a  husband  in  sleep  divorces  his  wife  and  awaking  ratifies  the 

divorce,  saying,  '*  I  permit  the  divorce "      •••  ...  ...        ib, 

1881.  (981.)    When  a  minor  or  a  stranger  on  behalf  of  the  minor  divorces  the  minor's 

wife,  and  the  minor  after  attaining  majority  ratifies  the  divorce   ...        80 

1882.  (962.)    When  the  husband,  divorcing  his  wife  while  asleep,  says,   *<I  have 

caused  that  divorce "  ...  ...  .„  ...        %b. 

Observations    in    Budd-ool-Hoohtar  on    (980),    (981),    and    (982), 

giving  reasons  for  the  distinction  made        ...  ,.«  ...        ib^ 

1888.     (988.)    When  the  husband  with  two  wives  says  to  one,  "  Thou  art  divorced 

four  times'*  and  then  says,  the  fourth  was  for  the  other  wife— > 

effect  of  this  on  the  other  wife  ...  ...  ,,^        31 

1 884.  (964.)  When  a  man  says  to  his  wife,  **  Yon  are  divorced  once  or  twice  "  ...  ib» 
1886.    (986.)      "Verily  Ood  has  divorced  thee"— two  meanings— does  the  legal 

consequence  depend  upon  the  intention  of  the  husband  P  ...        ib, 

1886.  (986.)     When  a  man  says  to  his  wife  in  anger,    "Oh,  thou  divorced  a 

thousand    times",    or    "Thou  a  thousand-times-divorced    one," 

or,  "  thou  a  divorced  woman  "  or  "  thou  a  thrice-divorced  woman  "  82 

1887.  (987.)    When    a  husband  having    intention  to  divorce  says,  "Go  thou  a 

thousand  times "       ...  ...  ..•  ...  ...        ib, 

1888.  (988.)    When  a  man  having  lived  with  his  wife  divorces  her  once,    and  tl^n 

says,    "  I  have  rendered  the  divorce  complete "  ...  ...        ib. 

Note.    Budd-ool-Moohtar  •••  «••  ...  ,,.       83 


VI 


INDEX. 


(995.) 


fage. 

1889.  (989.)    When  a  man  having  lired  with  hia  wife,  divorces  her  once,  and  sajs 

. .  daring  the  Iddnt,  "  I  have  rendered  obligatory  on-  mj  wife  three 
divorces  with  that  divorce, "  &o.  ...  •••  •••        84 

1890.  (990.)    When  a  man,  divorcing  his  wife  once,  revokes  the  divorce,  and  then 

flays,  **  I  have  rendered  that  divorce  complete."  «..  ...        ib, 

1891,.  (991.)    Effect  of  the  declaration,  "  When  I  shall  divorce  thee  once,  then  that 

divorce  shall  be  complete "  ...  •••  «».  •..        ib. 

Distinction  between  "  If  yon  enter  this  honse,  yon  will  become  thrice 
divorced,"  and  "  If  yoa  eater  this  honse  yon  will  become  divorced," 
the  latter. being  followed  by  a  snbaeqaent  declaration,  viz,,  "I  render 
that  divorce  complete "  «..  «,•  ...  ...        ilr, 

1892.    (992.)    Effect  of   the  declaration,    **  When  then  shalt  enter  the  honse,  then 
thoa  shalt  be  divorced,"   followed  before  entry  in  the  honse  by 
another  declaration,  vis.,  "  I  render  this  divorce  complete  "  •••       ib, 

1898.    (998.)    Repetitions  in  cases  of  divorce  have  the  result  not  of  TaJceed  bat  of 
Taseea.    Effect  of  the  expression —  **  One  divorce  npon  thee  "  repeat- 
ed thrice  ...  ...  ...  <..  «..        86 

1894.     (994.)    Meaning  of   the  phrase,     "  Divorce  npon  thee."    Its  effect  when  the 

intention  is  to  cause  three  divorces  ...  .«.  ...        86 

Effect  of  the  mis-spelling  or  mis-pronunciation  of  the  word :  '  Tnlak '  ib. 

When  a  man  says,    '*  1  have  divorced  my  wife  "  without  knowing  the 
meaning  of  the  word  '  divorce.'    Reason  for  the  rigour  of   the  rale 
stated        ...  ...  ...  ...  ...  ...        87 

Effect  of    the  statement,  "  Thou  art  divorced  if  God  wills,*'  the  hus- 
band knowing  or  not  knowing  the  meaning  of  the  words,    "  if    God 
wills"       ...  ...  ...  ...  ...  ...        38 

Effect  of  a  slip  of  the  tongue         ...  ...  ...  ...        42 

Effect  of  the  utterance  of  the  word  "  Divorce, "  by  a  slip  of  the  tongue        i6i 
Meaning  of  the  phrase  "  Divorced  in  two  colours  "  ...  ...        43 

Meaning  of  the  phrase :  *'  Thou  art  divorced  and  thou "  ...        ib. 

In  answer  to  the  wife's  demand  for  divorce,  the  hnsband  says  with 
hesitation :  "  I  gave."    —  It  effect  ...  ...  ...        ib-. 

Signification  of   the  phrase,    "  Gk>  thou  a  thousand  times  "    when 
divorce  is  intended.    ...  ...  ...  «..  ...        ih. 

Effect  of  the  words,  **  Thou  art  divorced  "  if  repeated  twice,  to  a  wife 
with  whom  the  husband  had  or  had  not  cohabitation     *,.  ...        44 

Meaning  of  the  phrase,  "  Thou  art  divorced  once,  not  but  two  **       ...        ib. 
Meaning  of  the  phrase,  **  To  thee  divorce, "  &o,  •••  ...        ib. 

Effect  of  the  expression,  "  I  have  given  thee  one  divoree,"  followed 
after  some  silence  by  the  expressions  *'two  divorces  and  three 
divorces"  «..  ...  ...  ...  ...        ib\ 

1908.  (1008.)    Meaning  of   the  expressions,   ''Two  divorces,"  "and  two  divorces" 

when  they  follow  the  expression  "  To  thee,  one  divorce  "  «..        ib, 

1909.  (1009.)    Effect  of  the  expression,  '^  To  thee  three "      ...  «..  ...        45 

1910.  (1010.)    Effect  of  the  expression,  "  Thou  art  one,"      ...  ...  ...        ib, 

1911.  (1011)    Effect  of  the  expression,  "  Thou  ait  three "  ...  ...  .^        t^ 


1895. 
1896. 


1897.    (997.) 


1898. 

(998.) 

1899. 

(999.) 

1900. 

(1000.) 

1901. 

(1001) 

1902. 

(1002.) 

1908. 

(1003.) 

1904. 

(1004) 

1906. 

(1005.) 

1906. 

(1006.) 

1907. 

(1007.) 

INDBX. 


VU 


1912. 
1913. 
1914. 
1915. 

(1012.) 
(1013.) 
(1014.) 
(1016.) 

1916« 
1917. 

(1016.) 
(1017.) 

1918. 

(1018.) 

1919. 

(1019.) 

1920. 

(1020.) 

1921. 

(1021.) 

1922. 

(1022.) 

1928. 

(1023.) 

1924. 

(1024.) 

1925. 

(1026.) 

19264 

(1026.) 

1927. 
1928^ 
1929. 
1980. 

(1027.) 
(1028.) 
(1029.) 
(1080.) 

1981.  (1031.) 


1932. 
1933. 
1984. 

1985. 

1936. 


(1032.) 
(1033.) 
(1034.) 

(1085.) 

(1086.) 


Page, 
Meaning  of  the  worda,  "  Oh !  thou  of  a  thousand  divorces  go  away/*  Ac.        45 
Meaning  of  the  expression  *'  Take  three  divorces  along  with  thyself  "        i6. 
Effect  of  the  phrase,  '*  Consider  thyself  as  not  kept"     ...  ...        %b. 

Effect  of  the  phrase,  "  Consider  that  it  has  been  so  said  "  ;  reference 

being  to  three  divorces  ...  ...  ...  ...        t5. 

Meaning  of  the  phrase,  "They  have  given  thee  three  divorces  "     ...        46 
Meaning  of  certain  phrases  referring  to  reconciliation  between  hns<* 

band  and  wife  ..»  ...  ...  ...  ...        i5. 

Meaning  of  the  phrase,  "  Two  divorces  have  already  happened,  and 

this  becomes  another  divorce  ",  when  nttered  after  a  re  -marriage  ...        %b. 
Meaning  of   the  phrase,  "  Thon  art  divorced  more  than  one  and  less 
•    than  two"  •••  •••  ...  ...  ...        «$« 

When  a  man  having  one  wife  only  says,    "  One  wife  of  mine  is 

divorced"  ...  •••  •••  ...  ...        %b. 

When  a  man  repeats  thrice  "  Thoa  art  divorced  thrice,"  and  says  that 

the  second  and  the  third  expressions  were  intended  for  clearness  ...^        ih. 
When  a  man  says,  "  Thoa  art  divorced  ",  and  explains  away  the  word 

•divorce'...  ...  ...  ...  ...  ...        47 

When  a  man,  in  answer  to  a  qnestfon  says,  in  the  presence  of  his  wife 

*'Bvery  wife  I  have. is  divorced"  ...  ...  ...        %h. 

When  a  wife,  talking  with  her  husband  about  divorce,  says,   '*  I  have 

divorced  myself "       ...  •••  ...  ...  ...        t&. 

Meaning  of   the  expression,   '*  I  do  wish  that  yon  should  divorce  my 

wife"         ...  ...  •••  ...  ...  ...        td. 

-  Effect  of  a  stranger  giving  three  divorces  after  hearing  an  expression 

of  desire  by  the  husband  to  give  divorce    •••  ..-.  ....       %b. 

Effect  of  an  insane  man  divorcing  his  wife     ...  ...  ...        48 

Effect  of  divorce  pronounced  by  an  idiot         ...  ...  ...        ib. 

Distinction  between  a  lunatic  and  an  idiot       ...  ...  ...        «6. 

Effect  of  the  expression,   *'  Verily  did  I  divorce  my  wife  "  if  uttered 

after  the  divorce  was  once  pronounced  by  the  husband  while  suffer- 
ing from  a  malady  called  ^isram  ...  ...  ...        49 

Meaning  of    the  expression,  Thou  art  divorced  once  every  day  and 

twice  every  two  days "  ...  ...  ...  ...        ib. 

Meaning  of  the  expression,  "  I  have  given  to  thee,  the  last  of  divorces"        50 
Meaning  of  the  expression,  " Divorced  np  to  one  year"  ...        i&. 

Effect  of  the  expression,   *'  A  thousand  divorces  have  I  put  into  thy 

skirt "  when  expressed  in  Persian,    Intention  here  is  essential     ....       61 
Besult  of  the  expression,  —  "  Put  down  three  divorces  in  this  place  "  ^ 

used  by  the  wife  in  a  quarrel  with  her  husband  who  is  a  weaver  ...        t&. 
The  effect  of  the  expressionsr    "  The  women  of  the  universe  or  the 

women  of  the  world  are  divorced."    "The  women  of  Bagdad  are 

divorced,''  ••.  .•»  ..»  ••.  ••»       fb. 


Vlll 


INDEX. 


1087.    (1087.) 


1038. 
1080. 
1040. 

1041. 
1048. 


(1088.) 
(1089.) 
(1040.) 

(1041.) 
(1042.) 


1048.  (1043.) 


1044. 
1045* 

1046. 
1047. 

1048. 
1040. 
1050. 
1051. 
1052. 


(1044.) 
(1046.) 

(1046.) 
(1047.) 

(1048.) 
(1049.) 
(1060.) 
(1061.) 
(1062.) 


1058.    (1068.) 


1054. 

(1064.) 

1066. 

(1066.) 

1066. 

(1066.) 

1067. 

(1067.) 

1068. 

(1068.) 

1060. 

(1069.) 

1060. 

(1060.) 

1061. 

(1061.) 

1062. 

(1062.) 

1068. 

(1068.) 

1064. 

(lOM.) 

1066. 

(1066.) 

1066. 

(1066.) 

1067. 

(1067.) 

1068. 

(1068.) 

1060. 

(1069.) 

1070. 

(1070.) 

1071. 

(1071.) 

Page, 
"  Diyoroed  aoQording  to  the  saying  of  tlie  lawyera"  ot  "aooording 

to  the  layiDg  of  the  Kazees "      m^                ...                ...                ...  62 

When  a  man  forgets  how  many  times  he  diroreed  his  wife               ...  i6. 

Q.  " Is  this  thy  wife  with  three  divoroes.    A.  "  Tes "       ...                ...  68 

A  man  says  to  his  wife,  "  Say  then,  I  am  diyoroed  *'  and  the  wife 

does  not  say  it           ...               ...                ...               ...               ...  ib. 

"  Thoa  from  me  art  three "            ..^.                ...                ...                ...  tb. 

.  A  man,  on  his  wife's  demand    for  diyoroe,    points    three  finger 

towards  her               ...                ...                •••                ...                ...  %b, 

A  man  taking  hold  of  a  wrong  person  and  thinking   that  she  is  his 

wife  Oomra,  says,  **  Oomra  thou  art  diroroed  "              ...                ...  64 

"What  has  divorce  done  and  what  not"          ...                ...                ...  ib. 

The  wife  says,  "  Diyoroe  me."    The  husband  replies,   "  Thou  art  not 

wife  to  me"                ...                ...                ..                ...                ...  ib. 

"Then  art  single"        ...                ...                ..•                ...                ...  ih. 

When  a  man  in  prononncing  diroroe  is  intemipted  and   then  says, 

« this  is  the  second  "  or  "  this  is  the  third"                   ...               ...  ib. 

Effect  of  omitting  to  articulate  a  portion  of  the  word  "  Tnlak  "        ...  ib. 

When  a  man  says  simply  "  Ta"     ...                ...                ...                •••  65 

"  For  ever "  and  "  given  "                ...                ...                ...                ...  66 

"  Divorced  from  head  to  foot "       ...                ...                ...                ...  %b. 

A  man,  intending  to  say  to  his  wife  "  Thou  art  divorced  thrice,'* 

says,  '*  Thou  art  divorced "         ...                •..                ...                ...  tb. 

"  I  have  given  to  thee  the  act  of  divorcing  thyself."  or  *'  I  have  made 

a  gift  to  thee  of  thy  divorce "     ...                ...               .,.                ...  ib. 

<^ I  have  made  a  gift*                      ...                ...                ...                ...  ib, 

'*  Option  of  three  days"                 •••                •••                ...                ...  67 

*' I  have  named  thee  divorced"      ...                ...                ...                ...  ib, 

"Divorced  according  to  the  number  of  the  stars"  or  "according  to 

the  nnmber  of  dast  particles,  Ac."               «.•               ...               ...  ib. 

"  Divorced  once,  like  three "          ...                ...                ...                ...  68 

Divorced   "like  the  pillars"   or  " like  the  mountains "  or  "like  the 

rivers        ...                •••                ...                ...                ...                ...  ib, 

"One  and  twenty,**  "one  and  ten"                 ...               ...               ...  ib. 

•'Take  two"                  ...                ...                ...                ...                ...  69 

"  If  thon  be  my  wife,  then  thoa  art  divorced  thrice "       ...               ...  ib. 

"  Thoa  art  divorced  every  time  that  I  drink  *'                   ...                ...  60 

"  Thou  art  divorced  by  every  unit  of  the  divorce  "          •••                ...  ib. 

A  son-in-law  says,   "  I  have  given  one  divorce  to  thy  daughter  **      •.•  61 

A  man  says  to  his  wife,    "  To  thee,  one,*'  or  "  To  thee,  three,'*       ...  ib, 

"  Thou  art  one  '*  or  "  thou  art  three  *'             ...               ...                ...  ib. 

"  This  wife,  wha  is  mine,  is  with  three*'           ..                ...                ...  ib. 

**l  have  withheld  my  hand  from  thee ;  *'  when  after  it  is  said,  it  is 
repeated  at  the  request  of  the  wife  so  that  witnesses  might  hear, 

and  again  repeated  in  reply  to  the  inquixy  of  a  stranger                 ...  ib. 

"  Do  thou  remain  with  three  divorces "            ...                ...                ...  62 

Divorced  so  many,  8o  many "         ...                ...                ...                ...  ib. 


INDEX. 


IX 


1972. 
1973, 
1974. 


(1072.) 
(1073.) 
(1074.) 


1976.  (1075.) 


1976. 
1977. 
1978. 

1979. 
1980. 


1981. 
1982. 
1988. 


(1076.) 
(1077.) 
(1078.) 

(1079.) 
(1060.) 


(1081.) 
(1062.) 
(1063.) 


1984.     (106i.) 


1986. 
1986. 

(1085.) 
(1086.) 

1987. 

(1087.) 

1988. 

(1088.) 

1989. 

(1089.) 

1990. 
1991. 

(1090.) 
(1091.) 

1992. 

(1092.) 

1998. 

(1093.) 

1994. 

(1094.) 

1996. 

(1095.) 

1996. 

(1096.) 

1997. 

(1097.) 

1998. 

(1098.) 

2 

Spitting  with  intention  to  cause  divorce  ...  ...  ... 

When  a  man  says  that  he  diyorced  his  first  wife  when  he  had  none  ,.. 
The  wife  says,  "  Divorce  me  thrice ;  "  the  husband  says,  "  This  time, 

a  thousand  divorces" 
*'  Do  not  go  oat  of  the  house,  without  my  order ;  because  I  have  made 

a  vow  regarding  divorce ;  and  the  wife  leaves   the  house  without 

permission" 
Force  of  the  word  *Soomma'  or  then  ...  ... 

An  instance  of  divorce  ...  .... 

"  A  woman  is  divorced."    ^  I  haye  divorced  a  woman  thrice,*'  **  Oomra 

is  divorced" 
"  If  thou  my  wife,  three  divorces,"  suppressing  the  word  **  art " 
A  man,  erroneously  thinking  that  a  veiled  stranger  is  his  wife, 

says,  *'  If  1  have  a  wife  except  the  one  present,  then  she  is  divorced 

thrice"     ... 
A  man,  wrongly  thinking  that  his  wife  was  not  at  Tirmiz  says,  *'If  he 

has  a  wife  at  Tirmiz,  then  she  is  divorced  "  •.. 
When  the  expression    '  with  three  divorces '    is  nsed  separately  and 

after  a  pause  after  something  was  said  in  connection  with  divorce ... 
When  a  man  says  to  his  debtor,  "  Thy  wife  is  divorced  if  thou  does 

not  pay  this  day ; "  the  debtor  first  wrongly  pronounces  the  word 

nayim  for  naam,  and  then  correctly  says  it 
One  man  says  to  another,   "  Thy  wife  is  divorced  if  thou  hast  done 

this  thing."    The  latter  says,  "  with  a  thousand  divorces  " 
One  asks,   "  Hast  thou  a  divorced  one."    The  other  says :  No. 
A  man  repeating  another's  declaration    but  arriving  at  the  word, 

*' divorce,"  thinks  of  his  own  wife 
A  man  says  to  his  wife,    *'Thoa  art  divorced,"   and  adds,  after 

a  pause:  **  thrice"     ... 
A  man,  on  being  asked,  how  many  times  he  divorced  his  wife  after  he 
.  made  a  declaration  of  divorce,  says,  "Thrice" 
A  man  says  to  his  wife,   '*  Thou  art  divorced  once."    The  latter  says, 

"A  thousand  times."    The  husband  then  adds :  "  A  thousand  "     ... 
"  Thou  art  divorced  suAh  as  cannot  be  caused  on  thee  "... 
"  Thou  art  divorced  at  Mecca."  Conditions  of  divorce  that  are  valid 

distinguished  from  those  that  are  void,  **  Divoroed  in  the  night  and 

the  day."    "  Divorced  to-morrow  this  day."  Declaration  of  divorce 

in  which  two  successive  periods  of  time  are  mentioned  ••• 

"  Thou  art  divorced  this  day  and  when  to-morrow  comes  "  ... 

"  Thon  art  divorced  to-morrow,"  "in  the  sunrise,"  Ac. 
A   man   giving    divorce    to   a   slave- wife  in  certain  circumstances. 

Milk.i-Nikah 
A  slave  divorcing  his  free  wife  subject  to  a  condition 
"  I  am  divorced  from  thee  " 
A  divorce  by  an  apostate  is  ineffectual  ... 

A  divorce  given  by  a  husband  to  his  wife  an  apostate 


Page. 
62 
63 

ih. 


ib. 
ib. 
64 

ih. 
ih. 


ih, 
65 
ih. 

ih. 

ih. 
ib. 

66 

ih. 

ih. 


ih. 
67 


ift. 
69 

ib. 

70 
71 

72 
ib. 
ih. 


IKDIX. 


1999. 

(1099.) 

aooo. 

(1100.) 

3001. 

(1101.) 

8002. 

(1102.) 

8008. 

(1108.) 

8004. 

(1104.) 

2006.    (11O50 


2006. 
2007. 


(IIOG.) 
(1107.) 


2008.    <1108.) 


Section  II. 

On  dito&cb  by  indtrkct  expbvsbions  (ob  Einataat)  and  implications  (ob  Mudloolat.) 

Fage, 
Kinajaat  or  indireofc  expressions  defined.    Three  classes.  Rules  for 

deducing  legal  inferences  as  to  divorce  from  indirect  expressions  72 

The  first  class  in  which  the  indirect  expressions  are  nsed  while  the 
will  is  nninflaenced  by  anger  or  dispute        ...  ...  ...        75 

The  second  class  in  which  the  inject  expressions  are  nsed  while 
divorce  is  discussed    ...  .•-  ...  ...  ...        ih. 

The  third  class  in  which  those  expressions  are  nsed  in  anger  or  by 
way  of  threat  ...  ...  ,..  «..  ...         ih. 

Legal  effect  of  the  first  class  ...  ...  ...  ...        ib. 

Leg^l  effect  of  the  second  dlass.    Divorce  caused  by  the  use  of  eight 
indirect  expressions,  if  they  are  used  while  the  topic  of   divorce  is 
discussed  •••  •••  ••••  ...  ...  ...         ib. 

Divorce  takes  effect  when  three  out  of  these  eight  are  used  in  anger, 
.  even  when  intention  is  not  expressed.    Effect  of  the  other  five.     In 
respect  of  these,  difference  of  opinion  ...  ...  ...        76 

To  these  five,  Abu  Tusoof  added  four  others  ...  ...  ...        \b. 

Besides  these  eight  indirect  expressions  in  twelve  other  indirect  ex- 
pressions, intention  essential      ...  ...  ...  ...         77 

"  I  have  made  a  gift  of  thee  to  thy  father,"  "  to  thy  mother,**  "  for 
husbands,"  divorce  shall  be  caused,  but  "to  thy  maternal  uncle,"   to 
thy  brother,"  &c.,  divorce  shall  not  be  caused  ...  ..  t&. 

"  Go  away  from  this  place "  ...  ...  ...  ...        ih, 

<*  I  have  separated  thee, "  ko»        ...  ...  ...  ...        ih, 

"  There  is  no  marriage  between  me  and  thee  "  ...  ...        78 

*'  Thou  are  not  my  husband, "  &o,  ...  ...  ...  ...         ib. 

"  Thou  art  nothing  to  me "  ...  ...  ...  ...         ib. 

"  There  does  not  remain  between  me  and   thee  any  act."    "  I  am 

.  released  from  thy  marriage "      ...  ...  ...  ...        «6. 

''  I  have  no  necessity  for  thee,  **  &o,  ...  •••  ...        79 

"  Do  thou  get  at  a  distance  from  me "  ...  ...  ...         ib. 

^  Go  thou  and  sell  this  cloth "        ...  ...  ...  ...        ib. 

*' Four  ways  are  open  to  thee "      ...  ••.  ...  ...        ib, 

**Thoaart  three  times  just  now"  ...  ...  ...        80 

When  under  circumstances,  a  husband  says,   "  Thou  art  at  liberty 
to  take « husband  or  lover"         ...  ,..  ...  ...         ib. 

Whea  a  husband  erroneously  thinking  that  his  marriage  is  '  fadd,' 
says,  "  I  have  abandoned  this  marriage  which  is  between  me  and 
my  wife"  ...  ...•  ...  ...  ...        ib. 

Where  the  husband  says  to  the  wife,  "I  am  released  from  thy  divorce"        ib. 
The  husband  says  in  reply,   "  I  have  returned  to  thee "  ...        id. 

When  a  man  says  in  reply  to  his  father-in-law,    "  I  have  returned 
her  to  thee"  ...  ...  ••«  •••  ...        tb. 

W lien  a  maa  says  to  his  wife,  <*  Thou  art  abandoned"     ..•  ...        81 


8009. 

(1109.) 

8010. 

(1110.) 

soil. 

(1111.) 

8012. 

(1112.) 

2018. 

(1118.) 

8014. 

(1114.) 

8015. 

(1116.) 

aoie. 

(111«.) 

8017. 

(1117.) 

8018. 

(1118.) 

2019. 

(1119.) 

8080. 

(1120.) 

2021.  (1121.) 


2022. 
2028. 
2024. 


(1122.) 
(1123.) 
(1124.) 


2025.  (1125.) 


JNDIEX. 


21 


Page, 


2026.    (1126.) 


2027. 

(1127.) 

2028. 

(1128.) 

2029. 

(1129.) 

2030. 

(iiao.) 

2031, 

(1131.) 

2082. 

(1182.) 

2088. 

(1188.) 

2084. 

(1184.) 

2085. 

(1185.) 

2086. 

(1136.) 

2087. 

(1187.) 

2038. 

(1188.) 

2089. 

(1189.) 

2040. 

(1140.) 

2041. 

(1141.) 

2042. 

(1142.) 

2048. 

(1148.) 

2044. 

(1144.) 

2046. 

(1145.) 

2046. 

(1146.) 

2047. 

(1147.) 

2048.    (1143.) 


2049.  (1I49J 

2060.  01^) 

2061.  (1151.) 
2052.  (1152.) 

2059.  (1158.) 

2054.  (1154.) 


2055.    (1156.) 
ir056.    (1166.) 


When  the  answer  given  by  the  hosband  in  x^sponse  to  the  wife's 
demand  for  dirorce  is  ambigoona :  **  If  thou  desireth  a  thousand 
times''     ...  ...  ...  ...  •••  «.• 

I  am  disg^ted  with  woman  and  with  property  ...  »•« 

Nature  of  the  divorce  caused  by  indirect  expressions      ... 

Where  indirect  expressions  are  need  and  three  divorces  intended. 
Baddool  Moohtar  on  Tnkdeer  and  Mookaddnr  or  implied  divorce ... 

Intention  to  give  two  divorces  by  indirect  expression 

"  I  have  withheld  my  hand  from  thee  " 

"  I  have  untied  thy  leg "  ...  ...  ... 

"  With  one  divorce,  I  have  withheld  my  hand  from  thee  ** 

"  I  have  withheld  my  claws  from  thee "  ...  •••  ... 

'^  Thee  have  I  abandoned" 

"  I  have  withheld  my  hand  from  thee,  by  one  divorce  "  ••• 

"  I  have  abandoned *'     ...  ...  ...  ••• 

A  man  si^  to  a  slave  wife,  " Thou  art  separated  *'  ..« 

"  Observe  thy  Iddtf^  "  repeated  thrice-  ... 

When  the  hosband  repeating  that  ezpressioir,  assigns  ta  it  a  specific 
meaning  different  from  its  natural  meaning...  .•• 

**  Thou  art  divorced,  therefore  observe  thy  Iddut  *' 

'*  Thou  art  divorced  in  the  first  part  of  this  day  and  at  the  end  of 
it. "  "  The  end  of  this  day  and  the  first  part  of  it."  "  To-morrow 
and  to-day, "  &o.        ».»  ...  •.«  *r.  ..« 

"  Thou  art  divorced  like  a  thousand  "  ...  ..» 

"  Thou  art  divorced  once,  like  a  thousand, "  &c. 

Thou  art  divorced  the  dimensions  of  which  fills  the  whole  of  the 
house        ..«>  ...  **•  ••*■  ...  ••• 

"  Thou  art  divorced  like  the  mountaixv  " 

"  Thou  art  thus  divorced,'*  pointing  to  one  or  more  fingers  as  the 
case  may  be  ...  ...  ...  ...  ... 

**  Thou  art  divorced  like-  this,  pointing  to  three  divorces 


Section  III. 
On  ths  divobcb  of  those  who  hays  ho  undebstanding. 
Divorce  given  under  compulsion  or  in  drunkenness 
Divorce- given  by  a  man  intoxicated  against  his  will 
A  case  of  divorce  given  undbr  the  effect  of  drinking  Nuheefs 
Divorce  given  under  the  effect  of  drinking  wine  made  of  ribe  or 

wheat,  &o,  ...  ...  •.*  ■••  ... 

Divorce  given  in  jest   ...  •••  ...  ...  ... 

Divorce  given  by  a  person  who  has  lost  hfs  senses  through  taking 

hemp,  &o...«  »••  ..%  •*.-  tr.  .^. 


Section  IV. 
On  divorce  by  writinct. 
Customary  and  non*customary  writing 
Kaoifest  and  non-manifest  nou-oustomary  writings 


81 
ib, 
f&. 

ih. 
88 
ib. 
ib. 
ib. 
84 
ib. 
ib. 
ib. 
85 
ib. 

87 
90 


91 

92 

ib. 

93 

ib. 

ib. 
ib. 


94 

ib. 
ib. 

ib. 
ib, 

95 


95 

ib. 


Xll 


JNDSZ. 


2067. 

(1157.) 

2068. 

(1158.) 

2069. 

(1159.) 

2060. 
2061. 
2062. 

(1160.) 
(1161.) 
(1162.) 

2068. 

(1163.) 

2064. 

(1164.) 

2066. 
2066. 

(1165.) 
(1166.) 

2067. 
2068. 

(1167.) 
(1168.) 

Legal  effects  vary  aooordiog  as  the  different  kind  of  writing  is  resort- 
ed to  for  giving  diToroe  ...  ...  ... 

The  time  at  which  divorce  operates,  when  it  is  given  by  cnstomary 
writing,  either  absolately  or  sabjeot  to  a  condition 

"  When  thoa  reoeiveat  this  writing  of  mine,  then  thon  art  divorced." 
When  this  or  other  matters  written  along  with  it  are  stmck  ont    ... 

When  what  is  written  at  the  head  of  the  above  sentence  is  stmck  ont 

Keaning  of  **  This  writing  of  mine  "  ... 

When  the  hnsband  writes  abont  divorce  in  the  middle  of  the  writing 
and  strikes  out  the  clanse  regarding  divorce 

When  the  hnsband  writes  abont  divorce  at  the  end  and  strikes  ont 
what  precedes  the  divorce  clanse  ...  ••- 

f<  Every  wile  of  mine  excepting  thee  and  excepting  so  and  so  is 
divorced."    "  So  and  so"  is  etused  or  strnck  ont,— its  legal  effect ... 

"  Be  it  known  after  that  thon  art  divorced  thrice  if  it  pleaseth  God  " 

The  hnsband  writes  to  his  wife,    '*When  thon  receivest  this    my 

.  writing,  then  thon  art  divorced."  The  writing  reaches  her  father 
who  receives  and  tears  it. 

A  man  nader  compulsion  divorces  his  wife  in  writing 

Effect  of  Divoree  by  a  damb  man  by  means  of  sigas.  Difference  of 
opinion  of  ibe  different  schools 


2069.  (1169.) 

2070.  (1170.) 

2071.  (1171.) 

2072.  (1172.) 
2078.  (1173.) 
207  4,  (1174.) 


Page. 

95 

%b. 

96 
97 
98 

ih. 

ib. 

99 
%b. 


100 
ib. 

101 


,  CHAPTEE  II. 

On  conditions  in  divobce. 

Section  I. 

On  coNmTioNs  in  oenibal  eblatino  to  divobce. 

Condition  or  Taleek  defined.  Effect  of  the  husband's  statement :  "  If 
thon  art  my  wife,  then  one  divorce  and  three  divorces,  Ac. ;  "  when 
the  hnsband  afterwards  says  that  he  did  not  intend  divoroe 

Effect  of  the  statement,  "  If  thon  goest  to  the  honse  of  thy  mother, 
then  divoree  on  thee,"  when  afterwards  the  wife  goes  np  to  her 
mother's  honse  and  does  not  enter 

Consequences  of  the  following : — (1)  the  statement  of  the  hnsband 
that  the  wife  should  be  divoreed  if  she  did  an  unlawful  act  with 
any  one,  followed  hy  a  complete  divorce.  (2)  the  statement  to  the 
wife  that  every  woman  he  married  should  be  divorced  followed  by 
a  complete  divorce.    Difference  of  opinion  ... 

Effect  of  a  statement  with  a  negative  condition,  vie. :  **  My  wife  is 
from  me  with  three  divorces  if  yon  do  not  come  to  me  as  my  gnest," 
»c*  ...  ...  ...  ...  ...  «.* 

A  man  says,  "  If  I  take  a  wife,  excepting  so  and  so,  then  I  have 
given  a  thousand  divorces  "  or  "  every  wife  that  I  may  have  except 
thee,  is  divorced,"  and  then  married  again— their  effect  ••• 

Effect  of  the  statement,  '*  A  thousand  divorees  if  thon  do  snoh  and 
sach  an  act "  when  that  act  is  done  ...  ...  »• 


101 


102 


ih. 


103 


104 


ib. 


INDEX. 


X111 


Pag9. 


2076.    (1175.) 


2076.    (1176.) 


2077.    (1177.) 


2078. 
2079. 


(1178.) 
(1179.) 


2080.    (1180.) 


2081. 

(1181.) 

2082. 

(1182.) 

2088. 

(1188.) 

2084. 

(1184.) 

2086. 

(1186.) 

2086. 

(1186.) 

2087. 

(1187.) 

2088. 

(1188.) 

2089. 

(1189.) 

2090. 

(1190.) 

2091. 

(1191.) 

2092. 

(1192.) 

2098. 

(1198.) 

"  If  I  ever  QnltiTate  in  thia  village,   then  my   wife  shall  be   divorced. 

Meaning  of  the  term  '  onltivate.'    In  what  oircumstances  the  divorce . 

takes  e£!eot  '    ••• 

Bffeot  of  the  statement,  "  Thon  art  divorced  that  I   have  done  this 

act.''    Difference  of  opinion' as  to  its  effecting  an  instantaneoos  or 

conditional  divorce     ...  '«..  ... 

Gonstraotion  of  the  statement,  "  Thoa   art  divorced,  thon  shalt  not 

enter  the  honse "       ...  ...  ••• 

'*  Thon  art  divorced  thoa  hns  enterd  the  honse  " 

"Thon  art  divorced  if  thoa  shalt  enter  the  hoose,   1  shall   verily 

divorce  thee"  ...  ....  .... 

*'  Enter  the  honse  and  thou  art  divorced,'*  and  the  wife  enters  the 

honse 
Force  of  the  words,  " horgah  "  or  at  the  time;  "agar"  or  if 
"As  often  as  I  shall  sit  near  thee,  my  wife  shall  be  divorced,"  and  he 

sits  near  her  for  a  time 
"  Whenever  I  shall  strike   thee,  thon  shalt  be  divorced."    He  then 

strikes  her  ...  ...  ... 

"  As  often  as    I   divorce  thee,  thon  shalt  be  divorced."   He  then 

divorces  her  once   .    ... 
"  When  I  shall  divorce  thee,  then  thon  shblt  be  divorced,  and  when 

I  shall  not  divorce  thee,  then  thoa  shalt  not  be   divorced ;"  and  he 

does  not  divorce  her  until  he  dies 
"  When  I  shall  not  divorce  thee,  then  thon  shalt  be  divorced,"  and 

then  says,  "  and  when  I  shall  divorce  thee,  then  thoa  shalt  not  be 

divorced,"  and  he  does  not  divorce  her  until  he  dies      ••• 
"  If  I  do  not  divorce  thee  this  day  thrice,  then   thou  art  divorced." 

He    then   desires   that  his  wife   shoold  not  be  divorced.       The 

expedient  to  be  resorted  to  by  him  ... 

After  some  conversation  the  wife  asks  for  divorce,  and  the  husband 

says,  "  Ton  are  divorced  if  you  please."    The  wife  then  says,  "  I  do 

not  desire  it"  ...  ...  ...  ...  -     ... 

A  man  says  to  hicrwife,  "  If  I  talk  about  your   divorce,  then  my  slave 

shall  be  free,"  and  he  then  says,  "  If  yoa  desire,  then  you  are  divorc- 
ed," and  he  then  says,  "  I  do  not  desire" 
"  If  I  take  an  oath  regardiag  your  divorce,  then  you  shall  be  divorc- 
ed," and  he  then   says  :    "  If  you  enter  the  house,   you  shall  be 

divorced  if  it  pleaseth  God  "  the  Most  High  " 
"If  I    taka  an   oath . regarding    your  divorce,    then    you  shall  be 

divorced,  "  he  then  says,  "  You  are  divorced  if  it  pleaseth  God  the 

Most  High" 
"  If  I  do  not  remove  your  necessity,  then  my  wife  is  divorced  or 

my  slave  is  free ;  "  and  the  promiser  then  says,  *^  My  necessity  from 

you  is  that  you  should  divorce  your    wife   thrice" 
A  man,  promising  not  to  do  what  he  is  asked  not  to  do,  would  do  a 

certain  definite  act  though  prohibited  to  do  it  ...  -    ... 


105 


ih, 

106 
ih, 

ib, 

107 
ih, 

108 

109 

t6. 


110 


ih. 


ih. 


112 


113 


114 


ih. 


115 

ib. 


XIV 


1NDF.X. 


2094. 
2096. 


2096. 
2097. 
2098. 


ai94.) 

(1195.) 

(1196.) 
(1197.) 
U198.) 


2099.  (1199.) 


2100. 
2101. 

2102. 
2103. 
2104. 
2106. 

2106. 
2107. 
2108. 

2109. 

2100. 


(1200.) 
(1201.) 

(1202.) 
(1203.) 
(1204.) 
(1205.) 

(1206.) 
(1207.) 
(1208.) 

(1209.) 

(1210.) 


2111.     (1211.) 


2112.    (1212.) 


2118. 

(1218.) 

2114. 

(12U.) 

2116. 

(1216.) 

2116. 

(1216.) 

Page. 

The  hiLBband  makes  "Ela"  with  his  wife        ...  ...  ....      116 

An  impotent  husband  says,  "I  will  not  divorce  ray  wife;  if  I 
divorce  her,  she  shall  be  diyorced."  The  Eazee  then  separates  the 
hosband  and  wife       ...  ...  ...  ...  ...         ib, 

"  If  I  withhold  the  hands  of  this  woman  as  long  as  this  son  is  alive, 
then  my  slave  is  free."     He  then  makes  Khoola  with  her  ...        ih. 

A  man  swears  that  he  won't  divorce  his  wife,  and  the  husband  permits 

Khoola,    He  commits  breach  of  oath  ...  ...  ..        117 

A  man  swearing  that  he  will  not  divorce  his  wife  wishes  to  divorce 
her.  Expedient  to  be  resorted  to  for  not  committing  breach  of  the 
oath  •••  •••  ...  ...  ...  ...        %b» 

"  You  are  divorced,  if  you  enter  this  house,  and  if  you  enter  this 
other  house"  ...  ...  ...  ...  ...        ih. 

"  Thou  art  divorced  once,  if  thou  enter  the  house  "  ...  ...      118 

"  Thou  art  divorced  once,  if  thou  shalt  desire  twice,"  and  the  wife 
desires  twice  ...  ...  ...  ...  ...        ib. 

"Thou  art  divorced  if  thou  enter  the  house;  thou  art  divorced"...        t6. 

*'  Thou  art  divorced  if,  thou  shalt  enter  the  house  thrice  "  ...        ib. 

"  Thou  art  divorced,  if  thou  enter  the  house  ten  times  "  ...  ...       119 

"  Thou  art  divorced,  if  thou  enter  the  house ;  thou  art  divorced,  thou 
art  divorced"  ^  ...  ...  ...  ...        ib. 

A  man  says  :  "  My  wife  is  divorced  thrice  if  I  enter  the  house  to-day  "        ib, 

**  If  thou  shalt  not  inform  me,  then  thou  art  divorced  thrice  "  ...       120 

"  Thou  art  divorced  if  I  speak  to  thee  for  a  year,  go  away  thou,  "  Oh, 
enemy  of  God  ...  ...  ...  ...  ...        %b» 

Effect  of  calling  a  wife's  son  "  Oh,  thou  son  of  a  whore  **  when  a  man 
says  to  her,  "  If  I  call  thee  '  Oh,  thou  whore  '  then  thou  art  divorced  "        ib. 

Inheritance  devolves  on  a  deceased  woman's  first  husband,  although 
he  may  have  divorced  her  without  having  sexual  intercourse,  and 
she  may  have  married  another  husband  within  three  days  from  the 
day  on  which  the  divorce  wi^  pronounced  by  the  first  husband     ...        ib. 

Effect  of  the  two  expressions  addressed  to  the  wife,  a  girl  of  14 
years  or  to  a  slave,  a  lad  of  14  years.  '*  When  thou  art  with  menses 
thou  art  divorced— "  When  thou  shalt  have  emission  then  thou 
art  free     ...  ...  ...  ...  ...  ...      121 

Intention  essential  where  the  wife  says,  "Divorce  me,"  "Divorce 
me,**  "  Divorce  me,"  and  the  husband  says,  "  I  have  divorced  thee," 
but  when  these  expressions  are  joined  with  word  and  the 
three  divorces  shall  take  effect     ...  ...  ...  •••        »&• 

The  same  result  follows  where  the  wife  says,  authorise  me,  authorise 
me,  authonse  me,  and  where  she  joins  them  with  an  and  ...        ib. 

Devise  of  the  husband  where  he  says,  "  If  I  shall  have  intercourse 
with  thee  as  long  as  thou  art  with  me  then  tbou  are  divorced  thrice  "        ib. 

Effect  of  expression,  "  Thou  art  divorced  although  thou  might  enter 
the  house;"  and  other  forms  of  expressions  .„  ...      122 

Effect  of  expression,  "  Thou  art  divorced  if  "  without  Inrther  addi- 


INDEX. 


XV 


Page, 
tion  or  "Thoa  art  dworoed  thrice   or  not  "or  "And  but  (if  Zyd 
enters  the  hoase")  or  <<If  it  be"  or  <' If  it  be  not  (that  Zyd 
enters)      ..«  •••  •••  ••.  •••  •••       122 

2117.  (1217,)    A  man  in  consequence  of   stammering  delays  in  uttering  a  con- 

ditional diToroe  •••  •••  •••  •••  ..•        t&« 

2118.  (1218.)    A  man  states  a  portion  of  the  conditional  claose  and  does  not  com- 

plete it     •••  •.•  i.t  »••  •..  ••!         i6« 

21 19.  (1219L)    Meaning  of  ''  Thou  art  divorced  for  ever,  except  to-day"  ...  ...        ib. 

2120.  (1220.)    Meaning  of  ''Every  wife  of  mine  is  divorced  except  this, "  the  hus- 

band having  no  other  wife  ...  ...  ...  ...       123 

2121.  (1221.)    EfFect  of  "Divorce  me  thrice  "and  "Thou  art  divorced"  ...        id. 
2 1 28.    (1222.)    Effect  of  "  Divorce  me, "  and  "  Verily  have  I  divorced  thee  **             ..«        ib, 

2123.  (1223.)    Effect  of  "  Divorce  thee  thrice  "  and  "  Verily  have  I  done  so  "  ...        t&. 

2124.  (1224.)    A  woman  states  that  I  am  the  wife,  and  the  man  says,  "  This  woman 

is  not  my  wife,  bat  if  she  be  my  wife,  then  my  wife,  Zynub,  shall 

be  divorced"  ...  ...  ...  ...  ...        t&. 

2125.  (1225.)    The  defendant  in  a  suit  swears  on  his  wife's  divorce  that  nothing 

is  due  to  him  from  the  plaintiff,  and  the  Kazee  decrees  in  favour  of 

the  plaintiff  ...  ...  •••  ...  ...        ih. 

2126«  (1226.)  A  man  says  his  wife  is  divorced  if  he  has  done  such  and  such,  and 
commits  a  breach  of  his  oath,  but  he  can*t  remember  whetlier  he 
intended  single  or  triple  divorce  ..«  .••  ...       124 

2127.  (1227.)    A  man  says  to  his  wife,   "If   thou  enter  the  house  then   thou  art 

divorced,  and  then  says  to  his  other  wife,  "  And  thou  art  divorced"        tb. 

2128.  (1228.)    "  Thou  art  divorced  and  thou "       ...  ...  ...  ...        ib. 

2129.  (1229.)    "Thou  art  divorced  and  you  both"  ...  ..«  ...      125 
2I80.    (1230.)    "  Thou  art  divorced,  not  but  thou "                   ..*                ...                •..        ib. 

2131.  (1231.)    "  When  I  shall  divorce  thee,  then  the  other  two  are  divorced  "  ...        *6, 

2132.  (1232.)    "Oomra  is  divorced  at  present,  or  Zynub  is  divorced  when  I  shall 

enter  the  house "       ...  ...  ...  ...  ...       127 

2188.     (1233.)    Tbonart  divorcedor  lamnot  a  man"  ...  ...  ...        ib, 

2134.  (1234.)    A  man  addressing  his  wife,  Oomra  says,  "  If  thou  shalt  enter  the 

house.  Oh,  Oomra,  then  thou  art  divorced,  and  Oh,  Zynub  "  ...       128 

2135.  (1285*)    "  If  thou  shalt  enter  the  house,  if  thou  shalt  enter  the  house,  then 

thou  art  divorced "     ...  «..  ...  •••  ...        {&. 

2186*    (1286.)    A  man  says,  If  I  shall  say  to  thee,  "Thou  art  divorced  then  thou 

art  divorced,"  and  he  then  says,  "  Verily  have  I  divorced  thee  "  ...  129 
2137.     (1237.)    "  If  I  shall  marry  a  woman,  then  she  is  divorced,"  Ac.      ...  ...        ib, 

2188.  (1238.)    A  man  repeats.  "Thou  art  divorced"  thrice,  adding  "if  it  please 

Zyd  ;"  sjid  Zyd  says,  "  I  desire  one  divorce "  ...  ...        ib, 

2189.  (1239.)    ^My  wife  did  not  steal,  if  she  did  steal,  she  is  divorced."     Husband 

says  this,  at  the  request  of  the  wife,  who  afterwards  admits  her 
guilt  «.•  •••  .••  ...  «••  ...      130 

2140.    (1240.)    "If  I  ever  marry  a  Syeeba,  then  she  is  divorced"  ...  ...        ih, 

2141*    (1241.)    A  man  swears  to  divorce  his  wife,  were  she  to  steal  his  dirhems  for  a 

J^car         ..•  ...  ••«  *«•  ...  ,,.        jj». 


XVI 


INDRX. 


Page. 
2142*     (1243.)     "If   I  do   not  have  intercourse  with  my  wife  a  thousand  times  then 

she  is  divorced "  ...  ...  ...  ...  ...       131 

2143.  (1243.)    A  roan  BMrenrs  that  he  will  haye  intercourse  with  his  wife  this  night        t6. 

like  the  pearl 

2144.  (1241.)     Effect  of  a  man's  oath,  if  his  wife  gives  flour  belonging  to  him  to  any- 

body,   she  is    divorced  ...  ...  ...  ...         tb. 

2145.  (1245.)     '* If  my  wife  shall  wash  my  clothes  then   she  is   divorced"  ...         tb. 

2146.  (1246.)     *Uf  I  eat  oat  of  the  property  of  my  son-in-law,   then  my    wife    is 

divorced"  ...  ...  ...  ...  ...         ih, 

2147.  (1247.)     "If  I  read  the   Koran,  my  wife  is  divorced'^  ...  ...         ih. 

2148.  (1248.)     A  man  swears  that  his  son  shall  not  be  in  the  house         ...  ...       182 

2149.  (1249.)    A  man  swears  that  he  shall  never  enter  his  wife's  house;  and  the 

wife  sells  it  ...  ...  ...  ...  ...         ih. 

2160.  (1250.)     A   man  calls   his  wife  to  his  bed    ...  ...  ...  ...         ih, 

2161.  (1251.)    'Wf  the  animal  is  not  mine,  my  wife  is  divorced  "  ...  ...         %b, 

2162.  (1252.)     A  man  swears  that  he  will   not  take   intoxicating  drink,  and  is  after- 

wards seen  in  an  intoxicated   state,  what  conduct  should  the  wife 

pursue        ...  ...  ...  ...  ...  ...       133 

2153.    ( 1258.)     "  If  what  thou  shalt  do  shall  be  to  my  good  or  detriment,  then  thou  art 

so  and  so,  t.e.,  divorced "  ...  ...  ...  ...         ih. 

"If  thou  has  taken  any  out  of  these  dirhems,  then  thou  art  divorced  *'  ih, 
"If  thou  shalt  remain  my  wife   to-morrow,  then  thou  art  divorced'' 

On  the  second  day,  the  wife   says,   "  I  shall   not  remain   thy  wife"       134 
"  If  thou  shalt  remain  my  wife,  then  thou  art  divorced  thrice  "         ...         ih. 
"  If  thou  art  my  wife,  then  thou  art  divorced  thrice  "         ...  ...         ih. 

"  If  thou  art  my  wife  besides  to-morrow,  then  thou  art  divorced  thrice  "  135 
"  If  thou  shalt  quarrel  with  thy  son-in-law,  for  good  or  for  evil,  then 

thou  art  so  and  so "    ...  ...  ...  ...  ...        .t6. 

2160.  (1260.)    "If  I  shall  remain  in  this  house  this  night,  then  my  wife  is  so  and 

bo"  and  the  husband  attempting  to  go,  cannot  possibly  go  on 
account  of  fever  ...  ...  ...  ...  ...         %h. 

2161.  (1261.)    **  If  thou  hadst  been  my  wife/'   or  "  If  thou  art  my  wife,  then   thou 

art  divorced  thrice,"  and  the  effect  of  muhallil  after  the  divorce     ...       136 

2162.  (1262.)     '*  Dost  thou  love  her,  more  than  thou  lovest  me,  then  thou  art  divorced  " 

and  the  wife  says,  *'  she  loves  her  more  than  she  loves  him  "  ...         ih. 

2163.  (1263.)     '*  If  thou   shalt   go  out  without  my  order,  then   thou  art   divorced"         t6. 

2164.  (1264.)    The  husband  says,  **Go  thou  and  be  my  Vakeel  and  do  whatever  thou 

likest."  The  wife  replies,  "  If  I  am  thy  Yakeel,  1  have  withheld 
my  hand  from  thee  by  three  divorces."  The  husband  then  says,  "  I 
did  not  intend  that  thou  shouldst  be  my  Yakeel  in  this  matter  "        »b. 

2165.  ( 1265.)     ''My  wife  is  divorced  when  I  shall  not  go  out  towards  Koofa  "  and  the 

husband  tarries  for  some  reason  or  other      ...  .  ...  ...       137 

2166.  (1266.)     "  If  thou  remainest  hungry  in  my  house,  then  thou  art  divorced  "   ...        ih, 

2167.  (1267.)     "If  thou  shalt  stay  there  more  than  three  days,   then  thou  art 

divorced."  The  wife  comes  back  on  the  third  day  and  again  goes 
away         •••  •••  **•  •••  •••  •••        *b« 


2154. 

(1254.) 

2166. 

(1265.) 

2156. 

(1266.) 

2157. 

(1257.) 

2168. 

(1258.) 

2169. 

(1259.) 

rNDKX. 


XTll 


2168.  (1268.)  "If  thy  thread  I  shall  use,  or  comes  to  my  use,  then  thoa  art 
divorced*' 

SI  69.  (1260.)  *' If  I  deriye  benefit  from  this  wheat,  Ac,"  and  the  hasband  appro- 
priates the  sale  proceeds  of  the  wheat 

2170.  (1270.)     *'  U  thy  thread  shall  be  on  my  body,  then,  Ac,"  and  he  puts  his  hand 

on  her  thread  ..•  ...  ...  ...  ... 

2171.  (1271.)    "  If  I  shall  give  wine  to  any  person,  then,  Ac." 

2172.  (1273S.)    "If  thon  shnlt  take  oat  of  my  dirhems,  then,  Ac,"  and  the  wife  gives 

the  dirhems  to  a  woman  and  takes  them  back  from  her 
2178.     (1273.)    "  If  I  sleep  with  thee,  then,  Ac."     ... 

2174.  (127rfc.)     "  If  so  and  so  does  not  come  to  my  honse  this  evening,  then,  Ac."     ... 

2175.  (1276.)    "  If  this  cloth  I  pot  on,  then,  Ac" 

2176.  (1-76.)     ''Verily    dost  thoa   steal   so  many  of  my  dirhems,  if  after  this,  thoa 

Shalt  take  of  my  silver,  then,  Ac." 

2177.  (1277.)     "  If  thoa  shalt  stay  away  for  more  than  three  days,  then,  Ac." 

2178.  (1278.)     "  If  thy  conduct  oontinaes  to  be  sach  as  it  has  been,  then,  Ac." 

2179.  (1279.)    "If  thy  thread  or  whatever  is  done  by  thee  shall  enore  to  my  benefit 

and   loss,  then,  Ac,"  and  the  wife  and  the  children  wear  the  cloth 
made  of  the  thread    ... 

2180.  (1280.)     "  If  the  leaves  of  thy  molberry  tree  shall  come  to  my  benefit  and  loss, 

then,  Ac,"  and  the  wife  feeds  the  hasband's  caterpillars  with  the 
leaves        •••  ...  .••  •••  •••  ••* 

2181.  (1281.)    "  If  this  Koran  comes  to  my  benefit  and  loss,  then,  Ac,"  and  the  Koran 

is  given  to  another  for  correction  of  mistakes  ...  ••• 

"  If  thoa  shalt  go  ont  of  this  hoase,  then,  Ac"  •••  ••• 

'*  If  thoa  shalt  enter  my  brother's  hoase,  tlien,  Ac." 

*'  If  thoa  shalt  go  to  sach  and  sach  a  villacce,  then,  Ac"  ... 

*'  If  I  do  not  satisfy  thee  by  intercoarse,  then,  Ac." 

"  If   thoa  Iiadat  anloosened  the  strings  of  thy  troasers  in  an  nnlawfal 

way,  from  the  time  that  thoa  hast  been  my  wife,  then,  Ac" 

2187.  (1287.)    "  If  I  do  not  tell  thy  brother,  all  the  vices  in  the  world,  on  thy  behulf, 

i.e.,  in  thee,  then,  Ac"  ••• 

2188.  (1288.)    "  If  1  shftll  bathe  on  accoant  of  having  done  what  is  nnlawfal,  Ac." 

2189.  (1289.)    "  If  I  shall  introdace  so  and  so  in  my  hoase,  then,  Ac."    ... 

2190.  ( 1290.)    "  If  thoa  shalt  speak  to  sach  and  sach  a  woman,  then  then,  Ac." 

2191.  (1291.)     "If    I  shall  drink  thy  cow's  milk  or  take  any  cheese  made  therewith, 

then,  Ac,"  and  the  cow  is  sold  and  then  milk  is  nsed    ... 

2192.  (1292.)    *'My  wife  is  divorced  if  i  have  spoken  so  in  intoxication,  and  I  am 

not  intoxicated"        ...  ...  •••  ••• 

(1293.)     «'  If  thoa  shalt  carry  oat  my  order  and  help  me,  then  all  well  j  other- 
wise then,  Ac" 
(1294  )    "  If  I   take  the  dirhem   (when  I  come  back  to  my  senses),  then  thon, 

Ac,"  and  the  hasband  takes  it  in  a  state  of  intoxication 

(129.5.)    "  If  thoa  shalt  spin  for  any  other,  or  any  other  spins  for  thee,  then,  Ac." 

(1296.)    A  man  imposes  a   condition  in  intoxication  and  can't  remember  it 

when  he  is  sober  again  ...  «.«  '  ••• 


2182. 

(1282.) 

2188. 

(1283.) 

2184. 

(1284.) 

2186. 

(1286.) 

2186. 

(1286.) 

2198. 

2194. 

2195. 
2196. 


Page. 
138 


tb. 
ib, 

ib, 

139 

ib. 

ib. 

ib. 
ib. 
140 


ib. 

ib. 

ib. 
141 

ib. 
142 

ib. 

ib. 

ih 

143 

ib. 

ib. 

144 

ib. 

ib. 

ib. 
ib. 

146 


zvni 


INDEX. 


2197. 

(1297.) 

2198. 

(1298.) 

2199. 

(1299.) 

2200. 

(1300.) 

2201. 

(1301.) 

2202. 

(1802.) 

2208. 

<1808.) 

2204. 

(1304.) 

2206. 

(1305.) 

2206. 

(1806.) 

2207- 

(1807.) 

2208. 

(1308.) 

2209. 

(1809.) 

2210. 

(1810.) 

2211. 

(1311.) 

2212. 

(1312.) 

2213. 

(1313.) 

2214. 

(1814.) 

2216. 

(1315.) 

2216. 

(1316.) 

2217. 

(1317.) 

2218. 

(1318.) 

2219. 

(1319.) 

2220. 

(1820.) 

2221.    (1821.) 


2222. 
2223. 
2224. 
2225. 


(1322.) 
(1328.) 
(1324.) 
(1825.) 


Page. 
"  If  I  put  my  head  on  the  ground,  diForce  to  thee,"  afterwards  added, 
"  except  of  my  own  inolination  '*  and  the   huflband  can't  remember 

what  was  said  •••  ...  ...  ...  ...       145 

**  When  I  shall  enter  Sham,  and  when  I  do  not  separate  from  thee, 

then  thon  art  divorced "  ...  ...  ...  ...         ifc. 

"  If  thou  Shalt  not  retom  to  me  that  rery  dirhem,  then,  &c."  ...       146 

'*  If  thoa  shttlt  wash  my  clothes  then  thou  art  divoroed,"  the  woman 

washes  the  sleeves  or  the  skirts  ...  ...  ...  ...        »6. 

A  man  divorcing  his  wife  completely,  says,   '*  If  I  take  her  back, 

then  she  is  divorced  thrice "         ...  ..  ...  ...        f6. 

"  If   thoa  shalt  wnsh  thyself  on  account  of  impurity  so  long  as  thou 

art  my  wife,  then  thou  art  divorced  thrice "  ...  ...        t6. 

"  If  you  do  not  prove  her  adultery  to-day,  then  she  is  divorced  thrice  "  147 
'*  If  thou  shalt  do  so  up  to  50  years,  thou  shalt  become  divorced  "  ..  tb. 
"  If  thoa  shalt  pass  the  night  unless  in  my  hijr  (bosom)  then  thoa  art 

divorced  thrice "         ...  ...  ...  •••  ...        tb. 

"  If  I  do  not  pass  the  night  with  thee,  with  this  thy  skirt,  then,  &c."        t6. 
'*  If  I  do  not  have  intercourse  with  thee  with  this  hair-band,  then,  ^."      148 
Jima  ...  ...  ...  ...  ...  ...         fb. 

A  man  swears  that  he  will  not  untie  the  strings  of  his  trousers  for 

a  lawful  or  unlawful  purpose  in  the  journey.  Intention  here  is  essen-        ih. 

tial  ...  ...  •••  ...  •••  . .       f6. 

Intention  in  a  particular  case  described  ...  ...  ...       149 

An  instance  where  a  person  commits  a  breach  of  his  oath  ••.        t6. 

"  If  I   shall   wash   myself  on   acooaut   of  thee,  in   consequence    of 

impurity,  then,  ^«.*'  ...  ...  ...  ...  ...       150 

"  If  I  wash  myself  on  nocoant  of  thee  for  a  month,  then,  Ac."  ...        i&. 

Where  a  wife  swears  that  **  She  shall  not  wash  her   head  on  account 

of  impurity  arising  from  her  husband "         ...  ..«  ...        ib. 

**  If  I  shall  not  have  sezaal  intercourse  with  thee  on  the  head  of  this 

spear,  then,  Ac.*'         ...  ...  ...  ...  ...        ib. 

"  If  I   do  not  have  sexaal  intercourse  with  thee  during  the  day  in  the 

midst  of  the  market,  then,  &c."  ...  ...  .  .  ...        *b. 

"  If   thou  hast  done  an  unlawful  act,  three  divorces  to  thee,"  and  the 

wife  had  kiased  a  man  who  was  not  unlawful  to  her,   Ac.  ...        ih. 

"  If  thou  shalt  do  an  unlawful  act  with  anybody,  then  thou  art 

divorced"  ...  ...  ...  ...  •••       161 

Where  a  woman  swears,  "  I  have  not  done  huram "        •••  ...         ib, 

"  If   thou  shalt  commit  unlawfalness,  then  thou  art  divorced  thrice," 

and  the  wife  becomes  an  infidel  ...  •••  ...  ...         ib. 

Where  a  man  swears  that,  "  He  shall  not  look  at  what  is  unlawful " 

and  does  something  that  is  unlawful  ...  ...  ...       152 

Another  inatance  where  a  man  commits  a  breach  of  his  oath  •••         ih, 

"  If  I  do  unlawf  alneas,  then  my  wife  is  divorced  "  ...  „.         ib. 

*' If  I  have  misbehaved  with  him,  then,  Ac."    .••  ...  ...         ih, 

A  man  swears  that  he  will  not  kiss  so  and  so  ...  ...  ...         ib. 


UTDRX. 


XIX 


Patje. 

2256.  (1S26.)    "  If  thafc  pnpfl  saw  mo  whispering  to  him,  then  my  wife  ib  diroroed  *'      153 

2257.  (1827.)    Meaning  of  the  sentence,    "  He  did  not  catch  so  and  so  with  his  wife  **        ib. 

2228.  (1828.)     '*  If   in  this  th/  oath  there  is  some  hidden  meaning  then  I  am  di- 

Torced $"  and  the  hoshand  says,  **  Yes  *'      ...  —  ...      164 

2229.  (1889.)     "  If  I  have  done  snoh  and  such  an  act  with  that  woman  (pointing 

to  the  other  woman,  not  the  one  with  whom  he  is  accused),  then 

my  wife,  &o."  ...  ...  ...  ...  ...        %b» 

2230.  (1330.)    The  hnsband  says,    "  If  thon  abnse  me,  thou  art  divorced  thrice :  " 

and  the  wife  addressing  their  child  says,   "  Oh,  yon  bom  of  adul- 
tery '*  ...  ...  ...  ...  ...        ib, 

228 1.    (1831.)    "  If  thou  enter  the  house  of  so  and  so,  and  so  and  so  enter  thy  house, 

then,  &o."  .•.  ...  ...  ...  ...  ...      166 

"  If  thou  hast  not  washed  it,  then,  Ao."  ...  ...  ...        iK 

"  If  1  sleep  on  thy  oloth,  then,  &o."  ...  •••  ...        ib. 

''If    I  make  a  meal  of  what  is  in  the  pot  warmed  by  thee,  then,  Ac," 

and  the  wife  warms  the  pot         ...  ••.  ...  ...        ib. 

"  If  I  eat  of  what  is  in  the  pot  cooked  by  thee,  then,  &o."  •••       ib^ 

A  man  swears  that  he  will  not  take  his  breakfast  unless  the  wife 

prepares  it  with  one  kufeez  (a  measure)  of  salt,  therein  "  ...      156 

"  If  I  bring  eatables  to  thee  for  one  month,  then,  &o."     ...  ...        ib* 

''  If   thon  do  not  come  to  me  with  snoh  and  such  a  thing  to-morrow, 
then,  &o.,"  and  the  wife  sends  the  husband  those  things  through  a 
bearer       ...  ...  ..•  •••  ...  ...        tb. 

"  If  thon  takest  anything  out  of  my  property,  then,  Ao."  .. .        ib. 

"  If  thou  take  my  barley  to  send  the  same  to  the  grain-seller,  then,  Ao."      157 
"  If  thou  steal   anything   out    of    my  property,  then  thy  mother  is 

divorced,"    and    the    son   steals  a  brick  from  his  father's  house  ...        %b, 
2242.     (1842.)     "  If  I  give  thee  a  dirhem  in  order  that  thou  mayest  purchase  any- 
thing therewith,  then,  Ac."  ...  ...  ...  ...      168. 

224  8.  (1343.)  "  If  thou  shalt  send  anything  from  this  house  to  that  house,  then,  Ao."  ib, 
2244.  (1344.)  "  If  thy  mother  eats  of  anything  out  of  my  property,  then,  &c."  ...  160. 
2246.     (1346.)     "  If  thou  shalt  give  out  of  my  wheat  to  any  one,  then,  Ac."  ...        %b. 

2246.    (1346.)     "  If  thou  shalt  take  dirhems  out  of  my  house,  then,  Ac."    The  wife 

then  opens  the  purse  and  the  daughter  takes  out  money  ...      160. 

2247*  (1847.)  The  wife  buys  meat  from  a  butcher  with  her  husband's  money  and 
the  husband  says,  "  If  thon  shalt  not  return  me  that  very  dirhem 
this  day,  then,  Ac.,"  and  the  day  expires       ...  ...  ...        tb.. 

2248.  (1848.)    "  If  thou    shalt  not  return  me  my  dinar,  then,  Ac.,"  and  the  dinar  is 

with  the  husband       ...  .••  «•  ...  ...       ^ib. 

2249.  (1849.)    A  labourer  swears  that  he  will  not  steal,  and  afterwards  takes  away 

fruit  to  eat  ...  .••  ...  ...  ...        ^, 

22 60.  (1350.)    A  man  accused  of  theft  takes  oath  that  he  did  not  steal  or  see  it     ...      161 

2261.  (1861.)    "  If  I  have  such  a  piece  of  oloth,  then  my  wife,  Ac."        ...  ...        xb, 

2262.  (1352.)  "  My  property  is  gone,  if  it  is  not  gone,  then,  Ac."  ...  .»  ih, 
2268.     (1353.)    Is  it  allowable  to  a  man,  whose  property  has  been  stolen,  to  detain 

property  belonging  to  the  thief  until  he  gets  back  the  thing  stolen      162 


2282. 
2288. 
2284. 

2286. 
2236. 

2287. 
2288. 


2239. 
2240. 
2241. 


(1832.) 
(1338.) 
(1334.) 

(1836.) 
(1836.) 

(1387.) 
(1338.) 


(1339.) 
(1340.) 
(1341.) 


XX 


INDEX. 


2264.  (1354.) 

2265.  (1855.) 


2266. 
2267. 

2268. 

2259. 

2260. 
2261. 
2262. 


(1856.) 
(1357.) 

(1358.) 

(1350.) 

(1360.) 
(1361.) 
(1362.) 


2268.    (1363.) 


2264. 

(1364.) 

2265. 

(1366.) 

2266. 

(1366.) 

2267. 

(1367.) 

2268. 

(1368.) 

2269. 

(1369.) 

2270. 

(1370.) 

2271. 

(1371.) 

2272. 

(1372.) 

2278. 

(1373.) 

2274. 

.  (1374.) 

2276. 

(1376.) 

2276. 

.  (1376.) 

2277. 

(1377.) 

2278. 

(1378.). 

2279. 

(1379.) 

2280. 

(1380.) 

2281. 

(1381.) 

2282. 

(1382.) 

Page, 
A  man  ander  oompalsion  exercised  by  robbers  swears  that  his  wife 
will  be  divorced  thrice  in  case  he  has  any  dirhems  other  than  those 
that  have  been   seized  by  them  ...  ...  ...  ...       163 

A  man  swears  to  robbers  that  his  wife  will  be  divorced  in  case  he 
gives  information  to  any  one  regarding  them,  and  he  tells  a  passing 
caravan  that  there  are  wolves  in  the   highway,   and  the   travellers 
thereupon  retrace  their  steps     ...  ...  ...  ...       164 

Device  to  get  rid  of  a  certain  oath  ...  ...  ...         tb. 

The  effect  of  saying  after  dawn,  "  If  I  do  not  have  sezaal  intercourse 
with  thee  to-night  then  thou  are  divorced  "...  ...  ...       165 

"  If  then  shalt  rest  thy  side  this  night,  (an  express  for  sleep),  then, 
&o."  so  tliat  I  mny  strike  thee     ...  ...  ...  ...         ib. 

V  If  thon  shalt  comb  any  one's  hair,  then  thou,  Ao."  and  the  wife  does 
not  comb  but  ties  another  woman's  hair       ...  ...  ...         ih. 

"If  so  and  so  has  entered  this  house  to-day,  then,  &c."     ...  ...        ih. 

".  If  thou  shult  not  return  the  cloth  to-day,  then.  &o.'*       ...  ...       166 

The    defendant    says, — "  My   wife   is  divorced   if  thoa   hast  owing 
from  me  a  thonsand  dirhems."      The  plaintiff  then    says, — **If 
there  is  not  for  me  against  thee,  a  thousand  dirhems,  then  my 
wife,  Ac." ...  ...  ...  ...  ...  ...        ib. 

A  woman,  whom  her  husband  has  divorced,  is  allowed  to  poison  him  if 
the   husband  denies   the  divorce  and  wishes  to  have  access  to  her 
person,  and  she  has  not  sufficient   strength  to  prevent  him  ...       167 

"  If  thon  shalt  do  so  and  so,  then  my  wife  sliall  be  divorced"  ...        t6. 

**  If  my  private  parts  be  not  better  than  thy  private  parts,  then  thou 
art  divorced  ...  •••  ...  ...  ...         ih. 

"  If  so  and  so  is  not  broader  at  the  bottom  than  thee,  then.  Ac."       ...       168 
"  [f  my  head  is  not  heavier  than  thine,  then,  &c."  ...  ...         ib. 

A  man  swears  that  so  and  so  is  heavy  ...  ...  ...        ib, 

**  If  1  am  afraid  of  the  Sultan,  then,  &o.**        ...  ...  ...        ib. 

A  man  quarrels  with  his  brother  and  sister  and  says,  *'  If  I  do  not  put 

you  into  the  bottom  of  the  ass,  then,  &c.*'  ...  ...  ...         id, 

"  If  I  be  what  thou  hast  said,  then  thou  art  divorced  thrice  "  ...       169 

Meaning  of  the  words  used  in  para.  227 1  (1371)  "  Sifla, "  "  Knrtban  " 
"  Suflal, "  **  Kushkhun,"  "  Majin "  ...  ...  ...         ib. 

"  If  thou  knowest  that  I  am  a  Kurthan,  then  thou  art  divorced  *'      ...       171 
"  If  I  am  a  Kousuj,  then,  Ac."        ...  ...  ...  .„        ib, 

*  If  the  child  is  born  of  adultery,  then,  Ac."   ...  ...  ...        ib. 

"If  thou  shalt  abuse   my  mother  or  name  her  with  disrespect,  then, 

.    Ao.''  •••  •"  —  •*.  ...  ...        ib. 

"  If  1  abuse  anyone,  then,  Ac."       ...  ...  ...  ,„       172 

"  Wh^n  thou  shalt  abuse  me,  then,  Ac."  ...  ...  ,,.         ib, 

"If  thou  shalt  leave  me  to-day,  then,  Ac."      ...  ,„  ...         ib. 

"  If  I  shall  put  you  out  of  temper,  then,  Ac."  ...  ...  .^        ib. 

"If  I  shall  please  thee,  then,  Ac."...  ...  ...  ,„        ib. 

"  If  1  shall  c^ittse  thee  pain,  then,  Ac."  ...  ...  ...       173 


INDEX. 


XZl 


Page. 
2288.    (1883.)    '^If  I  shall  purchase  a  female  slave  and  then  Jealonsy  shall  overtake 

thee  by  reason  of  my  pnrohasei  then,  Ac."  ...               •••               •••  173 

2284.  (1384.)    <*  Thon  are  divorced  if  then  dost  not  love  me ''                  ...               .,.  174 

2285.  (1885.)    "  If  I  love  sach  and  sach  a  woman,  then  thon  art  divorced  *'             ...  ih, 
2288.    (1886.)    "  If  thon  art  not  with  me  lighter  than  dnstj  then,  &o."      ...                ...  ib, 

2287.  (1387.)    "  If  I  accuse  thee  of  adultery,  then,  &c.''        ...                ...                ...  175 

2288.  (1388.)     If  I  abose  thee,  then,  &o.,"    and  the  husband  says :  "  May  God  not 

prosper  thee"             ...                ...                ...                ...                ...  ih* 

2289.  (1389.)    "  If  I  do  not  slaughter  one  of  my  cows  out  of  respect  for  the  guest, 

then,  Ac."                    ...                ...                ...                ...                ...  tb. 

"  If  this  is  not  a  hard  expression,  then  thou,  Ac.*'             ...                ...  ih. 

"  If  my  son  attains  the  age  of  circumcision,  and  I  do  not  cause  his 

circumcision,  then,  Ac."                ...                ...                ...                ...  176 

Effect  of,—"  If  thou  shalt  emit  then  thou  are  free "        ...                ...  ib, 

"  If  the u  shalt  get  sick,  then  thou,  Ac."          ...                ...                ...  177 

"  If  I  shall  clothe  thee  with  what  is  produced  by  me,  then,  Ac."       ...  178 

"  Thou  art  divorced  in  thy  fast "     ...                ...                ...                ...  tb. 

The  husband  swears  to  divorce  his  wife  if  she  does  not  go  to  his 

house  this  very  night                    ...                ...                ...                 ...  ib, 

"  If  thou  shalt  not  go  with  me,  then  thon  art  divorced  thrice  "  ...  179 
"  If  thou  do  not  get  up  at  once  and  come  to  my  mother's  house, 

then,  Ac."                    ...                ...                ...                ...                .••  ib, 

**  If  thou  do  not  enter  with  me  in  this  room,  then,  Ac."  ...  180 
A  man  calling  his  female  slave  to  his  bed  says,  "  If  thou  shalt  not  come 

this  night  to  my  bed  then  thou  art  free  "...                ...                ...  ib, 

2801.    (1401.)    "  If  all  of  you  shall  not  go  to  my  house  as  guests,  then  my  wife  is 

divorced"...               ,..               ...               ...               ...               ...  ib, 

"If  thou  shalt  return  to  my  house,  then,  Ac."                   ...         ^    ,„  {6. 

"  If  thou  shalt  ascend  this  story  of  the  house,  then,  Ac."                   ...  181 

^"  If  I  put  my  foot  in  the  house  of  so  and  so,  then,  Ac."  ...                ...  ib, 

"  If  God  torments  (azab)  the  infidels,  then,  Ac."               ...                ...  ib, 

"  If  I  should  see  so  and  so,  whether  he  be  alive  or  dead,  then,  Ac."     ...  182 

"  If  I  spend  anything  out  of  my  wife's  property,  then,  Ac."  ib, 

*'  If  I  should  make  repairs  in  this  house,  then,  Ac."           ...                ...  {6. 

*^  If  I  do  nob  take  you  this  night  to  my  house,  then,  Ac."...                ...  ib, 

** If  I  ride,  then  my  wife  is  divorced  "              ...                ...               ,„  183 

"  If  I  speak  falsely,  then,  Ac."        ...                ...                ...               ...  ib, 

"If  1  break  wind,  Ac."  ...               ...                ...                ...                ...  ib, 

"  If  I  commit  adultery,  Ac."          ...               ...               ...               ...  ib, 

"  If  I  separate  from  thee,  thon  every  woman  with  whose  head  I  shall 

place  mine  on  the  pillow  is  divorced "  ...  ..;  ...  ib, 
2816.    (1415.)    A  man  says  to  an  old  woman, "    If  I  do  not  take  pride  on  thy  being 

my  mother,  then,  Ac."                  ...                ...               ...                ...  184 

2816.    (1416.)    "  If  thou  shalt  drink,  then,  Ac."     ...               ...                ...                ...  %b, 

2317.    ( 1417.)    "  If  I  shall  purchase  a  female  slave  or  marry  a  woman  upon  thee,  then, 

Ac."     ...       ...      ...       ...       ...      ...  ib 


2290. 
2291. 

2292. 
2298. 
2294. 
2296. 
2298. 

2297. 
2298. 

2299. 
2800. 


(1390.) 
(1391.) 

(1392.) 
(1393.) 
(1394.) 
(1395.) 
(1396.) 

(1397.) 
(1898.) 

(1899.) 
(1400.) 


aso2. 

(1402.) 

3808. 

(1403.) 

2304. 

(1401.) 

2805. 

(1406.) 

2So«. 

(1406.) 

2807. 

(1407.) 

2808. 

(1408.) 

2309. 

(1409.) 

2810. 

(1410.) 

2811. 

(1411.) 

2812. 

(1412.) 

2818. 

(1418.) 

2814. 

(1414) 

XXII 


IITDSX. 


Page. 
2818.    (U18.)    '*!£  flOftiid0odiToroe0hiawife,thfin,  &o."     ...  ..<  ...       184 

9819. .  j(1419.)    "  jGk>  thoa  to  so  and  bo  and  gefc  back  from  him  saoh  a  thing  and  bring 

it  to  me  this  instant,  and  if  thon  ahalt  not  bring  it,  then,  &o."      ...       185 

2820.  (1420.)    Coarse  to  be  adopted  when  a  man  says  to  his  wife,  *'  If  I  hare  seznal 

interoonrse  with  my  slave  girl  then  thoa  are  divorced"  ...         *b. 

2821.  (1421.)    '<If  thoa  shalt  not  oome  back  to  me,  then,  Ac."  ...  ...         ib, 

2822.  (1422.)    **  If   I  have  done  so  and  so,  then  this  woman,  whom  I  have  in  the 

honse,  divorce.''     The  fact    is  the    man  is  gnilty  of    the  act; 
bat  his  wife  is  not  in  his  hoose  at  the  time  he  makes  the  statement         186 
3828.    (1428.)    "If   I  drink  wine,   then    every    woman    whom    I  shall    marry,    is 

divorced" ...  ...  ...  ...  ...  ...       ib. 

"  If  thoa  shalt  purchase  water  with  bread  then  thon  art  divorced ''...         *h, 
A  man  says  to  his  mother-in-law,  <'  If  thy  daughter  (who  is  crying) 
shall    not  go  oat  of    thy    honse    bat     cry    here,  then    she  is 
divorced"  ...  ...  ...  ...  ...         »6. 

A  woman  says  to  her  husband,  "  If  I  shall  bake  bread  so  that  thoa 

mayest  eat  it,  then  my  slave  girl  is  free "     ...  ...  ...       187 

"  If  thou  shalt  enter  the  house  of  so  and  so  without  my  meaning  and 
wish,  then  thou  art  divorced "      ...  ...  ...  ...        %h, 

"  Verily    if    I     divorce  her,  then   verily  shalt   thou  be    divorced "        ib . 
"  If   thou  shalt  pass  this  night  in  this  house,  then  what  is  lawful  is 
unlawful  on  me "         ...  ...  ...  ...  ...       188 

"  If  thou  shalt  remain  in  this  house,  this  night,  then  thon  are  so 
and  so"     ...  ...  ...  ...  ...  ...        ib, 

A  man's    father-in-law  speaks  to  him,  "  If    thon  shalt,  after  this 
journey,  which  you  are  about  to  take,  absent  thyself  from  thy  wife, 
and  shalt  not    return  to  her  in  the  beginniag  of    next    month, 
«  then  thy  wife  is  divorced,"  and  he  replies,  ''Tes"        ...  ...        ib, 

(1432.)     How  in  narrating  the  story  of   another* s  divorce,  one  can  divorce 

one's  own  wife  ...  ...  ...  ...       189 

(1483.)    "Every  woman  out  of  you  four,  with   whom   I  do   not  cohabit   this 

night,  the  others  are  divorced "   ...  ...  ...  ...        ib, 

(1434.)    *' Every  woman  who  ia  for  me  except  this  one  is  divorced  "  .,.       190 

(1435.)    "Thou  art  divorced  to-morrow  when  thou  enterest     the    house." 

(To-morrow  a  surplusage)  ...  ...  ...  ...      191 

2886.  .  (1436.)    "If   thou  enterest  the  house,  then  thou  art  divorced,  and  dtvoro^, 

and  divorced,  if  thou  speakest  to  so  and  so"  ...  ...        ib, 

2887.  (1437.)    "  If   thou  enterest  the  house,  then  thou  art  divorced  if  thou  speakest 

to  so  and  90  ...  ...  ...  ...  ...        ib, 

2888.  (1438.)    "  Thon  and  whichever  of  my  wives  enters  the  house,  is  divorced  "    ...        ib. 
3889.     (1489.)    "  Whichever  of  my  wives  enters  this  honse,  is  divorced,  and  so  and  so"       ib, 

2840.  (1440.)     "  Every  woman  whom  I  shall  marry  is  divorced,  and  so  and  so"      •••        ib, 

2841.  (1441.)    "  Thou  art  divorced  and  snoh  and  such  woman  if  I  marry  her  "       ...       192 

2842.  (1442.)     "Thou  and  such  and  such  a  woman  are  divorced  if  I  marry  her"   ...        ib, 
2848.    (1443.)    "Thou  and  such  and  such  a  woman  are  divorced  if  such  and  such 

a  woman  enters  the  house "  ...  ...  ...  ...        ib. 


2824. 

(1424.) 

2826. 

(1426.) 

2826. 

(1428.) 

2827. 

(1427.) 

2828. 

(1428.) 

3829. 

(1429.) 

28S0. 

(1430.) 

2881. 

(1431.) 

2882. 

2888. 

2884. 
2886. 


iin>£x. 


xzui 


2844^ 
2846. 
2846. 
2847. 

2848. 

2849. 


(1445.) 
(M46<) 
(1447.) 

(1448.) 

(1449.) 


2860;    (1466.) 


2851; 
2852. 

2858. 


(1461.) 
(1452.) 

(1453.) 


2854.'    (1464.) 


2866. 

(1466.) 

2866. 

(1'456.) 

8867. 

(1467.) 

2868. 

(145a) 

2869. 

(1458.) 

2860. 

(1460.) 

2861. 

(1461.) 

2868: 

(1462.) 

2868: 

(1468.) 

2864. 

(1464.) 

2866. 

(1466.) 

2866. 

(1466.) 

2867. 

(1467.) 

2868: 

(1468.) 

2869.' 

(1469.) 

2870. 

(1470.) 

2871. 

(1471.) 

azii. 

(1472.) 

Page. 
192 
xb. 
tb. 

ih. 


"Btery  wife  I  have  ia  divorced  and  thon  art  divorced''  ... 

"  Thou  and  whichever  of  my  wives  enterflf  the  honee  are  divorced"  ... 

"  Thoa  art  free  and  whichever  of  iny  slaves  enters  the  honse  ** 

A  man  says  to  his  wife,    "  Every  woman  whom  I  marry,  so  long  as 

then  Hvest,  is  divorced"  ... 

"  Every  woman  whom  I   marry  bearing  thy  name  is  divorced**'    So 

■Ajuig,  the  hnsband  divorces  his  wife  and  then  marries  her  ..,        ^^« 

"  If  I  many  another  woman,  besides  thee,  what  God  has  made  lawful 

to  me  isnnlawfal."    **  If  I  marry  one  more,  then  it  is  obligatory  on 

me  to  divorce."    So  saying,  he  marries  one  more  ...  •••      193 

"  Every  wife  I  have  is  divorced,  when  I  enter  this  honse."    So  saying, 

he  di7orces  one  specifically  and  enters  the  house  ...  ...        ih* 

*' Every  wife  I  have  is  divorced"  ...  ...  ...  ...         ib. 

"  Every  woman  whom  I  marry  is  divorced  if  I  speak  to  so  and  so  "...      194 

"  Every  woman  whom  I  shall  marry  is  divorced  if  I  speak  to  so  and 

so'^  ...  ...  ...  ...  ...  ...        ib. 

"  Every  woman  whom  I  marry  shall  be  divorced,  whenever  I  speak  to 

so  and  so"  ...  ...  ...  ...  ...       ih. 

"  If  then  art  not  pregnant,  then  then  art  divorced  thrice  "  ...        ih, 

A    man  says  to  his  wife,  "If  I  say  to  thee  ^thon  art  divorced,' then 

then  art  divorced";  he  then  says,  *^  Verily  have  I   divorced  thee"      195 
A  man  says  to  a  strange  woman,   **  If  I  divorce  thee,  then  my  slave 

is  free"    ...  ...  ...  •..  ...  ...        t&. 

A  man  says  to  his  wife,  who  is  married  to  him  by  an  invalid  marriage', 

*•  If  I  divorce  thee  then  my  slave  is  free "    ...  ...  ..,       ih, 

**  I  shall   positively  divorce  such  and  such  a  woman  to-day  thrice," 

saying,  ''  If  1  do  not  do  so,  then  my  slave  is  free"      ...  ...       196 

"  If   thon  enterest  this  hoose,  if  then  enterest  this  honse,  then  thoii 

art  divorced"  ...  ...  ...  ...  ...        ih, 

A  man  says  to  his  wife,    "  Divorce  whichever  of  my  wives  then 

please"     ...  ...  ...  ...  ...  ...        ih, 

^^The  authority  to  give  divorce  to  my  wives  is  in  thy  hands  "  ...      197 

"  My  wives,  every  one  of  them,  are  divorced  if  thou  shalt  enter  the 

house"      ...  ...  ...  ...  ...  ...        %h, 

"  Whichever  of  my  wives  thou  wishest  her  divorce,  is  divorced  "       ...        ih, 
"  Thou  art  divorced  to-morrow  if  thou  wish "  ...  ...       ih. 

*' Adopt  separation  to-morrow  if  thou  please "  ..«  ...       ib, 

"  If  thou  please,  divorce  thyself  to-morrow "  ..•  ...      198 

'*  Thon  art  divorced  when  thou  shalt  enter  the  house,  if  thou  please"  ih. 

*'  Thou  art  divorced  in  the  beginning  of  the  month,  if  thou  please  "  xb. 

"  Thou  art  divorced  thrice  if  thou  please."    The  wife  then  says, 

"  I  am  divorced "       ...  ...  ...  ...  ...        ib, 

"  Divorce  thyself   ten  times  if   thou  please."    She  then  says,  **  I 
'  have  divorced  myself  thrice "    •••  ...  ...  ...        ib, 

"  divorce  thyself  if  thou  please  and  divorce  such  and  such  a  womaA 

if  thou  please,"  and  the  wife  answers  in  the  affirmative  ...         ib» 


XXIV 


INDEX. 


2873. 

(1478.) 

2874. 

(1474.) 

2875. 

(1476.) 

2876. 

(1476.) 

2877. 

(1477.) 

2878. 

(1478.) 

2379. 

(1479.) 

2880. 

(1480.) 

2881. 

(1481.) 

2882. 

(1482.) 

2888. 

(1488.) 

2884. 

(1484.) 

2885. 

(1485.) 

2886. 

(1486.) 

2887. 

(1487.) 

2888. 

(1488.) 

2889. 

(1489.) 

2890. 

(1490.) 

2891. 

(1491.) 

2892. 

(1492.) 

2898.    (1493.) 


2894. 
2896. 
2896. 
2897. 
2898. 

2899. 

2400. 


(1494.) 
(1496.) 
(1496.) 
(1497.) 
(1498.) 

(1499.) 

(1500.) 


"Thou  art  divorced  onoe  if  thou  please  and  thoa  art  divorced  thrice 

if  thon  please"  ...  ...  ...  ...  ... 

"  DiToroe  thyself  if  thou  please,  and   emancipate  my  slave  if  thoa 

please"     ... 
"  Thon  art  divorced  if  such  and  such  a  woman  does  not  wish  thy 

divorce  to-day  " 

"  Thon  art  divorced  once  if  thon  please."    The  wife  says,   '*  I  will, 

half  of  one  " 
"  Divorce  thyself   once  completely    if  thoa  please,"  and  the  wife 

divorces  herself  once  by  way  of  a  reversible  divorce    ...  ..• 

"  Divorce  thyself  once,  so  that  I  may  have  power  to  revoke  it,  if 

thon  please" 
"  Divorce  my  wife  of  whatever  nature  God  wishes  and  you  wish ;  " 

and  the  addressee  divorces  the  woman 
"  Thou  art  divorced  if  thou    please,  thou  please,  thou  please ; " 

and  the  wife  says  "  I  have  wished  only  onoe  ** 
"Thou  art  divorced  whenever  thou  please.*'    How  long  does  the 

authority  continue  with  the  wife  ? 
''Divorce  thyself   thrice  if   thou  please,"  and  the  wife  says,  "I 

am  divorced" 
"Divorce  thyself   if  thou  please,"  and  the  wife  says,  "Verily  do 
I  wish  to  divorce  myself "        ...  ...  ...  ... 

"Divorce   thyself   when  thou  please,"    subsequently  the  husband 

becomes  insane  ...  ...  ...  ...  ••• 

"Thou  art  divorced  if  thou  please  one  amd  if  thou  please  two," 

and  the  wife  divorces  thrice        ...  ...  ...  ..t 

"  Thou  art  divorced  thrice  and  such  and  such  a  woman  once  if  thou 

please"     ...  ...  ...  ...  ...  ... 

"If  thou  wish  and  if  thou  dost  not  wish,  thou  art  divorced" 

"  Thou  art  divorced  if  it  please  God*' 

"  Thou  art  divorced  howsoever  God  wish  "      ...  ...  ••• 

"If  it  please  God  then  thou  art  divorced         ...  ...  ••• 

"  If  it  please  God,  thou  art  divorced" 

Differences  of   opinion  as    to  the  effect  of  the  divorce  clause  when 

the  following  is  added  to  the  other  clause  "  If  it  please  God" 
"  Thou  art  divorced  with  the  intention  of  God "  or  "  with  God's  love" 

or  "  with  God's  pleasure  **  or  "  with  His  consent  " 
"Thou  art  divorced  in  the  knowledge  of  God"  ...  ,•. 

Conditions  to  be  carried  out  for  making  exceptions  valid  ••# 

"  Thou  art  divorced,  if  it  please  God  thou  art  divorced  "  •#• 

"  Thou  are  divorced  thrice  if  it  please  God,  thou  art  divorced" 
"Thon  art  divorced  once  if    it    please  Qod  and  thou  art  divorced 

twice  if  it  does  not  please  God  "  ...  ...  ...' 

"  Thou  art  divorced  this  day  once,  if  it  please  God,  and  if  it  does 

not  please  God  then  two  divorces"  ...  ..• 

**  Thou  art  divorced  thrice  and  thrice  if  it  please  God  "  •••  ..« 


Page. 
198 
199 
200 
ib. 
ib. 
%b. 
201 
ib. 
ib, 
ib. 
ib. 
ib. 


ib. 

ib. 
205 
206 

ib. 

ib. 

ib. 

207 

208 

ib. 

ib. 

209 

%b. 

ib. 
210 


INDBJt. 


XXV 


2401.  (1601.)    "  Thou  art  divorced  thrioe  and  once,  if  it  please  God  "    ... 

2402.  (1502.)    After  a  man  divoroes  his  wife,  two  jnst  men  depose  that  he  used 

Istisna  (exception)  and  the  hnsband  does  not  remember  it  •.. 

2408.     (1603.)    How  to  deal  with  a  case  in  which  the  husband  and  the  wife  contra- 
dict each  other  as  to  whether  Istisna  was  used  or  expressed 
2404.    (160^)     Where  there  is  a  conflict  of  testimony  as  to  the  use  of  Istisna  in 
Khoola      ... 
"  Then  art  divorced,  and  divorced,  and  divorced,  if  it  please  God  ** 
"  Thou  art  divorced,  and  divorced,  and  divorced,  and  divorced,  if  it 
please  God"  ...  ...  ...  ...  .,• 

"  Thou  art  divorced,  twice  and  twice,  except  one  "  •••  ,,» 

"  Thoa  art  divorced  twioe  and  twice,  except  twice  "         .•» 

"  Thou  art  divorced  twice  and  twice,  except  thrioe  " 

"  Then  art  divorced  four  times,  except  three"  ... 

"  Thoa  art  divorced  ten  times,  except  nine  "    ...  ..•  ... . 

"  Thou  art  divorced  thrioe  and  thrice  excepting  four  "     ...  ... 

"  Thou  art  divorced  thrice,  except  once  and  twice  "         ...  ... 

"  Thou  art  divorced  once,  and  once,  and  once,  except  three  " 
"  Thou  art  divorced  once,  and  once,  and  once,  except  once  and  once  " 
'*  Thou  art  divorced  thrice,  except  once,  and  once,  and  once  " 
"  Thou  art  divorced  thrice,  except  once  or  twice  "  and  the  hnsband 
dies  before  he  is  able  to  explain  himself       ...  ...  .„ 

"  Thou  art  divorced  thrice,  except  something  " 

"  Thou  art  divorced  thrice,  except  once  to-morrow" 

"  Thou  art  divorced,  oh  adulteress,  thrioe  "    ...  ...  ,«,. 

"  Thou  art  divorced,  divorced  thrice  " 

"  Thou  art  divorced  thrice,  therefore  know  thou  if  God  please  "       ••• 
"  Thou  art  divorced  thrice,  know  thou  if  God  please  "      ...  „. 

«  A  man  divorcing  bis  wife  intends  expressing  a  condition  (if  it  please 
God)  when  he  is  prevented  from  doing  so,  but  after  the  interruption 
is  removed  expresses  the  condition  ...  ••• 

How  to  avoid  the  swearer  using  an  exception  •••  ...  ... 

'*  By  God  I  will  not  speak  to  so  and  so,  may  God  pardon,  if  it  please 
God"        •••  ...  ...  ...  ...  ••• 

"  Thou  art  divorced  thrice  or  not  (An  la)  " 

"  Thou  art  divorced  thrice  if  it  be  (In  kana)  "  ...  ,., 

"I  will    not  speak  to  so  and  so  for  ever  except  by  mistake ;  and  if 
I  spealc  except  by  mistake,  then  my  wife  is  divorced"  ...  .„ 

2480.  (1530.)    "  Thou  art  divorced  if  I  speak  to  so  and  so  unless  I  do  so  by  mistake." 

He  speaks  first  by  mistake  and  then  knowingly  ...  ... 

2481.  (1581.)    "  I  shall  certainly  come  to  thee  up  to  ten  days,  except  I  am  dead  "    ... 

2482.  (1532.)    "Thou  art  divorced  twice  and  once,  except  once"  ...  .., 

2488.     (1588.)    "  Thou  art  divorced  thrice,  other  than  three,  other  than  two''  ••• 

2484.    (1684.)    **  Thou  art  divorced  thrice  except  once  or  half  of  one "    ...  .„ 

2486.    (1586.)    "  Thou  art  divorced  except  one  or  nothing"     ...  ...  .,, 

2486.    (158a)    "  Thou  art  divorced  twice,  and  twioe,  and  twice,  except  four  '*  ^ 


2406. 

(1505.) 

2406. 

(1506.) 

2407. 

(1507.) 

2408. 

(1608.) 

2409. 

(1500.) 

2410. 

(1510.) 

2411. 

(1611.) 

2412. 

(1512.) 

2418. 

(1513.) 

2414. 

(1514.) 

2416. 

(1515.) 

2416. 

(1516.) 

2417. 

(15170 

2418. 

(1518.) 

2419. 

(1519.) 

2420. 

(1620.) 

2421. 

(1521.) 

2422. 

(1522.) 

2428. 

(1538.) 

2424. 

(1624.) 

2426. 

(1525.) 

2426. 

(1526.) 

2427. 

(1527.) 

2428. 

(1528.) 

2429. 

(1529.; 

Page. 
210 

ib. 

ib. 

211 
212 

218 

ih, 
ih. 
ih. 
214 
ib. 
ib. 
ib. 
ib; 

215 

ib. 
216 

ib. 

ib. 
217 

ib. 

ib. 


ib. 
218 

ib. 
ib. 
ib. 

ib. 

210 

ib. 

ib. 

ib. 
220 

ib. 

ib. 


zxn 


INDBX. 


S«87. 

(1537.) 

2488. 

(1588.) 

2489. 

(1689.) 

2440. 

(1640.) 

3)441. 

<1641.) 

2442. 

(164a) 

2448. 

(1648.) 

3444. 

(1644.) 

S446. 

(1545.) 

2446. 

(1546.) 

2447. 

(1647.) 

2448. 

..<1648.) 

2449. 

(1649.) 

2460. 

(1560.) 

2461. 

(1661.) 

''  Thou  art  bain,"  intending  thereby  "  thrioer  except  onoe" 

"  Thon  art  dirorced  thrioe  all  hain  or  complete  except  once  " 

"  Thou  art  divorced  thrice  or  completely  except  once  "... 

"  Then  art  divorced  except  once  hain  " 

"  Thou  art  divorced  thrice  (which  are)  unlawful  except  once  " 

"  If  then  Shalt  enter  the  house,  then  thou  art  divorced  thrioe,  which 
shall  not  be  caused  on  thee  except  after  thou  hast  spoken  to  so 
and  so"     ... 

"  Thon  art  divorced  to-day  thrioe,  which  will  be  caused  on  thee  to- 
morrow" •..  ...  ...  •••  ...  ... 

"  Thou  art  divorced  to-day  if  it  please  Satan,  or  if  it  please  the 
Angel'*     ... 

"  Thou  art  divorced,  whatever  God  wishes  will  happen  *'  ... 

*^  Thou  art  divorced  twice,  no  but  {la  hid)  once  " 

"  Thon  art  divorced  or  nothing*'    ... 

"  Thou  art  divorced,  once,  not  but  to-morrow  " 

"  Thou  art  divorced  thrice  except  a  moiety  of  it " 

*'  Thou  art  divorced  if  thou  never  had  a  father  '* 

What  renders  an  exception  void     ... 


Page. 
221 

tb. 
ib. 
ib. 
ib. 


ib. 


ib. 
ib. 
ib. 
ib. 
228 
ib. 
ib. 
ib. 


Cases  whebb  divo&ce  is  made  dependent  on  Marriaob. 

.2462..  .(1652.)    "  If  I  do  so  and  so,  then  my  wife  is  divorced  *'  ...  ...      224 

2468.  ...(1668.)    "  If  I  marry  a  woman  or  order  a  person  to  £^ve  me  in  marriage  to  a 

woman,  then  the  woman  is  divorced "  ...  ...  ...        ib, 

2464..  .(1664.)    "  If  I  make  proposal  to  thee,  divorces  on  thee ; "  the  person  addressed 

being  a  strange  woman,  or  one  whom  he  has  completely  divorced  225 
2466^  (1555.)  "  If  they  give  me  such  and  such  a  woman  for  my  wife,  divorce  to  her"  226 
2466»    (1556.)    "  If  you  both  (addressing  his  parents)  shall  give  me  in  marriage  to  a 

.woman,  then  she  is  divorced  "  and  they  then  g^ve  him  in  marriage 

by  his  order  ...  ...  ...  ...  ...        t5. 

2467^    (1657.)    Different  effoots  of  the  expressions  of  divorce  preceded  by  expressions, 

"If  they  give  the  daughter  of  so  and  so  to  me,  divorce  to  her." 
.    "  If  they  give  her  to  me  for  my  wife "         .^  ...  ...        ib. 

9468.... (1658.)    Expression  "  If  such  and  such  a  woman  is  given  to  me  for  my  wife" 

without  saying "  and  if  I  marry  her "  ...  ...  ...        ib. 

.9469.    (1669.)    Effect  of  saying,  "  If  I  take  such  and  such  a  woman  as  my  wife, 

divorce  to  her'*  ...  ...  ...  ,..  ...      227 

2460.    (1660.)    Effect  of  saying,  **  If  I  marry  thee,"  to  one's  wife  ...  ...        ib. 

S461*    (11S6I.)    Different  effects  of  "  If  I  made  m'toh  with  thee  "  spoken  in  Persian 

and  in  Arabic  ...  ...  ...  ...  ...        ib. 

2Wl62«    (1662.)    Effect  of  saying,  **  If  I  take  thee  as  my  wife  "  to  a  divorced  woman       ib. 
2468*' .  (1668.)  .A  Fmoolee  contracting  marriage  for  another,  who  has  sworn  against 

marriage.    Effect  of  nUdfication  of  marriage  upon  the  oarf<h  ...        ib. 

.2i464#»  (1664.)    A  Vakeel  oontiaoting  manriage  in  the  above  case  ...  ...      228 


INMZ. 


X3t¥U 


Fage. 

2465.  (1565.)    A  T«gin  taking  an  oath  agaiiuit  mamage        ...  ...  ...      S28 

2466.  (1500.)    When  a  man  having  sworn  againat  marriage  contraoto  an  invalid 

marriage   ...  ...  ...  ..•  .,•  ..«        ih* 

2467.  (1507.)    Denotation  of  vxtman  in  "Every  woman  whom  I  ahall  marry  "        ...       «b. 

2468.  (1508.)    Effect  of  aneoessive  marriagOB  after  taking  the  oath,  "  Every  woman 

whom  I  shall  ever  many  is  divorced  if  I  speak  to  so  and  so  "      - ...        A. 

2469.  (1600.)    Effect  in  the  oaae  of   an  oath,    **Ul  speak  to  so  and  so  and  then 

every  woman  whom  I  shall  marry  is  divorced  "  •••  ...      229 

2470.  (1570.)    Meaning  of,  "  Whiohever  woman  I  shall  marry  is  divoroad  **  ...        %b. 

2471.  (1671.)    Similar  expression  spoken  in  Persian  ...  ..,  ...        t&. 

2472.  (1572.)    Meaning  of  "Every  woman  whatsoever  that  comes  in  my  marriage  "      230 

and  "  Whichever  X  shall  marry/' spoken  in  Persian 

2473.  (1578.)    Meaning  of,    "  Every  time  that  I  shall  marry  a  woman  '*  in  Persian 

2474.  (1574.)    Meaning  of,  "  At  whatever  time  I  shall  take  woman  "  in  Persian    ...        ib, 
2476.    (1676.)    Meaning  of   d€9ire  io,   "  If  I  desire  snoh  and  snch  woman  "  spoken 

in  Persian  ...  ...  ...  ...  ...        ih* 

2476.  (1676.)    Effect  of  snooessive  marriages  after  the  oath,  "  If,  beoides  thee,  I 

take  a  woman"  ...  ...  ...  ...  ...        ib. 

2477.  (1677.)    ^eot  of  snccessive  marriages  after  the  oath,  "  If  to  me  there  be  in  this 

world  a  woman  (that  is,  a  wife)  then  she  is  thrice  divorced  "  ...        iht 

2478.  (1178.)    A  woman  saying,    "  I  have  given  myself  in  marriage  to  thee  "  and 

the  man  replying,  "  Then  thoa  art  divorced."    Force  of  then  and 
effect  of  ite  absence    •».  ...  ...  ...  ...      281 

2479.  (1679.)    Oath  against  marriage  limited  to  a  piacB  and  marriage  ontslde  that 

place         ...  ...  ...  ...  ...  .••        t6. 

2480.  (1580.)    Oath  against  marriage  of  a  iMmaa  limited  to  a  pZoee       ...  ...        %b. 

248 1  •    (1581. )    When  a  man  swears,  "Every  woman  I  shall  have  as  a  wife  at  Bokhara 

is  divorced,"  marries  a  woman  outside  and  takes  her  to  Bokhara  ...        ib. 

2482.    (1582.)    When  a  man  swears,  "  If  I  marry  a  woman  from  the  daughters  of  so 

and  so"— there  being  no  daughter  of  so  and  so  €9\sti'ng  at  the  time         232 

2488.  (1588.)  After  the  oath,  "I  shall  not  marry  a  woman  from  amongst  the  resi- 
dents of  Eoofa,"  marrying  a  woman  of  Koofa  bom  after  the  oath 

2484.  (1584.)    Similar  case  when  the  woman  is  brought  up  and  domiciled  elsewhere      283 

2485.  (1586.)    Meaning  of  Nutad  in  an  oath  limited  to  the  Nu»ad  or  descendants  of 

a  particular  person  ...  ...  ...  ...        ib. 

2486.  (1586.)    Meaning  of   AhUi^hait  in  an  oath  limited  to  the  AhX^i^hait  of  a  parti- 

cular  person  ...  ...  ...  ...  ...         ib, 

2487.  (1687.)    Oath  limited  to  one^s  own  residence  at  a  place.  Meaning  of  Ma-doomto       ib, 

2488.  (1588.)    Successive  marriages  after  an  oath,  "  If  I  marry  a  woman  as  long  as 

you  both  (one's  parents)  are  alive,  then  she  is  divorced  "  ...      284 

2489.  (1589.)    Similar  oath  referring  to  all  women.    Eftect  of  the  death  of  one 

of  the  parents  on  the  oath  ...  ...  ...  ...        ib, 

2490.  (1690.)    Referring  to  toomon  in  an  oath  and  marrying  an  infant  girl  ...        tb. 

249 1  •  (1591.)  Referring  in  the  oath  to  "  A  woman  who  had  a  husband  "  and  marry- 
ing one  who  was  once  the  swearer's  wife,  and  was  subsequently 
divorced   ...  ...  .  .  ...  ...  ....       tb. 


XXVlll 


INDBX. 


2492.    (1692.)    Oath  against  sexual  intercourse  with  a  woman  "  with  whom  a  man 

has  had  seznal  interoonrse "  would  not  apply  to  one's  wives  and 

female  slayes 
2498.    (1593.)    Oath  to  marry   "in  concealment."     Effects  of     marrying    in  the 

presence  of  two  witnesses  and  of  three  witnesses 
2494.     (1594.)    Sffect  of  proposing  to  and  marrying  two  women  to  whom  a  man  had 

said,    "  If   I  propose  to,  or  marry  yon  two,  then  you  two  are 

divorced" 
2496.     (1595.)    Effect  of    an  oath  for  divorce  when  a  man  remembers  the  oath  but 

does  not  remember  if  he  was  of  age  when  he  took  it     ... 

2496.  (1596.)    Oath  limited  to  a  number  of  years  by  the  word  ila^'*  up  to  " 

2497.  (1597.)    Effect  of  saying,    "  If  I  eat  of  the  bread  of  my  father  until  I  have 

married  Fatima,  then  every  woman  I  shall  marry  is  divorced  " 

2498.  '  (1598.)     Effect  of    the  oath,    "  Every  woman  whom  1  shall  marry  as  long  as 

I  have  not  married  Fatima  is  divorced,*'  when  Fatima  dies  or 
disappears 

2499.  (1599.)    Effect  of  oath  against  marriage  when  the  marriage  is  contracted  by  a 

FuzooUe  and  ratified  by  the  woman 

2500.  (1600.)    Effect  of   an  oath  against  marriage  followed  by  an  invalid  marriage, 

a  separation,  and  a  yalid  marriage 

2601.  (1601.)    Effect  of  an  oath  against  marriage  followed  by  insanity,  and  marriage 

contracted  through  one's  father  ... 

2602.  (1602.)    Device  to  get  out  of  an  oath  by  the  father  making  the  marriage  of  his 

daughter  dependent  on  a  condition  •••  ...  ••• 

2508.  <1603.)    Effect  of  an  oath  by  the  father  against  the  marriage  of  his  minor 

daughter,  who  is  subsequently  given  in  marriage  by  a  Fuzoolee  with 
the  father's  ratification 
2604..  (1604.)    Case  of   a  man  selling  to  his  wife  the  right  of  divorcing  women  he 
may  marry  subsequently  ••• 

2605.  (1605.)    The  Persian  expression  for,  "  Every  woman  I  might  have  as  wife  for 

thirty  years  "  would  apply  to  a  woman  acquired  after  the  oath  and 
not  to  the  present  wife.  Different  constructions  of  the  Arabic 
equivalents  for  that  expression   ...  ...  ...  *.. 

2606.  (1606.)    Meanings  of  hashud  "  may  have  "  and  hoowad    "  might  have  "  in  the 

above  expression 

2607.  (1607,)    lleanings  of    Khahud,    "might  desire,"     hashud     "may  be"    and 

boowad  "might  be"  in  similar  expressions  ... 
2608      (1606.)    Device  of  getting  out  of  an  oath  of  divorce  dependent  on  marriage  ... 

2509.  (1609.)    Meaning  of  the  Persian  expression  for  "  I  am  in  want  of  a  man  who 

would  desire  a  woman  for  me "  ... 
2  5 10.    (1610.)     Meaning  of  the  expression,  "  Do  contract  a  Fuzoolee  marriage  for  me" 
251l'.    (1611.)    Manners  of  ratifying  in  marriage  contracted  by  a  Fuzoolee  without 

incurring  breach  of  oath  ...  ...  ... 

2512  -^  (1612.)    "  If   any  person  tskes  thee  as  a  wife  and  makes  a  gift  of  thee  to  mo, 

then  thou  art  divorced,"  is  void  oath  ...  ...  ••• 

2518.    (1618.)    Oath   against  marriage,  and  Fuzoolee  contracting  marriage  for  the 

swearer,  who  ratifies  it  ...  ...  •••  ... 


Page, 

234 

235 

ih. 

%b. 
ih. 

ih. 

ih, 
286 

ih, 
237 

%b. 

ib. 


ih. 
239 

240 

t&. 

241 

ih. 

ih. 
%h. 


IKDIX. 


Page. 
2614.    (1614.)    Another  method  of  ayoiding  an  oath  by  reference  to  dilforenoes  in  the 

doctrines  of  Hanifi  and  Shafei  schools         .••  ...  ...      242 

26 16.    (1616.)    The  decree  of   a  Eazee  of  Shafei  sect  would  annul  all  oaths  eyen  if 

several,  or  repeated    ...  ...  •«•  ...  ..•      244 

2616.    (1616.)    If  a  man  says,  "  Every  slave,  whom  I  own,  is  free,"  it  will  operate  to 

free  any  slave  on  proof  of  the  oath  and  all  other  subsequent   slaves 

without  such  proof,  in  the  case  of  agency  proved  ...  ...        tb, 

2617*    (1617.)    The  Kazee  not  bound  to  annul  the  oath  of  divorce  dependent  on 

marriage,  if  the  woman  is  married  and  actually  divorced  ..,        {&. 

2618.  (1618.)    A  man  of   the  Hanifite  sect  not  bound  by  the  decree  of  the  Eazee 

of  the  Shafei  sect  refusing  to  annul  an  oath  made  without  previous 
application  to  the  Hanifite  Kazee  ...  ...  ...      246 

2619.  (1619.)    Effects  of  an  arbitration  award  made  by  an  arbitrator  of  the  Hanifite 

Sect  and  of  that  made  by  one  of  the  Shafei  sect  relating  to  the 
avoidance  of  an  oath  by  the  Shafei  School — Order  of  a  Shafiei  Arbi* 
trator,  and  how  the  Maahaikhs  have  dealt  with  it  ...  ...        t5, 

2520.  (1620.)    Effect  of  an  award  of  an  arbitrator  who  does  not  know  of  his  having 

been  appointed  arbitrator  ...  ...  ...  ...      247 

2521.  (1621.)    Effect  of  marriage  by  a  woman  who  has  not  applied  to  the  Kazee  to 

annul  the  oath  of  her  first  husband  ...  ...  ...        ih. 


2622. 

(1622.) 

S62S. 

(1623.) 

2624. 

(1824.) 

2626. 

(leae.) 

262«. 
2627. 
2628. 
3629. 
2630. 

(1626.) 
(1627.) 
(1628.) 
(1629.) 
(1680.) 

2561. 

(1681.) 

26S2. 

(1682,) 

26SS. 
a6Mt 

(1688.) 
(1684.) 

SECTION  I. 

On  fiENBBRINO  UNLAWFUL   ON  ONB'S   SELF  THAT  WHIOH  IS  LAWFUL. 

Effect  of  saying,  "  Every  thing  lawful  is  unlawful  to  me  "  and  similar 
expressions,  if  the  man  happens  to  have  a  wife  ...  ...      248 

Effect  of  the  same  oath  made  conditional  on  a  past  act.    Kujfara  and 
Qhoomooa  explained    ...  ...  ...  ...  ...        ih. 

Effect  of  the  same  oath  made  conditional  on  a  future  act,  considered 
with  reference  to  marriage  and  Kuffara        ...  ...  ...        ih. 

Different  meanings  of  the  expressions,  "  Whatever  I  hold  by  the  right 

hand"  and  "whatever  I  hold  by  the  left  hand"  used  in  an  oath  ...      249 
When  " unlawful"  amounts  to  "  divorced "     ...  ...  ,„      260 

Effect  of  saying,  "  If  I  do  so  and  so  then  thou  art  my  mother"        ...        ih. 
When  an  oath  amounts  to  Eela      •••  ...  ...  •..        th. 

Effect  of  saying  twice,  "  Thou  art  upon  me  unlawful"      ...  ...      261 

Effect  of  a  man  saying  to  both  of  the  wives  he  has,  **  Yon  both,  upon 
me,  are  unlawful."    Nuzur  or  'vow'  and  Tameen  or  'oath'  dis- 
tinguished ...  •••  *••  ••.  •..        ib. 

Effect  of  a  man  saying  to  his  three  wives,  "  Tou  all,  upon  me,  are 
unlawful"...  ...  ...  ..  ...  .^      268 

Oath  of  '  unlawfulness '  against  a  certain  money  if  given  away  in 
Sudka,    Ko  £v/ara  becomes  obligatory        ...  ...  „.        t&. 

Oath  of 'unlawfulness' against  wine  ...  ...  ...        <(• 

A  general  oath  of  '  unUwfulness'  followed  b^  an  oath  of  divorce   ...      264 


IHDBX. 


Fage. 
2686.    (1635.)    Oath  of 'tinlawfalneisa' against  a  wife'  ...  .^.  '.^      ^65 

2586.    (1636.)    Effect  of  Baying  to  one's  wife  in  Persian,  "  Deserted, deserted, unlawful, 

Hfilawfar*  ...  ...  ...  .k.  ..•        *• 


SECTION  II. 

On  Divoecb  oau5ed  by  the  vakeel  (ob  agent)  oe  by  the  woman  HEBSEtF  (with 

AUTHORITY  PEOM  THE  HUSBAND). 


2587.  (1687.) 


2688. 
2689. 
2640. 


(1638.) 
(1639.) 
(1640.) 


2541.    (1641.) 


2642. 
2648. 
2544. 

(1642.) 
(1643.) 
(1644.) 

2646. 
2646. 
2647. 
2648. 
2649. 

(1645.) 
(1646.) 
(1647.) 
(1648.) 
a649.) 

2650. 

(1660.) 

2561. 

(1661.) 

2662. 

(1662.) 

2668. 

(1668.) 

2C64. 
2665. 
2656. 
2667. 

(1664.) 
(1666.) 
(1666.) 
(16S7.) 

2658. 
2669. 

(1688.) 
(1669.) 

2660. 
2661. 

.<1660.) 
(1661.) 

Words  necessary  to  be  used  by  the  woman  (vested  with  authority  to 

diyorce)  in  order  to  cause  the  divorce           ...               ...               ..•  ih. 

Importance  of  mujiis  or  '  meeting'  in  the  exercise  of  such  authority...  256 

Knowledge  of  authority  necessary  to  vest  it  ...                ...                ..-.  ib. 

Authorifcy  to  divorce  other  wives  inoperative  as  regards  the  woman 

herself       ...                ...                ...                ...                ...                ...  xb. 

Authority  to  divorce  on  condition  of  a  release  from  Dower.    Difference 

between "  Tufweez "  and "  Tawkeel "           ...                ...                ...  ih. 

Authority  to  divorce,  limited  for  a  time            ...                ...                ...  257 

Meaning  of  *^lla" — *up  to*  used  in  the  above  di7orce      ...                ...  %b* 

Authority  to  divorce  one's  wife  given  to  another  limited  to  a  period  of 

time          ...                ...                ...                ...                ...                ...  268 

Effect  of  refusal  to  accept  the  authority          ...               •••               ...  xb. 

Authority  to  divorce  expressly  unlimited  as  regards  time                   ...  ih. 

Authority  expressly  unlimited  as  regards  numher  of  divorces            ...  «b. 

Authority  if  exercised  once  within  a  given  period             ...                ...  259 

£ffeot  of  the  authority  given  to  a  wife  if  she  is  divorced  by  the  husband 

himself     ...                ...                ...                ...                ...                ...  t\ 

Authority  limited  by  the  words  "to-day  and  to-morrow  and  the  day 

after  to-morrow."    Effect  of  refusal  on  the  first  day.   ...                ...  «&. 

But  if  limited  by  the  word  *' to-day  and  the  day  after  to-morrow ''  there 

will  be  two  authorities                 ...                ...                ...                ...  ih. 

If,  however,  limited  by  the  words,  "  to-day  and  to-morrow  "  there  will 

be  only  one  authority...                ...                ...                ...                ...  260 

Authority  entrusted  to  a  wife  both  as  regards  herself  and  any  other 

WlIO                       •••                                   <•                                     ••■                                   •••                                   ...                                   ...  \Vm 

Acceptance  by  wife  of  the  authority  on  a  condition         «..                ...  ib. 

Case  where  such  condition  will  not  be  implied                  ...                ...  ih. 

Authority  limited  by  an  entry  in  a  certain  house             ib. 

Effect  of  change  in  place  or  posture  at  the  time  when  the  authority  to 

divorce  is  given           ...                ...                ...                ...                ...  261 

Effect  of  amhxgw>us  words  used  in  an  assemblage                                ...  268 
Case  in  which  authority  may  become  vested  by  the  husband's  saying, 

What  is  in  my  hands  is  in  thy  hands  "  to  the  wife      •••                ...  ih. 

Case  illustrating  that  authority  will  not  vest  until  accepted              •••  i&. 
Case  where  one  divorce  will  be  conatruod  to  have  been  aut^^oxised 

.    although  the  wife  takes  three  diToroe^         ...«               ..^        :      •m  .  268 


INDBX.  XXXI 

Pflfira. 
8542«    (1662.)    Similar  oase  where  Fersiiui  worda  are  ased  and  the  iaijtt^tioii  of  tjie , 

hoBband  is  looked  ixtto                 ...               ...                «..               m*  .  869 

8568.    (1663.)    When  "  iatention ''  may  be  oongtmed  to  give  authority  ..^               m*  ,  264 

8684«    (1664.)    Similar  oase  where  thrte  divoroes  may  be  construed       ...               ..•  ib, 

2565.  (1666.)    Authority  to  divoroe  sfiyen  to  a  Vakeel  who  pronounoea  three  di-  , 

▼orcea.    Extent  of  the  authority  implied    ...               ...               ..•  ib, 

2566.  (1666«)    Where  a  Vakeel  exceeds  his  authority             ...                ..               ;..  ,  ib. 

2567.  (1667.]    If  a  man  says,  ''Divorce  my  wife,  in  the  presence  of  my  brother  "  the 

condition  as  to  2>f6sence  not  essential             ...                ...               ...  266 

2568*    (1668.)    '|Ido  not  prevent  thee  from  divoromg  my  wife"  does  not  imply  an  , 

authority ...               .„               ...               ...               ...                „.  ,  ib, 

2569.  (1669.)    Construction  of  the  words,  "  The  authority  (to  divorce  thyself)  is  in  . 

thy  hands"                 „.                ...                ...                ...                ...  .  t6. 

2570.  (1670.)    Authority  entrusted  to  a  ZtMiottc  or  an  tn/ani  ...               ...               ....  266 

2571.  (1671.)                   Do.               to  it(70  persons                  ...               ...                ...  ib. 

2672.    (1672.)    The  same  case  as  in  para.    (1649)  8ui>ra         ...               ...               ,\,  ib, 

2578.    (1673.)    A  Vakeel  exercising  his  authority  in  a  state  of  drunkenness              ...  ib. 
2674.    (1674.)    A  general  authority  to  an  agent  does  not  include  a  power  to  divorce  , 

the  wife  of  his  principal             ...               ...                ...                ....  ib. 

2575.    (1675.)    Authority  given  to  a  vakeel  under  compulsion                  ...               .\.  ,  267 

2678.    (1676.)    A  vakeel  vested  with  authority  to  divorce  or  emancipate  cannot  be 

compelled  to  exercise  his  authority               ...               ...               ...  ,  ib, 

2577.  (1677.)     Bevocation  of  the  authority  to  divorce.    Conflict  of  opinion              ...  268 

2578.  (1678.)    Bemoval  of  a  vakeel  appointed  with  the  words,  "Ae  often  af  I  /^ll  ,  - 

remove  thee  (then)  thou  art  my  Vakeel"    ...               ...               ...  ib, 

2579.  (1679.)    A  woman  appointing  her  former  husband  as  vakeel  to  marry  her     ...  269 

2580.  (1680.)    Vakeel  appointed  to  divoroe  two  wives  divorces  only  one                  ...  ib. 

2581.  (1681.)    A  vakeel  authorized  to  divorce  in  the  traditionary  form  ...                ...  ib. 

2582.  (1682.)    When  a  man  himself  pronounces  the  divorce  after  he  has  authorised 

a  vakeel  for  that  purpose.    Caaea  of  either  party  or  the  vakeel  becom- 
ing an  infidel              ...               ...                ...               ...               ...  ib, 

2588.    (1683.)    Giving  conditional  powera  to  a  vakeel  is  valid                  ...               ...  270 

2584.    (1684.)     knowledge  of  authority  neceasary  for  its  validity            ...               ...  271 

2586.    (1685.)    Exerciae  of  authority  after  refusal  to  accept  it                 ...               ...  ib. 

2586.  (1686.)    Authority  to  divoroe  made  dependent  on  the  woman's  desire            •••  ib. 

2587.  (1687.)    Importance  of  the  unity  of  meeting  for  acceptance  of  authority       ...  272 

2588.  (1688.)    Authority  given,  subject  to  the  option  of  the  principal  to  confirm  or 

annul  the  act  of  the  vakeel         ...               ...               ...               ...  ib. 

2589.  (1689.)    Authority  given  without  apecifyin^  the  object                 ....               ...  ib. 

2590.  (1690.)    Exerciae  of  authority  without  apeoifyiog  number  of  Divorces          ...  278 

2591.  (1691.)    Authority  given  specifying  the  number  of  divorces           ...               ...  ib, 

2592.  (1692.)    Imperative  authority  to  divoroe  completely  does  not  depend  on  the 

unity  of  the  meeting  for  its  validity             ...                ...                i..  274 

2593.  (1693.)    Construction  of  authority  as  regards  number  of  divorces  when  different 

oonjunctioniJ  particles  are  used  ...               ...              ..^              .«•  ib* 

25M»    (1694.)    Authority  to  divoroe  expressed  in  the  imperative  mood  ...      ,     .  •••  t?^6 


XZXll 


IND£X. 


Page. 

2696*    (1^5.)    When  a  man  entmsts  the  divoroe  of  his  wife  to  an  infant                 ...  276 

2696«    (1696.)    Anthority  to  divorce  given  to  a  Innatio            ...               ...               ...  ih. 

2597*    (1697.)    Vakeel  has  no  power  to  divorce  before  the  happening  of  a  condition 

to  which  hia  authority  is  limited                  ...               ...               ...  ^» 

2698*    (1698.)    Construction  of  authority  expressed  thus,  ''Divorce  my  wife  thrice, 

according  to  the  Soontutt "           ...               ...               ...               ...  277 

2699*    (1699.)    Construction  of  authority  expressed  thus,  When  a  man  says, ''  Divoroe 

my  wife  thrice  according  to  the  Soonnut  in  consideration  of  a 

thousand"                 ...               ...               ...               ...               ••.  278 

2600«    (1700.)    Authority  to  divorce  given  to  two  persons      ...              ...              ...  ib. 

2601.    (1701.)         Do.       given  to  two  persons  jointly           ...               ».•               «..  ib. 

2602*    (1702.)         Do.       given  in  consideration  of  property ...               ...               ...  277 

2608.    (1703.)    Construction  of  "  Divorce  her  thrice  yon  both  together  "..•               ..#  %b, 

2604,    (1704.)    Duration  of  authority  to  divorce  when  not  for  consideration              ...  %b. 

260 5«    (1706.)                      Do.                  Do.        when  for  consideration ...               ..•  ib. 

2006*    (1706.)    Authority  to  divorce  for  consideration  given  after  the  husband  has 

pronounced  divorce   ...               ...               ...               ...               •••  ih, 

2607.  (1707.)    A  Vakeel  cannot  delegate  his  authority  to  another  Vakeel                •••  281 

2608.  (1708.)    A  Vakeel  cannot  ratify  an  act  of  a  stranger    •••               ..•               ...  ib» 

2609.  (1709.)    A  Vakeel's  Vakeel  or  a  stranger  performing  the  act  in  the  presence  of 

the  vakeel. who  permits  it           ...               ...               ...               ,.•  %b, 

2610*    (1710.)    Ambiguity  arising  from  the  act  of  a  Vakeel  acting  for  two  different 

persons     ...                ...                ...               •••                •••               •••  ibm 

2611*    (1711.)    Admission  of  the  vakeel  after  the  expiry  of  his  authority                 ...  282 

CHAPTER  III. 


3612. 

(1712.) 

2613. 

(1718.) 

2614. 

(1714.) 

2616. 

(1715.) 

2616. 

(1716.) 

2617. 

(1717.) 

2618. 

(1718.) 

2619.    (1719.) 


2620. 
2621. 

2622. 
262B. 


(172O0 
(1721.) 

(1722.) 
(1728.) 


SECTION  I. 

On  Ehoola. 

Definition  of  iThooZa  and  its  conditions            ...                ...                •..  282 

Bule  as  to  Ifoototf at  or  "  consideration "          ...                •..               ,.•  288 

Words  necessary  to  constitute  a  IHioo^a           ...                ..•               ,„  284 

Khoola  in  consideration  of  Dower  ...                ...               •••               «.•  285 

Khoola  in  consideration  of  a  portion  of  dower                 ...               „«  286 

ifoobaraat  or  mutual  release           ...               ...               ..«               «•»  287 

Distinction  between  divorce  for  consideration  and  Khoola  according  to 

some  schools              ..«              ...               ...               ..•               •••  %b, 

Khoola  in  consideration  of  dower  when  no  sexual  intercourse  has 

taken  place                ,.«               ...               ...               ...               ,,#  288 

Ehoola  by  the  use  of  the  words  of  sale  and  purchase      •••              •«•  ib* 

Khoola  does  not  release  the  husband  from  other  debts  due  to  wife 

than  dower                 ...               ...               ...               ...               ,.,  289 

Right  of  maintenance  during  Iddut  after  khoola  and  Moobaraat  •••  i&* 
Duty  of  maintaining  children  after  khoola      ...              «•#              .«#   '    ib. 


IKDEX. 


3CXX111 


2626. 

(1726.) 

2626. 

(1726.) 

2627. 

(1727.) 

2628. 

(1728.) 

2629. 

(1729.) 

26ao. 

(1780.) 

2681. 

(1731.) 

2682. 

(1732.) 

2633. 

(1738.) 

2634.    (1784.) 


Page, 
2624.    (1724)    If  release  valid  on  aooonnt  of  condition  aa  to  time  and  child  dies 

before  the  completion  of  the  period  ...  ...  ...      289 

Khoola  made  dependent  bj  the  hnsband  on  a  condition     ...  ...      290 

Conatmotion  as  to  unity  of  meeting  or  otherwise  from  the  manner  of 

answer      ...  ...  ...  ...  ...  ...        {f,. 

When  Khoola  without  words  ezpressing  consideration  may  amount  to 

divorce       ...  ...  ...  ...  ...  ...        H,. 

Khoola  for  consideration  proposed  by  the  husband  must  be  accepted 

by  the  wife  to  be  valid  ...  ...  ...  ...      291 

Construction  of  the  imperative  forms  "  Make  Khoola  upon  thyself,  *'  or 

"Ask  thy  Khoola"      ...  ...  ...  ...  ...        ib. 

Khoola  in  consideration  of  dower  which  is  found  not  due,  wife  must 

return  the  money       ...  ...  ...  ...  ,,.      292 

Last  case  distinguished  from  one  in  which  the  husband  knew  that  no 

dower  was  due  ...  ...  ...  ...  ...        i5. 

If  a  man  marries  his  divorced  wife  who  takes  a  khoola  in  lieu  of* 

dower,  the  husband  is  released  from  the  second  dower  only  ..«      293 

When  the  wife  makes  a  gift  of  a  moiety  of  her  dower,  and  then  takes 

a  khoola  in  consideration  of  some  property  before  sexual  inter- 
course.   DiflEerenceof  opinion    ...  ...  ...  ...        t*5. 

When  the  wife  makes  a  gift  of  a  portion  of  her  dower  and  realized 

the  balance,  and  then  takes  a  khoola  in  lieu  of  property,  the  husband 

can  only  claim  the  remaining  dower  and  the  portion  given  away  to 

him  ...  ...  ...  ...  ...  ...      294 

Khoola  given  in  lieu  of  property  which  the  wife  has  disposed  of.    She 

must  make  it  good     ...  ...  ...  ...  ...      296 

Khoola  given  in  lieu  of  a  slave,  which  however  belongs  to  another. 

Wife  must  pay  his  value  ...  ...  ...  ...        ^^ 

Khoola  given  in  lieu  of  furniture.    Liability  of  the  wife  in  failure  of 

the  consideration       ...  ...  ...  ...•  „,        ^*5^ 

Khoola  given  "  for  whatever  might  be  in  the  wife's  room  "  when  there 

is  nothing  in  it  ...  ...  ...  ...  ...        ^^ 

Khoola  given  in  lieu  of  fruit  on  the  date  trees  of  the  wife  ...      296 

Khoola  '*  in  consideration  of  the  fruit  that  her  date  trees  will  produce 

this  year."— Views  of  Abo  Tusoof  ...  .„  ,.,        1*5^ 

Khoola  in  consideration  of  "  the  dirhems  in  her  hand  " — the  plural 

number  implies  at  least  three  dirhems         ...  ...  .,,        {^^ 

Khoola  in  consideration  of  a '  slave '  or  '  cloth '  or  '  animal '  without 

any  certain  description  ...  ...  ...  ,.,      297 

Divorce  dependent  on  a  condition  introduced  by  the  word  i%a  (when) 

or  muta  (at  the  time  that)  br  in  (if)  ...  ...  .,.        ^i,^ 

Liability  of  the  wife  to  pay  the  consideration  if  the  condition  of  her 

divorce  is  substantially  fulfilled  ...  ...  ...  ..,        {i,^ 

Construction  of  **  Thou  art  divorced  once  and  once,  and  once  "  ...  t&. 
Construction  of  "Thou  art  divorced  thrice^'  when  only  one  divorce  is 

askea        ...  ...  .«•  „,  ...  ^^^       ^^ 


2685. 

(1736.) 

2686. 

(1786.) 

2687. 

(1787.) 

2688. 

<l73a) 

2689. 
2640. 

a789.) 
(1740.) 

2641. 

(1741.) 

2642. 

(1742.) 

2648. 

(1748.) 

2644. 

(1744.) 

2646. 
2646. 

(1746.) 
(1746.) 

XXXXY 


INDIZ. 


2647. 

(1747.) 

9648.! 

(1748.) 

9649.. 

(1740.) 

9660. 

(1760.) 

9661. 

(1761.) 

9669. 

(1762.) 

9668. 

(1768.) 

9664. 

(1764.) 

9666. 

(1766.) 

9666. 

(1766.) 

2667. 

(1767.) 

9668. 

(1768.) 

9688. 

(1769.) 

9660. 

(1760.) 

2661.    (1761.) 


3669. 

(1762.) 

9668. 

(1768.) 

9664. 

(1764.) 

9666. 

(1766.) 

2666. 

(1766.) 

2667. 

(1767.) 

9668. 

(1768.) 

9669. 

(1769.) 

9670. 

(1770.) 

2671. 

(1771.) 

2,672. 

(1772.) 

9678. 

(1778.) 

9674. 

(1774.) 

Page* 
OonsiraotioB    of  ''Thou  art  divoroed  thrice    in  oonridiBratfoit  of  a 

thousand "  when  only  one  divoroe  iB  asked  ...  ...  ...      298 

Woman    made  to  speak  words  of  Khoola  without  knowing  their. 

meaning.    Difference  of  yiews    ..•  ...  •••  ...        ib. 

Intention  of  the. husband  necessary  to  construe  a  proposal  of  Khoola 

by  him      ...  ...  ...  ...  ...  ...      299 

When  the  wife  asks  for  Khoola  and  the  husband  pronounces  divorce.         800 
Oaae  in  which  an  irreversible  divorce  takes  place  on  the  woman  giving 

a  release    ...  •••  ...  ...  ...  ...        t6> 

Increase  of  the  consideration  for  the  Khoola  is  not  valid  after  the 

Khoola ta)ces place    ....  ....  ...  ...  ...        ib. 

If  the  consideration  be,  "  All  the  rights  which  the  woman  has  upon 

the  husband, "  maintenance  during  Iddut  is  not  included  therein  ...      301 
Bffect  of  a  Khoola  obtained  by  a  number  of  people  whose  agency  is 

afterwards  denied  by  the  woman  •••  ...  ...        ib. 

When  a  man  authorizes  another  to  divorce  his  wife  and  the  latter 

gives  her  a  Khoola    ...  ...  ...  ...  ...      803 

Construction  of  the  expression,  "  Divorce  my  wife  on  condition  that  she . 

shall  not  remove  anything  from  the  house, "  when  a  difference  arises 

between  the  husband  and  the  wife  •••  ...  ...        ib. 

Three  divorces  made  dependent  on  three  considerations.    Effect  of 

wife's  acceptance       ...  ...  ...  ...  ...       808 

Sffeot  of  proposal  and  acceptance  of  divorce  before  marriage  between 

the  parties  ...  ...  ...      804 

Valdl  of  the  woman  not  liable  to  the  demand  of  the  husband  ...        ib, 

YHien  a  messenger  of  the  woman  to  her  husband  give  a  release  not 

authorized  by  her,  and  the  husband  claims  it  ...  ...        ib. 

Discussion  of  the  liability  of  the  woman's  Yakil  to  the  demand  of  the 

husband   ...  ...  ...  ...  ...  ••.      305 

.Oonsideration  stipulated  for  during  a  woman's  IddiU        ...  •••        ib. 

If  the  husband  divide  the  dower  into  three  portions  and  gives  three 

separate  divorces  for  each  of  those  portions,  he  shall  be  entitled  to 

one-third  and  the  woman  to  two-thirds         ...  ...  ...        ib, 

A  man  says  to  his  wife,  "  I  have  made  Khoola  with  thee "  and  she 

accepts  the  same        •••  ...  ...  ...  ...        ib. 

When  a  father  obtains  the  Khoola  on  behalf  of  his  daughter.    Discus- 
sion as  regards  the  girl's  age  and  the  security  for  the  consideration.        ib^ 
YHien  a  mother  obtains  the  Khoola  on  behalf  of  her  infant  daughter.      807 
Khoola  by  an  infant  wife  who  understands  the  nature  of  the  Khoola  ...      808 
When  the  infant  appoints  a  Yakil  to  get  Khoola  ...  ib. 

Opinion  of  Khussaf  as  regards  the  Khoola  of  one's  infant  daughter    ...        ib. 
Security  for  the  consideration  of  Khoola         ...  ...  ...       809 

Fixing  time  for  the  payment  of  the  consideration  ...  ...        ib, 

Khoola  by  the  father  of  an  infant  husband     ...  ...  '  ...        4b, 

Khoola  made  1^  a  drunken  man    ...  ...  ...  r  ...        ib. 

Consideration  being  the  custody  of  a  child,  Khoola  ¥alid|  considera- 
tion void  ...  •••  •••  ...  ...  ...      810 


INBK. 


aotxv 


2676.    (1776.) 


2677. 

2678. 
M79. 
2680. 
2681. 

(17W.) 
(1779.) 
(178a) 
(1781.) 

2688. 

(1782.) 

2688. 

(1788.) 

2684. 

(1781) 

2685. 
2686. 

(1786.) 
(1786.) 

2687. 
2688. 

(1787.) 
(1788.) 

Page, 
OoBBid«rati(m  b^ing   tke  maintenanoe  of    a  obild,  woman  aliall  be 

compelled  to  make  good  that  consideration  •••  ••  ...      310 

Similar  rule  in  case  of  a  divoroe    ...  ,.•  ^«  ...       ib» 

Khoola  on  condition  that    th9  woman  gires   np  laaiptenanoe    and 

residence  •••  ...  •••  »»•  *..  .••        tb, 

Khoola  on  condition  that  the  charge  for  residence  shall  be  on  the  woman  811 
Condition  that  the  woman  shall  maintain  the  child  "aa  loi^  as  it  lires."  ih» 
Disonssion  of  conditions  as  regards  suckling  and  maintenance  .••       ib% 

In  a  Khoola  the  dower  must  go  to  the  husband  although  stipulated 

to  be  pud  to  another  .••  ...  ..  .••        tb. 

When  length  of  the  period  of  suckling  is  not  expressed  two  years  is 

implied      ...  ...  ...  •••  *•*  .,»       %b. 

Vagueness  as  regards  length  of  the  period  of  maintenaiioe  or  suckling 

will  not  defeat  a  Khoola  ...  ...  ...  ...      812 

Withdrawal  of  authority  of  a  Vakil  employed  to  obtain  Khoola  not. 

operative  until  he  knows  of  it      ...  ...  ...  ...        %b» 

Not  so  in  the  case  of  a  messenger  ...  .,.  ...  ...        t5. 

If  a  husband  employs  two  men  to  give  Khoola,  neither  of  them  can 
..act  singly...  ...  ...  ...  ...  ...        ih, 

HowthejointAuthority  is  to  be  exercised        ...  ^  .,..       tb. 

If  the  same  person  is  appointed  Vakil  both  by  the  husband  and  the 

wiie  .M  ....  '  •••  •••  »M  ..••      vO» 


SECTION  II. 


On  S7u>ola  hy  ihe  use  of  the  words  of  Sale  and  Purchase. 

2689.  (1788.)    When  a  man  says  to  his  wife,  "  Hast  thou  purchased  from  me  three 

diTorces  in  consideration  of,  Sto."  the  woman  says,  "I  haye  purchas- 
ed, "  there  will  be  no  divorce.  But  if  he  says,  "  Purchase  three, 
divorces,  &o., "  and  she  says,  ''I  have  purchased, "  the  Khoola  shall 
become  complete       •;..  ...  •••  ...  ...      818 

2690.  (1790.)    When  a  man  sells  to  his  wife  divorces  of  his  subsequent  marriages  ••• .    814 

2691.  (1791.)    Bffeot  of  the  woman's  saying, '  I  have  sold '  instead  of  saying,  *  1  have 

purchased'                 ...               ...               ...               ...               ...  %b» 

2892.    (1792.)    Sifect  of  the  woman's  saying,  *^  I  have  sold  to  thee  my  dower,  Ac."  ...  ih, 

2693.  (1798.)    Meanmg  of  the  phrase,  "  With  all  my  heart,"  expressed  in  Penman ...  816 

2694.  (1794.)    fiifect  of  the  woman's  saying,  "  I  have  divorced  myself  "  in  answer  to 

..the  husband's  saying,  "  I  have  sold  to  thee,  Ac."  ...  ...        %b, 

2696.    (179S.)    When  a  man  repeats  three  times,  "  I  have  sold  to  thee  one  divorce  in  . 
ocmsideratiQii  of  8,000  dirhems, "  and  each  time  the  woman  says,  "  I 
have  purchased"        ...  ...  ••.  ...  ...      816 

2696.  (1796.)    Meaning  of  the  expression,  "  I  have  sold  to  thee  thy  Amr,  (affair) "...        %h. 

2697.  •  (1797.)    Meaning  of  1' property  in.  the  room,'.'  when  it  forms  consideration  for 

divorce     ...  ...  ...  ...  ...  .,« .      ^ 

2698.  (1798.)    When  a  divorce  is  S0I4  for  dower  which  a  abready  p(ud   m,  ,„      817 


XXXVl 


INDBZ. 


Tage» 
2699.    (1799.)    Meaning  of  the  expression,  "  I  have  pnrohased  my  person  &om  thee 

in  consideration  of  that  then  can  give  me  "  ...  ...  ...      817 

2700*  (1800.)  When  a  number  of  people  ask  the  wife,  **  Hast  thon  purchased,  &o., " 
and  she  says,  "  Yes,"  and  then  they  ask  the  husband,  ''  Hast  thon 
sold, "  and  he  says,  *' Tes  *'  ...  ...  ...  ...        «&• 

2701*    (1801.)    Similar  case  as  above  where  however  the  husband  says,  he  intended 

by  his  answer  the  sale  of  furniture  ...  ...  ...       %b* 

SECTION  III. 
On  Khoola  in  the  Pertian  language. 

Meaning  of  the  expression,  "Everything  as  to  which  God  will  question 
me  regarding  thee  on  account  of  dower,  &o.,  I  have  sold  to  thee  in 
consideration  of  that  dower  which  is  thy  property,  *'  in  Persian     ...      818 

If  the  husband  asks,  "Hast  thou  sold,  fto.,*'  and  the  wife  says,  "I  have 
sold,"    and  then  the  husband  says,  "I  have  purchased,"    three 
divorces  will  occur     ...  ...  ...  ...  ...        ih. 

If  the  words  used  describe  in  detail  what  is  Khoola,  the  Khoola  will 
take  place  ...  «..  •••  ...  ...        ib. 

Case  of  ambiguity  arising  from  the  answer  of  the  husband  who  has 
given  a  reversible  divorce  and  then  intends  to  make  Khoola  ...        ibm 

When  question  involves  "  divorce  for  property  "  and  answer  involves 
**  divorce  according  to  the  Soonnut,"  only  reversible  divorce  takes 
place         .••  ...  ...  ...  ...  •••      810 

Ambiguity  in  the  phrase,  "  Go  away  now, "  spoken  in  Persian  ...        ih. 

The  husband  says,  "  Hast  thou  purchased  thyself  from  me, "  and  the 
wife  says,  "  I  have  purchased, "  then  the  husband  says,  **  I  have 
sold, "  an  irreversible  divorce  occurs.  Discussion  as  regards  release 
from  dower  t«*  •••  ...  ..•  ...        %b, 

A  man  says  to  his  wife,  "I  have  made  Khoola  with  thee,*'  intending 
divorce,  one  divorce  shall  be  caused,  but  the  husband  shall  not  be 
released  from  dower  •••  ...  ...  ...  ...      820 

If  the  husband  says,  "Purchase  thyself  from  me,"  the  wife  says,  "I 
have  purchased  ; "  but  the  husband  does  not  say  nf terwards^  "  I 
have  sold, "  no  divorce  shall  be  caused.    Distinguished  from  the 
form  "Take  Khoola"...  ...  ...  ...  ...        tb. 

The  wife  says,  "I  have  purchased  myself  in  consideration  of  that 
which  yon  can  give, "  the  husband  then  says,  "  I  have  given, " 
divorce  shall  be  caused  •••  ...  ...  ...      821 

The  wife  says,  "  I  have  purchased  myself,  Ac,  hast  thou  given  P" 
the  husband  says,  "Yes, "  separation  shall  take  place  ...  ...        ih* 

A  man  makes  Khoola  with  his  wife,  and  she  then  says,  "Give  another," 
and  the  husband  says,  "  I  have  given, "  another  divorce  shall  take 
place         ..I  •*•  •••  •!•  .*•  .  •••      322 

If  after  a  woman's  accepting  one  divorce  the  husband  calls  out  "all 

.  throe,  all  three, "  three  divorces  may  occur  ...  •••         ...  •..  .     ih. 


2702. 

(1802.) 

2708. 

(1803.) 

2704. 

(1804.) 

2706. 

(1805.) 

2706. 

(1806.) 

2707. 
2708. 

(1807.) 
(1808.) 

2709.  (1809.) 

2710.  (1810.) 

2711.  (1811.) 


2712. 
2718. 


(1812.) 
(1818.) 


2714.  ..(1814.) 


INDEX. 


xxxvii 


27 1 6.     (1815.)    Heaning  of  "  Go,  the  woman  flhall  be  with  thee  " 

2716.     ( 1816.)    If  people  ask  the  husband,  <<  How  many  diTorcee  did  joa  intend, "  and 

he  sajs,  *' As  many  as  she  wishes,"  this  will  be  a  case  of  Tujweei.,, 
37X7.    (1817.)    Another  ill astration  of  JSei(Mxa  or  formula  by  which  dlForoe  is  caused 

or  created 

27 18.  (1818.)     Meaning  of  the  expression,  "I  have  made  my  hand  short" 

27 1 9.  (1819.)    &f eaning  of  the  espression,  **  I  have  withheld  my  claws  from  thee  **... 

2720.  (1820.)    If  a  woman  says,  *'  I  have  sold  my  divorce, "  and  the  husband  says,  *'  I 

have  accepted,"  no  divorce  shall  be  oansed  ... 
27  2 1 .    (1821.)    Where  a  father-in-law  proposes  the  sale  of  his  daughter's  divorce  to  the 

Bon-in-law...  ...  ...  ... 

2722.     (1822.)    The  ezfiression,  *'  I  have  made  a  gift  of  the  dower  to  thee,  remove  thy 

claws  from  me  "  considered 
27 2S.     (1823.)    When  a  man  sells  a  divorce  having  the  qualities  of  a  Soonnee  taltik  ... 

2724.  (1824.)    Effect  of  a  woman's  release  of  whatever  right  she  has  against  her 

husband  when  the  husband  accepts  it  or  does  not 

272 5.  ( 1 825.)    Ambiguity  as  regards  the  number  of  divorces  in  the  expression,  **  Thou 

hast  been  released, "  to  be  cleared  by  the  intention  of  the  hosband 

OHAPTEE  IV. 
On  ZihaB. 

Heaning  of  ZiJiar 

OooBeqaenoe  ot  Zihar     ...  ...  ... 

A  man  says  to  his  wife,  *'  Thou  art  to  me  like  the  back  of  my  mother  " 
When  he  says,  "  Thou  art  like  my  mother"    ... 
When  he  says,  '*  Thou  art  to  me  like  my  mother^' 
When  he  says, ''  Thou  art  unlawful  like  my  mother  " 
When  he  says,  "  Thou  art  to  me  unlawful  like  the  back  of  my  mother" 
When  he  says,  "  Thoa  art  to  me  like  a  corpse,  or  blood,  or  flesh  of  a 
hog" 

2784.  (1884.)    When  he  says,  "Then  art  to  me  like  the  thigh  of  my  mother,  or  her 

belly,  or  her  private  parts" 

2785.  (1886.)    The  principle  of  Zi^r  ... 

2736.  (1836.)  The  hnsband  says,  "  Thou  art  to  me  like  the  knee  of  my  mother"     ... 

2787.  (1837.)  If  he  says,  <'Thou,  to  me,  art  like  the  back  of  thy  mother  " 

2788.  (1838.)  Jt  he  says,  "  Thou  art  to  me  like  the  back  of  thy  daughter  " 

2789.  (1839.)  Comparing  one's  wife  to  one's  father's  wife,  or  to  one's  son's  wife     ... 

2740.  (1840.)    Comparing  one's  wife  to  a  woman,  with  whom  one's  father  has  com- 

mitted adultery 

2741.  (1841.)    Comparing  one's  wife  to  the  mother  of  a  woman  whom  one  has  kissed 

or  looked  at  with  desire.    Considerations  as  regards  Eoormut-i' 
MooBoknU,  or  "  unlawfulness  arising  from  carnal  intercourse  " 

2742.  (1842.)    Comparing  one's  wife  to  a  woman  who  is,  to  a  certain  extent,  not 

lawful      ...  ...  ...  ...  •••  •*, 

2748.    (1843.)     Comparing  one's  wife  to  a  man 


Page. 
822 

ib. 

ib. 

328 

ib, 

ib. 

ib. 

824. 

ib. 

ib. 
ib. 


8726. 

(1826.) 

2727. 

(1827.) 

2728. 

(1828.) 

2729. 

(1829.) 

2780. 

(1880.) 

2781. 

(1831.) 

2782. 

(1888.) 

2788. 

(1838.) 

ib. 

ib. 

ib. 

ih. 
326 
337 

ib. 

ib. 
ib. 
ib. 
328 
ib. 
ib. 

ib. 


ib. 

331 

ib. 


XXXVUl 


INDEX. 


2744. 

(1844.) 

2746.. 

(1845.) 

2746. 

(1846.) 

2747. 

(18*7.) 

2748. 

(1848.) 

2749. 

(1840.) 

2760, 

(I860:) 

2761. 

(1851.) 

2762. 

(1852.) 

2768. 

(1863.) 

2764. 

(1854.) 

2766. 

(1865.) 

2766, 

(1856.) 

2767. 

(1857.) 

2768. 

(1868.) 

2769« 

(1869.) 

Page, 

Adding  a  oondition  to  the  words  of  oomparison                  ...  ...  881 

For  the  Zihar  to  be  effeotiye,   the  desire  mast  be  expressed  at  the 

same  meeting             ...                ...                ...                •.•  *••  *^' 

Zihar  is  confined  to  wife  only.     Zihar  with  a  female  slare  void  ...  882 

If  a  tooman  makes  Zihar  it  is  Toid                     ...                •••  •••  «'&• 

If  Zihar  is  repeated,  each  Zihar  requires  iuffara              ...  ...  «^* 

Zihar  with  four  wives  requires  separate  kuffara                ..»  •••  ^^* 

Zihar  made  hj  a  damb  person        ...                ...                •••  •••  ^^* 

When  a  husband  makes  Zihar  for  a  time  f^xed                  •••  ..*  «&* 

Zihar  befora  marriage  ...                ...                ...                *..  •••  *'^* 

Words  of  diToroe  and  Zihar  preceding  marriage.    Differenoe  between 

the  opinions  of  Aboo-Hanifa  and  those  of  his  disciples  ...  •••  ^• 

Zihar  subsists  even  after  divorce  and  subsequent  fresh  marriage  ...  833 

Zihar  is  not  avoided  by  the  woman  becoming  an  apostate  ...  ib, 

Zihar  made  with  one's  wife,  who  was  formerly  a  slave     ...  ...  834 

When  the  husband  sayo,  **  If  thou  shall  enter  the  house,  then  thou 

art  like  the  back  of  my  mother,  "  and  then  divorces  her  •••  ilu 

Kuffara  of  Zihar             ...                 ...                 ...                 ...  •••  ib. 

Penalty  in  kuffara  is  not  observed  ...                ...                ...  ...  ih. 


CHAPTRa  V. 

Section  I. 

On  Eela. 

2760.  (1860.)    Meaning  and  effect  of  feZa  ...  ...  ...  ...      335 

2761.  (1861.)    There  is  no  Eela  in  the  expression,  *'By  God  I  will  not  have  sexual 

intercourse  with  thee  until  thou  or  so  and  so  dies "       ...  ...       836 

2762.  (1862.)     There  is  Eela  it  the  oath  is  conditioned  with  the  words  "until  the 

appearance  of  Dujjalf  or  '*  until  the  rising  of  the  sun  from  the  west"  •&. 

2768.  (1863.)    When  the  condition  is  the  emancipation  of  a  slare            ...                ...  ib. 

2764.    (1864.)    There  is  £eZa  if  the  expression  denotes  Tabeed  (perpetuality)            ...  ib. 

2766.     ( 1866. ) '   Eela  has  reference  to  sexual  intercourse  only                      ...                ...  337 

2766.  (1866.)    There  is  no  Eela  in  the  expression,  "  By  God,  my  skin  shall  not  touch 

thy  skin"...  ...  ...  ...  ...  ...        ib. 

2767.  (1867.)    The   above  expression  distinguished  from  another  which  constitutes 

Eela  ...  ...  ...  ...  ...  ...        id. 

2768     (1868.)    The  expression,  "  If  I  sleep  with  thee,  then  then  art  divorced, "  may  be 

Eela  or  simple  oath  according  to  intention   ...  •,.  •••        ib, 

2769.  (1860.)    Meaning  of,  "  If  I  extend  my  hand  to  my  wife  for  one  year"  ...        ib, 

2770.  (1870.)    Construction  of  the  expression,  **  If  I  have  sexual  intercourse,  then  thon 

art  divorced  **  ...  ...  ...  ...  ...        ib. 

2771.  (1871.)    Case  in  which  the  expression,  "  As  long  as  thon  continue  to  be  my 

wife, "  refers  to  the  subsistence  of  the  particular  marriage  in  which 

the  oath  was  taken     ...  ...  ...  ...  ...       838 

2772.  (1872.)    Device  to  avoid  the  effect  of  an  oath  of  three  divorces  made  in  an  Eela      339 


IVDBX.  XXXIZ 

Page, 
2778.    (1873.)    There  i8  no  deyice  to  get  over  the  oath,  "  If  I  ever  have  Boxcal  inter- 

oonrse  with  thee,  then  thou  art  divoroed  thrice"  ...  ...      389 

2774.  (1874.)    An  oath  of  Eela  confined  to  one  year  admits  of  three  mftrriages,  hnt 

two  divorces  onTy       ...                ...                ...                ...                ...  ih, 

2775.  (1875.)     Case  of  an  invalid  £e2a  where  the  condition  was  non-existent            ...  8410 

2776.  (1876.)    Oath  of  ifela  confined  to  a  partionlar  place       ...                ...                ...  ih, 

2777.  (1877.)     Constmction  of  the  expression  in  Persian,  *' If  thou  shnit  not  come 

within  me  then  then  art  divoroed  *'  ...  ...  ...        %h, 

2778.  (1878.)     A  man  may  not  make  one  wife  partner  with  another,  with  whom  he 

has  made  Eela,  but  he  may  make  the  former  partner  with  the  latter 

in  Zihnr    ...  ...  ...  ...  ...  ...         t'B. 

2779.  (1879.)    Case  of  a  joint  i?«Ia  with  two  wives  ...  ...  ...      841 

2780.  (18S0.)     A    case    of   Eela    with  three  divorces  (not  being  a  vow  ^  abstain  in 

perpotnity).     £e{a  and  Zthnr  distingnished  ...  ...  ...        tb. 

2781.  (1881.)    Jddnt  of  divorce  and  period  of  Eela  explained  and  distin^nished        ...      842 

2782.  (1882.)    Case  of  a  man  who  makes  an  Rela  unrestricted  as  to  time,  then 

divorces  his  wife,  and  then  marries  her       ...                ...  ...  tb. 

2783.  (1883.)    An  Jl?e24  after  divorce     ...                ...                ...                ...  ...  tb. 

2784.  (1884.)    Fye  or  retractation  from  the  o*tb    ...                ...                .,.  ...  tb. 

2785.  (1885.)     Case   when   retractation   by    means  of  speech  may  be  proper  or 

otherwise....  ...  ...  ...  ...  ...      Z4t^ 

2786.  (1886.)    Betractation  from  oath  not  conveyed  in  words  is  invalid...  ...        t5. 

2787.  (1887.)    Another  case  in  which  an  act  may  not  amount  to  a  retractation        ...        ib. 

SECTION  II. 

Olf  THE  81EPASATI0N   BKTWSBN  THB   SPOUSRS,  RT  RKABON  OF  ONE   BCGOMINO  THB   OWNSB 
OF  TBI   OTBKB,   AND   BT  BBASON   OF  ONB   BBCOMINQ  AN   INFIDBL. 

2788.  (1888.)    If  a  man  purchase  his  wife,  who  was  another's  slave,  the  marringe 

becomes  void.    Consequences  following  the- transaction  ...       343 

2789.  (1889.)    In  the  above  case  if  he  divorces  her  and  then  purchases  her  before  the 

divorce  takes  effect    ...  ...  ...  ...  .,.      344 

2790.  (1890.)     Or  if  he  makes  Eela  with  her  and  then  purchases  her       ...  ....        ib» 

2791.  (1891.)    Or  gives  her  a  divorce  subject  to  a  condition  which  happens  after  his 

pnrchnse  ...  ...  ...  ...  ...  ...        ih, 

2792.  (1892.)     And  after  purchasing  her,  he  emancipates  her,  and  then  the  conditions 

mentioned  above  are  fulfilled.     Difference  of  opinion    ...  ...         ^, 

2798.  (1898.)  If  a  free  woman  purchases  her  husband  who  is  another's  slave,  the 
marriage  is  annulled,  and  the  parties  become  strangers.  Conse- 
quences following  the  transaction  ...  ...  ...       845 

2794.  (1894.)    If  a  sTnve  husband  gives  a  divorce  to  his  free  wife,  and  then  she 

becomes  the  owner  of  the  man  ...  ...  ...  ...        tb. 

2795.  (1806.)    Effect  of  the  apostacy  of  the  wife ...  ...  ...  ...        tb. 

2796.  (1806w)    Case  of  a  man  who  divorces  his  wife,  becomes  an  apostate,  and  joins 

the  Dar-ool  Hurub     ..•  •••  «,  m»  .„      846 


xl 


INDKX. 


2797.    (1807.) 


2798. 

(1898.) 

2799. 

(1899.) 

2800, 

(1900.) 

2801. 

(1901.) 

2802. 

(1902.) 

2808. 

(1908.) 

2804. 

(1904.) 

2806. 

(1906.) 

2806. 

(1900.) 

2807. 

(1907.) 

3808. 

(1908.) 

2809. 

(1909.) 

2810. 

(1910.) 

2811. 

(1911.) 

2812. 

(1912.) 

2818. 

(1918.) 

2814. 

(1914.) 

2816. 

(1915.) 

2816. 

(1916.) 

2817. 

(1917.) 

2818. 

(1918.) 

Page, 
If  the  hosband  makes  J^eZa  and  then  joins  the  Dor-ool  Harnb  before 

the  period  of  Jff^Za       ...                .,.                •••               ...               •••  846 

Diroroe  by  the  husband  after  he  has  joined  the  Dar-ool  Hnrob  ...  ib. 
A  woman  who  has  beoome  an  apostate  and  joined  the  Dar-ool  Harnb 

is  diyoroed  by  the  husband,  and  then  she  returns  to  the  Dar-ool 

Islam         ...                                 .,                ...  347 

A  minor  wife  is  not  separated  from  her  husband  by  her  parents 

becoming  infidels        ...                 ...                ...                ...                 ...  ih. 

A  Christian  minor  wife,  who  is  married  to  a  Moslem^  is  not  separated 

from  the  husband  by  her  father  becoming  a  MujooseB    ...                ...  348 

A  Moslem  wife  who  becomes  an  idiot  and  her  guardians  beoome 

apostate     ...                ...                ...                •,.                ...                 ..  ih. 

A  Christian  minor  wife  who,  on  attaining  majority,  does  not  follow 

any  religion,  shall  beoome  separated  from  her  husband  ...  ih. 
So  in  the  case  of  a  Moslem  minor  wife  who,  when  adult,  does  not 

follow  any  religion,  or  is  unable  to  state  the  tenets  of  her  religion...  t&. 

Apostaoy  of  a  boy  or  a  girl  who  has  understanding           ...                ...  849 

A  boy  who  cannot,   on  attaining  majority,  state  the  tenets  of  his 

religion,  becomes  an  apostate       ...                •••                ...                ...  ib. 

A  Christian  wife  becoming  a  Moslem               ...                ...                ...  ib. 

If  the  husband  and  wife  both  forsake  Islam    ...                ...                ...  850 

If  a  Zimmee  changes  his  religion  for  another  non-Moslem  religion     ...  ib. 

If  a  Huruhee  wife  comes  to  Dar-ool  Islam  leaving  her  .infidel  husband  ih. 
If  a  Huruhee  husband  comes  to  the  Dar-ool  Islam  leaving  behind  his 

infidel  wife                  ...                ...                ...                ...                •••  ib. 

Similar  case,  where  either  the  husband  or  the  wife  is  a  Zimmee         ...  ib. 

But  if  either  of  them  oomes  to  Dar*ool  Islam  aff  a  Moostamin             ...  ib. 

Or  if  both  come  out  as  Moostamins,  and  one  of  them  becomes  a  Moslem  ib. 

Effect  of  the  acceptance  of  Islam  by  either  party  in  the  Dar-ool  Hurub  861 

If  a  Zimmee  woman  becomes  a  Moslem            ...                ...                ... .  ib. 

Or  if  a  husband  becomes  Moslem  and  the  wife  remains  an  infidel      ...  ib, 

Apostaoy  of  one  of  the  spouses  does  not  amount  to  divorce               ...  ib. 


CHAPTER  VI. 
On  Lian. 

Meaning  of  Xisn          ...               ...                ...                ...               ...  352 

2819.  (1919.)    Conditions  of  Lian         ...                ...               ...               ...                ...  ib. 

2820.  (1920.)    Capacity  of /asift  or  blind  persons  to  take  the  oath           ...                ...  853 

2821.  (1921.)    Character  of  the  accusation  contemplated  by  £«an          ...               ...  ib. 

2822.  (1922.)    Cases  where  Lian  does  not  take  place             ...               ...                ...  ib. 

2828.    (1928.)    Or  if  the  husband  is  not  a  fit  subject  (ahl)  for  Hudd  (punishment)  ...  854 
2824.    (1924  )    Or  if  the  conditions  of  Lian  exist,  and  he  gives  her  an  irreversible 

divorce     ...                •».                ...                ...                ...                ...  ib, 

2826.    (1925.)    Mode  of  making  Ziaii  ...               ...                ...               ...               ...  ib. 

2826.    (1926.)    Proceednre  on  Lian  before  the  Kasee              ...                ...                ...  i6. 


IKDSZ. 


xli 


2827. 
2828. 

2829. 
2880. 


(1927.) 
(1928.) 

(1929.) 
(1930.) 


2881.  (1931.) 


2882.  (198S.) 


2888 
2884. 
2836. 


(1933.) 
(1984.) 
(1985.) 


2888.    (1936.) 


2887. 

(1937.) 

2888 

(1938.) 

2889. 

(19890 

2840. 

(1940.) 

2841. 

(1941.) 

2848. 

(1942.) 

2848. 

(1943.) 

2844. 

(1944.) 

2846. 

(1945.) 

2846. 

(1946.) 

2847. 

(1947.) 

2848. 

(1948.) 

2849. 

(1949.) 

2850. 

(1950.) 

2851. 

(1951.) 

Page. 
855 

ib. 

ib. 

ib. 

357 


Penalty  for  rofasing  to  take  the  oath 

Where  the  making  of  the  aocosatioD  is  denied  by  the  husband  though 

proTed  by  witneaaes  •.. 
Effect  of  £tan 

If  the  hoshand  repudiates  the  pregnanoy  of  his  wife        .., 
Differenoe  between  aconsiDg  one's  wifo  of  Zina  and   denying  the 

paternity  of  a  child  bom  ...  ...  ...  •,. 

A  father  cannot  ropndiate  one  of  two  twin  children,  after  admitting 

the  other...  ...  ...  ..» 

Bflfoct  of  nich  repudiation  as  regards  Lion     ... 

Considerations  as  regards  the  repndiation  of  the  paternity  of  a  child... 

After  the  decree  of  the  Kazee,  if  the  parties  persist  in  the  Lian,  there 

can  be  no  marriage  between  them.    Bnt  if  the  bosband  loses  the 

capacity  for  Lian,  marriage  is  possible  •••  ...  .    ...      859 

8o  if  the  woman  is  incapncitated,  a  fresh  marriage  is  possible  ...        ib. 

Effect  of  the  confirmation  by  the  wife  of  the  husband's  accusation  ...  ih. 
If  the  Kazee  separates  the  parties  before  thQ  full  number  of  the 

Xton  has  been  made   ...  ...  ..«  •..  ...      880 

Or  before  the  greater  nnmbcw  of  Lion  is  made  ...  ...        ib, 

CHAPTBB  VII. 

8KCTI0N  I. 

On  Iddut. 

Meaning  of  Iddvi.  360 

Motndda  women  are  of  three  classes               ...                ...                ...  365 

Mode  of  observance  of  the  Iddtti                       ...                ...                ...  ib, 

Iddut  to  be  observed  by  a  divorced  woman  with  whom  intercourse  or 

valid  retirement  was  had             ...                ...                ...                ...  ib. 

Valid  retirement,  what  is  (See  para.  487,  Volume  XI,  page  193)          •••  ib. 

Gases  where  IddiU  is  observed  and  where  not ...               ...                ...  366 

Iddut  of  divorce  regulated  with   reference   to  menses,  months  and 

delivery    ...                ...                ...                ...                •••                ...  tb. 

Divorce  during  menses  and  obligation  of  the  wife  thereunder  ...  ib, 
A  case  where  obligation  to  observe  Iddut  does  not  arise,  and  one  where 

it  does       ...                •••                •••                •••                ••>                .«•  i&. 

Iddut  of  a  minor  or  Ayasa  limited  to  thr^  months            ...                ...  367 

What  constitotes  the  Gmit  of  Ayasa  or  age  when  a  woman  ceases  to 

have  her  menses                ...                ...                •••                ...         ...  ib. 

Obligation  of  an  ayaas  or  a  minor  to  observe  Iddut  reckoned  by  months  ib , 

Limited  to  three  lunar  months,  and  the  mode  of  calculating  the  same  ib, 
Iddut  of  a  pregnant  woman  on  account  of  causes  described,  must  be  her 

delivery     •••                •••                •••               •••               •••                •••  ■  ib, 

A  Pregnant  woman's  delivery  ends  the  right  to  make  Rujaat  (or  take 

the  wife  back)            ...                ...                •••                ...                ...  ib. 

Iddut  expires,  where  twins  are  bom,  with  the  birth  of  the  last          ...  368 


zlii 


INDEX. 


2862. 

(1952.) 

28S8. 

(1968.) 

2854. 

(1964.) 

2866. 

(1966.) 

2866. 

(1966.) 

2867. 

(1967.) 

2868. 

(1968.) 

2869. 

(1969.) 

2860. 

(1960.) 

2861. 

(1961.) 

2868. 

(1962.) 

2868. 

(1968.) 

2864.    (1964.) 


Page, 
Duration  of  the  Iddv^t  of  a  slaye,  a  Moduhhurd,  a  Mookatuha  or  a 

Oomm-i-wnlnd  ...  ...  ..i  •••  ...       868 

The  Oomm-i-wnlad  emaocitated,  or  whose  master  is  dead,  mnst  observe 

Iddut  for  three  months  like  a  free  woman    i..  ...  ...        i6. 

A  oase  where  the  Oomm-i-wn1nd  need  not  observe  Iddut  for  a  oanse 

enumerated,  and  fiic«i»b  not  established  without  daiwat  if  she  gives 

birth  to  a  child  at  or  six  months  thereof ter  k..  ...  ...         %b. 

A  case  of  a  male  slave  of  the  Mochatub  clAss  purchasing  his  wife ; 

also  a  slave  of  another,  and  instances  of  the  varying  conditions  of  Iddut       ib. 
Iddut,  osMBognent  on  the  death  of  the  husband  as  regards  a  free 

woman,  is  four  months  and  ten  days,  ..  ...  ...      d69 

And  as  regards  a  slave  belonging  to  another^  is  two  months  and  five 

days.  ...  ...  •••  •*•  >..      870 

Iddut  of  a  woman  whether  free  or  a  slave  if  t>regnant  is  up  to  her 

delivery     ...  •••  ...  .«.  ...  ...        i&> 

Iddut  of  a  pregnant  woman  for  her  deceased  infant  husband  shall  last 

up  to  her  delivery       ...  ...  .«.  ...  ...        «5. 

Iddut  of  divorce  or  death,  if  she  inherits,  shall  be  for  the  longer  period 

of  Iddut  prescribed  for  divorce  and  death  respectively    ...  .«•        i^. 

Iddut  of  each  of  two  wives  who  get  menses  must  be  the  Iddut  pre- 
scribed for  the  death  of  the  husband,  so  that  three  menses  must  also 

be  completed  within  that  period...  *..  ...  ...      871 

So  also  if  the  husband,  daring  health,  divorces  thrice  one  of  his  two 

wives  without  partioularising  the  one  divorced  •••  ...        «b. 

So   also  if  the  husband  says  to  his  two  wives,  "  One  of  you  two  is 

divorced  thrice",  and  explains  when  sick  which  of  them  he  had 

divorced     ... 
Two  IddutB  can  conjointly  expire  within  ode  and  the  same  period  and 

the  discussion  thereon  of  the  learned  Jurists  •••  ...        ib. 


ALTERATION  OF  IDDOT. 

SECTION  11. 

On  thb  Tbanbfke  of  Iddut  (that  is,  thb  alteration  of  Iddut  of  onb  kind  to  that  or 

ANOTHBB.) 

2865.    (1965.)    Gases  where  Iddut  is  to  be  recommenced  after  a  part  is  already 

observed: — An  infant- wife           ...                ...                ...                ...  878 

Case  of  an  Ayasa,  «.«.,  who  has  attained  an  age  when  menses  cease   ...  •6, 

Case  of  a  divorced  woman  who  becomes  an  Aytua  during  her  Iddut.,,  874 

If  an  Aya8a  marries  after  completing  Iddut  and  then  gets  menses    ...  tb. 

Case  of  a  slave  wife  who  is  divorced  and  emancipated     ...                ...  %b. 

If  the  husbHnd  of  a  female  slave  dies            ...                ...                •••  ib. 

If  a  free  woman  is  divorced  and  her  husband  dies  daring  her  Iddut.,,  875 
Case  of  a  woman  whose  husband  is  dead,is  delivered  of  a  child  more 
than  two  years  from  the  date  of  her  husband's  death     ...                ...,•&. 

Consideration  as  regards  the  above  case.    Establishment  of    ntt9uh 

when  possible  and  when  not         ...                 ...                ...                ...  ibr 


2866. 

(1966.) 

2867. 

(1967.) 

2868. 

(1968.) 

2869. 

(1989.) 

2870. 

(1970.) 

2871. 

(1971.) 

2872. 

(1972.) 

INDBX. 


xliii 


8»78.    (1978.) 


2874. 

(1974) 

8876. 

(1976.) 

8878. 

(1976.) 

2877. 

(1977.) 

2878. 

(1978.) 

2879. 

(1979.) 

2880. 

(1980.) 

2881. 

(1981.) 

2882. 

(1982.) 

2888. 

(198S0 

2884. 

(198i.) 

2886. 

(1986.) 

2888. 

(1986.) 

2887. 

(1987.) 

2888. 

(1983.) 

2889. 

(1989.) 

2890. 

(1990.) 

2891. 

(1991.) 

2892. 

(1992.) 

2898. 

(1993.) 

2894. 

(1994.) 

2896. 

(1995.) 

Page, 
When^fae  master  of  an  Oomm.t-KmZttd  dies  whilst  she  is  in  the  marri- 
age of  another           «..               ...                ...                ...               ...  877 

And  if  she  is  emancipated  daring  her  Iddut                      ...                ...  «6. 

And  if  the  master  dies  after  her  Iddut             ...                ...                ...  878 

And  if  she  becomes  unlawful  to  her  master,  and  the  latter  dies        ...  t&. 

And  if  her  husband  and  her  master  both  die,  Tariations  of  the  case 

A  Case  when  four  IdduU  become  obligatory  on  a  woman  ...                ...  880 

The  Iddtt^  of  a  Kitabia  woman       ...                ...                ...                ...  %b, 

A  woman  who  leaves  the  Dar-ool  Huruh                           ...                ...  «6. 

When  Iddut  is  to  be  counted  from  the, time  of  the  husband's  admission 

of  the  divorce             ...                ...                ...                ...                ...  t6. 

Admission  of  a  woman  that  her  Iddut  has  expired         ...                ...  881 

When  the  husband  is  absent  and  the  woman  reoeiTea  intelligence 

of  divorce  by  him  or  of  his  death                 ...                ...                ...  ih, 

Sffeot  of  the  expression,    "  As  often  as  thou  shall  get  menses  and 

become  pure  thou  art  divorced  *'  on  Iddut    ...                ...                •..  ih. 

When  a  wife  receives  contradictory  intelligence  as  regards  the  existence 

of  her  absent  husband                  ...                •,.                ...                ...  ih. 

When  a  man  has  taken  an  oath  that  he  will  marry  a  Syeeba              ...  882 
When  a  man  has  intercourse  with  his  thrice  divorced  wife  after  she 

has  observed  her  Iddut  for  two  menses         •••                ...                •••  tb. 
When  a  man  remains  with  his  wife  after  he  has  given  her  irreversible 

divorce     ...               ...               •••               ...               •••               ...  888 

Whenamaadivoroes  his  wife  thrice  and  oonoeals  the  fact  from  the 

people       ...               ...               ...                ...               ...               ...  ih. 

When  a  man  divorces  his  wife  thrice  and  she  marries  another  man  at 

once.    Oonsiderations  as  regards  Iddut        ...                ...               ...  ib, 

Iddut  in  the  case  of  a  marriage  which  is  fasid                 ...               ,„  284 
When  should  a  female  minor,  who  has  attained  puberty,  observe  her 

Iddut  by  reference  to  months      ...               ...               ..»               ..,  %h» 

Compromise  in  lieu  of  maintenance  during  the  Iddut       ...                •».  885 

Compromise  in  Hen  of  hire  for  suckling  the  child             ...                ...  ih. 

Compromise  in  lien  of  residence    ...                •«.                ...                «.«  ih. 


SECTION  III. 
On  what  is  fobbibdxn  (ob  unlawful)  to  thb  (Motudda  ob)  wojian 

WHO  IS  0B8BBVINO  HBB  IdDUT. 

2896.  (1996.)  A  woman  not  to  go  out  of  her  house  during  Iddut,           ...               ...  886 

2897.  (1997.)  But  for  necessities  for  her  maintenance.                             ...                ...  ih. 

2898.  (1998.)  Widow  to  keep  within  her  deceased  hnsband's  room         .,.                ...  t6. 

2899.  (1999.)  Or  in  the  portion  of  the  house  she  receives  by  inheritance                 ...  ih. 

2900.  (2000.)  When  the  husband,  who  has  divorced  his  wife,  resides  in  a  tent  and 

goes  about  from  place  to  place    ...  ...  ...  ...      887 

2901.  (2001.)    A  widow,  who  is  alone  in  the  house,  may  remove  if  she  feels  intense 

fear  ...  ...  ...  ...  ...  ...        io« 

2902.  (2002.)    Case  of  a  woman  who  has  received  ikhooZa  in  lien  of  maintenance     ...        ib. 


Xliv 


INDBX. 


2908. 
2904. 
2906. 

(2008.) 

(2004.) 
(2006.) 

8906. 

(2006.) 

2907. 

(2007.) 

2908. 

(2008.) 

2909. 
2910. 
2911. 
8912. 
2918. 
2914. 

(2009.) 
(2010.) 
(2011.) 
(2012.) 
(2018.) 
(2014.) 

2916. 
2916. 

(2015.) 
(2016) 

On 

2917. 
2918. 
2919. 
2920. 
2921. 
2922. 

(2O170 
(2018.) 
(2019.) 
(2020.) 
(2021.) 
(2022.) 

2928. 
2924. 
2925. 

(2023.) 
(2024.) 
(2025.) 

2926. 
2927. 

(2026.) 
(2027.) 

2928. 

(2028.) 

2929. 

(2029.) 

2980. 

(2030.) 

2981.    (2031.) 


Page. 

A  woman  cannot  take  a  journey  during  her  Iddut    *        ...                ...  887 

Bat  if  the  hasband  takes  her  along  with  him  on  a  journey                 •••  888 
If  the  huaband  takes  his  wife  out  on  a  journey  and  while  on  the 

journey  divoi-ces  her  and  then  diea               ...                ...               ...  t6* 

A  woman  observing  Iddut  may  go  out  as  far  as  the  oourt-yard  of  the 

house,  but  not  so  if  persons  not  unlawful  to  her  reside  therein      ...  889 
Husband  to  pay  the  hire  of  the  room  where  the  wife  i6  observing  the 

Iddut         ...                ...                ...                ...                ...                ...  %b. 

If  the  woman  is  a  minor  she  may  go  out  unless  the  divorce  is  rever- 
sible         ...               ...                ...               ...               ...                ...  ib. 

The  position  of  a  Ztfabia  woman    ...               ...                ...               ...  «6. 

The  position  of  Mumlnka,  Mookatuba,  or  Oom-a*wQlQd  ...                ...  ib. 

A  woman  in  her  Icldttt  to  avoid  all  ornamentation            ...                ...  ib« 

But  a  comb  with  teeth  wide  apart  may  be  used  by  her    •••               ...  390 

She  may  wear  a  coloured  cloth  if  she  has  no  other  to  wear               ...  ib. 
Case  of  a  female  slave  who  marries  a  man  who  afterwards  becomes 

her  owner...               ...               ...               ...               ...               ...  ib, 

Iddut  in  the  case  of  an  invalid  marriage           ...                ...                ...  891 

A  JETito&Ki  not  obliged  to  observe  mourning      ...                ...               ...  ib, 

SECTION  IV. 

THB  MOTUDDA  (OK  A  WOMAN  OB8BBVINO  HBB  IdDUT)  WHO  INHBBITS. 

A  woman  reversibly  divorced  becoming  a  widow  in  her  Iddut  inherits      891 
Not  so  if  an  irreversible  divorce  is  given  in  health  ...  •••        ib. 

The  principle  npon  which  this  is  founded        •••  ,..  ...       992 

The  universal  rule  as  regards  muntU'inout      ...  ...  ...         ib* 

Description  of  a  Farr    ...  ...  ...  ...  «••       393 

One  who  is  arrayed  in  battle  against  an  enemy  divorces  his   wife  is 

not  a  Farr...  ...  ...  ...  ...  ...        ib. 

Nor  one  who  is  under  sentence  of  death  ...  ...  ...         ib. 

Case  of  a  man  in  a  voyage  divorcing  in  a  ship-wreck      ...  ...         ib^ 

Case  of  a  man  bed-ridden  divorcing  and   then  recovering  and  then 

falling  sick  again       ...  ...  ...  ...  ..         ib. 

If  a  sick  man  says,  '*  I  divorce  thee  thrice  in  health  "  and  then  he  dies  b. 

If  a  sick  man  gives  a  complete  divorce  after  intercourse,  and  then 

says,  '*  When  I  shall  marry  thee  then  thou  art  thrice  divorced, "  and 

then  marries  her  during  the  Iddut  ...  ...  ...        ib. 

Inheritance  of  a  wife  from  a  husband  who  becomes  an  apostate. 

Considerations  on  the  question     ...  ...  ...  ...      395 

Inheritance  from  a  wife  who  whilst  sick  has  intercourse  with  her 

husband's  Son  ...  ...  ...  ...  ...      397 

On  a  dispute  between  the  widow  and  the  heira  of  her  husband  as  to 

whether  the  divorce  was  in  sickness  or  in  health.    The  widow  to  be 

believed    ...  ...  ...  ...  •.«  ...        ih, 

Diftpute  between  the  widow  and  the  heirs  of  the  husband  as  to  whether 

she  was  emancipated  before  or  after  death.  The  heirs  to  be  believed        ih. 


TNBRX. 


xly 


2982.  (2Q32.) 


2088. 
2984. 

2986. 
2986. 


(2033.) 
(2034.) 

(2035) 
(2086.) 


2987.  (2037.) 


2938. 

(2038.) 

2989. 

(2039.) 

2940. 

(2040.) 

2941. 

(2041.) 

2942. 

(2042.) 

2948. 

(2043.) 

2944. 

(2044.) 

2946. 

(2045.) 

2946. 

(2046.) 

2947. 

(2047.) 

2948. 

(2048.) 

Page. 
In  the  absence  of  eTidence  the  heirs  are  to  be  belieTed  as  to  whether 
.  .  the  widow,  who  was  a  Kitdbia^  became  a  Moslem  before  or  after  her 

hnaband's  death         ...  ...  ...  ...  ...      897 

A  sick  roan  diyoroes  his  wife,  who  then  kills  him,  she  shall  not  inherit      898 
A  slave  wife,  whose  divorce  was  contingent  on  emancipafcion,  is  eman- 
cipated, and  the  husband  dies  in  her  Iddut.    She  inherits  ...        ib. 
Inheritance  when  emancipation  and  divorce  take  place  at  the  same  time        ib. 
When  the  master  says,  "  Thon  art  free  to-morrow'*  and  the  hasband 

says,  "  Thon  art  divorced  thrice  after  to-morrow "         ...  ...        ih. 

When   the  huBband,  who  is  sick,   knows  of  the  emancipation  and 

divorces,  he  is  a  Farr...  ...  ...  ...  ...        •'&. 

Similar  case  as  regards  a  ISitahia  woman        ...  ...  ...       899 

Case  of  a  woman  who  lays  claim  of  divorce  against  her  hnsband,  who 

dies  afterwards  ...  ...  ...  ...  ...        ih. 

Inheritance  as  reg^ds  two  widows,  whose  divorce  was  contingent  npon 

entry  in  a  particniar  house  ...  ...  •••  ...        ih. 

Inheritance  as  regards  a  widow,  whose  divorce  was  contingent  on  the 

desire  of  her  hnsband  or  of  a  stranger 

Considerations  arising  npon  the  above  two  cases  ...  ...         \h 

When  separation  takes  place  by  an  act  of  the  wife,  and  she  dies  during 

herlddtt*...  ...  ...  ...  ...  ...       401 

A  man  says  to  his  wife,   "  When  I  shall  become  sick,  then  thou  art 

divorced  thrice  j  '*  he  then  becomes  sick  and  dies  while  the  wife  is 

observing  her  Iddut,    The  wife  shall  inherit  ...  ...         ih. 

So  if  the  woman  asks  the  divorce  from  her  sick  husband,  and  gets  it, 

and  the  husband  dies  in  her  Iddut  ...  ...  ...      402 

When  a  consumptive  husband  divorces  his  wife  ...  ...        ii. 

When  the  husband  is  cripple  or  paralytic         ...  ...  ...        ih. 

When  the  hnsband  becomes  incapacitated  personally  from  managing 

his  affairs ...  ...  ...  ...  ...  ...       403 

'When,  after  the  husband's  death,  the  woman  says  my  Iddut  has  not 

expired.     The  object  being  to  get  inheritance  ...  ...        ih. 


SECTION  V. 
On  Nusub  ob  dbscbnt  (and  pabkntaoe.) 

2949.    (2049.)    Meaning  and  definition  of  Nu8uh    ...  ...  ...  ...      404 

2960.  (2050.)     Case  of  a  woman  who  has  been  divorced,  and  she  claims  to  have  given 

birth  to  a  child  ..•  ...  ...  ...  ...       405 

2961.  (2061.)     When  the  husband  denies  the  fact  of  the  birth  of  the  child  by  the 

woman  at  all,  or  that  he  was  the  father        ...                ...                ...  ih, 

2968.    (2052.)    When  the  woman  admits  the  expiry  of  the  Iddut  and  gives  birth  at  or 

six  months  thereafter                  ...                ...                ...                ...  406 

2968.  (2058.)  When  an  ayasa,  who  is  observing  her  iddnt,  gives  birth  to  a  child  ...  ih, 
2964.     (2054.)    When  the  husband  divorces  his  minor  wife  and  she  gires  birth  to  a 

child         ...                ...                •••                •••                •••                •..  ih. 


Xlvi  INDEX. 

Poye. 
2956.    (2066.)    When  a  diyoroed  woman  marries  another  hnsband  daring  the  Iddut^ 

and  then  gives  birth  to  a  child    ...  ...  ...  ...      407 

2956.  (2066.)     When  the  husband  says  to  his  wife  who  has  given  birth,  "  I  have 

married  thee  fonr  months  ago,  "  and  she  says,  "  thou  married  me 

six  months  ago "        ...  ...  ...  ...  ...        ib, 

2957.  (2067.)    When  a  man  marries  another's  female  slave  and  then  divorces  her, 

another  pnrohases  her,  and  she  then  gives  birth  to  a  child  ...        %b. 


APPENDIX. 


THE  TAGORE  LECTURES,  1891-92. 


BOOKIL 
MARRIAGE  AND  DIVORCE. 


ON  DIVORCE  AND  MATTERS  RELATING  TO  DIVORCE. 


CHAPTER  I. 
ON  IMMEDIATE  DIVORCE. 

Section  I. 

ON  EXPRESS  DIVOECE. 

1788.  (888.)  [Note.— See  Rudd-ool  Moohtar,  Vol.  II,  page  680.  The 
meaning  of  Divorce,  according  to  the  Dictionary,  is  release  from  Restraint 
(kaid}.  According  to  the  Shera,  Divorce  means  to  remove  the  restraint  or 
iaid  of  marriage,  either  inmiediately  by  completely  separating  the  wife, 
or  in  future  by  a  mode  at  present  revocable— such  removal  of  restraint 
being  accomplished  by  particular  words.] 

This  book  (that  is.  Part  II}  consists  of  several  chapters. 

1789.  (889.)    The  first  chapter  consists  of  several  sections, 

1790.  (890.)  The  first  section  treats  of  express  divorce,  and  of 
words  by  which  one  divorce  is  effected,  or  more  divorces  than  one  are 
effected. 

1791.  (891.)  A  man  says  to  his  wife,  "  I  have  divorced  thee,''  or 
"  Thou  art  divorced,''  or  "  I  have  desired  that  thou  shalt  be  divorced, " 
or  ''  I  have  consented  to  thy  divorce,"  or  ^'  I  have  caused  divorce  upon 
thee,"  or  says,  "  Take  thou  thy  divorce,"  or  says,  "  I  have  given  thee  (or 
made  a  gift  to  thee  of)  thy  divorce,"  and  intends  nothing,  one  divorce  is 
caused  (because  the  words  used  expressly  denote  divorce,  and  therefore 
whether  he  intends  divorce  or  not,  divorce  will  be  caused) :  but  if  he  says, 

1 


2  THl  TAQOBK  LAW  LECTUBVS^    1891-92. 

'^  I  have  intended  thy  divorce/'  divorce  will  not  be  caused  (becanse  mere 
intention  is  an  act  of  the  mind^  and  no  words  are  here  nsed  shewing  that 
this  intention  is  meant  to  be  acted  up  to). 

1792.  (892.)  A  woman  says  to  her  husbajid,  ^Verily  so  and  so  has 
divorced  his  wife,  so  divorce  me  (also), "  and  the  husband  says,  "  Thou  art 
more  (completely)  divorced  than  that  woman  ;'*  then  the  woman  shall 
become  divorced :  and  so  also  if  he  (names  the  other  woman  and)  says, 
^'  Thou  art  more  (completely)  divorced  than  so  and  so.'' 

1793.  (893.)  A  man  says  to  his  wife,  with  whom  he  has  had  inter- 
course, '^  Thou  art  separated,  thou  art  divorced,  thou  art  separated  (6am) " 
then  if  he  intends  by  the  use  of  the  first  mentioned  expression  (that  is, 
"Thou  art  separated")  a  divorce,  then  (the  whole  of)  this  expression  will 
amount  to  three  divorces :  but  if  he  does  not,  by  the  use  of  the  first  portion 
of  the  expression,  intend  a  divorce,  then  two  divorces  shall  be  caused. 
(Express  words  of  divorce  do  not  require  intention  to  give  effect  to  their 
meaning,  which  will  be  established  even  if  the  intention  be  to  the  contrary  ; 
e.g.,  where  a  man  intends  that  by  uttering  the  words  "Thou  art  divorced," 
there  should  be  no  divorce,  still  divorce  shall  be  caused;  so  also  if  he 
utters  them  without  having  any  intention  at  all.  See  Budd-ool  Moohtar, 
Vol.  II,  page  707.  Therefore  express,  or  sureehj  words  of  divorce  do  not  re- 
quire intention  to  support  them.  But  there  are  words  which,  though  not 
primarily  designed  to  denote  divorce,  still  indirectly  imply  divorce;  and 
therefore  they  are  called  Kinayaat-i-Tulak — which  are  defined  by  the 
Shureh-Vekayah  in  Vol.  II,  page  54,  to  be  expressions  not  formed  for  divorce 
but  capable  of  meaning  divorce  and  capable  also  of  a  meaning  other  than 
divorce :  these  words,  therefore,  when  used  may  or  may  not  cause  divorce : 
there  must,  therefore,  be  aii  intention — or  neeut,  which  is  equivalent  to 
kmd'i-Jculvh  or  mental  effort,  for  which  refer  to  Shureh-Vekayah,  Vol.  I, 
page  113, — to  cause  divorce  before  they  can  be  accepted  as  having  been 
used  for  the  purpose  of  causing  divorce ;  or  there  must  be  ciroumsfcanoes  or 
Dulalut'i-Hal  from  which  an  inference  of  such  intention  can  be  ,  drawn ; 
those  circumstances  may  be  either  when  divorce  is  the  very  topic  or  subject 
of  discourse,  or  they  may  be  when  a  man  is  angry.  Thus  in  the  example 
given  in  this  paragraph,  the  words  used  are  "Thou  art  separated  or  bain-/^ 
"  bain  "  means  separate.;  so  that  the  expression  might  mean  "  separate  from 
the  marriage  "  or  "  separate  from  goodness, "  or  from  anything  else :  it 
may  mean  divorce  or  it  may  not :  therefore  there  must  be  an  intention 
to  divorce  in  order  that  those  words  might  be  received  in  the  sense  of 


ON   IMUXDIATE   DITOBCE.  3 

dirorce^  or  tihere  most  be  circumstances  or  Dulalut-irEal  to  deiiote  such 
intentioii.  When,  therefore,  the  first  portion  of  the  expression  is  used 
then,  if  there  is  an  intention  to  divorce,  that  portion  of  the  expression  shall 
cause  one  divorce;  and  if  there  is  no  intention,  then  there  will  be  no 
divorce :  the  second  portion  of  the  expression  is  express  in  the  matter  of 
divorce,  and  therefore  there  will  be  a  divorce,  whether  there  is  an  intention 
or  not:  the  third  portion  of  the  expression,  though  not  express  but  merely 
a  kinaya  or  sign  of  divorce,  shall  cause  a  divorce  even  without  any  inten- 
tion, because  being  used  after  divorce  has  been  mentioned,  there  are 
circumstances  or  Dulalut-i-Eal  from  which  the  intention  to  divorce  could 
be  inferred.) 

1794.  (894.)  And  if  a  man  says  to  his  wife,  "  Thou  art  separated,'* 
and  the  Kazee  effects  a  separation  between  them  (holding  that  there  was  a 
divorce  under  the  law),  and  the  man  then  says,  ^^I  had  said  to  her  yesterday 
'thou  art  separated  (6atn)/"  then  verily  shall  there  be  caused  the  first 
divorce  (which  the  Kazee  has  already  given  effect  to),  and  the  second  divorce 
(ttz.,  that  which  is  now  admitted  by  the  husband) :  and  the  man  shall  not  be 
allowed  to  set  aside  the  divorce  which  the  Kazee  has  caused.  (Note. — See 
FatawaiAlumgiree,Vol.in.,  page  426,  line  14,  and  page  416,  line  10,  and 
Rudd-ool  Moohtar,  Vol.  IV.,  page  516.  Here  the  principle  involved  is  this: 
that  when  witnesses  are  competent  witnesses,  e.g.,  when  they  are  free  men 
and  BO  forth,  and  the  Kazee  on  the  faith  of  such  witnesses  has  made  a  decree, 
after  having  recourse  to  all  authorised  modes  for  discovering  the  truth, 
and  such  a  decree  relates  to  Oohood,  i.e.,  contracts,  e.g.,  marriage  or  sale,  or 
to  Fooaoohhj  i.e.,  dissolution,  e.g.,  divorce,  or  Ikala,  i.e.,  annulment  of  sale, 
then  the  Kazee's  decree  is  absolutely  binding  and  is  irrevocable.  There- 
fore when  the  wife,  in  the  instance  given  in  the  text,  comes  to  the  Kazee  and 
says,  for  instance,  '^  To-day  my  husband  made  me  hain  or  separate ''  and  the 
Kazee  makes  a  decree,  his  decree  is  irrevocable;  if  the  husband  then 
comes  to  have  the  decree  revoked  saying,  ^'  I  did  not  make  the  woman  bam 
to-day,  but  yesterday,^'  then  a  second  divorce  shall  be  caused  by  the  admis- 
sion of  the  husband  that  he  had  divorced  '^yesterday,''  in  addition  to  the 
fivorce  already  decreed  by  the  Kazee.) 

1796.  (895.)  A  man  says  to  another  man,  "  Have  you  divorced  your 
wife,'*  and  the  man  addressed  says,  "Tes^'  (or  naam),  spelling  the  word  by 
its  letters  (and  repeating  the  letters  composing  the  word  instead  of 
pronouncing  the  word  itself)  without  uttering  the  word  as  a  whole,  or  says, 
"6uia"  (or  y^),  spelling  the  word  by  its  letters,  without  uttering  the 
irord  as  a  whole,  the  divorce  shall  be  caused. 


4  THE   TAGOEE   LAW   LECTURES,    1891-92. 

1796.  (896.)  A  man  says  to  his  wife,  ''Every  woman  that  I  shall  marry  is 
divorced,  and  you  are  divorced,'^  his  wife  shall  become  divorced  at  pre^nt  (i,e., 
immediately  at  the  moment  without  waiting  for  him  to  marry  other  wives) : 
and  if  he  says,  "  I  meant  by  the  words  ('  and  you  are  divorced ')  that  your 
divorce  was  dependent  on  my  marrying  other  wives;''  tbe  Kazee  sbaU  not 
accept  his  explanation.  (The  expression  used  might  be  read  in  this  way— 
''  Every  woman  whom  I  shall  marry  shall  become  divorced,  and  then  you 
shall  also  become  divorced,"  or  the  expression  may  mean  this — ''Every 
woman  whom  I  shall  marry  shall  become  divorced  when  they  shall  be 
married,  but  you  are  divorced  at  the  present  moment."  But  the  expres- 
sion, "You  are  divorced"  is  coupled  with  the  whole  of  the  preceding 
sentence  and  not  with  the  sequence  of  that  sentence,  therefore  the  expres- 
sion :  "  You  are  divorced  "  has  immediate  effect). 

1797.  (897.)  And  if  he- says,  "Every  woman  that  I  shall  marry,  she 
is  divorced  and  you  (too),"  then  if  he  intends  that  his  wife  shall  become 
divorced  at  the  present  moment,  a  divorce  shall  be  caused  at  present,  other- 
wise not.  So  is  it  laid  down  in  the  Moontuka.  (The  reason  is,  that  the 
word  "  you  "  is  prima  facie  coupled  with  the  word  "  she,  "  and  therefore 
the  meaning  would  be—"  If  I  shall  marry  you,  then  you  are  divorced,  " 
but  she  has  abeady  been  married ;  and  therefore  there  will  be  no  divorce 
on  her  if  the  sentence  be  read  as  conditional :  but  the  expression  might 
also  mean  "  and  you  are  divorced,"  and  this  meaning  depends  on  his 
intention.  Therefore  if  he  has  the  intention  of  divorcing  his  wife  at  present, 
she  shall  be  divorced  at  once:  otherwise  she  shall  not  be  divorced  at  all. 
Compare  paragraph  1560  post). 

1798.  (898.)  And  if  he  says,  "  The  woman  so  and  so,  whom  I  shall 
marry  to-morrow,  she  shall  become  divorced  and  you  (too) ; "  a  divorce 
shall  be  caused  on  his  wife  (to  whom  the  man  addresses  himself)  at  present, 
and  no  divorce  shall  be  caused  (on  the  morrow)  on  the  woman  whom  he 
shall  marry.  (If  he  had  said,  "  Whichever  woman  I  shall  marry  to-morrow  " 
or  "  If  I  shall  marry  Zynub  to-morrow,"  "  she  shall  be  divorced,"  then,  in 
the  event  of  marriage,  the  woman,  or  Zynub,  will  be  divorced ;  because 
the  divorce  must  either  be  pronounced  in  a  marriage  state  or  be  referred 
to  the  cause  of  ownership,  which  is  marriage;  but  the  expression  in  the  text 
is  equivalent  to  his  saying  "  Zynub  shall  be  divorced.") 

1799.  (899.)  And  if  the  man  says,  "The  woman  I  shall  marry 
to-morrow,  she  shall  be  divorced,  and  you  (too),";  then  no  divorce  shall  be 
caused  on  bis  (present)  wife,  until  the  man  marries  to-morrow,  onless  ho 


OK   IMMBt>iATE   DIVOBCfi^.  5 

las  an  intention  (to  cause  divorce  on  his  wife  at  present^  and  then  such 
divorce  shall  be  caused). 

1800.  (900.)  And  if  he  says,  "  Every  woman  whom  I  shall  marry, 
and  my  wives  are  divorced ; "  then  the  divorce  is  effected  on  his  wives 
instantly. 

1801.  (901.)  And  if  he  says  to  his  two  wives,  "  This  is  divorced, 
(and)  this  (too),*'  the  last  word  being  addressed  to  his  other  wife,  both  of 
them  shall  be  divorced.  And  so  also  if  he  says,  "  and  this  "  or  '^  then 
this  "  (that  is,  he  says,  "  This  is  divorced  and  this  "  or  "  this  is  divorced 
Uien  this.'')  And  this  rule  also  applies  to  the  case  of  emancipation.  This 
is  stated  in  the  Moontuka. 

1802.  (902.)  A  man  says  in  respect  to  his  wife  "divorced"  (meaning 
"  she  is  divorced) "  without  naming  the  woman,  and  he  has  one  well-known 
wife,  his  wife  shall  become  divorced  by  way  of  analogy  {Istihsan,)  And 
if  he  (subsequently)  says  (or  explains  himself  by  saying)  "  I  have  got 
another  wife  and  I  intended  her,"  his  word  shall  not  be  accepted  (by  the 
Eazee)  unless  he  establishes  proof  by  witnesses  (thai  he  had  another  wife). 

1803.  (903.)  And  if  a  man  says,  "My  wife  is  divorced,"  and  he  has 
two  wives  both  being  well  known,  it  is  competent  to  him  to  refer  the  divorce 
to  whichever  of  the  two  wives  he  likes. 

1804.  (904.)  A  man  says,  "  I  owe  to  my  wife  one  thousand  dirhems," 
and  he  has  a  well-known  wife  :  he  then  says,  "  I  have  another  wife  and 
the  debt  is  due  to  her;"  his  word  shall  be  accepted  (because  it  is 
competent  to  him  to  explain  his  liability ;  but  in  the  case  of  divorce,  his 
wife,  known  as  such,  will  be  understood  to  have  been  meant  by  him). 

1806.  (905.)  And  if  he  says,  "  My  wife  is  divorced  and  I  owe  her  a 
thousand  dirhems  : "  the  divorce  and  debt  shall  be  referable  to  his  wife 
who  is  well  known  as  such,  and  he  shall  not  be  believed  if  he  refers  the 
divorce  and  the  debt  to  another  wife :  so  also  if  he  commences  with 
property  and  says,  *'  I  owe  to  my  wife  a  thousand  dirhems,  and  she  is 
divorced  "  (the  debt  and  divorce  shall  be  applicable  to  the  known  wife  and 
the^nan  shall  not  be  confirmed  if  he  says,  he  meant  another  wife). 

1806*  (906.)  And  so  if  (having  a  well-known  wife)  he  says,  "My 
wife  is  divorced,"  and  then  after  a  short  time  says,  "  I  owe  to  my  wife  a 
thousand  dirhems"  (instead  of  saying,  "And  I  owe  to  her  a  thousand 
dirhems") :  and  he  afterwards  says,  "I  have  got  another  wife  and  I  intended 


6  THE   TAGORE   LAW  LECTURES^    1891-92. 

her; ''  he  shall  be  confirmed  (or  accepted)  in  regard  to  property^  but  he 
shall  not  be  confirmed  in  regard  to  divorce. 

1807.  (907.)  And  if  a  man  has  two  wives^  and  the  man  has  not  had 
intercourse  with  either  of  them,  and  he  says,  "  My  wife  is  divorced,  my 
wife  is  divorced ; "  both  the  wives  shall  be  separated  (i.e.,  shall  become 
irrevocably  divorced) ;  and  if  he  says,  "  I  intended  only  one  of  the  two 
wives,^^  he  shall  not  be  confirmed  (by  the  Kazee ;  because  the  husband  not 
having  had  intercourse  with  either  of  them  when  he  had  said,  for  the  first 
time,  "  My  wife  is  divorced,"  the  result  was  that  one  wife  became  irrevo- 
cably divorced,  and  that  wife  ceased  to  be  the  subject-matter  of  further 
divorce ;  and  therefore  the  second  expression  cannot  possibly  apply  to  the 
same  wife :  the  second  expression  must,  therefore,  apply  to  the  second 
wife).     And  so,  if  he  says,  ''My  wife  is  divorced  and  my  wife  is  divorced." 

So  also  in  the  case  of  emancipation  (that  is,  if  a  man  having  two 
slaves,  says  twice  "  this  is  free,"  both  the  slaves  shall  be  free,  and  the  man 
shall  not  be  heard  to  say  that  he  used  both  expressions  in  respect  of  one 
and  the  same  slave). 

And  if  the  man  has  had  intercourse  with  both  of  his  wives,  and  he 
says,  "  My  wife  is  divorced ;  my  wife  is  divorced,"  it  is  competent  to  him 
to  make  the  divorce  fall  upon  one  of  them  (because  when  a  man  has  had 
intercourse  with  his  wife,  then  he  can  divorce  her  thrice  before  she  would 
cease  to  be  his  wife  :  and  the  three  divorces  might  be  pronounced  at  once, 
as  when  a  man  says, ''  I  divorce  you  thrice,"  when  she  shall  become  irrevo- 
cably divorced,  or  he  can  give  her  one  divorce,  and  she  will  then  have  to 
observe  her  Idd/ut^  and  during  the  Iddut  he  may  give  her  another  divorce, 
and  so  a  third.  But  a  wife  with  whom  there  has  been  no  intercourse,  becomes 
irrevocably  divorced  by  one  divorce,  and  there  is  no  Iddut  for  her.  There- 
fore, when  he  has  had  intercourse  with  her  and  says,  ''  My  wife  is  divorced; 
my  wife  is  divorced; "  divorce  will  be  caused  prima  facie  on  both  the  wives, 
but  if  he  makes  a  statement  that  he  intended  to  apply  the  divorce  to  only 
one,  then  that  one  alone  will  be  twice  divorced,  as  from  the  time  the 
divorce  was  pronounced,  and  not  the  other  one). 

1808.  (908.)  A  woman  says  to  her  husband,  "  Divorce  me,"  and  the 
husband  says,  ''  I  have  done  so : "  the  woman  shall  become  divorced. 
And  if  the  woman  then  says,  ''  Increase  (or  enlarge)  it  to  me,"  and  the 
man  says,  "  I  have  done  so,"  she  shall  have  a  second  divorce. 

1809.  (909.)     And  if  a  woman  says  to  her  husband,  "  Give  me  three 


on  nonmuTE  dtyobce.  7 

iVorces/'  and  the  kasband  says,  ''  I  hare  done  so/'  or  he  says,  "  I  have 
divorced  thee/'  she  shall  be  thrice  divorced.  And  if  in  answer  to  his 
wife,  he  siqrs,  "  Thou  art  divorced,"  or  he  says,  ''  Then  thou  art  divorced," 
one  divorce  shall  be  caused  (because  in  this  last  case,  the  answer  does 
not  embody  or  is  not  in  the  terms  of  the  question ;  whereas  in  paragraph 
908,  or  in  the  first  case  in  909,  the  answer  was  in  terms  of  the  question). 

1810.  (910.)  A  man  says  to  his  wife,  *'  Divorce  yourself/'  and  the 
woman  says, "  I  am  uulawful  to  you/'  or  she  says,  "  I  am  separated  {bain)" 
or  she  says, ''  I  am  without  you  "  or  "  released  from  you,"  the  woman  shall 
become  divorced. 

Every  word  which  amounts  to  a  divorce  (or  is  sufficient  to  cause 
divorce),  when  used  by  the  husband,  shall,  if  used  by  the  woman  by  way  of 
answer,  be  sufficient  to  cause  divorce. 

181L  (911.)  A  man  says  to  a  woman,  '^  Oomrah,  the  daughter  of 
Soobuh^  is  divorced,"  whilst  his  wife  is  named  Oomrah,  but  she  is  the 
daughter  of  Huf s,  and  he  has  no  intention  (to  divorce  his  wife  by  the  use  of 
the  expression),  his  wife  ahall  not  be  divorced. 

And  if  Soobuh  is  the  husband  of  his  wife's  mother  (that  is,  the  wife's 
step-father)  and  the  wife  is  (commonly)  spoken  of  by  reference  to  Soobuh 
(that  is,  people  call  her  as  the  daughter  of  Soobuh)  and  the  wife  is  a  child 
m  the  lap  of  Soobuh  (that  is,  she  is  of  tender  years) ;  and  if  he  (under 
these  circumstances)  expresses  himself  as  aforesaid,  whether  with  a  know- 
ledge of  the  wife's  parentage  or  not  (that  is,  whether  he  knows  that  his 
wife  is  the  daughter  of  Hufs  or  not),  his  wife  shall  become  divorced,  and 
he  shall  not  be  confirmed  by  the  Kazee  (when  he  says  that  he  knew  his 
wife  was  the  daughter  of  Hufs  and  therefore  the  divorce  should  not  apply 
to  his  wife)  ;  but  between  him  and  his  Grod  (that  is,  morally  speaking) 
the  divorce  shall  not  apply  to  his  wife  if  he  knew  her  parentage  (that  is, 
if  he  knew  that  she  was  the  daughter  of  Hufs) ;  and  if  he  did  not  know  her 
parentage  (that  is,  if  he  did  not  know  that  his  wife  was  the  daughter  of 
Hufs)  then  the  divorce  shall  be  caused  on  his  wife  also  as  between  him 
and  God  (that  is,  his  wife  shall  become  divorced  morally  speaking,  as  also 
in  law). 

And  if  he  intends  to  divorce  his  wife  (by  the  use  of  the  aforesaid 
expression)  then  in  all  these  cases  (whether  the  husband  knew  of  the  wife's 
parentage  or  not,  whether  Soobuh  is  the  mother's  husband  or  not, 
whether  Soobuh  is  known  to  be  the  wife's  father  or  not,  whether  the  wife 
is  in  the  lap  of  Soobuh  or  not),  his  wife  shall  be  divorced  as  between  him 


8  THE   TAOOBE  LAW   LBCTUEK8,    1801-92. 

and  the  Kazee  (that  is  in  law)  and  also  as  between  him  and  God  (that  is, 
morally) . 

1812.  (912.)  A  man  says,  "My  negro  wife  is  divorced  *'  whilst  his 
wife  is  not  of  negro  origin,  the  divorce  shall  not  apply  to  his  wife 
(when  the  divorce  is  not  addressed  in  the  presence  of  the  wife  ;  bnt  when 
he  says,  "  This  my  negro  wife  is  divorced  ''  then  she  shall  be  divorced, 
whether  she  is  a  negro  or  not ;  because  quality  or  wiuf  is  eflectual  in  case 
of  absence,  but  ineffectual  when  parties  are  present). 

1813.  (913.)  And  if  a  man  has  a  wife  in  possession  of  her  vision,  and 
the  man  says,  ''This  my  bUnd  wife  is  divorced,''  pointing  to  his  wife 
who  is  in  possession  of  her  vision,  the  wife  in  possession  of  her  vision  shall 
become  divorced,  and  the  mention  of  the  name  and  quality  when  (the  woman 
is  identified  by  being)  pointed  out,  counts  for  nothing. 

1814.  (914.)  A  man  has  two  wives,  Oomrut  and  Zynub.  The  hus- 
band (being  behind  a  screen)  says,  "  0  Zynub,''  but  Oomrut  answers  him; 
he  then  says  (being  under  the  impression  that  Zynub  has  answered  him) 
"Thou  art  divorced  thrice  (or  once  or  twice)."  The  divorce  shall  be 
effective  as  against  her  who  answered  him,  if  she  is  his  wife  ;  but  if  she 
(who  answered  him)  is  not  his  wife,  then  what  he  says  is  void  (and  it  goes  for 
nothing)  because  the  husband  gave  utterance  to  divorce  in  answer  (or 
reply)  to  her  who  answered  him  ;  but  if  he  says,  "  I  intended  (to  divorce) 
Zynub,"  then  Zynub  shall  become  divorced.  But  if  he  says,  "Oh  Zynub  !, 
thou  art  divorced,"  and  nobody  answers  him,  then  Zynub  shall  become 
divorced. 

1816.  (915.)  And  if  he  says  to  his  wife,  whom  he  sees  and  to  whom 
he  points  out,  "  0  Zynub,  thou  art  divorced,"  and  the  wife  addressed  is 
another  wife  of  his,  whose  name  is  Oomrut,  the  divorce  shall  be  caused  on 
Oomrut  j  the  woman  pointed  out  being  taken  as  identified  (by  the  sign) 
and  the  mention  of  the  name  being  considered  void  (and  not  taken  into 
account). 

1816.  (916.)  A  man  says  to  his  wife,  with  whom  he  has  had  inter- 
course, "  When  I  shall  divorce  thee,  then  thou  shalt  be  divorced  "  {i.e.,  he 
made  divorce  conditional  on  divorce) ;  he  then  divorces  her :  two  divorces 
shall  be  caused  on  her  (one  divorce,  involved  in  the  expression  "  Thou  art 
divorced,"  shall  be  caused ;  and  another  divorce,  which  was  conditional  on 
a  divorce  and  which  depended  on  this  divorce,  shall  also  be  caused )« 

So  also  (two  divorces  shall  occur)  if  he  says,  "  If  1  divorce  thee " 


ON  nCMBDIATfi   PIYOBCE.  9 

or  ''At  the  time  when  (or  mala)  I  shall  divoroe  thee/'  or  ''At  the  time  in 
which  I  shall  divorce  (then^  thou  shalt  be  divorced)/' 

1817.  (917.)  So  also  if  he  says,  "  Whenever  (Eoollnma)  I  shall 
divorce  thee,  then  thou  art  divorcedj''  and  he  then  divorces  her  once, 
two  divorces  shall  be  caused  (one  divorce  cansed  at  present;  and  the 
otheTj  which  was  made  conditional). 

1818.  (918.)  And  if  he  says,  "  Whenever  the  divorce  caused  by  me 
shall  be  cansed  on  thee,  thou  shalt  be  divorced;''  and  he  then  divorces  her 
once^  she  shall  be  divorced  thrice  {i.e.,  once  on  account  of  the  words  "  thou 
art  divorced";  another  divorce  on  account  of  the  condition  relating  to  the 
first  divorce  becoming  effective ;  and  a  third  divorce  will  also  be  caused 
because  the  second  divorce  has  become  effective ;  and  so  on  a  fourth,  and  a 
fifth;  but  three  divorces  are  sufficient  to  effect  a  complete  separation; 
therefore  the  rest  are  not  taken  into  account). 

1819.  (919.)  A  man  says  to  his  wife,  with  whom  he  has  had  inter- 
course, "Thou  art  divorced ;  thou  art  divorced  "  (without  using  the  word 
'  and '),  two  divorces  shall  take  effect  upon  her,  and  the  husband  shall  not  be 
confirmed  by  the  Eazee,  if  he  says,  he  meant  by  the  second  ezpresfidon, 
simply  (a  repetition  and)  information  of  the  first. 

So  also  if  he  says,  "Yerily  have  I  divorced  thee,  verily  have  I 
divorced  thee  "  (without  using  the  word  'and '),  or  if  he  says,  "Thou  art 
divorced,  verily  have  I  divorced  thee  "  (without  using  the  word  'and'),  two 
divorces  shall  take  effect.    (Compare  paragraph  907.) 

1830.  (920.)  And  if  he  says,  "  Thou  art  divorced, "  and  then  another 
man  or  woman  asks  him,  "  What  did  you  say,"  and  he  answers,  "  Verily 
have  I  divorced  her,"  or  says,  "  I  said,  she  is  divorced,"  only  one  divorce 
flhall  take  effect  in  law  and  also  as  between  the  man  and  his  God  (that  is 
to  say,  the  second  expression  used  in  the  course  of  the  conversation  goes 
for  nothing). 

182L  (921.)  A  man  says  to  his  wife,  "  Thou  art  divorced  (Aammui^ 
vl-TkUak)  by  the  majority  (or  larger  number)  of  the  divorce,"  or  "  by 
{JooUuUTulah)  the  respectable  (number)  of  the  divorce,"  then  two  divorces 
shall  be  caused.  (See  Fatawai  Alumgiree,  Vol.  I,  page  524,  line  20,  and 
Budd-ool  Moohtar,  Vol.  II,  page  742.  Aammut-ul-TSilak  means,  the  major 
number  of  the  divorce :  divorce  consists  of  three  units :  one  unit  is  the 
meanest  or  the  smallest,  that  is,  the  lowest  number :  three  units  constitute 
the  whole  number  of  divorce^  therefore  two  units  constitute  the  lar|^r  or 
2 


10  TBE   TAOOBB   LAW   LECTUBBS^    1891-92. 

nmjor  hamber  tif  the  divoroe.  JootruUTuiahs  sitnilarly  mb6i^  iKe  ife»pM^ 
able  number :  one  is  the  Icmest  err  the  meatLOst  Biii&bef  s  three  is  the  f  nlleat 
or  liurge&t  number^  and  two  is  a  respeotaUe  2tumber)« 

And  if  he  says^  "  Thou  aH  ditdrced  {Kopl^hFiMi),  eyery  (imit)  of 
the  (aggregate  nnmber  of  the)  divoroe  (cdnsidered  a&  b  whole  tod  a 
single  notion)/'  then  three  divorces  shi^  be  ottused.  (See  also  fiaragvf^pti 
925jp08t  See  Badd-ool  Moohtar^  Vol.  11^  page  743^  and  Fatawai  Alanigiree, 
Vol.  I,  page  §24.  Al  Ihdak  has  two  meanings;  one  meaning  iSj  one  oertaiQ 
nnit  of  the  divorce^  and  in  this  case  £bo{-ii^2WZaA  woidd  mean  eyeiy 
fraction  or  portion  of  one  divorce,  and  every  fraction  or  portion  ot  one 
divorce  is  only,  one  divorce  j  and  therefore  if  the  husband  uses  the  expression 
iTooZ-uZ-^ZoA:,  the  meaning  according  to  this  sense  would  be  one  divorce,  as 
the  ttudd-ool  Moohtar  points  out  from  the  Zakheera  and  the  Bahur-ool-Baik, 
tint  the  Budd-ool  Moohtar  goes  on  to  show  that  this  is  a  mistaken  view,  and 
that  the  correct  view  is  this;  that  iiZ  l}ulak  means  the  divorce  recognized  t3y 
the  Sheta,  and  What  is  l^cogniz^d  by  the  Shera  is  diVoi^de  consisting  of  three 
units;  therefore  Al  Tulak  or  the  divorce  means  the  notion  diVolrce  Considered 
as  a  Whole  in  the  agglregate,  and  therefore  KooUul-Tulak  means  every  unit 
ot  such  divorce,  and  therefore  that  expression  means  three  divorces :  because 
Tulah  is  the  musd/iM'  or  an  infinitive  Word,  and  applies  in  its  origii^  sense 
to  the  real  unit  or  to  number  one,  and  it  also  admits  of  being  used  for  a  unit 
which  is  not  ia  real  unit,  but  has  merely  been  assumed  to  be  a  unit.  The 
i*eal  unit  or  Furdrd^Sukeehee  is  number  one,  and  the  metaphorical  or  assulned 
unit  or  Furd-i-HooJcmee  is  number  three  considered  as  a  unit :  therefore  when 
a  man  uses  the  word  Al  IhilaJc  only,  without  any  other  qualifyiilg  or 
enlarging  expression,  he  primd  fade  means  one  divorce  only,  but  he  might 
also  mean  three,  and  therefore  one  divorce  diall  be  eftused  unless  he 
intends  to  cause  three  divorces ;  in  which  case,  three  divorces  shall  be 
caused :  but  when  he  uses  the  words  Kool  or  every,  then  prima  faeie^ 
he  means  three  divorces.  So  also  if  a  man  says,  "  Thou  art  ditbroed  by 
the  divorce  or  Al  Tulak,"  then  one  divorce  shall  be  caused  jprifm^/ieie,  but 
if  he  intends  three  divorces,  then  three  divorces  shall  be  caused.  But  if  he 
says,  "  Thou  art  divorced  by  every  the  divorce,  or  Al  Tulak  KaoUuhoQ  " 
then  three  divorces  shall  be  caused.  So  also  if  he  uses  another  infinitive 
form,  viz;  Tutleek  instead  of  Ttdak,  then  the  same  result  f oUowa ;  but  if 
he  uses  the  word  Tutleebut  with  the  letter  ia  which  denotes  one  single 
individual  in  the  real  singular  number,  then  only  one  divoiree  sbaXl  be 
caused:  as  for  instance,  when  he  says,  ^*  Thou  art  cUvorc^d  by  ev^ry  portion 


OH  IMMEDIATB  DITOBCX.  .11 

of  a  ring^  idiTGDce  m  KooUilrTtUkehut/*  t^en  onlj  one  divorce  AbSI  be 
caused;  bufe  if  be  BSfB,  ^Thon  art  diTorced  every  o&it  of  the  diy(»ree  ov 
KooJri^TiMeekutin^'  then  tkree  divorcBB  shall  be  caused;  bdcoase  when 
Kool  IB  n^ade  moozftf  to>  or  ig  referred  to  a  common  nonn  or  Niikira,  then 
it  embiape?  every  individual  member  connotofi  by  the  common  noon :  there? 
fore  Hie  expression  means  every  unit  of  tbQ  divorce  and  applies  to  thre^ 
divorcee). 

IBSSk  C922*)  And  if  he  says^  "  Then  art  divorced  by  most  of  the 
divQroaa  {AJc^UT'^UJhUak)"  it  is  said  in  the  Asul  (or  Mabsoot  by  Mohaoie<J) 
that  thr^  divorces  shall  be  caused  (because  '  most  divorces '  mefbns  the 
greatest  number  of  divorces^  which  is  three.  (See  Budd-ool  Moohtari 
VoL  2,  page  741). 

And  if  he  says^  ''  Thou  art  divorced  by  the  least  of  the  divorce/^  one 
divorce  shall  take  effect. 

And  if  he  says,  "  Thoa  art  divorced  not  the  least  nor  the  most/'  then 
views  differ  owing  to  difference  of  traditions  (from  Aboo  Huneefa).  The 
lawyer  Aboo  Jaffer^  on  whom  be  peace^  says,  two  divorces  shall  be  caused, 
and  Sheikh-ool  Imam  Aboo  Bakur  Mohamed,  son  of  Fuzul,  on  whom  be 
peaee,  says,  one  div(»ree  shall  be  caused ;  and  the  lawyer  Aboo  Kasur 
Mohamed^  bohl  of  Salam,  on  whom  be  peace,  says,  three  divorces  shall  be 
eaosed:  but  the  mpist  obyiouA  view  is  tiiat  taken  by  the  lawyer  Aboo 
JaffeTj  on  whom  be  peape.  (See  Budd-ool  Moohtar,  Vol.  11,  page  74S  for  a 
dimrnflfrioii  as  0  the  reasons  in  si^pport  of  the  views  and  which  view,  ought 
to  be  considered  correct). 

lAkS.  (928.)  And  if  he  si^s,  '^  Thou  art  divorced  by  numbers  '^  then 
Iba-i-Sumaut,  on  whom  be  peace,  says,  two  divorces  shall  be  caused. 

liBM.  (924.)  And  if  he  says, ''  Thou  art  divorced  until  three  divorces 
are  completed.'*  Busheer,  son  of  Waleed,  on  whom  be  peace,  says,  three 
divorces  shall  be  caused;  and  that  if  he  intended  other  than  two,  he  shall 
not  be  confirmed  by  tiie  Eazee. 

1826-  (925.)  And  if  the  husband  says  to  his  wife,  '^  Thou  art 
divorced  by  every  portion  of  a  single  divorce  {Kool^UTiUleehut)/^  she  shall 
be  divorced  once;  but  if  he  says,  '^Thon  art  divorced  by  every  divorce 
{KoolFi^Tuthehut),  she  shall  be  divorced  thrice,  whether  the  woman  is  one 
with  whom  the  husband  haa  had  intercourse  or  not.    (See  pamgraph  921») 

1826L  (926.)  So  also  if  he  says,  '^  Thou  art  divorced  after  every 
divoroe  '*  or ''  by  every  (unit)  of  the  divorce  '*  (see  paragraph  1064  post),  or 


12  THB  Tiaoia  law  lbctubbs,  1891-92. 

i£  he  says,  ''  Thou  art,  with  every  divorce,  divorced,''  the  wife  shall  bo 
divorced  thrice  (because  after  eveiy  divorce  there  is  a  farther  divorce  and 
flo  on  ad  infimtum :  bat  three  divorces  constitute  the  highest  number). 

1827.  (927.)  And  if  a  man  says  to  his  wife,  ''Thou  art  divorced 
with  every  wife  of  mine, "  and  he  has  four  wives,  all  of  them  shall  become 
divorced.  And  if  in  these  cases  {%.  e.,  in  paragraphs  924,  925,  926,  and  927) 
he  intended  only  some  of  his  wives  and  only  some  of  the  divotces  (not 
all  the  wives  or  all  the  three  divorces),  he  shall  not  be  confirmed  by  the 
Eazee,  but  he  shall  be  confirmed  (morally)  as  between  him  and  his  God. 

1828.  (928.)  And  if  he  says,  ''  Thou  art  divorced  three  halves  of 
divorce,''  two  divorces  shall  take  effect  (because  three  luJves  mean  one  and 
a  half;  but  the  fraction  shall  be  completed),  but  if  he  says,  "  Three  halves 
of  two  divorces,"  then  three  divorces  shall  be  caused  (because  one  half  of 
one  divorce  amounts  to  one  divorce;  and  half  of  the  other  divorce 
amounts  to  another  divorce,  the  third  half  might  come  out  of  the  first 
or  the  second  one ;  but  no  preference  can  be  given  to  either,  and  therefore 
this  half  shall  be  taken  to  be  independent  of  the  other  two). 

1829.  (929.)  And  if  he  says, "  Thou  art  divorced  by  two  half  divorce," 
one  divorce  shall  be  caused  (because  two  halves  of  one  amount  to  one). 

1830*  (930.)  And  if  he  says,  ''Thou  art  divorced  by  half  divorce,  and 
one*third  divorce  and  one-fourth  divorce,"  then  three  divorces  shall  be 
caused.  And  if  he  says,  "Half  divorce  and  one-fourth  of  it  and  one-sixth 
of  it,"  one  divorce  shall  be  caused. 

[Note. — See  Budd-ool  Moohtar,  Vol.  11,  page  717  and  Fatawai 
Alumgiree,  Vol.  I,  page  508.  A  fraction  of  a  divorce  is  a  full 
divorce;  as  for  instance,  where  a  man  says,  "  Thou  art  divorced  by  one 
divorce  "  or  "  by  one-thousandth  of  a  divorce,"  then  one  divorce  shall  be 
caused.  Divorce  is  not  susceptible  of  fractions,  and  if  a  fraction  is  men- 
tioned, then  instead  of  the  divorce  being  negatived,  the  fraction  is  completed 
to  a  unit,  because  it  is  preferable  to  give  effect  to  an  expression  than  to 
render  it  nugatory :  the  examples  in  paragraphs  928  and  929  are  explained 
by  this  rule.  /SccondZy,— if  the  husband  says,  "  One  half  of  a  divorce,  one- 
third  of  a  divorce,  one-sixth  of  a  divorce  "  without  using  the  conjunction 
"  and,"  then  only  one  divorce  shall  be  caused ;  because  the  succeeding 
fractions  shall  be  taken  as  having  been  mentioned  by  way  of  Budul  or  in 
substitution  of  the  preceding  fraction.  2%ir(2Zy,— -if  the  man  says,  "  One 
half  of  divorce  and  one-third  of  divorce  and  one-fourth  of  divorce  "  that 


ON   IMMBDIATE  DIYOBOE.  tS 

is,  he  uses  conjanctions  and  refers  the  fractions  to  the  diyorce  expressly 
mentioned,    then   three   divorces    shall    be    caused;    because   when  a 
common  noon  is  repeated  as  a  common  noun,  then  the  second  mentioned 
noun  is  different  from  the  first  mentioned  noun,  and  therefore  the  ''  third 
of  diYorce ''  mast  be  understood  to  refer  to  divorce  different  from  that  of 
which  the  half  was  mentioned  before  and  of  which  the  fourth  was  mentioned 
afterwards ;  in  other  words,  the  divorces  of  which  the  fractions  are  men- 
tioned are  different  divorces,  and  as  fractions  of  three  divorces  are  mention- 
ed, those  fractions  must  be  completed  and  three  entire  divorces  shall  be  the 
result.    Fourthly f — ^If  the  husband  says  '^  One-half  of  the  divorce,  and 
one-third  of  it^  and  one«-fourth  of  it  **  that  is,  houses  the  conjunction  **and'* 
and  refers  the  fraction  in  the  first  portion  to  the  ''divorce^'  and  in  the 
other  portions  to  the  pronoun  of  the  divorce,  then  the  fractions  refer  to 
the  same  divorce ;  and  if  the  fractions  when  added  together  amount  to  a 
unit  or  less  than  a  unit,  then  one  divorce  shall  be  caused ;  and  if  they  amount 
to  more  than  one  and  less  than  two,  then  two  divorces  shall  be  caused ;  and 
if  they  amount  to  more  than  two  and  less  than  three  then  three  divorces 
shall  be  caused,  and  if  they  amount  to  more  than  three,  even  then  three 
divorces  shall  be  caused]. 

1881.  (931.)  A  man  is  told  that,  '<  So  and  so  has  divorced  thy  wife  " 
or  ^^Has  emancipated  thy  slave;''  the  man  says,  '^  What  he  has  done  is 
good,''  or  '<  What  he  has  done  is  bad : "  the  learned  lawyers  have  differed 
in  this  matter :  Sheikh-ool  Imam,  the  Great,  Aboo  Bakur  Mohamed,  son  of 
Fozul,  on  whom  be  peace,  says,  divorce  shall  not  be  caused  in  such  a  case« 

1832.  (932.)  A  man  says  to  another,  **  I  have  divorced  thy  wife ;  " 
the  latter  says,  "  Ton  have  done  well "  (by  way  of  sarcasm)  or  says, "  Thou 
hast  done  wrong,"  these  words  having  been  spoken  by  way  of  refusal  (to 
accept  what  he  has  done  as  a  volunteer),  this  shall  not  amount  to  per- 
mission ;  but  if  he  says,  **  Thou  hast  done  well,  God  may  bless  thee  for 
relieving  me  of  the  woman,"  or  says  in  the  matter  of  emancipating  the 
slave,  **  Thou  hast  done  well,  God  may  accept  this  act  from  thee,"  this 
shalt  amount  to  permission  (or  ratification). 

1838.  (933.)  A  man  says  to  his  wife,  '*  Thou  art  divorced  by  the 
number  of  the  hairs  of  Satan,"  one  divorce  shall  be  caused  (because  the  rule 
in  a  case  where  the  word  "  number"  is  referred  to  a  thing— ^s  to  which  it 
cannot  be  positively  stated  whether  the  reference  is  correct  or  as  to  which 
it  cannot  be  negatively  asserted  that  the  reference  is  incorrect — ^is  that  only 
one  divorce  is  caused  and  the  thing  referred  to  will  go  for  nothing  :  in 


14  THE  TIGORE   LAW   LECTUUKS,'1891-92, 

the  instance  given  we  cannot  say  whether  Satan  baa  hair  or  not,  and 
therefore  only  one  divorce  is  caused.  And  also  in  the  case  where  "  num- 
ber ''  is  referred  to  a  thing  as  to  which  one  knows  for  certain  that  to 
refer  the  '^  number ''  to  that  thing  is  incorrect,  then  also  one  divorce 
shall  be  caused,  as  in  the  instance  given  in  paragraph  935  post,  where  the 
refei*ence  to  the  number  is  inapplicable.  And  the  divorce  caused  in  such 
cases  is,  according  to  analogy  from  Aboo  Huneef a's  views,  a  bain  or  com- 
plete and  irrevocable  divorce;  because,  although  the  thing  referred  to  goes 
for  nothing,  still  the  whole  of  the  expression  is  of  greater  force  than  the 
simple  declaration — "Thou  art  divorced:"  but  Aboo  Tusoof  holds  that 
one  revocable  divorce  shall  be  caused,  because  the  whole  of  the  reference 
goes  for  nothing.    See  Eudd-ool  Moohtar,  Vol.  II,  page  744). 

1834.  (934.)  And  if  he  says,  "  Thou  art  divorced  by  the  number 
of  *  *  "'^  "'^  "  whilst  the  woman  has  applied  the  depilatory 
ingredient,  and  there  is  consequently  *  *  *  * ,  then  Mahomed, 
on  whom  be  peace,  says,  no  divorce  shall  be  caused  just  as  if  he  had  said 
**  According  to  the  number  of  hair  on  the  back  of  (the  palm  of)  my  hand,*' 
whilst  hair  has  been  removed  from  his  hand ;  (because — see  Budd-ool  Moohtar 
page  the  same — these  are  places  where  hair  does  grow,  and  therefore  the 
man  shall  be  considered  to  have  made  divorce  conditional  on  there  being 
hair :  so  that  if  there  is  no  hair,  no  divorce  shall  be  caused ;  but  if  there  is 
hair,  then  the  divorce  shall  be  according  to  the  number  of  hair). 

1836.  (935.)  And  if  he  says,  "Thou  art  divorced  by  the  number  of 
hair  on  the  palm  of  my  hand,"  then  (one)  divorce  shall  be  caused,  and  the 
mention  of  hair  shall  go  for  nothing ;  because  the  palm  of  the  hand  is  not 
the  place  where  hair  grows,  contrary  to  the  back  of  the  palm  of  the  hand. 

1836.  (936.)  A  man  says  to  his  wife,  "  Three  divorces  are  upon 
thee:"  she  shall  be  divorced  thrice  (although  he  does  not  say,  "I  have 
caused  three  divorces  on  thee  "). 

1837.  (937.)  And  if  a  man  says  to  his  wife, " Thou  art  divorced  once  " ; 
and  the  woman  then  says  (in  Persian),  "Dost  thou  wish  a  thousand  (that  is, 
dost  thou  wish  to  give  me  a  thousand  divorces  but  expressed  in  an  ambigu- 
ous manner  so  that  the  expression  might  mean  anything,  e.g.y  dost  thou  wish 
a  thousand  dirhems  or  any  thing  else)  and  the  husband  says,  "A  thousand," 
without  intending  anything  (whether  divorce  or  something  else) ;  then  the 
learned  lawyers  have  said  that  this  is  nearer  to  causing  a  divorce  (than 
not;  and  three  divorces  shall  be  caused)* 


ON  millDUTB  DIVOBCE.  15 

1888«  (938.)  A  man  says  td  his  wife  (in  Persian)^  '' A  thousand 
divoroes  for  tliee  I  have  made  into  oxke '' :  the  learned  lawyers  have  said 
tiiat  three  diyorcea  shall  be  oaused^  jost  as  If  be  had  said-«''I  have  divorced 
theethriee^^  at  once. 

And  if  he  says  (in  Persian),  "  At  every  time,  a  thoosand  divorces  tot 
thee  I  make  into  one  "  (the  declaration  being  ambiguons,  whether  he  makes 
it  now  or  will  do  so  in  future)  and  intends  thereby  to  cause  divorce  (at 
present) :  the  learned  lawyers  have  said  that  the  woman  shall  become  thrice 
diToroed. 

And  if  he  says,  "Verily  have  they  given  to  thee  a  thousand  divorces," 
tins  shall  not  amount  to  divorce  (because  the  husband  himself  gives  no 
divorce.    See  paragraph  1016  post). 

1839.  (939.).  And  if  a  man  says  to  his  wife  (in  Persian),  "To  thee 
three  divoroes,"  three  divorces  shall  be  caused  as  if  he  had  said  (in  Arabic), 
"  I  have  given  thee  three  divorces.*' 

ISMi  (940.)  And  if  he  says  to  her  (in  Persian),  "  I  have  given 
di?oioe  to  tiiee*'  {ssa  ambiguous  expression  which  might  mean  that  he 
diyoroes  ber  or  enlarusts  to  her  the  power  of  divorcing  herself),  then  if  he 
intends  iliereby  to  cause  divorce,  the  divorce  shall  take  effect;  but  if  he 
intends  to  entrust  tiie  ppwer  of  divorce  to  the  wife,  divorce  shall  not  be 
eaused;  and  if  he  does  not  intend  to  entrust  to  her  the  power  of  divorcing 
homdli,  thiB  shall  amount  to  causing  divorce. 

IMl.  (941.)  And  if  hd  isays  to  her  (in  Arabic), "  Divorce  is  for  thee  ** 
(also  an  ambiguous  egression  as  in  paragraph  940)  :  Aboo  Huneefa,  on 
whom  be  peace,  says,  if  the  husband  intends  thereby  to  entrust  the  power 
of  divorce  to  the  Woman,  he  shall  be  confirmed  as  between  him  and  his 
God  (Dyanutun) }  so  that  if  the  woman  stands  up  in  the  meeting  (implying 
refusal  to  aooept  the  authmty)  the  authority  to  divorce  shall  become  void. 
And  if  he  does  not  intend  anything,  there  is  no  tradition  in  the  matter  from 
Aboo  fiuaeef  ai  on  whom  be  peiloe  ,*  bftt  it  is  fit  that  (in  case  there  is 
no  inteatioii  Qti&  way  6t  the  other)  divorce  should  be  caused,  and  to  this 
efieot  is  the  k'adition  from  Aboo  Yusoof,  on  whom  be  peace  (that  is,  Aboa 
Ynsoctf  holds  that  if  thtepe  is  no  intention  one  way  or  the  other,  divorce 
shall  be  eaused)^ 

And  if  he  sagrs  (in  Persian)^  "  The  divorce  is  to  thee,''  then  this 
amoants  to  entm^ing  the  woman  with  authority  to  divorce  herself  accord* 
ing  to  them  (all  the  three  Imams). 


16  THB  TAQOBB   LAW   LBOTUBES^   1891-92. 

1842.  (942.)  And  if  he  says  to  his  wife  (in  Persian)^  ''  On  account  of 
defect  I  have  returned  thee ''  and  intends  thereby  divorce^  then  divorce 
shall  be  caused ;  and  if  he  says^  '^  On  account  of  defect  I  have  returned^" 
divorce  shall  not  be  caused  (because  the  expression  is  ambiguous  and  it 
is  not  certain  to  whom  it  applies.    See  paragraph  1123  past), 

1843.  (943.)  A  man  says  to  his  wife,  ^' Three  divorces  are  upon 
thee  ^'  (as  in  paragraph  936)^  she  shall  be  divorced  thrice. 

So  also  if  he  says  to  his  slave^  '^  Emancipation  is  upon  thee/'  he 
shall  become  emancipated. 

1844.  (944.)  And  if  a  man  says  to  another  man^  '^  Take  this  slave 
in  consideration  of  a  thousand/'  and  the  .other  man  says^  "  I  have  accepted '^ : 
this  shall  amount  to  a  sale. 

And  if  a  man  says  to  his  wife,  "  Thy  divorce  is  (binding)  upon  me/' 
it  is  said  in  the  Asul  by  way  of  deducing  a  principle  from  an  illustration— 
"  Dost  thou  not  see  that  if  the  husband  says  'By  Ch>d  upon  me  is  the 
divorce  of  my  wife',  there  is  no  obligation  on  the  husband  "  (that  is,  his 
saying  so  amounts  to  nothing ;  because,  see  Budd-ool  Moohtar^  Yol.  II, 
page  712,  this  form  of  declaration  is  a  formula  used  in  making  a  vow  or 
nuzur;  as  when  a  man  says,  "  Upon  me  is  Huj"  that  is, ''  I  make  Euj,  which 
was  simply  moobah  or  discretionary,  binding  on  me";  and  vows  are  made  in 
reference  to  matters  of  Ibad/ut  or  religious  worship  and  not  in  reference  to 
other  things :  and  although  divorce  does  not  come  within  the  sense  of  Ibadut, 
still  to  divorce,  no  doubt,  is  Hulal,  that  is,  a  free  or  permissible  act,  but  it 
is  what  is  called  Ahghuz-i-Eulal  in  the  eye  of  God,  that  is,  God  looks  upon 
the  act  with  condemnation  j  and  being  Hulal  the  formula  or  Seegha  of 
Nuzwr  may  be  used  in  reference  to  divorce  though  without  any  result). 

1845.  (945.)  The  following  cases  are  such  that  difference  exists 
amongst  the  learned  lawyers  regarding  the  correct  rule  applicable  to 
them. 

A  man  says  to  his  wife,  ''Thy  divorce  is  obligatory  on  me  (that  is,  it  is 
obligatory  on  me  to  divorce  thee),"  or  "binding  {IcuAm)  on  me,"  or 
"established  on  me/'  or  "compulsory  on  me"s  some  of  the  learned  law- 
yers have  said  that  in  each  of  these  cases  one  reversible  divorce  is  caused, 
if  the  husband  has  had  intercourse  with  her  (for  in  the  case  of  the  wife  with 
whom  there  has  been  no  intercourse,  even  a  reversible  divorce  is  tantamount 
to  a  complete  divorce),  whether  the  husband  has  any  intention  or  not; 
and  some  of  them  have  said  no  divorce  shall  be  caused,  even  if  the  husband 


6H  miEBIATl  DITORCfi*  17 

iatandK  »  divorce  hj  thcM  wonLs ;  and  some  of  ih^m  \Mr^  fifticl  tioA  fhoM 
exists  a  difference  of  opmioii^  Mid  that  according  to  Aboo  fioneefa^  on  wbo^ 
be  peace,  dirorce  shall  be  oansed  by  every  one  of  those  expressions,  and  thai 
aeoovding  to  Mahomed,  on  whom  be  peace,  divorce  shall  be  caused  if  tlid 
Inuband  makes  nae  of  the  expression  lamn  or  binding  j  and  that  acco^dmg 
toAboo  Yii8oof,on  whom  be  peace,  it  is  necessary  fcr  the  husband  to  mtend 
divorce  in  each  of  these  cases  (andin  that  case  divorce  shall  be  caused  in  each 
of  these  cases) ;  and  Sndnr-i-Shobeed  has  said  in  the  Book  on  Oaths,  in  his 
work  called  the  Shnrah-ool  Mookhtasnr,  that  the  correct  principle  is,  that  in 
none  of  these  cases  shall  divorce  be  caused  according  to  Aboo  Hnnee&,  on 
whom  be  peace;  and  he  says  in  bis  work  called  the  Wakiat  that  divorce  shall 
be  caused  in  each  of  these  cases :  and  the  lawyer  Aboo  JafEer,  on  whom  ba 
peace,  says  that  if  the  husband  makes  use  of  the  expression  Wajib  or  obliga- 
toiy,  divoroe  shall  be  caused  on  account  of  popular  recognition ;  and  that  if 
lie  makes  nsa  of  the  expression  Sabit  that  is  established,  or  Fwn  that  is 
eompulsoiy,  or  lasnm  that  is  binding,  divorce  shaJl  not  be  caused  on  account 
of  the  absence  of  popular  recognition  of  these  words  in  the  sense  of  divorce* 
(See  Budd-ool  Moohtar,  V6L  II,  page  712,  for  the  reason  of  the  rule  and 
of  the  difference  in  these  cases). 

1846.  (946.)  A  man  says  to  his  wife,  ''  Oh,  the  divorced  one/^  then 
it  she  had  no  husband  before,  or  if  she  had  a  husband  who  is  dead  bat 
who  never  divorced  her,  divorce  shall  be  caused  on  her ;  but  if  she  had  a 
husband  before  and  he  had  divorced  her,  then  if  the  present  husband  by 
the  expression  used  by  him  did  not  intend  information  (of  the  past),  the 
woman  shall  become  divorced ;  but  if  he  says,  '^  I  intended  thereby  an 
information/'  he  shall  be  confirmed  morally  as  between  him  and  his  Qod ; 
and  as  regards  the  question  whether  the  husband  will  be  confirmed  by  the 
Saaee  traditions  have  differed ;  but  the  correct  rule  is,  that  he  shall  be 
oQnfinned  by  the  Eazee ;  and  if  he  says,  ''  I  intended  by  that  expression 
mere  abuse,''  he  shall  be  confirmed  as  between  him  and  his  Gk)d,  but  not  by 
the  Saaee. 

IMr?.  (947.)  And  if  the  husband  says  tohis  wife,  '^Thou  art  aban- 
doned'^  (not  using  the  word  divorce),  or  he  says,  "  I  have  abandoned 
thee ;  '*  if  he  intends  thereby  a  divorce,  then  divorce  shall  be  caused,  other- 
wise not.  (The  word  ^*  MootMc"  which  has  been  translated  as  ^'aban-- 
doned''  is  a  hinaya  or  indirect  expression  of  divorce;  therefore  inten- 
tion is  necessaTf). 

1818.    (948.)    If  a  man  says  to  his  wife,  ''  I  have  given  to  thee  (Aarto 


18  THB  TAOOBB  LAW  LBCTURBS,  1891-92. 

thy  divorce  by  way  of  a  loan : ''  then  aocording  to  ^boo  Tusoof,  on  'whom 
be  peaooj  she  shall  become  divorced  just  as  when  he  says  '^  I  have  lent 
thee  thy  divorce :  '^  and  according  to  Mahomed^  on  whom  be  peace>  divorce 
shall  not  be  caused :  and  according  to  Aboo  Haneefa^  on  whom  be  peace^ 
there  are  two  traditions  in  the  matter^  (and  according  to  one  of  those 
traditions^  divorce  is  caused^  and  according  to  the  other  it  is  not). 

1849.  (949.)  And  the  Mashaikhs^  on  whom  be  peacOj  have  differed 
regarding  the  mle  when  the  husband  says  to  his  wife  '^  I  have  pledged  to 
thee  (Ruhunto)  thy  divorce  : "  but  the  correct  rule  is,  that  no  divorce  is 
thereby  caused. 

[Note — See  Rudd-ool  Moohtar,  Vol.  II,  page  714.  The  word  *' pledge" 
or  Bihn  is  not  a  direct  expression  of  divorce  and  most  of  the  Jurists 
also  hold  that  it  is  not  an  indirect  expression  or  kinaya  or  divorce. 
Divorce  is  not  caused  by  the  use  of  that  expression,  because  it  does  not 
denote  the  cessation  of  ownership.  In  the  Buhur-ool  Baik  it  is  laid 
down  that  the  word  is  a  kinaya  or  sign  of  divorce,  and  that  if  the  husband 
has  intention  to  divorce,  then  divorce  shall  be  caused.  As  regards  ^'wvhvbto 
or  I  have  made  a  gift,^'  and  "  audato  or  I  have  kept  in  wudeeui  or  trust,"  and 
''  akfiizto  or  I  have  lent,''  these  are  held  by  the  author  of  the  Buhur-ool  Baik 
to  be  kinayaat  of  divorce.  See  Vol.  II,  Budd-ool  Moohtar,  page  766.  If  a 
man  says  "  Bwraito^  or  I  am  released  from  thy  marriage/'  then  divorce  shall  be 
caused,  provided  he  had  the  intention,  because  to  get  released  from  marriage 
is  to  give  up  the  marriage,  and  the  word  is  therefore,  used  as  an  indirect 
expression  of  divorce,  in  which  intention  is  necessary;  but  if  he  says 
''  Baraito,  or  I  am  released  from  thy  divorce,"  that  means ''  I  have  given  up 
the  divorce  or  I  will  not  give  divorce,"  and  therefore  no  divorce  shall  take 
place :  there  is  no  doubt  seme  difference  on  the  question.  So  as  regards 
the  words  "  Khullaito  or  I  have  set  at  liberty,"  or  '^  Khullaito  sabela/* 
or  I  have  opened  the  way,"  or  "IVrufcfo,  I  have  left,"  these  are 
indirect  expressions  of  divorce;  and  if  there  is  intention  to  divorce,  then 
there  shall  be  divorce,  otherwise  there  shall  be  no  divorce.  Sea  Budd-ool 
Moohtar,  Vol.  II,  page  767.  If  a  man  uses  the  following  words,  then  one 
reversible  divorce  shall  be  caused,  if  he  has  the  intention  to  divorce :-— ''  The 
divorce  is  on  thee,  i.  e.,  Alaikai ; "  ''  Wvhubtokai,  or  I  have  made  a  gif  fc 
to  thee  of  thy  divorce ; "  ^^Baitokai  or  I  have  sold  to  thee  thy  divorce," 
provided  the  woman  says,  '^I  have  purchased  without  consideration;" 
"  Khoazeej  or  take  thou  thy  divorce ; "  "  Akruztohai  or  I  have  lent  to  thee 
thy  divorce ; "  "  Verily  has  God  ahaa  or  desired  thy  divorce ; "  "  God  has 
ordered  or  kaza  thy  divorce ; "  ''  Shaito  or  I  have  desired  thy  divorce]." 


ON    UCMSDIATS  DIVOBCE.  19 

18B0.  (950.)  And  if  he  says^  '^I  have  set  at  liberty  thy  divorce''  (that>* 
iBj  I  do  no  longer  keep  it  confined  with  me)  or  says^  '^  I  have  opened  the 
way  of  thy  divorce/'  or  says  "I have  left  {twh)  thy  divorce;*'  then  if 
the  man  intends  to  canse  a  divorce^  divorce  shall  be  caused^  otherwise  not ; 
(because  these  are  indirect  expressions  of  divorce^  and  therefore  intention 
is  necessary ;  see  pararaph  1110  post). 

And  if  he  says^  "  I  am  released  from  thy  divorce/'  then  the  Mashaikha 
have  differed  in  this  matter^  and  the  correct  view  is  that  divorce  shall  not 
thereby  be  caused  (and  even  intention  to  divorce  shall  not  be  sufficient, 
because  the  expression  might  mean  ''  I  am  not  agreeable  to  divorce  thee." 
See  paragrapb  1114  post). 

1861.  (951.)  And  if  the  husband  says  to  his  wife,  '^  I  have  turned 
away  from  thy  divorcQ/'  the  divorce  shall  not  be  caused  (because  the  ex- 
pression means  "  I  do  not  wish  to  divorce  thee)." 

18G2.  (952.)  And  if  a  man  (having  a  wife),  addresses  her  jointly 
with  a  man,  saying,  "  One  of  you  two  is  divorced/'  then,  according  to 
Aboo  Huneef a,  on  whom  be  peace,  divorce  shall  not  be  caused  on  his  wife, 
but  according  to  Aboo  Yusoof ,  on  whom  be  peace,  divorce  shall  be  caused  on 
his  wife. 

18B3.  (953.)  And  if  a  man  (having  a  wife),  addresses  her  jointly 
with  a  strange  woman  and  says, ''  I  have  divorced  one  of  you  two,"  then 
his  wife  shall  become  divorced;  and  if  he  says,  ''One of  you  two  is 
divorced "  and  did  not  intend  anything,  then  his  wife  shall  not  become 
divorced,  but  Aboo  Yusoof  and  Mahomed,  on  whom  be  peace,  say  that  the 
wife  shall  become  divorced. 

1864.  (954.)  And  if  the  man  joins  his  wife  with  what  is  not  a 
fit  subject  (or  muhul)  of  divorce,  such  as  a  quadruped  or  a  stone  and 
says,  ''One  of  you  two  is  divorced/'  then  according  to  Aboo  Huneefa  and 
Aboo  Tnsoof  J  on  whom  be  peace,  his  wife  shall  become  divorced ;  but  accords 
ing  to  Mahomed,  on  whom  be  peace,  his  wife  shall  not  become  divorced. 

1866.  (955).  And  if  the  man  joins  his  living  wife  and  his  deceased 
wife  and  says  "  One  of  you  two  is  divorced/'  his  living  wife  shall  not 
become  divorced. 

[Note— See  Fatawai  Altmigiree,  Vol.  I,  page  512.  The  formulas 
"  One  of  you  two  is  divorced  "  or  "  This  is  divorced  or  this  "  are  in  reality 
forms  of  Ikhharj  «.6.,  information ;  that  is  to  say,  primd  fade  they  are  in- 
tended to  convey  information  of  an  event  or  of  a  fact :  but  those  forms  are 


do  THE   TAOOBI  LAW  tECTmMB,   1891-92. 

ilso  used  for  the  purpose  of  Intha,  ix.,  creatmg  Bome  new  right.  When 
therefore  the  husband  joins  with  his  wife  something  else^  then  it  must 
be  seen  wbetfaer  that  something  is  at  all  a  fittiog  subject  or  widpul  for  di- 
rwee,  that  is^  susceptible  of  divorce.  As  for  instanoOj  when  a  man  says  in 
i^«rence  to  his  wife  and  a  quadruped  or  a  stone  '^  One  of  you  two  isdivor* 
ced ''  or  "  This  is  divorced  or  this/'  then  here  the  sense  of  Ikhbwr  or  in. 
formation  is  negatived^  and  therefore  his  wife  shall  become  divorced  even 
without  any  intention  to  divorce.  But  if  he  joins  with  his  wife  what  is  sus- 
ceptible of  a  divorce^  as  for  instance^  when  he  says^  with  reference  to  hia  wife 
and  a  strange  woman^  ''One  of  you  two  is  divorced/'  or ''This  is  divorced  or 
this/'  then  the  strange  woman  is  a  subject  susceptible  of  divorce  and  the  form 
might  be  an  information  afi  regards  the  strange  woman  or^  in  other  wordsj 
the  intention  might  be  to  convey  information  that  the  strange  woman  is  a 
divorced  woman :  in  such  a  case^  if  the  husband  has  intention  to  divorce  his 
wifcj  then  she  shall  be  divorced^  and  not  otherwise.  So  also  if  he  joins  his 
wife  with  a  man  and  says^  "  One  of  you  two  is  divorced  "  or  "  This  is  divor- 
ced or  this/'  then  according  to  Aboo  Haneefa^  divorce  shall  not  be  caused  on 
his  wife  except  when  he  has  the  intention  to  divorce  her«— because  the  hus- 
band might  have  used  the  word  ^  divorced ''  in  the  sense  that  it  is  the  quality 
of  the  man  in  the  case  and  might  have  intended  to  convey  that  he  had  divor- 
ced his  wife^-but  according  to  Aboo  Yusoof  the  man  is  not  susceptible  of 
divorce,  and  therefore  the  rule  with  reference  to  the  quadruped  or  the  stone 
would  apply,  and  the  wife  shall  become  divorced  even  without  an  intention 
to  divorce.  But  if  he  says,  in  reference  to  his  wife  and  a  strange  woman, 
^  I  have  divorced  one  of  you  two,''  then  his  wife  shall  become  divorced 
without  an  intention  to  divorce.  And  if  he  joins  with  his  living  wife 
Uadead  wife  and  says,  "  One  of  you  two  is  divorced/'  or  "  This  is  divorced 
and  this,"  then  his  living  wife  shall  not  become  divorced— because  although 
the  deceased  is  not  now  a  fit  subject  for  divorce,  still  the  form  might  have 
been  used  to  convey  an  information  that  the  deceased  had  been  divorced]. 

*  18S6.  (956.)  And  if  he  says,  "  So  and  so  is  divorced  thrice,  and  so 
a&dsoie  with  her;"  tjie  latter  expressioii  being  used  with  reference  to 
Ua^  other  wife,  both  ot  his  wives  shi^  become  divorced. 

So  also  if  he  says,  "  So  and  so  is  divorced  thrice  "  and  then  alter- 
WBMb  8aj«,  "  I  have  ];endered  so  and  so  a  partner  wiUi  her,^  each  of 
IjhnB  shall  become  thrice  divcMroed. 

18BT.  (^57.)  And  if  he  says  to  his  four  wives,  "  Amongst  you  iisi  one 
divorce  /'  each  of  them  shall  have  one  divorce  effective  as  against  her 


01^  IltMfiDIATfi  BiYOBCK.  H 

(becaittfa  eacli  of  {hem  gets  one  quarter  of  the  divorce;  and  inasmncti  its 
drrofce  is  not  suBceptible  of  fraction^  each  gets  the  whole  number  or  one 
divorce). 

So  also ff  he  says,  '^Amongst  you  are  divorces/'  or  says,  ''Three 
divorces"  or  "Four  divorces'*  (each  of  the  four  wives  shall  have  one  divorce 
each),  unless  he  intends  that  a  fraction  of  each  divorce  shall  be  on  each, 
in  whieh  oaee  (each  of  the  wives  having  been  divorced  by  a  fraction  of 
each  divorce^  which  fraction  shall  be  considered  a  unity),  each  wife  shall 
have  three  divorces. 

18S8.  (958.)  And  if  he  says  (he  having  four  wives),  '^  Amongst  you 
are  five  divorces,"  then  on  each  wife  two  divorces  shall  be  caused 
(because  each  gets  one  and  a  quarter  but  the  fraction  shall  be  considered 
a  unity) :  so  also  as  long  as  he  goes  up  to  eight  divorces,  and  if  ho  goes 
beyond  eight  divorces,  then  each  wife  shall  have  three  divorces. 

1869.  (959.)  And  so  also  if  be  says  (to  his  f6ur  wives),  ''  I  have 
rendered  you  partner  in  one  divorce/'  then  this  case  and  the  case  where 
he  saysj  '^  Amongst  you  is  one  divorce/'  stand  upon  an  equal  footing 
(that  is,  each  shall  be  once  divorced).  • 

1860.  (960.)  [NoTS.--*In  Hie  Arabic  tongue  the  present  tense  and 
the  future  tense  are  expressed  by  the  same  form,  and,  therefore,  to  prevent 
conf usioUj  the  past  tense  is  used  when  the  object  is  to  create  a  divorce. 
Therefore  if  a  man  intends  to  say,  ''  I  divorce  you/'  he  must  use  the  past 
tense  and.  say,  "  I  have  divorced  you."  But  if  he  does  not  wish  to  create 
a  divorce  but  to  give  information  of  a  divorce,  then  the  past  tense  will 
not  dp,  and  the  form  used  is,  '*  I  have  already  divorced"  or  Koonto 
TullyJdo}*  A  man  says,  "I  have  already  divorced  my  wife,"  or  ''I  have 
already  divorced  one  of  my  wives ; "  or  says,  *'  I  have  already  divorced  my 
wife  called  Zynub/'  or  '^  I  have  already  divorced  Zynub,"  and  the  fact 
is  that  Zynub  is  at  present  his  wife,  the  divorce  shall  (at  present)  be 
caused  on  his  present  wife,  and  he  shall  not  be  confirmed  if  he  ref erp  the 
divorce  to  other  than  his  present  wife  (that  is,  he  shall  not  be  alIowe.d  .to, 
say,  *  I  did  not  mean  to  cause  present  divorce  on  my  wife  Jcnovm  as  such  to 
thepeoph,  but  I  intended  by  using  these  expressions  to  cause  present  divorce 
to  tModmr  ynl»f  who  is  not  known  tathe  people  as  my  vnfe) : "  and  he  shall 
not  be  conimed  in  having  made  the  reference  to  a  past  tense  (that  is  ta 
say,  he  As3X  not  be  allowed  ta  say, ''  I  did  not  mean  to  cause  present  divt)rce, 
hftt  I  isteBded  to  give  inforaiflftion  thait  I  had  divorced  my  wife;  *^  he  shall 


22  THE  TAGORl   LAW  LBCTtJBlB,    1891-92. 

not  be  allowed  to  say  so ;  because  if  lie  intended  to  give  an  information 
that  lie  had  already  divorced  his  wif  e^  then  he  would  liave^  at  the  same 
time  that  he  made  the  declaration^  gone  on  to  explain  how  the  wife  still 
comes  to  be  his  wife ;  and  after  the  declaration  bis  explanation^  based 
upon  the  reference  to  the  past  tense>  shall  not  be  allowed). 

And  if  he  says^  '^  I  have  divorced  the  first  woman  whom  I  married^'' 
or  says, ''  I  have  divorced  the  woman  who  was  my  wife, "  or  says, ''  I  had  a 
woman  for  my  wife,  and  you  bear  witness  that  she  is  divorced : "  then  in 
these  cases  his  present  wife  shall  become  divorced,  except  when  be  admits 
(by  all  these  expressions)  a  past  divorce  in  relation  to  a  past  marriage,  as 
for  instance,  when  be  says,  ^'  I  bave  already  divorced  the  woman  who  was 
my  wife,*'  or  says,  "  There  was  a  wife  to  me  and  I  divorced  her,"  or  says, 
'^  I  bave  already  divorced  the  first  woman  I  married,''  or  says,  ^'  I  have 
already  divorced  the  woman  who  was  my  wife  who  was  called  Zynab,"  or 
says, ''  I  have  already  divorced  the  woman  whom  I  married ; "  in  these 
cases,  the  divorce  shaU  not  be  caused  on  the  woman  who  is  in  his  marriage, 
when  he  says  I  intended  a  different  woman. 

1861.  (961.)  A  man  says  to  his  wife,  "  Thou  art  divorced  three  times 
every  year,"  three  divorces  shall  be  caused  instantly :  and  so  if  he  says  to 
his  wife  on  Thursday,  "  Thou  art  divorced  on  Thursday,"  or  says,  "  Thou 
art  divorced  in  Thursday,"  the  divorce  is  caused  on  her  at  present. 

1862.  (962.)  A  man  says  to  his  wife  in  Persian, ''  If  this  year  I  desire 
a  woman  (that  is,  marry  a  woman),  then  sbe  is  divorced,"  and  be  then 
marries  a  woman  before  the  expiry  of  the  month  of  Zilhij  (whicb  is  the  last 
month  of  the  year)  of  this  year,  then  the  woman  shall  become  divorced. 

1863.  (963.)  A  man  divorces  his  wife  and  then  says  to  her  during 
the  Iddut,  "Verily  have  I  divorced  thee,"  or  says  in  Persian,  "I  have 
divorced  thee,"  another  divorce  will  be  caused  (before  the  expiry  of  the 
IddnU,  the  relationship  of  husbaixd  and  wife  is  not  fully  at  an  end,  and, 
therefore,  she  could  be  still  further  divorced  in  the  case  in  tbe  text). 

And  if  he  says,  "  I  have  already  divorced  thee,"  or  says  in  Persian, 
^'I  have  already  divorced  thee,"  another  divorce  will  not  be  caused 
(because  this  is  information  of  the  past). 

186i.  (964.)  A  man  says  to  his  wife,  "Thou  art  divorced  or  not," 
no  divorce  shall  be  caused  according  to  them  (tbe  three  Imams). 

But  if  he  says,  "  Thou  art  divorced  thrice  or  not, "  or  says, "  Thou  art 
divorced  once  or  not,"  or  says,  "  Thou  art  divorced  once  or  nothing,"  one 


ON  nmiBIATS  BIVOBCB.  23 

divorce  shall  be  oaased  according  to  the  first  view  taken  hj  Mahomed  and 
Aboo  Ynsoof  (because  the  negative  applies  to  the  number  and  not  to  the 
fact  of  divorce) ;  then  Aboo  Ynsoof,  on  whom  be  peaocj  retraoted  from  his 
(first)  view,  and  said  that  no  divorce  shall  be  caused. 

And  if  he  says,  ''Thou  art  divorced  or  nothing,''  then  Aboo  Soolaiman, 
on  whom  be  peace,  says,  that  no  divorce  shall  be  caused,  and  he  does  not 
make  mention  in  this  matter  of  any  difference :  and  it  is  mentioned  in  the 
tradition  reported  by  Aboo  Huf s  that,  according  to  the  view  of  Mahomed, 
on  whom  be  peace,  one  divorce  shall  be  caused,  and  that  according  to  the 
view  of  Aboo  Yusoof,  on  whom  be  peace,  no  divorce  shall  be  caused. 
[NoTB.— See  Eudd-ool  Moohtar,  Vol.  II,  page  725,  ''Thou  art  divorced  or 
not,*'  means  "  Thou  art  divorced  or  not  divorced,"  and  no  divorce  shall  be 
caused  by  this  expression,  because  the  Insha,  or  creation  of  a  right,  must  be 
with  certainty,  but  here  the  husband  leaves  it  doubtful  whether  he  causes 
divorce  or  not,  and  therefore  there  is  no  Eekaa,  or  causing  of  divorce.  So 
also  as  regards  "Thou  art  divorced  or  nothing,"  no  divorce  shall  be  caused, 
except  according  to  the  view  of  Mahomed,  who  says  one  divorce  shall  be 
caoaed,  because  according  to  him  the  expression  has  the  same  meaning  as 
when  a  man  says,  "Thou  art  divorced  or  there  is  nothing  in  the  world"  but 
the  latter  alternative  is  untrue,  and  therefore  the  former  alternative  must 
be  true,  and  therefore  in  the  result  what  remains  is  the  single  proposition 
"  Thou  are  divorced,"  and  therefore  one  divorce  shall  be  caused ;  whilst 
Aboo  Yusoof  says,  "  Thou  art  divorced  or  nothing "  means  "  Thou  art 
divorced  or  art  nothing "  and  "nothing"  negatives  divorce  also;  there- 
fore the  expression  means,  "  Thou  art  divorced,"  or  "  Thou  art  not 
divoroed-or-any thing-else "  that  is  to  say,  the  husband  in  one  part  of 
his  speech  aflSrms  divorce  aa  regards  the  woman  and  in  another  part  of 
the  same  speech  negatives  it;  therefore  there  arises  a  doubt  in  the 
causing  of  the  divorce.  Aboo  Yusoof's  view  is  based  on  the  rule  of 
jurisprudence  that  when  a  common  noun,  such  as  a  thing,  is  negatived, 
then  the  senBO  is  that  of '  universality  or  of  negativing  everything.  Again, 
when  the  husband  says,  "  Thou  art  divorced  thrice  or  not,"  or  "  Thou  art 
divorced  thrice  or  nothing,"  or  "Thou  art  divorced  once  or  not,"  or 
"  Thou  art  divorced  once  or  nothing ; "  here  the  words  "  or  not,"  "  or 
nothing,"  refer  to  the  number  mentioned  which  comes  to  be  negatived, 
and,  therefore,  what  remains  is,  "  Thou  art  divorced ;"  because  "or"  or  au 
is  a  particle  of  doubt,  and  the  doubt .  refers  to  the  number :  this  is  the 
view  of  Mahomed  and  the  first  view  of  Aboo  Yusoof.    The  sec6nd  view 


24  THE  TAGOBB  L4W  LBCTTEIS^   1891-92. 

of  Aboo  Yosoof  and  the  view  of  Aboo  Hnneefa  ie^  that  no  divorce  shall  be 
oaused  in  the  cases  mentioned ;  becanse  when  divorce  is  mentioned  with 
number^  then  what  causes  divorce  is  not  the  word  divorce^  but  thennmber; 
as  for  instance^  when  a. man  says^  ''Then  art  divorced/'  tiien  divorce  shall 
be  caused  by  the  word  *^  divorced ; "  but  when  he  says, ''  Thou  art  divorced 
thrice/^  then  the  divorce  is  caused  by  the  word  thrice.  See  Aboo 
Huneef  a's  view  Isdd  down  in  the  Door-ool  Mookhtar  as  on  the  margin  of  the 
Rudd-ool  Moohtar,  Vol.  II,  page  749,  in  the  chapter  on  Divorce  of  a  woman 
with  whom  there  has  not  been  sexual  intercourse.  And  the  illustration  of  this 
principle  is  to  be  found  in  a  case  where  a  man  divorces  his  wife  with  whom 
he  has  had  no  intercourse,  in  which  case  only  one  divorce  shall  make  her 
completely  bain  ;  but  still  if  a  man  were  to  say  as  regards  his  wife,  with 
whom  he  has  had  no  intercourse,  ''  Thou  art  divorced  thrice,^'  the  result  will 
be  that  she  shall  be  thrice  divorced,  and  the  man  shall  not  be  able  to  marry 
her  until  the  legaliser's  help  is  rendered:  it  is,  therefore,  clear  that  the 
divorce  takes  place  as  a  consequence  of  the  number  and  not  simply  as  a 
consequence  of  the  word  "  divorced ; "  and  that  the  word  which  expresses 
the  number,  involves  the  idea  not  only  of  the  number  but  also  of  the 
divorce :  therefore  when  doubt  is  introduced  by  the  use  of  the  word  ''  or," 
in  the  instances  given  above,  then  no  divorce  shall  be  caused.  See  also 
paragraph  1052  jpoati  • 

1866.  (965.)  A  woman  says  to  her  husband  (in  Persian),  ^  Give  me 
divorce ;  *'  the  husband  says,  ''  Consider  that  I  have  given,"  or  says, 
"  Consider  that  I  have  done,"  or  says,  "  Be  it  that  I  have  given,"  or  says, 
'^  Be  it  that  I  have  done  : "  the  Mashaikhfl  have  differed  in  tins  matter, 
but  the  correct  view  is,  that  the  husband  must  have  an  intention  to 
divorce,  and  that  if  he  intends  to  cause  divorce  (EekcM),  one  reveraible 
divorce  shall  be  caused;  but  if  he  does  not  intend  to  divorce,  no  divorce 
shall  be  caused  (because  those  expressions  of  the  husband  do  not  necesBarily 
indicate  the  causing  of  divorce). 

And  if  the  husband  (in  answer)  says,  *'  I  have  given,"  or  says,  ^  I  have 
done,"  or  says,  "It  has  been  given,"  or  says,  ''It  has  been  done,"  one 
reversible  {Rajwli  divorce  shall  be  caused,  whether  he  has  intention  to 
divorce  or  not ;  and  if  he  says  he  did  not  intend  thereby  a  divorce,  he 
shall  not  be  confirmed  by  the  Kazee. 

And  if  the  husband  says  (in  answer), ''  Consider  that  it  has  been  given," 
or  says,  ''  Consider  that  it  has  been  done,"  divorce  shall  not  be  caused, 
although  he  might  have  an  intention ;  just  as  if  he  had  said  in  Arabic, 


6N   IMMBDIATB   DI70RCE.  25 

"  Consider  that  thon  art  diForced,"  wben^  if  he  says  so,  no  divorce  shall 
be  caused,  although  he  might  have  an  intention  (because  the  fact  of  her 
considering  herself  to  be  divorced  does  not  make  her  divorced :  he  must 
do  something  to  cause  divorce  on  her). 

And  if  he  says  (in  answer),  ''Be  thou  a  divorced  (woman)/'  or 
^  Be  thou  divorced,"  divorce  shall  be  caused  (because  here  the  husband 
does  something  to  cause  divorce  on  his  wife). 

1866.  (966.)  And  if  a  woman  says  to  her  husband  (in  Persian),  *'  Do 
not  keep  me/'  and  the  husband  says,  **  Consider  thyself  not  kept ;  "  then 
the  learned  lawyers  have  said  that,  if  the  husband  intended  to  {Eekaa 
or)  cause  divorce,  divorce  shall  be  caused,  otherwise  not. 

1867.  (967.)  And  if  the  woman  says  (in  Persian),  **  Withdraw  your 
hand  from  me,"  and  the  husband  says,  **  Consider  that  1  have  withdrawn 
it/'  then  also  if  he  has  an  intention  to  cause  divorce,  it  shall  be  caused, 
not  otherwise. 

1868.  (968.)  And  if  the  husband  says,  in  the  absence  of  a  topic  of 
divorce  (in  Persian),  <<  It  is  true  that  on  her,  (he)  has  given  a  thousand 
divorces,"  and  he  then  says  he  did  not  intend  to  divorce  his  wife,  the 
word  to  be  accepted  shall  be  his  (because  it  is  not  clear  who  has  given  a 
thousand  divorces,  and  ^on  her'  does  not  refer  to  the  wife  necessarily). 

1869.  (969.)  And  if  a  man  says  to  his  wife,  *^  Thou  art  not  to  me 
a  wife,"  or  says,  "  Not  art  thou  to  me  a  wife,"  or  says, "  I  am  not  husband 
for  thee ; "  Aboo  Huneefa,  on  whom  be  peace,  says,  if  the  husband  intends 
to  cause  divorce,  divorce  shall  be  caused,  otherwise  not ;  but  his  disciples 
have  said,  no  divorce  shall  be  caused  even  if  he  has  an  intention.  (See 
paragraphs  17  ante  and  1112  poti)^ 

1870.  (970.)  And  if  the  husband  on  being  asked,  *^  Whether  he 
has  a  wife,"  says  **  No :  "  some  of  the  Mashaikhs,  on  whom  be  peace,  say, 
DO  divorce  shall  be  caused  according  to  the  view  taken  by  them  (the  three 
Imams) ;  but  Enrkhy,  on  whom  be  peace,  says,  that  this  case  also  stands 
with  the  same  difference  of  opinion  as  the  one  above  (i. a.,  the  case  in 
the  last  part  of  paragraph  969). 

1871.  (971.)  And  if  the  husband  says,  "By  God,  thou  art  not  my 
wife,"  or  says  by  way  of  argument,  "  If  thou  hadst  been  my  wife  (then,  &c., 
&c.,  e.g.y  thou  sbouldst  have  been  under  my  protection)/'  or  says,  ^*  Tljou 
hast  not  been  my  wife,"  or  says,  "  I  did  not  marry  thee,"  no  divorce  sliall 
be  caused  even  if  he  has  an  intention. 

4 


26  THE  TAOOBE  LAW  LECTURES^  1891-92. 

1872.  (972.)     A  man  says,  "  Every  one  of  my  wives  is  divorcecl/'  or 
•Boys,  ^*  My  wife  is  divorced,**  tbis  sball  not  inclade  (or  apply  to)  a  woman 

who  (was  his  wife  but  who)  is  observing  Iddut  after  a  complete  {bain) 
divorce.  But  if  he  says  to  such  a  woman,  "  Thou  art  divorced,''  the  divorce 
shall  be  caused  (if  the  complete  or  bain  divorce  already  given  did  not 
amount  to  three  divorces) :  so  also  if  he  says  (in  Persian),  to  a  woman 
who  has  obtained  Khoola  from  him,  **  This  wife  of  mine  is  thrice  divorced," 
three  divorces  shall  take  effect. 

[Note*— If  a  man  says  to  his  wife,  "  I  have  divorced  you  once  com- 
pletely or  bainy*  which  means,  ^'  I  have  given  you  one  irrevocable 
divorce,"  then  he  must  marry  her  again  in  order  to  have  lawful  intercourse 
with  her :  if  he  says,  "  I  have  given  a  reversible  divorce,"  or  "  Given 
you  a  divorce,"  then  a  revocable  divorce  shall  be  caused,  and  then  the  man 
can  have  sexual  intercourse  with  her  during  the  Iddut,  and  such  sexual 
intercourse  shall  amount  to  a  revocation.  If  he  has  given  her  a  bain  divorce, 
she  is  not  his  wife ;  because  if  she  had  been  his  wife,  he  could  have  inter- 
course with  her,  and,  therefore,  when  he  says,  "  All  my  wives  are  divorced,'* 
she  shall  not  be  included,  and  no  divorce  shall  be  caused  on  her ;  but  inas- 
much as  the  nikah  has  not  wholly  come  to  an  end,  because  the  husband  is 
liable  to  maintain  her,  and  so  forth,  he  is  entitled  to  treat  her  as  not  having 
gone  beyond  the  relationship  of  wife,  and  can  pronounce  another  divorce 
on  her :  but  if  she  has  already  been  thrice  divorced,  then  there  is  no  power 
left  in  the  husband's  hands,  which  he  could  use  for  a  divorce.] 

1873.  (973.)  A  man  refers  the  divorce  to  certain  parts  (only)  of  the 
woman ;  then  if  he  refers  the  same  to  a  part  (which  is  uncertain,  and 
indefinite  or)  which  is  not  fixed,  as  for  instance  if  he  says,  ^^  A  moiety  of 
thee,**  or  "  A  third  of  thee,"  or  "  A  fourth  of  thee  is  divorced,"  or  "  One 
thousandth  part  of  thee,"  the  divorce  shall  be  caused  (that  is,  a  reversible 
divorce  shall  be  caused) ;  so  also  if  he  refers  the  divorce  to  a  fixed  portion 
which  is  applicable  to  (and  used  to  denote)  the  whole  of  the  individual, 
as  for  instance,  if  he  says,  "  Thy  head  is  divorced,"  or  "  *  *  * 
ifufj)  is  divorced," or  "Thy  neck  is  divorced,"  or  "Thy  face  "  or  "Thy 
soul  is  divorced,"  or  "  Thy  body,"  a  (reversible)  divorce  shall  be  caused ; 
but  if  he  says,  "  Thy  blood  is  divorced,"  then,  in  this  matter,  there  are  two 
(conflicting)  traditions ;  and  if  he  says  "  Thy  belly,"  or  "  Thy  back," 
then  Sheikh-ool  Imam  Shumshool  Ayma  Surukhsy,  on  whom  be  peace, 
says,  that  according  to  him,  divorce  shall  not  be  caused. 

And  if  he  refers  the  divorce  to  a  certain  (and  definite)  part,  so  that  the 


OK  IMUBBUTE   DIVOBCiS.  27 

whole  of  the  individual  is  not  implied  by  that  part,  as  for  instance,  if  he 
says,  "Thy  hair  is  divorced,*'  op  "  Thy  chest,''  or  "Thy  thigh,"  or  "  Thy  leg, 
(or  foot)/*  or  "  Thy  hand,"  op  "  Thy  anns,"  or  any  other  like  part,  then 
divorce  shall  not  be  caused. 

And  if  he  says,  "This  bead  is  divorced,"  pointing  towards  the  head  of 
his  iri£e,  then  the  correct  view  is  that  divorce  shall  be  caused  just  as  if  he 
says,  "  This  thy  head  is  divorced." 

And  for  this  reason  (that  is,  because  the  use  of  the  word  "  head  "  is  indi- 
cative of  the  whole  of  the  body),  if  a  man  says  to  another  man,  "  I  have 
sold  to  thee  this  head  for  a  thousand  dirhems,"  pointing  to  the  head  of  his 
slave^  and  the  purchaser  says,  "  I  have  accepted,"  the  sale  shall  be  valid  • 
(For  the  reasons  of  the  rule  stated  in  this  paragraph,  see  Budd-ool  Moohtar, 
Vol.  n,  page.  714). 

1874.  (974.)  A  man  says  to  another,  "Inform  my  wife  of  her  divorce 
(that  is,  that  I  have  divorced  her)"  or  "Convey  to  her  the  glad  ti- 
dings (said  by  way  of  sarcasm)  of  her  divorce,"  or  "  Carry  to  her,  her 
divorce,"  or  "  Inform  her  that  she  is  divorced,"  or  "  Tell  her  that  she  is 
divorced : "  the  wife  shall  become  divorced  instantly,  and  the  divorce  shall 
not  depend  on  her  receiving  the  information  (or  news  of  the  divorce,  or 
that  the  husband  said  so),  and  shall  not  depend  (in  the  last  case)  on  the 
person  requested  telling  her  what  he  was  charged  with. 

And  if  the  husband  says  to  another,  "  Tell  her  '  Thou  art  divorced,' " 
the  divorce  shall  not  take  effect  until  the  person  requested  says  so  (that 
is,  until  he  pronounces  the  very  words,  "  Thou  art  divorced"). 

[NoTE.^-See  Budd-ool  Moohtar,  Vol.  11,  page  789.  If  a  man  says 
to  another  man,  "Authorise  my  wife  to  divorce  herself;"  here  the  im- 
perative form  implies  that  the  husband  appoints  the  other  man  as  his 
vakeel  for  the  purpose  of  giving  authority  to  his  wife,  in  the  same  way  as 
the  husband  himself  could  vest  her  with  authority  to  divorce  herself : 
in  such  a  case,  if  the  vakeel  does  not  vest  the  wife  with  authority 
to  divorce  herself,  she  shall  not  have  the  authority.  But  if  the  husband 
Bays  to  another,  "  Inform  her  of  her  authority,"  that  means,  "  Inform 
her  that  I  have  vested  her  with  authority  to  divorce  herself,"  that 
is,  "I  have  already  vested  her  with  authority,  and  you  inform  her 
of  this ; "  here  the  husband  declares  that  he  has  authorised  his  wife 
to  divorce  herself.  Therefore  her  authority  does  not  depend  on  the  infor- 
mation to  be  conveyed  by  the  other ;  because,  even  if  before  the  messenger 
gives  her  the  information,  she  gets  information  from  other  sources,  and 


28  tHS  TAOOfift  lAW  t«ottm«S|  1891-92. 

6h6tim  liemlf J  tk^  divorce  shall  f>d  vilicl.  Therefore^  arguing  ir6m  anar 
Ibgy  from  what  18  statecl  above  in  the  Budd-ool  Moohtar^  it  is  clear  that 
te  ^dragWiAi  974,  when  the  huBbaiiid  says^  ''I^orm  my  wife  of  her  divorce/^ 
this  means  that  the  husband  has  already  divorced  her  and  he  adfints  or 
^^res  ttbc  divorce  an^  wishes  the  woman  to  be  informed  of  it ;  the  divorce 
theref dve  takes  plade  at  once  even  before  the  information  reaches  her;  because 
a  divorce  takes  effect  from  the  time  it  is  given  and  not  from  the  time  the 
weinan  i^ears  of  It.  And  so  also  if  he  says^  '^  Tell  her  she  is  divorced,^  this 
ineans  he  hAB  already  divorced  her^  and  he  tells  the  man  to  go  and  tell  her. 
Sut  when  he  says,  '*  Tell  her  '  Thou  art  drvoroed/  "  this  means  "  I  appoint 
j^B  as  my  vakeel,  you  should  go  to  her  and  address  her-^'  Thott  art 
divorced/  and  give  her  divorce :  '^  therefore  until  the  man  goes  and  divorces 
the  woman,  there  is  no  divorce ;  because  the  husband  has  given  no  divorce 
at  aU>  but  has  asked  anotiier  man  to  give  the  divorce.} 

1875.  (975.)  And  if  a  person  says  to  another,  '^  Write  to  her,  her 
divorce  (that  is,  write  to  her  that  I  have  divorced  her},''  it  is  fit  that  divorce 
should  take  etfeot  instantly  (without  waiting  for  the  writing),  just  as  when 
ibe  nmn  says,  ''  Oebrry  to  her,  her  divorce,''  and  just  as  when  he  says, 
"  Write  to  my  wife  that  she  is  divorced."  (See  Budd-ool  Moohtar,  Vol.  II, 
page  703 :  here  the  husband  admits  tliat  he  has  given  a  divorce  and  asks 
another  man  to  write,  and,  theref  oroy  the  woman  becomes  divorced  whether 
dhe  is  written  to  or  not,  and  whetl^r  the  writing  reaches  her  or  not). 

1876.  (976.)  A  man  says  to  his  wife,  ''Thou  art  divorced  like  the 
{Sanja  or)  weight  of  a  Banik : "  one  divorce  shall  take  efEect.  And  if  he 
says, ''  Like  the  Sa/nja  of  a  Danik  and  a  moiety,"  then  two  divorces  shall 
take  effect. 

So  also  if  he  says, ''  Like  two  dirhems,"  one  divorce  shall  take  effects 
And  if  he  says> ''  Like  three  dirhems,"  then  two  divorces  shall  take  effedt. 

The  result  is  that^  if  the  man  compares  the  divorce  with  that  which  is 
weighed  by  one  8anja  (or  a  unit  of  weight)  then  one  divorce  shall  be  housed; 
but  if  he  compares  the  divorce  with  that  which  is  weighed  by  two  Bmja4 
then  two  divorces  shall  be  caused.  And  if  he  compares  the  divorce  with  that 
which  is  weighed  bythreefifari/a^or  more, then  three  divorces  shall  take  effect. 

Thus  Dandc  is  weighed  by  one  Sanja  (or  unit  of  weight),  and-tTj^ 
dirhems  are  also  weighed  by  one  Banja* 

And  one  And  hilf  Danik  ore  weighed  by  two  Banjos,  and  so  also  three 
dimems  are  wisighed  by  two  Banja$.  (See  Fatawai  Alumgiree>  7oL  Ij 
page  b2S)s 


Accorctingly^  tliis  olaaa  of  csuses  ift  governed  by  this  mle^  (Urns  probably, 
if  annul  BayBj  ^  Like  eight  two-anna  pieces/'  one  divorce  shall  be  caused,  and 
80  also  if  be  says,  '^  Like  two  eight-anna  pieces :  "  bnt  if  he  says, ''  Like  nine 
two-omia  pieoee,'^  or  ''Three  eight-anna  pieces,''  then  two  divorces  shall 
lecaased)* 

18T7.  (977.)  When  a  man  joins  (in  divorcing)  two  wives,  one  of 
Thorn  is  validly  married  to  him  and  the  other  is  invalidly  married,  saying, 
'^  One  of  yon  two  is  divorced,"  then  the  woman  who  has  been  validly 
niarried  shall  not  become  divorced,  just  as  when  a  man  joins  a  married  wife 
and  a  stranger,  saying,  "  One  of  yon  is  divorced ; "  (see  paragraph  963 
and  955;  bnt  if  he  says,  ''  I  have  divorced  either  of  you  two,"  then  the 
wife  validly  married  shall  become  divorced,  because  this  expression  is  only 
Ineha  and  not  Ikhbar). 

1878.  (978.)  And  if  a  man  has  two  wives,  the  name  x>f  each  of  whom 
is  Zynnb,  and  the  marriage  of  one  of  them  is  valid  and  that  of  the  other 
inval^  (Fcuid),  the  hnsband  says,  ''Zynnb  is  divorced;"  the  wife  whose 
marriage  is  valid  shall  become  divorced,  and  if  the  hnsband  says,  "I 
intended  the  other  wife  (that  is,  the  one  not  validly  married),  he  shall  not 
be  confirmed  by  the  Ksaee ;  just  as  if  a  man  (having  only  one  wife,  whose 
name  id  Zynub)  says,  "  Zynub  is  divorced,"  the  fact  being  that  his  wife's 
name  is  Zynnb,  then  his  wife  shall  become  divorced ;  and  if  he  says  "  (by 
Zynnb)  I  (did  not  mean  my  wife,  but)  intended  (to  refer  to)  a  strange 
wcman,"  he  shall  not  be  ccm&rmed  by  tho  Kazee.  ^ 

Soalsoif  hesays,  "One  of  my  wives  is  divorced"  (he  having  two 
as  aforesaid,  one  of  them  having  been  validly  married,  and  the  other 
invalidly  married),  then  the  wife  validly  married  to  him  shall  become 
divorced :  (here  the  expression  does  not  admit  of  Ikhbar  and  is  only  Insha ; 
see  also  paragraph  960). 

1879.  (979.)  And  if  he  joins  two  wives,  one  of  whom  has  been 
validly  married  and  the  other  invalidly  married  to  him,  saying  "I 
have  divorced  one  of  you  two,'f  then  the  wife  validly  married  shall 
become  divorced ;  just  as  if  he  joins  a  woman  married  to  him  and  one 
who  is  a  stranger  to  him,  saying,  "I  have  divorced  one  of  you  two,"  his 
married  wife  shall  become  divorced.    (See  paragraph  953.) 

2880.  (980.)  U  a  sleeper  divorces  his  wife  (that  is,  if  a  man  Triiile  asleep 
happebB  to  otter  wotds  df  diToree  in  reference  to  his  wi&),  and  offerh^ 
aw^JieB  he  is  informed  of  the  fact  (that  he,  while  asleep,  gave  uttacanoe  to 


30  THE   TAGOBB  UW  LBCTtBBS^   1891-92. 

expressions  of  divorce  in  reference  to  his  wife)  and  he  then  says,  "I 
permit  (or  ratify  and  confirm)  that  divorce/'  the  divorce  shall  not  be 
cansed  (on  his  wife). 

1881.  (981.)  So  also  if  a  minor  divorces  his  wife,  or  if  a  stranger 
(or  a  volunteer)  divorces  the  minor's  wife,  and  the  minor  permits  the 
divorce  (given  by  him  whilst  a  minor  or  given  by  the  stranger)  after  attain- 
ing majority,  (that  divorce  shall  not  be  caused). 

1882.  (982.)  And  if  the  sleeper  (as  in  paragraph  980),  says  after  he  ia 
awake,  "  I  have  caused  {avkd)  that  divorce, ''  or  says, "  I  have  rendered  it 
{mz.y  the  divorce  given  while  asleep)  divorce,''  the  divorce  shall  take  effect. 

So  also  if  the  minor  (as  in  paragraph  981)  says  so  after  majority 
(the  divorce  shall  take  effect). 

[Note  to  paragraphs  980,  981  and  982.  See  Eudd-ool  Moohtar,  Vol.  II, 
pages  699  to  702.  The  minor  being  what  is  called  Muhjoor-an-iMuaurrooff  or 
having  no  capacity  to  act,  the  divorce  given  by  him  has  no  effect ;  on  the 
other  hand,  that  divorce  is  batilf  that  is,  it  has  no  existence  at  all,  just  as 
if  he  had  never  pronounced  the  words  of  divorce :  when  he  attains  majority 
and  refers  to  the  same  divorce  which  he  had  pronounced  during  his  minority, 
and  which  had,  owing  to  his  minority,  no  existence  and  was  batil,  saying,  "  I 
ratify  that  divorce,'  "  meaning  he  ratifies  a  divorce  which,  in  reality,  never 
had  any  existence  at  all,  even  then  such  divorce  shall  not  be  caused ;  for  a 
thing  which  is  latil  or  which  has  never  had  an  existence  is  not  capable  of 
being  ratified.  But  if  the  minor,  after  attaining  majority,  says,  ''  I  cause 
that  divorce, "  that  is,  ''  I  cause  divorce  of  the  nature  or  kind  such  as  I 
caused  during  minority,  but  which  could  not  take  effect  owing  to  my 
minority, "  then  the  divorce  shall  be  caused ;  because  by  the  word  "  that" 
is  meant  the  kind  or  ''jina"  of  divorce,  and  not  the  identical  divorce 
involved  in  the  words  uttered  during  minority :  but  if  he  says,  "  Aukato 
aUlazee  tuluffva  to  hoo^^  or  ''  I  cause  that  divorce  which  I  pronounced, "  then 
no  divorce  shall  be  caused ;  because  this  divorce  refers  to  the  identical 
divorce  which  as  above  stated  was  hatih  Just  as  if  a  man  says  to  his  wife, 
"  Thou  art  divorced  a  thousand  divorces, "  and  then  afterwards  he  says, 
not  as  a  qualification  of  what  he  had  said  before,  but  as  a  new  beg^inning, 
''  Three  of  the  thousand  divorces  are  upon  thee  and  the  rest  are  on  thy 
co-wives  j "  here  no  divorce  shall  be  caused  on  his  co-wives;  because  when 
he  had  caused  a  thousand  divorces  on  one  wife,  that  wife  became  divorced 
by  three  divorces,  and  the  rest  of  the  number  thousand  became  hatU 
and  lagho ;  and  therefore  there  YTas  no  divorce  in  existence  which  could 


ON  IMHBDIATS  DIVOBCE.  31 

be  caosed  on  the  other  wives.  The  case  of  a  sleeper  is  similar  to  that  of  a 
minor  except  that  a  sleeper's  words  have  no  effect  on  account  of  absence  of 
intention  or  intifai-il-irad/ut J  and  the  words  uttered  by  him  while  asleep 
are  batil :  and  it  is  on  account  of  the  absence  of  intention  in  a  sleeper 
that  his  words  uttered  while  in  a  state  of  sleep  cannot  be  said  to  be  saddq 
or  true  and  Kazib  or  f  alse^  and  cannot  be  said  to  amount  to  Khuhur  or 
information  and  Insha  or  creating  a  thing.  Therefore^  if  after  he  is 
awake  he  refers  to  the  identical  divorce  which  he  pronounced  whilst  in 
deep^  and  which  had  no  existence^  the  divorce  now  given  shall  have  no 
effect,  whereas  if  he  refers  to  what  he  did  in  his  sleep  simply  as  a  reference 
to  the  kind  or  jina  of  tiUdkj  then  the  present  divorce  shall  be  caused.  So 
also  the  divorce  pronounced  by  the  following  persons  shall  have  no  effect :— - 
m.j  an  insane  man  or  Mvjnoon  ;  an  idiot  or  Matooh  ;  a  Mooburaum  ;  a  man 
who  has  fainted  or  Mooghma  alaih  ;  a  Mvdhosh.  A  Mujnoon  or  one  insane  is 
then  defined  at  page  699.  So  also  a  Matooh  at  page  700 ;  a  Mooburaum 
is  one  who  is  affected  by  the  Bvraam  a  disease  which  develops  into  a  hot 
sweUing  in  the  region  of  the  liver  and  reaches  up  to  and  affects  the 
brain ;  a  Mooghma  alaih  is  one  affected  with  Ighmaj  which  is  an  affection 
of  the  heart  or  the  brain,  by  which  the  sense  of  preception  and  the  power  of 
mobility  are  rendered  useless,  and  his  ahl  or  reason  remains  in  a  state  of 
torpor;  a  Mudhoah  is  a  person  affected  so  as  to  make  him  stare  vacantly.] 

1883.  (988.)  A  man  having  two  wives  says  to  one  of  them,  ''  Thou 
art  divorced  four  times'',  and  she  says,  "Three  divorces  are  sufficient, "  and 
the  husband  then  says,  "  I  have  caused  the  excess  on  so  and  so  (that  is,  on 
the  other  wife),"  then  on  that  so  and  so  no  divorce  shall  take  effect  (because 
the  excess  over  three  is  batil.    See  note  to  paragraph  982). 

So  also  if  the  husband  says  (in  reply  as  aforesaid),  "  Three  divorces 
are  for  thee  and  the  remainder  is  for  thy  companion,"  the  other  wife  shall 
not  become  divorced. 

1884.  (984.)  A  man  says  to  his  wife,  'rPhou  art  divorced  once  or 
twice,"  one  divorce  shall  take  effect,  and  the  husband  shall  not  have  the 
option  (to  say  that  by  this  expression  two  divorces  are  effective). 

1886.  (985.)  A  man  says  to  his  wife,  "  Verily,  God  has  divorced 
thee, "  or  says  to  his  slave,  "  God  has  emancipated  thee  "  (in  the  form  of 
a  prayer  or  imprecation)  :  it  is  said  in  the  Wakiyat,  that  the  divorce  shall 
take  effect,  whether  he  (himself  as  contradistinguished  from  God)  has  the 
mtention  (to  divorce  or  emancipate)  or  not,  whilst  it  is  said  in  the  Ayeeoon 
and  the  Bnkkaly,  that  if  the  man  intends  (to  give)  a  divorce^  then  the 


82  THE  TAGOBB  lAW  LVCTDIOS^   1891-92. 

diyoiloe'thall  be  caused^  ctkerwise  not.  But  i£  he  is  qnaetioxied  byanotbef 
person  who  aske^  "  Hast  thou  diyoroed  thy  wifef  and  he  sajs  (in  answer) 
"  God  has  divorced  her, "  then  the  dirorce  ditdl  take  e&ct«  So  also  in 
thecsuaeof  emandpa^on. 

[Note. — ''Yerily  hasOod  dirorcedthfie,''  has  two  meaoings  intho 
Arabic  Lmgnage;  one  meaning  is  prayer  or  impi^ecationy  that  is,  ^'May 
God  make  thee  divorced : ''  if  the  expression  is  nsed  in  this  aense,  then 
there  should  be  no  divorce,  because  the  hucdsttod  does  not  divorce  her 
himself,  but  invokes  a  curse  on  her :  the  other  meaning  is,  "  I  Imve 
divorced  thee,  and  because  everything  done  by  man  is  done  by  Giod,therefore 
God  has  made  thee  div<Hrced;'^  this  sense  requires  thaA  'the  woman  should 
become  divorced.  Therefore,  according  to  the  Ayeeoon  and  the  Bokkaly, 
when  the  expression  admits  of  two  meanings,  the  question  must  depend  on 
intention.  The  Wakiyat  takes  the  expression  in  the  second  sense,  and  the 
author  of  it,  therefore,  does  not  hold  intention  to  be  necessaiy.  If  the 
expression  is  used  after  a  question  is  put,  then  the  woman  shaJl  become 
divorced ;  because  here  the  second  sense  only  is  possible,  and  it  shall  be 
presumed  that  the  husband  has  used  the  expression  in  the  sense  of  Ikhhar 
or  information.  So  also  in  the  case  of  Emancipation.  See  also  Budd-ool 
Moohtar,  Vol.  II,  pages  712  and  718.] 

ijBSS.  (986.)  A  man  says  to  his  wife  in  anger  or  in  quarrel  (in 
Persian),  "  Oh !  thou  of  a  thousand  divorces,  go  away*  (t.«..  Oh,  thou 
divorced  a  thousand  times,  or  thou  a-thousand-times-divoroed  one,  get 
away),''  the  woman  shall  become  thrice  divorced  (although  he  had  not 
divorced  her  before,  and  the  expression  used  shall  be  considered  as  divorce)^ 
So  also  if  he  says,  ''  Oh,  thou  a  divorced  (woman) ! ''  she  shall  become 
divorced  (now,  without  there  having  been  a  previous  divorce).  And  if  he  says, 
"  Oh,  thou  a  thrice  divorced  (woman) ! ''  she  shall  become  divorced  thrice. 
(Such  expressions  are  often  used  in  anger  or  in  quarrel;  but  whenever  used 
they  have  the  same  effect). 

1887.  (987.)  Amd  if  the  husband  says  to  his  wife  in  Arabic,  ''Go 
thou  a  thousand  times,''  having  the  intention  to  divorce,  the  woman  shall 
become  divorced  thrice  (because  this  expression  is  an  indirect  expression^ 
and  therefore  intention  is  necessary.  See  Budd-ool  Moohtar,  Vol.  II, 
page  761). 

1888.  (988.)  A  man,  after  having  intercourse  with  his  wife,  divorces 
her  once,  and  then  after  this  (divorce)  says,  '^  I  have  rendered  the  same 
divorce  complete  Q^ivn)^ "  or  ^'  I  have  rendered  that  divorce,  three  di- 


ON   IMMKDIAT1S   DIVOBCB.  88 

7oro66 :  ^'  £he  traditions  have  differed  in  regard  to  the  matter ;  and  the 
correct  view  is  that  according  to  Aboo  Huneefa,  on  whom  be  peace,  the 
(single)  divorce  (given  as  aforesaid)  shall  become  complete  {bain),  and  it 
shall  become  (effective  in  like  manner  as)  three  divorces.  But  according 
to  Mahomedj  on  whom  be  peace,  it  shall  not  become  complete  (j&atn),  bat  it 
shall  become  (equivalent  to)  three  divorces.  And  according  to  Aboo 
Yasoofj  on  whom  be  peace,  it  is  qorrect  to  render  the  (single)  divorce, 
complete  (bain),  but  it  is  not  correct  to  render  the  same  (equivalent  to) 
three  divorces. 

[Note  to  988, 991  and  992.    See  Rudd-ool  Moohtar,  Vol.  II,  page  740, 
The  substance  of  a  thing  and  a  certain  quality  attached  to  it  must  co-q^t^  or 
stricUy  speaking,  the  conception  of  the  quality  is  subsequent  to  that  of  the 
aabstance,  although  in  regard  to  time  both  are  co-eval.    At  any  rate,  when 
the  quality  of  the  thing  is  sought  to  be  changed,  and  a  new  quality  is  sought 
to  be  attached  to  it,  then  it  is  reasonable  to  suppose  that  the  thing  itself 
came  into  existence  before  the  new  quality  could  be  attached  to  it.    In  the 
instance  given  in  paragraph  988,  the  husband  caused  the  divorce  to  come 
into  being  with  the  quality  of  singleness,  or,  in  other  words,  wi^i  the  quality 
of  being  reversible  attached  to  it.     So  that,  according  to  Aboo  Huneef a, 
it  is  competent  to  him  to  change  the  quality  of  being  reversible  into  a 
quality  of   completeness  and  being  irreversible,  or,  in    other    words,    to 
change  the  quality  of  oneness  into  that  of  being  triplicate.     So  also  he 
might  change  that  quality  into  a  quality  of  being  double.    The  case  is 
supposed  to  be  that  of  a  woman  with  whom  there  has  been  intercourse, 
because  such  a  woman  requires  three  divorces  to  complete  her  separation, 
whereas  a  wife,  with  whom  there  has  not  been  sexual  intercourse,  becomes 
completely  separated  only  by  one  divorce,  and  there  is  no  Iddut ;  and  in 
her  case  the  divorce  has  done  its  work  and  is  no  longer  of  any  efficacy. 
It  must  also  be  noted  that  the  husband  must  change  the   quality  of 
the  divorce  before  the  Idd/ut  expires ;  because  after  the  expiry  of  the 
Iddut,  the   woman  becomes  a  total  stranger,  and  no  divorce    can  be 
caused  on  a  stranger ;  whereas  during  the  Iddut  of  the  wif  e^  it  is  com- 
petent to  the  husband  to  give  a  fresh  substantial  divorce.     So  also  in  the 
case  in  paragraph  991,  the  quality  of  completeness  is  sought  to  be  attached 
before  the  divorce  is  brought  into  existence,  and  therefore  such  quality  shall 
not  be  attached  to  the  divorce  and  the  divorce  shall  be  single  and  revocable. 
So  also  in  paragraph  992 :  but  if  in  the  case  in  paragraph  992  the  husband 
had  songht  to  attach  the  quality  of  completeness  to  the  divorce  after  the 
5 


34  THE  TAGOBE  LAW  LECTUBBS,   1891-92. 

woman  shall  have  entered  the  honse^  then  the  divorce  shall  become  complete; 
because  the  divorce  shall  have  then  come  into  being  as  in  paragraph  988^ 
See  also  paragraph  1088 post}. 

1889.  (989.)  And  if  a  man  after  having  intercourse  with  his  wife 
divorces  her  once^  and  then  says  during  the  Idd/ut, ''  I  have  rendered  obli- 
gatory on  my  wife  three  divorces  with  (and  inclusive  of)  that  divorce  (that  is 
three  divorces  including  the  former  one)/'  or  says,  "  I  have  rendered  obli- 
gatory on  her  two  divorces  with  (and  inclusive  of)  that  divorce  (that 
is,  two  divorces  including  the  former  one) ; "  then  the  divorces  shall  take 
effect  according  to  what  he  says  (that  is  to  say,  in  the  first  case  three 
divorces  shall  be  caused,  and  in  the  second  case  two  divorces  shall  be 
caused). 

But  if  he  says,  "  I  have  rendered  obligatory  on  her  three  divorces," 
then  three  divorces  shall  take  effect  (the  one  already  given  being  counted  as 
one) ;  and  if  he  says,  "  I  have  rendered  obligatory  on  her  two  divorces," 
then  two  divorces  shall  take  effect  (the  one  already  given  being  counted 
as  one). 

1890.  (990.)  And  if  a  man  divorces  his  wife  once,  and  then  revokes 
the  divorce,  and  then  says,  ''  I  have  rendered  that  divorce  complete 
{bain)"  the  divorce  shall  not  become  complete  (Jbain),  because  the  hus- 
band is  not  competent  to  render  the  revocation  void. 

1891.  (991.)  And  if  the  husband,  after  having  intercourse  with  his 
wife,  sayd,  ''  When  I  shall  divorce  thee  once,  then  that  divorce  shall  be 
complete, "  or  ''  Then  that  divorce  shall  be  (equivalent  to)  three  divorces," 
and  he  afterwards  gives  her  one  divorce :  he  shall  certainly  be  entitled 
to  revoke  (that  is,  his  right  to  revoke  shall  notbe  lost  to  him)  and  that 
(single)  divorce  shall  neither  become  complete  (batn),  nor  shall  it  become 
(equivalent  to)  three  divorces ;  because  he  has  attributed  the  quality  of 
completeness  or  the  quality  of  the  divorce  being  triple  before  the  divorce 
had  actually  come  into  existence  (thus  if  the  man  says,  ''  If  you  enter 
this  house  you  will  become  thrice  divorced,''  then  on  the  condition  being 
realised,  she  shall  become  thrice  divorced ;  but  if  he  were  to  say,  ''  If 
you  enter  this  house  you  will  become  divorced "  and  then  says,  '^  I 
render  that  divorce  complete,"  she  shall  become  only  once  divorced,  and 
the  divorce  shall  not  become  complete,  because  the  quality  was  attached 
before  the  divorce  actually  took  effect). 

1892.  (992.)  And  if  a  man  says  to  his  wife,  "  When  thou  shalt  enter 
the  house  then  thou  shalt  be  divorced,"  and  afterwards  he  says  before 


6N  nCUlEDUTB  DiVOftCE.  35 

(the  condition  was  realised,  i.e.,  before)  the  ^ntry  in  the  house  was  made 
by  the  woman,  "  I  render  this  divorce  complete  {lain), "  or  says, "  I  render 
this  divorce  triple, "  the  divorce  shall  not  have  attached  to  it  the  quality 
sought  to  be  superadded  by  him  by  the  additional  expression ;  because  the 
divorce  itself  was  not  operative  (and,  therefore,  there  is  nothing  which 
could  be  clothed  with  the  additional  quality). 

1898-  (993.)  If  a  man  says  to  bis  wife,  after  he  has  had  intercourse 
with  her  (in  Persian),  "  One  divorce  upon  thee,''  "  One  divorce  upon 
thee,"  "  One  divorce  upon  thee,''  three  divorces  shall  take  effect ;  just  as 
if  he  says  in  Arabic,  "  Thou  art  divorced,"  "  Thou  art  divorced,"  "  Thou 
art  divorced,"  in  which  case  three  divorces  take  effect :  (that  is,  he  repeats 
the  sentences  without  the  conjunction ;  but  the  effect  is  the  same  as  if  he 
repeated  them  with  the  conjunction.  When  a  man  says  "  Zaid  is  standing, 
Zaid  is  standing,"  then  the  latter  is  tdkeed  of  the  former :  so  it  might  be  sup- 
posed that  where  the  sentences  regarding  divorce  have  been  repeated  there 
also  it  is  a  case  of  taJceed^  or  repetition  so  as  to  add  force  to  the  first  expres- 
sion. To  guard  against  this  inference,  the  rule  is  laid  down  that  such 
repetitions  in  cases  oE  divorce  have  the  result  not  of  tdkeed  but  of  tasees, 
that  is,  of  a  fresh  and  additional  idea  being  involved  in  the  sentence  which 
is  repeated  :  such  a  course  is  adopted  because  it  is  preferable  to  attach 
a  fresh  meaning  to  an  expression  than  to  read  it  in  the  sense  of  a  mere 
repetition.  See  Budd-ool  Moohtar,  Vol.  II,  pages  747  and  748,  and  also  page 
755.  Divorce  may  be  given  in  a  form  of  expression  in  which  the  divorce 
is  associated  with  quality  which  might  be  repeated  without  or  with  the 
conjmiction,  e.g.,  "  Thou  art  divorced  once,  once,  once ; "  or  "  Once  and 
once  and  once, "  or  there  might  be  a  repetition  of  the  word  divorce  without 
or  with  the  conjunction,  e.g.,  "  Thou  art  divorced,  divorced,  divorced;  "  or 
"  Divorced  and  divorced  and  divorced,"  or  the  form  of  expression  might  be 
one  in  which  the  sentence  is  repeated,  without  or  with  conjuction,  e.g., 
"Thou  art  divorced,  thou  art  divorced,  thou  art  divorced,"  or  "Thou 
art  divorced  and  thou  art  divorced  and  thou  art  divorced : "  the  conjunction 
used  might  be  "and"  or  bul  or /at  or  eoomma,  which  also  are  words  of  con- 
junction having  the  same  sense  as  and  ynth  a  shade  of  difference  in  each  : 
in  these  cases  if  the  woman  is  one  with  whom  there  has  not  been  sexual 
intercourse,  then  the  first  mentioned  divorce  shall  be  caused,  and  she  shall 
become  bain  by  that  divorce,  and  there  shall  be  no  Iddut  on  her;  and  there 
being  no  IddtU  on  her,  and  the  relationship  of  husband  and  wife  having 
been  cat  off  by  one  divorce,  the  other  divorces  shall  not  be  caused ;  but  if 


36  tHB  TAOOBI  LAW  L10TUB18,  1891-92!. 

the  woman  is  one  with  whom  the  husband  has  had  intercoarse,  then  all  tlie 
thj^ee  divorces  shall  take  effect ;  and  if  the  hosband  says,  "  I  intended  to 
use  the  repetitions  in  the  sense  of  taheed"  he  shall  not  be  confirmed  by 
the  Kaaee^  bat  he  may  be  confirmed  dyanu^wn,  or  morally^  and  in  con- 
scieueoj  because  preference  is  given  to  tasees). 

1894.  (994.)  And  if  a  man  says  to  his  wif q  (in  Persian), ''  Divorce  on 
thee/'  or  says,  "I  have  given  divorce  to  thee,"  intending  thereby  three  divor- 
ces, his  intention  is  admissible.  (See  note  to  paragraph  921.  Tulak  is  tbe 
imLsdv/r  or  the  infinitive  mood :  it  is  singular  in  number,  and  it  may  mean  a 
real' unit,  «.e.,  number  one,  or  it  may  mean  a  metaphorical  unit,  which,  in  cases 
of  divorce,  consists  of  three  in  number,  because  three  is  the  largest 
number  of  divorces  which  it  is  in  the  power  of  the  husband  to  cause  on  the 
wife.  Therefore  when  a  man  says,  "  Divorce  on  thee,"  then  primd  facie 
one  divorce  would  be  caused ;  but  if  there  is  an  intention  to  cause  three 
divorces,  then  that  intention  is  admissible;  because  the  word  divorce 
might  have  been  used  by  him  in  the  sense  of  a  metaphorical  unit.  It 
follows  from  this  that  the  intention  to  cause  two  divorces  is  inadmissible ; 
because  number  two  is  neither  a  real  unit  nor  a  metaphorical  unit.  But  if 
the  wife  is  a  slave  girl  belonging  to  another  person,  then,  inasmncli  as 
slave  wives  get  completely  separated  by  only  two  divorces,  the  intention 
to  cause  two  divorces  is,  in  her  case,  admiteible,  because  the  number  two 
would  then  be  a  metaphorical  unit). 

1895.  (9816.)  A  man  says  to  his  wife,  "  Tivorce  on  thee  "  (mis-spelling 
and  mis-pronouncing  the  word,  and  using  a  mistaken  letter  of  a  similar  sound 
calling  it  iS^  instead  of  J^i^ ),  then  this  incorrect  use  of  the  word  divorce 
({.d.,  this  mils-spelling  and  mis-pronouncing)  might  arise  in  five  (different) 
ways ;  one  of  which  has  just  been  stated  (i.e.,  where  he  mis-pronounces  the 
first  letter  and  pronounces  Toai,  i>,  like  Tai  «#) ;  and  secondly,  when  he  (mis- 
pronounces the  last  letter  using  Ghyn  ^  instead  of  Qaf  (3  and)  says  "Divor|^ 
on  the^ ; ''  and  thirdly,  when  he  (mis-pronounces  the  first  letter  which  is 
Tou  J9  and  pronounces  it  as  Tai  <a»  and  also  mis-pronounces  the  last  letter 
which  is  Qai  ^3  and  pronounces  it  as  Kaf  ^  and)  says  "  Tivork  on  thee ;  ^' 
and  fourthly,  when  he  (mis-pronounces  the  last  letter  which  is  Qaf  J  and 
pronounces  it  as  Kaf  ^  and)  says  "  Divork  on  thee ;  '^  and  fifthly^  when 
he  (mis^pronounces  the  first  letter  which  is  Toai  i>  and  pronounces  it  as  Tai 
«»  and  also  mis-pronounces  the  last  letter  which  is  Qaf  J  and  pronounces  it 
as  Ghyn|^  and)  says  ^'Titrorn^  on  thee.''  It  is  reported  from  SlK»khK>ol 
Imam  Aboo  Baker  Mahomed,  son  of  Fu^ul,  on  whom  be  peace^  that  »  dis- 


ON  nnniDiATB  dtvobos.  ^7 

tinction  shall  be  made  between  a  man  of  letters  and  one  who  is  ignorant  (or 
illitorate),  and  that  if  the  man  is  a  man  of  letters,  then  divorce  shall  not  take 
effect;  (becaoBe  he  wonld  be  supposed  to  have  purposely  used  the  wrong 
word  with  a  motive);  but  if  he  is  an  ignorant  man,  divorce  shall  take  efFect: 
bnt  he  afterwards  resiled  from  this  view,  saying  that  divorce  shall  take  effect 
inaU  these  (five)  cases  without  any  distinction  whether  the  man  be  a 
man  of  letters  or  an  ignorant  man ;  because  people  generally  regard  all  these 
(five)  words  as  words  of  divorce,  and  do  not  make  a  distinction  between 
them;  and  that  there  are  some  people  who  cannot  elegantly  pronounce 
words  (althoagh  they  might  be  men  of  letters)  and  who  sometimes  intend  to 
divorce  (by  correctly  pronouncing  the  same),  but  from  their  lips  all  this  (mis- 
pronunciation) comes  forth  in  a  state  of  anger  and  in  quarrel :  then  people 
asked  him  what  if  the  man  is  an  Arab  ;  and  he  said,  although  he  might 
be  an  Arab,  still  the  same  rule  will  hold  good ;  because  there  are  some 
amongst  the  Arabs  who  use  ^J  (small  Kaf )  in  the  place  of  J  (big  Qaf) :  and 
(he  went  on  to  say)  if  the  man  says,  '^  I  intentionally  did  so,  (that  is,  I  in< 
tentionally  mis-pronounced  the  word)  in  order  that  divorce  might  not  be 
cansed,''  the  man  shall  not  be  confirmed  by  the  Kazee,  but  he  shall  be 
confirmed  as  between  him  and  his  God ;  except  when,  before  pronouncing 
the  word,  he  cites  witnesses,  saying  to  them,  ''  Verily,  my  wife  demands 
divorce  from  me,  whereas  I  do  not  intend  to  divorce  her,  and  (therefore) 
I  shall  pronounce  the  word  in  this  way  (that  is  wrongly),  in  order  to  put  an 
end  to  the  quarrel,''  and  he  then  pronounces  the  word  in  this  way  (f  .e., 
pronounces  it  wrongly)  and  the  witnesses  hear  the  mis-pronunciation;  so 
that  if  the  witnesses  testify  to  all  this  before  the  Eazee,  the  Kazee  shall 
not  decree  divorce. 

And  from  the  same  Sheikh-ool  Imam  it  is  (also)  reported  that  he  said 
people  asked  my  Patwa  regarding  a  Turk  (a  man  of  Turkey),  who  said  to 
his  wife,  "  Tivorce  upon  thee  (using  a»  tai  instead  of  J9  toai),  whilst  in  the 
Turkish  language,  tuhk  with  o  (tai)  instead  of  ^  (toai)  means  spleen,  the 
hnsband  saying,  ^'  I  meant  spleen  by  the  word,  and  I  did  not  mean  divorce 
by  it,''  then  I  said,  divorce  shall  take  effect,  and  the  man  shall  not  be  con- 
firmed in  his  explanation  by  the  Kazee,  because  this  mis-pronunciation  is 
soch  that  the  same  does  come  out  of  people's  tongue,  especially  in  a  state 
of  anger  and  in  qusurrel,  and  that  from  what  is  obvious  (and  clear),  divorce 
shaU  take  effect  and  the  man  shall  not  be  confirmed  by  the  Kazee.  (See 
Bndd-ool  Moohtar^  Vol.  11^  page  706^  where  the  same  matter  is  discussed). 

1896.    {^9&.)    A  man  divorces  bis  wife  or  emancipates  bis  slave,  or 


38  THE  TAGOBB  LAW  LICTURBS,  1891-92. 

gives  him  tlie  status  of  a  Moodubhiir  and  uses  the  Arabic  language,  bat 
the  man  does  not  know  Arabic ;  then  if  he  knows  that  the  expressions  nsed 
constitute  the  causing  of  the  divorce  or  emancipation^  but  does  not  know 
the  meaning  of  the  words,  then  divorce  or  emancipation  shall  take  effect : 
and  the  status  of  a  Moodubhur  shall  be  validly  conferred,  although  he  might 
not  know  the  meaning  of  the  words. 

But  if  he  does  not  know  that  these  words  are  words  of  divorce  or 
emancipation,  and  he  has  been  tutored  to  say,  ^'  I  have  divorced  my  wif e,^^ 
or  "  My  wife  is  divorced,''  and  he  accordingly  says  so,  then  the  same  rule 
holds  good,  via.f  that  the  divorce  or  emancipation  shall  take  effect. 

And  if  a  man  sells  using  the  Arabic  language,  and  he  does  not  realize 
the  meaning  of  the  words  (that  is,  does  not  know  the  meaning  of  the 
words,  and  does  not  know  their  import,  whether  they  are  used  for  sale  or 
for  any  other  object),  the  sale  and  purchase  are  not  valid. 

And  if  a  woman  is  tutored  to  say,  '^  I  have  released  my  husband  from 
the  dower,''  and  she  says  so  accordingly,  the  husband  shall  not  be  relieved 
of  the  dower  :  and  similar  cases  are  presently,  (see  paragraph  1748  post), 
to  be  dealt  with  (and  to  be  discussed)  in  the  section  on  Khoola,  if  God  so 
wills  it. 

[Note. — See  Rudd-ool  Moohtar,  Vol.  II,  page  698,  where  the  case  of 
the  husband  and  of  the  seller  are  stated  as  here,  without  any  reason  being 
assigned  for  the  rule.  So  also  in  Futawai  Alumgiree,  Vol.  I,  page  498.  The 
reason  seems  to  be  this :  in  the  case  of  sale,  there  is  a  consideration  and  so 
also  in  the  case  of  release  from  dower,  and  the  party  must  understand 
precisely  what  he  is  about,  and  what  is  the  effect  of  his  act  when  it  affects 
property:  but  in  the  Arabic  language  the  formula  for  divorce  is  the 
commonest  form  of  speech  j  and  being  designed  by  the  Shera  to  have  a 
particular  effect,  ignorance  of  law  is  no  excuse,  especially  when  the  result 
is  not  so  disastrous  as  in  the  case  of  property :  if  the  husband  has  no 
intention  to  divorce,  the  easiest  thing  for  him  to  do  is  to  marry  again. 
Compare  paragraph  41]. 

1897.  (997.)  And  if  a  man  says  to  his  wife,  "  Thou  art  divorced  if 
God  wills  {In-shaa  AHah-o-tala)"  and  he  does  not  know  the  meaning  of  the 
words  ^^  If  God  wflls"  (even  then,  *.e.,  even  if  he  does  not  know  the  mean- 
ing of  the  words  "  If  God  wills,")  the  divorce  shall  not  take  effect  (as  it 
will  not  take  effect  if  he  knows  the  meaning  of  those  words),  because 
divorce  with  these  exceptional  words  used,  viz.,  "If  God  wills"  is  void; 
and  the  knowledge  of  the  man  or  his  ignorance  in  regard  to  the  same  (that 


OK  IMinSDUTE   mVOBOE.  89 

18,  in  regard  to  the  meaning  of  those  words)^  is  eqnal :  and  this  case  is  oom- 
pared  to  the  silence  of  a  virgin^  when  her  silence  is  rendered  (and  construed 
into)  consent  according  to  the  Shera^  and  no  distinction  shall  be  observed 
regarding  her  knowledge  or  ignorance  (whether  silence  is  or  is  not  consent ; 
as  for  instance,  a  virgin  is  of  age,  and  her  father  or  grand*father  asks  her 
permission  to  give  her  in  marriage,  and  she  keeps  quiet,  not  knowing  that 
her  silence  is  consent;  then  her  silence  shall  be  taken  to  amount  to  a  consent 
on  her  part,  and  she  shall  have  no  authority  to  question  the  validity  of  the 
marriage  :  if  the  guardian  is  other  than  the  father,  then  she  must  consent 
in  express  words :  or  if  there  is  a  minor  girl  and  she  is  given  in  marriage  by 
a  guardian  other  than  the  father  or  the  grand-father,  and  she  knows  of  the 
marriage,  but  does  not  know  whether  she  has  theop  tion  of  puberty,  and  on 
attaining  her  puberty,  she  keeps  quiet,  the  marriage  shall  be  valid  :  if  the 
father  or  grand-father  has  given  her  in  marriage,  then  she  is  not  entitled  to 
annol  the  marriage  on  attaining  her  puberty.  See  paragraphs  254,  255 
and  257). 

And  this  rule  is  clear  when  the  man  (although  he  does  not  know  the 
exact  meaning  of  the  expression  '^  If  Grod  wills,  *^  still)  knows  that  the 
expression  ''  If  God  wills,''  if  used  immediately  after  the  expression  of 
divorce,  renders  the  divorce  void  (that  is  to  say,  if  with  such  knowledge 
he  uses  those  words,  then  it  is  clear  that  there  will  be  no  divorce) ;  but 
if  he  does  not  know  this  (that  the  use  of  the  expression  avoids  the  divorce) 
then  (even)  the  result  is  the  same. 

But  if  the  man  knows  this  (that  the  expression  "  If  God  wills,"  when 
nsed  after  the  expression  of  divorce  avoids  the  divorce)  and  intends  to 
cause  divorce,  (without  intending  to  give  expression  to  the  words  ^^  If  God 
wills, '')  but  the  words  "  If  God  wills  *'  came  from  his  tongue  (or  lips), 
unintentionally,  even  then  divorce  shall  not  be  caused.  And  it  is  reported 
from  Shuddad,  son  of  Hukeem,  that  he  said  that  he  difiFered  from  Khuluf, 
son  of  Ayoob,  in  regard  to  the  rule  in  this  case,  he  (Shuddad)  saying  that 
effect  will  be  given  to  the  words  "If  God  wills,"  (although  uttered 
by  a  slip  of  the  tongue)  and  the  divorce  ought  to  become  void,  whereas 
Khnluf ,  on  whom  be  peace,  said  that  the  words,  "  If  God  wills "  were 
void  (as  having  been  used  unintentionally  by  a  slip  of  the  tongue)  and 
the  divorce  was  effective ;  that  Khuluf,  on  whom  be  peace,  said  he  saw 
Aboo  Yusoof,  on  whom  be  peace,  in  a  dream,  and  that  he  (Khuluf)  said  (in 
his  dream)  to  Aboo  Yusoof,  that  there  was  a  difference  between  him  and 
Shuddad  in  the  case,  and  that  Aboo  Yusoof,  on  whom  be  peace,  said  to  him 


40  THE  TAOOBE   I«AW  LBCTUBBS^   1891-92. 

(E[hTiluf), ''  Pat  your  question,"  whereupon  he  (Bluluf),  put  the  question, 
and  then  Aboo  Yusoof  said,  "  The  words  '  if  God  wills '  will  be  operative ;  " 
that  he  Khuluf  then  asked  "  Why  ? ''  and  Aboo  Yusoof  said, ''  Dost  thou 
(not)  see  if  a  man  says  to  his  wife, '  Thou  art  divorced,'  but  the  words  ^  op 
not  divorced  *  came  out  from  his  tongue,  will  the  divorce  take  eSeot  ?  " 
he  (Khuluf)  said  ^'No;"  and  Aboo  Yusoof  then  said,  "This  is  also 
the  result  in  this  case.'' 

[Note. — See  Hedaya,  Vol.  II,  page  233,  where  the  matter  is  set  out 
as  follows : — ''And  if  a  man  says  to  his  wife,  'Thou  art  divorced  if  God 
wills,'  using  the  conditional  clause  (that  is,  the  words  '  If  God  wills ') 
in  immediate  sequence  to  (i.6.,  immediately  after)  the  divorce  clause  (i.e., 
'  Thou  art  divorced '  or,  in  other  word,  giving  utterance  to  the  whole  of 
the  expression  so  as  to  make  the  conditional  clause  follow  the  divorce  clause 
in  an  immediate  and  unbroken  sentence  and  without  a  stop,  so  as  to  make 
the  whole  of  the  sentence  operative  as  one  and  entire  whole,  and  not  with 
a  stop  after  the  divorce  clause,  the  result  of  which  stop  would  be  that  the 
divorce  clause  would  become  operative  and  the  conditional  clause  would 
then  become  ineffectual)  then  the  divorce  shall  not  take  effect ;  because 
the  Prophet,  on  whom  be  the  mercy  and  praise  of  (Jod,  has  said,  'Whoever 
swears  a  divorce  or  manumission  (that  is,  makes  it  dependent  on  a  condition) 
and  says, — 'If  God  wills'  (using  the  expression  if  'G^d  wills'  as  ex- 
pressive of  condition)  using  the  latter  expression  in  immediate  sequence 
to  the  former  sentence,  then  he  shall  not  be  forsworn.*  Another  reason  is, 
that  the  man  used  the  expression  '  If  it  please  God  *  in  the  form  of  a  condition 
and,  therefore,  in  this  sense  {i.e.,  on  account  of  the  form  used)  that  expres- 
sion (i.e.,  '  If  God  wills ')  becomes  a  condition  on  which  the  divorce  clause 
depends  :  the  divorce,  therefore,  is  one  which  is  negatived  (by  the  man  him- 
self) before  the  realisation  of  the  condition  ,*  but  here  the  condition  is  one 
which  it  is  impossible  for  human  being  to  know  (that  is  to  say,  no 
man  can  say  whether  God  has  willed  the  divorce  or  not) ;  and,  there- 
fore, making  the  divorce  conditional  upon  the  will  of  (Jod  is  (in  reality) 
to  negative  the  divorce.  But  (in  order  that  the  divorce  might  be 
negatived  or  nullified)  it  is  necessary  that  the  condition  should  follow 
the  preceding  sentence  in  immediate  sequence,  like  all  other  condi- 
tions, because  if  the  man  (after  having  given  utterance  to  the  first  part 
of  the  sentence)  stops,  then  the  preceding  sentence  becomes  operative. " 
See  also  Budd-ool  Moohtar,  Vol.  II,  pages  841  and  842,  where  the  following 
instances  of  the  use  of  Ifi-shcM  AllahrO-tala  are  explained.     If  a  man  says, 


ON.  IMMBDIATB   DIYOBCE*  41 

'Thou  art  divorced  if  (Jod  wills/*  then  divorce  will  not  be  caused 
without  any  difference  of  opinion4^  So  also  if  he  uses  other  expressions 
of  Istisna  or  exceptioji.  These  expressions^  it  may  be  remarked^  are  called 
expressions  of  exception^  because  the  operation  of  ''Thou  art  divorced" 
is,  that  divorce  should  be  caused ;  but  the  expression  "  If  God  wills  " 
negatives  that  operation,  and  excepts  it,  so  as  to  confine  it  only  in  case  God 

wills  the  divorce.  Other  expriassions  of  exception  are  c;*  5i  or  but  that,  e.g., 
"  Thou  art  divorced  but  that  God  wills  ^»>Llj  ^  Si  JJU»  »£^» :  so  also  (J  i^\ 
or  if  not:   and  'ij  or  when :  and  ^  or  whenever :   and  l>t&j^U  or  until  not* 

Also  Jfy  or.  if  not  J  as  for  instance,  when  a  man  says,  "Thou  art  divorced  if 
thoahadst  no  father  %SyA  jly ; "  here  there  will  be  no  divorce  because  she,  no 
doubt,  had  or  has  a  father :  or  "  If  thou  hadst  no  beauty  i-Ci-^.  %^  "  or  "  If 

I  had  not  loved  thee  ^s^\  C5*t  Jl>i."  The  Door-ool  Mookhtar  says,  that  the  ex- 

pression  ^\  %J^  or  God  he  praised,  is  an  expression  of  exception  as  Ibn-i* 

Hummam  holds  in  his  Futawa.  But  the  author  of  t^e  Budd-ool  ](f  oohtar  says, 
the  only  work  of  Ibn-i-Hummam,  with  which  he  had  come  across  is .  the 
Fath-ool  Kndeer,  which  leads  to  a  contrary  inference,  and  that  he  never  came 
across  the  Fatawa  ascribed  to  Ibn-i-Hummai^.  The  Futh-ool  Kudeer  says,  if 

aman  is  made  to  swear  thus  *Uf>LA  ^^i  *jjjy*u.i  A>X»  Jirf  il  dU|  j  or  "By  God, 

I  wittnot  speak  to  such  and  such  a  person,  may  God  pardon  my  sins,  if  God 
^8;  *^  here  "  If  God  wills  '*  is  not  an  exceptional  clause,  and  the  oath  is 
binding- on  hiui;  because  the  words  "  May  God  pardon  my  sins  "  intervene 
between  the*  first  expreission  and  the  alleged  exceptional  clause.  And  the 
clause  "*'€rod  be  praised'*  standis  on  the  same  footing  as  ^'May  God 
pardomne:for  my  sins;**  tadif  the' latter  expression  had' been" an  l«f&na, 
then  the  result  contended  for  by  the  Futh-ool  Kudeer  in  the  instance  above 
given  woold  not  have  followed ;  because  then  there  would  have  been  an 
hixgM,,wi.y  "  May  God  pardon  me  for  my  sins"  immediately  following - 
the  first-  expression,  and  the  oath  involved  in  that  expression  would 
not, in. that  case,  have  been  binding.  Therefore  the  expression  "God 
be  praised,*'  i?*  not  an  latisna.  The  Budd-ool  Moohtar  then  shews 
further  that,  if  a  man  is  made  to  swear  to  a  thing,  he  might  get  out  of 
his  oath,  by  whispering  to  himself  in  a  low  voice  immediately  d-fterthe 
oath,  the  expression  "  If  God  wills ;  *'  and  the  way  to*  avoid  that  is  to  make 
the  man  to  take  the  oatb  and  to  go  en  to  say  immediately  after  the  oath,  the 
9 


42  THK  TAOORB  LAW  LICTUBBS^  1891-92. 

expression  '^  Grod  be  praised/'  in  a  loud  iroice ;  so  tt^Ebt  after  tbia  eveu  if  be 
were  to  say  to  himself  '^  If  God  wills/'  tbe  exception  coold  nob  save  him 
from  the  consequences  of  a  false  oath.  If  the  man  joins  something  else 
with  God  and  saysj  '^  Thou  art  divorcedj  if  God  wills  and  if  Zjd  wills," 
''or  if  God  wills  and  if  Zyd  comes  or  heats/'  even  then  no  divorce 
shall  take  place ;  because  there  are  two  conditions^  and  one  of  them  is 
impossible.  If  a  man  saySj  ^'Thou  art  divorced  three  times  and  three 
times  if  God  wills/'  then  the  woman  shall  be  thrice  divorced^  as  the  result 
of  the  expression  ''  Thou  art  divorced  three  times/'  and  the  Istisna  will 
apply  to  the  expression  '^and  three  times."  If  he  brings  the  Istisna 
antecedently  and  says^ ''  If  God  wills^  thou  art  divorced^"  then^  acoording  to 
Aboo  Haneef  a  and  Mahomedji  divorce  shall  be  causedj^  because  they  hold  that 
here  there  aire  two  independent  sentences  one  having  no  connection  with  the 
other :  but  Aboo  Yusoof  says^  that  the  second  expression  is  conditional  on 
the  firstj  and  therefore  no  divorce  shall  take  place.  Some  bold  that  the 
views  taken  by  the  three  Imams  are  just  the  reverse  of  what  baa  been 
stated  above.  However,  preference  is  given  to  the  view  that  divorce  does 
not  take  place  in  the  case  above  stated.  But  if  the  man  says>  ^  If  God 
wiUs  then  thou  art  divorced,"  divorce  shall  not  take  place,  without  any 
difference,  because  the  use  of  the  word  then  shews  that  the  whole  of  the 
expression  is  a  conditional  one]  • 

1806.  (998.^  And  Hisham  reports  from  Mahomed,  on  whoaot  be  peace^ 
that  where  a  man  intends  to  say,  '^  For  God^  I  have  rendered  obligatory  on 
me  the  fast  of  one  day  "  (a  form  of  oath),  but  what  comes  out  of  Us  tongae 
(or  lips)  is  ''  The  fast  of  one  month ;  ^'  then  Mahomed,  on  whom  be  peace, 
holds  that  it  is  obligatory  on  him  to  keep  the  fast  for  one  month.  (H  a  man 
expressly  uses  certain  words,  those  words  will  have  effect  given  to  them 
quite  apart  from  his  intention,  except  in  the  case  of  the  ijosanfi  and  the 
like). 

1889L  (999.)  And  if  a  man  intends  to  say  one  thing,  but  by  a  slip  of 
the  tongue  he  usea  expressions  of  vow  (or  Nuzar,  which  ia  nsuaUy  in  the 
form  given  in  the  last  paragraph)  or  divorce,  or  emancipation;  then  the 
lawyer  Aboo  Jaffer,  on  whom  be  peace,  says,  that  in  the  case  of  a  vow, 
the  subject-matter  of  the  vow  becomes  obligatory  on  him,  without  any 
difference  of  opinion  i  and  in  case  of  divorce  or  emaa^ation^  according 
to  the  view  taken  by  Mah<mied,  on  whom  be  peaee,  the  divorce  or  eman- 
cipation shall  be  caused;  but  Aboo  Yusoof,  on  whom  be  peace,  says,,  that 
divorce  shall  not  be  canaed  as  between  the  man  and  hia  Gtoi  (aHbougk  the 


oifr  liiHibtAtfi  Dttobcis.  4S 

ITuM  mtub  deeree  tlie  div6)H)d),  but  etti^dpcttion  shaU  taJc:o  effect  ^^ 
as  betntaen  him  tuad  hid  QKod  and  aIbo  as  f^r^M  the  Kazee  in  eoneeftted),  nftid 
what  16  reported  from  Aboo  Haneefa^  on  whom  be  ped^e^  is  the  reretse  of 
tfais^  and  that  divoroe  shall  be  cMusedj  bttt  emancipation  shall  not :  but 
from  the  sayings  of  Aboo  Baneef a^  on  whom  be  peaoe^  what  is  obviotis  is 
that  the  dirorce  and  emancipation  shall  (both)  tbk^  effect^  in  accordance 
with  the  view  of  -  Mahomedi  on  whom  be  peace. 

Bat  if  by  a  slip  of  the  tongtee  words  inroltiAg  Ko((fr  {ot  infidelism) 
eoode  to  be  prononncedt  then  the  mati  shall  Hot  become  a  Kafir,  without  waxy 
difference  of  opinion* 

1900.  (1000.)  A  man  sayS  to  his  wife,  '^Thoti  art  divofced  in  two 
colors,  '^  she  shall  be  divorced  twice :  and  if  he  says^  ''  Thou  ait  diVoifCed 
in  three  colors,  ^  she  shall  be  divorded  thrice. 

[Kon.-*Bee  Budd-ocd  Moohtar,  Vol.  IX,  page  743 :  by  the  mere  use  of 
the  words  ''two  odors'^  withont  any  ixltention,  two  revokable  divorces  shall 
be  caused:  and  if  the  man  uses  'Hhree  colors,'^  then  three  dhrorcea  shall  be 
caused ;  and  if  he  nses  the  Arabic  plural  and  says,.  '^  colors, ''  then  also 
three  divorces  shall  be  caused.  But  if  he  says, ''  I  intended^  by  the  use  of 
the  words  '  two  colors/  two  different  colors,  such  as  red  and  green,  in  or 
with  reference  to  one  and  the  same  divorce,*^  then  so  far  as  the  Kazee  is 
concerned,  this  statement'  of  intention  shall  go  for  nothing,  and  two  divorces 
ihall  Btm  be  caused,  and  the  man's  declaration  that  he  meant  to  cause  one 
dirorce  of  two  colors  shall  net  be  paid  heed  to]. 

190L  (1001.)  If  a  man  says  to  his  wife;  '*  Thou  art  divorced,  thou,'* 
or  sajTB,  **  Thou  art  divorced  and  thou :  "  Aboo  Tusoof ,  on  whom  be  peace, 
8aj8,  one  divorce  shall  take  effect,  but  Mahomed,  on  whom  be  peace,  says, 
two  divorces  shall  take  effect. 

And  if  he  says  so  to  two  women,  adressing  them  ^'  Thou  art  divorced 
(pointing  to  or  looking  at  one  of  them).  Thou ''  (looking  at  or)  pointing  to 
the  other  woman;  or  saying  ''  2%6n  thou;  **  or  saying  *^and  thou :  *'  the 
dirorce  shall  be  caused  on  them  (both). 

19Q2.  (IOO24)  A  woman  says  to  her  husband  ^  Divorce  me,'*  but  the 
hoabaud  refuses  to.  do  so ;  the  woman  then  says,  "  Didst  thou  give  f  ^*  and  the 
man  then  says  "  I  gave : "  if  the  expression  '^  I  gave  '*  was  accompanied 
with  the  slightest  hesitation  (jUulheeljr  the  divorce  shall  not  be  caused* 

190L  (1008.)  A  nan  says  to  hid  wife,  ''  Go  thou,  a  thousand  times,'^ 
mtending  divorce :  she  shall  be  divorced  thrice.    (See  paragraph  987). 


44  THE  TAOOBB  LAW  LBCTUBES^- 1891 -d2. 

1904^  (1004;)  And  if  a  man  says  ta  his  wife,"  with  whom  he  has  had 
sexual  intercourse,  '^Thou  art  divorced,"  "Thou  art  divorced;**  two 
divorces  shall  take  effect. 

And  if  he  intends  repetition  (of  one  and  the  same  divorce),  h&^shall 
be  confirmed  morally  (dyarmftm)  and  not  by  the  Kazee.  ^ 

And  if  he  says  so  to  his  wife,  with  whom  he  has  not  had  sexual  inter- 
course, one  divorce  shall  be  caused.     (See  paragraph  993). 

1905.'  (1005.)  And  if  a  man  says  to  his  wife,  with  whom  he  has  not  had 
sexual  intercourse,  "  Thou  art  divorced  once,  not  (one)  but  two ;  '*  she  shall 
be  divorced  once  (because  the  first  divorce  was  cauBed  as  soon  as  it  was 
pronounced  and  therefore  it  could  not  be  negatived  by  the  rest  of  the 
expression). 

1906.  (1006.)  A  man  says  to  his  wife  (in  Persian),  "To  thee 
divorce,^*  or  says  "  Divorce  to  thee: "  she  shaJl  become  divorced,  and  there 
is  no  difference  in  using  the  word  '*  Divorce'*  first  or  last  in  the  ex- 
pression.   (See  paragraph  994). 

1907.  (1007.)  And  if  a  man  says  to  his  wife  in  Persian,  "I  have 
given  thee  one  divorce  **  and  keeps  quiet ;  aiid  then  says,  "  Tvo  divorces 
and  three  divorces  :*'  she  shaJl  become  thrice  divorced,  if  he  so  expresses 
himself  after  be  has  had  intercourse  with  his  wife. 

1908.  (1008.)  And  if  the  husband  says,  ''To  thee  one  divorce*'  and 
keeps  quiet,  and  then  after  .some  little  time  says,  ''  and  two  divorces:*'  the 
wife  shall  be  divorced  thrice:  and  if  he  says,  "Twa  divorces  **  without  the 
conjuuQtion,  then,  if  he  intended  the  conjunction,  she  shaJl  be  divorced  thrice^* 
but  if  he  had  no  such  intention,  then  one  divorce  only  shall  be  caused. 
(If  a  man  says  without  interruption,  "  To  thee  one  divorce  and  two  divx)rces,'* 
then  three  divorces  shall  be  caused;  so  also  if  he  omits  the  word  and  because 
the  use  of  the  word  "  Two  divorces"  immediately  and  without  ii^terruption 
after  the  first  sentence  shews  that  the  person  referred  to  in  regard  to  ''two 
divorces"  is  the  "  thee"  mentioned  in  the  first  sentence.  If  there  isinterrup- 
tion,  then  in  the  case  without  the  "and,^*  the  man's  intention  must  govern  the 
result.  See  Budd-ool  Moohtar,  Yol.  II,  page  705,  where  it  is  stated  that  it  is 
necessary  that  the  divorce  should  be  referred  to  the  wife ;  thus,  for  instance, 
if  the  husband  says,  "If  thou  shalt  go  out,  then  divorce  will  be  caused**  and 
does  not  go  on  to  say  "on  thee,**  then  no  divorce  shall  be  caused,  if  the  wife 
goes  out.  So  also  divorce  shall  not  be  caused  if  the  husband  says,  "Do  not 
go  out  except  by  my  order,  for  I  have  taken  an  oath,*'  and  the  wife  goes  ont« 


OK  DOa^tliLTE  i>iyOBCB^  45 

See  also  page  714  of  tlie  same  work,  where  it  is  laid  down  that  reference  to 
the  wife  may  be  by  referring  firstly  to  the  whole  of  her  person,  or  secondly 
to  a  certain  definite  portionjof  her  person  such  that  that  portion  means  the 
whole  of  her  person,  as  the  head>  o^  neck,  ox  sonl>  or  body,  or  thirdly  to  an 
uncertain. and  indefinite  pQrtion. of  hei:  person  as  one-fonrth  or  any  other 
{raction.    See  paragraph  973). 

1909.  (1009.)  .  A  man  says  to  his  wife,  ''To  thee  three:"  it  is  said 
in  the  Nuwazil,  that  the  woman  shall  not  become  divorced  j  bi;t  Sudr-i- 
Shnheed,  on  whom  be  peace,  says  that,  according  to  him,  she  shall  become 
divorced. 

1910.  (1010.)  A  man  says  to  his  wife, ''  Then  art  one,''  intending 
thereby  divorce,  one  divorce  shall  take  effect,  whether  he  has  prononnced 
the  last  letter  with  the  vowel  point  or  not.  (See  paragraphs  1046, 1067 
mi  1128  post). 

1911.  (1011.)  And  if  a  man  says  to  his  wife,  ''Thou  art  with  three,'' 
the  topic  of  disconrse  being  divorce,  or  he  being  in  a  state  of  anger,  she 
shall  become  thrice  divorced. 

1912.  (1012.)  And  if  a  man  says  to  his  wife  in  a  state  of  anger  or  in 
qoarrel,  "Oh  thou  of  a  thousand  divorces  go  away:"  she  shall  be  thrice 
divorced.    So  also  if  he  says,  "  Oh  thou,  a  thrice  divorced  (woman)." 

And  if  he  says,  "Oh  thou,  a  divorced  (woman),"  one  divorce  shall 
take  effect.     (See  paragraph  986). 

1913.  (1013.)  And  if  there  arises  a  quarrel  between  the  wife  and  her 
husband,  and  the  wife  gets  up  to  go  out,  and  the  husband  says,  "  Take 
three  divorces  along  with  thyself : "  Sheikh-ool  Imam  Aboo  Baker  Maho- 
med, son  of  Fuzul,  on  whom  be  peace,  says,  that  if  the  husbaud  intends  to 
cause  divorce,  (by  the  expression  used  by  him)  then  divorces  shall  be 
caused;  and  if  he  has  no  intention  whatever,  then  also,  the  same  (that  is, 
divorces  shall  be  caused)  because  the  expression  evidently  means  an  ex- 
pression by  which  divorce  is  caused. 

1914.  (1014.)  A  woman  says  to  her  husband  (in  Persian),  "  Do  not 
keep  me  "  and  the  husband  says,  "  Consider  thyself  as  not  kept "  and  in- 
tends thereby  divorce,  the  woman  shall  become  divorced.  (See  para- 
graph 866). 

1915.  (1015.)  And  if  the  woman  says  to  her  husband  (in  Persian), 
"  Give  me  three  divorces  "  and  the  man  says,  "  Consider  (or  take  it)  that  it 


46  tHIS  tAGOttB  tAW   tiBCTtmiB^   1891-92. 

has  been  so  said/'  then  the  said  Sheikh-ool  Imam  (referred  to  abaTe)i  lias 
said  that  divx>rce  shall  not  be  cansedj  although  he  might  haye  an  intention. 
(See  also  paragraph  965). 

1916.  (1016.)  And  if  a  man  says  to  his  wife  pn  Persian),  ''They  have 
given  thee  three  divorces:"  divorce  shall  not  be  caused;  because  the  has- 
band  (merely)  ma*kes  mention  of  the  divorce  as  having  been  caused  (Be&oa) 
and  does  not  himself  cause  {Wukoo)  the  divorce.    (Seie  paragraph  988). 

1917.  (1017.)  A  man  divorces  his  wife;  people  say  to  him  (in  Per- 
sian), ''  Why  dost  thou  not  become  reconciled ''  and  the  man  says,  "  It  is 
not  befitting  in  me  (to  do  so)  : ''  this  shall  not  amount  to  an  adndssion  of 
three  divorces,  (that  is  to  say,  the  expression  shall  not  be  taken  as  an 
admission  by  him  that  the  divorce  pronounced  by  him  was  irreversiUe). 

1918.  (1018.)  A  man  divorces  his  wife  twice ;  he  then  marries  her 
(again)  and  makes  over  her  dower  (relating  to  the  second  marriage)  to  her^ 
and  turns  her  out  of  his  house;  then  somebody  says  to  him. ''  Why  dost  thoa 
not  bring  her  back  to  thy  house  she  being  still  thy  wife,  and  thou  still  hav- 
ing one  divorce  in  thy  power;"  the  husband  says  (in  Persian),  "Two  divorces 
have  already  happened  and  this  becomes  another  divorce"  (that  is  '^  and 
here  is  another  divorce : ")  the  said  Sheikh-ool  Imam  Aboo  Baker,  son 
of  Fuzul,  on  whom  be  peace,  says,  that  if  he  intends  thereby  (t.a.,  by  the 
words  "  and  this  becomes  another  divorce "}  the  causing  of  divorcoj 
divorce  shall  be  caused ;  and  if  he  intends  thereby  (Ikhbar  or)  information 
(merely  of  the  two  divorces  already  pronounced  treating  the  latter  portion 
as  surplusage)  then  she  is  (still)  his  wife  as  between  him  and  his  God,  but 
as  far  as  the  Kazee  is  concerned,  another  divorce  shall  (thereby)  be  caused* 

1919.  (1019.)  A  man  says  to  his  wife,  "Thou  art  divorced  more  than 
one  and  less  than  two : "  the  said  Sheikh-ool  Imam,  on  whom  be  peace,  says^ 
that  analogy  (Kyas)  suggests  that  two  divorces  shall  be  caused,  but  it  is 
mentioned  in  the  work  entitled  "On  differences  amongst  the  learned 
lawyers  "  that  three  divorces  shall  be  caused  (two  divorces  by  the  first  ex- 
pression which  is  immediately  operative  and  one  divorce  in  addition  to  that 
shall  be  caused  by  the  second  expression,  the  conjunction  and  having  been 
used.    Sed  parikgraph  922). 

1920.  (1020.)  A  man  says,  "  One  wife  of  mine  is  divorced,"  the  fact 
being  that  he  has  no  wife  except  one,  his  wife  shall  become  divorced. 

1921.  (1021.)  A  man  says  to  his  wife,  "  Thou  art  divorced,  thou  art 
divorced,  thou  art  divorced  "  and  Bays,  "  I  intended  divorce  by  the  first 


OH  nmiDiAn  divobcb.  47 

ex|ire68iDii,  aamd  by  ihe  seeond  and  third  ezpiesfiioiid  I  mea.lit  explanation 
for  ika  woman : ''  he  shall  be  oonfirmed  morally  {dyan/uiwi),  but  so  far  as 
the  Eaiee  ia  concerned,  the  woman  shall  be  thrice  divorced.  (See  para- 
graidis  919  and  998). 

19SIL  (1022.)  A  man  says  to  his  wife^  "Thou  art  divorced '*  and  says, 
"  B^  the  expression  I  meant  release  from  restraint  (wimh)  :^*  the  man  shall 
be  oonfirmed  morally  and  not  by  the  Kaeee ;  bnt  if  he  says  "  By  the  ex- 
pression I  did  not  mean  release  from  marriage  ^  (that  is  to  say^  he  explains 
bis  meaning  only  negatively  by  declaring  what  he  did  not  mean,  and  does 
Bct  dedare  positively  what  he  did  mean  at  all,  if  he  did  not  mean  divorce), 
be  shall  not  at  all  be  confirmed;  and  (even)  if  the  woman  confirms  him  in 
tbifl  matter,  no  attention  shall  be  paid  to  her  confirmation. 

And  if  the  husband  says,  '^Thon  art  divorced  from  such  and  such  act'' 
(tbst  is,  thou  art  released  from  doing  sueh  and  such  act,  using  the  word 
divoroe  for  release) :  she  shall  become  divorced  according  to  the  Kazee 
(beoause  ''  divoroe  '^  in  the  Shera  has  a  technical  meaning). 

19S9.  (1028.)  A  man  is  asked  by  anotber,  ''  Hast  thou  a  wife  other 
than  this  wife,"  and  he  answers  him  by  sayings  ^'  Bvery  wife  I  have,  is 
diToroed : "  it  is  said  in  the  Nuwasdl,  that  his  wife  shall  not  become  divorced 
(and  present  company  shall  be  meant  to  be  excepted,  because  the  sense 
is  that  he  used  thia  expression  to  please  his  wife,  and,  tberef ore^  she  shall 
be  excluded  from  its  operaticm). 

19M.  (1024.)  A  woman  says  to  her  husband,  "  Dost  thou  wish  that 
I  should  divorce  myself,"  and  the  husband  saysi^  "  Tes;"  tie  woman  then 
says, "  I  have  divorced  myself :  "  tibe  lawyer  Aboo  Jafier,  on  whom  be 
peace,  says,  that  the  man's  exj^ession  ''Yea"  might  imply  negation  {Ruddy 
tbat  is  (he  might  have  meant)  ''  Divorce  thyself,  if  thou  hast  power  to  do 
10 ; "  (that  is,  thou  being  a  woman  hast  no  power  of  divorce)  or  it  might 
imply  the  giving  of  authoritjr,  and  therefore  wbicbever  (of  the  two)  ha 
intended,  his  intention  is  correct. 

192B.  (1025.)  Saalaaif  a  man  saya  to  another,  ''Dost  thou  wisk 
that  I  abonld  divorce  thy  wife,"  and  the  other  man  says,  (in  Persian),  "  I  dc^ 
wish,"  or  says,  (^  Persian),  "  Yefl>  do  give : "  tUs  case  alao  admits  of  two^ 
aeuses  (as  stated  in  the  previous  paragraph). 

1M6.  (1026.)  A  man  saya  to  another  (in  Persian),  *' Dost  thou  wish 
that  I  should  p.ve  divorce  to  thj  wife,"  the  husband  says,  "I  wish,"  and  the 
Ban  laysj  ^  I  have  given  her  (that  is  to  say^  I  give  her)  tJiree  divorces*  '* 


48  m  TAOOBI  LAW   LKCTimi8^.1891«92. 

Some  of  the  Masliaikbs  liave  siud^. nothing  (or  no  diyorce)  shall  be  oansed 
according  to  the  view  of  Aboo  Haneefa,  on  whom  be  peace,  (because  the 
hnsbimd  either  defied  the  man,  and  gave  him  jio  authority,  or  if  he  gave 
him  authoritj,  that  anthorily  was  to  give  not  three  divorces  bat  one  divorce ; 
but  inasmnch  as  the  word  divorce  admits  in  a  metaphorical  sense  of  an  impli- 
cation of  three  divorces,  the  Yakeel  would  have  authority  to  give  three 
divorces  if  the  husband.had  an  intention  of  three  divorces,  by  using  the  word 
divorce);  and  this  case  has  been  considered  equivalent  to  where  a  man  says 
to  his  wife,  "  Divorce  thyself/*  and  the  woman  says,  "I  have  divorced 
myself  thrice,"  in  which  case  no  divorce  shall  be  caused  according  to  Aboo 
Haneefa,  on  whom  be  peace,  (unless  the  husband  had  intention  of  three 
divorces  by  the  uae  of  the  word  divorce). 

But  if  that  man  (in  the  first  case)  had  said,  '^  I  have  given  her  (one) 
divorce,''  then  one  divorce  shall  take  effect.  And  this  answer  is  correct 
only  when  the  husband  intends  to  give  the  other  man  authority  to  divorce  ; 
but  if  he  intended  by  the  expression,  a  negation  {Budd)  of  divorce  (i.e.,  if 
he  used  the  expression  by  way  of  defiance)  then  no  divorce  shall  be  caused. 

1927.  (1027.)  A  man  is  known  to  have  been  (before)  insane,  bis 
wife  says  to  him  (when  he  is  in  his  senses)  ''  Thou  didst  divorce  me  last 
night,"  the  husband  says,  '^  Insanity  had  come  upon  me  (last  night)  "  and 
this  (i.e.,  his  having  been  .insane  last  night)  oannot  be  ascertained  except 
by  his  word :  the  word  to  be  accepted  shall -be  his  word. 

1928.  (1028.)  And  the  divorce  given  by  an  idiot  is  ineffectual, 
like  the  divorce  given  by  an  insane  man. 

1929.  (1029.)  And  the  learned  have  discussed  the  distinction  be- 
tween an  idiot  and  an  insane :  they  have  said  that  a  lunatic  is  one  whose 
words  and  acts  are  not  correct  (or  straight,  MoostaJceew)  unless  very 
rarely  {Nadir) :  and  that  oub  in  his  Benses  (Jj»Q  is  (just)  the  reverse  of 
that  ({.r.,  an  insane  as  definedabove)  rand  that  an  idiot  is  one  whose  words 
and  acts  are  mixed,  so  that  sometimes  one  quality  (correctness  or  quality 
of  being  straight)  preponderates  (i.e.,  is  in  existence),  and  sometimes  the 
other  (incorrectness  or  crookedness)  preponderates  (i.6.,  is  in  existence)  and 
(in  the  result  on  the  whole)  both  qualities  stand  on  an  equal  degree. 

And  some  have  laid  down  that  a  lunatic  is  one  who  does  a  wrong 
(Kvheeh)  act  with  volition  {Kasd) ;  and  a  man  in  his  srases  (or  Ahil)  is 
one  who  (sometimes)  does  what  a  lunatic  often  does,  but  not  with  volition 
(or  Ka8d)y  and  only  does  it  thinking  it  good  (or  proper  to  do)L :  and  an- 


OH  IMMEDIATE   DIVORCB.  49 

idiot  is  one  who  sometimes  does  what  a  lunatic  often  does,  but  does  it  with 
Tolition,  althoagh  the  reason  of  the  act  being  bad  {Fasid)  is  apparent. 

1930.  (1030.)  A  man  divorces  his  wife,  he  being  afflicted  with 
Birsam  (a  disease  which  affects  the  reason);  and  when  he  recovers, 
he  says,  "Verily  did  I  divorce  my  wife,"  and  then  says,  "I  was 
Qoder  the  impression  that  a  divorce  given  in  that' state  (of  health)  was 
ftafficient  and  effective/'  Oar  Mashaikhs,  oh  whom  be  peace,  have  said 
that  if,  at  the  time  when  he  makes  the  admission  of  divorce,  the  man 
refers  the  divorce  to  the  time  of  the  Birsam,  saying,  "  Verily  did  I  divorce 
my  wife  (while  I  was)  in  the  state  of  Birsam,''  then  the  divorce  shall  not  be 
caused ;  bat  if  he  does  not  refer  the  divorce  to  the  state  of  Birsam  (and 
merely  says,  '*  Verily  did  I  divorce  my  wife,")  then  he  is  bound  by  this 
divoree  so  far  as  the  Kazee  is  concerned. 

And  the  lawyer  Aboo  Leith,  on  whom  be  peace,  has  laid  down  the 
lame  view,  (even)  if  the  man's  admission  of  divorce  is  made  while  the 
topic  of  divorce  is  not  going  on  (but  if  the  topic  of  divorce  is  going  on, 
and  the  matter  of  divorce  is  being  actually  discussed,  and  he  makes  the 
admission  of  divorce,  and  refers  it  to  the  state  of  his  Birsam,  then  divorce 
shall  not  be  caused :  but  if  he  does  not  refer  it  to  that  state  but  simply 
makes  an  admission  of  his  having  divorced  her  in  the  past,  then  divorce 
shall  be  caused.     See  note  to  paragraph  982). 

1931.  (1031.)  A  man  says  to  his  wife,  "  Thou  art  divorced  once 
every  day  and  twice  every  two  days  :  ^'  then  on  the  first  day  one  divorce 
shall  be  caused  on  her  and  three. divorces  shall  be  caused  on  the  second 
day,  if  there  could  be  more  than  three  divorces  (that  is,  if  it  was  possible 
to  conceive  more  than  three  divorces ;  because  three  divorces  are  suffi- 
cient to  effect  complete  separation.  The  case  is  this  :  "  Thou  art  divorced 
once  every  day,"  requires  that  in  two  days  there  should  6e  two  divorces, 
t.«.,  one  divorce  each  day :  and  the  expression  "  Twice  every  two  days  *' 
requires  that  there  should  be  no  divorce  the  first  day ;  but  that  on  the 
second  day,  there  should  be  two  divorces;  so  that  for  the  two  days  taken  to- 
gether,  there  would  be  two  divorces  by  virtue  of  the  expression  last  noticed, 
the  result  of  the  whole  of  the  expression,  therefore  is^  that  on  the  first 
day  there  is  one  divorce  by  reason  of  the  first  portion  of  the  expression, 
andon  the  second  day  there  is  one  divorce  by  reason  of  the  same  first 
portion  of  the  expression  and  two  divorces  by  reason  of  the  second  portion 
of  the  expression  ;  altogether  there  are  three  divorces  on  the  second  day ; 
and  those  three  taken  along  with  one  divorce  of  the  first  day,  give  a 

7 


/50  THE   TAGORB    LAW   LECTURES^    1891-92. 

total  of  four,  but  three  divorces  being  sufficient,  two  only  need  be  counted 
of  the  second  day). 

1932.  (1032.)  A  man  says  to  his  wife,  "  I  have  given  to  thee,  tbe 
last  (of)  divorces : ''  it  is  said  in  the  Moontuka,  that  she  shall  become 
thrice  divorced.  But  if  he  says,  "  Thou  art  divorced,  (and  art)  last  (of) 
divorces,"  only  one  divorce  shall  be  caused. 

[Note. —  See  Eudd-ool  Moohtar,  Vol.  II,  page  748,  and  Putawai 
Alumgiree,  Vol.  1,  page  525.  When  the  husband  divorces  his  wife  the 
first  divorce  is  a  single  divorce,  and  is  the  one  which  is  first  pronounced; 
the  second  divorce  also  is  a  single  divorce,  and  it  is  the  divorce  which  is 
pronounced  after  the  first  divorce ;  the  third  or  last  divorce  is  also  a  single 
divorce,  and  it  is  pronounced  after  the  second  divorce.  Therefore  the  "last 
of  divorces,'^  is  the  third  divorce,  which  is  pronounced  after  the  second  di- 
vorce, the  second  divorce  having  been  pronounced  after  the  first;  therefore, 
when  a  man  says,  '*I  have  given  thee  the  last  of  divorces,"  this  means,  "I 
have  given  thee  three  divorces,"  because  although  the  last  divorce  is  a  single 
divorce,  still  it  is  such  that  two  divorces  have  already  preceded  it.  So  also  if 
he  says,  *^  Thou  art  divorced  the  last  of  the  divorces,  "  three  divorces  shall 
be  caused.  But  if  he  says,  **  Thou  art  divorced  and  thou  art  the  last  of 
divorces,"  then  only  one  divorce  shall  be  caused,  vw.,  the  one  involved  in 
the  expression  "  Thou  art  divorced ; "  and  the  expression,  "  Thou  art 
the  last  of  divorces,"  must  be  considered  nugatory  and  inappropriate ;  be- 
cause although  a  divorce  might  be  the  last  of  divorces,  but  a  woman  can* 
not  be  said  to  be  "  the  last  of  divorces ; "  the  single  divorce  that  will  be 
caused  in  this  case  shall  be  a  reversible  divorce]^ 

1933.  (1033.)  A  man  says  to  his  wife,  ''  Thou  art  divorced  up  to 
(or  ila)  one  year:"  then  the  divorce  shall  take  effect  after  one  year, 
according  to  the  view  of  Aboo  Huneefa,  on  whom  be  peace. 

[Note.— See  Rudd-ool  Moohtar,  Vol.  II,  page  721.  The  particle  tkor 
up  tOy  is  sometimes  used  in  the  sense  of  ^^  after."  If  a  man  uses  the  particle 
ila  and  intends  that  the  divorce  shall  be  caused  after  a  year,  then  the  divorce 
shall  be  caused  after  a  year ;  therefore  the  expression  used  by  him  means 
this — "Thou  art  divorced  when  a  year  expires,'*  the  divorce  being  a 
conditional  one.  If  he  intends  to  cause  divorce  instantly,  but  also  intends 
that  the  duration  of  the  divorce  shall  be  for  one  year,  then  the  result  will 
be  that  the  divorce  shall  be  caused  instantly,  and  his  intention  as  regards 
the  duration  of  the  divorce  shall  not  be  given  effect  to.  If  he  has  no 
intention  at  all^  then  the  effect  of  the  expression  used  by  him  will  be  to 


ON  IMMEDIATE   DITOSCE.  51 

eaase  divorce  after  one  year,  according  to  Aboo  Haneefa ;  but  according 
to  Zoofar^  the  divorce  will  take  effect  immediately]. 

1934.  (1034«)  A  man  says  (in  Persian),  to  his  wife,  [whilst  the 
topic  of  divorce  is  going  on,  *^  A  thousand  divorces  have  I  put  into  thy 
skirt :''  she  shall  become  thrice  divorced.  And  if  he  says,  *'  I  did  not 
inteud  by  these  words  to  cause  divorce,"  then  his  word  shall  be  accepted 
on  his  oath. 

1935.  (1035.)  A  quarrel  ensues  between  a  man  and  his  wife,  the 
woman  then  says,  "  Put  down  three  divorces  in  this  place  (pointing  to  a 
place  and  implying  thereby  promptitude),  and  at  the  place  (pointed  out 
bj  the  woman)  there  happen  to  be  three  small  tubes  similar  to  those  the 
weavers  use,  without  thread  on  them ;  the  man  then  with  the  toe  of 
Lis  foot  separates  one  of  those  tubes  (from  the  others),  and  says,  "  This 
is  thy  divorce/'  and  then  goes  on  saying  the  same  thing  suiting 
Ins  word  to  his  action  in  regard  to  the  other  tubes,  until  he  separates  the 
(three)  tubes  from  their  (original)  position ;  and  then  says,  "  Give  this 
to  the  weaver  in  order  that  he  might  weave  it  in  thy  cloth.''  The 
learned  lawyers  have  said  that  it  is  fit  that  the  man's  wife  should  not 
become  divorced,  because  (instead  of  giving  divorce)  he  renders  the  tubes  as 
di?orce. 

1936.  (1086.)  A  man  says,  "The  women  of  the  universe  or  the  women 
of  the  world  are  divorced  :  "  his  wife  shall  not  become  divorced  thereby. 
And  if  he  says,  **  The  women  of  this  town  or  of  this  village  are 
divorced, "  and  his  wife  is  also  in  the  town  or  the  village  ;  his  wife  shall 
become  divorced. 

And  it  is  reported  from  Aboo  Yusoof,  on  whom  be  peace,  that  if  a 
man  says,  ''  The  women  of  Baghdad  are  divorced,"  and  his  wife  is  in 
Baghdad,  she  shall  not  become  divorced.  But  Mahomed,  on  whom  be 
peace,  says,  that  she  shall  become  divorced.  (See  Rudd-ool  Moohtar, 
Vol.  II,  page  757.  In  the  case  of  "  universe  "  and  "  world,''  there  is  no 
difference  of  opinion  that  the  wife  of  the  man,  who  makes  the  declara- 
tion, shall  not  become  divorced ;  because  his  wife  could  only  be  divorced 
when  he  uses  the  expression  in  the  sense  of  Insha^  so  far  as  he  himself 
is  concerned ;  but  the  expression  could  not  be  Insha  so  far  as  the  man 
is  concerned,  unless  it  is  so,  so  far  as  other  men  are  also  concerned, 
because  the  same  expression  could  not  at  one  and  the  same  time  be  used 
both  in  the  sense  of  Insha  and  not  Insha^  that  is,  Ikhbar ;  but  universe  and 
world  are  places  so  large  that  it  is  not  possible  that  the  expression  could 


52  THE  TAGOBE  LAW  LECTURES^  1691-92. 

be  used  as  Insha  so  far  as  the  other  men  of  the  world  and  the  aniyerse  are 
concerned,  because  to  be  used  as  Inaha,  in  so  far  as  those  others  are  con* 
cerned,  it  must  be  supposed  that  they  at  some  antecedent  time  authorised 
this  man  to  divorce  their  wives  :  and  it  is  impossible  to  suppose  that  all  the 
men  of  the  universe  and  the  world  should  have  given  such  authority  to  a 
single  individual :  when,  therefore,  the  expression  is  not  Insha  on  their 
behalf,  it  cannot  be  Insha  on  behalf  of  this  man  also,  and,  therefore,  his 
wife  cannot  be  divorced.  If  the  man  uses  the  word  city,  e.g.,  Baghdad, 
then,  according  to  Aboo  Yusoof,  for  like  reasons,  there  shall  be  no  divorce, 
but  according  to  Mahomed,  divorce  shall  take  place  on  the  man's  wife 
because,  according  to  Mahomed,  it  is  possible  for  all  men  of  a  city  to 
authorise  the  same  individual  to  divorce  their  wives.  If  the  man  uses  the 
word  "  Kurya  ^'  or  village,  his  wife  shall  become  divorced,  because  the 
male  inhabitants  of  a  village  are  so  few  that  authority  on  their  behalf  is 
possible  to  conceive.) 

1937.  (1037.)  A  man  says  to  his  wife,  "  Thou  art  divorced  according 
to  the  saying  of  the  lawyers,"  or  "  according  to  the  saying  of  the  Kazees," 
or  "according  to  the  view  of  the  Moslems,"  or  "  according  to  the  Kooran," 
or  "according  to  the  view  of  so  and  so  Kazee,"  or  **  so  and  so  Mooftee: " 
she  shall  be  divorced  so  far  as  the  Eazee  is  concerned  (because  the  Kazee 
must  hold  that  the  words  "  Thou  art  divorced  "  having  been  used,  that 
is  sufficient  to  constitute  divorce,  the  rest  of  the  expression  being 
treated  as  surplusage),  but  she  shall  not  be  considered  divorced  as  between 
him  and  his  God,  unless  he  had  the  intention.  (See  Rudd-ool  Moohtar, 
Vol.  II,  page  756). 

1938.  (1038.)  A  man  divorces  his  wife  once  or  twice,  and  then 
forgets  and  fails  to  find  out  whether  he  has  divorced  her  once  or  twice  or 
thrice ;  and  he  then  says  (in  Persian),  "  The  woman  is  not  befitting 
{i.e»,  lawful  to)  me,  as  long  as  she  has  not  seen  the  face  of  another  (that 
is,  until  she  marries  another  man) ; "  he  then  says,  that  it  is  lawful  to 
him  to  marry  her  (again) :  the  learned  lawyers  have  said,  that  he  shall 
not  be  confirmed  by  the  Kazee. 

[Note. — See  Rudd-ool  Moohtar,  Vol.  II,  page  745.  If  the  man's 
doubt  arises  as  the  result  of  his  want  of  memory  regarding  the 
question  whether  the  divorce  given  by  him  was  single  or  double, 
then  he  should  proceed  according  to  Aboo  Huneefa  and  Mahomed, 
on  the  assumption  that  he  had  given  her  a  single  divorce,  unless  his  mind 
preponderates  towards  the  double  divorce,  and  his  memory  inclines  more 


ON  DimDUTB   DIYOBCl.  S8 

towards  two  divoroes  than  one  divorce ;  so  also  if  the  doubt  is  between  two 
uid  three  divorces.  But  the  second  Imam  or  Imam  Sanee,  namely,  Aboo 
ToBOof — who  is  so  named  to  distinguish  him  from  Imam  Mahomed,  who 
is  called  Imam  Rnbbanj,  Imam  Aboo  Haneefa  being  called  Imam  Azum — 
says,  that  when  the  doubt  refers  to  the  matter  whether  the  divorce  pro- 
nonaced  by  him  consisted  of  three  divorces  or  less  than  three,  then  he 
shall  make  Tuhurry,  or  think  within  himself  how  in  all  probablitjr  he  had 
acted ;  and  if  he  can  give  preference  to  .one  view  he  shall  act  accord- 
ingly ;  but  if  he  can  give  no  preference  to  any  view,  then  he  shall  act 
on  that  which  is  more  severe  on  himself,  that  is,  he  shall  act  as  if  he  had 
giren  three  divorces  which  is  more  severe  on  him,  because  he  thereby 
loses  his  ownership  of  marriage  altogether]. 

1939.  (1039.)  A  man  is  asked  (in  Persian),  **  Is  this  so  and  so,  thy 
wife  9  "  he  says  '^  She  is; "  then  he  is  asked  (in  Persian),  '^  Is  this  thy 
wife  with  three  divorces?'^  he  says,  '^She  is;''  the  man  says  he  did  not  hear 
the  words  "  With  three  divorces,'*  but  only  heard  *'  Is  this  thy  wife  :  " 
the  learned  lawyers  have  held  that  he  shall  not  be  confirmed  by  the  Kazee 
in  what  he  says  (because  he  had  answered  twice  and  he  could  not  have 
supposed  the  second  question  to  be  the  same  as  the  first ;  it  is  therefore 
clear  that  the  man  is  shamming  not  having  heard  the  question  which  he 
answered). 

1940.  (1040.)  A  man  says  to  his  wife,  "  Say  thou,  I  am  divorced  :  " 
the  divorce  shall  not  be  caused  as  long  as  she  does  not  say  so  (and  when 
she  says  so,  she  must  be  supposed  to  have  said  so  as  his  Vakeel), 

And  if  the  husband  says  to  another  man, "  Say  to  her,  she  is  divorced," 
she  shall  become  divorced  instantly.    (See  paragraph  974). 

1941.  (1041.)  A  man  says  to  his  wife,  "  Thou,  from  me  art  three:  '* 
if  he  intends  divorce,  she  shall  become  thrice  divorced  (because  '*  Three  '* 
is  ambiguous  ;  it  might  mean  three  dirhems)  ;  and  if  he  says  **  I  did  not 
intend  divorce/'  then  if  he  had  made  use  of  the  expression  (^^  Thou,  from  me 
art  three  ")  whilst  the  topic  of  divorce  was  going  on,  he  shall  not  be  con- 
firmed by  the  Kazee;  but  if  the  expression  was  not  made  use  of  whilst  the 
topic  of  divorce  was  going  on,  then  the  learned  lawyers  have  said  we  are 
afraid  he  shall  not  (even  in  this  case)  be  confirmed  by  the  Kazee. 

1942.  (1042.)  A  woman  says  to  her  husband,  '*  Divorce  me, "  the 
man  points  three  fingers  towards  her,  intending  thereby  three  divorces :  she 
shall  not  become  divorced  until  he  pronounces  the  (formula  of)  divorce. 
And  it  is  said  in  the  Book  on  Divorce   (in  Mahomed's  work)  that  if 


S4  THE  TAGOBB  LAW  LECTURES,  1891-92. 

a  man  says  to  his  wife,  ''  Thou  art  divorced "  (which  means  onlj  one 
divorce)  and  points  three  fingers  towards  her  intending  thereby  three 
divorces,  and  does  not  give  utterance  (to  the  word  three)  with  his  tongue, 
the  woman  shall  be  divorced  once. 

1943.  (1043.)  A  man  sees  a  person  and  takes  her  to  be  Oomra  (his 
wife) ;  he  then  says,  **  Oh,  Oomra,  thou  art  divorced,*'  without  pointing 
towards  that  person  j  the  person  happens  to  be  other  than  Oomra,  whilst 
Lis  wife  is  Oomra :  his  wife  shall  become  divorced ;  because  when  no  one 
is  pointed  out,  regard  is  had  to  the  name  used,  and  verily  the  name  is  found 
used  in  this  case.    (See  paragraphs  912  and  915). 

1944.  (1044.)  A  man  says  to  his  wife  (in  Persian),  "  What  has 
divorce  done  (i.e.,  has  it  made  you  &atn,  &c.)  and  what  not  P "  his  wife 
shall  not  become  divorced. 

And  if  a  man  is  asked, ''  Hast  thou  divorced  thy  wife,"  and  he  says. 
^'Consider  her  (that  is,  take  her  to  be)  divorced  and  reckon  her  as 
divorced : "  his  wife  shall  not  be  divorced.  (See  paragraphs  965, 1014,  and 
1015). 

1946.  (1045.)  A  woman  says  to  her  husband,  *'  Divorce  me  ; "  the 
man  says  (in  Persian),  "  Thou  art  not  wife  to  me :  *'  the  learned  lawyers 
have  said  that  by  this  answer  divorce  is  caused,  and  intention  is  not 
necessary.     (Compare  paragraphs  969  and  1112  post), 

1946.  (1046.)  A  woman  says  to  her  husband,  '^  Divorce  me  ;  "  the 
man  says  to  her,  '^  Thou  art  single : "  she  shall  become  once  divorced. 
(See  paragraphs  1010,  and  1067  and  1128  posf). 

1947.  (1047.)  A  man  divorces  his  wife,  once  or  twice ;  his  wife's 
mother  then  comes  to  him  and  says,  '^  Thou  hast  divorced  her,  and  lost 
aight  of  the  obligations  (thou  art  under)  to  her  father,"  reprimanding  him 
for  so  doing ;  the  husband  says,  ^^  This  is  second,"  (that  is  to  say,  in  ca^se 
the  divorce  already  pronounced  was  a  single  divorce),  or  the  husband 
says,  ^' This  is  third"  (that  is  to  say,  in  case  two  divorces  were  already  pro- 
nounced) :  another  (that  is,  a  fresh)  divorce  shall  be  caused  (although  he 
has  not  used  the  word  "  divorce. ")  And  if  the  wife's  mother  simply 
reprimands  the  husband,  without  making  mention  of  the  divorce,  and 
the  husband  expresses  himself  as  aforesaid,  no  fresh  divorce  shall  be 
caused  unless  there  is  an  intention. 

1948.  (1048.)    A  man  says  to  his  wife,  "Thou  art  divor (that 

is,  dropping,  or  making  Turkheem  in,  the  last  letter  of  the  word  Tulak), 


ON   IMMEDIATE   DIVORCE.  55 

intending  thereby  divorce  :  divorce  shall  be  caused.  But  if  he  says,  thou 
art  di'ced  (that  is,  dropping  the  second  last  letter  of  the  word  Tdlak),  no 
divorce  shall  be  caused,  although  he  may  intend  to  cause  divorce,  because 
the  suppression  of  the  final  letter  is  habitual  with  the  Arabs  (and,  there- 
fore, the  word  with  the  acknowledged  method  of  mutilation  would  be 
taken  as  fully  pronounced  ;  but  not  so  a  word  mutilated  arbitrarily  and 
perversely) . 

And  the  lawyer  Abool  Kasim,  on  whom  be  peace,  says,  that  if  an 
Ajamy  (that  is,  a  person  coming  from  a  country  outside  Arabia),  says  this  in 
Persian  (t.e.,  uses  the  word  Tulah  in  a  mutilated  form  along  with  Persian 
expressions),  and  suppresses  the  final  letter,  divorce  shall  not  be  caused, 
although  be  might  have  an  intention,  because  suppression  of  the  final 
letter  is  not  habitual  in  the  Ajum  country ;  and  that,  therefore,  if  a  man 
says  to  his  slave  (in  Persian),  ^^  Thou  art  il^a,  without  pronouncing  the 
final  letter  dal,  {i.e.,  mutilating  the  word  azad  or  free),  the  slave  shall  not 
become  free,  although  he  might  have  an  intention. 

And  Sadr-ool  Shaheed,  on  whom  be  peace,  says,  that  there  is  no  dis- 
tinction between  the  Arabic  and  Persian  (expression  being  used);  and  that 
if  the  man  has  an  intention,  then  his  intention  is  correct  (that  is,  his 
intention  shall  be  carried  out). 

And  all  this  discussion  is  only  when  the  man  uses  the  word  taV  (instead 
of  tulik),  without  the  Eusra  on  the  letter  lam  ;  but  if  he  uses  the  word  tal\ 
with  the  Eusra  on  the  letter  lam  (and  pronounces  it  tali)^  divorce  shall 
be  caused,  although  he  might  have  no  intention,  and  the  Kusra  (or  vowel 
of  the  letter  lam)  shall  supply  the  place  of  the  final  letter. 

And  this  (that  is,  that  divorce  shall  not  be  caused  by  the  use  of  the 
word  taV  without  Kusra  in  the  absence  of  intention)  is  the  rule  when  the 
husband  is  not  using  the  word  whilst  the  topic  of  divorce  is  going  on,  and 
when  he  is  not  in  a  state  of  anger ;  but  if  he  expresses  himself  so  (that 
is,  uses  the  word  taV  without  the  Eusra  on  the  letter  lam)  during  the  topic 
of  divorce  or  whilst  he  is  in  anger,  the  divorce  shall  be  caused,  although 
he  might  have  no  intention. 

1949.     (1049.)     And  if  a  man  says,  "Thou  art  ta (di )," 

(t.  6.,  mutilating  the  word  divorce  so  as  to  drop  two  final  letters  of  the 
word  Talik)  and  keeps  quiet,  or  somebody  stops  his  mouth  (before  he  has 
completed  the  word  talik  or  divorced) :  divorce  shall  not  be  caused,  even  if 
he  has  an  intention ;  because  it  is  not  habitual  to  drop  (or  suppress)  two 
letters  of  a  word.     (See  paragraph  995). 


&6  THB  TAQORE  LAW  LECTURES^  1891-92. 

1960.  (1050.)  And  if  a  woman  says  to  her  husband^  "  Divorce  me," 
and  the  husband  says  "Daim'^  (which  literally  means  "For  ever;''  but  here 
"  Daim ''  is  used  for  **  Dadum  "  that  is,  given),  then  if  he  so  expresses 
himself  at  a  place  where  it  is  the  practice  to  (mutilate  dadum  into  dam 
and  to)  use  daim  (on  such  occasions),  then  divorce  shall  be  caused  (and 
one  divorce  shall  take  effect). 

1951.  (1051.)  A  woman  says  to  her  husband,  ^^  How  is  it  that  thou 
dost  not  divorce  me  P  "  and  the  husband  says  (in  Persian),  "  Thou  art 
divorced  from  head  to  foot : "  the  learned  lawyers  have  said  that  if  the 
man  intends  divorce,  then  divorce  shall  be  caused,  otherwise  not.  And 
Maulana  (Eazee  Khan)  says  that  it  is  fit  that  divorce  shall  be  caused 
whatever  be  the  case  (that  is,  whether  the  man  has  intention  to  divorce 
or  not),  because  the  meaning  of  the  husband's  expression  is  that  "  Thou 
art  divorced  in  all  thy  particles,"  so  that  if  he  expresses  himself  in  this 
way,  divorce  shall  be  caused  although  he  might  have  no  intention  (to 
divorce),  just  as  if  he  says,  '*  Thou  art  divorced." 

1952.  (1052.)  A  man  intends  to  say  to  his  wife,  '^  Thou  art  divorced 
thrice,"  but  after  he  has  uttered  (the  words)  "  Thou  art  divorced,"  some- 
body stops  his  mouth  or  he  dies,  one  divorce  shall  be  caused  (because  mere 
intention  unexpressed  in  words  goes  for  nothing,  and  the  words  expressed 
convey  only  one  divorce).  But  if  he  says,  "  Thou  art  divorced  thrice," 
and  the  woman  dies  after  he  has  uttered  "Thou  art  divorced"  and  before 
he  says  "  Thrice,"  no  divorce  shall  be  caused  (because  when  a  number  is 
expressed  then  the  number  causes  the  divorce  and  not  the  formula  or 
seegha  which  precedes  it.  See  note  to  paragraph  064).  So  also  if  he 
says,  "Thou  art  divorced  once,"  but  the  woman  is  alive  only  during 
the  time  he  says,  "  Thou  art  divorced,"  and  dies  before  he  says  "  once:  " 
no  divorce  shall  be  caused. 

1953.  (1053.)  A  man  says  to  his  wife,  "  I  have  given  to  thee  (or  I 
have  made  a  gift  to  thee  of)  the  act  of  divorcing  thyself  (Tatleek) :  ** 
this  shall  amount  to  vesting  her  with  authority  (to  divorce  herself) ;  and 
if  she  divorces  herself  at  the  (same)  meeting  (in  which  the  husband  gives 
her  the  authority)  the  divorce  shall  be  caused,  otherwise  not. 

But  contrary  to  that  if  he  says,  "  I  have  made  a  gift  to  thee  of  thy 
divorce : "  (she  shall  be  divorced  and  this  shall  amount  to  a  divorce  caused 
by  the  act  of  the  husband) :  and  verily  have  we  discussed  this  matter. 
(See  paragraphs  891  and  940). 

1954.  (1054.)    When  a  man  (at  first)  intends  to  divorce  his  wife,  and 


OK   IMMEDIATE   DITORCB.  67 

the  wife  says  to  him,  *'  Make  a  gift  to  me  of  my  divorce,"  and  the  man 
8aj8,  ^  I  Lave  made  a  gift/'  meaning  thereby  the  abandonment  of  divorce 
and  refusal  of  the  same :  the  woman  shall  continue  to  be  his  wife. 

1966.  (1055.)  A  man  says  to  his  wife,  '^  Thou  art  divorced,  but  I 
shall  have  the  option  of  three  days:"  the  divorce  shall  be  caused  and  the 
option  shall  be  void.    (See  paragraph  588). 

1966.  (1056.)  A  man  names  his  wife  as  "  Divorced,"  (i.e.,  gives 
the  name  of  "  Divorced "  to  her)  and  says  to  her,  "  I  have  named 
thee  Divorced : "  divorce  shall  not  be  caused  upon  the  wife,  neither 
morally  as  between  him  and  his  God^  nor  so  far  as  the  Eazee  is  con- 
cerned. 

1987.  (1057.)  A  man  says  to  his  wife,  ^^  Thou  art  divorced  accord- 
ing to  the  number  of  the  stars,"  or  ^'  according  to  the  number  of  dust 
(toorab)^^'  or  "  according  to  the  number  of  rivers : "  the  woman  shall  become 
divorced  thrice.     So  also  if  he  says,  ^'  Thou  art  divorced  like  three." 

[Note. — See  Rudd-ool  Moohtar,  Vol.  II,  page  743.  If  the  thing  men- 
tioned after  the  word  "  Number  "  is  such  that  it  is  only  one  in  number. 
Bach  as  the  sun  or  the  moon,  then  only  one  reversible  divorce  shall  be  caused 
according  to  Aboo  Tusoof ;  as  for  instance,  when  a  man  says,  "  Thou  art 
divorced  according  to  the  number  of  the  sun,"  or  '^  according  to  the  number 
of  the  moon,"  because  the  Tushheeh  or  comparison  here  goes  for  nothing, 
the  sun  or  the  moon  having  no  number :  but  according  to  Mahomed  three 
divorces  shall  be  caused,  because  when  the  word  number  is  used,  then  the 
meaning  is  plurality :  and  this  is  the  view  taken  by  Shaffae  and  l^y  Ahmed 
son  of  Humbul,  whose  followers  are  known  as  the  Humbulees:  and  accord- 
ing to  analogy  from  the  view  held  by  Aboo  Huneefa,  one  lain  or  irrever- 
sible divorce  shall  be  caused,  because  by  the  mere  expression,  ^^  Thou  art 
divorced,"  one  reversible  divorce  is  caused,  and  when  Tmhbeeh  or  words  of 
comparison  are  used,  then  the  use  of  those  words  requires  accession  of 
strength  to  the  divorce.  See  note  to  paragraph  933.  If,  after  the  word 
''Itamber,"  a  thing  is  mentioned  which  is  a  collective  term  and  is  used 
to  denote  quantity,  large  or  small,  such  as  water,  or  dust,  or  honey, 
then  the  result  is  the  same,  viz.,  according  to  Aboo  Yusoof,  one  rever- 
sible divorce  shall  be  caused,  and  according  to  Mahomed  three  divorces  shall 
be  caused,  and  according  to  Aboo  Huneefa,  one  irreversible  divorce  shall 
be  caused.  And  if  after  the  word  *'  Number,"  a  thing  is  mentioned  which 
denotes  at  least  three  or  which  must  consist  of,  at  least,  three  particles, 
such  as  sand,  i.e.,  Bumul,  which  implies  at  least  three  particles  of  sand, 
8 


58  THE  TAGOBE  LAW  LECTUBEB^  1891-92. 

or  Tumur^  {.e.,  date,  wliich  implies  three  date  fruit,  then  according 
to  all  the  three  Imams  three  divorces  shall  be  caused.  If  the  man  says, 
^^  Thou  art  divorced  like  the  sun,  or  like  the  moon,  or  like  the  water, 
or  like  the  dust  or  like  the  honey,''  then,  according  to  Mahomed, 
one  reversible  divorce  shall  be  caused,  because  the  word  ** Number" 
is  not  mentioned;  and  according  to  Aboo  Yusoof  also,  one  reversible 
divorce  shall  be  caused ;  but  according  to  analogy  from  the  view  of 
Aboo  Huneefa  one  irreversible  divorce  shall  be  caused.  And  the  expression, 
*'  Thou  art  divorced  according  to  the  number  of  the  sun  '*  has  the  same 
effect  as  the  expression,  "  Thou  art  divorced  like  the  number  of  the  sun," 
the  former  means  comparison  though  the  word  ^^  like "  is  unexpressed. 
See  also  paragraph  1143  post']. 

1958.  (1058.)  And  if  he  says,  "  Thou  art  divorced  once,  like  three," 
one  complete  (Jbain)  divorce  shall  be  caused  (whereas  if  he  had  said, 
"  Thou  art  divorced  "  or  "  Divorced  once,"  then  one  reversible  divorce 
would  have  been  caused ;  three  divorces  make  the  wife  wholly  bain  or 
separate,  so  that  she  cannot  be  married  again  to  the  same  husband  with- 
out the  legaliser.  '^  One  divorce  like  three  "  makes  her  bain  or  separate, 
but  still  the  husband  can  marry  her  without  the  aid  of  the  legaliser. 
See  also  paragraph  1143  post). 

1959.  (1059*.)  And  if  he  says,  "  Thou  art  divorced  like  the  pillars" 
or  "  like  the  mountains  '*  or  "  like  the  rivers,"  then  one  complete  (bain) 
divorce  shall  be  caused  according  to  Aboo  Haneefa  and  Zoofur,  on  whom  be 
peace,  (see  paragraph  933  and  note  thereto);  but  Aboo  Yusoof,  on  whom  be 
peace,  says,  one  reversible  divorce  shall  be  caused  (because  he  says  the 
quality  expressed  is  inappropriate  to  a  divorce,  and  therefore  the  quality 
goes  for  nothing). 

And  this  class  (of  cases)  will  be  discussed  in  the  section  dealing  with 
Similitudes  (or  comparison),  if  it  pleaseth  God.  (See  the  Chapter  on 
Zihar  which,  though  headed  as  such,  in  reality  consists  of  comparisons, 
and  see  paragraph  1853  post). 

1960.  (1060.)  A  man  says  to  his  wife,  (even)  before  having  inter- 
course with  her,  "  Thou  art  divorced  one  {Ihda)  and  twenty : "  she  shall 
be  divorced  thrice  according  to  us  (that  is  according  to  Aboo  Huneefa  and 
his  two  disciples) ;  but  Zoofur,  on  whom  be  peace,  says,  that  one  divorce 
shall  be  caused.  And  if  he  says  "  Once  {Wahidatoon)  and  twenty  "  or 
"  Once  and  a  thousand,"  then  one  divorce  shall  be  caused  according  to  their 
view  (that  is  the  view  of  all  the  three  Imams  and  also  of  Zoofur)  except- 


ON   IMMEDIATE    DIVORCE.  5^ 

ingone  tradition  from  Aboo  Yusoof,  on  whom  be  peace  (according  to  which 
three  divorces  in  this  case  shall  be  caused). 

And  if  he  sajs  "  One  (and)  ten  *'  she  shall  be  divorced  thrice.  And 
if  he  says  "  Once  and  ten  "  she  shall  be  divorced  once, 

[Note. — If  a  man  has  intercourse  with  his  wife,  and  afterwards  he 
divorces  her  once,  the  woman's  Iddut  commences,  and  during  the  Iddut, 
he  can  pronounce  two  other  divorces  on  her.  If  he  hns  not  had  inter- 
conrse  with  her,  and  pronounces  one  divorce  on  her,  she  becomes 
separate,  and  it  is  not  necessary  for  her  to  observe  any  Iddut,  and,  therefore, 
she  is  not  a  fit  subject  on  whom  to  pronounce  a  second  and  a  third  subsequent 
divorces ;  but  if  he  says,  *'  Thou  art  divorced  thrice,  "  then  three  divorces 
shall  be  caused.  In  all  the  instances  given  in  the  text,  if  the  husband  has 
had  intercourse  with  the  wife,  then  three  divorces  shall  be  caused.  But  if 
he  has  not  had  intercourse  with  her,  and  he  says,  *'  One  and  twenty,*'  then 
according  to  Aboo  Huneefa  and  Aboo  Yusoof  and  Mahomed  the  exprea* 
sion  means  "  Twenty-one,"  and  therefore  three  divorces  shall  be  caused 
without  regard  to  the  conjunction ;  but  Zoofur  says  effect  must  be  given 
to  the  conjunction ;  and  inasmuch  as  she  becomes  separate  by  the  single 
divorce  involved  in  the  word  "  One,"  the  rest  of  the  expression  goes  for 
nothing:  but  if  he  uses  the  expression  "  Ihda  Ashara,"  t.  e.,  one,  ten 
that  is  eleven,  then,  according  to  all,  three  divorces  shall  be  caused,  the 
reasoning  of:  Zoofur  not  being  applicable,  because  there  is  no  conjunction 
here  between  one  and  ten,  although  the  expression  does  mean  one  and  ten 
that  is  eleven.  And  if  he  says,  "  Once  and  twenty  "  or  "  Once  and  ten  " 
then  one  divorce  being  sufficient,  one  divorce  shall  be  caused,  and  the 
lest  of  the  expression  shall  go  for  nothing]. 

1961.  (1061.)  A  man  says  to  his  wife,  with  whom  he  has  bad  inter- 
course, "  Thou  art  divorced ;  "  the  woman  says,  "  It  does  not  suffice  me 
with  one;  **  the  man  says  (in  Persian),  "  Catch  (or  take)  two  j "  then  if 
he  intends  (by  the  "  two  '0  the  causing  of  divorce  (and  does  not  mean 
anything  else),  the  woman  shall  be  divorced  thrice ;  (if  he  means  by  the 
expression,  "  Catch  or  take  two,"  that  she  is  at  liberty  to  consider  as  two 
the  one  divorce  pronounced  by  him,  then  this  expression  goes  for  nothing; 
because  one  divorce  cannot  become  two  unless  two  divorces  are  actually 
given ;  but  if  by  the  expression  he  means  to  cause  two  divorces,  then  two 
fresh  divorces  shall  be  caused  in  addition  to  the  one  already  pronounced, 
which  is  beyond  recall). 

1962.  (1062.)    A  man  says  to  his  wife,  ^^  If  thou  be  my  wife,  then 


60  THE  TAGORB  LAW  LEOTORES^  1891-92. 

thou  art  divorced  thrice : ''  the  learned  lawyers  have  said  that  if  he  does 
not  immediately  give  her  one  complete  (bain)  divorce  after  giving  ex- 
pression to  the  vow  (or  conditional  sentence  stated  above),  the  woman  shall 
be  thrice  divorced, 

[Note. — See  paragraph  1256  post.  The  woman  is,  in  reality, 
the  man's  wife,  and,  therefore,  the  conditional  divorce  mast  have  its 
operation  unless  the  husband  can  manage  to  render  the  condition  in- 
effectual, and  that  could  be  accomplished  by  making  her  cease  to  be  his 
wife  before  the  declaration  is  effective.  When,  therefore,  the  husband, 
immediately  after  giving  expression  to  the  conditional  declaration  and 
before  the  same  becomes  operative,  says,  in  the  same  breath  without  a 
stop,  **  Thou  art  divorced  completely/^  then  the  woman  ceases  to  be  his 
wife,  and  the  triple  divorce  involved  in  the  conditional  declaration  be- 
comes ineffectual.  The  conditional  declaration  becomes  operative  if  the 
husband  should  come  toa  stop  after  the  declaration,  but  if  without  coming 
to  a  stop  he  adds  an  expression  by  which  the  woman  ceases  to  be  his  wife, 
then  he  renders  the  conditional  declaration  nugatory.  If  the  conditional 
declaration  becomes  effective,  then  the  husband  cannot  re-marry  the 
woman  unless  by  the  aid  of  the  legaliser ;  but  by  adopting  the  device  here 
set  out,  he  can  marry  her  immediately,  because  only  one  divorce  is 
pronounced  in  the  device:  if  in  the  device  the  husband  only  says,"  Thou  art 
divorced,^'  then  if  the  woman  is  one  with  whom  the  husband  has  had  in- 
tercourse, the  device  cannot  be  successful,  because  the  woman  will  have 
to  observe  her  Idduty  and  before  the  expiry  of  the  Idduty  the  relationship 
of  husband  and  wife  continues  to  a  certain  extent,  and  the  conditional 
declaration  shall  come  into  operation  ;  but  if  the  husband  has  not  had 
intercourse,  then  she  is  not  obliged  to  observe  her  Idduty  and  the  divorce 
in  the  device  shall  not  be  Rujue  or  revocable,  but  it  will  be  bain  or 
complete  even  without  the  husband  making  use  of  the  word  bain  or 
complete]. 

1963.  (1063.)  A  man  says  to  his  wife,  "  Thou  art  divorced  with 
every  drink  (that  is,  every  time  that  I  drink) : ''  she  shall  not  be  divorced 
until  he  drinks. 

1964.  (1064.)  And  if  he  says,  "  Thou  art  divorced  by  every  (unit) 
of  the  divorce,''  and  this  is  said  after  the  man  has  had  intercourse  with 
his  wife  :  she  shall  become  instantly  divorced  thrice.  (See  paragraph  926; 
but  if  the  husband  has  not  had  intercourse  with  her,  then  she   shall 


ON  IHMEDIATB   DIVORCB.  61 

become  lain  or  completely  separate  by  tbe  expression,  "  Thou  art  divorced," 
and  the  rest  of  the  expression  shall  go  for  nothing). 

1965.  (1065.)  A  man  has  daughters  who  have  their  husbands;  the 
husband  of  one  of  the  daughters  says  to  the  father  (in  Persian),  *^  I  have 
given  one  divorce  to  thy  daughter :  "  the  divorce  shall  be  caused  on  the 
wife  of  the  giver  of  the  divorce  (and  the  words  "  thy  daughter  *'  would 
refer  to  the  speaker's  own  wife). 

1966.  (1066.)  A  man  says  to  his  wife,  «  To  thee,  one,"  or  says,  "  To 
thee,  three : "  Suddr-ool  Shaheed,  on  whom  be  peace,  says,  the  woman 
shall  be  divorced  once  or  thrice  (as  the  case  may  be,  provided  there  is 
something  in  the  surrounding  circumstances  to  make  the  speech  referable 
to  divorce  and  not  to  other  matters). 

1967.  (1067.)  And  if  the  man  says  to  his  wife  (in  Persian),  "  Thou 
art  one,"  or  says,  "Thou  art  three :  "  Abool  Kasim,  on  whom  be  peace,  says, 
no  divorce  shall  be  caused.  Eazee  Khan,  on  whom  be  peace,  says,  it  is  fit 
that  the  effect  of  the  expression  should  depend  on  circumstances ;  and 
that  if  the  man  so  expresses  himself  whilst  the  topic  of  divorce  is  going 
on,  or  when  the  husband  is  in  a  state  of  anger,  then  divorce  shall  be 
caused;  otherwise  no  divorce  shall  be  caused,  unless  there  is  intention  ; 
just  in  the  same  way  as  if  the  man  says  in  Arabic,  "  Thou  art  one  (or 
single)." 

1968.  (1068.)  And  if  the  husband  says  (in  Persian),  «  This  wife, 
who  is  mine,  is  with  three :  "  Aboo  Nusar  Duboosy,  on  whom  be  peace, 
says,  no  divorce  shall  be  caused  ;  and  Aboo  Bukr  Ayazy,  on  whom  be  peace, 
says,  that  if  the  husband  has  the  intention  to  divorce,  then  there  shall  be 
divorce. 

And  if  he  says  to  his  wife  (in  Arabic),  "  Thou  art  with  three  :"  then 
8heikh-ool  Imam  Aboo  Baker  Mahomed,  son  of  Fuzul,  on  whom  be  peace, 
says,  if  the  husband  has  an  intention,  then  divorce  shall  be  caused. 

1969.  (1069.)  A  man  says  to  his  wife  (in  Persian),  "  I  have  with- 
held my  hand  from  thee,  by  (giving  thee)  one  divorce"  (see  paragraphs 
1131  and  1135 /?o«<);  and  the  woman  says,  ^^Say  again,  so  that  witnesses 
might  hear ;  "  and  the  husband  says,  ^^  I  have  withheld  my  hand  from 
thee,  by  (giving  thee)  one  divorce ;  "  then,  when  the  husband  and  wife 
separate  (that  is,  go  about  their  business),  a  strange  woman  says  to  the 
husband  (in  Persian),  "  Hast  thou  withheld  thy  hand  from  thy  wife," 
and  the  man  says,  ^^  I  have  withheld  my  hand  from  her,  by  (giving  her) 
one  divorce : "  the  learned  lawyers  have  said  that,  if  the  husband  has 


62  THE  TAQORB  LAW  LECTURES,  1891-92. 

said  a  second  time  and  a  third  time,  '^  I  have  withheld  my  hand,"  (as 
he  says  a  second  and  a  third  time  as  aforesaid),  this  shall  be  the  creation 
(or  Insha)  of  fresh  divorces  (with  each  expression),  and  the  woman  shall 
be  divorced  thrice,  unless  he  says,  ^'  I  intended  by  the  second  and  third 
expressions  (mere)  information  (or  explanation).'' 

And  if  he  says  (the  second  and  third  time),  '^  I  have  already  withheld 
my  hand,''  this  shall  be  information  (or  explanation  of  the  first  divorce 
and  shall  not  amount  to  fresh  divorce). 

1970.  (1070.)  A  man  says  to  his  wife  (in  Persian),  "  Do  thou  remain 
with  three  divorces  :  "  if  he  intends  thereby  the  causing  of  divorce,  this 
shall  amount  to  divorce,  otherwise  not ;  because  this  expression  is  ambi- 
graous,  and  it  might  mean  that  he  intends  thereby  that,  ^^Thou  with  three 
divorces  art  my  property  "  (that  is,  he  intends  to  state  what  is  a  fact,  viz.t 
^^  I  have  the  power  of  three  divorces  and  thou  remain  with  me  whilst 
I  possess  fhe  power  of  three  divorces)."  Intention  is  therefore 
necessary,  (because  the  expression  is  susceptible  of  this  meaning  vur., 
"I  have  caused  three  divorces  be  thou  with  three  divorces)."  So 
also  if  he  says  (in  Arabic),  "Thou  art  with  three  divorces;"  this 
also  admits  of  the  same  meaning  (that  is,  that  "  I  am  the  owner  of 
three  divorces  "),  except  this,  that  this  expression  is  mostly  used  for  the 
purpose  of  causing  divorce ;  so  that  if  it  appears  that  the  man  intended 
thereby  (to  express)  his  proprietorship  in  the  wife,  then  divorce  shall 
not  be  caused. 

1971.  (1071.)  A  man  says  to  his  wife,  "  Thou  art  divorced  so  many, 
80  many :  "  she  shsiU  be  divorced  thrice ;  because  the  expression  {Kuza  or) 
'^  so  many "  is  used  for  numbers,  and  the  least  number  which  is  ex- 
pressed without  a  conjunction  is  eleven  (which  is  expressed  by  one,  ten; 
that  is,  one  and  ten — see  note  to  paragraph  1060) :  the  woman,  therefore, 
shall  be  thrice  divorced. 

1972.  (1072.)  A  man  says  to  his  wife,  "  I  hold  thee  abominable 
as  one  does  the  saliva  (or  phlegm  which  he  expectorates  to  spit  oat 
of  his  mouth) ; "  the  woman  then  says,  "  If  thou  hold  the  same  in 
abhorrence  then  cast  it  away  ; "  the  husband  then  says,  "  Thoo,  thoo  " 
(making  a  sound  similar  to  that  made  in  the  act  of  spitting),  throw- 
ing out  the  saliva,  and  says,  "  I  have  cast  it  away,"  and  intends  thereby 
divorce:  the  woman  shall  not  be  divorced;  because  even  if  he  vomits  and  in-^ 
tends  divorce  thereby,  the  woman  shall  not  be  divorced,  so  also  if  he  throws 
out  the  saliva  and  intends  divorce  thereby  (divorce  shall  not  be  caused). 


OK   IMMBDIATS   DIYOROE.  69 

1973.  (1073.)  A  man  is  addressed  by  another,  ^'  Hast  thon  married 
another  wife/'  and  he  says  "  Yes ; "  he  is  then  asked  (by  the  other) 
**  Why  didst  thou  divorce  the  firstP^*  he  then  says  in  Persian,  "For  thee;" 
the  fact  being  that  he  did  not  marry  another  wife  and  did  not  divorce 
the  first  wife,  and  did  not  intend  divorce  by  his  words  :  his  wife  shall  not 
be  divorced. 

1974.  (1074.)  A  woman  says  to  her  husband,  *'  Divorce  me  thrice ;  ** 
the  husband  says,  '^  This  time,  a  thousand  divorces :  "  his  wife  shall  not 
be  divorced,  because  the  expression  is  ambiguous  ;  (it  might  mean,  **  Dost 
thou  ask  a  thousand  divorces  at  this  time,"  or  it  might  mean,  ^^  This  time  I 
give  a  thousand  divorces :  "  the  expression  being  ambiguous,  if  he  has 
the  intention  to  cause  divorce,  she  shall  be  divorced). 

1976-  (1075.)  A  man  says  to  his  wife,  ^'  Do  not  go  out  of  the  hoase 
without  my  order,  because  I  have  made  a  vow  regarding  divorce  (that  is 
to  say,  the  vow  was  that  divorce  would  be  caused  by  her  going  out  of  the 
house  without  orders);"  the  woman  goes  out  of  the  house  wibhout 
his  order:  she  shall  not  become  divorced,  because  he  did  not  say 
that  the  vow  he  made  was  with  regard  to  this  woman's  divorce,  and 
it  might  be  that  the  vow  referred  to  the  divorce  of  some  other  woman. 
The  word  to  be  accepted  shall,  therefore,  be  that  of  the  husband^ 
(that  is  to  say,  if,  in  such  a  case,  the  woman  takes  proceedings  before  the 
Kazee,  and  says,  '^  I  am  divorced, "  but  the  husband  says,  ^*  She  is  not 
divorced  because  the  vow  referred  to  the  divorce  of  another  wife,"  thea 
the  husband's  word  shall  be  accepted). 

1976.  (1076.)  A  man  has  four  wives  ;  he  says  to  one,  "  Thou  art, " 
and  to  another,  "  Then  (or  Soomma)  thou  art,  "  and  to  a  third,  "  Then 
(or  Soomma)  thou  art, "  and  to  the  fourth  "  Then  (or  Soomma)  thou 
art  divorced : "  the  fourth  wife  shall  become  divorced ;  because  he 
rendered  "Divorced"  as  the  quality  of    the  fourth  wife. 

[Note. — Here  the  word,  then  or  Soomma,  prevents  the  word  "Divorce** 
from  being  applicable  to  the  first  three  wives,  because  the  effect  of  the  word 
SoomTna  or  then  is  to  disjoin  the  sentences,  although  the  sentences  might 
have  been  pronounced  immediately  one  after  the  other:  if  instead  of  Soom- 
ma or  ihen^  he  had  used  the  conjunction  "  and,"  and  pronounced  the  sen* 
tences  continuously  without  a  break,  then  all  four  would  have  been  divor7 
ced ;  but  if  using  the  word  "and,"  he  had  broken  the  sentences  and  taken  a 
pause  after  each  sentence,  then  the  divorce  would  have  been  applicable  to 
the  fourth  :  the  effect  of  the  word  Soomma  or  thm  is  this,  that  the  mere  use 


64  THE  TAQORE  LAW  LECTURES,  1891-92. 

of  that  word  is  to  disjoin  tbe  sentences  and  introduce  a  break,  althongh 
there  might  not  be  a  break  in  the  speech  as  a  matter  of  fact :  the 
import  of  the  word  "  Soomma  or  then ''  is  distinguished  in  jurispru- 
dence from  the  meaning  of  "  and  "  in  the  way  pointed  out  above]. 

1977.  (1077.)  A  man  says  *' Divorced, "  and  he  is  then  asked 
**  What  woman  dost  thou  mean  j  '*  he  says,  "  My  wife:  '^  his  wife  shall 
become  divorced. 

1978.  (1078.)  A  man  says,  "  A  woman  is  divorced, "  or  saya,  "  I  have 
divorced  a  woman  thrice,"  and  he  says,  "  I  did  not  mean  thereby  my 
wife :  "  be  shall  be  confirmed  in  his  statement. 

But  if  he  says,  "  Oomra  is  divorced,"  his  wife's  name  being  Oomra ; 
and  he  says,  ^^  I  did  not  mean  my  wife  :  "  his  wife  shall  become  divorced, 
and  he  shall  not  be  confirmed  by  the  Eazee  (when  he  says  he  did  not 
mean  his  wife). 

So  also  if  he  says,  '^The  daughter  of  so  and  so  is  divorced," 
naming  the  father,  but  not  naming  the  woman  herself,  and  (the  fact  is 
Ahat)  his  wife  is  the  daughter  of  that  so  and  so ;  but  he  says,  '*  I  did  not 
mean  my  wife :"  he  shall  not  be  confirmed  in  his  statement  by  the  Eazee, 
(although  his  father-in-law  might  have  several  daughters)  and  his  wife 
shall  become  divorced,  in  the  same  way  as  if  he  had  mentioned  the  name 
of  his  wife. 

And  if  he  says,  "  Oomra  is  divorced,"  and  his  wife  is  "  Oomra:"  then 
his  wife  shall  be  divorced,  and  he  shall  not  be  confirmed  by  the  Eazee  in 
withdrawing  the  divorce  from  her. 

So  also  if  he  does  not  describe  his  wife  with  reference  to  her  father, 
but  with  reference  to  her  mother  or  her  child :  his  wife  shall  become 
divorced. 

So  also  if  his  wife's  mother  catches  hold  of  him  and  says,  '*  I  shall 
not  leave  thee  to  go  on  thy  journey  until  thou  divorce  my  daughter;" 
the  husband  then  says,  (in  Persian),  "  Three  divorces  on  thy  daughter ; " 
be  then  says,  ^^  I  did  not  intend  my  wife ; "  his  wife  shall  become 
divorced  so  far  as  the  Kazee  is  concerned. 

1979.  (1079.)  A  man  says  to  his  wife  in  anger  (in  Persian), "  If 
thou  my  wife,  three  divorces, "  suppressing  the  word  "  art : "  his 
wife  shall  not  be  divorced,  because  he  did  not  refer  the  divorce  to  her. 

1980.  (1080.)  A  man,  in  whose  presence  there  is  a  woman  covered 
over,  is  asked,  ^^  Is  this    covered   woman  thy  wife,"  and  then  he  is 


ON   IMMEDIATE   DIYOROE.  65 

asked  ''take  an  oath  (and  saj),  if  thou  hast  any  wife  excepting  this 
woman  (she  is  thrice  divorced);  "  the  man  then  takes  an  oath  with  three 
diyorees  that  he  has  no  other  wife  except  this  one  (that  is,  he  takes  an 
oath  saying  "  If  I  have  a  wife  except  the  one  present^  then  she  is  divorced 
thrice) ;  "  the  fact  is  that  the  woman  covered  over  is  a  stranger  to  him 
(and  he  has  a  wife  at  home)  :  the  learned  lawyers  have  differed  regai*ding 
tliis  matter;  but  the  Futwa  is,  that  his  wife  shall  become  divorced  so  far 
as  the  Kazee  is  concerned. 

1961.  (1031.)  And  so  if  a  man  marries  a  woman  at  Balkh,  and  the 
woman  goes  without  his  knowledge  to  Tirmiz ;  he  then  takes  an  oath  and 
says,  **  If  he  has  a  wife  at  Tirmiz,  then  she  is  divorced  :  "  his  wife  shall 
become  divorced  (although  he  is  ignorant  that  his  wife  is  at  Tirmiz,  and 
although  so  far  as  his  knowledge  goes  his  wife  is  at  Balkh). 

1982.  (1082.)  A  man  eats  bread  and  drinks  wine ;  he  then  says 
(in  Persian),  "  We  have  eaten  bread  and  drank  wine,  our  wives  with 
three ;  '*  then  after  the  man  stops,  another  man  says  to  him  '^  With 
three  divorces,''  and  the  (first  mentioned)  man  says,  ^'With  three 
divorces : "  his  wife  shall  not  become  divorced,  because  when  the  man 
finished  his  speech  and  stopped  a  while,  then  this  expression  (that  is, 
'^  With  three  divorces,")  becomes  a  fresh  expression  in  which  there  is  no 
reference  to  anybody. 

1983.  (1088.)  A  man  says  to  his  debtor,  «  Thy  wife  is  divorced,  if 
thou  dost  not  pay  my  debt  tliis  day ;  "  the  debtor  says,  '^  Yas  "  (instead  of 
yes;  nayim  instead  of  naam),  not  intending  an  (affirmative)  answer  :  but 
the  creditor  asks  him  to  say  "  Yes  '*  (or  ncLam)  and  he  says,  **  Yes,"  in- 
tending an  answer  (in  the  affirmative)  :  the  oath  shall  be  obligatory  ;  be- 
cause when  nothing  lengthy  intervened  between  the  question  and  tbe 
answer,  and  the  debtor  did  not  adopt  a  new  conversation,  the  whole  of 
the  conversation  must  be  taken  as  one  (connected  expression). 

1984.  (1084.)  A  man  says  to  another  (in  Persian),  "  Thy  wife  is 
divorced  from  tbee  with  three  divorces  that  thou  hast  not  done  this  thing" 
(that  is,  **  If  thou  hast  done  this  thing  ")  ;  the  other  man  says,  "  With  a 
thoasand  divorces ;  "  this  last  expression  shall  be  by  way  of  an  answer ;  so 
that  if  the  man  has  not  done  the  thing,  the  divorce  shall  not  be  caused. 

1986.    (1085.)     A   man  is  asked  by   another,  ^*  Hast   thou  a  wife, 
except  a  divorced  one ;  '*  he  says  "  No :  "  his  wife  shall  become  divorced* 
But  if  he  says  **  Yes/'  then  his  wife  shall  not  be  divorced;  because  ia  the 
9 


66  THR  TAGORB  LAW  LECTUBRS,  1891-92. 

firsfc  case,  the  Imsband  (in  effect)  sajs,  ^'  I  have  no  wife,  except  a  divorced 
wife;  "  and  if  he  says  so»  his  wife  becomes  divorced.  Bat  in  the  second 
case,  he  (in  effect)  says,  "  My  wife  is  not  divorced ;  *'  and  if  he  says  so,  his 
wife  shall  not  become  divorced. 

1986.  (1086.)  A  man  repeats  the  oath  of  another  (which  was  to  the 
effect)  that,  "  If  thou  shalt  enter  the  house,  then  my  wife  is  divorced ;  *' 
then  when  he  arrives  at  the  word  "  divorce,"  his  own  wife  occurs  to 
his  mind  :  the  learned  lawyers  have  said  that  if  the  man,  at  the  time  of 
mentioning  the  word  "  divorce,"  intends  to  give  up  repeating  the  story 
and  to  begin  the  declaration  of  a  divorce  (as  on  his  own  behalf) ; 
and  if  his  expression  is  such  that  a  divorce  could  thereby  be  caused  on  his 
own  wife  (that  is,  if  the  circumstances  are  such  that  divorce  could  be 
caused  on  his  wife,  e.  9.,  his  having  an  undivorced  wife),  the  divorce 
shall  be  caused  on  his  own  wife  ;  but  if  he  does  not  intend  to  begin  the 
declaration  of  a  divorce  (as  on  his  own  behalf),  the  divorce  shall  not 
be  caused  on  his  own  wife,  but  (on  the  other  hand)  his  expression  shall 
be  referred  to  what  he  was  (reporting  or)  repeating.  (See  also  paragraph 
1432  po9t). 

1987.  (1087.)  A  man  says  to  his  wife,  '*  Thou  art  divorced "  and 
■tops  a  while,  and  then  says,  "  Thrice  :  "  then  if  he  stopped  merely  to  take 
breath,  his  wife  shall  be  divorced  thrice  ;  but  if  the  stop  was  not  for  the 
purpose  of  taking  breath,  one  divorce  shall  be  caused  ;  because  stopping 
merely  for  the  purpose  of  taking  breath  does  not  disjoin  the  sentences. 

1988.  (1088.)  A  man  says  to  his  wife,  '*  Thou  art  divorced  "  and  stops 
a  while  ;  he  is  then  asked,  "  How  many  times,  "  and  he  says,  **  Thrice :  " 
Aboo  Yusoof,  on  whom  be  peace,  says,  his  wife  shall  be  thrice  divorced. 
The  learned  lawyers  have  said  that  it  is  possible  that  this  view  is  specially 
that  of  Aboo  Yusoof,  on  whom  be  peace  (and  not  that  of  Aboo  Huneefa), 
because  according  to  him  (Aboo  Yusoof)  if  a  man  says  to  his  wife,  "  Thou 
art  divorced,"  and  intends  three  divorces,  his  intention  is  correct  (see 
Noor-ool  Anwar,  page  29,  line  6,  and  page  151,  line  3,  from  the  bottom): 
and  it  is  possible  that  this  view  might  be  that  of  Aboo  Huneefa,  on  whom 
be  peace  (see  paragraph  988),  because,  according  to  him,  if  a  man  divorcos 
his  wife,  and  then  says,  "  1  have  rendered  the  divorce  (triple  or)  three 
divorces,"  the  divorce  shall  become  three  divorces. 

1989.  (1089.)  A  man  says  to  his  wife,  "  Thou  art  divorced  once ; " 
the   woman   says  to  him  (in   Persian),  *^  One  thousand,"  and   he  says 


ON    IMMKDTATR    DIVORCE.  67 

(in  Persian),  "  A  thousand,'*  intending  thereby   the  causing  of  divorce  : 
the  divorce  shall  be  as  he  intended  (that  is,  three  divorces  shall  be  caused). 

1990.  (1090.)  A  man  says  to  his  wife,  *'  Thou  art  divorced,  such  as 
cannot  be  caused  on  thee,"  or  '^  such  as  is  not  valid  on  thee : ''  she  shall 
(still)  be  divorced  once  (the  words  used  after  the  word  "  divorced  *'  being 
considered  surplusage). 

So  also  if  he  says,  "Thou  art  divorced  thrice,  such  as  cannot  be 
caused  on  thee,*'  or  "  such  as  are  nob  valid  on  thee :  "  she  shall  be  divorced 
thrice  (tlie  words  used  after  the  word  '*  thrice,"  being  considered  sur- 
plusage). 

1991.  (1091.)  A  man  snys  to  his  wife,  *'Thou  art  divorced  at 
Mecca,"  whilst  they  are  not  in  Mecca  :  the  woman  shall  become  instantly 
divorced.  And  so  if  he  says,  "Tbou  art  divorced  in  such  and  such 
clothes,"  whilst  she  is  in  different  clothes  :  the  divorce  shall  be  caused 
instantly. 

[Note. — *'  Thou  art  divorced  at  Mecca  "  may  mean,  "  As  long  as  thou 
sbalt  remain  in  Mecca  and  not  outside."  So  also  "  Thou  art  divorced  in 
SQch  and  such  clothes  "  may  mean,  "  Thou  shalt  be  divorced  as  long  as  thou 
shalt  have  those  clothes  on,  and  not  be  divorced  when  thou  shalt  not 
have  those  clothes  on."  This  is  the  meaning  of  which  those  expressions 
are  susceptible,  but  the  principle  which  is  here  enunciated  depends  upon 
the  following  explanation  : — See  Rudd-ool  Moohtar,  Vol.  II,  page  721: 
if  a  man  says  "  Thou  art  divorced  at  Mecca,"  or  "  In  the  house," 
or  "  In  the  shade,"  or  "  In  the  sun,"  or  "  In  such  and  such  clothes," 
this  is  Tunjeez  or  causing  divorce  instantaneously  and  not  Taleek  or 
caasing  divorce  conditionally  ;  because  although  those  expressions  really 
mean  a  conditional  divorce,  still  the  condition  there  is  not  valid.  A 
condition  to  be  good  and  valid  must  relate  to  a  thing  which  is  at 
present  non-existent,  but  which  is  to  come  into  existence  afterwards,  and 
sach  a  thing  consists  of  an  act  or  time,  as  for  instance,  when  a  man 
says,  "Thou  art  divorced  on  thy  entry  into  Mecca,"  or  **0n  thy 
putting  on  such  and  such  clothes ;  "  in  which  instances,  the  act  is  at  present 
non-existent  but  is  to  come  into  existence  hereafter ;  these  instances  mean 
''  If  thou  shalt  enter  Mecca  or  put  on  such  and  such  clothes,  then  thou  art 
divorced : "  and  for  instance  when  the  man  says,  "  Thou  art  divorced 
to-morrow,"  that  means  "When  to-morrow  comes,  or  if  thou  shalt  live  till 
to-morrow,  thou  art  divorced."  But  places  or  clothes  are  already  in  exis- 
tence, and^  therefore,  to  make  divorce  conditional  on  such  things  is  not  valid 


68  THB  TAGOBE  LAW  LECTURES,  1891-92. 

on  account  of  the  condition  being  bad;  the  condition  is  void,  and,  therefore, 
divorce  tnkes  place  at  once.  Also  in  the  case  where  the  man  having  nsed 
the  expression  "  Thou  art  divorced  at  Mecca/*  or  "  In  such  and  such 
clothes,**  says,  he  meant,  **on  the  entry  into  Mecca,**  or  "on  thy  potting  on 
such  and  such  clothes,*'  he  shall  not  be  confirmed  by  the  Eazee,  who  will  give 
no  effect  to  this  explanation,  although  as  between  the  man  and  his  God 
he  might  be  right  in  his  explanation.  There  is  a  rule  in  connection  with 
conditions  worth  remembering  and  that  is  this,  a  condition  dependent  on 
a  thing  which  is  kain  or  already  in  existence  is  no  condition  at  all ;  as  for 
instance,  where  a  man  says,  "  If  the  heavens  are  above  or  if  the  sun  has 
light,  then  thou  art  divorced  :**  here  the  divoroe  is  caused  at  once]. 

And  if  he  says,  ^'  Thou  art  divorced  in  the  night  and  the  day  :  **  she 
shall  be  divorced  once.  And  if  he  says,  "  Thou  art  divorced  iti  the  night 
and  in  the  day,*'  two  divorces  shall  be  caused. 

[Note. — See  Rudd-ool  Moohtar,  Vol.  II,  page  724.  The  expression 
"  Thou  art  divorced  in  the  night  and  the  day,**  or  "  In  the  day  and 
the  night,**  means  that  the  same  divorce  is  to  operate  in  the  night 
and  the  day,  because  in  these  expressions  the  word  '*  divorce/*  goverus 
both  "  night  **  and  "  day  ;  "  but  the  expression,  '*  Thou  art  divorced  in 
the  night  and  in  the  day,**  means  "  Thou  art  divorced  in  the  day  and 
thou  art  divorced  in  the  night,'*  and  therefore  here  divorce  is  repeated : 
two  divorces  shall,  therefore,  be  caused  in  the  latter  case  and  one  divorce 
in  the  former  case]. . 

And  if  he  says  to  his  wife  at  night,  '^  T^hou  art  divorced  in  thy  night 
and  thy  day  :  **  she  shall  be  divorced  instantly.  And  if  he  says  to  his  wife 
at  night,  "  Thou  art  divorced  in  thy  day  and  in  thy  night  2  **  she  shall 
be  divorced  on  the  morrow. 

And  if  he  says,  *^  Thou  art  divorced  to-morrow  this  day,**  she  shall 
be  divorced  on  the  morrow,  and  the  mention  of  *'  This  day,**  shall  be 
void.  And  if  he  says,  "  Thou  art  divorced  this  day,  to-morrow,**  she  shall 
be  divorced  instantly  (and  the  use  of  the  word  "  to-morrow,**  would  go 
for  nothing] •  And  the  principle  in  regard  to  this  matter  is  that,  if  the 
husband  mentions  two  portions  of  time  so  that  there  is  no  conjunction 
between  the  two,  the  divorce  shall  be  caused  in  that  portion  of  the  time 
which  is  first  mentioned,  and  the  mention  of  the  second  portion  of  the 
time  shall  be  void. 

[Note. — See  Eudd-ool  Moohtar,  Vol.11,  page  724.  When  the  bus- 
band  refers  the  divorce  to  two  portions  of  time,  one  of   which  is  present 


ON   imffBDIATR   DIVORCE.  69 

and  tbe  other  is  to  come,  and  uses  tbe  conjanciioii  '^and/'  then,  if  be 
begins  with  the  time  which  is  present,  only  one  divorce  shall  be  caused, 
e.g.y  if  tbe  man  says,  "  Tliou  art  divorced  to-day  and  to-morrow,*'  then  only 
one  divorce  shall  be  caused  ;  because  ''  to-day  "  being  mentioned  first,  the 
divorce  takes  effect  immediately,  and  the  same  divorce  continues  "  to- 
morrow "  also.  But  if  he  begins  with  the  future,  and  uses  the  present 
time  afterwards,  and  couples  both  portions  of  the  time  with  the  con- 
junction "and, "  then  two  divorces  shall  take  place,  e.g.,  "Thou  art 
divorced  to-morrow  and  to-day,'*  this  means,  "  When  to-morrow  shall 
arrive  thou  art  divorced  and  thou  art  divorced  to-day  also.'*  But  if  he 
says,  "  Thou  art  divorced  to-day,  and  after  to-morrow,"  then  two  divorces 
Bball  be  caused;  one  divorce  shall  be  caused  "to-day,"  and  the  other 
divorce  shall  be  caused  "the  day  after  to-morrow;"  because  when  an 
interval  of  one  day  is  allowed  without  a  divorce,  then  the  intention  is 
that  a  second  divorce  shall  be  caused  on  the  day  after  that  interval.  If 
the  man  says  on  the  last  day  of  the  month,  "  'i*hou  art  divorced  to-day 
and  the  beginning  of  the  next  month,"  then  one  divorce  shall  be  caused  ; 
bat  if  be  expresses  himself  so,  not  on  the  last  day  of  the  month  but  before 
the  last  day,  so  as  to  allow  an  interval  of  time  between  "  to-day,"  and 
the  first  day  of  the  next  month,  then  two  divorces  shall  be  caused.  If  he 
uses  the  expression  without  the  conjunction  "  and,"  then  the  rule  is  set 
out  in  the  text.     See  also  paragraph,  1142  post], 

1992.  (1092.)  And  if  he  says,  "  Thou  art  divorced  this  day  and 
when  to-morrow  comes,"  one  divorce  shall  be  caused  instantly,  and  when 
the  morrow  comes  and  she  is  in  her  Iddut  (which  she  would  be  in,  if  the 
husband  has  had  intercourse  with  her),  tlien  another  divorce  shall  be 
caused.     (See  also  Budd-ool  Moohtar,  Yol.  II,  page  725). 

1993-  (1093.)  A  man  says  in  the  month  of  Shaban,  "Thou  art" 
(that  is,  shalt  become)  divorced  in  the  Bamzan  (which  follows  Shaban)  : 
she  shall  become  divorced  as  soon  as  ihe  sun  sinks  on  the  last  day  of 
Shaban.  But  if  he  says,  "  Thou  art  divorced  to-moiTow,"  she  shall 
become  divorced  as  soon  as  the  morning  of  the  morrow  arrives  (because 
in  common  parlance,  "  to-morrow"  means  the  day  which  is  to  arrive  after 
the  night;  whereas  month  commences  from  the  time  the  moon  is  visible). 

And  if  he  says,  "  Thou  art  divorced  in  the  summer  (-Sjt/*),"  or  "  In 
tbe  winter  (S^iia),"  or  "In  the  spring  (iJwfcee),"  or  "In  the  autumn 
{Kiureef)"  the  divorce  shall  not  be  caused  unless  in  the  time  specified. 
And  the  learned  lawyers  have  discussed  how  to  distinguish  these  times : 


70  THR  TAQORB  LAW  LE0TURE8,  1891-92. 

some  of  tbem  have  said  that  snmmer  (or  Syf)  is  a  season  in  which 
people  are  not  under  the  necessity  of  using  clothing  with  cotton  padding 
and  of  warming  themselves  before  the  fire ;  and  winter  (or  Shita)  is  the 
season  in  which  people  are  under  the  necessity  of  using  clothing  with 
cotton  padding  and  of  warming  themselves  before  the  fir^ ;  and  spring 
(Rubee)  and  autumn  (Khureef)  are  seasons  in  which  people  are  under  the 
necessity  of  using  clothing  with  cotton  padding,  but  not  of  warming  them- 
selves before  the  fire ;  except  that  spring  {Rvbee)  is  at  the  end  of  winter 
and  autumn  (Khureef)  is  at  the  end  of  summer. 

And  others  have  said  that  summer  or  Syf  is  the  season  when 
foliage  and  fruit  exist  on  trees;  and  spring  (Ruhee)  is  the  time  when 
there  is  foliage  on  the  trees,  but  not  fruit;  and  so  is  the  autumn 
(Khureef). 

1994.  (1094.)  A  man  purchases  his  wife :  no  divorce  whether  con- 
ditional or  instantaneous  shall  be  caused  on  her,  until  she  remains  tbe 
property  of  her  husband  (that  is,  if  the  man  having  married  the  slave 
girl  of  another,  says  to  her  for  instance,  "  If  I  purchase  thee,  or  if  thou 
shouldst  enter  the  house,  thou  art  divorced,''  then  if  he  purchases  her, 
the  effect  of  the  purchase  is  to  avoid  the  marriage,  <and  the  divorce,  which 
assumes  a  valid  marriage,  will  not  take  place,  although  at  the  time 
he  had  pronounced  the  conditional  divorce,  he  was  within  bis  right  in 
doing  SO;  so,  after  the  purchase,  an  instantaneous  divorce,  that  is,  one  not 
dependent  on  any  condition,  would  not  take  effect,  because  the  marriage 
was  put  an  end  to  by  the  purchase;  so  also  if  after  purchase  he  gives  her  a 
conditional  divorce,  the  divorce  shall  not  be  caused;  because  there  must  be 
ownership  of  marriage  or  If  j7X:-t-J^iAaA  in  order  to  validate  a  Taleek  or 
conditional  divorce  ;  but  if  he  says,  **  If  thou  enter  the  house,  then  tbou 
shalt  be  free,"  then  emancipation  shall  be  caused,  because  he  has  got 
ownership  of  person  or  Milk-i-Rukba).     (See  paragraph  1888). 

So  also  if  the  husband  (having  married  the  slave  girl  of  another) 
has  made  Eela  with  her  (saying  for  instance,  "  I  will  not  have  intercourse 
with  thee  for  four  months,  the  effect  of  which  is  that  after  four  months, 
one  divorce  is  caused),  and  he  then  purchases  her,  and  then  the  period 
of  the  £ela  expires  (that  is,  the  four  months  as  aforesaid  expire  after  the 
purchase),  divorce  (which  would  have  been  otherwise  caused  by  the  expiry 
of  four  months)  shall  not  be  caused  on  her  (by  reason  of  the  purchase 
because  as  soon  as  the  husband  purchases  his  wife,  the  relationship  of  hus- 
band and  wife  ceases;  and  therefore  the  effect  of  the  Eela  no  longer  subsists; 


ON   IMMEDIATB  DIVORCB.  71 

and  there  is  consequently  no  divorce  after  the  expiry  of  the  four  months) 
(See  paragmpb  1890). 

And  if  a  man,  after  haviug  purchased  his  wife  (such  purchase  having 
the  effect  of  dissolving  the  marriage)  emancipates  ber  (before  the  time  of 
the  IddtU  has  expired,  on  account  of  tbe  dissolution  of  tbe  marriage),  his 
divorce  shall  be  operative  on  ber  whetber  tbe  divorce  be  conditional  or 
instantaneous  (that  is  to  say,  a  man  maiTies  tbe  slave  girl  of  another, 
and  whilst  she  is  in  bis  marriage,  he  says  to  her,  ^'  If  thou  enter  the  house, 
thoa  art  divorced  ;  "  tben  he  purchases  her  after  having  intercourse  with 
Ler  :  tbe  purcbase  dissolves  tbe  marriage ;  but  the  woman  shall  be  lawful 
to  him  by  rigbt  of  ownership ;  but  be  cannot  give  her  in  marriage  to 
another  man  until  tbe  Iddut  expires,  because  intercourse  renders  Iddut 
obligatory,  although  be  himself  can  have  sexual  intercourse  with  her 
without  waiting  for  the  expiry  of  the  Iddut :  if  he  emancipates  her  before 
the  expiry  of  tbe  period  which  would  have  been  her  Jd^ti/,  if  he  had  given 
ber  in  marriage  to  somebody  else,  then  he  can  divorce  her  treating  ber  as 
being  in  ber  Iddut ;  so  that  if  she  enters  tbe  house,  then  the  divorce  condi- 
tionally pronounced  on  her  whilst  she  was  his  wife  would  be  caused ;  he 
can  also  give  her  an  instantaneous  divorce  or  a  fresh  conditional  divorce. 
See  Itudd-ool  Moohtar,  Vol.  II,  page  702,  line  27,  &c.  Tbe  author  of  tbe 
Sadd-ool  Moohtar  after  noticing  diversity  in  views  on  this  point,  says 
that  tbe  Futwa  is  according  to  tbe  rule  which  holds  that  the  divorce  by 
the  husband  shall  not  be  caused,  and  he  says  this  is  the  view  taken  by 
Eazee  Khan.  The  passage  of  the  Fatawai  Eazi  Khan,  here  referred 
to  by  the  Rudd-ool  Moohtar  is  in  paragraph  1888). 

1996.  (1095.)  And  if  a  slave  makes  the  divorce  of  his  free  wife 
(with  whom  he  has  had  intercourse)  dependent  on  a  condition,  or  if  he 
says  to  her,  *'  Thou  art  divorced  according  to  tbe  Soonnut  (or  tradition  of 
the  prophet) ''  and  tbe  wife  then  becomes  the  owner  of  her  husband  (the 
consequence  of  such  ownership  being  that  the  marriage  becomes  dissolved; 
and  also  in  tbe  event  of  having  had  intercourse  with  her,  she  is  obliged  to 
observe  ih&Iddut)  and  the  husband  then  divorces  her  (within  the  period  of 
the  Iddut)  or  the  condition  of  the  conditional  divorce  comes  to  be  realised 
(within  the  period  of  the  Iddut)  or  the  time  of  the  tradition  arrives  (that 
is,  the  time  of  tbe  divorce  of  the  kind  called  traditionary  or  Soonnee  divorce 
arrives,  such  time  being  the  period  of  purity  after  the  monthly  course, 
because  Soonnee  divorce  is  one  that  takes  place  in  a  period  of  purity  in 
which  period  there  has  been  no  sexual  intercourse),  tbe  divorce  shall 


72  THB  TAOORE  LAW  LKCTURES,  1891-92. 

be  cansed  on  ber  as  long  as  (i.e.,  if  or  proTided)  sbe  is  in  ber  Iddut  (because 
it  is  after  the  conclasioii  of  tbe  Iddut  that  tlie  relationship  is  completely 
cat  off).    (See  paragraphs  1892,  1893  and  1894). 

1996.  (1096.)  A  man  says  to  bis  wife,  **  I  am  divorced  from  thee'' 
(instead  of  saying,  "  Thou  art  divorced  from  me,"  that  is,  he  says  the 
reverse  of  what  is  ordinarily  said,  the  apparent  meaning  of  the  expression 
used  by  the  husband  being  that  the  woman  caused  tbe  divorce  on  the 
man),  intending  divorce  thereby,  the  divorce  shall  not  be  caused. 

But  if  he  snys,  "  I  am  separated  {Bain)  from  thee,"  or  **  I  am  un- 
lawful to  thee,"  intending  divorce  thereby,  divorce  shall  be  caused  (be- 
cause when  the  wife  gets  divorced  from  the  husband,  the  result  is  that 
the  man  gets  separated  from  and  becomes  unlawful  to  tbe  woman). 

1997.  (1 097.)  If  a  Moortud  (or  an  apostate)  enters  the  Dar-ool  Hurub 
(or  migrates  there)  and  then  divorces  his  wife  (who  is  in  the  Dar-oollslam), 
the  divorce  shall  not  be  caused  (because  by  becoming  a  Mooriud,  he 
forfeits  his  life  and  property,  and  the  Kazee  shall  decree  that  he  must 
be  treated  as  dead,  and  a  divorce  by  the  dead  is  not  effectual).  But 
if  he  returns  as  a  Moslem,  whilst  the  woman  is  in  her  7d<2iA^  for  him 
(that  is  the  Iddut  as  of  his  death),  then  a  divorce  (which  be  might  now 
give)  shall  be  operative.  (See  Rudd-ool  Moohtar,  Vol.  II,  page  643,  and 
Vol.  Ill,  page  465,  Chapter  on  the  Apostate  or  Mooftud).  (See  paragraph 
1898). 

1998.  (1098.)  And  when  a  female  Moortud  goes  into  the  Dar-ool 
Hurub  and  her  husband  afterwards  divorces  her  (from  the  Dar-ool  Islam) 
and  she  then,  before  she  gets  her  menses,  returns  to  the  Dar-ool  Islam  ns 
a  Moslem,  then,  according  to  Aboo  Huneefa,  on  whom  be  peace,  the 
divorce  given  by  the  husband  shall  not  take  effect ;  but  according  to  his 
two  disciples,  the  divorce  shall  take  effect.  (See  Budd-ool  Moohtar, 
Vol.  II,  page  643).    (See  paragraph  1899).     God  knows  best. 


Section  II. 


OK  DIVORCE  BY  INDIRECT  EXPRESSIONS  (OR  KINAYAA.T)  AND 
IMPLICATIONS  (OR  MUDLOOLAT). 

1999.  (1099.)  Kinayaai  (or  indirect  expressions;  are  words  which 
imply  divorce  without  the  divorce  being  expressly  mentioned  (or  denoted 
by  them),  and  they  consist  of  three  classes ;  and  the  state  (or  circum- 
stances under  which  a  man  is  impelled  or  has  resort  to  indirect  expressions 
in  giving  a  divorce  also)  consists  of  three  classes. 


ON  IMMEDIATS  DIYOBCK.  78 

[NoTB.-.SeeBadd-oolMoohtaryol.  11^  pages  761  to  7o5.  Indirect 
ezpresBionfl  of  divorce  are  such  expressions  as  are  not  designed  and  meant 
for  divorce,  but  divorce  can  be  signified  by  them,  and  are  suck  that  they 
might  mean  divorce  and  might  also  mean  something  else*  They  are 
expressions  which,  if  used  in  answer  to  a  request  for  divorce,  mean  an 
affirmative  answer,  although  at  the  same  time  they  are  capable  of  some 
other  meaning.  They  are  of  three  classes :  The  first  class  consists  of 
expressions  which  might  imply  affirmance  or  Ijahut  of  divorce  and  might 
also  mean  Eudd  or  negativing  of  divorce.  The  second  class  consists  of 
expressions  which  might  imply  affirmance  or  IjaJmt  of  divorce  and 
might  also  mean  8ubb  or  abuse.  The  third  class  consists  of  expressions 
which  might  imply  affirmance  or  l^abiU  of  divorce,  and  do  not  imply 
Budd  or  negativing  of  divorce,  or  Subb  or  abuse,  but  might  also  mean 
something  different  from  divorce.  The  First  Class  consists  of  the  fol- 
lowing expressions : — Ookhroqjee,  i.e.,  "  Do  thou  get  away  from  the  house ;" 
bhubee,  or  "Do  thou  go  away  from  this  place;  **  Koomee,  or  "Do  thou  stand 
op  ; "  Tuqunnyee,  or  "  Do  thou  cover  thy  face  with  a  veil ;  **  Tukhummnry, 
or  "Do  thou  put  on  the  hair  band,  or  cover  thy  head;"  iBtutiree,  or  "  Hide 
thyself; "  or  IntiqiUe,  or  "  Do  thou  transfer  thyself  from  this  house ; "  In* 
tuUqee,  or  "Do  thou  walk  out;"  Ooghroobee,  or  "Be  thou  far  from  me;** 
AiMubee,  or  "Be  thou  away  from  me.  These  expressions  might  mean 
acceptance  of  the  request  of  divorce  and  might  also  mean  negativing  it, 
i.e.y  repudiating  the  request:  e.g.,  OokiroqJM,  or  "  Do  tbou  get  away  from 
this  house"  might  mean  "  Very  well,  I  divorce  thee,  get  away  from  this 
house;"  or  it  might  mean  *<No,  I  will  not  divorce,  get  away  from 
this  house,  from  my  presence,  so  that  the  quarrel  might  come  to  an  end : " 
and  so  as  regards  the  rest.  The  Second  Class  consists  of  the  following  ex- 
pressions i—Kkideeutoon,  or  "  Thou  art  unoccupied;"  Bureenioon,  or  "Thou 
art  devoid ; "  Huramoon,  or  ^  Thou  art  unlawful; "  Bainoon,  or  '<  Thou  art 
separate ; "  and  words  which  are  of  the  same  meaning  are  ButttUoon, 
or  **  Thou  art  cut  off ; "  BuUuloan  or  "  Cut  off:  "  these  expressions  might 
mean  acceptance  of  the  request  of  divorce  and  might  also  mean  abuse, 
e.9.,  Kkvleewtoon  might  mean  "Thou  art  unoccupied  with  nikah*'  or 
might  mean  "Thou art  unoccupied  with  goodness;"  Bureet^toon  might 
mean  "Thou  art  devoid  of  nikah'*  or  might  mean,  "Thou  art  devoid 
of  goodness ; "  HMramoon  might  mean,  "  Thou  art  unlawful  to  me  "  or 
might  mean,  "  Thou  art  an  unlawful  thing  like  the  pig ;"  Bainoan  might 
mean,  "  Thou  art  separate  from  me,"  or  might  mean,  "  Thou  art  separate 
10 


74  TU£  TAGOB£  LAW  LBCTUKB8^  .189J-92. 

from  goodness/'  The  Third  Class  consists  of  the  following  expressions:— 
AUti4dee,  or  ^^  Observe  thy  Iddut"  which  means,  **  I  have  divorced  yon,  now 
observe  the  Iddvi ; "  another  meaning  of  the  expression  is  ^^  Connt  the 
favors  which  I  have  shewn,"  and  in  this  sense  the  expression  has  no 
connection  with  divorce.  Istvhriyee  Buhumukai,  or  ^^  Purify  thy  womb ; '' 
it  means,  **  I  have  divorced  you,  purify  the  womb  by  observing  the  Iddut 
to  be  enabled  to  marry  somebody  else ; "  another  meaning  of  the  expres- 
sion is,  '^  I  will  not  divorce  yon  ;  purify  the  womb  and  wait  until  yo<i  get 
the  next  menses,  and  after  that  I  will  divorce  you/'  Antai  wMdutocnh 
or,  "Thou  art  one ;  "  it  means  "  Thou  art  divorced  by  one  divorce; *'  it 
might  also  mean,  <<  Thou  art  singular  in  goodness,  or  the  best  of  thy 
kind."  Antai  hoorrutoon  or  "Thou  art  free;"  it  means  "Thou  art 
divorced,  and  therefore  freed  from  the  restraint  of  marriage ; "  it  might 
also  mean,  " Thou  art  not  the  slave  of  anybody."  Ikktaree,  or  "  Choose; " 
it  means  "  I  have  given  you  option  to  divorce  yourself,  if  you  choose 
divorce  yourself ; "  it  might  also  mean,  "  Select  some  work."  Amrokai 
hu  Yudaikai,  or  ^'  Thy  power  is  in  thy  hands;  "  it  means  " I  have  vested 
tUee  with  authority  to  divorce  thyself ;  "  it  might  also  mean,  '^  I  have 
authorised  thee  to  do  some  work."  Surruhtokaiy  or  "  I  have  turned  thee 
out ; "  it  means,  "  I  have  divorced  thee,  and,  therefore,  turned  thee  out 
of  the  house;"  it  might  also  mean,  "I  have  turned  thee  out  of  the 
house  for  some  business."  Faruktokai,  or  "I  have  separated  thee;" 
it  means,  '^  I  have  divorced  thee  and  separated  thee ; "  it  might  also 
mean,  "I  have  assigned  to  thee  a  separate  room."  The  rules 
with  reference  to  the  use  of  these  expressions  are  these :  When  the 
husband  is  in  the  state  of  what  is  called  Beza,  that  is,  a  state  when  he 
wUls  divorce,  not  being  in  a  state  of  anger,  and  there  being  no  MazaJeura^ 
i^Tulak,  or  discussion  or  topic  of  divorce,  then  the  use  of  all  the  three 
classes  of  expressions  mentioned  above,  must,  in  order  to  cause  divorce, 
be  accompanied  with  intention  to  divorce,  so  that  if  the  husband  has 
formed  an  intention  to  cause  divorce  by  those  expressions,  then  divorce 
shall  be  caused,  not  otherwise;  and  the  husband's  word  on  his  oath 
shall  be  accepted  when  he  says,  he  had  no  intention  to  divorce.  When 
the  husband  is  in  a  state  of  anger  and  uses  any  of  the  expressions  of 
the  three  classes  mentioned  above,  then  the  rule  is  this  :-*that  if  the 
husband  uses  expressions  of  the  first  or  the  second  class,  i;{s.,  expressions 
which  admit  of  the  alternative  meaning  of  Budd  or  negativing  divorce, 
x>r  of  Subb  or  abuse,  then  it  is  necessary,  in  order  th^t  divorce  might  be 


ON   IMMEDIATE   BIVOBCB.  75 

caosedy  ihat  the  hasband  should  have  the  intention  to  caase  divorce ;  ao  that 
divorce  shall  be  caused  if  he  has  such  an  intention^  and  shall  not  be  caused 
if  he  has  no  such  intention :  if  he  uses  expressions  of  the  third  class,  m9., 
expressions  which  do  not  admit  of  Budd  or  StM,  then  it  is  not  necessary 
that  he  should  have  an  intention  to  divorce,  and  the  use  of  those  expressions 
shall  cause  divorce  even  if  he  has  no  intention  to  cause,  or  has  intention 
not  to  cause  divorce.  When  there  is  going  on  what  is  called  a  Maaaktji/ra* 
i-Tulaky  or  discussion  or  topic  of  divorce^  then  if  the  husband  uses  the  first 
class  of  expressions,  viz.^  those  which  admit  of  JRudd  or  negativing  of  the 
divorce,  then  in  order  that  divorce  might  be  caused,  it  is  necessary  that 
he  should  have  an  intention  to  cause  divorce ;  but  if  he  udiss  expressions 
of  the  other  two  classes,  then  intention  is  not  necessary,  and  divorce  shall 
be  caused  without  intention.  As  regards  the  expressions  Ikhtaree,  or 
"  Choose,"  and  Amrokai  6u  Yudaikai,  or  "  Thy  power  is  in  thy  hands," 
the  effect  of  these  is  that  when  the  husband  uses  these  expressions  divorce 
II  not  caused,  but  the  wife  becomes  vested  with  authority  to  divorce  herself, 
aad  divorce  can  only  be  caused  when  she,  in  consequence  of  such  authority, 
divorces  herself.  Some  of  the  authors  have  made  a  mistake  in  this  matter 
irhen  they  have  laid  down  that  the  use  of  those  expressions  of  them- 
selves causes  divorce  on  the  wife  without  an  act  on  the  part  of  the  wife  i 
the  correct  view  is,  that  the  wife  gets  the  authority  to  divorce  herself, 
and  she  does  not  become  divorced  until  she  exercised  that  authority  and 
divorces  herself]  • 

20OO.  (1100.)  One  is  a  simple  state  and  that  is  the  state  of  the 
hasband's  will  (or  act  of  the  mind  to  divorce,  as  contradistinguished 
from  the  circumstances  of  anger  and  dispute,  &c.,  relating  to  the  other 
two  classes). 

9001.  (1101.)  The  other  state  is  when  the  subject  of  divorce  is 
going  on,  and  this  is  when  the  woman  asks  for  her  divorce,  or  when 
somebody  besides  her  asks  for  her  divorce. 

2002.    (1102.)    And  the  third  state  is  a  state  of  anger  and  quarrel. 

2003»  (1103.)  In  the  state  where  the  husband  wills  a  divorce  (that 
is,  the  first  state)  a  divorce  shall  not  be  caused  by  any  indirect  expression 
unless  he  has  an  intention  to  cause  divorce ;  and  if  the  husband  says,  '^I 
did  not  intend  divorce  by  that  (that  is,  by  the  indirect  expression) ''  the 
word  to  be  accepted  shall  be  his  word* 

2004.    (1104.)    And  in  the  second  state,  that  is,  when  the  subject  of 


76  THB  TAGOBE  LAW  LKCTUBES^  1891-92. 

divorce  is  being  discussed,  divorce  shall  be  caused  by  eight  expressions ; 
and  if  the  husband  says,  **  I  did  not  intend  divorce  (by  using  those 
indirect  expressions) "  he  shall  not  be  confirmed  by  the  Eazee :  these 
eight  expressions  are,  (1)  '^Thou  art  unoccupied''  {KAtdeeiUoan,  that 
is  to  say,  **  Do  as  thou  likest :  "  an  animal  is  free  when  it  is  let  loose  to 
roam  about  at  will) ;  (2)  ^^Thou  art  released  (or  devoid,  Bu/reeutoon) ; " 
(3)  <<  Thou  art  cut  off  "  (BuUulaon)  ;  (4)   Thou  art  separate  "  {Bainnoon) ; 

(6)  Thou  art  unlawful "  {Huram) ;  (6)   "  Observe  thy  Iddtd  {AUuddee)  j  " 

(7)  "  Thy  power  is  in  thy  hands"  {dfnrokxibuyudaikai);  [8)*' Choose'' 
(Ikhtaree), 

[Note. — ^The  first  five  expressions  belong  to  the  second  class  of  the 
division  given  from  the  Budd-ool  Moohtar  in  the  note  to  paragraph  1099, 
and  the  last  three  expressions  belong  to  the  third  class.  The  last  two 
expressions  do  not  cause  divorce,  but  vest  the  wife  with  authority  to 
divorce  herself  as  explained  in  that  note.  See  also  paragraphs  1638  and 
1642  post]. 

2006.  (1105.)  And  in  a  state  of  anger  (on  the  part  of  the  husband), 
divorce  is  caused  by  three  out  of  these  eight  expresions  (even  without  any 
express  intention  on  his  part),  and  if  the  husband  says,  **I  did  not 
intend  divorce,"  he  shall  not  be  confirmed  by  the  EAzee;  and  these  three 
expressions  are  '<  Observe  thy  IddtU;**  ^^Thy  power  is  in  thy  hands ;" 
'<  Choose  (or  do  as  it  pleases  thee)."  And  as  regards  the  remaining  five, 
according  to  Aboo  Huneefa,  on  whom  be  peace,  if  the  husband  (after  using 
them)  says^  **  I  did  not  intend  divorce,"  then  divorce  shall  not  be  caused  and 
he  shall  be  confirmed  by  the  Eazee;  because  these  (five)  expressions, 
jjre  capable  of  being  used  as  terms  of  abuse,  and  shall,  therefore,  be 
referred  to  abuse,  in  a  state  of  anger  and  quarrel.  But  Aboo  Yusoof, 
on  whom  be  peace,  says  (that  the  husband  having,  in  a  state  of  anger, 
used  those  five  expressions),  if  he  says,  ^*  I  did  not  intend  divorce,"  he 
shall  not  be  confirmed  by  the  Eazee  (and  express  intention  as  regards 
these  expressions  when  used  in  a  state  of  anger  is  not  necessary),  in  the 
same  way  as  he  is  not  confirmed  when  the  matter  of  divorce  is  being 
discussed. 

[NoTB.— As  regards  the  expressions,  '*  Thy  power  is  in  thy  hands," 
or  **  Choose,"  the  rule  here  laid  down  is  subject  to  what  has  already  been 
stated  in  the  note  to  paragraphs  1099  and  1104,  viz.,  that  they  do  not 
operate  as  divorce,  but  vest  in  the  wife  the  authority  to  divorce  herself]. 

2006.    (1106.)    And  it  is  reported  in  the  work  called  the  Imla  from 


OK   IMMBDIATB   DIVORCE.  77 

Aboo  Yasoof,  on  whom  be  peace,  that  he  has  added  four  other  expressions 
to  these  five  expressions,  and  these  f  onr  expressions  are,  (1)  **  I  have  no 
ownership  [Milk)  over  thee ; "  (2)  "  I  have  no  way  (or  power)  over  thee ;  *' 
(8)  I  have  set  free  (Khtdlaito)  thy  ways; ''  (4)  **  Mix  with  thy  relations  (see 
paragraph  1124  posf).^^  If  the  husband  uses  these  (foar)  expressions 
whilst  a  topic  of  divorce  is  going  on,  or  in  a  state  of  anger,  and  says,  ''  I 
did  not  intend  divorce^"  he  shall  be  confirmed  by  the  Kazee,  according  to 
the  view  of  Aboo  Hnneefa,  on  whom  be  peace ;  bnt  Aboo  Yasoof ,  on  whom 
be  peace,  says,  that  be  shall  not  be  confirmed  by  the  Eazee. 

2007-  (1107.)  And  besides  these  (twelve  indirect  expressions),  in  the 
case  of  other  indirect  expressions,  sach  for  instance  as  the  expressions-^ 
(l)<<Thy  string  is  on  thy  neck  {GAarib,  the  pit  at  the  Camels  back 
between  the  neck  and  the  hunch) ; "  (2)  '*  [Tiiqunwyee  or)  cover  thy  face 
with  veil ; "  (3)  **  {Tukhvmnmree  or)  put  on  the  hair  band  (that  is 
cover  thy  head) ; "  (4)  {Istuhriyee  or)  purify  thy  womb ; "  (5)  **  {Koamee 
or)  stand  up;'*  (6)  ^*  {Ookiroojee  or)  get  away  from  the  house;**  (7) 
*•  (Jziubee  or)  go  away  from  this  place ;  '*  (8)  "  {Intiqilee  or)  transfer  thyself 
from  this  house  ;**  (9) '<  (fnfuZtjrde  or)  walk  out;^*  (10)  <^  My  marriage  is 
not  with  thee;*'  (11)  ^*I  have  made  a  gift  of  thee  to  thy  relations, 
whether  those  relations  accept  or  not,**-— no  divorce  takes  place,  unless 
with  intention ;  and  when  the  husband  says  ''  I  did  not  intend  divorce,** 
he  shall  be  confirmed  by  the  Kazee. 

2006L  (1108.)  And  it  is  reported  from  Aboo  Huneefa,  on  whom  be 
peace,  that  if  the  husband  says,  *^  I  have  made  a  gift  of  thee  to  thy 
father,*'  or  "  to  thy  mother,**  or  "  for  husbands,**  and  intends  divorce, 
divorce  shall  be  caused ;  and  that  if  he  says,  <'  I  have  made  a  gift  of  thee 
to  thy  maternal  uncle,*'  or  •'  To  thy  brother,**  or  **  To  thy  sister,**  or 
**  To  80  and  so,  a  stranger,**  divorce  shall  not  be  caused  even  if  the  husband 
has  an  intention  to  divorce ;  and  that  similarly  if  he  says  '<  I  have  no 
necessity  for  thee  **  (no  divorce  shall  be  caused), 

2009.  (1109.)  And  it  is  reported  from  Mahomed,  on  whom  be  peace, 
that  if  the  husband  says  to  his  wife,  **  Go  away  from  this  place  **  (or  Ifluhee, 
which,  according  to  the  Arabic  idiom,  is  used  in  the  same  sense  as  Izhvbeej 
although  it  has  another  meaning,  vix.,  that  of  prosperity  see  Budd-ool 
Moohtar,  Vol.  II^  page  779)  and  has  the  intention  to  divorce,  then  this 
expression  amounts  to  a  divorce. 

2010.  (1110.)  And  if  whilst  the  {Maxakura  or)  subject  of  divorce  is 
going  on^  the  husband  says,  '*  I  have  separated  thee  (or  Faruklokad)  **  or 


78  THE  TAGOBE  LAW  LECTURES,  1891-92. 

<<I  haye  made  thee  separate  (or  bain),"  or  ^*l  have  parted  t&ee  (or 
Abwntokai)y^'  or  ''  I  have  separated  mjself  from  thee  or  Abunh  Minkai)y* 
or  ^*  There  is  no  authority  (or  Booltan)  for  me  over  thee/'  or  ^'  I  have 
abandoned  thee  (or  Sn/rruhtokai  just  as  animals  are  left  nntethered  to 
roam  about)/'  or  ^^  I  have  made  a  gift  of  thee  to  thyself  (or  WuJwbtokat)" 
or  "  I  have  left  {iurukto)  thy  divorce  (see  paragraph  9S0),"  or  **  I  have 
opened  the  way  of  thy  divorce  (see  paragraph  950)/'  or  ''  I  have  opened 
thy  way»"  or  '*  Thou  art  set  at  liberty  {Saiaba,  a  term  applied  to  a  she- 
camel  when  set  at  liberty  after  having  been  delivered  of  ten  female  colts, 
when  all  labor  is  dispensed  with) :  "  or  *'  Thou  art  a  free  woman  (or 
Hoarray  or  <^  Thou  knowest  thy  state  best/'  and  (in  which  last  case) 
the  woman  says,  '^  I  have  withheld  myself  from  thee : "  (in  all  these  cases) 
divorce  is  caused ;  and  if  the  man  says  I  did  not  intend  divorce,  he  shall  not 
be  confirmed  by  the  Eazee.  (Compare  paragraph  950  where  in  the  case  of 
two  expressions  which  are  repeated  in  paragraph  1110,  vist.,  Turukto 
Tuldkakai  and  KhvUaito  Svieela  Tulakakai,  it  is  stated  in  paragraph  950 
that  intention  is  necessary,  whereas  the  last  words  of  paragraph  1110 
point  to  a  contrary  inference ;  but  from  the  Budd-ool  Koohtar,  VoL  II, 
page  766,  it  appears  that  in  the  case  of  these  two  expressions  intention 
to  divorce  is  necessary  and  the  authority  given  by  the  Budd-ool  Moohtar 
is  the  Ehaneea). 

2011.  (1111)  And  if  the  husband  says  to  his  wife,  <<  There  is  no 
marriage  between  me  and  between  thee/'  or  says,  *'  There  does  not  remain 
marriage  between  me  and  between  thee ; "  or  says,  ^^  I  have  cancelled 
(Fusukhto)  thy  marriage,"  divorce  shall  be  caused,  if  he  has  an  intention. 

2012.  (1112.)  And  if  the  woman  says  to  her  husband,  ^' Thou  art 
not  my  husband  "  and  the  husband  says,  ^<  Thou  hast  spoken  the  truth  " 
(the  hiBBband)  intending  divorce  thereby,  divorce  shall  be  caused  according 
to  the  view  of  Aboo  Huneefa,  on  whom  he  peace.  (Compare'  pamgn^hs 
969  and  1045.) 

201S.  (1113.)  And  if  the  husband  says  to  his  vrife  (in  Persian), 
^Thou  art  nothing  to  me,"  repeating  the  same  expression  several  times, 
this  shall  not  amount  to  divorce. 

So  also  if  he  says,  "  Thou  art  nobody  to  me "  (there  will  be  no 
divorce). 

2014.  (1114.)  And  if  the  husband  says  to  his  wife,  **  There  does  not 
remain  between  me  and  between  thee  any  act,"  divorce  shall  be  caused,  if 
he  has  an  intention. 


ON  IMMEDIATB  BIVOBCS.  79 

So  also  if  he  sajs,  **  I  am  released  from  tby  marriage,"  divorce  shall 
be  caused,  if  he  has  an  intention. 

[Compare  paragraph  950,  and  see  Badd-ool  Moohtar,  Vol.  II,  page  76&. 
The  Arabic  word  for  reUase  is  Buree,  and  as  regards  that  word,  the 
Badd'ool  Moohtar  says,  that  if  the  husband  says,  ^*  I  am  released  or  and 
hureeoon from  thy  marriage"  then  in  case  the  husband  has  an  intention  to 
di?orce,  divorce  shall  be  caused ;  but  if  he  says,  **  I  am  released  from  thy 
divorce/*  then  even  if  the  husband  has  intention  to  dirorce,  there  is  A 
diversity  of  opinion  whether  divorce  shall  be  caused  or  not ;  and  the  more 
eorrect  view  is,  that  divorce  shall  not  be  caused ;  because  the  ezpressioii 
might  mean,  ^*  I  do  not  wish  to  divorce  you,"  or  in  other  words,  *^  I  release 
the  divorce  and  do  not  wish  to. release  the  marriage  : "  but  if  the  husband 
flays,  <<  I  hare  released  thee  or  Buratio  from  thy  divorce,'*  then  there  is  a 
difference  of  opinion  as  to  what  is  the  correct  view ;  the  more  correct 
view  as  to  what  is  the  correct  view  is,  that,  according  to  the  Khaneea, 
divorce  shall  not  be  caused  even  if  there  is  intention  to  divorce  as  set 
forth  in  paragraph  950;  but  the  Futeh-ool  Kudeer  says,  that  the  more 
correct  view  is,  that  one  bain  or  reversible  divorce  shall  be  caused ;  because 
the  expression  means,  *^  I  am  unable  to  give  you  divorce,"  and  this  in-* 
ability  would  only  arise  when  a  bain  divorce  has  been  given  and  the  Idchit 
has  expired,  so  that  the  husband  is  no  longer  in  a  position  to  give  a 
further  divorce.     See  also  paragraph  1122]. 

2015.  (1115.)  And  if  the  husband  says  to  the  wife,  ^'  I  have  no 
necessity  for  thee,"  intending  divorce,  divorce  shall  not  be  caused. 

So  also  if  he  says  (in  Persian),  **  1  have  no  use  for  thee :  "  so  also 
if  he  says,  '^  I  do  not  desire  thee  "  (no  divorce  shall  be  caused). 

9016.  (1116.)  And  if  the  husband  says  to  his  wife,  *^  Do  thou  get  at 
a  distance  from  nie>"  intending  divorce  thereby,  divorce  shall  be  caused. 

8017.  (1117).  And  if  the  husband  says  to  his  wife,  "  Oo  thou  and 
sell  thoa  this  cloth,"  or  **  Oo  thou  and  cover  thy  face  with  veil  {Tuqun- 
nyee),"  or  ^^  Stand  up  and  eat,"  intending  divorce  by  the  expressions 
*^Ooihau'' B,nii**  Stand  up^**  divorce  shall  not  be  caused  (because  the 
sabeequent  words  shew  that  these  expressions,  which  admit  of  the 
meaning  of  divorce^  and  are  also  susceptible  of  other  meanings  are  not 
used  in  the  sense  of  divorce). 

2Q18.  (11 18.)  And  if  the  husband  says  to  his  wife,  *^  Four  ways  {i.e., 
all  four  points  of  the  compass)  are  open  to  thed,"  intending  thereby  divorce> 


80  THK   TAOORB   LAW  LECTUBE8,    1891-92. 

divorce  sliall  not  be  caused,  anless  he  says,  **  Four  ways  are  open  to  thee, 
adopt  whichever  way  please  thee/'  in  which  case  divorce  shall  be 
caused,  if  he  has  such  an  intention. 

But  if  he  says  (in  Persian),  <^  Four  ways  for  thee,  have  I  opened,'' 
divorce  shall  not  be  caused,  unless  he  intends  divorce  thereby. 

2019.  (1119).  And  if  he  says  (in  Persian),  **  Thou  art  three  times 
just  now,"  and  says, ''  I  did  not  intend  divorce  thereby,"  the  word  to  be 
accepted  shall  be  his. 

2020.  (1120).  And  if  the  woman  says  to  her  husband,  ''Divorce 
me,"  and  the  husband  says, ''  I  will  not  do  (so),"  and  the  woman  then 
say, '' If  thou  shalt  not  divorce  me,  I  shall  go  away  and  marry,"  and 
the  husband  says  (in  Persian),  **  Thou  art  at  liberty  to  take  a  husband 
or  a  lover  (friend),"  divorce  shall  not  be  caused,  because  this  (last)  ex* 
pression  of  the  husband  shews  that  he  does  not  care  for  her. 

2021.  (1121).  A  man  is  apprehensive  that  his  marriage  with  his 
wife  is  invalid  {Fond)  and  he  says,  ''  I  have  abandoned  this  marriage 
which  is  between  me  and  between  my  wife;"  but  it  afterwards 
appears  that  their  marriage  is  valid :  his  wife  shall  not  be  divorced 
(because  he  abandoned  or  cancelled  what  he  considered  to  be  an  invalid 
marriage  and  the  expression  used  did  not  amount  to  a  divorce). 

2022.  (1122.)  And  if  the  husband  says  to  his  wife,  ''I  am  released 
(Buree)  from  thy  divorce,"  this  shall  not  amount  to  divorce. 

But  if  he  says,  **  I  am  released  from  thee,  in  consequence  of  thy 
divorce,"  divorce  shall  be  caused,  whether  he  intends  divorce  or  not. 

And  if  be  says, ''  I  am  released  from  three  thy  divorces  (that  is,  in 
consequence  of  having  given  thee  three  divorces),"  some  have  said  that 
divorce  shall  be  caused,  if  he  has  an  intention  to  divorce ;  whilst  others 
have  held  that  this  shall  uot  amount  to  divorce  ;  and  this  is  clear.  (See 
paragraphs  1114  and  950). 

2023.  (1123.)  A  woman  says  to  her  husband  (in  Persian), ''  If  thou 
liast  not  purchased  that  (that  is,  "^  "^  "^  ''^  the  sentence 
does  not  say),  with  defect  (implying  divorce  by  the  use  of  the  word  defect) 
return  it,"  and  the  husband  says, ''  I  have  returned  :  "  the  learned  law- 
yers have  said  that  no  divorce  shall  thereby  be  caused  (because  he  did  not 
say  ''  I  have  returned  to  thee"     See  paragraph  942.) 

2024.  ( 1 1 24.)  And  if  the  wife's  father  says  to  her  husband,  **  If  then 
host  not  purchased  that  (that  is,  my  daughter)  from  me,  return  to  me,"  and 


ON   IMHEDIATB   DIVOROB.  81 

the  hosband  says^  ^'I  have  returned  (her)  to  thee/'  divorce  shall  be  cansed 
if  he  has  an  intention  to  divorce,  the  husband's  expression  being 
tantamount  to  saying  (to  his  wife)  <<Mix  with  thy  relations."  (See 
paragraph  1106). 

2025.  (1125.)  And  if  the  husband  says  to  his  wife,  '<Thou  art 
abandoned  {Surah  from  2W*eeA)."  then  that  is  the  same  as  if  he  says  to 
her,  '^Thou  art  released  (or  unoccupied,  KAtdeeatoon.  See  paragraph 
1104)." 

2026.  (1126.)  A  woman  says  to  her  husband,  **  Divorce  me  "  and 
the  husband  says,  "If  thou  desireth  a  thousand  times  :"  no  divorce  shall 
be  caused  (because  the  expression  might  mean  "  Even  if  you  desire  a 
thousand  times,  I  will  not  divorce  you/'  and  also  because  divorce  is  not 
mentioned  by  the  husband;  so  his  expression  is  ambiguous  and  the 
ambiguity  is  not  cleared). 

2027.  (1127.)  And  if  the  husband  says  (in  Persian),  '^I  am  disgus- 
ted with  woman  and  with  property  /'  then  if  he  intends  divorce  thereby, 
this  shall  amount  to  divorce ;  otherwise  not. 

2028.  (1128.)  And  the  divorce,  which  is  caused  by  the  use  of  in- 
direct expressions,  is  a  complete  (or  hain)  divorce  according  to  us  (that 
is,  Aboo  Huneefa,  Yusoof  and  Mahomed)  except  such  divorce  as  is 
caused  by  the  use  of  (following)  three  expressions,  mz,,  W  "  Observe  thy 
Iddut;"  (2)  «  Purify  thy  womb ;  "  (3)  "Thou  art  (one  or)  single/'  (see 
paragraphs  1010,  104f6,  1067),  and  the  divorce  which  is  caused  by  these 
expressions  is  one  reversible  {Bujue)  divorce. 

2029.  (1129.)  And  if  by  the  use  of  indirect  expressions,  the  husband 
intends  three  divorces,  such  intention  is  good  (or  effectual),  except  in  four 
cases,  viz.  where  the  expressions  used  by  the  husband  are  as  follow  :-— 
(1)  "  Observe  thy  Iddut ;  "  (2)  «  Purify  thy  womb ; "  (3)  «  Thou  art  single;" 
W  "  Choose  thou  (Jkhtaree)  "  and  the  woman  (in  the  last  case)  must  say, 
"I  have  chosen  my  person;"  and  in  these  four  cases,  the  husband's  in- 
tention to  give  three  divorces  is  not  valid. 

[Note  to  1128  and  1129,  see  Budd-ool  Moohtar,  Vol.  II,  pages  768 
764  and  766,  "  Thou  art  single  or  one  "  in  the  original  Arabic  is  expressed  by 
the  words  Aniai  WaAidutaUy  which  also  admits  of  being  read  as  Antai 
Wahidutan  :  Antai  Wahidutan  means  Antai  talikoon  tulkatan  Wahidatan, 
or  "Thon  art  divorced  by  divorce  which  is  one  divorce :"  Antai  Wahidutoon 
means  Antai  tuUcutoon  Wahidutoon,  or  ^^Thou  art  one  divorce  itself,"  as  when 
11 


82  THE   TAGOBE  LAW  LECTURES,   1891-92. 

a  just  person  is  said  to  be  justice  itself:  in  both  senses,  in  tbe  expression 
"  Thou  art  one/'  divorce  is  understood  by  implication  or  Tukdeer.    So  also 
in  the  expression  Aituddee^  or  "  Observe  thj  Iddut/'  divorce  is  understood 
by  implication  or  Tukdeer ;  the  sense  of  the  expression  being,  "Observe  thy 
IddiU  because  I  have  divorced  thee,''  or  "  As  I  have  divorced  thee,  observe 
thy  Iddut.^'     So  also  in   the  expression  Istubriyee  RuAumakaiy  or  "  Purify 
thy  womb,"  divorce  is  understood  by  implication.     In  the  last  two  expres- 
sions, divorce  is  implied  or   Mookuddur  by  Iktiza  or  necessary  implica^ 
tion  ;  because  unless  divorce   is   implied,   the   expressions  would  have  no 
meaning;   in   the   first   expression,    the  apparent   meaning  without  any 
implication  is  clear  by  the  grammatical   construction,  but  the  sense  of 
divorce  is  shewn  by  the  implication  of  divorce :   in  all  the  three  expres- 
sions, however,  divorce  is  Mookuddur  or  implied.     There   are,  however, 
other  indirect  expressions  in  which  divorce  need  not  be  implied,    but,  on 
the  other  hand,    divorce  is  mentioned  in  express  words:  such  expressions 
are  "  Ana  bureeoon  min  Tulakai  kai^  or  "  I  am  released  from  thy  divorce." 
Biiraito  min  Tulakai  kai^  or  "  I  am  released  from  thy  divorce. ''   (See 
paragraph  950).    Khullaito  suheela  TulaJcai  kaiy  or  "  I  have  opened  the 
way  of  thy  divorce.  "  (See  paragraph  950)."     In  expressions  where  divorce 
is  Mookuddur^  the  divorce  that  is  caused  is  iJtyue  or  reversible  divorce ; 
and  also  where  divorce  is  expressly  mentioned,   the  divorce  that  takes 
place  is  Rujue   or  reversible  divorce  ;  in  other  words,  when  the  result  is 
that  in  expressions  where  divorce  is  expressly  mentioned,  the  divorce  that 
takes  place  is  Rujue  or  reversible,  then  it  must  follow  that  where  divorce 
is  Mookuddur  or  implied,  there  also  Rujue  or  reversible  divorce  should  take 
place.    In  other  indirect  expressions,  where  divorce  is  neither  expressly 
mentioned  nor  understood  by  implication  or  Tukdeer,  there  the  divorce 
that  takes  place  is  bain  or  complete  divorce ;  because,  says  the  Budd-ool 
Moohtar,  Vol.  II.,  page  767,  these  expressions  denote  complete  separation 
and  not  temporary  separation  such  as  buttutoon  and  butlutoon,  and  iura- 
moony  and  bainoon  and  other  like   expressions  mentioned  in  the  note  to 
paragraph  1099.    The  matter  of  intention  as  regards  the  indirect  expres- 
sions of  divorce  stands  thus :  the  intention  to  cause  three  divorces  in  indirect 
expressions  is  effectual  because  three  is  a  metaphorical  unit  or  JFurd-i- 
Aitbaree,  as  one  is  a  real  unit  or  Furd-i-Hukeekee ;  see  notes  to  paragraphs 
893  and  921 ;  and  intention  to  cause  two  divorces  is  not  effectual,  because 
the  number  two  is  neither  a  real  nor  a  metaphorical  unit,  see  Badd-ool 
Moohtar,  Vol.  II,  page  767:  but  in  four  expressions  intention  to  cause 


ON   IMMEDIATE   DIVORCE.  83 

three  divorces  is  not  effectual ;  see  Rudd-ool  Moohtar,  Vol.  IT,  pages 
763  and  766 :  in  the  expression,  (i)  "  Thou  art  single  or  one,^'  the 
intention  to  caase  three  divorces  is  not  effectual,  because  although  the 
infinitive  or  the  musdur,  that  is,  the  word  Tulkutarty  which  is  understood 
after  Wahiduian,  admits  of  the  number  three  or  metaphorical  unit,  still 
the  express  mention  of  the  word  Wahidutan  or  one,  prevents  the  meta- 
phorical unit  from  being  brought  to  bear  on  the  expression :  in  the 
expressions  (2)  "  Observe  thy  Idduty^  and  (3)  «  Purify  thy  womb,"  the 
TMAsdur  or  infinitive,  that  is,  the  word  divorce,  which  is  implied  in  these 
expressions,  is  implied  by  Iktiza^  or  necessity  for  giving  a  meaning  to 
the  speech,  and  Iktiza  or  necessity  does  not,  according  to  the  rules  of 
jurisprudence,  admit  of  generalisation  so  as]  to  admit  of  a  metaphorical 
unit,  because  the  real  unit  itself  meets  the  necessity :  the  same  reason 
holds  good  in  the  word  (4)  "  Ikhiareey  or  choose]  /* 

2030.  (1180.)  And  the  intention  to  give  two  divorces  is  not  valid, 
in  indirect  expressions.    (See  note  to  the  preceding  paragraph). 

2031^  (1131.)  And  if  the  husband  causes  divorce  in  Persian,  saying 
**  I  have  withheld  my  hand  from  thee"  (see  paragraphs  1069  and  1135) 
intending  thereby  divorce ;  then  some  of  the  learned  lawyers  have  said 
that  that  is  the  explanation  of  (or  equivalent  to)  the  expression,  ^^  I  have 
opened  {KhuUaito)  thy  ways,"  and  no  divorce  shall  be  caused,  unless  he  has 
intention  to  divorce;  and  that  if  he  has  such  an  intention,  then  one 
reversible  (fiujue)  divorce  shall  be  caused ;  and  others  have  said  that  the 
same  is  the  explanation  of  (or  equivalent  to)  "  1  have  divorced  thee,  "  and 
divorce  shall  be  caused  without  intention,  and  the  divorce  shall  be  reversible 
{Rujue)',  and  the  lawyers  Aboo  Leith  and  Sheikh  Imam  Aboo  Baker 
Mohamed,  son  of  Fuzul,  on  whom  be  peace,  have  said  that,  one  com- 
plete Q)a%n)  divorce  shall  be  caused,  and  that  the  husband  shall  not  be  con- 
firmed when  he  says,  ^^  I  did  not  intend  divorce ;  "  and  the  Futwa  is  given 
according  to  this  (last)  view. 

2032.  (1132.)  And  if  the  husband  says  to  his  wife  (in  Persian),  "  I 
have  untied  thy  leg,"  one  reversible  divorce  shall  be  caused  according  to 
them  (Aboo  Huneefa,  Tusoof  and  Mahomed),  and  there  is  no  necessity 
of  an  intention,  because  the  same  is  an  explanation  of  (or  is  equivalent  to) 
the  expression,  "  I  have  divorced  thee." 

2033.  (1133.)  And  if  the  husband  says  (in  Persian),  "With  one 
divorce^  I  have  withheld  my  hand  from  thee,"  this  shall  amount  to  a  rever- 


84  THB  TAQOBE  LAW  LRCTUBBS,  1891-92. 

sible  (Rujue)  divorce,  and  he  shall  not  be  confirmed  when  he  says  he  did 
not  intend  divorce  thereby. 

2034.  (1134.)  And  if  the  husband  says  (in  Persian),  <^I  have  with- 
held ray  claws  from  thee,  "  intending  divorce  thereby,  then  the  lawyer 
Aboo  Jaffer,  on  whom  be  peace,  says,  that  one  complete  {bain)  divorce  shall 
be  caused  thereby ;  whilst  others  have  said  that  one  reversible  (or  Bujue) 
divorce  shall  be  caused :  but  the  first  view  is  the  more  correct  of  the  two. 

2036.  (1135.)  And  it  is  laid  down  in  the  Fatawai  Nusufee  that  if 
the  husband  says  to  his  wife  (in  Persian),  "  Thee  have  I  abandoned, "  or 
**  Thee  have  I  released, "  or  "  Prom  thee  have  I  withheld  my  hand, "  or  if 
he  says,  **  Thee  have  I  left :  "  no  divorce  shall  be  caused  unless  he  has 
an  intention. 

So  also  if  he  says  (in  Persian),  *<  I  have  withheld  my  hand  from 
thee,  "  or  "  Released  thee."    (See  also  paragraphs  1069  and  1131). 

And  if  he  intends  divorce  by  the  use  of  his  expressions,  *'  I  have 
released  thee/'  or  **  Abandoned  thee,"  one  complete  {bain)  divorce  shall  be 
caused:  and  by  his  expression,  *'I  have  withheld  my  hand  from  thee,' 
one  reversible  (Bujue)  divorce  shall  be  caused  (because  the  last  expression 
is  not  so  strong  as  regards  separation  as  the  first  two  expressions). 

203&  (1136.)  And  if  tbe  word  "divorce"  is  added  to  these  expres- 
sions, as  for  instauce,  if  he  says  (in  Persian),  *^  I  have  withheld  my  hand 
from  thee  by  one  divorce,"  then  one  reversible  {Rujue)  divorce  shall  be 
caused,  and  effect  shall  be  given  to  the  word  "  Divorce,"  just  as  if  he  says 
(in  Persian),  "  Thy  authority  is  in  thy  hands  in  the  matter  of  divorce,'*  or 
"  Choose  thy  person  by  (or  as  regards)  one  divorce, "  and  the  woman 
accepts  the  authority  to  divorce  herself  (and  does  divorce  herself)  one 
reversible  {Rujue)  divorce  shall  be  caused.  (See  paragraphs  1128  and 
1129). 

2037.  (1137.)  And  if  the  husband  says  (in  Persian),  '*I  have 
abandoned  (ETwA^wm),"  or  "I  have  abandoned  as  wife:"  divorce  shall  not 
be  caused  (if  there  is  no  intention)  according  to  the  view  of  Aboo 
Huneefa,  on  whom  be  peace,  although  this  might  whilst  a  topic  of 
divorce  was  going  on,  or  whilst  there  was  a  quarrel :  but  if  he  intends 
divorce  thereby,  then  one  reversible  divorce  shall  be  caused.  And  it  is 
reported  from  Aboo  Yusoof,  on  whom  be  peace,  that  when  he  mixed  with 
the  people  of  Ajum^  (i.e.,  country  outside  Arabia),  he  found  this  expression 
a  direct  (or  Sureeh)  expression  for  divorce  in  Ajum  countries  (i.e.,  of  the 


OK  nCMSDIATE   DIVOBCB.  8S 

same  force  as  *«  Divorce  "),  and  he  (Aboo  Tasoof)  said,  that  divorce  shall 
be  cansed,  although  the  husband  might  have  no  intention,  in  whatever 
state  he  might  be  (whether  discussing  a  fcopic  of  divorce  or  in  a  etate  of 
anger  or  in  a  state  of  Bezay  i.e.y  in  a  state  different  from  that  of  anger 
and  different  from  a  state  discussing  a  topic  of  divorce),  and  that  the 
husband  shall  not  be  confirmed  bj  the  Kazee  that  by  using  the  expression 
[HUktum)  he  intended  the  abandonment  of  (his  right  to  prevent  her)  going 
oat  (that  is,  that  he  meant,  ^'  I  have  abandoned  my  right  of  prevention, 
that  is,  I  have  permitted  her  to  go  out) ;  "  and  that  if  he  intended  a  com- 
plete (or  bain)  divorce,  or  intended  three  divorces,  then  (the  character  of) 
the  divorce  shall  be  as  he  had  intended ;  because  the  expression  {Hishtum) 
admits  of  a  complete  divorce  or  of  three  divorces  being  given  thereby, 
according  to  the  idiom  of  the  Ajumees. 

2038.  (1138.)  A  man  says  to  his  wife,  who  is  a  slave  girl  (of  another 
who  had  given  her  in  marriage  to  him),  "  Thou  art  separated  {bain),**  and 
intends  two  divorces  thereby,  his  intention  is  correct  (because  bain  either 
denotes  a  real  unit  or  furd,  which  is  one, —  and  in  this  sense  it  is  operative 
as  such  without  any  intention — or  it  denotes  what  is  called  a  metaphorical 
unit  or  Furd-uHookmeef  that  is,  a  unit  so  considered  by  all  the  parts 
being  taken  together  to  form  a  unit.  Bain,  in  the  first  sense,  would 
denote  one  divorce,  and  in  the  second  or  collective  sense,  would  denote  the 
number  of  divorces  which  the  case  is  capable  of,  and  this  number  is  three 
in  the  case  of  a  free  woman  and  two  in  the  case  of  a  slave  girl). 

But  if  he  says  so  to  a  free  woman,  whomjthe  husband  had  already 
divorced  once  (so  that  he  has  now  only  the  power  to  give  two  divorces) 
and  intends  two  divorces  by  the  expression,  then  (only)  one  divorce  shall 
be  caused  (because  two  divorces,  in  the  case  of  a  free  woman,  do  not 
constitute  either  a  real  or  a  metaphorical  unit). 

2039.  (1139.)  A  man  says  to  his  wife,  «  Observe  thy  Iddut,  '*  "  Ob- 
serve thy  Iddut, "  "  Observe  thy  Iddut ; ''  and  says  that  I  intended  from 
all  the  (three)  expressions  only  one  divorce :  he  shall  be  confirmed  as 
between  him  and  his  God  (because, — see  Budd-ool  Moohtar,  Vol.  II,  page 
769, — when  the  intention  is  to  cause  one  divorce,  although  the  expression 
has  been  used  thrice,  then  the  expression  by  which  divorce  is  caused  is 
the  first  expression,  and  the  second  and  third  expressions  are  used  for  the 
purpose  of  repetition  of  the  first  expression  with  the  object  of  giving 
force  or  Takeed  to  the  first  expression) ;  but  so  far  as  the  Eazee   is 


86  THE   TAOORE  LAW  LECTURES,    1891-92. 

concerned  she  shall  be  diyorced  thrice  (because  when  the  intention  is 
to  cause  only  one  divorce  although  three  expressions  are  used,  then  each 
expression  operates  to  cause  one-third  of  a  divorce ;  and  inasmuch  as 
there  could  be  no  fraction  of  a  divorce,  the  result  is  that  each  expression 
is  effective  to  cause  one  divorce).  And  if  he  sajs,  I  meant  divorce 
by  the  first  expression,  and  I  did  not  mean  anything  by  the  rest,  the 
woman  shall  be  divorced  thrice  (because, — see  Budd-ool  Moohtar,  Vol. 
II,  pages  767  and  768, — when  by  the  first  expression  the  intention  is  to 
cause  divorce,  then  the  use  of  the  expression,  ^*  Observe  thy  Iddut*^  in 
the  sense  of  causing  divorce,  shews,  by  Dulalut-i-Hal,  that  is,  by  implica- 
tion, that  the  sense  and  meaning  of  the  expression  *'  Observe  thy  Idduty' 
is  to  cause  divorce,  and,  therefore,  although  there  is  no  intention 
in  the  second  and  third  expressions,  still  those  expressions  shall  be 
taken  to  mean  divorce,  and,  therefore,  the  result  will  be  three  divorces) : 
and  if  he  says,  **  I  did  not  intend  anything  by  the  first  expression,  and  I 
intended  divorce  by  the  second  and  third  expressions,  then  this  will 
amount  to  two  reversible  {Rujue)  divorces,  (because,  by  the  use  of  indirect 
expressions,  divorce  is  caused  only  when  there  is  intention  to  divorce  - 
and  there  being  no  intention  to  cause  divorce  by  the  first  expression, 
no  divorce  shall  be  caused  by  that  expression  ;  but  there  being  intention 
to  cause  divorce  by  the  second  expression  and  also  by  the  third  expression, 
two  divorces  shall  be  caused :  so  also  if  there  is  no  intention  to  cause 
divorce  by  the  first  and  second  expressions,  but  there  is  intention  to 
cause  divorce  by  the  third  expression,  then  only  one  divorce  shall  be 
caused  ;  so  also  if  he  has  no  intention  to  cause  divorce  by  the  use  of  any 
of  the  three  expressions,  then  no  divorce  shall  be  caused — see  Budd-ool 
Moohtar,  Vol.  II,  page  768 :  and  the  two  divorces  or  one  divorce,  that 
shall  be  caused  shall  be  Rujiie  or  reversible,  for  reasons  stated  in  the  notes 
to  paragraphs  1128  and  1129). 

And  if  he  says,  I  did  not  intend  anything  by  the  first  and  second, 
but  I  intended  divorce  by  the  third,  then  this  amounts  to  one  reversible 
(Bujv^)  divorce.  And  if  he  says,  **  1  did  not  intend  anything  by  the 
first  and  third  expressions,  but  I  intended  divorce  by  the  second  ex- 
pression, the  woman  shall  be  divorced  twice  (for  the  same  reason  as 
when  he  intends  divorce  by  the  first  expression  and  has  no  intention  by  the 
second  and  third  expressions). 

And  if  he  says,  I  intended  divorce  by  the  first  expression  and  Iddut 
by  the  rest  (that  is,  if  he  says,  '<  I  intended  to  mean  by  the  second  and 


ON  IMMSBIATB  DIYOBCE.  87 

third  expressions  that  tbe  woman  should  observe  ber  Iddut*\  then  his 
intention  shall  be  correct  (and  given  effect  to,  and  one  reversible  divorce 
shall  be  caused,  because  he  intends  that  which  is  the  natural  and  real 
meaning  of  the  expression,  "  Observe  thy  Idduty\  See  Rudd-ool  Moohtar, 
Vol.  II,  page  768).  And  if  he  says,  "  I  intended  divorce  by  the  first  and 
second  and  Idd%Ji  by  the  third :  '^  his  intention  shall  be  correct  (and  shall 
be  given  effect  to  and  two  reversible  divorces  shall  be  caused). 

2040.  (1140.)  And  if  the  husband  says  to  his  wife,  ^*  Observe  thy 
Iddut"  and  repeats  the  same  several  (i.e.,  three)  times,  and  says,  ^^I 
meant  menses  (which  is  in  effect  Iddut)  by  the  expression  :''  he  shall  be 
confirmed  by  the  Eazee. 

[Note — See  Rudd-ool  Moohtar,  Vol.  II,  page  768.  If  a  man  says 
three  times^  "  Observe  thy  Iddut,*'  then  this  case  admits  of  twenty-four 
forms.  I. — If  he  intends  one  divorce  by  each  of  the  three  expressions,  then 
three  divorces  shall  be  caused  ;  because  in  that  case  he  intends  one-third  of 
one  divorce  by  each  expression,  and  a  fraction  of  a  divorce  amounts  to  a  full 
divorce.  Il.^-If  he  intends  divorce^by  the  first  expression  and  does  not 
intend  anything  by  the  second  and  third  expressions,  then  also  three 
divorces  shall  be  caused.  III. —  If  he  intends  menses  by  the  first  expres- 
sion, and  intends  nothing  by  the  second  and  third  expressions,  then  three 
divorces  shall  be  caused ;  because  when  he  intends  menses  by  the  first 
expression,  then  the  intention  of  menses  means  ^^  Observe  thy  Iddut  ac- 
cording to  menses,*' — and  a  woman  is  not  required  to  observe  Iddut 
unless  she  has  been  divorced,^- and,  therefore,  the  intention  of  menses 
in  the  first  expression  involves  divorce;  and  inasmuch  as  the  first 
expression  in  this  way  intends  divorce,  the  second  and  third  expressions, 
in  which  there  is  no  intention,  would  also  amount  to  two  divorces.  IV.— 
If  he  intends  divorce  by  the  first  two  expressions,  and  intends  nothing  by 
the  third  expression,  then  also  three  divorces  shall  be  caused.  V. —  If  he 
intends  divorce  by  the  first  and  third  expressions  and  intends  nothing  by 
the  second  expression,  then  also  three  divorces  shall  be  caused.  VI. — If  he 
intends  menses  by  the  first  expression  and  intends  divorce  by  the  second 
and  third  expressions,  then  also  three  divorces  shall  be  caused.  In  all 
these  six  cases,  three  divorces  shall  be  caused.  VII. —  If  he  intends 
nothing  by  the  first  and  third  expressions  and  intends  divorce  by  the 
second  expression,  then  two  divorces  shall  be  caused.  VIII. —  If  he 
intends  divorce  by  the  first  expression,  and  intends  menses  by  the 
second  expression^   and  intends  nothing  by  the  third  expression,  then 


68  THE  TAGORB  LAW  LECTUBBS,  1891-92. 

also  two  divorces  shall  be  caused,  vig.y  one  divorce  by  tbe  first 
expression,  and  the  second  expression  being  used  after  the  first  ex- 
pression has  denoted  divorce,  it  is  not  necessary  to  imply  a  divorce  by 
the  second  expression  which  has  been  used  in  the  sense  of  menses,  that 
sense  being  capable  of  effect  being  given  to  it  as  regards  the  divorce 
intended  by  the  first  expression  ;  and  the  third  expression,  in  which  there 
is  no  express  intention  comes  to  be  used  after  the  subject  of  divorce  is 
mentioned  by  the  use  of  the  first  and  second  expressions,  will  also 
establish  one  divorce.  IX. — If  he  intends  divorce  by  the  first  expression 
and  nothing  by  the  second  expression,  and  intends  menses  by  the  third 
expression,  then  also  two  divorces  shall  be  caused;  because  the  second 
expression  is  used  after  the  Mazakara  or  topic  of  divorce,  and  therefore 
one  divorce  shall  be  caused  by  that  expression  although  there  is  an  absence 
of  intention.  X. — If  he  intends  nothing  by  the  first  expression  and  in- 
tends divorce  by  the  second  and  third  expressions,  then  also  two  divorces 
shall  be  caused.  XI. — If  he  intends  menses  by  the  first  and  second  expres- 
sion and  intends  nothing  by  the  third  expression,  then  also  two  divorces 
shall  be  caused.  XIL— If  he  intends  menses  by  the  first  and  third 
expressions  and  intends  nothing  by  the  second  expression,  then 
also  two  divorces  shall  be  caused,  viz.,  one  divorce  by  the  implication 
involved  in  the  first  expression  ;  and  no  divorce  shall  be  caused  by  the 
second  expression,  which  has  not  been  used  after  a  Mazakara  or  topic 
of  divorce,  and  one  divorce  be  caused  by  the  implication  involved 
in  the  third  expression.  XIII. — If  he  intends  divorce  by  the  first  and 
second  expressions  and  intends  menses  by  the  third  expression,  then 
also  two  divorces  shall  be  caused,  the  intention  of  denoting  menses 
in  the  third  expression  not  requiring  a  divorce  and  such  intention 
being  capable  of  having  effect  given  to  it  in  consequence  of  the 
divorce  caused  by  the  second  expression.  XIY. — If  he  intends  divorce  by 
the  first  and  third  expressions,  and  intends  menses  by  the  second  expres- 
sion, then  two  divorces  shall  be  caused.  XY. — If  he  intends  menses  by  the 
first  expression  and  by  the  second  expression,  and  intends  divorce  by  the 
third  expression,  then  two  divorces  shall  be  caused.  XYI. — If  he  intends 
menses  by  the  first  and  third  expressions,  and  intends  divorce  by  the 
second  expression,  then  two  divorces  shall  be  caused.  XYII. — If  be 
intends  nothing  by  the  first  and  third  expressions,  and  intends  divorce  by 
the  second  expression,  then  two  divorces  shall  be  caused  ;  that  is  to  say,  no 
divorce  shall  be  caused  by  the  first  expression^  because  there  is  an  absence 


ON    IMMEDIATE    DIVORCE. 


89 


of  intention,  and  one  divorce  shall  be  caused  bj  the  second  expression  by 
implication,  and  the  third  expression,  although  used  without  any  intention, 
shall  cause  one  divorce ;  because  the  expression  has  been  used  after  the 
Muzakura  or  topic  of  divorce.  In  all  these  eleven  cases,  two  divorces  shall 
be  caused.  XYIII. — If  he  intends  menses  by  all  the  three  expressions,  then 
one  divorce  shall  be  caused.  XIX. — If  he  intends  nothing  by  the  first  and 
second  expressions  and  intends  divorce  by  the  third  expression,  then  one 
di?orce  shall  be  caused.  XX. — If  he  intends  nothing  by  the  first  and  se- 
cond expressions,  and  intends  menses  by  the  third  expression,  then  also  one 
divorce  shall  be  caused.  XXI. — If  he  intends  nothing  by  the  first  expres- 
sion and  intends  divorce  by  the  second  expression,  and  intends  menses  by  the 
thirdexpression,  then  also  one  divorce  shall  be  caused.  XXII. — If  he  in- 
tends nothing  by  the  first  expression,  and  intends  menses  by  the  second  and 
third  expressions,  then  also  one  divorce  shall  be  caused ;  because  the  second 
expression  implies  divorce,  and  the  third  expression  is  capable  of  effect 
being  given  to  it  with  its  natural  or  real  intention.  XXIII. — If  he 
intends  divorce  by  the  first  expression,  and  intends  menses  by  the  second 
and  third  expressions,  then  also  one  divorce  shall  be  caused.  In  all  these 
six  cases  one  divorce  shall  be  caused.  XXIV. — If  he  intends  nothing  by 
any  of  the  three  expressions,  then  no  divorce  shall  be  caused.  Put  in  a 
tabular  form,  the  twenty-four  cases  are  these  : — 


I 

1st  Divorce, 

2nd  Divorce, 

3rd  Divorce, 

3  Divorces. 

n 

1st  divorce, 

2nd  nothing, 

8rd  nothing, 

9> 

III 

1st  menses, 

2nd 

8rd  nothing, 

99 

IV 

Ist  divorce. 

2 ad  divorce, 

3rd  nothing, 

» 

V 

Ist       „ 

2nd  nothing. 

8rd  divorce. 

99 

VI 

1st  menses, 

2nd  divorce. 

3rd  divorce. 

» 

VII 

Ist  nothing. 

2nd  divorce, 

3rd  nothing. 

two 

VIII 

1st  divorce. 

2nd  menses. 

3rd        „ 

99 

IX 

Ist         „ 

2nd  nothing, 

Srd  menses. 

99 

X 

1st  nothing, 

2nd  divorce. 

3rd  divorce, 

99 

XI 

Ist  menses, 

2nd  menses. 

3rd  nothing. 

99 

XII 

1st        „ 

2nd  nothing. 

Srd  menses. 

99 

XIII 

Ist  divorce. 

2nd  divorce, 

Srd 

99 

XIV 

Ist        „ 

2nd  menses. 

Srd  divorce, 

» 

XV 

Ist  menses. 

2nd  menses. 

Srd  divorce. 

>> 

XVI 

Ist  menses, 

2nd  divorce, 

Srd  menses, 

99 

XVII 

1st  nothing, 
12 

2nd  menses. 

Srd  nothing, 

99 

XVIII 

Ist  menses. 

XIX 

Ist  nothing. 

XX 

1st        „ 

XXI 

Ist        „ 

XXII 

Ist        „ 

XXIII 

1st  divorce. 

XXIV 

1st  nothing. 

3rd  menses. 

one 

3rd  divorce, 

99 

3rd  menses. 

99 

8rd        „ 

99 

8rd        „ 

9y 

8rd        „ 

» 

8rd  nothing, 

No  Divorce 

90  THE   TAaORK   LAW  LKCTiniES,    1891-92. 

2nd  menses, 

2nd  nothing, 

2nd 

2nd  divorce, 

2nd  menses, 

2nd 

2nd  nothing, 

The  principle  is,  that  when  the  expression  Aiiuddee  or  '*  Observe  thy 
Iddut "  is  used  with  the  intention  of  divorce,  then  the  Muzahura  or  topic 
of  divorce  is  established ;  then,  if  the  same  expression  is  subsequently  used 
with  the  intention  that  it  should  mean  menses,  that  intention  must  be 
affirmed ;  because  after  divorce  the  woman  must  observe  the  Iddut ;  and 
if  in  the  subsequent  expression  there  is  no  intention,  then  the  absence  of 
intention  shall  go  for  nothing;  on  the  other  hand,  this  subsequent  expres- 
sion shall  be  construed  in  the  sense  of  divorce,  because  the  expression 
comes  to  be  used  after  the  Muzdkura  or  topic  of  divorce.  If  there  is  no 
intention  at  all  by  the  use  of  any  of  the  three  expressions,  then  the  absence 
of  intention  will  have  effect  and  no  divorce  shall  be  caused.  If  there  is  no 
intention  in  the  expression  used  before  an  expression  used  with  intention, 
then  the  absence  of  intention  in  the  first  mentioned  expression  shall  have 
effect.  If,  by  the  use  of  any  one  expression,  the  intention  is  in  regard  to 
menses,  and  there  is  no  intention  in  the  expression  previously  used,  then 
by  the  use  of  the  first  mentioned  expression,  that  is,  the  expression  used 
with  the  intention  of  menses,  divorce  shall  be  caused.  And  by  the  use  of 
the  expression  with  the  intention  to  mean  menses,  the  Muzakura  or  topic 
of  divorce  is  established]. 

2041.  (1141.)  And  if  the  husbandsays,  "Thou  art  divorced,  therefore 
observe  thy  Iddut "  and  says,  "I  intended  Iddut  by  this  expression  ('Observe 
thy  Iddut :  *)  "  his  intention  shall  be  valid,  (and  only  one  divorce  result- 
ing from  the  expression  "  Thou  art  divorced,"  shall  be  caused,  and  the  in- 
tention of  Iddut  in  the  use  of  the  word  "  Aituddee  '*  or  **Observe  thy  Idd^U  *' 
shall  be  given  effect  to ;  because  that  expression  has  been  used  after  express 
words  of  divorce) ;  but  if  he  intends  another  divorce  by  the  expression 
(<  Observe  thy  Iddut  0,  or  if  he  does  not  intend  anything,  then  this  (that  is, 
the  expression  *  Observe  thy  Iddut ')  shall  amount  to  another  divorce  (and 
the  divorce  that  shall  be  caused  by  the  expression  "  Observe  thy  Iddut " 
shall  be  a  Bujue  or  reversible  divorce,  as  laid  down  in  paragraphs  1128 
and  1129.     There  being   Muzakura  ot  topic  of  divorce  contained. in  the 


ON   IMMEDIATE   DIVORCE.  91 

expression  "  Thoa  art  divorced,"  if  the  expression  "  Observe  tlij'  Idduty^ 
\a  used  even  without  any  intention,  a  divorce  shall  be  caused  for  reasons 
stated  in  the  notes  to  the  preceding  paragraph). 

So  also  if  he  sajs,  *^  And  observe  thj  Iddut^  (that  is,  if  he  sajs, 
"  Thou  art  divorced  and  observe  thy  Iddut "),  or  says,  **  Observe  thy  Idduty* 
(that  is,  if  he  says,  ^^  Thou  art  divorced,  observe  thy  Iddut  '^  without  the 
coDJunction. 

But  it  is  reported  from  Aboo  Yasoof  that  if  the  husband  says, 
"Thou  art  divorced,  therefore  observe  thy  Jdd«^,"  and  does  not  intend 
anything  (by  the  expression  "  Observe  thy  Iddut,  ")  then  this  amounts 
to  one  divorce  (viar.,  that  caused  by  the  expression  **  Thou  art  divorced,^' 
and  the  expression,  *'  Therefore  observe  thy  Iddut,**  used  without  any 
intention,  shall  establish  only  Iddut,  and  not  divorce;  because  Aboo  Yusoof 
sajB,  that  the  word  fai  or  "  therefore  *'  is  used  to  conjoin  one  expres- 
sion with  another  without  involving  the  idea  of  space  of  time  intervening, 
or,  in  other  words,  it  is  used  for  Takeeb  bila  Tarakhee,  that  is,  sequence  with- 
out intervention,  and  if  so  the  imperative  **  Observe  thy  Iddut,**  amounts  to 
a  command  to  commence  the  Iddut,  and  therefore  the  expression  ^^  Observe 
thy  Idduty^'  must  be  taken  to  mean  menses :  whereas,  according  to  Aboo 
Huneefa,  the  expression  "  Therefore  observe  thy  Iddut,**  having  been 
used  after  the  Muzakura  or  topic  of  divorce,  one  divorce  shall  be  caused, 
and  the  imperative  form  shall  be  taken  to  mean  divorce:  but  the  Rudd-ool 
Moohtar  gives  preference  to  the  view  of  Aboo  Yusoof) :  and  that  if  he 
says  "  And  observe  thy  Iddut,**  (that  is,  if  he  says,  "  Thou  art  divorced  and 
observe  thy  Iddut,**)  or  expresses  himself  without  a  conjunction  (saying 
"  Thou  art  divorced,  observe  thy  Iddut,  *')  another  divorce  shall  be 
caused  (by  the  expression  '*  Observe  thy  Iddut,  **  which  he  uses  without 
any  intention ;  and  there  is  no  difference  in  this  view;  because  the  ex- 
pression '*  And  observe  thy  Iddut,  *'  or  **  Observe  thy  Iddut,  **  is  a  new 
sentence  or  Kulam-i-Moostanif,  which  is  used  after  the  Muzaiura  or  topic 
of  divorce,  and  therefore  the  expression  must  mean  divorce.  See  £udd- 
ool  Moohtar,  Vol.  II,  page  769). 

2042.  (1142.)  A  man  says  to  his  wife  in  the  middle  of  the  day, 
"  Thou  art  divorced  in  the  first  part  of  this  day  and  at  the  end  of  it :  **  this 
shall  amount  to  one  divorce.  But  if  he  says,  ^^  The  end  of  this  day  and 
the  first  part  of  it,  **  she  shall  be  divorced  twice  ;  because  the  divorce, 
which  is  caused  in  the  first  part  of  the  day,  remains  effectual  (that  is, 
continues  to  subsist)  to  the  end  of  the  day,  and  therefore  only  one  divorce 
shall  be  caused  (in  the  first   case  mentioned  above).    But  when  the  hiis- 


99 


92  THE    TAOOEB   LAW   LECTURES,    1891-92. 

band  commencps  with  the  end  of  the  day,  then  the  divorce  given  at  the 
end  of  the  day,  not  being  capable  of  being  caused  in  the  first  part  of  tlie 
day,  there  shall  be  two  divorces  (in  the  second  case  mentioned  abo?6* 
On  this  subject,  see  paragraphs  1091  and  1093). 

So   also   if   he   says,  '*  Thou  art   divorced   to-morrow  and  to-day : 
two  divorces  shall  be  caused ;  but  if  he  says,  "  To-day  and  to-morrow,'*  no 
divorce  except  one  shall  be  caused.     (See  also  paragraph  1091). 

And  if  he  says,  "Thou  rft*t  divorced  to-day  and  yesterday :  "  two 
divorces  shall  be  caused;  but  if  he  says,  "  Yesterday  and  to-day,"  one 
divorce  shall  be  caused. 

And  if  he  says,  "  Thou  art  divorced  to-day  and  after  to-morrow," 
she  shall  be  divorced  twice  according  to  Aboo  Huneefa  and  Aboo  Yusoof, 
on  whom  be  peace. 

2043.  (1143*)  A  man  says  to  his  wife,  ^^Thou  art  divorced,  like  a 
thousand : "  then  if  he  intends  three  divorces,  three  divorces  shall  be  caused ; 
but  if  he  does  not  intend  anything,  then  tbis  shall  amount  to  one  complete 
(bain)  divorce  according  to  the  second  view  of  Aboo  Huneefa  and  Aboo 
Yusoof,  on  whom  be  peace;  but  Mabomed,  on  whom  be  peace,  says,  that 
the  same  sball  amount  to  three  divorces  so  far  as  the  Kuzee  is  concerned 
(that  is,  under  the  law.     See  also  paragraphs  1057  and  1058). 

2044.  (114i.)  And  if  be  says,  "Thou  art  divorced  once,  like  a 
thousand,"  intending  three  divorces  or  not  intending  (anything),  then 
this  sball  amount  to  one  complete  {bain)  divorce  according  to  their  view, 
(that  is,  the  view  of  Aboo  Huneefa  and  his  two  disciples). 

And  if  he  says,  "  Thou  art  divorced,  like  the  numbers  in  a  thousand," 
or  "Like  the  numbers  in  three  :"  then  this  shall  amount  to  three  divorces 
80  far  as  the  Kazee  is  concerned. 

And  if  he  says,  "  Thou  art  divorced  like  three,"  this  amounts  to 
three  divorces.     (See  also  paragraphs  1057  and  1058). 

And  if  he  says,  "  Thou  art  divorced  until  three  are  completed :  *'  tbis 
amounts  to  three  divorces;  (because  it  means  that  the  divorce  sball  continue 
to  be  caused  until  there  are  three  divorces) ;  if  he  says,  "  Until  I  complete 
for  thee  three,"  or  "  Until  I  cause  on  thee  three,  "  then  this  amounts  to 
one  divorce  (because  it  means,  "Thou  art  divorced  once  until  I  cause  three 
divorces,  and  when  I  shall  cause  three  divorces,  then  thou  shalt  be  thrice 
divorced  "). 


ON    IMMKDIATfi   DIVORCE.  9Z 

204S.  (1 145.)  Aud  if  he  sajs,  '^  Thou  art  divorced  the  dimensioDB  of 
which  fill  the  whole  of  the  house,"  and  does  not  intend  anything,  then 
this  shall  amount  to  one  complete  {hain)  divorce:  (the  divorce  is  complete 
or  irreversible  because  the  quality  having  been  super-added,  the  divorce 
must  be  stronger  than  an  ordinary  or  reversible  divorce.  See  paragraphs 
933  and  1059). 

2046.  (1146.)  And  if  he  says,  "Thou  art  divorced  like  the  moun- 
tain/' or  **  Like  the  grain  of  mustard  :  '*  then  this  shall  amount  to  one 
complete  (or  bain)  divorce  according  to  Aboo  Hnneefa,  on  whom  be  peace 
(see  paragraph  1059);  but  according  to  Aboo  Tusoof,  on  whom  be  peace, 
this  shall  amount  to  one  reversible  (Rujue)  divorce.  And  if  he  says,  '*Like 
the  greatness  of  the  mountain,"  or  "  Similar  to  the  greatness  of  the  moun- 
tain/' or  likens  tlie  divorce  to  a  small  or  great  thing,  then  this  shall  be  one 
complete  {bain)  divorce ;  but  if  he  intends  three  divorces,  then  the  same 
shall  amount  to  three  divorces. 

2047.  (1 147.)  And  if  he  says,  "  Thou  art  divorced  thus,'*  and  points 
oat  (that  is,  shews)  one  finger,  then  the  same  shall  amount  to  one  divorce; 
and  if  he  points  out  (or  shews)  two  fingers,  then  the  same  shall  amount  to 
two  divorces;  and  if  he  points  (or  shews)  three  fingers,  then  tlie  same  shall 
aoiount  to  three  divorces.  And  in  this  matter  regard  is  had  to  the  fingers, 
wfaicliare  separated  (or  shewn  separately  so  as  to  be  counted),  and  not  to 
those  which  are  closed  (and  which  might  be  counted  as  one) ;  and  if  he 
8a js,  ^'  I  intended  the  palm  of  the  hand  (that  is,  if  he  says,  ^'  although  I 
pointed  out  one,  or  two  or  three  fingers,  but  I  meant  the  palm  of  the 
hand,  so  as  to  cause  only  one  divorce'')  or  the  closed  fingers  (that  is,  if 
he  says,  **  I  did  not  mean  the  open  fingers  which  were  actually  shewn,  but 
I  meant  all  the  fingers  as  if  they  had  been  closed,  so  as  to  cause  one 
divorce  ")  then  he  shall  not  be  confirmed  by  the  Kazee.  (See  Budd-ool 
Moohtar,  Vol.  II,  pages  735  and  736). 

2048.  (1148.)  And  if  he  says,  "Thou  art  divorced  like  this,"  and 
points  three  fingers,  and  intends  three  divorces,  then  three  divorces 
sLall  be  caused ;  but  if  he  intends  one  divorce,  then  (only)  one  divorce  shall 
be  caused  (and  that  divnrce  shall  be  bain  or  complete  and  irreversible ;  be- 
cause the  three  fingers  to  which  he  points  out  shew  the  strength  of  the 
divorce  and  not  the  triple  character  of  the  same  :  in  paragraph  1147  the 
busbaud  says,  "  Thou  art  divorced  thus,"  and  points  three  fingers  and 
in  the  present  case,  he  says,  "  Thou  art  divorced  like  this  "). 


94  THE  TAGORB  LAW  LECTURES,  1891-92. 

Section  III. 

ON  THE  DIVORCE  OF  THOSE  WHO  HAVE  NO  UNDBRSTANDINa. 

2049.  (1149.)  Divorce  given  by  one  under  compulsion  is  effectual 
according  to  us  (that  is,  Aboo  Huneefa  and  bis  two  disciples,  on  whom 
be  peace),  but  Shaffei,  on  whom  be  peace,  differs  from  this  view.  So 
also  (is  effectual)  the  divorce  given  by  those  who  are  intoxicated  bj  means 
of  Khumwr  (or  wine  made  of  the  juice  of  grape)  or  Nubeez  (a  kind  of  beer) 
And  Kurky  and  Tuhawee  say — and  what  they  say  is  one  of  the  two 
views  of  Shaffei,  on  whom  be  peace, — that  divorce  given  by  those  who  are 
intoxicated  is  not  effectual. 

2060.  (1150.)  And  if  a  man  has  been  compelled  to  partake  of 
Khumv/r  (or  wine),  or  if  he  takes  wine  under  necessity,  and  he  becomes 
intoxicated,  and  divorces  his  wife  (under  such  intoxication),  then  the 
learned  lawyers  have  differed  in  this  matter :  and  the  correct  view  is  this, 
that  in  the  same  way  as  the  man  is  not  liable  to  punishment,  so  shall  the 
divorce  given  by  him  not  be  effectual,  and  his  dealings  (or  Tusurroof) 
shall  be  without  effect. 

2061.  (1151.)  And  it  is  reported  from  Mahomed,  on  whom  be  peace, 
that  if  a  man  drinks  of  Nubeez  (or  beer),  and  the  same  does  not  agree 
with  him,  and  the  fumes  thereof  ascend  and  give  him  a  headache,  and  his 
understanding  is  lost  on  account  of  the  headache  and  not  on  account  of 
his  drinking,  and  he  divorces  his  wife  (under  such  circumstances),  the 
divorce  shall  not  be  caused. 

But  if  his  understanding  is  lost  on  account  of  his  drinking  (the 
Nubeez  or)  the  wine,  or  if  he  is  struck  on  the  head,  so  that  his  understand- 
ing is  lost,  and  he  then  divorces  his  wife,  the  divorce  (so  given  by  him) 
shall  not  be  caused. 

2062.  (1152.)  And  if  a  man  drinks  of  wines  made  of  grain 
(such  as  rice  or  wheat  or  barley,  &c.),  or  fruit  or  honey,  then  if  he 
divorces  his  wife  or  emancipates  his  slave,  the  learned  lawyers  have 
differed  in  the  matter.  The  lawyer  Aboo  Jaffer,  on  whom  be  peace,  says 
that  the  correct  view  is,  that  in  the  same  way  as  he  is  not  liable  to 
punishment  so  shall  his  dealings  (or  Tumrroof)  be  devoid  of  effect. 

2063.  (1153.)  And  the  divorce  given  by  a  player  (or  Layib,  i.e.,  one 
who  acts  out  of  sport),  or  a  jester  {Eazil)  is  effective. 


ON  DIVOBCE   BY  WRITmG.  95 

2064.  (1154.)  And  as  regards  one  whose  understanding  is  lost  in 
consequence  of  (taking)  hemp  (Banj)  or  the  milk  of  the  ass,  the  divorce 
or  emancipation  given  by  him  shall  hot  be  efiEectual. 


Sbotion  IV. 

ON  DIVOECB  BY  WEITING. 

2055.  (1155.)  Writing  is  of  two  kinds, — customary  (Mursoom)  and 
non-customary  (Ghyr-Mursoom).  And  by  customary  writing,  I  mean  writ- 
ing which  is  addressed  and  directed  to  somebody,  such  as  writing  addressed 
to  a  person  who  is  absent  (or  away  from  the  writer) :  and  non-customary 
writing  is  writing  which  is  not  addressed  and  directed  (to  any  person). 

2056*  11156.)  Writing  which  is  non-customary  is  of  two  kinds ; 
manifest  {Moosiubeen)  and  not  manifest.  Manifest  writing  is  writing 
written  on  paper  {Saheefa)  or  wall  or  on  the  ground,  in  such  a  way 
that  it  is  possible  to  understand  {i.e.,  make  out)  the  writing  and  read  the 
same :  and  writing  not  manifest  is  what  is  written  in  the  air  or  upon 
water  or  upon  something,  so  that  it  is  not  possible  to  understand  or  read 
the  same. 

2057-  (1157.)  In  (non-customary)  writing  which  is  not  manifest, 
divorce  shall  not  be  caused,  aUhough  the  husband  might  have  an  inten- 
tion. But  if  the  writing  is  manifest,  although  it  might  be  non- custo- 
mary (as  when  a  man  writes  on  a  piece  of  paper,  "  My  wife  is  divorced," 
and  does  not  address  the  writing),  the  divorce  shall  be  caused  if  there  is  an 
intention,  not  otherwise.  But  if  the  writing  is  customary  (that  is,  if  it  is 
addressed  to  somebody)  then  the  divorce  shall  be  caused  whether  he 
intends  it  or  not  (because  the  writing  being  customary,  that  is,  addressed 
to  some  person,  it  must  be  taken  that  the  writer  makes  use  of  the  words 
and  pronounces  them  to  some  person  in  reference  to  his  wife). 

2058.  (1158.)  Then  in  the  case  of  a  customary  writing,  if  the  hus- 
band writes  an  absolute  divorce  (that  is,  without  the  qualification  that 
the  wife  is  to  be  divorced  on  her  receiving  the  writing)  in  this  way,  that 
is,  he  writes,  *'  After  this  (that  is,  after  what  has  preceded),  thou  art 
divorced,'*  then  as  soon  as  he  writes  this  (that  is,  the  words  "  Thou 
art  divorced  '*),  the  divorce  is  caused  (even  without  the  wife  receiving 
the  writing),  and  the  wife  is  bound  to  observe  the  Iddut  from  the  time  of 
the  writing ;  but  if  he  renders  the  divorce  conditional  (or  dependent)  on 
the  wife  receiving  the  writing,  in  this  way,  that  is,  the  husband  writes. 


96  THV   TAGORB   LAW   LVCTUBVS^    1891-92. 

*' When  thou  receivest  this  writing  of  mine,  then  thoa  art  divorced;" 
then  in  this  case,  if  she  does  not  receive  the  writing,  the  divorce  shall  not 
be  caused  ;  but  if  the  husband  writes  to  his  wife,  '^  When  tlion  receivest 
this  writing  of  mine  then  thou  art  divorced,"  and  he  then  writes  other 
necessary  matters,  and  the  woman  receives  the  writing,  whether  she  reads 
it  or  not,  the  divorce  shall  be  caused. 

2069.  (1159.)  And  if  it  occurs  to  him  after  what  be  hns  written 
(in  regard  to  other  matters,  which  are  located  in  the  writing  in  the 
manner  shewn  in  the  above  paragraph,  that  is,  the  clause  relating  to  other 
matters  being  after  the  clause  relating  to  divorce)  to  strike  out  from  the 
writing  what  he  has  written  regarding  other  matters,  and  he  does  so, 
leaving  intact  the  words,  "  When  thou  receivest  this  writing  of  mine 
then  thou  art  divorced  "  (and  also  leaving  intact  the  superscription  and 
address,  et  cetera)  and  she  receives  the  writing,  the  divorce  shall  be  caused 
(and  the  writing  does  not  cease  to  be  a  writing  because  something  at  the 
end  of  it  has  been  struck  out — the  term  "  writing  "  being  applicable  to 
the  principal  matter,  which  ordinarily  finds  a  place  at  the  beginning, 
according  to  the  rule  laid  down  in  paragraph  1161  post);  because  the  man's 
expression,  "  This  writing  of  mine,"  points  to  what  has  been  written 
before  divorce  (is  mentioned),  and  when  such  a  writing  (that  is  writing 
which  contains  the  mention  of  divorce  before  something  else  is  written, 
altiiough  what  follows  might  be  struck  out)  is  received  by  her,  then  the 
divorce  shall  be  caused. 

But  if  (in  the  same  kind  of  writing  as  regards  the  location  of  the  sub- 
jects contained  in  the  writing)  it  occurs  to  him  after  what  he  has  written 
(regarding  the  divorce  and  other  matters),  to  strike  out  "  When  thoa 
receivest  this  writing  of  mine  then  thou  art  divorced,"  and  be  strikes 
them  out,  and  leaves  intact  what  he  has  written  regarding  the  other 
matters,  and  the  woman  receives  this  writing,  the  divorce  shall  not  be 
caused  ;  because  the  condition  for  the  divorce  taking  place  is  that  the 
woman  should  receive  what  was  written  before  the  word  "this  "  (in  the 
sentence,  "When  thou  receivest  this  my  writing"),  and  when  he  has  struck 
out  that  (i.«.,  the  words  "  When  thou  receivest  this  my  writing"),  then  she 
has  not  received  that  with  which  the  divorce  is  connected  (that  is,  she  has 
received  no  writing  at  all,  because  "  writing"  means  the  principal  subject, 
and  such  subject  is  written  at  the  beginning.  See  paragraph  1 161  |>o«0- 
This  is  the  rule  when  other  matters  are  written  after  tlie  (clause 
regarding)  divorce. 


ON  DIVOBCE   BY  WBITINO.  97 

[NoTV. — A  divorce  written  is  similar  to  a  divorce  pronounced :  if 
the  hnsband  writes  something  which  may  be  correctly  called  a  wriU- 
ingy  and  then  writes  the  following  words — ^'^When  thou  receivest 
this  writing  thon  are  divorced" — the  effect  of  this  is  the  same  as  if  the 
haaband  had  nttered  those  words ;  and  if  he  utters  those  words,  then 
a  valid  condition  is  created  and  on  the  condition  being  realized  the  effect 
is  rare  to  follow ;  that  is  to  say,  if  he  ntters  the  words  **  When  thou 
receivest  this  writing  of  mine  then  thon  art  divorced, "  then  on  the  wife 
receiving  that  writing  she  must  become  divorced.  And  writing  being 
tantamoant  to  articulating  or  uttering  the  words,  if  the  hnsband  in  his 
"  writing  "  writes,  *^  When  thou  receivest  this  writing  of  mine  then  thou 
art  divorced,  *'  and  afterwards  strikes  out  the  words  **  When  thou  receivest 
thiswritingof  mine  then  thon  art  divorced,''  even  then  the  divorce  shall 
be  caused  if  the  wife  receives  the  writing;  and  in  such  a  case  divorce  can 
only  be  avoided  if  what  is  termed  'the  writing'  is  not  received  by  the  wife. 
There  are  two  ways  by  which  the  writing  may  be  said  not  to  have  been 
received  bj  the  wife ;  first,  if  the  paper  on  which  the  '*  writing ''  is 
written,  is  not  at  all  received  by  thej  wife ;  or  second  if  the  paper  is 
received  by  her,  but  it  contains  nothing  which  can  be  called  **  this 
writing. "] 

2060.  (1160.)  But  if  the  hnsband  writes  the  other  matters  first  (and 
therefore  those  other  matters  constitute  what  is  called  '^  the  writing ''),  and 
after  that,  writes,  *'  When  thon  receivest  this  my  writing,  then  thou  art  di- 
vorced,'' and  he  afterwards  strikes  out  the  other  matters  (the  effect  of 
which  is  that  there  is  no  **  writing  "),  leaving  the  words  "  When  thou  res 
ceivestthis  my  writing,  then  thou  art  divorced,"  and  she  receives  the  same 
(that  is,  the  paper  in  which  the  writing  is  so  mutilated  or  struck  out),  the 
divorce  shall  not  be  caused ;  because  the  condition  for  the  operation  of  the 
divorce  in  this  case  (that  is,  in  the  case  where  the  other  matters,  which  are 
rtrock  out,  are  stated  in  the  first  part  of  the  letter),  is  the  receiving  by  the 
woman  of  what  has  been  written  regarding  the  other  matters  (which  consti- 
tute the  **  writing  "),  anterior  to  the  writer's  words  **  When  thou  receivest 
this  writing  of  mine,  thou  art  divorced,"  and  she  never  received  this  (that 
is,  the  **  writing  "  which  is  the  statement  of  the  other  matters  written 
before  the  words  of  divorce). 

And  if  (in  the  same  kind  of  writing  where  the  divorce  clause  comes 
subsequently),  he  strikes  out  the  expression  *'  When  thou  receivest  this  my 
writing  (then  thou  art  divorced),"  and  leaves  what  is  written  before  it  (i.e., 
13 


98  THE   TAGORB   LAW   LBCTUBB8,   1891-92. 

the  statement  regarding  other  matters),  and  this  (paper  so  written  and  struck 
out)  reaches  her,  the  divorce  shall  be  caused  (because  the  "writing" 
technically  so  termed  reaches  her  although  he  pens  through  the  conclud- 
ing clause,  the  ''  writing  "  being  the  principal  matter,  and  the  principal 
matter  being  written  first;  therefore  it  cannot  be  said  that  in  this  case 
she  has  not  received  the  "writing:*'  the  wife  having  received  the  "writing'* 
she  becomes  divorced,  because  the  writing  is  of  the  constomary  kind,  and 
in  such  writing  the  divorce  clause  as  originally  written  must  be  taken  as 
if  the  husband  had  pronounced  the  words  "  When  thou  receivest  this  my 
writing  thou  art  divorced  :  ^'  and  after  divorce  has  once  been  made 
dependent  on  a  condition,  it  is  beyond  the  power  of  the  husband  to  negative 
the  operation  of  the  divorce  on  the  condition  being  realised,  unless  be 
puts  an  end  to  the  relationship  of  husband  and  wife  by  three  immediate 
divorces.  His  striking  out  the  divorce  clause  from  the  writing  cannot 
have  greater  effect  than  in  the  case  where  having  verbally  made  the 
divorce  dependent  on  a  condition,  he  were  to  say,  '*I  nullify  the  operation 
of  the  divorce,  '^  and  this  he  is  unable  to  do). 

2061.  (1161.)  The  result  is,  that  what  is  written  before  the  words 
*'  This  writing  of  mine "  is  the  principal  thing,  and  what  follows  is 
secondary,  and  regard  is  to  be  had  to  the  principal  thing  and  not  to  the 
secondary  one:  and  (the  divorce  shall  be  caused  or  not,  as  the  case  may  be 
as  laid  down  in  the  previous  paragraphs),  because  writing  is  spoken  of 
with  reference  to  what  is  of  importance,  and  what  is  important  is  what  is 
mentioned  at  the  beginning. 

2062.  (1162.)  And  if  the  husband  writes  the  divorce  in  the  middle 
of  the  writing  (saying  "When  this  my  writing  reaches  thee,  then  thou 
art  divorced),  and  he  writes  necessary  matters  both  before  and  after  the 
divorce  and  the  husband  then  strikes  out  the  (clause  regarding)  divorce^ 
and  sends  the  writing  to  his  wife,  the  divorce  shall  be  caused,  whether  the 
matter  written  before  the  clause  relating  to  divorce  is  shorter  or  more 
lengthy  (than  the  matter  written  after  divorce).  And  Aboo  Tusoof,  on 
whom  be  peace,  has  held  that  such  shall  be  the  case  (that  is,  the  divorce 
shall  be  caused),  if  the  matter  written  before  the  clause  relating  to  divorce 
is  longer  (than  the  matter  written  after  the  divorce  clause) ;  and  that  if 
the  matter  written  after  the  clause  relating  to  divorce  is  more  lengthy, 
then  the  woman  shall  not  be  divorced. 

2063.  (1163.)  And  if  the  husband  writes  the  divorce,  at  the  end 
of   the  writing  (saying,   "When  thou  receivest  this  my   writing  thou 


OH  DIVORCB   BY  WBITINO.  99 

trt  divorced")  and  he  strikes  out  what  precedes  the  divorce  clause,  or 
strikes  oat  a  major  portion  of  the  words  which  precede  the  divorce  clanse, 
leaving  the  olanse  relating  to  divorce  intact,  the  woman  shall  not  he 
divorced  (becanse  the  case  is  that  the  hnsband  writes  *^  If  thou  receivest 
this  writing  of  mine  then  then  art  divorced;  "  then  if  he  strikes  ont  all 
that  precedes  the  divorce  claase,  or  a  major  portion  thereof,  nothing 
remains  which  can  be  called  a  *^  writing. '') 

2064.  (1164.)  A  man  writes  to  his  wife  ''Every  wife  of  mine 
excepting  thee  and  excepting  so  and  so,  is  divorced ;  "  he  then  strikes  ont 
the  name  of  *  so  and  so '  (so  that  what  remains  is  this,  ''  Every  wife  of 
mine  excepting  thee  is  divorced  ")  and  sends  the  writing  to  her,  the  '  so 
and  so'  shall  not  be  divorced  (becanse  she  has  already  been  excepted  and 
by  striking  ont  the  claase  excepting  her,  the  divorce  does  not  become  ap- 
plicable to  her  :  see  Radd-ool  Moohtar,  Vol,  II,  page  704,  line  5.  A  man 
has  a  wife  called  Zynnb ;  he  then  goes  to  another  town  and  there  marries 
Aysha ;  the  husband  fears  Zynnb's  wrath,  and  writes  to  her,  ''  Every  one 
of  my  wives,  excepting  thee  and  excepting  Aysha,  is  divorced ; "  he 
then  strikes  oat  the  words  **  and  excepting  Aysha,''  so  that  what  remains 
is  "Every  one  of  my  wives  excepting  thee  is  divorced :  "  Aysha  shall  not 
be  divorced ;  but  it  is  necessary  that  he  should  make  persons  attest  or  be 
witnesses  to  the  erasure  or  striking  out  in  order  that  there  might  be  no 
doubt  left  as  to  what  he  has  struck  out,  because  he  might  have  struck  out 
the  portion  in  such  a  way  as  to  make  it  perfectly  illf^gible,  when  the 
Eiizee  would  proceed  on  the  writing  as  it  stands,  and  would  decree  divorce 
against  Aysha.  Tliis  is  a  wonderful  device,  and  what  is  wonderful  is  that 
writing  is  effectual  even  after  it  has  been  erased  or  made  muho :  so  that 
the  writing  as  it  stands  satisfies  Zynub,  and  she  understands  it  in  the  sense 
that  all  the  wives  excepting  herself  are  divorced,  and  the  husband  saves 
Aysha  from  divorce  by  first  excepting  her  from  the  divorce  and  secondly 
bj  so  erasing  the  excepting  clause  as  to  make  it  illegible). 

9065.  (1165.)  And  if  he  writes  to  his  wife,  **  Be  it  known  after  that 
(or  AmmabadOf  that  is,  after  the  praise  of  God  or  after  the  superscription), 
thou  art  divorced  thrice  if  it  pleaseth  God :  "  then  if  the  words,  "  If  it 
pleaseth  God,  *'  have  been  joined  in  writing  to  the  preceding  words  (and 
written  without  any  break  in  the  space),  the  woman  shall  not  be  divorced  : 
bat  if  he  writes  the  divorce  clause  and  then  leaves  a  space  and  then  writes, 
**  K  it  pleases  God,"  his  wife  shall  be  divorced,  because  writing  by  an 
absent  person  is  like  the  address  (or  speech)  of  one  who  is  present,  and  in  the 


100  THE  TAQOBI  LAW  LSCTUUES,  1891-92. 

case  of  an  address  (or  speech)  the  exception  (that  is,  the  words  <'  if  it 
pleaseth  God  ")  is  effective  if  it  is  joined  to  the  preceding  clause,  and  it  is 
not  effective  if  it  is  disjoined.  (See  also  Futawai  Alamgiree,  YoL  I,  pages 
533  and  634:  see  paragraphs  1488  and  li9&  post,  as  regards  the  effect  of  the 
exception  or  iaiutia  in  speech.  See  Badd-ool  Moohtar,  Vol.  11,  page  838, 
if  a  man  says  verbally,  '^  Thou  art  divorced,"  and  writes  immediately  after 
he  finishes  his  speech  without  a  stop  or  break,  ''  if  it  pleases  God,"  then 
the  exception  is  valid,  and  the  divorce  shall  not  be  caused;  if  he  writes  the 
words,  ^^  Thou  art  divorced,"  and  immediately  j>ronotenc««  and  ntters  the 
words,  '^If  it  pleases  God,^'  then  also  the  exception  is  effective  and  no  divorce 
shall  be  caused  ;  if  he  writes  the  expression,  **  Thou  art  divorced,  if  it 
pleases  God,"  and  then  strikes  out  or  erases  the  words,  '^If  it  pleases  God," 
then  also  the  exception  shall  be  effective  and  no  divorce  shall  be  caused ; 
therefore  there  are  four  aspects  of  the  case; — first,  if  he  writes  both  the 
divorce  and  the  exception; — secondly,  if  he  utters  both; — tAirdly,  if  he 
writes  the  divorce  and  utters  the  exception  ; — and  fowrtUy,  if  he  utters  the 
divorce  and  writes  the  exception ;  in  all  these  four  cases  no  divorce  shall  be 
caused.  In  the  use  of  the  exception  it  is  not  necessary  that  the  exception, 
in  order  to  be  effective,  should  be  intentionally  used  :  so  that  if  it  is 
used  without  an  intention,  as  for  instance,  when  it  comes  out  of  the  lips 
quite  unintentionally,  even  then  it  is  effective,  and  no  divorce  shall  be 
caused.     (See  also  paragraph  997). 

2066.  (1166.)  And  if  the  husband  writes  to  his  wife,  «' When  thou 
receivest  this  my  writing,  then  thou  art  divorced,"  and  the  writing 
reaches  her  father,  who  receives  it  and  tears  it,  and  does  not  make  it  over 
to  her;  then  if  the  father  is  transacting  all  her  affairs  on  her  behalf,  and 
her  father  receives  the  writing  in  the  city  in  which  she  resides,  the  divorce 
shall  be  caused ;  because  the  reaching  of  the  writing  to  the  father  whilst  he 
is  transacting  her  affairs  is  like  the  reaching  of  the  writing  to  herself ;  but 
if  such  is  not  the  case  {i.e.,  if  the  father  is  not  acting  on  her  behalf  and 
is  not  transacting  all  her  affairs),  the  divorce  shall  not  be  caused  as  long  as 
the  writing  does  not  reach  her  ;  but  if  the  father  (in  the  event  of  his  not 
having  authority  as  shewn  above)  gives  information  to  her  of  the  writing 
having  reached  him,  then  if  the  father  makes  over  the  writing  to  her,  whilst 
the  same  is  torn  but  so  that  it  is  possible  (to  join  the  pieces  together  and) 
to  understand  the  writing  and  read  it,  the  divorce  shall  be  caused  on  her, 
otherwise  not. 

a067«    (1167.)    A  man  is  compelled  by  being  beaten  and  impri- 


ON  CONDITIONS  IN  DIVORCE.  101 

soned  to  write  a  divorce  to  his  wife  so  and  so,  daughter  of  so  and  so^  son 
of  80  and  so,  and  he  writes  that  his  wife,  **  So  and  so,  the  daughter  of 
80  and  so,  son  of  so  and  so,  is  divorced  :  "  his  wife  shall  not  be  divorced ; 
because  writing  takes  the  place  of  speech  when  necessary,  and  there  is 
no  necessity  in  this  case  (bat  if  the  man  was  made  to  say  so  nnder 
compalsion,  his  wife  shall  become  divorced). 

2068.  (1168.)  As  regards  a  man  who  is  dumb,  when  he  is  anable  to 
write  although  he  has  signs  well  known  in  his  dealings;  according  to  analogy 
no  act  of  his  shall  be  effective  relating  to  divorce,  or  emancipation,  or  sale 
or  like  matters,  in  the  same  way  as  the  acts  of  a  sick  man,  whose 
tongue  has  become  incapable  of  clear  articulation  {Sukeel)  in  consequence 
of  his  sickness ;  and  this  is  the  view  of  Malik  and  Ibn-i-Aboo  Laila,  oa 
whom  be  peace ;  but  according  to  us  ( Aboo  Huneef a  and  his  two  dis* 
ciples),  these  acts  (that  is,  divorce,  emancipation,  sale,  &c.,  by  the  dumb) 
shall  be  effective  by  his  fixed  signs,  in  the  same  way  as  they  are  effective 
hj  his  writing ;  because  there  is  no  hope  as  regards  one  who  is  dumb  that 
he  shall  speak,  and  therefore  sign  must  take  the  place  of  speech  in  the 
same  way  as  writing  takes  the  place  of  speech.    God  knows  best» 


CHAPTER  IL 
ON  CONDITIONS  IN  DIVORCE. 
Section  I. 

ON  CONDITIONS  IN  GBNBEAL  BELATING  TO  DIVORCE. 

aoe9.  (1169.)  [NoTs,— See  Rudd-ool  Moohtar,  Vol.  II,  page  809. 
Condition  or  Taleek,  according  to  dictionary,  means  to  render  a  thing  depen- 
dent on  another;  according  to  Skera  or  law,  it  implies  ruht  or  connecting 
the  kasaol  or  realization  or  existence  of  the  meaning  of  one  sentence  with 
the  realisation  or  existence  of  the  meaning  of  another  sentence ;  as  for 
instance,  when  a  man  says,  **  If  you  enter  the  house,  then  yon  are 
divorced;"  here  the  realisation  of  the  idea  contained  in  the  sentence 
**  Yon  are  divorced,''  that  is  the  existence  of  the  divorce  of  the  woman 
is  connected  with  the  realisation  or  existence  of  the  fact  involved  in 
the  sentence,  **  If  you  enter  the  house.''  A  condition  is  also  metaphori- 
cally or  by  way  of  Mujaz  called  an  oath  or   Yumeen.    It  is  necessary 


102  THE  TAOOBV  LAW  LBCTITBBS,   1891-92. 

for  the  validity  of  a  conditional  formula  that  the  condition  should 
be  non-existent,  so  that  its  existence  at  present  is  a  matter  of  doubt  and 
not  so  that  its  existence  is  either  certain  or  impossible ;  as  for  instance 
when  a  man  says,  **  If  you  enter  the  house,  then  you  are  divorced," 
here  the  condition  is  valid,  because  the  entry  in  the  house  is  at  present 
non-existent,  but  it  is  such  that  it  may  or  may  not  happen  or  come  into 
being ;  but  if  the  husband  says,  ^*  If  the  sky  is  above  the  eartli,  then  you  are 
divorced,"  here  the  condition  is  certain  in  its  existence  and  is  already 
in  being  or  Kairiy  and  therefore  the  divorce  is  not  conditional  at  all;  on  the 
other  hand,  in  such  a  case  the  result  is  that  the  divorce  is  caused  at  once; 
here  there  is  no  real  Taleek  or  condition,  but  there  is  Tunjeez  or  the  causing 
of  the  divorce  instantly.  If  the  condition  is  impossible,  then  it  is  void,  and 
there  is  no  divorce  at  all ;  as  for  instance,  when  a  man  says,  '^  If  the  camel 
should  enter  the  eye  of  the  needle,  then  you  are  divorced ;''  here  the  condi- 
tion is  impossible  or  mahaly  and  there  is  no  divorce  at  all ;  on  the  other 
hand,  the  connecting  of  the  divorce  or  making  it  dependent  on  such  an 
impossible  condition  is  voider  lugho;  because  the  object  of  making  the 
divorce  dependent  on  a  thing  which  is  impossible  is  to  negative  the 
existence  of  the  divorce,  and  not  to  bring  it  into  existence]  • 

A  man  says  to  his  wife,  ''  Dost  thou  intend  (or  desire)  that  I  should 
divorce  thee,'*  she  says  "  Yes ; "  he  then  says  (in  Persian),  "  If  then  art 
my  wife,  (then)  one  divorce,  and  three  divorces,  and  a  thousand  divorces, 
(and  adds  on  in  Arabic),  Get  up  and  go  away  from  me; ''  the  husband 
says  that  by  this  he  did  not  intend  divorce  (upon  her,  not  having  referred 
the  divorce  to  his  wife) :  the  word  to  be  accepted  shall  be  his  word ; 
because  he  does  not  (in  the  expression  used  by  him)  refer  the  divorce  to 
her  (not  having  said  that  the  divorce  is  on  thee), 

2070*  (1170.)  A  man  says  to  his  wife  (in  Persian),  "  If  thou  goest 
to  the  house  of  thy  mother  (then)  divorce  on  thee ; "  the  woman  goes  up 
to  the  door  of  the  house  of  her  mother  and  does  not  enter  the  house  :  the 
Mashaikhs  (learned  Doctors)  have  differed  in  this  matter;  and  the 
correct  view  is  that  the  woman  shall  not  become  divorced,  because  people 
by  the  use  of  such  expressions,  intend  prohibition  from  entering  the 
house,  and  the  woman  shall,  therefore,  not  become  divorced  unless  she 
enters  the  house. 

2071.  (1171.)  A  man  says  to  his  wife  (in  Persian),  "  If  thou  doest 
an  unlawful  act  (that  is,  if  thou  hast  sexual  intercourse)  with  anybody, 
(and  completes  the  sentence  in  Arabic)  then  thou  art  divorced, ''   the 


OW  CONDITIONS   IN   DIVOKCIB.  108 

husband  then  (also)  gives  her  a  complete  {bain)  divorce ;  he  then  daring  her 
LWiU,  liaa  intercourse  with  her  (which  is  unlawful  because  the  divorce  was 
lain) :  the  learned  lawyers  have  said,  arguing  by  way  of  analogy  from  the 
view  taken  by  Aboo  Huneefa  and  Mahomed,  on  whom  be  peace,  that  the 
woman  shall  become  divorced  (that  is,  one  farther  divorce  arising  on  the 
happening  of  the  condition  mentioned  in  the  conditional    formula   will 
take  effect,  so  that  he  shall  have  now  left  to  him  the  power  of  giving  one 
more  divorce  to  the  same  woman  before  invoking  the  aid  of  the  legaliser— 
every  husband  having  the  power  of  three  divorces  in  reference  to  the  same 
woman :   and  the  case  put  is  that  of  sexual  intercourse  within  the  period 
of  the  IddiUy  because  the  relationship  does  not  cease  altogether  before  the 
erpiiy  of  the  Iddut  although    the   divorce   might  be  a  bain  or  complete 
divorce,  but  the  power  of  the  husband  over  the  wife  subsists  to  a  certain 
extent,   so  that  before   the   Iddut  has  expired  he  can  give  her  a  divorce, 
and  therefore  the   condition  in   the   conditional   divorce   is    capable   of 
taking  effect,  but  if  the   Iddut  has  expired,  then  the  parties  become 
strangers,   and  the  condition   cannot    possibly  take    effect).     And  the 
learned  Doctors  have  rendered  this  case  a  branch  of  (and  as  arising  from 
what  Aboo  Haneefa  and  Mahomed  have  laid  down  in)  the  case  in  which 
a  man  says  to  his   wife,   ^^  Every   woman  that  I   shall   marry,   shall  be 
divorced,"   and  he  then   gives   her  a  complete  {bain)  divorce,  and  then 
(again)  marries  her ;  here  the  woman   shall   become   divorced,   according 
to  the  two  {i.e.9  Aboo  Huneefa  and  Mahomed)  in  consequence  of  the  words 
(nsed,   wa.,  **  every  woman  that  I  shall  marry  ")  being  general ;  whereas 
she  shall  not  be  divorced  according  to  Aboo  Yusoof,  on  whom  be  peace, 
(and  therefore  in  the  case  under  consideration  in    the   beginning  of  this 
paragraph,  the  woman  shall  not  become  divorced)  and  this  view  (of  Aboo 
Tusoof)  has  been  accepted  by  the  Doctor  Aboo  Leith,  on  whom  be  peace, 
(as  regards  the  result  in  the  case  of  **  Every  woman  that  I  shall  marry  ") 
because  apparently  the  man  does  not  intend  to  include  her  by  his  assever- 
ation (or  oath    '^  Every  woman  that  I  shall  marry,  shall  be  divorced.") 

8072.  (1172.)  A  man  says  to  another  (in  Persian),  "  My  wife  is 
from  me,  with  tiiree  divorces,  if  thou  do  not  come  to  me  as  my  guest, " 
The  lawyer  Aboo  Jaffer,  on  whom  be  peace,  says,  that  this  condition 
(although  it  is  in  a  negative  form,  and  although  it  relates  to  the  will  of 
another)  is  valid  just  as  if  he  says  (in  Arabic),  **  If  thou  do  not  come 
to  me  as  a  guest,  then  my  wife  is  divorced"  (the  expression  being  used 
by  way  of  inducement  to.  the  guest  to  accept  the  invitation). 


104  THS   TAOOBV  LAW  LICTTTBJBS^   1891-92. 

So  also  if  his  wife  has  been  accused  of  having  piclced  np  (Chat 
18  stolen)  a  thing,  and  the  hnsband  says  (in  Persian),  **  Thou  from  me 
art  with  three  divorces  if  thou  hast  not  picked  np  this  "  (the  expression 
being  used  to  induce  her  to  make  the  admission),  the  fact  being  that  the 
woman  has  not  picked  up  the  thing,  she  shall  become  thrice  divorced ; 
because  the  expression  makes  the  condition  of  the  divorce  to  depend  on 
the  absence  of  the  picking  up  (and  to  make  a  condition  dependent  on  a 
negative  is  allowable)  according  to  {Ootf  or)  ordinary  parlance  (just  as  to 
make  a  condition  dependent  on  an  aflirmative  is  valid). 

2073«  (1173.)  A  man  says  (in  Persian),  **  If  I  take  a  wife  excepting 
80  and  so,  then  I  have  given  a  thousand  divorces,"  or  says  to  a  strange 
woman  (in  Persian),  **  If  I  marry  excepting  thee,*'  or  says,  **  If  excepting 
thee^  I  (will)  have  a  wife,  (and  completes  the  sentence  in  Arabic  by 
saying)  then  she  is  divorced,"  he  then  marries  a  woman  and  then 
marries  another ;  the  first  woman  (married  after  the  asseveration)  shall 
be  divorced  and  not  the  second  (woman,  although  married  after  the  as- 
severation) ;  because  when  he  does  not  say,  **  Every  wife  that  I  may  have 
excepting  thee,''  then  in  that  asseveration  (that  is,  the  one  first  mentioned* 
via,,  "  If  I  take  a  wife  excepting  thee,"  or  **  If  I  marry  excepting  thee," 
or  **  If  excepting  thee  I  will  have  a  wife  "),  no  woman  except  one  woman 
is  included,  and  therefore  when  the  man  marries  the  first  wife  (that  is,  the 
first  in  addition  to  the  one  referred  to  in  his  asseveration),  the  man  com- 
mits a  breach  of  his  oath,  and  the  divorce  is  caused  and  his  oath  comes  to 
an  end  (that  is,  its  force  is  lost  or  spent)  and  therefore  the  second  wife 
(married  after  the  asseveration  or  oath)  shall  not  become  divorced :  (but  if 
he  had  said,  '^  Every  woman  whom  I  shall  marry,"  then  all  the  wives 
married  afterwards  would  became  divorced). 

So  also  if  he  says  (in  Persian),  *'  If  there  (will)  be  a  wife  to  me 
in  this  world,  then  three  divorces  on  her,"  and  he  marries  a  woman :  she 
shall  become  divorced ;  and  if  he  marries  a  second  wife,  the  second  wife 
shall  not  become  divorced,  because  this  asseveration  (or  oath)  comprehends 
but  one  woman. 

2074.  (1174.)  A  man  (addressing  his  wife)  says  to  his  wife  (in  Per- 
sian), "  A  thousand  divorces,  if  thou  do  such  and  such  an  act,"  inten- 
ding thereby  a  condition  (that  is,  the  causing  of  a  thousand  divorces  on 
condition  that  she  does  the  act)  :  the  learned  lawyers  have  said  that  the 
divorces  shall  not  happen  on  the  condition  being  realised  (because  the 
asseveration  does  not  say  ^<  A  thousand  divorces  on  tliee  "},  nor  shall  this 


ON  CONDITIONS   IN   DIVOECI.  105 

expression  have  the  effect  of  (Tunjeez  or)  causing  instantaneons  divorce. 
Bat  if  he  says  (in  Persian),  <'  If  thon  do  such  an  act  (then)  a  thousand 
divorces/'  (without  saying  '^  A  thousand  divorces  on  thee  ^%  intending 
thereby  the  happening  of  divorce  (to  the  woman)  on  condition  she  does 
the  act,  this  (that  is,  this  expression  in  which  the  condition  is  mentioned 
first)  is  a  conditional  divorce  (and  the  divorce  shall  be  dependent  on  the 
condition). 

Bat  according  to  the  new  school  {Mootahhireen),  the  divorce  shall  be 
dependent  on  the  condition  in  both  cases  (and  shall  apply  to  the  woman 
addressed  although  the  word  *^  thee"  is  omitted),  because  (in  the  second 
case)  the  expression  is  considered  to  be  a  conditional  divorce  when  the 
condition  is  mentioned  first,  only  because  the  address  is  involved  in  it  by 
implication  (that  is,  it  means  ^*  A  thousand  divorces  on  thee,**  because  she 
is  the  person  addressed),  and  it  is  therefore  fit  (and  proper)  that,  where  the 
condition  is  mentioned  last,  the  expression  should  also  be  considered  a  con- 
ditional divorce,  the  address  being  here  also  involved  by  implication  (so  that 
the  expression  means  ^^  on  thee  a  thousand  divorces  ")• 

2076.  (1175.)  A  man  says  (in  Persian),  '^  If  I  ever  cultivate  in  this 
Tillage,  then  (he  goes  on  in  the  Arabic),  my  wife  shall  be  divorced : ''  the 
learned  lawyers  have  said  that  if  in  the  village  the  man  cultivates  grain, 
or  Ftdeez  or  cotton,  he  shall  break  his  oath  (or  asseveration),  but  if  he 
irrigates  the  field  or  cuts  the  crops,  he  shall  not  break  his  oath ;  so 
also  if  he  turns  up  (or  digs)  the  soil  and  does  not  sow  the  crop,  he  shall 
not  break  the  vow.  And  if  he  gives  the  land  to  another  person  (by  the 
contract  of  Moozariut)  to  cultivate,  or  if  he  hires  a  labourer,  and  the 
labourer  cultivates  the  soil,  then  if  the  taker  of  the  oath  is  one  who  him- 
self tills  the  soil,  he  shall  not  break  his  oath  unless  he  means  (at  the  time 
he  expresses  his  oath  as  aforesaid)  that  he  will  not  order  somebody  else 
to  do  the  act,  in  which  case  he  shall  break  his  oath. 

And  if  his  slave  cultivates  the  land,  or  if  the  labourer  does  it,  in  case 
the  slave  or  labourer  was  in  the  habit  of  doing  so  for  the  man  before  he 
took  his  oath,  then  the  man  shall  break  his  oath,  unless  he  contemplated 
(in  his  expression  of  oath)  the  doing  of  such  act  himself  (as  contra- 
distinguished from  the  act  of  his  slave  or  labourer,  and  then  he  shall  not 
break  his  oath). 

2076.     (1176.)    A  man  says  to  his  wife  (in  Persian),  "Thou  art  di- 
vorced, that  I  have  done  this  act,'*  (that  is,   "as  I  have  done  this  act"  )  or 
says^  "  That  I  have  not  done  this  act,"  the  husband  having  made  a  true 
14 


106  THE  TAGOUE  LAW  LECTURES,  1891-92. 

statement  (as  reg^ards  his  having  done  or  not  done  the  act) ;  the  Mdshaiky 
have  differed  in  this  matter:  most  of  them,  amongst  whom  is  Sheikh-ool 
Imam  Aboo  Baker  Mohamed,  son  of  Fazul,  on  whom  be  peace,  have  said 
that  this  is  {Tunjeez  or)  an  expression  by  which  instantaneous  divorce  is 
caused,  and  that  it  is  not  an  expression  of  conditional  divorce  except 
when  the  expression  is  used  at  a  place  where  conditional  divorce  is  only 
expressed  in  that  way  (and  in  case  the  expression  is  conditional,  the 
meaning  of  the  two  expressions  respectively  is  this  ;  '^  I  have  done  this 
act,  if  I  have  not  done  it,  thou  art  divorced ; "  and  '<  I  have  not  done  this 
act,  if  I  have  done  it,  thou  art  divorced  ") ;  whilst  others  have  said  that 
the  same  is  an  expression  of  conditional  divorce ;  and  that  which  shews 
that  this  (latter)  view  is  correct  in  the  following  tradition  from  Aboo 
Yusoof,  on  whom  be  peace : — "  A  man  says  to  his  wife  (in  Arabic), '  Thou 
art  divorced,  that  I  have  entered  the  house,'  and  this  is  an  oath,  just  as 
if  he  had  said,  *  I  have  entered  the  house ;  if  I  have  not  entered  the 
house,  tlien  my  wife  is  divorced.*  ** 

And  the  meaning  (or  equivalent)  of  this  in  Persian  is  the  followingt 
**Hi8  wife  be  with  divorce  that  he  has  done  this  ;  "  (meaning  thereby  "  I 
have  done  this  act;  if  I  have  not  done  it,  my  wife  is  divorced  *'),  and  there- 
fore if  he  has  done  the  act,  he  does  not  break  his  oath,  but  if  he  has  not 
done  the  act,  he  breaks  his  oath.  And  according  to  our  practice  (or 
Oorf)  such  an  expression  is  used  in  expressing  a  conditional  divorce;  thus 
the  £azee  administers  the  oath  on  the  defendant  thus  (in  Persian),  '^  By 
God,  that  thou  dost  not  owe  the  thing  to  him  "  (meaning  you  take  oath 
'^  I  swear  I  do  not  owe,''  so  that  if  he  owes,  he  breaks  the  oath). 

2077.  (1 177.)  A  man  says  to  his  wife,  "  Thou  art  divorced,  thou  shali 
not  enter  the  house ; "  this  is  equivalent  to  his  saying,  ^^  Thou  art  divorced, 
if  thou  shalt  enter  the  house." 

2078.  (1178.)  And  if  the  man  says,  <'  Thou  art  divorced,  thou  hast 
entered  the  house : "  the  woman  shall  at  once  be  divorced,  because  no 
word  has  been  found  used  by  the  husband  which  is  expressive  of  a  con- 
ditronal  divorce. 

2079.  (1179.)  A  man  says  to  his  wife,  '^  Thou  art  (that  is,  shalt  be) 
divorced ;  if  thou  shalt  enter  the  house,  I  shall  verily  divorce  thee  :  "  this 
is  an  oath  as  regards  her  divorce  if  he  should  not  divorce  her  on  her 
entering  the  house  (the  meaning  of  the  expression  being,  ^^If  thou  shalt 
enter  the  house,  then  I  shall  divorce  thee,  and  if  on  thy  entering  the 
house,  [  do  not  divorce  thee,  then  thou  art  divorced " ) ;  just  as  if   he 


ON   CONDITIONS   IN  DIVORCH.  107 

had  Baid,  ^'Wben  thou  shalt  enter  the  hoase,  I  shall  divorce  thee^  and  then 
thou  shalt  be  divorced,  (and  if  I  do  not  then  divorce  thee,  thou  shalt  be 
divorced  ^') ;  and,  therefore,  when  she  enters  the  house^  it  is  obligactory  on 
|iim  to  divorce  her  ^  so  that,  if  he  does  not  divorce  her  until  the  woman 
dies  or  the  husband  dies,  the  divorce  shall  be  caused  (that  is,  the  divorce 
shall  be  cattsed  just  as  he  or  she  is  about  to  die,  and  immediately  before 
death  takes  place;  because  until  such  moment  arrives,  it  cannot  be  said 
that  the  husband  has  not  exercised  his  power  of  giving  divorce). 

And  this  is  equivalent  to  what  a  man  says  (to  his  wife),  *^  If  thou 
shalt  enter  the  house,  then  my  slave  shall  be  free  if  I  do  not  strike  thee,'' 
(that  is,  "  If  thou  enter  the  house  and  I  do  not  strike  thee,  then  my  slave 
shall  be  free,"  in  which  case  the  slave  shall  not  be  free  if  on  the  wife 
entering  the  house  the  husband  strikes  her  ;  but  if  she  enters  the  house 
and  the  husband  does  not  strike  her,  then  the  slave  shall  be  free  only  when 
it  is  beyond  the  power  of  the  husband  to  strike,  and  that  is  immediately 
before  his  death). 

S080.  (1180.)  A  man  says  to  his  wife,  *^  Enter  the  house  and  thou 
art  divorced ;  '^  the  woman  enters  the  house :  she  shall  become  divorced. 

So  also  if  he  expresses  himself  in  like  manner  to  his  slave  (saying 
**  enter  the  house  and  thou  art  free  ")•  Because  what  follows  the  imper* 
atiYe  with  the  conjunction  '<  and,"  is  similar  to  what  follows  a  condition 
with  the  word  '^  then  "  (that  is,  the  expression — ''  Enter  the  house  and  thou 
art  divorced"  is  equivalent  to  the  expression — **  If  thou  enter  the  house, 
then  thou  art  divorced  ")• 

And  for  this  reason  if  a  man  says  to  his  slave,  **  Pay  me  a  thousand 
and  thou  art  free,"  this  is  expressive  of  a  condition  (dependent  on  the) 
payment  of  a  thousand. 

2081.  (1181.)  A  man  takes  an  oath  in  Persian  saying,  "At  the  time 
(that is  hurgah)  that  I  do  this  act,  then  such  and  such:"  iti  Persian, 
expressions  of  this  nature  are,  "  at  the  time  that  (or  hur  waqt), "  and 
^  at  the  moment  that  (or  hur  gah),  "  and  **  at  what  time  that  (or  hwr  chai 
gah),  "  and  "  at  the  period  of  time  that  (or  hur  zuman)y "  and  «  at  a  time 
that  (or  fewween), "  and  "  at  any  time  (or  humaisha),  "  and  "  at  every  time 
(or  hur  bar'*);  one  of  these  expressions  inrolves  a  repetition  of  the  breach 
of  the  oath  with  each  repetition  of  the  act  according  to  the  view  of  all  the 
Poctors  and  that  is  the  expression  "  hur  har  or  at  every  time  that;  "  just  as 
if  the  man  were  to  say  in  Arabic,  ''KooUuma,  or  every  time  that  I  shall  enter 
the  house,  my  wife  shall  be  divorced ; "  so  that  if  he  enters  the  house 


108  THE  TAOOEB  LAW  LECTTIEBS,   1891-92. 

several  times^  the  divorce  shall  be  repeated  with  the  repetition  of  the 
entry :  and  in  other  expressions  besides  (that  is,  besides  the  expression 
"  every  time  '0  that  is,  in  the  expressions  "  hur  zuman,^^  and  ^  hur  gah  " 
(which  are  the  Persian  rendering  of  the  word  MtUa,  which  means, 
**  when,*'  or  "  at  the  time  when  ^*),  there  is  no  repetition  of  the  breach 
of  the  oath  with  each  repetition  of  the  act,  and  the  man  shall  not  break 
his  oath  excepting  once,  just  as  if  he  says  (in  Arabic),  "  When  {Muta), 
I  shall  enter  the  honse,''  or  **  the  time  when  {Muta  ma),  I  shall  enter 
the  house,"  ''  my  wife  shall  be  divorced,^'  in  which  cases  the  man  does  not 
break  his  oath  except  once. 

And  some  of  the  Doctors  have  held  that  if  the  man  uses  the  expres- 
sions, *'  JT-wr  zuman/^  or  "  Hur  gahy^  there  will  be  repetition  of  breach  by 
the  repetition  of  the  act ;  because  the  man's  expression  '<  hur  **  is  the 
equivalent  of  (the  Arabic  word)  "  Every "  {KooV}  and  **  Every  time," 
{Koolhtma)  ;  and  therefore  the  word  **  hur "  shall  be  comprehensive  (of 
each  act)  and  shall  be  general :  and  others  have  held  that  the  breach 
shall  not  be  repeated  except  when  the  man  says,  '^  Every  time  (Jnur  bar)/' 
and  this  view  is  reliable. 

And  Mahomed,  son  of  Mookatil  of  Bye  has,  in  translating  the  (Persian) 
expressions  **  hwr  bar"  and  "  hur  zumany"  and  "  hur  gah^**  said  that 
these  expressions  are  equivalent  to  expressions  (in  Arabic),  ^'  Every  re- 
petition (or  Koollo  mv/rrutin}"  or  "  Whenever  (or  KooUuma),^^  and  therefore 
the  man  shall  have  committed  a  breach  with  every  repetition  (of  the  act). 

And  the  man's  expression,  "if  or  agur,"  and  "if  or  ar"  are  similar 
to  the  conditional  expression  "if  ortn"  and  "foworif,"  in  the  Arabic 
as  when  the  man  says,  "  If  (i.e.,  "  in  or  low,'*)  thou  enterest  the  house  ;'* 
and  therefore  the  breach  of  the  oath  will  be  incurred  but  once ;  and  the 
expression  "  Eameen ''  (in  Persian)  is  similar  to  the  (Arabic)  expression 
Muta  (which  means  "  If  or  at  the  time  that ''),  and  therefore  by  the  use 
of  that  expression,  the  man  will  commit  breach  but  once ;  so  also  the 
expression  Eumaiaha  (in  Persian)  is  similar  to  the  (Persian)  expression 
{Hameen)y  and  both  mean  the  same  thing;  just  as  the  (Arabic)  expressions 
^^Muta"  and  **Muta  ma'*  (meaning  '  the  time  when^)  are  one  in  meaning, 
and  by  their  use  the  man  commits  only  one  breach. 

2082.  (1182.)  A  man  says,  "  As  often  as  {KooUum^)  I  shall  sit  (or 
be  sitting)  near  thee,  my  wife  shall  be  divorced ;  '*  he  then  sits  near  her 
for  a  time ;  the  woman  shall  be  divorced  thrice,  because  duration  (or 
length)  m  sitting  and  in  all  acts  which  require  length  of  time  for  their 


ON  CONDITIONS  IN  DlVOECB.  109 

performance,  is  equivalent  to  renewal  (of  the  sitting  and  of  the  act  every 
time  that  the  same  lasts ;  and  therefore  a  divorce  is  being  cansed  and  is 
recnrring  every  portion  of  the  time  that  the  man  remains  seated,  and 
thus  there  shall  be  numerous  divorces,  and  so  three,  which  is  the  highe&t 
number,  shall  be  taken  to  have  been  caused). 

2083-  (1183.)  And  if  a  man  says,  *^  Whenever  (or  as  often  as,  i.e., 
XooUumay)  I  shalt  strike  thee,  thou  shalt  be  divorced ; "  he  then  strikes 
her  with  both  the  hands  at  once  (and  so  the  striking  might  be  held  to 
constitute  one  act  of  striking;  and  the  case  assumed  is  one  in  which  he 
does  not  strike  her  one  after  the  other,  because  if  he  bad  done  so,  there  would 
undoubtedly  be  two  strokes,  and  consequently  two  divorces) :  she  shall 
be  divorced  twice ;  but  if  the  man  strikes  her  with  the  palm  of  one  hand 
(although  he  might  strike  her  with  the  palm  and  the  fingers),  she  shall  not 
be  divorced  except  once,  although  the  fingers  might  have  fallen  separately 
{i.e.,  occupied  several  places  on  the  body  of  the  woman  (when  the 
hand  struck  her) ;  because  where  he  strikes  her  with  both  his  hands, 
there  results  a  plurality  of  strokes,  as  the  stroke  caused  by  each 
hand  is  a  separate  stroke;  and  therefore  striking  with  both  hands, 
is  similar  to  the  stroke  by  a  single  bunch  (in  which  case  the  strokes  caused 
would  be  as  many  in  number  as  the  number  contained  in  the  bunch) :  but 
in  the  second  case  (i.6.,  where  the  man  strikes  with  one  hand  so  that  the 
open  palm  with  several  fingers  fall  on  different  spaces  on  the  body,  so  as 
to  lead  to  the  view  that  here  also  there  are  different  strokes)  the  strokes  are 
not  repeated,  because  the  principal  thing  by  which  the  stroke  is  given 
(here)  is  the  palm  of  the  hand,  and  the  fingers  are  dependent  on  the  palm 
(t.e.,  go  and  act  with  the  palm^)  and  therefore  the  strokes  are  not  repeated. 

2064.  (1184.)  A  man  says  to  his  wife,  ^'  As  often  as  (i.e.,  Koolluma 
or  **  as  many  times  as,"  or  "  whenever ")  I  divorce  thee,  thou  shalt  be 
divorced ; "  he  then  divorces  her  once :  two  divorces  shall  be  caused,  that 
is,  one  divorce  by  the  act  of  the  husband  in  giving  the  divorce  and 
another  divorce  by  (the  condition  expressed  in)  his  expression,  *'  As  often 
as  I  shall  divorce  thee,  thou  shalt  be  divorced.'' 

Bat  if  he  says,  **  As  often  as  (or  Koolluma),  my  divorce,  {i.e.,  the 
divorce  in  my  ownership  or  over  which  I  have  power),  shall  be  caused  (or 
be  operative)  on  thee,  then  thou  art  divorced ; ''  and  he  then  divorces  her 
once :  the  woman  shall  become  divorced  thrice. 

And  if  be  says,  ^*  When  I  shall  divorce  thee  once,  then  that  (divorce), 
shall  be  complete  (or  bainy*  or  he  says,  **  Then  that  (divorce)  shall  be 


110  THE  TAGOEB  LAW  LECTURES,  1891-92. 

three  divorces ;  "  and  then  he  divorces  her  once,  after  he  has  had  seXoal 
intercourse  with  her  (because,  before  intercourse,  the  divorce  that  is  given 
is  always  hain^  even  if  the  husband  were  to  say  otherwise) :  the  woman 
.shall  get  one  reversible  (or  Rujue)  divorce  in  the  case  in  which  he  had 
used  the  expression,  "  then  that  (divorce)  shall  be  complete  {bain)y"  and 
also  in  the. case  in. which  he. had  used  the  expression,  *^  Then  that  divorce 
shall  be  three .  divorces  (or  become  triplicate  divorce."  See  para- 
graph 991). 

2086.  (1186.)  And  if  he  says,  "When  I  shall  divorce  thee,  then 
thou  shalt  be  divorced^  and  when  I  shall  not  divorce  thee,  then  thou 
shalt  be  divorced,'^  and  he  does  not  divorce  her  until  he  dies :  the 
woman  shall  become  twice  divorced  at  the  last  moment  of  his  life ;  because 
when  the  man  has  not  divorced  her,  he  has  committed  a  breach  of  the 
oath  (or  asseveration)  contained  in  the  second  portion  of  his  (conditional) 
oath,  and  therefore  one  divorce  shall  be  caused  on  the  woman  (in  this  way) ; 
and  when  the  man  commits  a  breach  in  the  second  portion  of  his 
(conditional)  oath,  he  commits  a  breach  of  the  first  portion  of  his 
(conditional)  oath  (that  is,  the  first  condition  also  comes  to  be  realised), 
and  thus  a  second  divorce  also  comes  to  be  caused  on  her. 

2086.  (1186.)  And  if  the  man  first  says,  "  When  I  shall  not  divorce 
thee^  then  thou  shalt  be  divorced,^'  and  then  says,  ''And  when  1  shall 
divorce  thee,  then  thou  shalt  be  divorced; "  and  he  does  not  divorce  her 
until  he  dies  :  one  divorce  shall  be  caused  by  the  first  (conditional)  oath^ 
and  the  divorce,  which  is  so  caused  by  the  first  (conditional)  oath,  being 
antecedent  to  the  second  conditional  oath,  is  not  capable  of  being  a 
i^ondition  for  the  breach  (or  realisation)  involved  in  the  second  condi* 
tienal  oath  ;  because  conditions  are  kept  in  view  in  regard  to  a  future  time 
and  not  to  the  past ;   and,  therefore,  only  one  divorce  shall  be  caused. 

2087.  (1187.)  A  man  says  to  his  wife,  "  If  I  do  not  divorce  thee  this 
day  thrice,  then  thou  art  divorced ; ''  he  then  desires  that  his  wife  should 
not  become  divorced,  and  (at  the  same  time)  that  (he  should  be  within  his 
oath,  that  is  to  say,  that)  lie  should  not  commit  a  breach  of  his  oath  :  the 
learned  lawyers  have  said,  that  the  device  in  this  matter  (to  accomplish  his 
end)  is  that  which  is  reported  from  Aboo  Huneefa,  on  whom  be  peace,  the 
Fatwa  being  according  to  the  same,  viz,,  that  the  man  should  say  to  his 
wife  on  the  same  day,  "Thou  art  divorced  thrice  for  (that  is  ala  or  for  or 
on  condition  of  payment  by  thee  of)  a  thousand  dirhems ; "  and  when  the 
man  says  so  to  her,  the  woman  should  say  to  him,  '^I  do  not  accept  this;" 


ON   COimiTIONS   lir   BIVORCA.  11  f 

ftnd  wben  tbe  woman  says  so,  and  the  day  expires,  tlie  hnsband  shall  have 
carried  out  his  oath  (that  is,  he  shall  be  deemed  to  be  released  from  his  oath,' 
and  he  shall  jbe  considered  to  have  given  bis  wife  three  divorces  although 
he  made  the  divorces  conditional  on  her  payment  of  a  thousand  dirhems),' 
and  (at  the  same  time)  the  divorces  shall  not  be  caased  ;  because  (as  a 
matter  of  fact)  he  did  divorce  her  that  day  thrice,  although  the  divorce 
was  not  effectual  on  the  woman  in  consequence  of  her  refusal ;  and  the 
circumstance  that  the  divorce  was  ineffectual  does  not  take  thef 
speech  of  the  husband  (to  the  effect,  '^  Thou  art  divorced  for  a  thousand 
dirhems  ")  out  of  the  category  of  divorce,  (that  is  to  say,. he  shall  be  con-* 
sidered  to  have  done  the  act  of  having  given  divorce  although  the  divorced 
was  not  in  effect  caused).  Dost  thou  not  see  that  Mahomed,  on  whom  be 
peace,  says  in  his  work;  A  man  says  to  his  wife, — "  I  divorced  thee 
thrice,  for,  (or  ate,  i.e.,  on  condition  of  payment  of)  a  thousand  dirhems,  and 
thoa  didst  not  accept  (the  same)'^  but  the  woman  says — :^^I  did  accept'^ . 
here  the  word  to  be  accepted  shall  be  that  of  the  hnsband,  and  the  divorce 
shall  not  be  caused  on  the  woman ;  thus  what  the  husband  did  here 
is  called  an  act  of  divorce,  although  the  divorce  never  was  effective ; 
and  this  is  so  (that  is,  there  may  be  an  act  of  the  husband  giving  a 
divorce  without  the  divorce  being  effectual);  because  the  act  of  divorcing 
is  of  two  kinds;  divorcing  for  consideration  of  property  {mal),  and 
divorcing  without  consideration  of  property ;  and  what  had  to  be  done  on 
the  husband's  part  (that  is,  the  performance  by  him  of  the  act  of  divorce) 
was  verily  completed,  and  that  was  the  giving,  of  divorce  (because  the 
expression,  <'  Thou  art  divorced  for  a  thousand  cGrhems  ''  does  not  mean 
that  divorce  shall  be  caused  in  future,  or  only  if  the  woman  should  pay 
a  thousand  dirhems,  but  it  means  I  have  divorced  thee  and  thou  must 
pay  me  a  thousand  dirhems,  and,  therefore,  if  she  pays  the  thousand 
dirhems,  she  becomes  divorced  without  any  further  act  of  the  husband 
real  or  constructive) ;  contrary  to  the  case  of  a  conditional  divorce, 
because  what  is  dependent  on  a  condition  is  non-existent  before  the 
realisation  of  the  condition,  and,  therefore,  before  the  realisation  of  the 
condition,  the  pronouncing  of  divorce  itself  was  non-existent  (the 
principle  being  that,  in  case  of  conditional  divorces,  when  the  condi- 
tion is  realised,  a  constructive  pronouncement  of  the  divorce  then 
takes  place) ;  but  the  man's  expression  **  Thou  art  divorced  for  {ala)  a, 
thousand"  is  present  (establishment  of  an  act  of)  divorce,  because 
the  word,  "for  "  (or  ala)  does  not  require  that  the  thing  mentioned  before 


112  THE  TAQOBE  LAW  LECTUBES^  1891-92. 

it  should  be  non-existent ;  on  the  other  hand,  it  requires  the  existence 
of  what  is  mentioned  before^  for  instance,  if  it  is  said  to  a  man,  *<  I  have 
respected  thee  {akrumtokat)  for  (ala)  that  thou  shalt  respect  me ;  "  this 
expression  requires  the  existence  of  respect  at  first  on  the  part  of  the 
man  who  sajs  so,  (and  it  does  not  mean,  '^  I  shall  respect  thee,  if  thoa 
shalt  respect  me'') ;  but  if  he  sajs,  ''I  shall  respect  thee,  provided  {ba  oan), 
thou  shalt  respect  me,''  this  expression,  (ba  aan),  does  not  require  the 
existence  of  respect  on  the  part  of  the  person  who  sajs  so ;  on  the  other 
hand,  it  requires  respect  from  him  only  after  the  existence  of  respect  on 
the  part  of  the  person  spoken  to ;  so  that  the  person  who  speaks  in  effect 
says,  '*  If  thou  shalt  respect  me,  I  shall  respect  thee." 

2088.  (1188.)  And  if  the  husband  says  to  his  wife,  *'  If  you  shall 
ask  me  for  your  divorce  this  night,  and  I  do  not  divorce  you,  then  you 
are  (i.e.,  shall  be)  divorced  thrice,"  and  the  woman  says,  **  If  I  do  not 
ask  you  for  divorce  this  night,  then  all  I  possess  shall  be  gift  (svdha) 
on  the  poor ; "  the  woman  then  asks  for  her  divorce  that  night,  and  the 
husband  says  to  her,  <^  You  are  divorced,  if  you  please,"  and  the  woman 
says,  *'  I  do  not  desire  it,"  and  the  night  expires :  the  woman  shall  (by 
this  device)  not  be  divorced,  and  the  husband  shall  be  within  his  oath 
(i.e.,  shall  not  have  committed  a  breach  of  his  oath). 

And  if  the  woman  (in  the  above  case)  asks  him  for  her  divorce  that 
night,  and  the  husband  says,  '<You  are  divorced,  if  you  enter  the 
house,"  and  the  night  expires,  and  she  does  not  enter  the  house :  the 
woman  shall  be  divorced  (thrice  by  virtue  of  the  aforesaid  oath)  ;  because 
the  making  of  the  divorce  dependent  on  her  desire,  is  entrusting  her  with 
(the  power  to)  divorce  (herself),  and  for  this  reason  (in  cases  in  which 
divorce  is  entrusted  to  the  woman)  the  authority  (of  the  wife  to  divorce 
herself  by  reason  of  the  husband  having  vested  her  with  the  power  to 
divorce  herself)  is  confined  to  the  meeting  (so  that  she  must  exercise  her 
power  at  the  same  meeting,  if  at  all);  and  to  divorce  is  to  withdraw. the 
vinculum  {Bufai-kaid) ;  and  in  order  that  an  act  may  amount  to  a  with- 
drawal of  the  vinculum,  there  is  a  distinction  whether  the  husband  himself 
divorces  the  wife  or  entrusts  the  divorce  to  her ;  but  making  the  divorce 
dependent  on  the  wife's  entering  the  house,  or  on  any  other  like  conditioo, 
has  not  a  similar  effect  ({.6.,  it  has  not  an  effect  similar  to  that  which 
entrusting  the  wife  with  the  power  to  divorce  herself  has),  because  making 
the  divorce  dependent  on  the  wife's  entering  the  house,  does  not  amount 
to  entrusting  the  wife  with  the  power  to  divorce  herself ;  and,  therefore, 


ON   CONDITIONS   IN   DIVOECB.  113 

in  the  case  where  the  husband  makes  the  divorce  conditional  on  her 
entering  the  house,  it  is  not  necessary  that  the  condition  should  be 
realised  in  the  same  meeting  (and  the  wife  should  enter  the  house  in  the 
same  meeting  in  order  that  she  might  become  divorced) ;  and  therefore  in 
the  case  where  the  husband  makes  the  divorce  conditional  on  her  entering 
the  house,  the  divorce  does  not  reach  her  hands  {i.e.^  it  does  not  proceed 
from  the  husband  to  the  wife  in  either  of  the  two  modes  pointed 
out,  80  that  the  husband  might  be  said  to  have  done  an  act  of  divorce 
within  the  meaning  of  his  oath),  and  the  husband  does  not  become  a  giver 
of  the  divorce,  and  he  shall^  therefore,  be  held  to  have  broken  his  oath. 

2089.  (1189.)  A  man  says  to  his  wife,  "  If  I  talk  about  your  divorce, 
then  my  slave  shall  be  free,"  and  he  then  says,  ^'If  you  desire,  then  you  are 
divorced,"  and  the  woman  says,  "  I  do  not  desire  (the  divorce): "  some  of  the 
learned  lawyers  have  said  that  the  man's  slave  shall  become  free,  because 
the  condition  of  the  freedom  of  the  slave  is  the  man's  talking  about  (or 
making  mention  of)  the  divorce,  and  such  a  talk  is  verily  found. 

So  also  if  a  man  says  to  another,  *^If  I  talk  about  (or  make 
mention  of)  the  accusation  of  your  whoredom,  then  my  slave  shall  be  free," 
and  he  then  says,  "  You  are  a  whoremonger  (i.e.,  you  are  likely  to  commit 
zina),  if  it  pleases  God."  (Here  although  there  is  a  talk  about  accusation  of 
whoredom,  but  there  is  no  accusation  by  virtue  of  the  exception  contained 
in  the  final  expression)  ;  the  man's  slave  shall  be  free. 

So  also  if  he  says,  "  If  I  talk  about  (or  make  mention  of)  Shirk 
(idolatry),"  and  then  says,  "  Verily  Shirk  is  a  great  sin,  (or  zooloom,  i.e., 
oppression  against  one's  own  self,  the  expression  being  a  text  of  the 
Koran)." 

And  Hassun,  on  whom  be  peace,  says,  that  regard  is  to  be  had  to 
intention  in  all  these  cases  (so  that  if,  at  the  time  he  utters  the  words, 
**  If  you  desire  then  you  are  divorced,"  his  intention  is  that  the  slave 
shall  be  free  as  the  consequence  of  his  uttering  those  words,  then  the 
slave  shall  be  free)  and  that  the  man  (by  giving  utterance  to  those  words) 
shall  give  rise  to  such  consequences  as  result  from  his  intention  ;  so  that 
if  he  does  not  intend  anything  (i.e.,  intends  neither  the  freedom  of  the 
Blave  nor  the  absence  of  such  freedom  at  the  time  he  gives  utterance  to 
those  words),  I  do  not  see  how  be  shall  have  committed  a  breach  of 
his  oath* 

And  the  lawyer,  Aboo  Leith,  on  whom  be  peace,  says,  I  rather  accept 
the  first  view  {viz.^  that  which  has  no  regard  to  intention,  so  that  when 
15 


114  THE  TAQOEB  LAW  LECTURES,  1891-92. 

he  talks  about  the  divorce,  the  consequence  follows,  and  tlie  slave  sball 
become  free) . 

And  others  have  adopted  the  view  of  Hassan,  on  whom  be  peace. 

2090.  (1190.)  A  man  says  to  his  wife,  *^  If  I  take  an  oath  regarding 
your  divorce  (that  is,  if  I  ever  express  myself  making  yonr  divorce  depen- 
dent on  anything),  then  you  shall  be  divorced,"  and  he  then  says  to  her, 
"  If  you  enter  the  house,  you  shall  be  divorced  if  it  pleases  God,  the  Most 
High:"  he  shall  not  have  committed  a  breach  of  his  oath  (contained  in 
the  sentence,  "If  I  make  an  oath,  &c.,")  and  his  wife  shall  not  be  divorced; 
because  the  exception  (that  is  the  expression,  "  If  it  pleases  God,")  at 
the  end  of  the  sentence,  renders  void  the  effect  of  what  has  preceded  (i.e., 
it  avoids  the  meaning  of  "Thou  art  divorced,"  because  who  can  say 
whether  it  pleases  God  that  she  should  be  divorced)  and  when  the  divorce 
becomes  void,  the  oath  (contained  in  the  expression,  "  If  you  sball  enter 
&c.,")  becomes  void,  because  the  oath  (or  conditional  expression  contained 
in  the  words,  "If  you  enter,  &c.,")  cannot  be  found  without  the  effect 
(or  Juza^  i.e.,  sequence). 

And  for  this  reason  if  a  man  says,  "  If  I  admit  my  liability  to  so  and 
so  in  respect  of  ten  dirhems,  then  my  wife  shall  be  divorced,"  and  he 
then  says,  "  I  owe  to  so  and  so  ten  dirhems  except  one  (i.e.,  ten  minus 
one),"  he  shall  not  commit  a  breach  of  his  oath  (although  he  makes 
mention  of  the  word  "  ten,  ")  because  he  does  not  make  an  admission  in 
favor  of  the  other  regarding  the  ten,  but  only  makes  an  admission  regard- 
ing nine  (the  oath  not  being  expressed  in  this  form,  viz.,  "  If  I  make 
mention  or  speak  or  talk  about  ten  dirhems  then,  &c.,"  but  being  in  this 
form  "  If  I  admit  ten  dirhems  then,  &c.") 

2091.  (1191.)  And  if  the  husband  says,  "  If  I  take  an  oath  regarding 
your  divorce  (that  is,  if  I  express  myself  making  your  divorce  dependent 
on  anything),  then  you  shall  be  divorced;"  he  then  says,  "You  are 
divorced,  if  it  pleaseth  God  the  Most  High  :  "  she  shall  become  divorced 
according  to  Aboo  Yusoof,  on  whom  be  peace ;  but  she  shall  not  be  divorced 
according  to  the  view  of  Mahomed,  on  whom  be  peace ;  because,  according  to 
the  view  of  Aboo  Yusoof,  on  whom  be  peace,  the  man's  expression,  **  Thou 
ai*t  divorced,  if  it  pleaseth  God  the  Most  High,"  is  an  oath  (or  conditional 
expression)  by  reason  of  the  existence  of  a  condition  and  an  effect  (in  the 
expression  used);  but  according  to  the  view  of  Mahomed,  on  whom  be 
peace,  the  expression  is  not  an  oath  (or  conditional  expression,  because 


ON   CONDITIONS   IN   DIVORCE.  115 

the  conditit)!!  is  merely  in  form   bafe  not  in  substance,  as   nobody  can 
predicate  as  regards  the  will  of  God). 

And  the  result  of  the  difference  becomes  apparent  in  certain  cases, 
one  of  which  is  this  very  case  (as  stated  above) ;  and  another  case  is  when 
the  husband  says,  "  If  it  pleases  God,  thott  art  divorced,"  then  divorce 
shall  be  caused  (instantly)  according  to  the  view  of  Aboo  Yusoof,  on  whom 
be  peace;  because  (according  to  him)  if  the  condition  takes  precedence 
over  the  effect,  the  divorce  is  connected  only  with  the  words  constituting 
the  effect;  so  that  if  the  husband  says  to  his  wife,  "If  you  shall  enter 
the  house,  you  are  divorced,^'  this  (according  to  Aboo  Yusoof)  will  cause 
immediate  divorce ;  whereas  according  to  Mahomed,  on  whom  be  peace, 
the  exception  (that  is,  the  words,  "If  it  pleases  God '')  is  valid,  whether  it 
precedes  or  follows  (see  paragraph  1498  post,)  because  according  to  him, 
the  exception  (that  is,  the  expression,  "  If  it  pleases  God^^)  is  a  thing  which 
renders  void  the  effect  of  the  expression,  and  is  not  (in  reality)  a  conditiona 
expression,  and  therefore  the  exception  is  valid  (and  will  have  effect 
given  to  it)  in  all  cases  (i.e*,  the  effect  is  rendered  void,  and  there  will  be 
no  divorce  by  the  use  of  the  expression,  *'  if  it  pleases  God  ^'), 

2092.  (1192.)  A  man  says  to  another,  "  I  have  got  a  necessity  from 
yon,  will  you  remove  it  (that  is,  I  want  you  to  do  something  for  me,  will  you 
do  it)"  the  other  man  says, "  Yes, "  and  he  takes  an  oath  regarding  divorce 
or  freedom  to  satisfy  the  necessity  for  him  (saying  "  If  I  do  not  remove 
your  necessity,  then  my  wife  is  divorced  or  my  slave  is  free ") ;  the 
man  then  says,  "  My  necessity  from  you  is  that  you  should  divorce 
your  wife  thrice : ''  it  is  competent  to  the  (other)  man  (the  husband) 
not  to  confirm  (or  believe)  the  other  (that  is,  it  is  competent  to  him 
to  say,  "  no,  this  is  not  your  necessity,'*)  because  he  (the  first  man)  can  be 
(properly)  accused  (of  having  made  a  false  statement  regarding  his 
necessity,  as  it  is  no  necessity  for  a  man  that  another  should  divorce 
his  wife). 

2093.  (1193.)  A  man  makes  another  to  swear  that  the  latter  shall 
obey  the  former  in  all  things  that  the  former  shall  command  him  to  do, 
and  in  all  things  that  he  shall  prohibit  him  from  doing;  the  former  then 
prohibits  him  from  having  intercourse  with  his  wife ;  but  the  person* 
who  takes  the  oath,  has  intercourse  with  his  wife :  he  shall  not  com- 
mit a  breach  of  his  oath,  unless  there  is  something  else  here  which 
operates  as  a  cause  for  the  prohibition  of  intercourse ;  becau3e  ordinarily 
people  do  not,  in  practice,  imply  by  such  an  oath   a  prohibition  of    in- 


116  THE  TAQORB  LAW  LKCTURBB,  1891-92. 

tercourse  with  the  wife,  in  the  same  way  as  they  clo  not  imply  (from  each 
an  oath)  the  prohibition  to  eat  and  drink. 

2094.  (1194.)  A  man  takes  an  oath  as  regards  the  dirorce  of  his 
wife,  if  he  does  not  divorce  his  wife  (saying,  "  I  will  not  divorce  my  wife ; 
bnt  if  I  do  divorce  her,  she  shall  be  divorced  ")  ;  the  hnsband  then  makes 
Ela  with  her  (saying  for  instance,  "  I  swear  by  God  I  will  not  bave  inter- 
course with  you  for  four  months  '*),  and  the  period  of  the  Ela  expires,  and 
the  divorce  on  account  of  the  Ela  is  consequently  caused  on  her :  another 
divorce  shall  be  caused  on  her  as  the  effect  of  his  oath. 

2095.  (1196.)  And  if  the  husband  takes  an  oath  {i.e.,  makes  a  vow) 
that  he  shall  not  divorce  his  wife  (saying,  **  I  will  not  divorce  my  wife ; 
if  I  divorce  her,  she  shall  be  divorced,  '*)  he  being  impotent ;  the  Kazeo 
then  separates  the  husband  and  wife,  in  consequence  of  his  impotency, 
(and  this  separation  amounts  to  a  divorce)  :  the  husband  shall  not  have 
committed  a  breach  of  his  oath  ;  because  the  divorce  caused  as  the  effect 
of  the  Ela  is  attributed  to  the  husband  (as  in  paragraph  1194),  but  not 
so  the  divorce  caused,  by  the  Kazee  having  effected  a  separation,  in  con- 
sequence of  impotency,  although  both  are  divorces. 

And  the  lawyer  Aboo  Jaffer,  on  who  m  be  peace,  says  that  (in  the  case 
in  paragraph  1194)  the  husbiud  does  not  commit  a  breach  of  his  oath, 
in  the  case  of  the  Ela. 

And  in  the  case  of  Lian  (or  proceedings  before  the  Kazee,  in  con- 
sequence of  false  accusation  by  the  husband),  the  man  shall  be  held  to 
have  committed  a  breach  of  his  oath  according  to  analogy  from  the  view 
of  Aboo  Huneefa  anl  M!  ihomed,  on  whom  be  peace ;  but  he  shall  not 
commit  a  breach  of  his  oath  according  to  analogy  from  the  view  of  Aboo 
Yusoof,  on  whom  be  peace. 

And  the  lawyer  Aboo  Leith,  on  whom  be  peace,  says,  "  And  it  is 
proper  that  the  husband  shall  be  held  not  to  have  committed  a  breach 
in  the  case  of  Limi  according  to  the  concurrenb  view  of  all  the  (three) 
authorities.*' 

And  we  give  Fwlwa  accordingly  (that  is,  according  to  the  views  of 
Aboo  Leith),  in  the  same  way  as  the  husband  is  ribt  held  to  have 
committed  a  breach  of  his  oath  in  tlie  case  of  the  impotent  that  is  in  the 
case  of  his  impotency)  when  the  Kazee  effects  a  separation  between  the 
husband  and  wife,  although  such  separation, amounts  to  divorce. 

2098.  (1196.)  A  man  says  (in  Persian),  ^^f  I  withhold  the 
hands  of  this  woman  (i.e.,  if  I  make   her   unlawful  to  me)  as  long  as 


ON   CONDITIONS    IN    DIVORCE.  117 

this  son  is  alive,  then  my  slave  is  free  " ;  he  then  makes  Khoola  with  her ; 
he  shall  have  committed  a  breach  of  his  oath. 

2007.  (1 197.)  >  A  man  swears  that  he  shall  not  divorce  his  wife 
(saying  for  instance,  "  I  will  not  divorce  my  wife ;  if  I  divorce  her,  she 
shall  be  divorced  or  my  slave  shall  be  free, ''  or  "  I  swear  by  God  I  will 
not  divorce  her  ")  and  then  a  Fazoolee  (or  volunteer)  makes  Khoola  with 
her  (that  is,  gives  her  her  Khoola  or  divorce  as  on  behalf  of  the  husband 
without  the  latter's  authority)  and  the  husband  receives  intelligence  (of 
such  a  Khoola) ;  if  the  husband  permits  tlie  Khoola  (expressly  or)  by 
word  of  mouth,  he  sha  II  commit  a  breach  of  bis  oath ;  but  if  he  permits 
the  Khoola  by  his  acts,  saying  nothing  by  word  of  mouth  but  accepting 
the  consideration  for  the  Khoola^  the  learned  lawyers  have  said  that  the 
husband  shall  not  commit  breach  of  his  oath  and  this  view  is  reliable. 
And  this  matter  (that  is,  the  ratification  of  the  Khoola  of  the  Puzoolee)  and 
the  permitting  (or  ratifying)  of  the  marriage  contracted  by  the  Fuzoolee 
(or  volunteer)  stand  on  the  same  footing  (that  is,  both  are  capable  of 
ratification  by  word  of  mouth  or  by  acts). 

2098.  (1198.)  A  man  swears  a  serious  (or  severe)  oath  (Aiman-i-Moo- 
ghuUuza)  that  he  shall  not  divorce  his  wife  (saying,  for  instance,  "  I  wilj 
not  divorce  my  wife ;  if  I  do,  then  she  shall  be  thrice  divorced,  or  then  all 
my  wives  shall  be  divorced  ")  ;  he  then  desires  to  be  freed  from  his  wife 
without  committing  a  breach  of  his  oath  (that  is,  he  desires  to  get  rid  of 
his  wife,  without  divorcing  her ;  because  if  he  were  to  divorce  her,  then  he 
would  commit  a  breach  of  his  oath,  and  the  serious  consequences  of  a 
breach  of  oath  would  then  follow) :  then  the  devise  in  this  matter  is  that  he 
might  marry  an  infant  who  is  still  sucking  milk  (that  is,  a  girl  less  then 
2J  years  of  age),  and  direct  his  (first)  wife's  sister,  or  his  (first)  wife's 
mother  to  suckle  the  infant  wife,  so  that  the  infant  wife  becomes  the 
daughter  of  the  man's  (first)  wife^s  sister,  or  becomes  the  daughter  of  his 
(first)  wife's  mother;  the  husband  thus  becomes  one  who  has  joined  two 
sisters  (in  marriage)  or  has  joined  his  wife  {i.e.,  the  infant  wife)  and  her 
(the  infant  wife's)  maternal  aunt  {i.e.,  the  first  wife)  ;  and  therefore  the 
marriages  of  both  shall  (according  to  paragraphs  276  and  313,  &c.) 
become  invalid  (and  the  result  will  be  that  the  man  gets  rid  of  his  wife 
and  at  the  same  time  escapes  from  the  consequences  of  his  oath). 

2099.  (1199.)  A  man  says  to  his  wife,  *'You  are  divorced,  if  you 
enter  this  house  (pointing  to  a  house)  and  if  you  enter  this  (point- 
ing to  another  house)  other  house."     (The  sense  of  the  expression  being 


118  THE   TAGORE   LAW  LECTlTBESj    1891-92, 

thafc  tbe  clause  "  You  are  divorced  *'  governs  both  the  conditions  and 
is  the  effect  of  both) ;  then  if  she  enters  either  of  the  houses,  she 
Bhall  become  divorced,  and  if  she  enters  the  second  house  (that  is, 
second  house,  counted  with  reference  to  her  entrj)  whilst  she  is  in  her 
Iddut  (on  account  of  divorce  from  entry  in  the  house  she  entered  first) 
no  second  divorce  shall  be  caused  (on  account  of  entry  in  the  second.  The 
expression  used  only  requires  one  divorce,  which  is  caused  by  entry  in 
any  one  of  the  houses ;  so  that  if  she  enters  the  other  house,  even 
wliilst  she  is  in  her  Idduty  no  divorce  shall  be  caused  ;  and  if  the  Iddui 
expires,  the  relationship  ceases,  and  entry  after  the  relationship  has 
ceased  entails  no  consequences). 

So  also  (the  same  result  follows)  if  the  husband  says,  "  If  you 
enter  the  house  (that  is,  this  house),  then  you  are  divorced  and  if  you 
enter  this  other  house." 

2100.  (1200.)  And  if  he  says,  "  Thou  art  divorced  once,  if  thou 
enter  the  house  ;  twice."  (Note — The  word  twice  is  connected  with  the 
word  divorce,  the  meaning  being  **  thou  art  divorced  once,  if  thou  enter 
the  hou^e;  thou  art  divorced  twice  ;  the  last  beingf  a  sentence  wholly 
unconnected  with  the  first).  Two  divorces  occur  at  present,  and  one 
divorce  shall  occur  when  the  woman  shall  enter  the  house ;  but  if  he 
does  not  say  '*  Once,"  but  says  *'  Thou  art  divorced  if  thou  shalt  enter 
the  houae  twice, "  two  divorces  shall  be  caused  when  the  woman  once 
enters  the  house. 

2101.  (1201.)  And  if  he  says  to  his  wife,  "Thou  art  divorced 
once,  if  thou  shalt  desire  twice;"  then  if  the  woman  desires  twice, 
she  shall  be  divorced  once. 

2102.  (1202.)  And  if  the  husband  says  to  his  wife,  **Thou  art 
divorced,  if  thou  enter  the  house ;  thou  art  divorced ; "  one  divorce 
is  caused  instantly  and  the  first  mentioned  divorce  (viz.,  that  involved 
in  the  conditional  expression),  shall  be  caused  when  she  enters  the  house. 

2103.  (1203.)  And  if  he  says,  "Thou  art  divorced,  if  thou  shalt 
enter  the  house ;  thrice,"  the  word  thrice,  shall  be  connected  with  the 
word  "  Divorce",  except  when  the  husband  intends  that  the  word  shall 
be  connected  with  "  Entry."  (In  the  first  case,  that  is,  without  any 
other  intention,  the  meaning  is,  "  Thou  shalt  be  thrice  divorced,  if  thou 
enter  the  house :  "  and  in  the  latter  case,  the  meaning  is  "  Thou  shalt 
be  divorced  if  thou  thrice  enter  the  house  "). 


ON  CONDITIONS   IN    DlVORCfB.  119 

Sil04.  (1204.)  And  if  he  says,  ^^Thoa  art  divorcecl,  if  tlioa  enter 
the  house  ten  times; "  then  this  expression  "  Ten  times  '*  means  ** entry 
ten  times/'  and  the  expression  is  not  connected  wifcU  divorce  (so  as  to 
mean  ten  divorces). 

2105.  .  (1205.)  And  if  the  husband  says,  "  Thou  art  divorced,  if 
thou  enter  the  house;  thou  art  divorced,  thou  art  divorced;"  and 
this  he  says  before  he  has  had  intercourse  with  his  wife :  she  shall  be 
divorced  once,  instantly,  by  virtue  of  the  second  expression  {viz,,  the- 
expression,  "Thou  art  divorced'*  occurring  after  the  conditional  ex- 
pression ;  because  the  first  being  a  conditional  expression,  will  only  apply 
when  the  condition  is  fulfilled ;  the  second  comes  into  force  at  once, 
because  there  is  nothing  to  prevent  its  operation,  and  the  third  becomes 
useless,  the  woman  being  one  with  wliom  the  husband  has  not  had  in- 
tercourse, and  therefore  only  one  divorce  is  sufficient  to  .put  an  end  to 
the  relationship  of  husband  and  wife) :  and  if  he  (again)  marries  the 
woman  (who  had  thus  been  divorced  as  aforesaid)  and  the  woman 
then,  after  marriage,  enters  the  house,  she  shall  become  divorced  by 
reason  of  the  conditional  expression  which  is  efficacious  only  when 
it  is  uttered  whilst  the  man  has  power  as  husband  over  the  woman :  and 
it  is  capable  of  being  effectual  in  case  of  re-marriage  with  her,  pro- 
vided this  second  marriage  is  such  that  she  has  had  no  other  husband  in 
the  meantime ;  for  if  she  has  had  one,  then  the  re-marriage  with  the  first 
husband  gives  the  latter  fresh  power,  and  he  obtains  full  power  of  three 
fresh  divorces,  and  all  conditions  expressed  while  the  first  relationship 
existed  are  avoided). 

2106-  (1206.)  A  man  says,  "  His  (that  is.  My)  wife  is  divorced 
thrice,  if  he  enters  the  house  (that  is,  if  *  I  enter  the  house  *)  to-day ;  *' 
and  two  witnesses  depose  (before  the  Kazee)  that  he  did  enter  the  house 
(that  day,  and  the  Eazeo  accordingly  decrees  three  divorces) :  the  oath-taker, 
(that  is,  the  husband  the  swearer)  says,  ''My  slave  is  free  if  these 
witnesses  have  seen  me  entering  the  house*'  (that  is,  he  swears  and  says, 
''These  witnesses  have  not  seen  me  enter  the  house ;  if  they  have  seen  me 
enter  the  house,  then  my  slave  is  free:  '*)  his  slave  shall  not  become  free 
in  consequence  of  the  statements  of  those  witnesses  that  they  saw  him 
enter  the  house  until  two  other  witnesses,  different  from  the  first  two  wit* 
nesses,  depose  that  the  first  two  witnesses  saw  the  man  enter  the  house 
(because  the  first  two  witnesses  become  plaintiffs  in  regard  to  the  eman- 
cipation of  the  slave,  and  their  claim  must  be  proved). 


120  THE   TAQOBB   LAW  LECTURES/  1891-92. 

So    also  if    the    swearer    says  as  regards  the  first  two  witw^ases, 

**My  slave  is  free,  if  the  two  witnesses  have  not  deposed  against  m^ 

falsely,"    his  slave  shall  hot  be  free  (until  two  fresh  witnesses  shall  be 
examined). 

2107^  (1207.)  A  man  sayd  to  his  wife,  **  Inform  rae  regarding  such 
and  such  a  matter ;  '*  she  says  "  No,  "  (I  will  not  inform  tUee) ;  the 
husband  then  says,  ^'  If  thou  shalt  not  inform  me,  then  thou  art  (i.e., 
•thou  shalt  be)  divorced  thrice."  Mahomed,  on  whom  be  peace^  says,  that 
this  oath  shall  enure  for  ever,  unless  he  intends  present  time  (that  is,  the 
oath  shall  be  perpetual  in  its  duration  and  it  shall  be  her  duty  to  iiiforin 
}iim  whenever  the  event  takes  place;  but  if  he  intends  the  inform- 
ation to  be  given  at  once,  then  his  oath  shall  not  have  reference  to 
a  future  event,  but  shall  be  referred  to  a  past  event,  and  his  meaning 
would  be  ^^  If  thou  dost  not  inform  me  of  the  event  which  has  taken 
place,  thou  art  divorced.") 

2108.  (1208.)  A  man  says  to  his  wife,  "Thou  art  divorced,  if  I 
speak  to  thee  for  a  year ;  go  away  thou.  Oh  !  enemy  of  God  :  "  it  is  said 
(by  Mahomed)  that  he  has  verily  spoken  to  her  (after  his  oath,  by 
telling  her  "  Go  away  thou.  Oh !  enemy  of  God  ")  and  that  he  has  com- 
mitted a  breach  of  his  oath. 

2109.  (1209).  A  man  says  to  his  wife  *^  If  I  call  thee,  <  Oh  thou 
whore'  then  thou  art  divorced  ;  "  he  then  calls  her  son  **  Oh  thou  son 
of  a  whore :  "  his  wife  shall  become  divorced.  But  if  his  intention 
was  confined  to  addressing  her  directly,  he  shall  be  confirmed  as  between 
}iim  and  his  God  (that  is,  there  shall  be  a  moral  justification  for  him,  and 
there  shall  be  no  breach  of  his  oath  as  between  him  and  his  God),  but 
he  shall  not  be  confirmed  (or  justified  and  believed)  by  the  Kazee 
(who  shall  decree  a  breach  of  oath  and  consequent  divorce). 

2110.  (1210.)  A  man  says  to  his  wife  before  having  intercourse 
with  her  (i.e.,  with  whom  he  has  not  had  intercourse)  "  When  thou  shalt 
have  menses,  then  thou  art  (that  is,  shalt  be)  divorced : "  the  woman 
then  says  "  I  have  got  menses  "  and  she  then  and  there  (i.e.,  without 
waiting  for  three  days)  marries  (another  husband,  which  she  could  well 
do,  because  she  was  not  obliged  to  observe  the  Iddutj  her  husband  having 
had  no  connexion  with  her) ;  she  then  dies :  Mahomed,  on  whom  be 
peace,  says,  that  her  inheritance  shall  go  to  the  first  husband  (because 
she  married  within  three  days,   without   waiting  to  know  whether  it 


6H   CONDITrONfl  IK   DIVOBCE*  121' 

WA8  really  inenses  that  she  had,  or  that  she  bled  on  acconnt  of  some 
MmenU—see  Rudd-ool  Moobtar,  Vol.  II,  pages  830  and  831)  and  not? 
to  the  second ;  because  he  says  it  cannot  be  said  (with  certainty)  whether 
what  she  called  menses  was  really  so. 

2111.  (1211.)  A  man  has  a  wife,  who  is  a  daughter  (that  is,  a  girl)^ 
of  fourteen  years  of  age,  and  also  a  slave  who  is  a  son  (that  is, 
a  boy)  of  fourteen  years  of  age;  the  man  says  to  his  wife,  "When  thou 
art  with  menses,  then  thou  art  divorced ; ''  and  he  says  to  his  slave,  ^'  When 
tbou  shalt  have  *  ^  then  thou  art  free ; "  the  girl  says, 
"  I  have  (just)  got  my  menses,'*  and  the  slave  says,  "  I  have        *        * 

*  : "  it  is  said  (by  Mahomed)  that  the  girl  shall  be  confirmed  (and 
believed),  but  the  slave  shall  not  be  confirmed  (or  believed);  because,, 
says  he,  in  the  case  of  the  slave,  it  is  possible  to  see  how        -x*        *        ^ 

*  *  (and  therefore  the  mere  statement  of  the  slave  without  his 
offering  evidence  goes  for  nothing),  but  as  regards  blood  which  flows        * 

*  "K-  *  it  cannot  be  known  that  it  is  menses,  and  nobody  besides 
her  can  know  of  the  menses,  and,  therefore,  her  word  shall  be  accepted. 

2112.  (1212.)  A  woman  says  to  her  husband,  **  Divorce  me,  divorce 
me,  divorce  me ; "  and  the  husband  says,  '*  I  have  divorced  thee :  "  if  the 
husband  intends  one  divorce,  then  the  divorce  shall  be  single;  and  if  he 
intends  three  divorces,  then  the  divorce  shall  be  triple. 

But  if  she  says,  *^  Divorce  me,  and  divorce  me,  and  divorce  me,  "  and 
the  husband  says,  *^  I  have  divorced  thee :  "  this  shall  amount  to  three 
divorces;  (because  without  the  copulative  conjunction,  the  second  and 
third  expressions  might  be  Takeed  or  repetition  of  the  first  divorce 
only). 

2113.  (1213.)  So  also  if  she  says,  '^  Authorise  me,  authorise 
me,  authorise  me  (to  divorce  myself),"  and  the  husband  says,  **  I  have 
verily  done  bo/'  and  the  woman  divorces  herself :  this  shall  be  a  single 
divorce. 

But  if  she  says,  ^'  Authorise  me,  and  authorise  me,  and  authorise  me 
(to  divorce  myself),"  and  the  husband  says,  "  I  have  verily  done  so,*' 
and  the  woman  divorces  herself :  this  shall  be  triple  divorce. 

2114.  (1214.)  A  man  says  to  his  wife,  '^  If  I  shall  have  intercourse 
with  thee,  as  long  as  thou  art  with  me,  then  thou  art  divorced  thrice ; " 
he  then  thinks  of  a  device  (to  get  out  of  his  rash  oath) :  Mahomed, 
on  whom  be  peace,  says,  he  might  divorce  her   by  way  of  a  complete 

16 


Y22  THE  TAGOBB   LAW  LECTUBES,   1891-92. 

{bain)  divorce,  and  then  instantly  marry  her;  he  can  then  have  intercoarse 
with  her  without  committing  a  breach. 

2115.  (1215.)  A  man  says  to  his  wife,  ^*  Thoa  art  divorced,  although 
thou  might  enter  the  house  {i.e.^  whether  you  enter  the  house  or  not) :  '* 
she  shall  become  immediately  divorced. 

But  if  he  says,  ^*  If  thou  shalt  enter  the  house,  thou  art  divorced/' 
or  says,  '^  Then  if  thou  shalt  enter  the  house,  thou  art  divorced,"  (and 
does  not  say,  '^  If  thou  shalt  enter  the  house  then  thou  art  divorced) :  she 
shall  (also)  be  immediately  divorced  in  these  cases. 

2116.  (1216.)  And  if  the  husband  says,  <'Thoa  art  divorced,  if," 
without  adding  anything  further  :  she  shall  become  instantly  divorced, 
according  to  Mahomed,  on  whom  be  peace;  but  according  to  Aboo 
Yusoof,  on  whom  be  peace,  she  shall  not  be  divorced. 

So  also  if  he  says,  *^  Thou  art  divorced  thrice,  or  not,"  or  says 
**  and  but  (if  Zyd  enters  the  house), "  or  says,  "  If  it  be "  or  says, 
'*  If  it  be  not  (that  Zyd  enters):"  she  shall  not  be  divorced  according 
to  Aboo  Yusoof,  on  whom  be  peace,  and  this  view  has  been  accepted  by 
Mahomed,  son  of  Sulma,  on  whom  be  peace. 

2117.  (1217.)  A  man  has  got  stammering  or  has  (impediment  or) 
heaviness  of  {Sikt)  tongue,  such  that  he  is  unable  to  complete  a  sentence  ex- 
cept after  a  long  interval  of  time;  he  makes  a  vow  of  divorce  (that  is,  uses  the 
conditional  expression)  mentioning  the  condition  or  the  exception  (that  is^ 
the  phrase  *^  If  it  please  God  ")  with  exertion  and  effort :  then,  if  he  is  known 
to  have  the  defect  of  speech,  the  condition  and  exception  expressed  by  him 
shall  be  valid  (that  is,  the  rule  is,  that  the  condition  or  exception  must  be  ex- 
pressed immediately  after  the  divorce  clause,  so  that  if  time  intervenes,  and 
the  condition  or  exception  is  not  connected  with  the  effectual  clause,  the 
latter  operates  immediately  without  regard  to  the  condition  or  exception  . 
but  if  he  delays  in  giving  expression  to  the  second  clause  in  consequence 
of  defect  of  power  of  utterance,  both  shall  be  taken  as  connected) . 

2118.  (1218.)  A  man  says  in  Persian,  <<  My  wife  is  divorced,  if  I" 
and  cuts  off  the  sentence  (1.0.,  does  not  complete  the  conditional  clause) : 
Abool  Easim,  on  whom  be  peace,  says,  divorce  shall  not  be  caused,  just  as 
Aboo  Yusoof,  on  whom  be  peace,  has  held.  (See  paragraph  1216)* 

2119.  (1219.)  A  man  says  to  his  wife,  '^  Thou  art  divorced  for  ever, 
except  to-day :  "  she  shall  be  divorced  immediately  just  as  if  he  had  said, 
'<  Thou  art  divorced  with  divorce  such  that  the  same  shall  not  be  caused 
on  thee  to-day." 


OV  OOVItfTIOtfS  IV  DIYOBOi.  129 

2120.  (1220.)     A  man    says^    ^'Syery    wife    of  mine    U   diForced| 
except  this"  he  having  no  other  wife  ezoept  her :  hii  wife  shall  not 
divorced. 

2121.  (1221.)  A  woman  says  to  her  husband,  '^  Divorce  me  thrice/' 
and  the  husband  says,  "  thou  art  divorced : "  this  shall  be  a  single  divorce 
unless  he  intends  triple  divorce ;  but  if  he  says,  '*  I  have  done  so/'  she 
shall  be  thrice  divorced.  So  also  if  he  says,  ''  Verily  have  I  divorced 
thee'*  (i.6.,  "Verily  have  I  divorced  thee  as  thou  wished  ")• 

2122.  (1222.)  And  if  the  woman  says,  "  Divorce  me,  **  and  the 
husband  says,  "  Verily  have  I  divorced  thee,"  intending  triple  divorce  ; 
this  shall  be  a  single  divorce. 

2128.  (1223.)  And  if  the  husband  says  to  his  wife,  "  Divorce  thee 
thyself/'  and  the  woman  says,  ''  Verily  have  I  done  so,"  the  husband  in- 
tending triple  divorce ;  this  shall  be  triple  divorce. 

2124.  (1224.)  A  woman  lays  claim  against  a  man  that  she  is  his 
wife,  and  the  man  takes  an  oath  concerning  the  divorce  of  his 
other  wife,  that  this  wife  (in  question)  is  not  his  wife  (saying,  this  woman 
is  not  my  wife,  but  if  she  be  my  wife,  then  my  wife,  Zynub,  shall 
be  divorced) ;  the  plaintiff  then  adduces  proof  by  witnesses  that  she 
is  his  wife^  and  the  husband  then  says,  '^  This  woman  was  (formerly)  my 
wife,  but  I  (have  already)  divorced  her :  "  it  is  said  (by  Mahomed)  that 
the  man  shall  not  commit  a  breach  of  his  oath, 

2125.  (1225.)  A  man  claims  some  property  (or  mat)  from  another 
man ;  the  defendant  swears  on  his  wife's  divorce  that  nothing  is  due  to 
die  plaintiff  against  him ;  and  two  witnesses  depose  that  a  thousand  dir- 
hems  are  due,  and  the  Eazee .  decrees  against  the  defendant  a  thousand 
dirhems  in  favor  of  the  plaintiff,  the  defendant  saying  that  nothing  is  due 
to  the  plaintiff  from  him  :  the  swearer  (the  defendant),  shall  commit  a  breach 
of  his  oath^  according  to  Aboo  Yusoof,  on  whom  be  peace ;  but  he  shall 
commit  no  breach  according  to  Mahomed,  on  whom  be  peace. 

And  if  the  plaintiff's  witnesses  depose  that  the  plaintiff  lent  the 
defendant  a  thousand,  and  the  Kazee  makes  a  decree  against  him  for  a 
thousand:  then  the  man  shall  not  commit  a  breach  of  his  oath  according  to 
both  Aboo  Yusoof  and  Mahomed  (the  difference  in  the  two  cases  probably 
arises  on  account  of  the  form  of  the  oath ;  in  the  first  case  the  witnesses 
depose  regarding  the  ayne  or  essence  of  the  debt,  that  is  to  say,  they  depose 
regarding  the  fact  of  the  present  indebtedness,  endf  iheref orej  the  state* 


i24  THE  TAGOEE  LAW  LECTURES,  189-1-92. 

ments  of  the  witnesses  directly  contradict  the  defendant:  but  in  the 
second  case  the  witnesses  depose  to  the  auhvb  or  cause  of  indebtedness, 
whereas  the  statement  of  the  defendant  had  reference  to  the  fact  of 
indebtedness,  there  is,  therefore,  no  contradiction  in  this  case  between  the 
defendant  and  the  witnesses,  because  it  may  be  true  that  the  defendant- 
did  borrow  and  it  may  also  be  true  that  he  is  at  present  not  indebted  aa 
he  might  have  paid  off  the  debt  during  the  interval). 

2126.  (1226.)  A  man  swears  regarding  divorce  (saying  his  wife  is 
divorced  \i  he  has  done  such  and  such),  and  he  commits  a  breach  of  his  oath, 
but  he  cannot  find  out  (owing  to  failing  memory)  whether  the  oath  he 
has  taken  related  to  one  or  three  divorces,  Aboo  Yusoof ,  on  whom  be  peace, 
says,  he  shall  exert  his  memory  (and  think  over  the  matter,  and  try  to 
find  out  what  his  oath  was — Tuhurry)  in  this  matter,  and  he  shall  act  ac- 
cording to  the  result;  but  if  his  mind  be  equally  divided  (and  he  is  unable  to 
give  preference  to  either  side  of  the  question)  he  shall  act  upon  the  superior 
(or  larger)  number  (that  is,  decide  upon  three  divorces)  to  be  on  the  safe  side. 

2127.  (1227.)  A  man  says  to  his  wife,  "If  thou  enter  the  house,  then 
thou  art  divoroed,^^  and  he  then  says  to  his  other  wife,  "  And  thou  art  di- 
vorced : "  the  second  wife  shall  become  divorced  instantly  (because  this 
latter  expression  is  complete  by  itself),  and  the  divorce  of  the  first  wife 
shall  depend  on  the  entry. 

And  if  he  says  to  a  strange  woman,  "  If  I  marry  thee,  then  thou 
art  divorced,'^  and  he  then  says  to  a  wife  he  has,  "  And  thou  art  divor- 
ced : "  his  wife  shall  become  instantly  divorced. 

And  if  he  says  to  a  strange  woman,  "  If  I  marry  thee,  then  thou 
art  divorced,^^  and  he  then  says  (pointing)  to  his  wife  "  and  this  :  ^'  then 
each  of  the  expressions  shall  remain  dependent  on  the  marriage  (that 
is,  the  divorce  of  the  wife  already  married  shall  also  become  dependent 
on  the  marriage  of  the  other  woman). 

2128.  (1228.)  A  man  says  to  his  wife,  with  whom  he  has  had  in- 
tercourse, '^  Thou  art  divorced  and  thou,^'  or  says,  "  Thou  art  divorced 
or  thou,^^  or  says,  *^  Thou  art  divorced,  then  thou  : ''  his  wife  shall  be  once 
divorced,  unless  he  intended  by  the  second  expression,  a  second  divorce, 
in  which  case,  the  second  expression  shall  also  constitute  a  second 
divorce. 

But  if  he  says,  "  Thou  art  divorced,  and  thou,'^  this  last  portion  of  the 
expression  being  addressed  to  his  other  wife;  or  says,  ^^  or  thou"  (ad- 


ON   CONDITIONS   IN  DIVORCE.  "  125 

dreasing Ms  other  wife),  or  says  "  then  Ihou : "*'    they   both  shall  become' 
divorced.     And  if  the  man  says,  ^^  I  did  not  mean  divorce  by  the  second 
expression,'^  he  shall  not  be  confirmed  by  the  Kazee. 

2129.  (1229.)  And  if  he  says,  "Thou  art  divorced  and  you  both,  *' 
adding,  with  the  wife  he  first  addressed,  another  wife  of  his  :  the  first 
wife  shall  become  divorced  twice,  and  the  second  wife  shall  become 
divorced  once.  When  he  has  joined  with  the  first  woman,  a  woman  who  id 
susceptible  of  a  divorce  by  the  man,  the  first  woman  shall,  by  reason  of  the 
second  expression,  have  a  divorce  similar  to  that  which  has  been  rendered 
obligatory  on  her  companion. 

So  also  if  he  says,  "Afterwards  (or  Soommd)  you  both,"  or  says 
''  Then  you  both." 

2180.  (1230.)  And  if  he  says  to  his  wife,  "Thou  art  divorced,  not 
but  (or  la  hul)  thou "  (addressing  the  same  woman  all  the  while)  :  the 
woman  shall  be  divorced  once  by  reason  of  the  first  expression,  and  she  shall 
not  be  liable  to  a  second  divorce  by  the  second  expression,  unless  be 
has  an  intention. 

And  if  he  says,  "  Thou  art  divorced,  not  but  you  both  : "  the  first 
wife  shall  be  divorced  twice,  and  the  second  wife  shall  be  divorced  once. 

2131.  (1231.)  A  man  has  three  wives;  he  says  to  one  of  them 
"  When  I  shall  divorce  thee,  then  the  other  two  are  divorced  (that  is,  shall 
be  divorced) ; "  he  then  says  the  same  to  the  second,  and  he  then  says  the 
same  to  the  third ;  he  then  divorces  the  first  wife  once  :  the  other  two 
shall  also  get  one  divorce  respectively.  And  if  he  does  not  divorce  the 
first  wife,  but  gives  one  divorce  to  the  second  wife,  then  one  divorce  shall 
respectively  be  caused  on  the  first  and  third  wife,  and  then  another  divorce 
shall  respectively  revert  to  each  of  the  third  and  the  second  wife,  but 
except  the  first  divorce  (that  is  to  say,  except  one  divorce  viz,,  that  involved 
in  the  expression  "  then  one  divorce  shall  respectively  be  caused  on  the  1st 
and  3rd  wife  "),    nothing  shall  be  caused  on  the  first  wife. 

But  if  the  husband  does  not  divorce  the  first  and  second  wife,  but 
divorces  the  third  wife,  then  three  divorces  shall  be  caused  on  the  third, 
and  two  divorces  each  shall  be  caused  on  the  second  and  the  first. 

[Note  to  Paragraph  1231. — This  case  has  given  rise  to  a  good  deal 
of  controversy  among  the  Mahomedan  Lawyers.  See  Futawai  Alumgiree, 
Vol.  I,  page  595,  and  Futawai  Zaineea,  page  214  :  the  latter  work  id 
rare,  and  is  only  to  be  found  in  the  Library  attached  to  the  Calcutta 
Madmssa,  and  is  a  work  of  considerable  authority.  It  is  laid  down  in  thd 
first  mentioned  authority  that.in  case  the  husband  divorces  the  third  wife 


126  THI  nOOBI   LAW  LICTITEI8,   1891-92. 

firsts  the  first  wife  shall  have  one  diyorce,  and  the  second  wife  shall  hare  two 
divorces,  and  the  third  wife  shall  hare  three  dirorces.  Bat  the  Futawai 
Zaineea,  after  noticing  the  yarions  views  to  which  this  case  is  open,  lays  down 
that  the  rnle  propounded  in  the  Fatawai  Eazee  Eban  is  correct.  See 
Badd-ool  Moohtar,  Vol.  Ill,  page  181.  The  general  rule  seems  to  be 
this: — Where  there  is  a  vow,  and  the  sequence  in  this  vow  is  to  be  a 
condition  of  another  vow,  then  it  is  necessary  that  this  other  row  should  be 
mentioned  first.  For  instance,  if  a  man  has  two  wives,  Zynnb  and  Oomra, 
and  he  says  to  Zynnb,  ^'  If  I  divorce  Oomra  then  Zynub  is  divorced " 
and  he  says  to  Oomra  **  If  thou  enter  the  house,  thou  art  divorced ; " 
then  Oomrah  enters  the  house :  the  result  is  that  Oomra  shall  get  one 
divorce  in  consequence  of  her  entering  the  house ;  and  the  divorce  of 
Oomra  being  a  condition  for  the  divorce  of  Zynub,  the  latter  shall  also 
get  one  divorce.  But  if  he  commences  with  Oomra  and  says  to 
Oomra,  "  If  thou  enter  the  house  thou  art  divorced  '^  and  then  says  to 
Zynub;  "  If  I  divorce  Oomra,  then  Zynub  is  divorced ;  "  and  Oomra  enters 
the  house  :  she  shall  get  one  divorce,  but  this  divorce  shall  not  revert  to 
Zynub;  because  at  the  time  the  husband  made  avow  regarding  the  divorce 
of  Oomra,  the  divorce  of  Oomra  had  not  been  made  a  condition  for  the 
divorce  of  Zynub. 

So  also  if  having  two  wives,  Zynub  and  Oomra,  he  says, ''  If  I  divorce 
Oomra  then  Zynub  is  divorced ;''  and  he  also  says,  ^'  If  I  divorce  Zynub 
then  Oomra  is  divorced.''  He  then  begins  with  Zynub  and  divorces 
Zynub,  saying  "  Zynub  is  divorced : ''  the  result  will  be  that  one  divorce 
shall  be  caused  on  Zynub  by  the  expression  ''  Zynub  is  divorced,''  and  one 
divorce  shall  be  caused  on  Oomra  as  the  consequence  of  the  condition 
for  the  divorce  of  Zynub ;  and  inasmuch  as  Oomra's  divorce  has  already  been 
rendered  a  condition  for  the  divorce  of  Zynub,  another  divorce  shall  be 
caused  on  Zynub,  and  the  result,  therefore,  is  that,  Zynub  gets  two  divorces 
and  Oomra  gets  one  divorce.  But  if  he  begins  with  Oomra,  and  says  "  Oomra 
is  divorced,"  then  Oomra  gets  one  divorce  by  the  expression  *'  Oomra  is  di- 
vorced," and  Zynub  also  gets  one  divorce  as  the  consequence  of  the  con- 
dition for  the  divorce  of  Oomra,  and  there  shall  be  no  further  divorce. 

So  also  in  the  cases  given  in  the  Futawai  Kazee  E[han.  If  the  first 
wife  is  divorced,  she  gets  one  divorce  as  the  result  of  the  direct  divorce, 
and  each  of  the  other  two  wives  gets  one  divorce  as  the  consequence  of 
the  condition  for  the  divorce  of  the  first  wife,  and  the  divorces  of  the  second 
and  third  wives  do  not  revert  to  the  first  wife  ;  because  such  divorces 
had  not  been  rendered  the  condition  for  the  divorce  of  the  first  wifs.. 


ON  CONDITIONS   IN   DIYOBCI.  12? 

Bat  if  he  begins  witli  the  second  wife,  then  the  second  wife  gets  one  di« 
Toroe  by  the  direct  expressionj  and  the  first  and  third  wives  get  one  divorce 
each  as  the  conseqaence  of  the  condition  for  the  divorce  of  the  second 
wife ;  and  the  first  wife  having  thus  got  one  divorce  and  the  divorce 
of  ihe  first  wife  having  been  already  rendered  as  the  condition  for 
the  divorce  of  the  second  and  thirds  one  divorce  more  reverts  to  the 
second  and  third  wives  as  the  consequence  of  the  divorce  of  the  first 
wife ;  and  therefore  the  result  will  be  that  the  first  wife  shall  get  one 
divorce^  and  the  second  and  third  shall  get  two  divorces  each.  But  if 
he  begins  with  the  third  wife^  then  the  third  wife  shall  get  one 
divorce  by  the  direct  expressioui  and  the  first  and  second  shall  get 
one  divorce  each^  as  the  consequence  of  the  condition  of  the  divorce 
of  the  third  wife;  the  first  being  thus  divorced^  her  divorce  shall 
revert  to  the  second  and  third  who  shall  thus  get  each  one  more 
divorce ;  and  the  divorce  of  the  second  shall  also  revert  to  the  first  and 
third  who  shall  thus  get  one  additional  divorce  each^  and  the  additional 
divorce  of  the  third  shall  not  revert  to  the  first  and  second ;  the  result 
wiU  therefore  be  that^  the  first  and  second  shall  get  two  divorces  each 
and  the  third  shall  get  three  divorces.] 

81S2*  (1232.)  A  man  has  two  wives^  Zynub  and  Oomra;  he  says, 
''  Oomra  is  divorced  at  present^  or  Zynub  is  divorced  when  I  shall  enter 
the  house :  *'  the  divorce  shall  not  be  caused  on  either  of  them  until  he 
enters  the  house ;  (because  when  the  condition  is  mentioned  last,  it  applies 
to  all  the  preceding  clauses,  and,  therefore,  the  divorce  of  the  first  wife 
is  dependent  on  the  entry,  and  the  expression  ''at  present''  shall  give 
way  and  convey  no  meaning).  And  when  he  enters  the  house,  he  shall 
be  at  liberty  to  cause  the  .divorce  on  whichever  of  the  two  he  likes. 

2133.  (1233.)  A  man  says  to  his  wife,  '' Thou  art  divorced  or  I  am 
not  a  man, "  or  "  or  I  am  different  from  a  man : "  the  woman  shall  be  di- 
vorced ;  because  the  man  is  (^in  reality)  a  man ;  and  his  expression  that  he  is 
not  a  man  is  false ;  (and  therefore  the  other  part  of  the  expression  must 
be  correct  and  effect  must  be  given  to  that  part). 

And  if  he  says,  ''  Thou  art  divorced  or  I  am  a  man,'*  he  is  truthful 
(in  the  latter  expression)  and  his  wife  shall  not  be  divorced.  (The  ex- 
pression or  denotes  one  of  two  things  :  here  of  two  things  one  is  affirmed ; 
either  "  Thou  art  divorced,  or  I  am  a  man : "  but  it  is  true  that  he  is  a 
man,  and,  therefore,  there  is  no  divorce;  because  both  the  two  things  are 
not  affirmed  bat  only  one  is  affirmed ;  and  one  of  the  two  most  be  true 


'J28  THE.TAGORE   LAW  LECTUBE8,    1891-92. 

.and  the  other  must  be  false :  but  if  be  says,  "Or  I  am  not  a  man," 
the  falsity  of  this  expression  is  obvious,  and,  tberefore,  the  truth  of  the 
expression  "  Thou  art  divorced  "  is  established). 

2134.  (1234.)  A  man  says  to  his  wife,  wbose  name  is  Oomra,  '^If 
thou  shalt  enter  the  house,  Oh,  Oomra,  then  thou  art  divorced,  and  Oh, 
Zynub  ".  Oomra  then  enters  the  house  :  she  shall  become  divorced,  and 
the  man  shall  be  asked  regarding  his  intention  as  respects  Zynub ;  and  if 
he  says,  "  I  intended  her  divorce  also,"  she  shall  also  become  divorced 
(because  "  Oh,  Zynub, "  might  be  intended  to  be  coupled  with  Oomra  by 
the  conjunction  "  and,"  or  it  might  be  the  beginning  of  an  independent, 
but  incomplete  sentence). 

And  if  the  man  expresses  himself  without  the  conjunction  ''  and," 
fend  declares  "I  intended  her  divorce  along  with  (that  of)  Oomra,"  both  of 
them  shall  become  divorced. 

And  if  he  utters  the  divorce  clause  first,  saying,  '^  Oh,  Oomra,  thou 
art  divorced,  if  thou  shalt  enter  the  house,  and  Oh,  Zynub,"  and  Oomra 
enters  the  house,  both  of  them  shall  become  divorced  ;  and  if  he  says  '^  I 
did  not  intend  the  divorce  of  Zynub  ",  his  word  shall  not  be  accepted. 

And  if  he  says,  "  Thou,  Oh,  Oomra,  art  divorced  and  Oh,  Zynub  : " 
Zynub  shall  not  be  divorced  unless  the  man  intended  (that  she  also  shall 
be  divorced). 

It  is  said  (by  Mahomed)  "  Is  it  not  seen  that  if  a  man  says,  ^  For  thee 
Oh,  so  and  so,  against  Tor  from)  me  are  (due)  a  thousand  dirhems,  and  Oh, 
so  and  so  :'  the  property  (or  debt),  is  for  the  first ;  and  that  if  the  man 
makes  mention  of  property  first,  and  says,  ^  For  thee,  are  (due)  a  thousand 
dirhems,  against  (or  from)  me.  Oh  Zyd,  and  Oh,  Salim,^  the  property 
(or  debt)  shall  belong  to  both  ". 

And  if  he  says  ''  Ob,  Oomra  thou  art  divorced.  Oh,  Zynub  "  then  Oomra 
is  divorced  and  not  Zynub^  unless  he  intends  Zynub  (also  to  be  divorced). 

And  if  he  says,  "  Thou  art  divorced  Oh,  Oomra,  Oh,  Zynob,"  then 
Zynub  shall  not  be  divorced,  unless  he  intends  Zynub  (also  to  be  divorced). 

And  if  he  mentions  their  names  first,  saying  '^Oh,  Oomra,  Oh,  Zynub, 
thou  art  divorced, "  the  first  shall  not  be  divorced,  unless  he  intends  her 
(also  to  be  divorced). 

2135.  (1235.)  A  man  says  to  his  wife,  "If  thou  shalt  enter  the 
house,  if  thou  shalt  enter  the  house,  then  thou  art  divorced,"  this  relates 
to  one  entry  (that  is,  if  she  enters  the  house  once,  she  shall  be  divorced,  and 
for  the  divorce  to  be  caused,  two.  entries  are  not  necessary,  because  the 


ON    CONDITIONS    IN    DIVORCE.  •  129 

vepetition  shall  be  considered  to  have  been  made  by  way  of  Takeed,  that 
is  to  add  force). 

And  if  be  says,  ''If  thou  shalt  enter  the  house,  then  thou  art  divorced, 
if  thou  shalt  enter  :  '*  this  requires  two  entries  (that  is,  the  divorce  shall  not 
be  caused  unless  there  are  two  entries ;  because  the  last  clause,  ''  if  thou 
shalt  enter"  having  been  used  after  an  intervening  clause  in  which  the 
divorce  is  mentioned,  the  same  cannot  be  attributed  to  a  repetition  merely 
for  the  purpose  of  giving  force  to  the  first  like  clause,  as  in  the  first  case). 

2136.  (1236.)  A  man  says  to  his  wife,  ''  If  I  shall  say  to  thee  'thou 
art  divorced,'  then  thou  art  divorced,"  and  he  then  says,  "  Verily  have 
I  divorced  thee ; "  the  woman  shall  become  twice  divorced,  that  is,  once 
by  reason  of  his  saying  "  I  have  divorced  thee,"  and  another  by  his  oath 
(that  is,  the  conditional  asseveration). 

2137.  (1237.)  A.  man  says,  "  If  I  shall  marry  a  woman,  then  she  is 
divorced ;  and  if  I  shall  marry  two  women  (that  is  to  say,  together,  or  in 
other  words,  by  one  contract),  then  they  are  divorced ; "  and  he  then 
marries  two  women  together  (that  is,  by  one  contract) :  they  shall  be 
divorced  once  each  (as  the  result  of  the  second  portion  of  the  oath),  and 
one  of  them  shall  (also)  be  divorced  (once  more  by  virtue  of  the  first 
portion  of  the  oath,  so  that  she  altogether  becomes  divorced)  twice,  (and 
the  husband  shall  have  the  option  of  selection ;  but  if  he  had  married 
ihem  by  two  contracts,  then  the  first  wife  would  have  become  divorced 
as  soon  as  she  was  married,  by  virtue  of  the  first  portion  of  the  oath,  but 
the  second  wife  would  have  no  divorce,  because  there  was  i^iihilal  or  unty- 
ing of  the  first  portion  of  the  oath,  that  is  to  say,  its  force  was  lost  aat 
Boon  as  the  first  marriage  was  found,  so  that  the  oath  ceased  to  exist 
when  the  second  marriage  was  contracted  because  "  if "  does  not  imply 
repetition). 

2138.  (1238.)  A  man  says  to  his  wife,  "Thou  art  divorced,  thou  art 
divorced,  thou  art  divorced,  if  it  pleases  Zyd ;  "  and  Zyd  says,  "  I  desire 
one  divorce."  Aboo  Bakur  of  Balkh,  on  whom  be  peace,  says,  no  divorce 
shall  be  caused.  And  if  Zyd  says,  "  I  desire  four  divorces,  "  then  the  same 
result  follows  according  to  the  view  of  Aboo  Haneef a,  on  whom  be  peace, 
(because  the  husband  by  repeating  the  expression  thrice  intends  that  Zyd 
should  desire  three  divorces) ;  but,  according  to  the  view  of  Aboo  Yusoof 
and  Mahomed,  on  whom  be  peace,  three  divorces  shall  be  caused,  if  Zyd 
says,  "  I  desire  four  divorces ;  '*  (because  Zyd^s  wish  to  give  four  divorces 
includes  three  divorces  also;  but  if  Zyd  says,  "I  desira three  divorces" 

17 


130  THE   TAQORE   LAW   LBCTDBM,    1891-92. 

then    three   divorces  shall  be  caused^   without  any  difference;  becansd 
*'  divorce  '^  was  thrice  mentioned). 

2139.  (1239.)  A  woman  is  accused  of  theft;  and  she  directs  her 
husband  to  take  an  oath  regarding  her  divorce  that  she  did  not  steal, 
and  the.  husband  takes  the  oath  (saying,  ''  My  wife  did  not  Bfceal,  if  she 
did  steal,  she  is  divorced*')  ;  the  woman  then  says,  *' Verily  did  I  steal, 
and  thou  hast  committed  a  breach  of  the  oath  which  thou  hast  taken  : '' 
it  is  open  to  the  husband  not  to  confirm  the  wife  (that  is,  not  to  accept 
her  statement  that  she  stole) ;  because  her  statements  are   contradictory. 

2140.  (1240.)  A  man  takes  oath  regarding  divorce  if  he  should 
ever  marry  (a  woman,  who  has  had  intercourse  with  man)  or  a  Syeeba  (saying, 
"  If  I  ever  marry  a  Syeeba,  then  she  is  divorced), "  and  he  marries  a  wo- 
man who  (he  thinks)  is  a  virgin  (Bakira),  but  he  finds  her  a  Syeeba  :  the 
leiarned  lawyers  have  said  that,  if  the  woman  coxifirms  him  that  she 
was  a  Syeeba  (and  not  as  he  expected  a  Bakira),  she  shall  (become  divorced 
immediately  on  marriage  and  shall)  be  entitled  to  one  dower  and  a  half; 
that  is,  one  dower  by  reason  of  his  having  intercourse  with  her  (from 
doubt)  and  a  moiety  of  the  dower  by  reason  of  divorce  before  inter- 
course as  the  effect  of  his  oath ;  but  she  shall  not  be  entitled  to  main- 
tenance during  her  Iddut  or  to  residence  during  her  Iddut ;  because  she 
has  to  observe  her  Iddut  by  reason  of  intercourse  arising  from  donbi 
(or  Shoobha).  But  if  she  falsifies  him,  saying,  '^  I  was  a  virgin :'' then 
she  shall  (not  become  divorced,  and  she  shall)  be  entitled  to  one  dower 
(as  ^  wife),  and  the  man  shall  be  liable  to  maintenance  and  (to  provide) 
residence  (in  respect  of  her  as  a  wife). 

2141.  (1241.)     A  man  swears  regarding  his  wife's  divorce,  if  his  wife 

Were   to   steal  his  dirhems  for  a  year ;  he  then  gives  her  dirhems  in  order 

that  he  might  see  what  she  does  with  them  (whether  she   steals  them  or 

not);   tie  woman  receives   the  dirhems,  and  then  returns  the  same  to 

her  husband,  and  picks  up  (or  takes  away)  one  piece   without  the   know-t 

ledge  of  the  husband,  and  the  husband  asks  her,  '^  Hast  thou  picked  up  any 

out  of  the  dirhems '^  she   says,   "Yes^  (but)   not   so  as  to   steaV   and 

she  returns  the  piece  to  him  :  the  lawyer  Aboo  Baker  of  Balkh,  on  whom 

be  peace,  says,  I  am  afraid  she  shall   become   divorced :    and  the  lawyer 

Aboo  Leith,  on  whom  be  peace,  says,  that  if  the  wife  has  not  (after  picking 

up  the  piece)  separated  from  him  (that  is,  if  she  is  still   in  his  presence). 

and  does  not  deny  (having  picked  up  the  piece),  it  is  fit  that  she  shall  not 

become  divorced.  ... 


ON   CONDITIONS   IN   DIVOBOB*  131 

2142.  (1242.)    A  man  swears  (saying),  *'  If  I  do  not       *        *        * 

*  *  *  then  she  is  divorced : "  the  learned  lawyers 
haye  said,  that  this  (must  not  be  taken  literally  bat)  is  merely  by  way  of 
exaggeration  and  magnifying  the  number,  and  does  not  mean  the  (exact) 
number,  and  that  no  limit  by  way  of  number  can  be  placed  in  this  matter, 
and  ninety  times  are  (to  be  considered  sufficiently)  numerous. 

2143.  (1243.)    A  man  swears  that  he  will  *  *  * 

*  *  *  (or  the  expression  might  mean  milk  instead 
of  pearl,  saying  that  if  he  does  not  do  so,  his  wife  is  divorced):  Mahomed, 
on  whom  be  peace,  was  then  asked  (as  to  the  effect  of  his  oath) :  he  said, 
I  do  not  know ;  and  A  boo  Yasoof,  on  whom  be  peace,  says,  that  this  mean9 
exaggeration        *        *. 

2144.  (1244.)  A  man  swears  that  his  wife  should  not  give  flour 
belonging  to  him  to  anybody  (saying  if  she  gives  the  flour  to  anybody, 
she  is  divorced),  intending  her  mother  specially  (that  is,  meaning  that  she 
shoold  not  give  the  flour  to  her  mother  specially) :  Abool  Eassim,  on  whom 
be  peace,  says,  that,  if  the  husband  says  (in  Persian),  ^'  If  thou  shalt  give  it 
to  anybody/'  then  (legally,  that  is,  according  to  the  Kazee,  the  divorce  shall 
be  caused,  but)  he  shall  be  believed  as  between  him  and  his  God  in  whatever 
he  (says  he)  intended ;  but  if  he  says  (in  Persian),  ^<  If  thou  shalt  give  it  to 
anybody  whatever,"  then  he  shall  not  be  believed  in  his  statement  of 
intention  (even  morally  as  between  him  and  his  God). 

2146.  (1245.)  A  man  takes  oath  and  says,  "  If  my  wife  shall  wash 
my  clothes  (i.e,,  clothing  next  to  the  skin)  then  she  is  divorced ; ''  she  theii 
washes  his  sheet :  the  learned  lawyers  have  said  that  the  man  shall  not 
commit  a  breach  of  his  oath,  unless  he  intended  (to  include  the  sheet  in 
<<  clothes,*'  because  ordinarily  clothes  do  not  include  sheet). 

But  if  a  man  makes  a  will  regarding  his  '^  clothes,"  then  his  sheet 
shall  also  be  included  in  the  will. 

2146.  (1246.)  A  man  swears  that  he  shall  not  eat  out  the  property 
of  bis  son-in-law  (saying  that,  ^^  If  I  do  so,  my  wife  is  divorced  ") ;  the  woman 
(that  is,  the  daughter  of  the  man)  then  bakes  bread  for  her  father  and 
mixes  with  the  paste  (Ijjeen),  a  little  of  the  flour  belonging  to  her  hus- 
band :  the  learned  lawyers  have  said  that  the  husband  does  not  commit  a 
breach  of  his  oath. 

2147.  (1247.)  A  man  swears  that  he  shall  not  read  the  Koran  (and 
that  if  he  does  so,  his  wife  is  divorced) ;  he  then  reads  the  Tusraeea  (that  is, 
the  commencement  of  the  Koran,  which  is,  ^^  In  the  name  of  God  Most  High 


132  THE  TAGORE  LAW  LECTUBBS,  1891-92. 

and  Merciful")  and  nothing  else:  Abool  Eassim^  on  whom  be  peace,  says, 
thafc  if  the  man  reads  that  Tusmeea  which  is  a  part  of  the  Soorai  NamnI,  he 
commits  a  breach  of  his  oath,  not  otherwise ;  (becaase  in  the  Soorai 
Numuly  the  Tusmeea  occurs  in  the  body  of  the  text,  and  is,  therefore,  a  part 
of  the  Koran  without  any  difference  of  opinion). 

2148-  (1248.)  A  man  swears  that  his  son  shall  not  be  in  his  house  (that 
is,  he  shall  not  allow  the  son  to  remain  in  his  house),  and  that  he  shall  sepa- 
rate him  after  ^*  to-day ;  '^  then  when  the  morning  arrives,  the  son  takes 
himself  away  and  his  clothes  and  his  family  (and  separates  himself  from 
his  fntlier) :  Abool  Eassim,  on  whom  be  peace,  says,  that  if  the  son  has  a 
known  room  (to  himself)  in  the  house,  and  he  vacates  the  room  by  remov-* 
ing  all  his  property,  the  father  shall  not  commit  a  breach  of  his  oath  (but 
if  the  son  leaves  his  effects  behind  him,  then  the  father  shall  commit  Huns 
or  a  breach  of  his  oath). 

2149.  (1249.)  A  man  swears  that  he  shall  never  enter  his  wife's 
house;  the  wife  then  sells  the  house  to  another  man,  and  the  swearer  then 
takes  a  lease  of  the  house  and  enters  into  it.  Abool  Eassim,  on 
whom  be  pence,  says,  that  if  his  oath  relates  to  the  ownership  of  his 
wife,  he  shall  not  commit  a  breach  of  his  oath,  but  if  he  swore  respecting 
the  house  itself,  he  shall  commit  a  breach  of  his  oath. 

2160.  ( 1 250) .    A  man  calls  his  wife  to  his  Firash  (        *  * 

*  *  *  *  * )  5  the  woman  refuses  to  come, 
and  says,  "  Verily  *  *  ;"  the  husband  then  takes  oath  that 
he  will  not        ^  ^     ;  and  the  woman  then  enters  his  bed  {Firash)     * 

*  *  *             ;  then,  if               *                *                * 

*  *        *  and  contrary  to  her  inclination         *        *        * 

*  ^  ^  he  shall  commit  a  breach  of  his  oath ;  but  if 
he  *  *  *  *  *  *  he  shall  not 
commit  a  breach  of  his  oath. 

2161.  (1251.)  A  man  claims  an  animal  in  the  hands  of  another  man, 
(saying)  that  tlie  same  belongs  to  him,  and  takes  oath  in  regard  to  the  ani- 
mal by  reference  to  divorce  (saying  ^^  if  the  animal  is  not  mine,  my  wife  is 
divorced'') ;  and  the  man  in  whose  hands  the  animal  is  found,  says,  that 
**  The  animal  is  mine  to  a  certainty."  The  lawyer,  Aboo  Jaffer^  on  whom 
be  peace,  says,  that  the  swearer  shall  not  commit  a  breach  of  his  oath  so 
as  to  realise  the  result  of  (the  breach  of  his  oath  which  is)  divorce 
(simply  because  the  other  man  says,  ^'  It  is  mine  to  a  certainty  ") ;  but 
the  wife  shall  be   cautious,    and    shall    call    upon    the    husband   to 


ON   CONDITIONS   IN  DIVORCE.  133 

Bwear  whether  the  animal  belongs  to  him  or  not ;  and  if  the  hnsband 
Bwears  (that  the  animal  belongs  to  him)^  she  shall  remain  with  him  ; 
bat  if  he  refuses  to  take  oath^  she  shall  refer  the  matter  to  the 
Eazee^  so  that  the  Kazee  shall  put  the  husband  to  his  oath  that  by  God 
his  wife  has  not  become  divorced  (that  is^  the  animal  does  really  belong 
to  him^  the  husband)  but  if  the  husband  refuses  to  take  oath^  the  Kazee 
shall  effect  a  separation  between  them. 

S162.  (1252.)  A  man  swears  that  he  will  not  drink  intoxicating  sub* 
stance  for  a  year ;  he  drinks  but  not  at  a  meeting  of  drunkards ;  and  people 
666  him  in  an  intoxicated  state,  he  denying  having  taken  any  intoxicating 
drink;  and  people  bear  witness  before  the  Kazee  (that  the  man  was  found 
intoxicated) ;  but  the  Kazee  makes  no  decree  (that  the  man  had  drunk  wine; 
becau^  in  a  minor  stage  of  intoxication,  the  evidence  of  the  act  of  drink- 
ing must  be  forthcoming)  :  Abool  E^assim,  on  whom  be  peace,  says,  that 
it  is  proper  for  the  Kazee  to  be  cautious,  and  he  ought  not  to  accept  the 
deposition  of  a  man  who  did  not  see  him  drinking ;  and  the  man's  wife 
ought  to  be  cautious  as  regards  her  person  by  getting  separated  from  her 
husband  for  a  consideration. 

2153-  (1253.)  A  man  says  to  his  wife  (in  Persian),  ''If  what  thou 
shalt  do,  shall  be  to  my  good  or  detriment,  then  thou  art  so  and  so  (that  is, 
divorced) ;  *^  she  then  bakes  bread  or  cooks  some  other  food  (and  the  man 
eats  of  the  same) :  the  man  shall  not  commit  a  breach  of  his  oath ;  {prima  fade 
there  was  a  breach  of  oath,  because  baking  bread  which  the  husband  eats 
is  for  the  benefit  of  the  husband,  but  the  real  object  is  to  illustrate  that  the 
oath  does  not  include  such  ordinary  and  trivial  acts). 

2154.  (1254.)  A  man  keeps  his  dirhems  in  the  hands  of  his  wife ; 
he  then  says  to  her  (in  Persian),  "  If  thou  hast  taken  any  out  of  these 
dirhems,  then  thou  art  divorced ; ''  it  afterwards  appears  that  the  woman 
did  take  some  of  the  dirhems,  and  the  husband  says,  ''  I  only  expressed 
myself  in  that  manner  by  way  of  an  interrogation  (or  iatafhdm)  and  of 
causing  fear.  The  lawyer  Aboo  Jaffer,  on  whom  be  peace,  says,  that  if  the 
man  had  no  (particular)  intention  (when  he  expressed  himself  as  aforesaid) 
then  he  shall  commit  a  breach  of  his  oath  (i.e.,  if  he  did  not  intend  the 
causing  of  fear,  as  he  says,  then  the  woman  shall  be  divorced) ;  but  if  his 
intention  was  to  interrogate  his  wife,  the  word  to  be  accepted  shall  be  hia 
word,  with  his  oath,  (so  that  there  shall  be  no  breach  of  his  oath). 

Moulana  (the  author  of  these  Futawa,  namely,  Kazee  E[han),  on  whom 
be  peace,  says,  that  it  is  fit  that  the  man  should  not  be  confirmed  (or  believed) 


:  134  THE  .TiaOBS  LAW  LEOTUBKS^  1891-92. 

by  tlie  Eazee  (when  he  says  his  intention  was  not  to  diVoroe),  be()aas6  hi« 
-expression  is  an  oath  in  appearance. 

2156.  (1255.)  A  man  says  to  his  wife  (in  Persian)^  ''If  then  shalt 
remain  my  wife  to-morrow,  then  thon  art  so  and  so  (that  is  divorced)/*  then 
when  the  second  day  arrives,  she  says  (in  Persian)  "  I  shall  not  remain 
thy  wife;  '*  the  man  then  in  the  morning  of  that  day  {viz.,  of  what  had 
been  called  "to-morrow"  in  the  oath  or  asseveration)  makes  J^AooIa  with 
Jrer  (that  is,  divorced  her  for  a  consideration)  :  some  of  onr  Mashaikhs,  on 
.whom  be  peace,  have  said  that,  if  the  hnsband  had  no  (particular)  intention 
(by  the  use  of  the  word  'Ho-morrow,"  whether  "to-morrow"  should  include 
the  whole  of  the  day  or  only  a  part  of  the  day)  and  the  husband  makes 
,Khoola  with  his  wife  before  sunset  of  the  morrow,  he  shall  have  fait 
^Ued  his  oath  (and  shall  not  commit  a  breach  thereof  because  the  woman 
did  not  remain  his  wife  for  the  whole  of  the  morrow,  and  that  is  prima  facie 
fthe  meaning  of  the  word  "  to-morrow,"  unless  the  intention  is  something 
different);  and  if  the  husband  marries  her  (again)  after  the  "morrow,'*  the 
woman  shall  become  his  wife,  he  having  the  power  of  two  divorces  left 
to  him  (one  divorce  having  been  lost  to  him  on  account  of  the  Khoola) ;  bnt 
if  by  his  expression,  "If  thou  shalt  remain  my  wife  to-morrow,''  he  intended 
any  part  of  to-morrow  (that  is,  if  his  meaning  was  that  she  should  not 
remain  his  wife  during  any  portion  of  the  morrow)  and  ho  delays  the 
Khoola  till  after  the  sunrise  of  the  morrow^  he  shall  commit  a  breach  of 
his  oath. 

2156.  (1256.)  And  if  a  man  says  to  his  wife, "  If  thou  art  {!PuJcooneei 
that  is,  if  thou  shalt  remain,)  my  wife,  then  thou  art  divorced  thrice :  '• 
then  if  the  husband  does  not  give  one  complete  {Bain)  divorce  imme- 
diately after  he  has  given  expression  to  his  oath,  she  shall  become 
divorced  thrice.     (See  paragraph  1062). 

2157.  (1257.)  And  if  a  man  says  to  his  wife,  "  If  thou  art  {ArUaij 
my  wife,  then  thou  art  divorced  thrice  : "  she  becomes  divorced  thrice. 
And  if  he  says  so  to  his  wife,  who  is  observing  her  Iddut  consequent  upon  a 
reversible  divorce,  then  the  same  result  follows  (because,  notwithstanding 
.fiuch  divorce,  she  remains  h  is  wife  during  the  Iddut).  If  he  says  to  his  wifeb 
•who  is  observing  her  Iddut  consequent  on  an  irreversible  divorce  {Bain)^ 
^then,  if  he  means  mere  marriage,  (as  it  existed  before  the  irreversible  divorce) 
without  intending  anything  else  {i.e.,  without  intending  to  refer  to  the 
relationship  of  husband  and  wife  which  only  subsists  during  the  Iddut) 
anpther  divorce  shall  not  be  caused;  (because  the  divorce  being  irrever^ 


ON    CONDITIONS    IN   DIVOECN.  135 

eible,  the  relationship^  which  subsisted  before  the  divorce/ceases) ;  but 
if.  he  intends  (to  refer)  to  the  relationship  of  hasband  and  wife^  which 
goes  on  to  subsist  during  the  Iddut  after  an  irreversible  divorce,  then  an-* 
other  divorce  shall  be  caused  (if  the  irreversible  divorce  does  not  consist 
pf  three  divorces;  and  the  result  of  this  additional  divorce  would  transpire 
in  a  second  marriage  with  the  samiB  woman). 

S168.  (1258.)  A  man  says  to  his  wife,  "  If  thou  art  my  wife  besides 
to-morrow,  then  thou  art  divorced  thrice ; ''  he  then  divorces  her  once 
irreversibly  (Bain)  before  the  morrow,  and  the  morrow  expires,  his  oath 
fthall  become  void  vthat  is,  no  divorce  shall  be  caused  as  the  result  of  his 
oath) ;  and  it  is  competent  to  him  to  marry  her  after  this  (that  is,  aftef 
the  ''  morrow''  without  the  assistance  of  the  Mohullil  or  legaliser). 

81&9.     (1259.)     A  woman  quarrels  with  her  son-in-law ;  her  husban4 

then  tells  her  (in  Persian),  ''If  thou  also  shalt  quarrel  with  him  (or  lord  it 

over  him),  for  good  or  for  evil,  then  thou  art  such  and  such  (that  is,  divert 

ced;"    the  woman  then  says  to  her  son-in-law  (in  Arabic)  "Either  thou 

shalt  divorce  her  (that  is,  his  wife)  or  keep  her  and  maintain  her. ''    Abool 

Kasim,  on  whom  be  peace,  says,  that  if  the  son-in-law  did  not  seek  the 

woman's  advice  in  this  matter,  but  on  the  other  hand,  the   woman  herself 

originated  it,  then  I  am  afraid  the  swearer  shall  commit  a  breach  of  his 
oath. 

316Q.  (1260.)  A  man  says  (in  Persian),  "  If  I  shall  remain  in  this 
lionse  this  night,  then  my  wife  is  so  and  so  (that  is,  divorced),'*  he  then  im- 
mediately looks  about  to  go  out,  but  he  is  attacked  with  fever,  and  he 
gets  into  such  a  state  that  it  is  impossible  for  him  to  go  out  of  the  house, 
and  the  morning  dawns.  Abool  Kasim,  on  whom  be  peace,  says,  thai 
the  man  has  committed  a  breach  of  his  oath.  Abool  Kasim  was  then  asked 
''  What  if  the  man  was  confined  against  his  wish  f  "  then  Abool  Kasini 
thought  over  the  matter  and  said,  that  it  is  fit  that  the  man  shall  not  com- 
mit a  breach  of  his  oath  according  to  the  view  of  Aboo  Huneefa  and 
Mahomed,  on  whom  be  peace,  and  he  differentiated  between  this  case  and 
that  of  fever,  saying,  that  in  the  case  of  fever  it  is  possible  for  the  man 
to  hire  a  person  to  carry  him  aYid  take  him  out  (of  the  house),  or  he 
might  ask  somebody  else  to  assist  him  in  this  matter. 

Moulana,  on  whom  be  peace,  (i.e.,  the  author  of  the  Futawai  Kazee 
Khan)  says,  that  it  is  fit  that  the  man  shall  be  held  not  to  have  committed  a 
breach  of  his  oath  in  the  cai^e  of  fever  also,  according  to  the  view  of  Aho6 
Huneefa,  on  whom  be  peace ;    because,  according  to  Aboo  Huneefa,  no 


186  THB  TAOORR  LAW  LECTURES,  1891-92. 

regard  is  to  be  had  to  power  derived  through  somebody  else,  jast  as  in 
the  case  of  prayers,  and  pilgrimage,  and  purification  by  resorting  to 
other  than  water  {Tyummoom),  and  such  like  things. 

2161.  (1261.)  A  man  says  to  his  wife  (in  Persian),  *'If  thou  hadst 
been  my  wife/*  or  ''If  thou  art  my  wife  *',  "  then  thou  art  divorced  thrice : " 
she  shall  become  thrice  divorced ;  and  if  he  (again)  marries  her  after  this 
(after  this  triple  divorce  by  having  recourse  to  the  MohuUil  or  legaliser), 
he  shall  not  commit  a  second  breach  of  his  oath ;  because  the  oath  is 
satisfied  by  one  of  the  two  conditions  (the  two  conditions  being  "  If  thou 
hadst  been  my  wife*'  and  ''If  thou  art  my  wife**),  and  the  man  shall  not 
therefore  commit  a  second  breach  (on  a  second  marriage  with  her) ;  just 
as  if  a  man  says  to  a  strange  (or  unknown)  woman,  "  If  I  marry  thee  or 
propose  to  thee,  then  thou  art  divorced  *'  and  he  then  proposes  to  her 
And  then  marries  her,  he  shall  not  commit  a  breach  by  the  marriage  (and  by 
mere  proposal,  no  divorce  shall  be  caused,  because  the  woman  was  not  his 
wife  at  the  time  of  the  proposal). 

2162.  (1262.)  A  man  sees  his  wife  embracing  her  sister  and  kissing 
her;  he  says  to  his  wife,  "  Dost  thou  love  her,  (thy  sister)  more  than  thou 
lovest  me ;  **  the  wife  says,  "Yes;**  the  husband  then  says  (in  Persian),  "If 
such  is  the  case,  then  thou  art  divorced  :  **  the  wife  shall  become  divorced, 
because  love  is  a  thing  which  cannot  be  known  except  by  her  word. 

2163.  (1263.)  A  man  says  to  his  wife  (in  Persian),  "If  in  future 
thou  shalt  go  out  until  I  order  thee  to  do  so,  then  thou  art  divorced  ** 
(that  is,  "If  thou  shalt  go  out  without  my  order) :  **  Aboo  Baker  Iskaf, 
on  whom  be  peace,  says,  that  if  the  husband  intends  a  separate  order  each 
tkae  she  is  to  go  out,  his  intention  shall  be  valid,  (that  is,  she  must  go 
out  each  time  with  a  separate  order) ;  and  if  he  intends  that  she  must  get 
his  order  once  (that  is,  she  must  once  ask  him  at  the  time  she  is  first  inclined 
to  go  out)  then  the  same  result  follows  (that  is,  his  intention  is  good  and 
she  must  take  his  order  on  her  first  going  out  of  the  house,  and  no  order  for 
subsequently  going  out  is  necessary) ;  and  if  the  husband  has  no  intention, 
(other  than  what  his  words  imply)  then,  that  (oath)  must  be  referred  to 
her  going  out  once  (that  is,  when  she  goes  out  for  the  first  time).  Aboo 
Baker  Iskaf  then  said  that,  I  fear  that  people  by  thus  expressing  them- 
selves might  mean  the  contrary  (and  might  mean  tliat  order  should  be 
separately  obtained  for  each  act  of  going  out). 

2164.  (1264.)  A  man  says  to  his  wife  (in  Persian),  "  €ro  thou  and 
be  my    Vakeel  (or  agent)  and  do  whatever  thou  likest ;  **  the  woman  says 


OH   CONDITIONS    IN   DIVORCB.  187 

(in  Persian),  ''  If  I  am  thy  Vakeel,  I  have  withheld  my  hand  f  rdm  thee  by 
three  divorces;  "  the  husband  says,  ^'1  did  not  intend  that  thou  shouldst 
be  my  Fa^aJin  this  matter/^  Abool  Kasim,  on  whom  be  peaoe,  says^ 
that  if  the  husband  expressed  himself  as  aforesaid,  at  the  time  when 
divorce  was  being  sought  (by  the  woman),  the  husband's  word  shall  not 
be  accepted  and  one  reversible  divorce  shall  be  caused;  but  if  he  does  not 
BO  express  himself  at  the  time  when  divorce  was  being  sought  from  him, 
then  the  word  to  be  accepted  shall  be  that  of  the  husband. 

Moulana  (that  is,  Kazee  Khan,  the  author  of  these.  Fatawa),  says,  that 
it  is  fit  that  the  divorce  should  be  caused  (even  when  the  woman  had  not 
Bought  for  a  divorce)  in  consequence  of  the  words  used  being  general. 

2166.  (1265.)  A  man  being  at  Baghdad  says,  ''  My  wife  is  divorced 
when  (Ma-um)  1  shall  not  go  out  towards  Koofa,''  he  then  waits  (at  Baghdad) 
for  a  moment,  except  that  during  that  moment  he  was  speaking  to  the  ass- 
driver  in  the  matter  of  hire  (as  a  preliminary  to  going  out  towards  Koofa)  : 
the  learned  lawyers  have  held  that  he  shall  not  be  held  to  commit  a  breach  of 
his  oath,  and  upon  this  is  the  Fatwa  given;  except  when  the  man  waits  (and 
stops  at  Baghdad)  without  being  occupied  in  making  preparations  to  go  out, 
in  which  case,  he  shall  commit  a  breach  of  his  oath;  and  if  he  is  occupied 
m  purifying  himself  with  water  (wuzoo)  to  say  his  prayers  of  the  Furz 
kind,  or  the  like,  then  this  shall  constitute  an  excuse  to  stay  (and  he 
ahall  not  commit  a  breach) ;  and  prayers  of  the  Nvfil  kind,  and  eating  and 
drinking  do  not  constitute  (valid)  excuse,  and  in  these  cases  the  man 
forfeits  his  oath. 

2166.  (1266.)  A  woman  says  to  her  husband,  "I  have  no  strength 
to  remain  with  thee  hungry ;  '^  and  the  husband  says>  '^  If  thou  remainest 
bungry  in  my  house  then  thou  art  divorced  :  "  the  learned  lawyers  have 
said  that,  if  she  does  not  reman  hungry  without  fast,  the  man  shall  not  be 
beld  to  have  committed  a  breach  of  his  oath  (that  is,  he  shall  commit  a 
breach  if  she  is  hungry  without  fasting)* 

8167.  (1267.)  A  woman  goes  to  a  feast,  and  her  husband  says  to  her, 
"  If  thou  shalt  stay  there  more  than  three  days,  then  thou  art  divorced ;" 
the  woman  returns  on  the  third  day  towards  her  husband^s  village,  but  goes 
back  again  to  the  feast,  and  remains  there  for  a  few  days  :  the  lawyer 
Aboo  Leith,  on  whom  be  peace,  says,  that  if  she  enters  the  habitable  portion 
of  her  bosband's  village  at  the  time  she  returns  (from  the  feast),  and 
tbtti  afterwards  goes  back  to  the  invitation^  tb9  busband  shall  not  com* 
18 


138  THE    TAOOBE   LAW   LECTURES,    1891-92. 

mit  a  breaoli  of  his  oath  ;  and  that  if  she  does  not  enter  the  habitable 
portion  of  her  husband^  s  village,  it  is  fit  that  the  husband  shall  commit  a 
breach  of  his  oath. 

2168.  (1268.)  A  man  says  to  his  wife  (in  Persian),  "  If  thy  thread 
I  shall  use,  or  comes  to  my  nse,  then  thou  art  divorced ;  '^  the  husband 
then  exchanges  her  thread  with  other  thread,  or  exchanges  the  cloth  woven 
with  her  thread  with  other  cloth,  and  clothes  himself  with  the  cloth  :  Aboo 
Baker  of  Balkh,  on  whom  be  peace,  says,  that  the  man  shall  not  commit 
a  breach  of  his  oath. 

And  if  the  husband  says,  *^  If  thy  thread  I  shall  use  {&c.)/'  and  then  uses 
the  cloth  woven  with  her  thread,  Aboo  Baker  (another  lawyer),  says,  that  he 
shall  not  commit  a  breach  of  his  oath.  Then  Aboo  Baker  was  asked — if 
the  husband  had  said,  "  If  tby  thread  shall  come  to  my  use  (what  then  ?)'* 
he  (Aboo  Baker)  said,  '^  I  am  afraid  the  husband  shall  commit  a  breach  of 
his  oath/' 

2169.  (1269.)  A  man  says,  ^'  If  I  derive  benefit  from  th%8  wheat, 
then  my  wife  is  divorced;"  he  then  sells  the  wheat  and  derives  benefit 
from  the  purchase  money :  it  is  said  (by  Mohamed)  that  he  shall  not 
commit  a  breach  of  his  oath. 

2170.  (1270.)  And  if  the  husband  says  (in  Persian),  "  If  thy  thread 
shall  be  on  my  body,  then  thou  art  divorced ; ''  and  he  puts  his  hand  on 
her  thread,  or  he  sews  cloth  with  her  thread,  and  puts  on  the  cloth,  or 
supports  his  elbow  on  her  thread,  or  sleeps  on  bed  made  out  of  her  thread  : 
the  learned  lawyers  have  said  that  his  oath  shall  refer  specially  to  the 
matter  of  his  clothing  himself,  and  the  man  shall  not  commit  a  breach  of 
bis  oath  in  these  cases. 

2171*  (1271.)  A  man  swears  and  says  (in  Persian),  "If  I  shall  give 
wine  nuheez)  to  any  person  (then  my  wife  shall  be  divorced) ; ''  he  then 
makes  a  man  drink,  or  makes  a  present  (of  wine)  to  a  man :  Abool 
Kasim,  on  whom  be  peace,  says,  that  if  the  man's  intention  was  to  make  a 
man  drink  (by  the  use  of  the  word  give)  or  (merely)  to  give,  then  the  oath 
takes  efFect  as  he  intended ;  but  if  he  has  no  intention,  then  his  oath  shall 
relate  both  to  making  a  man  drink  and  to  giving  the  wine  to  him. 

2172.  (1272.)  A  man  says  to  his  wife  (in  Persian),  "  If  thou  shalt 
take  out  of  my  dirhems,  then  thou  art  divorced;''  the  woman  then 
finds  the  dirhems  of  her  husband  in  his  handkerchief,  and  gives  the  same 
to  axLother  woman  (without  herself  touching  the  dirhems)  telliug  her  "  take 


t)N   CONDITIONS    IN    DIVORCE.  139 

«oine  of  these/'  and  the  other  wonuua  takes  some  of  the  dirhems 
and  then  hands  over  the  same  to  the  wife :  Abool  Easim.  and  Mohamed^ 
son  of  Sulma^  on  whom  be  peace^  have  said,  the  woman  shall  become 
divorced. 

2173.  (1273.)  A  man  says  to  his  wife  (in  Persian),  "If  I  sleep  (or 
lie  in  bed)  with  thee,  then  thon  art  divorced/^  and  does  not  intend  any- 
thing (in  particular)  :  the  learned  lawyers  have  said,  that  his  oath  shall 
relate  to  sexual  intercourse,  and  the  man  shall  be  held  to  have  made  Eela  : 
but  if  he  intends  sleep  thereby,  then  the  oath  shall  relate  to  lying  together 
and  not  to  sexual  intercourse,  and  in  this  case  the  man  shall  not  be  held  to 
have  made  Eela. 

2174.  (1274.)  A  man  says  (in  Persian),  "If  so  and  so  does  not 
come  to  my  house  this  evening  then  my  wife  is  divorced ; "  he  tlien  calls 
that  so  and  so  to  his  bouse  in  order  that  he  (the  so  and  so)  might 
dine  with  him ;  the  so  and  so  (however)  dines  at  his  own  house,  and  then 
comes  to  the  man  who  so  invited  him,  and  the  man  who  so  invited  him  was 
waiting  for  him ;  the  man  then  eats  with  the  so  and  so :  the  learne<jl 
lawyers  have  said  that  the  man  shall  not  have  committed  a  breach  of  his 
oath  (because  the  expression,  "  If  he  does  not  co  ne  this  evening  "  means 
"  if  he  does  not  dine  with  me  this  night.") 

2175.  (1275.)  A  man  says  to  his  wife  (in  Persian),  "If  this  cloth 
I  put  on,  then  my  wife  is  divorced ; "  the  cloth  is  a  shirt ;  and  the  man 
throws  it  on  his  shoulders :  the  learned  lawyers  have  said  that  the  man's 
oath  shall  relate  to  putting  on,  in  the  ordinary  mode,  in  regard  to  such  a 
piece  of  clothing,  and  without  tiie  ordinary  mode  of  wearing  the  man 
fihall  not  break  his  oath. 

2176.  (1276.)  A  man  accuses  his  wife  of  theft  saying  (in  Arabic) 
''Verily  dost  thou  steal  so  many  (or  this  proportion)  of  my  dirhems 
(then  finishing  off  in  Persian),  if  after  this,  thou  shalt  take  out  of  my 
silver,  then  thou  art  divorced ;  *'  the  woman  then  takes  up  (a  dirhem)  with 
the  broom  whilst  cleaning  the  house,  and  puts  it  in  a  corner,  and  informs 
her  husband  of  this :  the  learned  lawyers  have  said  that  if  she  takes  up 
the  dirhem  not  to  detain  it  from  her  husband,  it  is  hoped  that  the  husband 
ahall  not  commit  a  breach  of  his  oath. 

2177.  (1277.)  A  woman  goes  out  towards  a  village;  and  her  hus- 
band says  to  her  (in  Persian),  "  If  thou  shalt  stay  away  for  more  than 
three  days,   then  thou  art  divorced ; ''  she  then  diverges  from  her  path 


140  THIS   TAQOBE   LAW   LKCTVRBS,    1891-92. 

(leftding  to  tkat  village)  and  goes  to  another  village,  and  afterwards  goes  to 
tke  village  for  which  she  came  out  (of  her  house),  and  stays  there  for  a 
few  days  {i.e.,  more  than  three  days)  :  the  learned  lawyers  have  said  that  if 
she  diverges  from  her  path  and  goes  to  the  other  village,  and  then  goes 
(o  the  first  village^  the  husband  shall  not  commit  a  breach  of  his  oath. 

2178.  (1278.)  A  man  says  to  his  wife  (in  Persian),  *'  If  thine  (con* 
duct)  shall  continue  with  me,  snch  as  it  has  gone  on  up  to  tke  present, 
then  thou  art  divorced  : "  the  learned  lawyers  have  said  that  if  the  expres- 
sion has  reference  to  some  antecedent  matter,  then  the  oath  shall  relate 
to  that  -antecedent  matter ;  if  not,  and  if  the  husband  intends  nothing ^ 
then  if  the  husband  refuses  to  agree  with  her  in  whatever  she  fails  (to 
do  according  to  his  taste  and  inclination  act  up  to  his  view)  and  never 
gives  in  to  her  in  anything,  he  shall  not  commit  a  breach  of  his  oath, 
otherwise  he  shall  commit  a  breach  of  his  oath. 

2179.  (1279.)  A  man  says  to  his  wife  (in  Persian), '' If  thy  thread, 
or  whatever  is  done  by  thee  shall  enure  to  my  benefit  and  loss,  then  thou 
4Lrt  divorced  ;"  the  woman  spins  thread  and  herself  wears  the  cloth  (made 
of  the  same)  and  makes  her  children  wear  it :  the  man  shall  not  commit  a 
breach  of  his  oath ;  so  also  if  the  wife,  out  of  the  thread,  liquidates 
debt  owing  from  her  husband  :  and  the  husband  shall '  only  commit  a 
breach  of  his  oath  when  the  thread  (or  cloth  made  of  it)  comes  under 
his  ownership,  otherwise  not. 

2180.  (1280.)  A  man  says  to  his  wife  (in  Persian),  "  If  the  leaves 
of  thy  strawberry  (or  mulberry,  i.e..  Toot)  tree  shall  come  to  my  benefit 
and  loss,  then  thou  art  divorced ;  "  the  wife  then  takes  some  of  the  leaves 
and  throws  them  upon  the  worms  (caterpillars)  belonging  to  the  husband, 
without  his  permission  :  the  husband  shall  commit  no  breach  of  his  oath, 
in  the  same  way  as  if  she  were  to  feed  the  husband's  animals  with  the  leaves 
without  his  permission. 

2181.  (1281.)  A  man  gives  a  Koran  to  another  to  correct  mis- 
takes ;  he  says  (in  Persian),  "  If  this  (Koran)  comes  to  my  benefit  and 
loss,  then  so  and  so  (that  is,  my  wife  is  divorced) ; "  the  swearer  then  re- 
cites from  that  Koran :  the  learned  lawyers  have  laid  down  that  the 
man  shnll  commit  a  breach  of  his  oath.  Kazee  Khan  (the  author  of  these 
Putawa)  says,  that  by  this  expression,  reference  is  to  the  oath  of  the 
person  who  gives  the  Koran  (for  correction)  who  says,  "  If  this  Koran 
comes  to  my  benefit  and  loss''  (and  not  to  the  oath  of  the  person 
who  receives  the  Koran  for  the    particular   purpose;  because  . although 


OV   CONDITIONS    IN    DIVORCE.  141 

the  recitation  might  refer  to  both,  still  gift  and  sale  mnst  refer  to  the 
giver  of  the  Koran,  who  is  the  owner  thereof,  and,  therefore,  all  the 
three  modes  of  benefit  mnst  refer  to  the  owner). 

And  if  the  owner  of  the  Koran  makes  a  gift  of  the  Koran  to  some- 
body else,  without  condition  of  consideration,  and  then  the  donee  pays 
something, by  way  of  consideration,  to  the  donor,  the  owner  shall  not  commit 
a  breach  of  his  oath,  but  if  he  sells  it,  he  shall  commit  a  breach  of  his  oath. 

Maulana  {i.e.,  Kazee  Khan,  the  author  of  this  Futawa)  says,  that 
it  is  fit  that  the  owner  should  not  commit  a  breach  of  his  oath,  in  case  he 
recites  from  the  Koran ;  because  mere  recitation  is  not  intended  by  liis 
oath  ;  and  he  says  he  shall  not  commit  a  breach  in  case  of  a  gift,  because 
when  the  consideration  was  not  conditioned  in  the  contract,  there  was 
no  profit  made  out  of  the  Koran ;  contrary  to  the  case  of  sale,  because  tlie 
consideration  is  in  lieu  of  the  Koran,  and,  therefore,  the  same  stands  in 
the  place  of  the  Koran. 

2182.  (1282.)  A  man  says  to  his  wife,  '<  If  thou  shalt  go  out  of  this 
house  {Dar  or  enclosure)  thou  art  divorced;"  the  woman  goes  into  a 
garden  of  grape  trees,  the  door  of  which  is  from  the  house,  there  being 
no  other  door  except  the  one  in  the  house :  the  learned  lawyers  have 
differed  in  this  matter;  some  of  them  have  said,  that  the  man  shall  commit 
a  breach  of  his  oath,  and  others  have  said,  that  if  the  garden  of  grapes 
is  a  small  one  so  that  it  might  be  included  under  the  denomination  of 
**  house,"  and  is  implied  by  the  mention  of  **  house,"  then  the  man 
shall  not  commit  a  breach  of  his  oath ;  otherwise  he  shall  commit  a  breach 
of  his  oath. 

2183.  (1283.)  A  man  says  to  his  wife,  ^'  If  thou  shalt  enter  my  brother's 
house  {Dar  or  'enclosure),  then  thou  art  divorced ;  the  swearer's  brother 
then  takes  up  another  residence,  and  the  woman  enters  this  new  house : 
some  of  the  learned  lawyers  have  said  that  if  the  husband's  oath  was 
oat  of  anger  for  his  right  (or  claim)  appertaining  to  the  first  house 
(which  right,  for  instance,  the  brother  does  not  acknowledge),  the 
Imsband  shall  not  commit  a  breach  of  his  oath ;  but  if  the  oath  was  in 
reference  to  the  brother  himself,  then  the  husband  shall  commit  a  breach 
of  his  oath  ;  but  if  the  husband  had  no  particular  intention  by  his  oath, 
then  he  shall  commit  a  breach  of  his  oath  according  to  Aboo  Huneefa  and 
Mahomed,  on  whom  be  peace. 

And  if  the  wife  enters  the  house  which  was  owned  by  the  brother  at  the 
time  of  the  oath,  then,  if  the  house  (still)  belongs  to  the  brother  as  owner. 


142  THE  TAQOBE  LAW  LECTURES,  1891-92. 

except  that  he  does  not  live  in  it  (at  the  time  of  the  entry) ,  the  husband  shall 
commit  a  breach  of  his  oath,  but  if  after  the  oath,  the  house  goes  out  of 
the  brother's  ownership,  by  sale  or  gift,  or  otherwise,  then  the  husband 
shall  not  commit  a  breach  of  his  oath.  And  if  the  brother  dies,  and  his 
house  becomes  the  inheritance  of  his  heirs,  then,  if  she  enters  the  house 
after  the  house  has  become  the  property  of  one  of  the  heirs  by  partition, 
the  husband  shall  not  commit  a  breach  of  his  oath ;  but  if  she  enters  the 
house  before  partition,  the  learned  lawyers  have  differed  in  this  matter; 
but  the  correct  rule  is  that  the  man  shall  not  commit  a  breach  of  his  oath. 
And  if  the  (brother),  owner  of  the  house,  dies,  and  against  him  is 
debt  which  swallows  up  {MoostughriJe)  the  inheritance,  and  the  wife  enters 
the  house,  then  the  husband  shall  commit  a  breach  of  his  oath. 

2184.  (1284.)  A  man  says  to  his  wife,  <<  If  thou  shalt  go  to  such 
and  such  a  village,  then  thou  art  divorced ; ''  and  the  woman  goes  to  another 
Tillage,  but  (in  so  doing)  she  passes  through  the  land  {Zyui)  of  the  first  men* 
tioned  village:  the  learned  lawyers  have  said  that  if  she  does  not  enter 
the  inhabited  portion  of  the  village,  then  the  husband  shall  not  commit  a 
breach  of  his  oath. 

2186.  (1285.)  A  man  says  to  his  wife,  «  If  I  do  not  *  *  * 
*'******  then  thou  art  divorced :  **  it  is 
reported  from  the  lawyer  Aboo  Hufs  of  Bokhara,  on  whom  be  peace,  that 
he  said  that  if  the  husband  ******** 
*        then  verily        *        *        *        * . 

2186.  (1286.)  A  man  says  to  his  wife,  **  If  thou  hast  unloosened  the 
strings  of  thy  trousers  in  an  unlawful  way,  from  the  time  that  thou  hast 
been  my  wife,  then  thou  art  divorced ;  "  the  woman  says,  f*  A  man  *        * 

*  *  *  *  *  *  *  *  *  *:*'the  learned 
lawyers  have  said,  that  if  the  woman  was  in  such  a  state  so  that  she  could 
not  prevent  *  *  *  *  then  the  husband  shall  not  commit 
a  breach  of  his  oath ;  but  if  she  was  competent  to  "^        ^        *        *        * 

^  then  the  husband  shall  commit  a  breach  of  his  oath,  if  the  hus- 
band believes  her  in  this  matter  (that  is,  in  her  statement     ;  ^        *        * 

*********  but  if  the  husband 
believes  that  this  statement  is  made  to  get  rid  of  him,  then  the  oath  shall 
not  be  broken). 

2187.  (1887.)  A  man  says  to  his  wife,  "  If  I  do  not  tell  thy 
brother,  all  the  vices  in  the  world,  on]  thy  behalf   (that  is,  *  in   thee ' 


ON   CONDITIONS   IN  DITORCB.  liS 

or  referring  the  vices  to  fchee),  then  thou  art  divorced : "  the  learned 
hiwjers  have  said,  that,  if  the  hnsband  says  to  the  wife's  brother,  assign- 
ing to  her  what  are  the  attribates  of  vile  people  and  thieves  and  cheats 
and  murderers,  then  he  shall  satisfy  his  oath,  but  he  shall  be  sinful  in. 
so  doing  (even  if  he  were  making  correct  statements,  because  the  Koran 
forbids  talking  evil  of  others,  even  if  the  evils  exist)  and  his  particular 
oath  (expressed  by  the  word  **  all  the  vices  '')  shall  relate  to  most  of  these 
evil  qualities,  and  the  least  that  will  satisfy  his  oath  is  a  statement  of 
three  evil  qualities :  and  the  lawyer  Aboo  Leith,  on  whom  be  peace,  says, 
that  it  is  fit  for  the  swearer  after  he  has  made  a  statement  of  tbe  bad  qua- 
lities to  the  brother,  to  say,  that,  **  I  have  said  so  only  on  account  of  the, 
oath,  but  she  is  free  from  all  these,''  and  by  so  saying  he  shall  have  made 
repentance  for  what  he  had  said  regarding  his  wife,  and  he  shall  (at 
the  same  time)  satisfy  his  oath. 

8188.  (1288.)  A  man  says,  <'  If  I  shall  bathe  on  account  of  (having 
done)  what  is  unlawful,  then  my  wife  is  divorced ;  "  he  then  embraces 
a  strange  woman,  and  *  *  ^  and  he  bathes  :  the  learned 
lawyers  have  said  we  hope  that  he  shall  not  commit  a  breach  of  his  oath, 
and  that  his  oath  shall  relate  to        ^        *        ^  • 

8189.  (1289.)  A  man  says,  <<If  I  shall  introduce  so  and  so  in  my 
hoase,  then  my  wife  is  divorced  : "  he  shall  not  commit  a  breach  of  his  oath 
until  that  so  and  so  does  enter  the  house  by  the  order  of  tbe  swearer  ; 
bafe  if  he  says,  **  If  so  and  so  enters  my  house  (then  my  wife  is  divorced)," 
and  the  so  and  so  enters  the  house  with  his  permission  or  without  his  per- 
mission, with  his  knowledge  or  without  his  knowledge,  the  swearer  shall 
commit  a  breach  of  his  oath  :  but  if  he  says,  **  If  I  leave  so  and  so  to  enter 
my  house,"  and  the  so  and  so  enters  the  house  with  the  knowledge  of  the 
swearer,  and  he  does  not  prevent  the  so  and  so,  he  shall  commit  a  breach 
of  his  oath  ;  otherwise  not. 

8190.  (1290.)  A  man  says  to  his  wife,  '<  If  thou  shall  speak  to  such 
and  such  a  woman  then  thou  art  divorced ; "  then  the  wife  of  the  swearer 
is  invited  to  a  wedding ;  and  the  woman  against  whom  the  husband  swore, 
(that  is,  the  woman  to  whom  the  wife  was  prevented  from  speaking) 
comes  in  a  veil,  and  says  to  the  wife  of  the  swearer,  **  Where  is  the  goat ; " 
and  the  wife  of  the  swearer  says,  '^  Goat  •  •  •  •  "  and  she  does  not  add  any- 
thing more  (that  is,  before  she  could  say  more),  and  the  veiled  woman 
raises  her  veil :  the  learned  lawyers  have  said  that  if  the  swearer's  wife 


144  THB  TAOOBS  LAW  LECTUUBB,  1891-92. 

intended  to  answer,  then  she  verily  did  speak  to  the  woman,  and  the 
swearer  sbaU  commit  a  breach  of  his  oath, 

2191.  (1291.)  A  man  sajs  to  his  wife,  '<  If  I  shall  eat  of  the  milk 
of  thy  cow,  or  of  the  cow's  cheese,  then  thou  art  divorced  ; ''  the  wife  then 
sells  the  cow  to  her  husband,  and  then  milks  the  cow,  and  the  swearer  eats 
of  the  milk :  he  shall  not  commit  a  breach  of  his  oath» 

Maulana  (Kazee  Khan,  the  author  of  these  Fntawa)  says,  that  this  is 
so  if  the  oath  relates  to  the  ownership  of  the  woman  (but  if  the  parti- 
cular cow  was  intended,  then  there  will  be  a  breach  of  the  oath). 

2192.  (1292.)  A  man  says  to  a  person  who  was  speaking  something, 
^*  You  say  this  in  intoxication ; "  the  other  man  then  says,  *^  My  wife  is  divor- 
ced, if  I  have  spoken  so  in  intoxication,  and  £  am  not  intoxicated  : ''  the 
learned  lawyers  have  said  that,  if  the  man's  speech  is  incoherent  and  he 
is  deemed  intoxicated  by  people,  he  shall  be  held  to  have  committed  a 
breach  of  his  oath* 

2193.  (1293.)  A  man  in  intoxication  calls  his  wife  towards  his  bed 
*^********;  the  wife  refuses  to 
come ;  the  husband  says,  **  If  thou  shalt  carry  out  my  order  and  help 
me  (in  what  I  am  about  to  to  do,  then  all  well);  otherwise,  then  thoa 
art  divorced : "  then,  if  after  this  oath,  when  the  man  calls  her  again,  the 
woman  helps  bim,  he  shall  not  commit  a  breach  of  his  oath  ;  but  if  the 
man  having  called  her  she  does  not  help  him,  the  man  shall  commit  a 
breach  of  his  oath.  Maulana  (that  is,  Eazee  Khan,  the  author  of  these 
Futawa),  on  whom  be  peace,  says,  that  it  is  fit  that  the  man  should  be  held 
to  commit  a  breach  of  his  oath,  if  she  does  not  help  him  even  when  he 
does  not  repeat  the  call  (after  the  oath) ;  because  people  intend  by  such  an 
oath,  obedience  to  the  order  already  given. 

2194.  (1294.)  An  intoxicated  man  gives  a  dirhem  to  his  wife ;  the 
woman  says,  "  When  thou  wilt  come  to  thy  senses,  thou  wilt  t^ike  it  from 
me ; "  the  husband  says,  *^  If  I  take  (it)  then  thou  art  divorced  ;  "  he  then 
takes  the  dirhem  from  her  whilst  in  intoxication :  he  shall  not  commit 
a  breach  of  his  oath  ;  because  the  condition  of  the  breach  of  the  oath  is 
the  taking  of  the  dirhem  after  the  intoxication  subsides. 

2195.  (1295.)  A  number  of  women  are  assembled  spinning  for  otiier 
than  themselves  by  way  of  loan  of  their  labor  (that  is,  on  the  understanding 
that  **  I  spin  for  you  to-day,  you  spin  for  me  to-morrow ;  *')  then  the  hns- 
band  of  one  of  them  becomes  angry  and, says  to  her,  *^  If  thou  shalt  spin 


on  CONDITIONS  IN  DHrOBCN.  145 

for  any  other^  or  if  another  spins  for  thee^  then  thou  art  divorced ;  "  then 
some  other  woman  sends  cotton  to  the  house  of  this  woman  (that  is^  the 
woman  whose  husband  has  so  taken  the  oath)^  in  order  that  she  might  spin 
it  for  her ;  then  the  mother  of  this  woman  spins  the  cotton :  the  learned 
lawyers  have  said  that  if  this  woman  can  spin  herself  (that  is^  if  she  is  in  the 
habit  of  spinning  herself)  and  somebody  else  spins  the  cotton,  the  divorce 
shall  not  be  caused  on  her^  on  account  of  the  spinning  of  somebody  else. 

8196.  (1296.)  An  intoxicated  person  says  to  his  wif e^  '^  I  have  made 
a  gift  of  this  my  house  to  thee ;  '*  he  then  says,  "  If  I  do  not  say  this  from 
my  heart,  then  thou  art  divorced  thrice ;  '*  he  then  after  being  restored  to  his 
senses  does  not  remember  anything  about  it :  the  learned  lawyers  have 
said  that  his  wife  shall  not  be  divorced,  because  it  is  obvious  that  what  a 
man  says  in  this  state,  he  says  out  of  his  heart. 

2197.  (1297.)  An  intoxicated  person  is  told  by  his  wife  (in  Persian), 
*'  Put  thy  head  on  the  ground ;'*  he  says  (in  Persian),  "  If  I  put  my  head 
on  the  ground,  divorce  to  thee "  and  then  heaves  a  heavy  breath  (so 
as  to  cause  a  pause)  and  then  says,  '^  Except  by  my  own  inclination '' 
(meaning  thereby  that  if  I  kneel  down  at  your  dictation  then  three 
divorces  to  you,  unless  I  do  so  of  my  own  inclination) :  the  learned 
lawyers  have  said  that  if  the  interruption  (or  pause)  takes  place,  because 
he  was  out  of  breath,  then  the  exception  is  correct,  and  the  bending  of 
his  head  to  the  ground  by  the  man's  own  inclination  shall  be  excluded 
from  the  condition  constituting  breach  of  oath :  but  if  the  interruption 
did  not  take  place  to  enable  him  to  take  breath,  then  the  exception  shall 
not  be  correct. 

Then  if  the  intoxicated  man  (after  the  intoxication  subsides)  says, 
*'  1  do  not  remember  anything  of  all  this,''  then  his  oath  (taken  in  the 
intoxicated  state),  shall  be  (like)  the  oath  in  an  angry  state  {Tumeen-i-fowr) ; 
because  apparently  the  husband  means  {fowr  or)  immediate  action  (that 
is^  he  must  be  taken  to  mean,  "  If  I  now  bend  my  head  at  thy  bidding 
then^  &c/0* 

2198.  (1298.)  A  man  says  to  his  wife, ''  When  I  shall  enter  Sham 
(or  Syria)  and  tr/wn  I  do  not  separate  from  thee,  then  thou  art  divorced  : 
this  oath  shall  be  permanent  (and  divorce  shall  not  be  caused  until  he  is 
in  extremis,  and  when  it  can  be  said  truly  of  him  that  he  has  not  separa- 
ted although  he  is  in  Syria).  But  if  he  says,  "  And  if  I  do  not  separate 
from  thee/'  this  oath  shall  be  referred  to  immediate  action  (Fovfr)  at  the 
time  of  the  entry  (in  Syria). 

19 


146  THB  TAOOttB  LAW  UOTUBSS,   1891-92. 

2199.  (1299.)  A  fiia&  gives  a  dirh^m  to  his  wife;  he  then  says  to 
her^  '^  What  haet  thou  done  with  the  dirhem  7  '^  and  she  says^  ^'  I  have 
pnrohased  meat ;  **  the  hasband  says^  ''  If  thon  shalt  not  retnm  to  me 
that  (very)  dirhem^  then  thon  art  divorced ;  '^  bnt  the  dirhem  is  lost  from 
the  hands  of  the  bntcher  :  the  learned  lawyers  have  said  that  as  long  as 
it  is  not  known  that  that  dirhem  has  been  melted  or  lost  in  the  sea^  the 
man  shall  not  commit  a  breach  of  his  oath. 

2200.  (1300.)  A  man  says  to  his  wife^  '^  If  thon  shalt  wash  my 
clothes  then  thou  art  divorced ;  '*  the  woman  washes  the  sleeves  or  the 
skirt :  the  learned  lawyers  have  differed  in  this  matter :  the  lawyers 
Abool  Leith  and  Aboo  Sulma^  on  whom  be  peace^  have  said  that  the  man 
shall  not  commit  a  breach  of  his  oath. 

2201.  (1801.)  A  man  divorces  bis  wife  completely  {Bain);  he  is 
told  by  others,  "  Verily  shalt  thou  take  her  back  {Ruja)  after  a  month," 
(that  is  marry  her  again) ;  the  hasband  says,  ^'  If  I  take  her  back,  tlien 
she  is  diYO)*ced  thrice ; ''  he  then  marries  her  (again)  during  the  Iddut 
or  after  the  expiry  of  the  Idd/ut :  he  shall  commit  a  breach  of  his  oath ; 
(because  after  complete  divorce  the  way  to  take  back  is  to  marry).  But 
if  the  divorce  was  reversible  and  he  then  (again)  marries  her,  he  shall  not 
commit  a  breach  of  his  oath  (becanse  the  taking  back  after  a  reversible 
divorce  is  effected  Sy  means  other  than  marriage). 

2202.  (1302.)  A  man  says  to  his  wife,  "If  thou  shalt  Wash  thyself 
on  account  of  impurity  {Junahut)  as  long  as  thou  art  my  wife,  then  thou 
art  divorced  thrice ; "  he  says  this  twice  or  thrice ;  and  the  woman  is 
pregnant,  and  the  husband  has  no  intercourse  with  her  until  her  delivery : 
then  if  she  is  delivered  after  the  expiry  of  four  months  from  the  time 
of  the  oath,  she  shall  be  completely  divorced  once,  by  the  effect  of  the  Eela 
(because  the  oath  in  effect  means  that,  '*  If  I  have  intercourse,  with  thee," 
and  this  isaform  of  EeUi)  eind  hev  Iddut  shall  expire  with  the  delivery; 
and  if  the  husband 'has  sexual  intercourse  with  her  after  this  (i.e.,  after 
delivery)  he  shall  have  had  sexual  intercourse  with  a  strange  womac; 
and  he  is  bound  to  make  penitence  and  repent  with  I»%fc/ar  (pardon  and 
forgiveness  from  God^,  and  the  woman  shall  be  entitled  to  get  her  proper 
dower,  if  the  husband  did  not  know  that  his  expression  amounted  to 
Eela  and  that  she  became  unlawful  to  him,  and  his  oath  shall  become  void 
({.e.,  shall  have  6pent  itself) ;  so  that  if  he  marries  her  after  this  (divorce) 
the  woman  shall  be  his  wife,  he  having  (still)  in  his  power  two  divorces,  and 


OK   CONDITIONS   IN   DIVORCB.  147 

be  shall  not  commit  a  breach  of  auj  oath  by  having  sexual  intercourse  with 
her  after  this  (fresh  marriage;  because  there  is  no  oath  in  force  now). 

2203.  (1303.)  A  man  accuses  {Kmuf)  a  woman  of  adultery ;  her 
huaband  tells  the  man,  "  If  you  do  not  prove  her  adultery  to-day,  then  she 
is  divorced  thrice :  "  then  the  effect  of  it  is  in  accordance  with  what  he 
said,  so  that  if  the  (other)  man  does  not  prove  her  adultery  that  day,  she 
shall  be  divorced  thrice :  and  proof  of  Zina  is  established  by  the  admission 
of  the  wonnian  or  by  four  witnesses. 

2204.  (1304.)  A  man  says  to  his  wife  in  anger,  ^'  If  thou  shalt  do 
so  up  to  50  years  thou  shalt  become  {Tuaeery)  divorced  ;  "  the  woman  does 
so  (once) :  the  learned  lawyers  have  said  that  if  the  man's  oath  means 
divorce  of  the  woman,  then  divorce  shall  be  caused ;  but  if  his  oath 
does  not  mean  her  divorce,  but  (on  the  other  hand)  the  man  so  expressed 
himself  to  frighten  the  woman,  the  divorce  shall  not  be  caused ;  and  the 
word  to  be  accepted  shall  be  that  of  the  husbiind,  that  he  expressed  himself 
so  with  intent  to  frighten  the  woman. 

[NoTR. — Tuseery  or  *  shall  become '  might  mean  "  thou  art  divorced," 
or  "I  shall  divorce  thee.'*  ] 

2206.  (1305.)  A  man  says  to  his  wife,  *^  If  thou  shalt  pass  the  night 
unless  in  my  hyr  or  (bosom)  then  thou  art  divorced  thrice ;  **  the  woman 
remains  in  his  bed  {Firash)  during  that  night,  except  that  the  husband  did 
not  actually  take  the  woman  in  his  hijr  or  (bosom) :  the  man  shall  not 
commit  a  breach  of  his  oath  : 

But  if  he  says  in  Persian,  ''  If  thou  shalt  not  come  within  my  embrace 
(Kinar) : "  the  learned  lawyers  have  said  that  it  is  fit  that  the  husband 
should  commit  breach  of  his  oath ;  because  this  expression  requires  that 
the  woman  should  actually  be  in  the  hijr  or  f bosom). 

2206.  (1306.)  A  man  says  to  his  wife,  ^'If  I  do  not  pass  the  night 
with  thee,  with  this  thy  shirt,  then  thou  art  divorced  thrice.'' 
The  wife  (also)  says,  ^^  If  I  shall  pass  this  night  with  thee,  with  this  my 
shirt,  then  my  female  slave  is  free  ;"  the  man  then  puts  on  her  shirt,  and 
both  passed  the  night:  they  shall  not  commit  a  breach  of  their  oath  : 
because  the  condition  of  the  breach  on  the  part  of  the  woman  (of  her  own 
oath) is  that  she  should  pass  the  night  with  him  whilst  she  is  in  herown  shirt, 
and  the  condition  forthefulfilmentof  the  oath  (so  as  to  avoid  the  consequences 
of  a  breach  of  it)  on  the  part  of  the  man  is,  that  the  man  shall  pass  the 
night  with  her  whilst  he  is  in  the  woman's  shirt:  and  all  these  things  have 


143  THE  TAGORB  LAW  LGCTUBBS,  1891-92. 

verily  been  found.  (Herein  the  oath,  the  words  "  with  this  thy  shirt"  mean 
that  the  swearer  shall  have  her  shirt  on.  In  the  husband's  oath,  the  divorce 
would  be  caused  if  there  was  an  absence  of  the  compound  idea  of  ^*  pas- 
sing the  night  with  the  woman's  shirt ; ''  the  divorce  would  therefore  be 
caused,  firstly,  when  the  husband  does  not  pass  the  night,  and  he  does  not 
put  on  her  shirt;  secondly,  when  the  husband  passes  the  night  with  her, 
and  he  does  not  put  on  her  shirt ;  and  thirdly,  when  he  does  not  pass  the 
night  with  her  but  puts  on  her  shirt :  and  the  oath  shall  be  satisfied  and 
divorce  shall  not  be  caused  when  the  husband  passes  the  night  with  her 
and  puts  on  her  shirt). 

2207.  (1307.)     A  man  says  to  his  wife,  "If  *  * 

*  *  *  ,  *  *  *  * 

*  *  then  thou  art  divorced  thrice; "  he  then  says, 
"If*                ^                ^  *  *  *  *  then 

thou  art  divorced  thrice  :  **  then  the  device  in  this  matter  is  that    * 

*  *  *  *  ^e-  *  * 

^   -  ^60  that  the  husband  shall  not  commit  a  breach  of  his 

oath,  as  long  as  the  hair  band  continues  to  exist  whilst  they  are  alive  (be- 
cause the  condition  "  with  the  hair  band,"  could  only  be  negatived 
when  the  hair  band  ceases  to  exist  or  one  of  the  parties  is  in  extremis : 
when  the  hair  band  ceases  to  exist,  then  it  will  be  impossible      * 

*  *  *  *  ;  and  if  one  of  them  dies  or  the  hair 

band  is  lost  or  destroyed,  the  man  commibs  a  breach  of  his  oath.  (The 
case  in  paragraph  1306  resembles  the  present  case  except  that  in  1306  the 
case  refers  to  "this  night''). 

2208.  (1308.)  A  man  takes  oath  that  he  shall  not  have  intercourse 
{Jima)  *  *  *  *  *  the  man 
then  *                 *        •         *                 ¥r                ^                ^  ^ 

*  *  *  *  *  *  « 

he  shall  not  commit  a  breach  of  his  oath,  and  his  oath  shall  relate  to  {Utoa* 
bazaut  or)  *  *  *  *  ^  * 

*  *  *  *  *  *  * 

*  *  the  oath  is,  therefore,  against     *        ;        * 

*  *  *      is  excluded  from  Jima.     See  Vol.  II,  Eudd- 
ool  Moohtar,  page  160,  on  Pasts,  and  see  paragraph  1817  poet). 

2209.  (1309.)  A  man  swears  that  he  shall  not  untie  the  strings 
(of  his  trousers)  for  a  lawful  or  unlawful  purpose  in  journey ;  * 

*  *  *  *  ^e  *  * 


OTS  CONDITIONS   IN   WVORCE,  149 

*  *  *  ^  *  Mr  * 

*  *  *  then  if  be  intends  the  primary  meaning 
of  nntjing  the  string,  he  shall  not  commit  a  breach  of  his  oath,  and 
he  shall  be  believed  morally  and  by  the  Knzee,  if  he  says  such  was  his 
intention;  becaase  in  this  case  his  intention  relates  to  tlie  primary  mean- 
ing of  the  word ;  bnt  if  he,  by  those  words,  means  *  * 
then  he  shall  commit  a  breach  of  his  oath. 

2210.  (1310.)     A  man  swears  that  he  will  not  open  his  tronsers        * 

*  *  intending  thereby  *  *  the  man  shall  become  one 
who  has  made  an  Eela  ;  bat  if  he  does  not  intend  ^  * 
thereby,  he  shall  not  become  one  who  has  made  a  Eela. 

And  if  he  opens  his  tronsers  for  the  purpose  of  urinating,  and  after- 
wards *  *  *  *  he  shall  not  commit  a  breach  of 
his  oath;  because  "to  Open  trousers  *  *  "  is  to  open  (the  same) 
for  the  purpose  of  *  *  *  .  And  if  he  opens  his  trousers 
for  the  purpose        *                *                *  *        but  does  not        * 

*  ^  ;  the  learned  lawyers  have  said  that  it  is  fit  that  the  man 
shall  commit  a  breach  of  his  oath,  on  account  of  the  existence  of  the  condi- 
tion for  a  breach  of  the  oath,  and  that  condition  is  the  opening  of  the 
trousers  for  the  purpose  of        *  *  *  * 

2211.  (1311.)    A  man  swears  that  he  shall  not  *' wash  himself  on 

account  of  this  wife  of  his  in  consequence  of  impurity ; ''  he  then      * 

*  *  *  *  *  *  -x- 

*  *    or      *    '  *    :  he  shall  commit  a  breach  of  his  oath ; 

because  his  oath  relates  to        '^  ^    • 

And  if  he  intends  the  primary  meaning  of  washing,       ^  '^ 

*  *  *         then  also  he  shall  commit  a  breach  of  his 

oath ;  because  he  washes  himself  on  account  of    ^  *  ^ 

^  and  he  shall,  therefore,  commit  a  breach  of  his  oath,  just  as  if  he 
swears  that  he  will  not  make  ablutions  by  reason  of  flow  of  blood  from  the 
nostrils  (such  flow  requiring  such  purification)  and  he  then  makes  ablution 
by  reason  of  flow  of  blood  from  the  nostrils  and  for  other  causes,  he  shall 
commit  a  breach  of  his  oath. 

So  also  if  a  woman  takes  such  an  oath,  and  her  husband  then 
reaches  her       .*  *  *  ^  and  she  also  gets  her 

menses  (then  if  after  both  these  events  she  washes  herself,  she  shall  commit 
a  breach  of  her  oath). 


150  THE  TAOOBE  LAW  LECTURES,  1891-92. 

2212.  (1312.)  And  if  the  husband  says  to  bis  wife,  ''If  I  shall 
wash  mjself  on  account  of  thee,  in  consequence  of  impurity,  then  thou 
art  divorced ; "  and  *  *  *  ^  the  diforce  shall 
be  caused,  although  he  might  not  wash  himself    ^<-  *  * 

*  *  * 

2213.  (1313.)  A  man  says  to  his  wife,  "  If  I  wash  myself  on  ac- 
count of  thee  for  a  month,  then  thou  art  divorced;  '*  he  then  * 

******  and  purifies 
himself  in  a  mode  which  is  allowed  as  a  substitute  for  water  {Ih^nmrnoom)  : 
he  shall  commit  a  breach  of  his  oath  ;  because  his  oath  means  * 

* 

2214.  (1314)  And  if  a  woman  swears  that  she  ''  Shall  not  wash 
her  head  on  account  of  impurity  arising  from  her  husband  ;  "  and  she 
then  acquiesces  *****  ^\xq  shall 
commit  a  breach  of  her  oath  ;  because  her  oath  relates  to  her  (Tumkeen  or) 
offering  facility  willingly       ***** 

******* 

*  *  *     she  shall  not  commit  a  breach  of  her  oath. 

2216.     (1315.)     A  man  says  to  his  wife,  «  If  I  shall  not  * 

*****  then  thou  art  divor- 

ced :  "  then  as  long  as  they  are  both  alive  and  as  long  as  *    is  in 

existence,  he  shall  not  commit  a  breach  of  his  oath. 

2216.  (1316.)    A  man  says  to  his  wife,  «  If  I  do  not   *  * 
*******    then 

thou  art  divorced  thrice  ; ''  and  he  then  looks  about  in  quest  of  a  device  in 
this  matter :  the  learned  lawyers  have  rendered  the  following  as  a  device, 
viz. 9  that  the  man  should  carry  her  in  a  covered  car  {Ammaiy,  i.e.,  a  litter 
placed  on  the  back  of  the  elephant  or  camel)  and  take  it  to  the  market  * 
*  *  * 

2217.  (1317.)     A  man  says  to  his  wife  (in  Persian),  ''If  thou  hast 

done  an  unlawful  act  [Huram\  three  divorces  to  thee,"  and  verily  had  she 

kissed  a  man  who  was  not  (her  moAtirrum,  that  is  not)  unlawful  to  her,  or 
******* 

*  *     the  husband  shall  not  commit  a  breach  of  his  oath^  be* 

cause  his  oath  relates  to  ordinary        *  *     . 


ON    CONDITIONS    IN    DIVOROB.  151 

2218.  (1318.)  And  if  a  man  says  to  his  wife  in  Persian,  ^<  If  tboa 
filialt  do  an  unlawful  act  with  anybody,  then  thou  art  divorced ;  '*  be 
then  divorces  ber  completely  (bain),  and  tben  bas  intercoarse  witb  ber 
daring  tbe  Iddut  (sacb  intercoarse  being  Huram) :  tbe  learned  lawyers 
have  said  tbat,  according  to  analogy  from  tbe  teachings  of  Aboo  Haneefa 
and  Mabomed,  on  wbom  be  peace,  tbe  man  sball  commit  a  breach  of 
his  oath,  and  the  woman  shall  become  thrice  divorced ;  but  according 
to  Aboo  Yusoofy  on  whom  be  peace,  she  shall  not  become  divorced : 
because  they  (Aboo  Haneefa  and  Mahomed)  have  regard  to  tbe  gene* 
rality  of  tbe  words  ("  with  anybody  ")  whilst  Aboo  Yusoof,  on  whom 
be  peace,  has  regard  to  the  object  the  man  had  in  view. 

2219.  (1319.)  A  woman  swears  by  God  (in  Persian),  ^^  I  have  not 
doae  Huram  (or  un] awful ness),''  and  intends  thereby  that  it  is  not  she  who 
has  made  adultery  unlawful  but  that  it  is  God  only  who  has  made  (or- 
dained) adultery  unlawful :  and  she  verily  had  committed  adultery :  she 
shall  not  commit  a  breach  of  her  oath. 

So  also  if  a  man  takes  such  an  oath  and  intends  the  same  thereby, 
(he  shall  not  commit  a  breach) ;  because  he  intends  a  meaning  of  which 
the  words  are  susceptible;  but  if  tbe  man  swears  with  reference  to 
divorce  or  freedom  of  a  slave  (or  if  the  woman  swears  with  reference  to  the 
freedom  of  a  slave)  he  (or  she)  shall  not  be  believed  and  confirmed  by  the 
Kazee  (and  the  divorce  or  emancipation  shall  take  place  ;  because  ordi- 
narily the  oath  refers  to  adultery  or  Zina). 

2220.  (1320.)  A  man  says  to  his  wife,  '^  If  thou  shalt  commit  unlaw- 
fulness {Suram)  then  thou  art  divorced  thrice ;  ^*  she  then  utters  {Koofr  or) 
iufidelism  (the  result  of  this  Koofr  being  the  cancellation  or  Fuskh 
of  the  marriage)  without  either  of  them  knowing  that  each  has  become 
unlawful  to  the  other  (on  account  of  ber  iufidelism)  and  both  of  them 
continued  to  be  so  (ignorant)  for  a  few  days  :  the  man  shall  not  commit 
a  breach  of  his  oath,  because  his  oath  had  reference  to  adultery  (Zina),  and 
verily  he  has  had  intercourse  with  her  on  account  of  doubt,  and  therefore 
he  shall  not  commit  a  breach  of  his  oath ;  (that  is,  by  uttering  words  of 
inGdelism,  the  woman  became  unlawful  to  her  husband  and  connexion 
after  tbat  was  adultery  or  Zitia,  and,  therefore,  the  oath  would  have  been 
realised  but  for  the  fact  that  the  connexion  in  this  case  did  not  amount  to 
Zina  on  account  of  doubt)  just  as  if  a  man  swears  that  he  will  not  commit 
unlawfulness,  but  marries  a  woman  by  an  invalid  marriage,  and  has  sexual 


1^2  THE   TAGOBG   LAW  LECTUBES,   1891-92. 

intercourse  With  ber,  he  shall  not  commit  a  breach  of  his  oath  ;  because  his 
oath  relates  to  what  is  absolutely  unlawful. 

2221.  (1321.)  And  if  a  man  swears  regarding  his  wife's  divorce  that 
he  shall  not  look  at  what  is  unlawful,  and  he  lookis  at  the  face  of  a  strange 
woman,  he  shall  not  commit  a  breach  of  his  oath  ;  but  if  he  looks   *       * 

*  he  shall  commit  a  breach  of  his  oath,  because  he  looks  *        * 

*  *  *  ;  but  if  he  looks  *  *  *  *  ^  he  shall  not 
commit  a  breach  of  his  oath,  because  he  looks        ***** 

*  *        *.        ^ 

2222.  (1822.)  A  woman  accuses  her  husband  *  *  ;  she  then 
inakes  the  husband  take  an  oath  tiiat  he  shall  not  *  *  l  the  hus- 
band then  kisses  ^  ^  *  *  *  *  :  he  shall  not  comioit  a 
breach  of  his  oalh  *  *  *  *  ;  and  if  *  *  *  *  * 
************  he  shall 
commit  a  breach  of  his  oath,  although  he  might  not  *  *  because 
that  is  what  is  ordinarily  meant  (by  the  oath.     See  paragraph  1308). 

2223.  (1323.)  A  man  says,  "  If  I  do  unlawfulness,  then  my  wife  is 
divorced ; "  he  then  does  *  *  *  *  :  his  wife  shall  not  be- 
come divorced  ;  because  the  act  *  *  *  is  not  meant  by  the  oatb, 
unless  the  swedrer  is  a  boor  and  an  ignorant  man  who  is  following  *  * 
«        ^        *        *        *        *.*        ^        *        **        *^ 

2224.  (1324.)  A  man  is  accused  *  *  the  man  says  in  Per- 
sian, "  If  1  have  misbehaved  *  *  then  my  wife  is  divorced/*  and  be 
verily  had  looked  *  *  *  ***  *.  he  shall  commit 
a  breach  of  his  oath ;  because  this  is  culled  his  misbehaviour. 

2226.     (1325.)     A  man  swears  that  he  will  not  kiss  so  and  so  *        ^ 

*  *  *  *  ;  he  then  kisses  his  hand  or  foot :  the  learned  lawyers 
have  differed  in  this  matter.  Some  of  them  have  said  that  he  shall  not 
commit  a  breach  of  his  oath  (because  kissing  means  kissing  on  the  face)  and 
others  have  said  that  he.  shall  commit  a  breach  of  his  oath  if  be  does  so 
with  one  who  has  a  beard  (because  to  kiss  a  bearded  man  means  to  kiss 
his  hand  or  foot  out  of  rBspect) :  whilst  others  have  said  that  if  the  maa 
has  taken,  the  oath  in  Persian,  then  he  shall  not  commit  a  breach  of  his 
oath  until  he  has  kissed  the  face  (because  in  Persian  kissing  means  kiss- 
ing on  the  face),  whether  the  man  is  one  having  a  beard  or  not ;  and  that 


ON   CONDITIONS   IN   DIVORCE.  153 

in  the  Arabic  language,  a  distinction  is  made  between  one  wbo  bas  a  beard 
and  one  who  bas  not ;  and  tiiis  is  correct. 

2226.  (1826.)  A  man  bas  a  pupil,  *  *  ^  *  ,  *  * 
*  *  ^  /^  *  -  *  ;  the  tutor  tben  takes  oath  *  *  * 
***  *  *  #  *•*  *  ^  «  *  *and 
he  takes  the  oath  without  carefully  ascertaining  the  matter  *  *  ^ 
^  ;  the  father  of  the  pupil  then  says,  **  Tliis  other  pupil  says  that  he 
saw  the  tutor  whispering  to  the  pupil;*' the  tutor  then  says,  **  If  that 
pnpil  saw  me  whispering  to  him  (the  son),  then  my  wife  is  divorced;  *' 
and  the  fact  is,  that  what  the  (second)  pnpil  saw  was  that  the  tutor 
told  bim  something  in  a  whisper  relating  to  his' affairs,  via.,  that  the  pupib 
should  make  a  purchase  (for  the  master)  or  carry  something  to  the  master's, 
house,  and  that  the  pupil  should  not  inform  anybody  else  about  it :  the 
leanied  lawyers  have  said  we  hope  that  the  tutor  shall  hot  commit  a  breach 
of  his  oath  ;  because  his  oath  relates  to  a  secret  thing    ^        *    .    ^        *. 

and  the  tutor  shall  not,  therefore,  commit  a  breach  *  *  *  *♦ 
**#**#***^e*  just  as  if  the 
husband  were  to  be  accused  by  the  wife  with  a  female  slave,  and  he  were 
to  say  (in  Persian),  ^^  If  I  shall  touch  her  (the  female  slave),  then  thou  artr 
divorced ;  **  and  if  he  were  then  to  strike  the  female  slave  (with  his  hand),  he 
shall  not  eooimit  a  breach  of  his  oath  ;  because  his  oath  relates  to  touching 
that  which  his  wife  considered  reprehensible.  So  also  if  the  man  (so 
accused  by  his  wife  as  aforesaid)  takes  oath  and  says,  **  If  I  shall  put  my 
hand  on  my  female  slave,  then  she  shall  be  free,"  and  he  then  strikes  her 
and  puts  his  hand  on  her  (while  so  striking),  he  shall  not  commit  a  breach 
of  his  oath^  if  his  oath  is  for  the  purpose  of  satisfying  bis  wife  or  is 
with  an  object  different  from  putting  his  hand  for  the  purpose  of 
striking.      ' 

2227.  (1827.)  A  man  accuses  his  wife  with  another  man  ;  the  hus- 
band then  enters  his  (own)  house  and  finds  the  man  so  (accused)  sitting  at 
a  place  in  the  house,  and  the  woman  standing  in  another  place;  then  when 
the  husband  and  the  man  (accused)  go  out  of  the  house,  the  Sultan  (or 
King)  gives  oath  to  the  husband  to  the  effect  that  he  did  not  catch  so  and 
so  with  his  wife ;  the  man  (husband)  then  takes  oath  with  his  wife's  divorce 
that  he  did  not  catch  so  and  so  with  his  wife :  the  man  shall  not  commit  a 
breach  of  his  oath ;  because,  ordinarily  catching  one  accused  with  the  other 
accused,  means  that  the  man  (accused)  should  be  caught  with  the  woman 

20 


154  THE    TAQOBE   LAW   LBCTUBBS,    1891-92. 

in  some  act,  whefcker  the  act  be  sezaal  intercoarse,  or  embrace  or  talking : 
and  the  man  shall  not  commit  a  breach  without  (any  one  of)  these. 

2228.  (1328.)  A  woman  says  to  her  hnsband,  *'  Yerily  did  thoa  sleep 
with  the  female  slave ;  "  the  hnsband  says,  "  If  I  slept  with  the  female 
slave,  then  thou  art  divorced  thrice ;  '^  and  the  woman  says  that,  *^  If  in 
this  thy  oath  there  is  some  hidden  meaning  (which  I  cannot  understand  ; 
and  by  which  you  might  be  able  to  get  out  of  the  oath)  then  I  am  divorced  '* 
and  the  husband  says,  **  Yes :  "  then  if  the  husband  does  not  mean 
something  other  than  what  is  expressed  by  his  oath,  he  shall  not  commit  a 
breach  of  his  oath  (and  the  woman  shall  not  become  divorced  by  reason 
of  the  divorce  being  conditionally  entrusted  to  her)  ;  otherwise  he  shall 
commit  a  breach  of  his  oath,  and  his  wife  shall  become  divorced  (by  virtue 
of  the  authority  to  divorce  vested  in  her  by  the  word  "  Yes.") 

2229.  (1329.)  It  is  said  to  a  man, "  Yerily  dost  thou  commit  with  such 
and  such  a  woman  such  and  such  an  net,"  and  the  same  woman 
(with  whom  he  is  so  accused)  is  on  the  roof  {Sutuh)  and  there  is  another 
woman  on  another  roof,  and  both  the  roofs  are  close  to  each  other,  and  the 
niglit  is  dark ;  the  man  (accused)  says,  *^  If  I  have  done  such  and  such 
an  act  with  that  woman  (pointing  to  the  other  woman,  not  the  one  with 
whom  he  is  accused),  then  my  wife  is  divorced  thrice ;  "  and  he  does  not 
name  the  woman,  and  he  points  to  a  woman  other  than  the  one  with  whom 
he  is  accused^  and  the  fact  is  that  the  man  does  really  the  particular 
act  with  the  woman  with  whom  he  is  accused  :  tlie  wife  of  the  swearer 
shall  be  divorced  so  far  as  the  Kazee  is  concerned ;  because  his  expression,  in 
the  oath  **  that  woman,"  refers  to  the  woman  who  was  mentioned  before 
(that  is,  the  woman  who  is  the  subject  of  the  discourse) ;  bat  his  wife  shall 
not  be  divorced  morally,  on  account  of  the  man  pointing  out  a  different 
woman. 

So  also  a  man  claims  property  from  another  man,  and  the  latter 
denies  the  claim,  and  the  Kazee  gives  oath  to  him  thus  : — *^  By  Ood,  the 
swearer  does  not  owe  this  property  to  the  claimant ;  "  the  man  takes  the 
oath  and  points  with  his  finger,  which  is  concealed  within  his  sleeves,  to 
another  man  to  whom  he  does  not  owe  anything,  the  man  shall  not  commit 
a  breach  of  oath  morally. 

2230.  (1330).  A  woman  always  abuses  her  husband  ;  the  husband 
says,  '^  If  thou  abuse  me,  thou  art  divorced  thrice ; "  the  wife  addressing 
her  infant  child  bom  of  him  says  (in  Persian),  "  Oh  you  born  of 
adultery  I  *'  The  lawyer  Aboo  Jafer,  on  whom  be  peace,  says,  that  if  the 


ON  CONDITIONS   IN   DIV0ECJ5.  155 

woman  says  so  on  acconnt  of  something  disagreeable  to  her  proceeding 
from  the  child^  she  shall  not  be  divorced ;  but  if  she  says  so  on  account  of 
something  disagreeable  to  her  proceeding  from  the  father  of  the  child^ 
then  she  shall  become  divorced  thrice  (because  she  has  abused  him  calling 
him  a  Zanee  or  adulterer.     See  paragraph  1375  post). 

S23L  (1381.)  A  man  says  to  his  wife,  ''If  thou  enter  the  house 
of  so  and  so,  and  so  and  so  enter  thy  house,  then  thou  art  divorced ;  "  the 
woman  then  enters  the  house  of  so  and  so,  but  the  so  and  so  does  not  enter 
her  house,  the  man  shall  commit  a  breach  of  his  oath,  because  the  oath 
meant  either  of  the  two  (things  referred  to  therein),  and  not  both  the 
things  at  once. 

8232.  (1332.)  A  man  says  to  his  wife^  ''  Why  dost  not  thou  wash 
this  cup ;  "  the  woman  says,  "  I  have  washed  it;  ^'  the  man  then  says,  "  If 
thou  hast  not  washed  it,  then  thou  art  divorced  thrice ; "  the  fact  is 
that  the  woman  had  ordered  her  servant  to  wash  the  cup,  and  the  servant 
had  really  washed  it :  the  learned  lawyers  have  said  that  if  the  woman  is 
not  in  the  habit  of  washing  (the  cup  and  other  vessels)  herself,  but  is  in 
the  habit  of  getting  such  work  done  by  a  servant,  then  the  husband  shall 
not  commit  a  breach  of  his  oath ;  but  if  the  woman  is  in  the  habit  of  wash- 
ing (and  cleaning  utensils)  herself,  and  the  husband  intends  this  (viz., 
washing  by  herself),  the  divorce  shall  be  caused. 


(1333.)  A  man  says  to  his  wife,  "  If  I  sleep  on  thy  cloth, 
then  thou  art  divorced ;  '^  he  then  reclines  on  one  of  her  pillows  or  lies 
down  on  her  bedding  (JircLsh),  or  supports  his  head  on  her  elbow  (which  is 
covered  with  her  clothing)  :  the  learned  lawyers  have  said  that  if  he  puts 
one  of  his  sides  or  the  greater  part  of  his  person  on  her  cloth,  he  shall 
conmiit  a  breach  of  his  oath ;  but  that  if  he  reclines  on  her  pillow  or  sits 
on  it,  be  shall  not  commit  a  breach  of  his  oath. 

2831.  (1334.)  A  man  says  to  his  wife  (in  Persian),  ''  If  I  make 
a  meal  of  what  is  in  the  pot  warmed  by  thee,  then  thou  art  divorced ;  " 
she  then  (merely)  warms  the  pot  containing  edibles  cooked  by  somebody 
else,  and  the  swearer  eats  of  it ;  he  shall  not  commit  a  breach  of  his  oath : 
because  by  warming  is  meant  cooking. 

2236.  (1335.)  A  man  says  to  his  wife,  "  If  I  eat  of  what  is  in 
the  pot  cooked  by  thee,  then  thou  art  divorced ;  '^  the  woman  then  puts  the 
utensil  on  a  stove,  which  contains  fire  kindled  by  the  woman,  and  the 
swearer  eats  the  thing  so  cooked :  she  shall  become  divorced;  but  if  some* 


156  THE   TAGORK  LAW   USCTUBSS^    1891-9^. 

body  else  had  kindled  tho  firej  tlien  the  learned  lawyers  have  entered  into 
a  discussion  in  this  matter ;  and  the  correct  view  is^  that  in  this  case  also 
she  shall  become  divorced ;  because  if  in  a  lane  there  is  a  stove  in  which 
one  woman  kindles  a  fire^  and  other  women  put  their  pots  on  the  stove^  this 
amounts  to  cooking  on  behalf  of  each  of  them ;  and  if  there  is  no  fire  in  the 
stove,  and  the  woman  puts  her  pot  on  the  stove,  and  she  then  kindles  fire  in 
the  stove,  (even  then)  she  shall  become  divorced,  if  the  swearer  eats  out 
of  this ;  but  if  some  other  woman  kindles  the  fire,  she  (i.e.,  the  woman  who 
put  her  utensil  on  the  cold  stove)  shall  not  become  divorced ;  because  the 
putting  of  the  pot  on  a  stove  in  which  there  is  no  fire,  is  not  called  cook- 
ing; and  a  fire  grate  (or  small  private  stove)  stands  on  the  same  footing. 

2236.  (1336.)  A  woman  says  to  her  husband,  '^  Come  thou^  so  that 
thou  mayst  take  thy  breakfast;''  the  man  then  swears  that  he  will  not  take 
his  breakfast  unless  the  woman  prepares  the  breakfast  with  one  kufeez  (a 
measure)  of  salt  in  it :  the  learned  lawyers  have  said  (that  the  device  in  this 
matter  is)  that  the  woman  shall  boil  eggs  (with  the  outer  shell)  in  a  pot  in 
which  there  is  one  measure  of  salt  (so  that  the  excess  of  salt  shall  not 
affect  the  yolk)  and  the  husband  shall  then  make  his  breakfast  (on  the 
eggs)  and  he  shall  not  commit  a  breach  of  his  oath. 

2237.  (1337.)  A  man  says  to  his  wife,  "  Verily  dost  thou  spoil  all 
the  dishes  (or  eatables) ;  therefore  if  I  bring  eatables  to  thee  for  one 
month,  then  thou  art  divorced; ''  the  swearer  then  brings  meat  to  her  for 
the  purpose  of  being  given  to  the  laborers  {Oojurai ;  or  to  the  dogs, 
Ajv/rai) :  the  man  shall  not  commit  a  breach  of  his  oath,  because  his  oath 
relates  to  bringing  (eatables)  for  the  use  of  the  house,  as  the  context 
indicates  (JDulalut). 

2238.  (1338.)  A  man  says  to  his  wife,  ^^  If  thou  do  not  come  to  me 
with  such  and  such  a  thing  to-morrow,  then  thou  art  divorced ;''  the 
woman  sends  those  things  (to  her  husband)  through  a  person :  then  if 
the  swearer  means  receiving  the  things  on  the  morrow  and  means  nothing 
else,  he  shall  not  commit  a  breach  of  his  oath ;  because  he  means  what  his 
words  are  susceptible  of ;  but  if  he  does  not  intend  anything,  or  if  he 
means  that  the  woman  should  herself  carry  the  thing  (and  bring  it  to  him] 
the  man  shall  commit  a  breach  of  his  oath ;  but  the  mere  receiving  of  the 
thing  will  not  satisfy  the  oath  unless  he  so  intends. 

2239.  (1339.)  A  woman  is  in  the  habit  of  taking  the  property  of 
her  husband  and  giving  it  to  another  woman,  in  order  that  the  latter  might 


OK   CONDITIONS  IK   DIVORCE.  157 

spin  thread  for  the  former;  her  husband  says  to  her^  '^If  thou  takest  any 
thing  out  of  my  property^  then  thou  art  divorced;^'  she  then  takes 
something  out  of  his  property  and  purchases  with  it  something  from  the 
grain-seller^  (J^amj^),  for  the  necessities  of  the  house;  or  there  being  a 
neighbour  of  her,  who  is  in  the  habit  of  baking  bread  in  her  house,  the 
neighbour  wants  a  little  flour,  and  the  woman  (whose husband  has  taken  the 
oath)  gives  her  the  flour,  or  she  gives  a  loan  of  some  bread :  then,  if  the 
husband  does  not  disapprove  of  this  (i.e.,  he  is  not  in  the  habit  of  taking 
exception  to  such  trifling  acts  on  the  part  of  his  wife),  he  shall  not 
commit  a  breach  of  his  oath  by  the  loan,  or  gift  of  flour ;  but  in  the  case 
of  the  purchase  of  things  which  were  necessary  for  the  house,  if  she  has 
the  authority  to  make  purchases  from  the  grain-seller  {Famy),  then  the 
husband  shall  not  commit  a  breach  of  his  oath;  because  the  husband  (as  a 
rule)  does  not  disapprove  of  this,  and  he  does  not  intend  to  include  this  in 
his  oath ;  but  if  the  wife  has  no  authority  to  make  purchases  herself,  then 
the  husband  shall  commit  a  breach  of  his  oath,  if  the  woman  should,  with 
his  property,  purchase  something  from  the  grain-seller  (Famy), 

8S40.  (1340.)  A  man  says  to  his  wife,  "  If  thou  take  my  barley 
(ShiAeer)  to  send  the  same  to  the  grain-seller  {Famy),  then  thou  art 
divorced; ''  and  he  has  in  his  house  an  animal  which  is  fed  on  barley, 
and  in  front  of  the  animal  there  is  (a  handful  of)  barley,  which  was  left 
after  its  meal,  and  the  woman  sends  this  (handful  of)  barley  together 
with  her  (own)  barley  to  the  grain-seller  {Famy) :  then  if  the  husband  is 
not  in  the  habit  of  disapproving  of  this  (that  is,  the  sending  the  remnant  of 
barley)  he  shall  not  commit  abroach  of  his  oath;  because  such  a  quantity  is 
not  ordinarily  included  in  the  oath ;  but  if  the  husband  is  niggardly  even 
to  this  extent,  and  has  regard  for  that  small  quantity  also,  he  shall  commit 
a  breach  of  his  oath. 

224L  (1841.)  A  man  says  to  his  son,  ''If  thou  steal  anything 
out  of  my  property,  then  thy  mother  is  divorced  ;'^  the  son  then  steals  from 
his  father's  house  a  brick :  it  is  reported  from  Aboo  Yusoof,  on  whom  be 
peace,  that  on  being  questioned  regarding  this  matter,  he  said,  that  if  the 
f ather^s  avarice  extends  to  this  limit  as  regards  his  son,  his  wife  shall  become 
diyorced ;  and  Mohamed,  on  whom  be  peace,  on  being  questioned  in  regard 
to  the  matter,  returned  no  answer;  then  he  (Mohamed)  was  told  that 
Aboo  Yusoof,  on  whom  be  peace,  has  returned  this  particular  answer,  he 
(Mohamed)  then  said  ''  Who  can  give  such  an  excellent  answer  except 
Aboo  Yusoof^  on  whom  be  peace. " 


158  THE  TAGORE  LAW  LECTUBES^  1891-92. 

2242.  (1342.)  A  man  says  to  his  wife^  ''If  I  give  thee  a  dirhem 
in  order  that  thou  might  purchase  with  it  anything,  then  thou  art  divor- 
ced; ^'  he  then  gives  her  a  dirhem,  and  orders  her  to  make  it  over  to  so 
and  so,  in  order  that  the  so-and-so  might  purchase  with  it  something  for 
the  woman :  he  then  recollects  his  oath^  and  takes  back  the  dirhem  from 
her :  then,  if  the  woman  habitually  (goes  out  to  the  market  and)  purchases 
things  herself,  the  man  shall  not  commit  a  breach  of  his  oath  (because 
he  gave  her  the  dirhem  to  make  it  over  to  somebody  else  to  purchase 
something  with  it,  and  the  woman  is  so  circumstanced  that  she  can  herself 
make  purchases  in  the  ordinary  course  and  is  not  obliged  to  purchase 
through  others) ;  but  if  the  woman  is  not  in  the  habit  of  purchasing 
herself,  then  the  husband  shall  commit  a  breach  of  his  oath  ;  becanse  pur- 
chase by  her  is  to  order  somebody  else  to  make  the  purchase  for  her,  when 
she  does  not  herself  personally  make  purchases. 

And  this  is  an  example  of  what  we  have  said  (see  paragraph  1295), 
that  if  the  husband  says  to  his  wife,  '*  If  thou  shalt  spin  for  another, 
then  thou  art  divorced  '*  and  the  woman  asks  some  other  woman  to  spin 
for  her,  the  result  of  this  case  (vi?.,  that  of  spinning)  is  similar  to  this 
case  {viz.y  that  of  purchasing). 

2243.  (1343.)  A  man  says  to  his  wife,  ^'  If  thou  shalt  send  any 
thing  from  this  house  to  that  house,  then  thou  art  divorced;'^  the 
swearer  then  orders  his  slave  girl  to  give  to  the  inmates  of  that  house, 
whatever  they  ask  for ;  a  man  then  comes  from  that  house  and  asks  for 
something,  and  the  slave  girl  refuses  to  give,  and  the  master  comes  to 
know  of  this,  and  disapproves  of  it  (that  is,  the  refusal  by  the  girl)  and 
becomes  angry ;  the  wife  of  the  swearer  then  says  to  the  slave  girl  *'  go 
thou  and  carry  from  the  house  of  the  master,  the  best  of  what  was  asked 
for  by  the  inmates  of  the  other  house,  to  the  other  house, "  and  the  slave 
girl  does  carry  the  thing :  the  learned  lawyers  have  said  that  if  it  can  be 
known  from  other  circumstances  {Duleel),  that  the  slave  girl  did  so  for 
the  master  (or  in  furtherance  of  the  wishes  of  the  master)  and  not  in 
obedience  to  her  mistress,  then  the  swearer  shall  not  commit  a  breach 
of  his  oath ;  but  if  it  can  be  ascertained  that  the  slave  girl  did  so  in 
obedience  to  her  mistress,  the  swearer  shall  commit  a  breach  of  his  oath : 
but  if  there  are  no  circumstances  (to  throw  light  on  the  subject)  then 
the  slave  girl  shall  be  questioned,  and  her  word  shall  be  accepted  when 
she  says  that  she  did  so  in  obedience  to  her  mistress,  or  in  furtherance  of 
the  wishes  of  the  master :  this^is  so  laid  down  in  Mohamed's  book. 


OH  CONDITIONS   IN    DIVORCE.  159 

MonlaDa  (Eazee  Khan,  the  author  of  these  Fatcma)  has  laid  down  that 
the  ease  can  also  be  put  in  this  way,  via.,  that  if  the  inmates  of  the  other 
house  ask  for  the  thing  from  the  slave  girl,  and  she  refuses  and  does  not 
give  it»  and  the  master  is  informed  of  the  refusal,  and  the  master  dis- 
approves of  the  course  adopted  by  the  slave  girl  (although  he  had  given 
no  order  to  the  slave  girl  to  give  the  thing) ;  the  swearer's  wife  then 
says  to  the  slave  girl,  *^  Carry  thou  from  the  master's  house  the  best  of 
ivbafc  was  asked  for,  and  take  it  to  that  other  house ;''  and  the  rest  of 
Die  case  is  as  stated  above. 

2244.  (1844.)  A  man  says  to  his,  wife,  ^^If  thy  mother  eats  of 
anything  out  of  my  property,  then  thou  art  divorced  thrice;''  the 
wife  then  cooks  (what  is  in)  a  neighbour's  pot,  and  puts  in  it  something 
which  was  needed  out  of  her  husband's  property  (such  as  salt,  &c.,)  and 
her  mother  eats  of  what  is  contained  in  the  pot :  then  if  the  wife  does  it 
(Le.y  puts  something  needed  into  the  utensil)  with  the  consent  of  the 
owner  of  the  utensil  and  with  the  consent  of  her  husband,  the  husband 
shall  not  commit  a  breach  of  his  oath ;  because  (in  that  case)  the  thing 
put  into  the  utensil  (out  of  what  belonged  to  the  husband)  became  the 
property  of  the  owner  of  the  pot. 

2246-  (1345.)  A  man  says  to  his  wife,  *^  If  thou  shalt  give  out  of 
my  wheat  to  any  one  then  thou  art  divorced ; "  and  he  says,  <'I  intended 
by  this  expression  (to  refer  to)  her  mother : "  the  man  shall  be  confirmed 
(and  believed)  morally  but  not  by  the  Eazee :  (he  shall  be  confirmed 
morally)  because  he  intended  to  use  as  particular  {Tukhsees)  what  is  a 
general  term  {Aam)  and  this  (intention)  is  permissible  as  between  him 
and  his  God. 

And  according  to  the  view  of  Ehussaf,  on  whom  be  peace,  the 
man's  intention  shall  hold  good  absolutely  (that  is,  morally  as  well  as 
by  the  Eazee)  in  a  case  like  this  (viz.,  where  a  general  term  is  used 
and  a  particular  individual  is  meant).  The  learned  lawyers  have  said 
that  this  will  be  so  (that  is,  to  use  a  general  term  and  mean  a  particular 
indiyidual)  when  the  man  expresses  himself  in  the  Arabic  language;  but 
if  he  expresses  himself  in  the  Persian  languge,  then  his  intention  shall 
not  be  correct ;  because  it  is  only  in  the  Arabic  language  that  it  is  permis- 
sible to  modify  the  universality  of  a  general  expression  {Tukhsees-ool  Aam) 
But  the  correct  view  is,  that  there  is  no  difference  between  the  Arabic 
and  Persian  languages,  and  his  intention  shall  be  correct  as  between  him 
and  God. 


160  THE  TAOOBB  LAW  LECTUBBS^  1891-92. 

This  is  80  (that  is,  his  intention  is  correct  only  morally  and  not  as 
between  the  man  and  the  Kazee),  when  the  swearer  is  not  acting  ander 
compulsion ;  but  if  the  oppressor  {ZciUm)  compels  him  to  swear,  then  it 
is  permissible  to  the  swearer  to  act  upon  the  view  of  Khnssaf,  on  whom 
be  peace,  and  to  intend  (particular  or)  individual  (although  he  might  use 
a  general  expression). 

2246.  (1346.)  A  man  says  to  his  wife,  *^  If  thou  shalt  take  dirhems 
out  of  my  purse,  then  thou  art  divorced ;  "  the  woman  then  opens  the 
mouth  of  the  purse  and  orders  her  daughter  to  take  out,  and  the  daughter 
takes  out :  the  learned  lawyers  hare  said  that  it  is  feared  that  the  wife 
shall  become  divorced ;  because  it  does  sometimes  happen  that  when  two 
persons  take  dirhems  out  of  a  purse,  they  resort  to  this  mode ;  and 
for  this  reason  if  a  number  of  persons  enter  a  person's  house  for  the 
purpose  of  committing  tiieft,  and  they  take  away  property  and  one  of 
them  carries  the  property  and  brings  it  out  of  the  house,  all  of  them 
shall  be  held  to  be  thieves. 

2247.  (1347.)  A  woman  takes  a  dirhem  out  of  her  husband's  purse 
and  purchases  meat  with  it,  and  the  butcher  mixes  the  dirhem  with  his 
other  dirhems ;  and  the  woman's  husband  says  to  her,  ^'  If  thou  shalt  not 
return  to  me  that  very  dirhem  this  day,  then  thou  art  divorced ;  "  and  the 
day  expires  (and  the  diriiem  is  not  returned) :  the  divorce  shall  take 
place  in  consequence  of  the  condition  being  realised ;  and  if  the  husband 
intends  to  find  out  a  device  to  get  out  of  his  oath,  the  woman  shall  take 
the  purse  of  the  butcher  (containing  amongst  others,  the  dirhem  requir- 
ed) and  make  it  over  to  the  husband  (who  might  then  gire  it  back). 

2248.  (1348.)  A  man  says  to  his  wife,  ^*  If  thou  shalt  not  return 
to  me  the  dinar  (gold  mohur)  which  thou  hast  taken  from  my  pursC} 
then  thou  art  divorced ; "  but  the  dinar  is  in  his  purse :  the  woman 
shall  not  be  divorced. 

2249.  (1349.)  A  Vakeel,  or  a  labourer  (that  is,  a  husband-man  or 
tiller),  takes  oath,  that  he  shall  not  steal,  and  he  takes  grapes  and  fruit 
and  eats  them  or  takes  them  away  to  eat :  he  shall  not  commit  a  breach  of 
his  oath,  because  this  is  not  ordinarily  understood  to  be  theft ;  but  if  he 
takes  them  away,  not  for  the  purpose  of  eating,  and  the  owner  of  the  grape- 
tree  has  also  a  share  in  the  grapes  (which  the  man  carries  home) ;  and 
the  man  does  not  inform  the  owner  of  the  grape-tree  that  he  is  taking  tbe 
grapes  away,  and  he  does  not  even  think  of  informing  of  it  to  the  owner 
he  shall  commit  a  breach  of  his  oath,  because  this  is  considered  theft. 


ON  CONDITIONS   IN   DIVORON.  161 

And  as  regards  grain  and  crops  of  the  thrashing  floor  {KhyaTuar\ 
if  the  labourer  or  Vakeel  takes  something  of  it,  not  for  safe  keepings 
bat  to  appropriate  it  exclusively,  he  shall  commit  a  breach  of  his  oath. 

And  if  a  person  other  than  a  Vakeel  or  a  labourer  (who  has  been 
entrusted  with  the  thing),  takes  away  anything  out  of  these  sarreptitiously, 
be  shall  commit  a  breach  of  his  oath,  because  the  act  amounts  to 
tbeft. 

2260.  (1350.)  A  man  is  acoased  of  theft  of  a  tbing;  he  then 
takes  oath  that  he  did  not  steal  it  or  see  it ;  the  fact  being  that  he  did 
see  it  before,  but  he  did  not  steal  it :  the  learned  lawyers  hare  said  that 
bis  oath  shall  relate  to  seeing  the  thing  at  tbe  time  of  stealing,  as  the 
circumstances  of  the  oath  denote  {puXaluiun)^  and  he  shall  not  commit  a 
breach  of   his  oath. 

2251.  (1351.)  A  man  has  a  (piece  of)  cloth;  and  somebody  steals  it 
or  takes  it  by  force  (ghimbb) ;  the  owner  of  the  cloth  (for  some  reason  or 
other),  takes  oath  and  says,  ''If  I  have  such  a  cloth — naming  the  cloth— « 
then  my  wife  is  divorced : "  the  learned  lawyers  have  said  that  if  it 
can  be  known  that  at  tbe  time  of  the  oath  the  cloth  was  destroyed,  he 
shall  not  commit  a  breach  of  his  oatli  (because  even  if  the  cloth  is  not 
in  his  possession,  it  is  still  his,  whoever  might  be  in  possession  of  it  by 
tbeft  or  by  force);  but  if  it  can  be  known  that  the  cloth  was  in  existence 
(at  the  time  of  the  oath),  or  if  it  is  not  known  what  has  become  of  it  (at 
tbe  time  of  the  oath),  then  the  man  shall  commit  a  breach  of  his  oath  ; 
because  (in  case  nothing  is  known  of  the  cloth)  the  existence  of  a  thing 
is  the  natural  state  of  that  thing  (and  it  must  be  presumed  to  exist). 

This  case  is  similar  to  the  case,  where  a  man  sells  cloth  belonging 
to  another  person,  without  the  permission  of  the  owner  of  the  cloth, 
and  snrrenders  the  same  to  the  purchaser;  and  the  owner  of  the  cloth 
afterwards  permits  (or  ratifies)  the  sale  by  the  man  :  then,  if  it  is  known 
at  the  time  of  the  permission  that  the  cloth  was  in  existence,  or  if  it  is 
not  known  whether  it  was  in  existence  or  whether  it  was  destroyed,  the 
permission  (or  ratification)  shall  be  valid;  but  if  it  is  known  at  the  time  of 
tbe  permission  (or  ratification)  that  the  cloth  was  destroyed,  the  permis- 
sion (or  ratification)  is  not  valid. 

2252.  (1352.)  A  man  buries  his  property  in  his  house ;  he  then 
looks  for  it,  and  does  not  find  it,  and  he  then  takes  oath  upon  divorce  that 
his  property  is  gone  (saying,  ^'  My  property  is  gone,  if  it  is  not  gone, 
then  my  wife  is  divorced :  ")    the  learned  lawyers  have  said  that  if  some- 

21 


162  THE  TAGORE  LAW  LKCTCRRS,  1891-92. 

body  has  not  taken  the  property,  it  is  feared  that  tlie  man  shall  commit 
a  breach  of  his  oath ;  because  (if  somebody  has  not  taken  it  away)  the 
property  has  nob  gone ;  except  when  his  intention  (in  the  words  used 
in  his  oath)  is  that  the  property  is  gone,  so  that  he  is  unable  to  find  it 
when  he  wants  it. 

A  washerman  has  a  shop,  and  cloth  belonging  to  another  goes  away 
(or  disappears)  from  the  shop;  he  accuses  his  laborer;  the  laborer  takes 
oath  in  Persian,  saying,  "  If  I  have  brought  loss  to  thee,  then  my  wife 
is  divorced  ; "  and  the  fact  is  that  the  laborer  has  taken  the  cloth  (to 
keep,  and  it  has  been  stolen  from  him):  the  laborer  shall  commit  a  breach  of 
his  oath;  because  the  object  of  the  swearer  by  the  oath  was  as  regards 
loss  to  the  washerman  in  regard  to  that  which  was  in  the  washerman's 
hands,  and  not  the  deprivation  of  his  ownership. 

2253.  (1353.)  A  man  enters  the  house  of  another  and  steals  cloth 
from  the  house,  and  the  owner  makes  no  demand  from  the  thief,  so 
that  the  thief  makes  over  to  the  man  some  dirhems  {e,g.y  to  keep  for 
safe  custody)  and  the  man  denies  having  received  the  dirhems  and  takes 
an  oath.  Abool  Kasim,  on  whom  be  peace,  says,  that  if  the  cloth  has  gone 
away  from  the  hands  of  the  thief,  then  the  swearer  shall  not  commit  a 
breach  of  his  oath  (because  the  one  is  set  off  against  the  other)  because 
he  is  truthful  (having  set  off  the  dirhems  against  the  price  of  the  cloth 
stolen) ;  but  if  the  cloth  is  in  existence  in  the  hands  of  the  thief,  even 
then  I  do  not  say  that  the  swearer  shall  commit  a  breach  of  his  oath  ; 
because,  according  to  the  view  which  some  take,  it  is  allowable  to  the  man, 
whose  property  has  been  stolen  or  usurped,  to  detain,  from  the  usurper 
or  the  thief,  the  property  of  the  usurper  or  the  thief,  until  he  gets  his 
rights. 

Moulana  (the  author  of  these  Futawa^  on  whom  be  peace,  says,  it  is 
necessary  that  this  answer  should  be  scrutinised,  an  d  it  is  proper  that  the 
swearer  should  be  held  to  have  committed  a  breach  of  his  oath  ;  because 
when  the  cloth  is  in  existence,  then  the  right  of  the  person,  whose  cloth 
has  been  stolen,  attaches  to  his  cloth  and  not  to  the  price  (or  value)  of 
the  cloth  ;  and  for  this  reason  if  the  creditor  happens  to  get  hold  of  some 
property  (Ayn)  out  of  the  properties  belonging  to  the  debtor,  it  is  not 
permissible  to  him  to  retain  such  property,  and  this  is  concurred  in  by  all 
the  traditions;  but  (no  doubt)  if  the  creditor  has  owing  to  him  dirhems  from 
a  person,  then  if  tlie  former  happens  to  get  hold  of  the  dinars  belonging 
to  his  debtor,  it  is  permissible  to  him  to   retain   those  dinars,  according 


ON    CONDITIONS  IN   DIVORCE.  16S 

to  traditions  reported  in  the  book  on  {Ayn)  Property  and  {Dyn)  Debt  (in 
the  work  of  Mahomed),  because  dirliems,  as  well  as  dinars  are  con- 
sidered of  the  same  kind  {Jins)  in  regard  to  some  purposes  of  law 
{Ahkam),  in  consequence  oC  sameness  of  their  object,  that  object  being 
that  they  are  capable  of  being  used  as  purchase  money.  Bat  as  regards 
properties  {Ayan)y  they  are  not  held  to  be  of  the  same  kind  as  purchnse- 
money  (that  is,  dirhems  and  dinars),  in  consequence  of  the  difference 
in  form  and  object. 

But  it  is  stated  in  the  book  (of  Muhomed)  that  a  man  pledges  some 
property  (Ayn)  in  lieu  of  debt  (owing  from  him) ;  then  the  pledgor 
comes  with  the  intention  of  taking  back  the  thing  (Ayn)  pledged,  from 
the  pledgee,  denying  the  debt  he  owed  to  the  pledgee,  and  the  pledgor 
intends  to  put  the  pledgee  on  his  oath  to  the  effect  that  he  (the  pledgee) 
has  not  the  pledgor's  thing  {Ayn)  in  his  hands ;  it  is  open  to  the  pledgee 
to  swear  "by  God,  I  have  not  with  me  this  thing  (Ayn)  which  he 
claims, "  intending  thereby  *'  I  have  not  with  me  this  thing  {Ayn) 
which  it  is  obligatory  on  me  to  surrender  to  him, "  and  he  shall  not  take 
oath  except  with  this  intention :  (this  supports  the  view  of  Abool  Kasim 
in  the  case  of  theft  in  question). 

All  this  is  when  the  cloth  is  in  existence  :  but  if  the  cloth  has  been 
destroyed  in  the  possession  of  the  thief,  even  then  the  answer  requires 
scrutiny  (and  doubt  arises  as  to  its  correctness);  because,  according  to  the 
Tiew  of  Aboo  Suneefa,  the  right  of  the  person  whose  cloth  has  been 
stolen  is  still  in  existence  in  the  cloth  (and  not  in  anytiiing  else  even)  after 
the  destruction  of  the  cloth.  And  for  this  reason,  if  the  owner  of  the 
cloth  compromises  in  respect  of  the  cloth  for  double  its  value,  the  com- 
promise shall  be  valid,  according  to  Aboo  Efuneefa,  and  the  owner's  right 
is  onlj  transferred  from  the  cloth  to  its  price  (or  value)  by  the  decree  of 
the  Kazee :  and  it  is  possible  for  the  Kazee  to  make  a  decree,  as  regards 
the  value  of  the  cloth,  that  the  same  shall  be  paid  in  dinars  and  not  in 
dirhems  (and  therefore  the  man  had  no  justification  for  swearing  that 
he  has  no  dirhems  of  the  thief  with  him). 

2264.  (1354.)  A  man  is  compelled  by  thieves  to  take  oath  on  three 
divorces,  that  he  has  not  with  him  dirhems,  other  than  those  taken  by 
them  from  him;  the  man  then  takes  oath  of  three  divorces  regarding 
the  matter :  the  learned  lawyers  have  said  that  if  the  man  has  with  him 
less  than  three  dirhems,  he  shall  not  commit  a  breach  of  his  oath  because 
the  expression   used  by  him   in   his  oath  is  dirhems  (in  the  plural)  and 


164  THE   TAGOBI   LkW   LICTUBKS^    1891-92. 

dirhems  in  the  plaral  does  not  imply  less  than  three  ;  but  if  he  has  with 
him  three  dirhems  or  more  than  three,  then  if  his  oath  relates  to  divoroe, 
the  divorce  shall  be  caused,  whether  the  swearer  knows  what  he  has  got 
or  does  not  know;  but  if  his  oath  is  in  relation  to  God,  then  if  the 
swearer  knows  how  many  he  has  of  the  dirhems  (that  is,  he  knows  that 
he  has  three  or  more  than  three)  then  (he  shall  be  sinful  but)  there  is  no 
Kaffara  (penalty  for  false  swearing)  on  him,  because  his  oath  is  one  of 
the  ghumoos  kind  (which  is,  when  a  man  intentionally  forswears  himself 
as  to  a  past  event) ;  but  if  be  does  not  know  this  (that  he  has  three  or 
more  than  three)  even  then  there  is  no  penalty  on  him  (but  he  will  not  be 
sinful)  because  his  oath  is  of  the  li*gho  kind  (which  is,  where  a  man 
sweai*s  to  his  belief  of  a  past  event  which  turns  out  to  be  incorrect) ;  but 
if  he  takes  oath  in  the  Persian  language,  saying,  '^  If  I  have  a  dirhem 
{SdCs.)/^  he  having  with  him  one  dirhem  or  more  than  one,  then  if  the 
oath  relates  to  divorce,  the  divorce  shall  be  caused;  and  if  the  oath  relates 
to  Ood,  then  the  result  shall  be  what  we  have  stated  above* 

And  if  he  says,  ^^  If  I  have  silver  with  me,  *'  then  if  he  has  with 
him  a  quantity  which,  if  the  thieves  knew,  they  would  have  taken  it 
away  from  him,  the  man  shall  commit  a  breach  of  his  oath  ;  otherwise 
not;  because  his  oath  relates  to  that  which  the  thieves  demanded  from 
him. 

2256.  (1355.)  A  band  of  robbers  commit  highway  robbery  on  a 
man  and  take  away  from  him  his  property,  and  put  him  on  his  oath 
regarding  divorce  that  he  shall  not  give  information  to  anybody  regard- 
ing them ;  then  passers-by  (Kafila)  approach  him,  and  he  says  to  them 
'^ There  are  wolves  on  the  highway,''  and  they  understand  him,  and 
retrace  their  steps :  the  learned  lawyers  have  said  that  if  the  man  intends 
to  imply  robbers  by  "wolves,"  his  wife  shall  become  divorced;  be- 
cause he  thus  gives  the  information  regarding  the  robbers ;  but  if  he 
intends  the  real  meaning  of  "  wolves, ''  in  order  that  they  might  return, 
then  he  shall  not  commit  a  breach  of  his  oath,  because  he  does  not  then 
give  information  relating  to  the  robbers. 

2256<  (1856.)  A  band  of  people  enter  at  night  into  a  man's  house 
and  take  away  all  his  property,  and  give  the  man  oath  not  to  disclose 
their  names,  they  being  (residents)  in  the  same  street,  and  he  sees  them 
(constantly) :  then  the  device  in  this  matter  is  what  is  reported  from 
Aboo  Huneefa,  on  whom  be  peace!  viz.,  that  the  man  should  write  down 
the  names  of  all  his  neighbours  (including  the  thieves  and  those  who  are  not 


ON   CONDITIONS  IN   DIVORCE.  165 

thieves)  and  he  should  ask  somebody  to  repeat  to  him  the  names^ 
asking  him,  "  Was  this  the  thief  9^^  and  the  man  should  say,  ^'No,  '^  until 
he  reaches  the  names  of  the  thieves,  when  he  should  keep  quiet,  or  saj, 
*'  I  do  not  knoTV  : ''  the  thieves  will  thus  be  found  out,  and  the  man  shall 
not  commit  a  breach  of  his  oath. 

3267.  (1357.)  A  man  says  to  his  wife  after  the  bretik  of  morn, 
'*  If  I  do  not  have  sexual  intercourse  with  thee  to-night,  then  thou  art 
divorced,"  and  does  not  intend  anything ;  (the  difficulty  here  arises, 
because  a  Mahoraedan  day  commences  with  the  sunset,  and  therefore 
'*  to-night "  has  already  passed  away) ;  then  if  the  man  knows  (at  the 
time  of  the  oath)  that  the  morn  has  broken,  then  his  oath  shall  refer  to 
the  future  night;  and  if  he  intends  by  his  oath  the  past  night  then, 
according  to  Aboo  Huneefa  and  Mahomed,  on  whom  be  peace,  the  oath 
shall  not  be  contracted  (because  the  oath  must  be  such  as  to  involve  a 
possibility  of  its  fulfilment). 

8S68.  (1358.)  A  man  says  to  his  wife,  '<  If  thou  shalt  rest  thy 
side  (an  expression  used  to  denote  sleep)  this  night,  so  that  I  may  strike 
thee  (i.6.,  before  I  strike  thee)  then  thou  art  divorced;''  themanwns 
not  able  that  night  to  strike  her,  and  the  woman  did  not  rest  on  her  side 
but  slept  sitting:  the  man  shall  not  commit  a  breach  of  his  oath. 

2259.  (1359.)  A  man  says  to  his  wife,  ^^  If  thou  shalt  comb  (the 
hair  of)  anybody,  then  thou  art  divorced ; "  then  comes  another  woman 
who  has  already  combed  her  hair,  and  the  wife  ties  the  hair  (without  using 
the  comb)  :  the  learned  lawyers  have  said  that  the  woman  shall  become 
divorced. 

Moulana  (Kazee  Khan^  the  author  of  these  Fatawa),on  whom  be 
peace,  says,  that  in  this  answer  there  is  a  doubt;  because  what  has  taken 
place  is  not  considered  "  combing. " 

9260.  (1360.)  A  man  says  to  his  wife,  **  If  so  and  so  has  entered 
this  house  to-day,  then  thou  art  divorced ;"  and  he  then  says,  <<  If  so  and 
so  has  not  entered  this  house  to-day,  then  my  slave  is  free : "  the  man's 
wife  shall  become  divorced,  and  his  slave  shall  become  free;  because  each 
oath  is  an  admission  by  the  swearer  regarding  (the  facts  which  constitute) 
a  breach  of  oath  in  the  other  oath  :  (that  is,  the  first  expression  means, 
'*  so  and  so  has  not  entered  the  house,  if  he  has,  then  thou  art  divorced ; '' 
there  is  therefore,  an  admission  that  so  and  so  has  not  entered  the  house, 
and  that  being  so,  his  slave  must  be  set  free,  according  to  the  second  oath. 


166,  THE    TAGORB    LAW   LECTURES,    1891-92. 

which  means,  '^  so  and  so  has  entered  the  house,  if  he  hns  not,  then  my 
slave  is  free ;  '^  this,,  therefore,  is  an  admission  that  so  and  so  has 
entered  the  house,  and  therefore,  according  to  the  first  oath,  his  wife  is 
divorced). 

2261.  ()861.)  A  woman  takes  up  (and  appropriates  to  herself)  a 
(piece  of)  cloth  out  of  her  husband's  cloths ;  her  husband  then  says  to 
her,  "If  thoj  shalt  not  return  the  cloth  to-day,  then  thou  art  divorced;" 
the  woman  then  goes  away  to  produce  the  cloth  to  return  it,  and 
the  husband  follows  her;  the  woman  is  just  in  the  act  of  taking  out 
the  cloth  from  the  bundle  in  order  to  return  it  to  her  husband,  when  the 
husband  himself  seizes  the  cloth  out  of  the  bundle  or  from  her,  before 
she  could  return  it  to  her  husband  :  the  man  shall  not  commit  a  breach  of 
his  oath,  by  analogy  (or  htihsan)  and  such  has  been  the  view  of  Aboo 
Leith,  on  whom  be  peace, 

2262.  (1362.)  A  man  claims  a  thousand  dirhems  from  another ; 
the  defendant  says,  '^  My  wife  is  divorced,  if  thou  hast  owing  from  me  a 
thousand  dirhems,  '^  and  the  plaintiff  snys,  "  If  there  is  not  for  me 
against  thee,  a  thousand  dirhems,  then  my  wife  is  divorced ; ''  the  plain- 
tiff establishes  proof  by  witnesses  in  support  of  his  right,  and  the  Eazee 
makes  a  decree  in  favor  of  that  right  (that  is,  in  favor  of  the  plaintiff): 
separation  shall  be  caused  between  the  defendant  and  his  wife  ;  and  this 
is  the  view  of  Aboo  Yusoof,  on  whom  be  peace,  and  it  constitutes  one 
of  two  traditions  from  Mahomed,  on  whom  be  peace,  and  the  Futwa  is 
given  accordingly.  Then  if  the  defendant  after  all  this  {i.e.,  after 
the  Ktizee  has  made  a  decree)  establishes  proof  by  witnesses,  to  the  effect 
that  he,  the  defendant,  did  pay  to  the  plaintiff  the  thousand  dirhems, 
the  defendant's  claim  shall  be  accepted,  and  the  separation  effected  by 
the  Kazee,  between  the  defendant  and  his  wife,  shall  become  void,  and  the 
plaintiff's  wife  shall  become  divorced,  if  the  pLuutiff  alleges  that  he  has 
nothing  owing  from  the  defendant  except  the  thousand  dirhems  claimed 
(t.e.,  if  the  claim  is  laid  with  such  precision  that  it  is  impossible  to 
escape  the  conclusion  that  either  the  claim  or  defendant's  proof  must  be 
false). 

And  if  the  plaintiff  establishes  proof  by  witnesses  of  the  admission 
of  the  defendant,  regarding  the  thousand  dirhems  (instead  of  bringing 
witnesses  in  "  support  of  his  right ; ")  the  learned  lawyers  have  said 
that  the  Kazee  shall  not  effect  a  separation  between  the  defendant  and 
his  wife  (although  the  Kazee  shall  decree  that  the  debt  is  proved). 


ON    CONDITIONS    IN    DIVOBCK.  167 

Moulana  (Eazee  Elian,  the  aathor  of  these  Fatawa),  on  whom  be  peace, 
sajs,  that  this  (last)  rule  is  difficult  to  comprehend  (and  of  doubtful 
aathority) ;  because  what  is  proved  by  witnesses  {byyuna),  iq  similar  to  what 
is  proved  by  seeing  (in  point  of  certainty) ;  and  if  two  witnesses  have  seen 
witnessed  the  admission  of  the  defendant  against  himself  as  regards  the 
thousand  dirhems  in  favor  of  the  plaintiff^  the  Eazee  shall  cause  separa* 
tion  between  the  defendant  and  his  wife« 

2263.  (1363.)  A  woman  knows  (that  is,  comes  to  know  with  cer« 
tainty)  that  her  husband  has  divorced  her  thrioe;  theihusband  denies  having 
divorced  her ;  and  the  woman  has  not  the  ability  to  prevent  the  husband 
from  (having  access  to)  her  person  :  it  is  permissible  to  the  woman  to  kill 
the  husband ;  because  she  is  helpless  in  preventing  mischief  to  her  person ; 
and,  therefore,  it  shall  be  allowable  to  her  to  kill  him  ;  but  it  is  proper 
that  she  should  kill  him  with  drugs,  and  not  v^ith  an  instrument  of 
death  ;  because  if  the  woman  should  kill  him  with  an  instrument  which 
inflicts  wound,  she  shall  be  put  to  death  by  way  of  kisas  (or  retaliation). 

2264.  (1364.)  A  man  says  to  his  wife,  '^If  thou  shalt  do  so  and  so, 
then  my  wives  shall  be  divorced ; ''  the  woman  does  the  act  (which  was 
forbidden) :  the  divorce  shall  be  caused  on  her  and  on  the  other  wives ; 
because  what  (divorce)  is  made  dependent  on  a  condition  is,  in  the  event 
of  the  condition  being  realised,  like  the  one  instantaneously  {MoorHt) 
pronounced ;  the  husband,  therefore,  must  be  taken  to  say,  after  the 
condition  has  been  realised,  "My  wives  are  divorced.*'  (The  question 
is,  whether  the  wife  addressed  is  to  be  taken  as  excluded  or  not  from  the 
expression  **  wives/') 

2266.  (1365.)  A  man  says  to  his  wife,  «*  *  ^  *  * 
•  *  *  *  *  *  *  then  thou  art  divorced ; "  and 
the  woman  snys,  ***  ^  *  *  *  *  **        then 

my  slave  girl  is  free."  Sheikh-ool  Imam  Aboo  Baker  Mahomed,  son  of 
Fnzal,  on  whom  be  peace,  says,  that  if  both  are  standing  at  the  time  of  the 
discussion,  then  the  woman  shall  have  satisfied  her  oath  (that  is,  shall  not 
commit  a  breach  of  her  oath)  and  the  husband  shall  commit  a  breach  of 
his  oath:  and  if  both  the  man  and  the  woman  are  sitting  (at  the 
time  of  the  discussion)  the  husband's  oath  shall  be  satisfied,  and  the 
woman  shall  commit  a  breach  of  her  oath  ;***** 

****^«-******  and  it  is 
just  the  reverse        ******. 


168  THE   TAGOBB   LAW  LECTITBES,    1891-92* 

And  if  the  man  is  standing  and  the  woman  is  sitting,  then  the  laifvyer 
Aboo  Jaffer,  on  whom  be  peace,  says,  that  I  do  not  know  (what  to  say  in) 
this,  but  that  it  is  fit  that  both  should  commit  a  breach  of  the  oath ; 
because  the  condition  of  the  fulfilment  of  each  of  the  oath  is  that  the  *  * 
*  *  *  *  should  be  better ;  and  when  they  are  not  uniform  in 
their  posture  *******  qq  q^^  jg  better, 
and,  therefore,  each  of  them  shall  commit  a  breach  of  oath. 

2266*  (1366.)  A  drunken  man  says  to  his  wife,  ''If  so  and  so  is 
not  *****        then  thou  art  divorced."    Aboo 

Baker  Iskaf ,  on  whom  be  peace,  says,  that  this  is  a  thing 

which  cannot  be  known,  and  is  beyond  (human)  power :  the  man,  therefore, 
shall  not  commit  a  breach  of  his  oath. 

2267.  (1367.)  Two  men  say  to  each  other,  ''If  my  head  is  not 
heavier  than  thine,  then  my  wife  is  divorced  :  '^  the  learned  lawyers  have 
said  that  the  way  to  discover  this  (that  is,  whose  head  is  heavier)  is 
that  when  they  both  go  to  sleep,  they  should  be  called  out,  and  whichever 
of  the  two  answers  earlier  (his  head  shall  be  considered  lighter,  and)  the 
other's  head  is  heavier. 

2268.  (1368.)  A  man  swears  that  so  and  so  is  heavy,  but  people 
think  that  man  to  be  light,  and  the  swearer  thinks  him  to  be  heavy  :  the 
man  shall  not  commit  a  breach  of  his  oath  unless  he  intends  what  the 
people  think,  because  (unless  he  so  intends)  his  oath  is  referable  to  what 
)ie  (himself)  thinks. 

2269.  (1369.)  A  man  threatens  another  in  the  name  of  the  Sultan 
(saying  for  instanit^e,  "  If  you  do  such  and  such  a  thing,  the  Sultan  will 
punish  you  ;^')  the  man  threatened,  says,  "If  I  am  afraid  of  the  Sultan, 
then  my  wife  is  divorced : "  the  learned  lawyers  have  said  that  if  the  man 
(who  thus  expressed  himself)  had  not,  at  the  time  he  swore,  fear  of  the 
Sultan,  and  if  he  has  no  cause  to  fear  the  Sultan,  for  any  transgression 
which  would  make  him  apprehensive  of  his  person,  it  is  hoped  that  his 
wife  shall  not  be  divorced. 

2270.  (1370.)  A  man  quarrels  with  his  brother  and  sister,  and  he 
says  to  them  in  Persian,  "  If  I  do  not  put  you  into  the  bottom  *  *  * 
then  my  wife  is  divorced:"  the  learned  lawyers  have  discussed  this 
matter;  some  of  them  have  said  that  the  man  shall  not  violate  his  oath 
as  long  as  they  are  alive  (because  as  long  as  they  live,  it  is  possible  that 
the  condition  might  be  realized) ;  whilst  others  have  said  that  the  man  shall 


OM  COND1TIOM8  IH   DIYOBCI.  169 

immeiliatelj  commit  a  breach  of  his  oath,  because  he  is  helpless  in  fulfil** 
ling  his  oath  apparently,  unless  he  intends  to  express  severity  and  oppressive 
measures,  and  then  he  shall  not  commit  a  breach  of  his  oath  as  long  as  they 
are  in  the  land  of  the  living  (and  as  long  as  he  does  not  use  severity 
and  oppression).  And  if  the  swearer  dies  (that  is,  he  is  at  the  point  of  death» 
and  no  chance  remains  of  his  exercising  acts  of  oppression  and  severity), 
or  if  one  of  the  other  two  dies  before  the  man  has  acted  so  {i.e.y  with 
severity  and  oppression),  the  man  shall  commit  a  breach  of  his  oath ;  and 
this  view  is  well-founded. 

2271.  (1371.)  A  woman  says  to  her  husband,  *'  Oh  thou  mean 
{Stfla;)''  or  says,  « Oh  thou  Kurtban  *'  or  "Kusbkhan,"  or  «  Oh  thou 
Snffal, "  or  uses  any  other  term  of  abuse ;  the  husband  then  says,  ^*  If  I 
am  like  what  thou  hast  said,  then  thou  art  divorced  thrice:*'  the  learned 
lawyers  have  differed  in  this  matter :  the  lawyers  Aboo  Jaffer  and  Aboo 
Baker  Iskaf,  on  whom  be  peace,  say,  that  the  woman  shall  be  divorced  as 
soon  as  the  husband  has  so  expressed  himself,  whether  the  husband  is  or 
IS  not  as  the  wife  has  described  bim  (by  her  abusive  epithets) ;  and  the 
Futwa  is  given  according  to  this  view ;  because  what  the  husband  has  said 
apparently  refers  to  retaliation  on  his  part,  by  way  of  resentment, 
against  the  manner  in  which  the  wife  has  addressed  her  husband  (so  that 
the  condition  is  no  condition  at  all  but  is  a  form  used  for  the  purpose  of 
causing  instantaneous  dirorce) ;  and  if  the  husband  says,  '<  I  (really)  in« 
tended  thereby  making  the  divorce  dependent  (or  conditional),''  then  Aboo 
Baker  Iskaf,  on  whom  be  peace,  says,  that  the  husband  shall  be  believed 
morally  as  between  him  and  his  God,  but  that  he  shall  not  be  believed  by 
the  Kazee ;  because  apparently  his  words  are  referable  to  resentment. 

And  Sbaikh-ool  Imam  Aboo  Baker  Mahomed,  son  of  Fazul,  on  whom 
be  peace,  says,  that  if  tke  husband  has  expressed  himself  as  aforesaid  in  a 
state  of  anger,  then  the  same  shall  be  referred  to  resentment,  and  then 
the  husband  shall  not  be  believed  by  the  Kazee,  when  he  says  his  intention 
vras  to  make  the  divorce  conditional ;  but  if  he  has  not  so  expressed  himself 
in  a  state  of  auger,  then  his  intention  shall  have  effect  given  to  it ;  and  if  he 
says,  ^*  I  intended  by  the  expression  to  make  the  divorce  conditional,  " 
then  if  the  husband  is  really  as  the  wife  has  described  him,  the  divorce 
shall  be  caused,  and  not  otherwise. 

2272.  (1872.)  And  the  learned  lawyers  have  differed  regarding  the 
meaning  of  these  expressions  (that  is,  those  used  by  the  wife  in  the  previous 
paragraph).   As  to  the  <'  Sifla,'^  it  is  reported  from  Aboo  Huueefa,  ou  whom 

22 


170  THE  tAQOEE  LAW  LECTURES,  1891-92. 

be  peaoe^  tlint  a  Moslem  cannot  be  a  Sifla,  but  that  only  an  infidel  can  be  a 
Sifla :  and  the  Masbaikhs,  on  whom  be  peace,  have  adopted  the  same  view : 
and  it  is  reported  from  Aboo  Tusoof,  on  whom  be  peace,  that  a  Sifla  is  one 
who  does  not  take  noticeof  (or  care  for)  any  yile  and  abusive  epithet  directed 
to  him:  and  it  is  reported  from  Mahomed,  on  wbom  be  peace,  that  a  Sifla  is 
one,  who  bets  on  pigeons  and  is  given  to  gambling:  and  Khalaf,  son  of 
Ayoob,  on  whom  be  peace,  says,  a  Sifla  is  one  who,  when  invited  to  a  feast, 
takes  away  with  him  some  portion  of  what  is  on  the  table  cloth  ;  and  some 
have  said  that  he  is  (toofailce  or)  one  who  goes  uninvited  to  a  feast  in  com- 
pany with  one  who  is  invited  i  and  others  have  said  that  a  Sifla  is  a  weaver, 
or  barber,  or  tanner  of  hide;  and  others  have  said  that  he  is  one  who 
frequents  the  Kazee's  Court  (to  give  false  evidence  or  make  proposals  of 
bribery). 

As  regards  the  "  Kurtban,"  Aboo  Baker,  Iskaf,  on  whom  be  peace, 
days,  that  he  is  one  who,  when  he  sees  a  stranger  with  his  wife  or  his 
family  or  his  near  female  relatives,  who  are  unlawful  to  him  {Maharim) 
leaves  the  stranger  there,  and  makes  no  objection:  and  Abool  Eassim  Saffar, 
on  whom  be  peace,  says,  that  the  Kurtban  is  one  who  is  (a  go-between 
or)  an  instrument  for  the  purpose  of  bringing  together  a  strange  man 
and  a  strange  woman  for  a  blamable  object :  and  some  have  said  that 
he  is  one  who  sends  his  wife  with  his  male  adult  slave  or  with  bis 
laborer,  towards  the  land  the  subject  of  cultivation  {Zyui\  or  has  given 
them  permission  to  enter  into  his  wife's  presence  daring  his  absence. 

As  regards  the  "  SufEal,"  he  and  the  Eurtban  are  alike.^ 
But  as  regards  the  "Kushkhan  "  (the  following  anecdote  shews  who 
he  is),  it  is  reported  that  a  woman  came  to  Aboo  Ismat  of  Merv  and  said, 
'*  My  husband'  is  in  the  habit  of  ordering  me  every  day  to  cook,  and  I 
said  to  him  one  day,  ^Oh  Eushkhan !  how  long  am  I  to  go  on  cooking;^ 
he  then  said  to  me  ^  If  I  am  a  Eushkhan,  then  thou  art  divorced  V 
then  Aboo  Ismut,  on  whom  be  peace,  said, — "If  thy  husband  is  such  that 
whe^  he  hears  that  somebody  has  stretched  out  his  arms  towards  thee 
with  evil  design  and  does  not  resent  it,  then  he  is  a  Kushkhan  ;  but  if 
he  does  not  permit  this  (liberty)  and  thrashes  thee  for  itj  then  he  is  not 
a  Eushkhan.'' 

But  as  regards  the  "Majin,"  Shumsh-ool  Ayma  Hulwai,  on  whom  be 
peace,  has  said  that  he  is  one  who  does  not  cai*e  for  what  he  hears  (said 
of  him  by  way  of  abuse  or  correction,  &c.)9  and  he  is  called  in  Persian 
Teh  Sheb.  


ON    CONDITIONS    IN   DIVOECB.  171 

2273.  ("1373.)  A  woman  says  to  her  husband,  ^^Vedly  thou  art 
a  Kurtban ; "  and  the  husband  then  says,  ''If  thou  knowest  that  I  am 
a  Kurtban,  then  thou  art  divorced  thrice :  ^'  the  woman  shall  not  be 
divorced  until  she  says,  "  I  do  know ;  *'  because  the  husband  has  made 
the  divorce  dependent  on  her  knowledge,  and  her  knowledge  cannot 
be  known  to  anybody  else,  and  the  divorce,  therefore,  shall  depend  on 
information  by  her. 

2274.  (1374.)  And  if  the  wife  says  to  her  husband,  '^  Oh  tiiou 
Konsuj  I  "  and  the  husband  says, ''  If  I  am  a  Kousuj,  then  thou  art  divorced 
thrice,^'  intending  thereby  to  make  the  divorce  conditional  (instead  of 
caasingitinstantaneously;  see  paragraph  1371):  it  is  reported  from  Aboo 
Huneef  a,  on  whom  be  peace,  that  he  said  that  the  husband's  teeth  shall  be 
counted,  and  if  his  teeth  are  eight  and  twenty,  the  woman  shall  become 
divorced,  because  he  is  a  Kousuj  ;  but  if  his  teeth  are  thirty  in  number 
or  more,  then  he  is  not  a  Kousuj  ;  (therefore,  according  to  this  view,  a 
Kousuj  is  one  having  less  than  thirty  teeth). 

And  in  our  idiom,  a  Kousuj  is  one  the  hair  of  whose  beard  ai-e  on  his 
chin  and  not  on  his  two  cheeks ;  or  the  hair  are  his  chin  and  also 
on  his  two  cheeks^  but  they  are  scattered  in  different  portions  and  have 
not  grown  together ;  but  if  the  hair  of  the  two  cheeks  are  joined  to  the 
hair  of  the  chin,  then  the  man  is  one  having  a  sparse  beard,  but  he  is  not 
a  Kousuj. 

2275.  (1375.)  A  woman  says  to  her  child  in  Persian,  *'  Oh  thou 
born  of  adultery  (balaya  zada  ;)  "  and  her  husband  says,  '^  If  he  is  born  of 
adultery,  then  thuu  iu*t  divorced  thrice ;  "  if  the  husband  intends  resent- 
ment (and  instantaneous  divorce),  then  the  woman  shall  become  divorced 
(immediately) ;  but  if  he  intends  to  make  the  divorce  conditional,  then,  if 
the  woman  knows  that  the  child  was  born  of  adultery,  she  shall  be 
divorced  thrice  in  consequence  of  the  condition  of  the  divorce  being 
fulfilled ;  and  it  is  not  proper  for  the  woman  to  live  with  him ;  but  if  she 
knows  that  the  child  was  not  born  of  adultery,  then  she  shall  not  be 
divorced.    (See  paragraph  1380). 

2276.  (1376.)  A  man  says  to  his  wife,  "  If  thou  shait  abuse  my 
mother  or  name  her  with  disrespect,  then  thou  art  divorced;^'  he  then 
says  to  his  wife,  "  Thy  mother — greeting  to  thee'*  (that  is,  bravo,  or  wah 
waAf  take  my  salaam,  thy  mother  was  of  such  a  character)  the  wife  says, 
^'  No,  on  the  contrary,  thy  mother ; ''  (that  is  salaam  to  thee  on  account 
of    thy  mother's  character) :  the  learned  lawyers  have  ^uid  that  if  this^ 


172  THE   TAQOEB   LAW    LECTURES,    1891-92. 

takes  place  in  a  town  where  this  expression  is  considered  equivalent  to  an 
expression  of  disrespect,  as  for  example  Balkh  and  otiier  places,  then 
his  wife  shall  become  divorced ;  because  according  to  the  idiom  of  the 
people  of  that  place,  this  expression  means  or  implies  a  quarrelsome 
woman  (or  one  who  always  contradicts  another).  But  according  to  onr 
idiom,  the  expression  means  to  send  greeting,  and  this  shall  not,  therefore, 
amount  to  naming  anybody  with  disrespect,  and  the  wife  shall  not  there-- 
fore  be  divorced. 

2277.  (1377.)  A  man  says^  *^  If  I  abuse  any  one,  then  my  wife  is 
divorced;''  he  then  abuses  a  human  corpse :  bis  wife  shall  become  divorced. 

2278.  (1378.)  When  a  man  says  to  liis  wife,  "*  When  thoa  shult 
abuse  me  then  thoa  art  divorced,  and  if  thou  shalt  curse  me,  then  thou 
art  divorced  ; ''  the  woman  then  curses  him  :  one  divorce  shall  be  caased 
on  her. 

^nd  if  the  husband  says  to  her,  **  If  thou  shalt  abuse  me  (without 
saying  if  thou  shalt  curse  me)  then  thou  art  divorced  ;  ^'  and  the  woman 
curses  him,  his  wife  shall  become  divorced  ("because  abuse  includes  carse). 

2279.  (1379.)  A  man  says  to  his  mother  in  Persian,  *^  If  thoa  shalt 
leave  (or  part  company  with)  me  to-day,  then  my  wife  shall  be  divorced;** 
then  the  man  is  (preparing  for)  going,  oat  of  his  bouse;  his  mother  then 
says,  '*  Now  you  may  remain,  now  yoar  wife  may  remain  with  you, "  (that 
is,  the  mother  says  to  the  son  and  his  wife,  why  are  you  going  away,  I  am 
myself  going  away) ;  the  swearer  hears  of  this :  his  wife  shall  become 
divorced. 

2280.  (1380.)  A  man  says  to  his  wife,  <'  If  I  shall  pat  yoa  out  of 
temper,  then  you  are  divorced ;  '^  he  then  strikes  a  child  of  her  and 
she  loses  her  temper :  the  learned  lawyers  have  said  that  if  he  has  strack 
the  child  on  account  of  something  so  that  it  is  proper  to  correct  him 
for  the  sake  of  discipline,  then  his  wife  shall  not  be  divorced ;  because 
this  is  not  an  occasion  for  the  woman  to  take  oiSence  and  lose  her  temper ; 
and  her  display  of  temper  shall  therefore  not  at  all  be  heeded  ;  but  if 
the  man  has  struck  the  child  on  an  occasion  which  does  not  reqaire  the 
correction  of  the  child  for  the  sake  of  the  discipline  of  the  child,  then 
his  wife  shall  become  divorced. 

2281.  (1381.)  When  the  husband  says  to  his  wife,  "  If  I  shall 
please  thee,  then  thoa  art  divorced;  '*  he  then  strikes  her,  and  the  woman 
says  (ironically)  **  thou  hast  pleased  me : ''  the  learned  lawyers  have  said 


ON   CONDITIONS   IN    DIVORCE.  173 

timt   his   wife  shall  not  become  divorced  ;  because  we  are  quite  certain  of 
iier  falsehood. 

Moulana  (Kazee  Eban,  the  author  of  these  Fata wa),  on  whom  be  peace, 
sajSy  that  there  is  doubt  as  regards  the  correctness  of  this  answer,  and 
the  doubt  arises  from  the  fact  that  pleasure  is  a  thing  which  nobody 
can  know  (except  the  person  concerned),  and  it  is,  therefore,  fit  that  the 
divorce  should  be  dependent  on  information  given  by  her,  and  that  her 
word  should  be  accepted  in  that  matter,  although  we  might  be  certain  of 
her  falsehood,  just  as  if  a  man  says  to  his  wife,  '^  If  thou  art  pleased  that 
God  the  Almighty  should  make  thee  suffer  the  tortures  of  hell,  then  thou 
art  divorced,'*  and  the  woman  says,  "  I  am  pleased,'*  the  divorce  shall  be 
caused  on  her  (ns  admitted  by  all  lawyers,  although  we  might  be  certain 
that  the  woman  has  uttered  a  falsehood).  And  if  the  husband  gives  her 
a  thousand  dirhems,  and  the  woman  says,  "  The  thousand  dirhems  have 
not  pleased  me, "  the  word  to  be  accepted  shall  be  her  word,  and  tlie 
divorce  shall  not  be  caused  on  account  of  the  possibility  that  she  having 
asked  for  two  thousand,  she  was  not  pleased  with  a  thousand  (and  if  she 
asked  for  five  hundred  and  got  a  thousand,  and  says  I  am  not  pleased, 
her  word  is  still  to  be  accepted). 

2282.  (1382.)  And  if  the  husband  says  to  his  wife,  *^  If  I  shall  cause 
thee  pain  then  thou  art  divorced  ;  "  the  husband  then  purchases  a  female 
slave  and  makes  Soorryya  of  her  *  *  *  • 
Soorryya  being  derived  from  Sirr  which  means  concealment)  ;  then  if  his 
expression  is  founded  on  (or  is  preceded  by)  something  by  way  of 
introduction,  so  that  the  meaning  of  pain  could  be  referred  to  that  thing 
instead  of  being  referred  to  what  he  has  done  (that  is  to  say,  if  the  circum* 
stances  are  such  that  the  pain  mentioned  in  the  husband's  expression  can 
reasonably  be  referred  to  something  besides  the  purchase  of  the  slave 
subsequently  made  by  him),  his  wife  shall  not  be  divorced ;  because  the 
oath  relates  to  that  particular  introductory  matter :  but  if.  such  is  not 
the  case,  the  woman  shall  become  divorced ;  because  this  act  of  the 
husband's  (wz.,  the  purchase  of  a  female  slave  by  him  for  the  particular 
purpose)  in  effect  is  deemed  (or  included  in)  "  pain." 

2283.  (1383.)  A  man  intends  to  purchase  a  female  slave,  and  he 
says  to  his  wife,  ^*  If  I  shall  purchase  a  female  slave  and  then  jealousy 
shall  overtake  thee  by  reason  of  my  purchase,  then  thou  art  divorced 
thrice;"  he  then  purchases  a  female  slave,  and  jealousy  does  come  upon 
her :   the   learned   lawyers  have  said  that  if  the  jealousy  immediately  foU 


174  THE  TAGORK  LAW  LECTURES,  1891-92. 

lowB  the  purchase,  the  divorce  shall  be  caused  (because  the  word  "  then  '* 
in  the  expression,  **  and  then  jealously,  &c.,  '*  requires  jealousy  to  follow 
immediately) ;  but  if  jealousy  comes  upon  her  sometime  after  the  purchase, 
then  the  woman  shall  not  be  divorced  ;  because  the  husband  has  made  the 
divorce  conditional  on  the  jealousy  following  immediately  after  the  purchase 
without  any  interval  of  time ;  and  this  matter  (that  is,  whether  the  wo- 
man feels  jealous  or  not)  is  known  only  by  the  woman's  words  when  she 
is  fretting  about  and  using  abusive  epithets  (i.e.,  goes  about  swearing 
and  cursing).  But  if  the  woman  feels  jealous  (in  her  mind)  but  does  not 
shew  the  same  in  her  words,  she  shall  not  be  divorced  ;  because  what  is  in 
her  mind  cannot  possibly  be  avoided,  and  no  regard  shall,  therefore,  be  paid 
to  it,  just  as  if  somebody  swears  that  he  will  bear  no  enmity  to  so  and 
80,  but  he  does  in  his  heart  feel  enmity  towards  him,  but  keeps  his  tongue 
and  also  his  acts  (Juwarih — hands  and  feet)  under  control,  he  shall  not 
commit  a  breach  of  his  oath. 

2284.  (1384.)  A  man  says  to  his  wife,  "  Thou  dost  not  love  me ;  *' 
the  woman  says,  '*  If  I  do  not  love  thee,  then  thou  art  divorced  thrice  ;  " 
the  husband  says  to  her  in  Persian,  "  Thou  thyself  art  (so  divorced  if 
thou  dost  not  love  me) ;  '*  the  woman  says,  "  I  do  not  love  thee:  *'  if 
she  says-,  ^^  I  do  not  love  thee  "  before  separating  from  the  meeting,  she 
shall  become  thrice  divorced ;  but  if  she  parts  (or  separates)  from  the 
man,  before  saying  anything,  she  shall  not  become  divorced,  because  his 
expression,  *^  Thou  thyself  art ''  relates  to  the  woman's  expression  making 
the  husband  conditionally  divorced,  and,  therefore,  the  husband  in  effect 
says,  "  (Not  I)  but  on  the  other  hand  thou  art  divorced  thrice,  if  thou 
dost  not  love  me.  " 

2285.  (1385.)     A  man  asks  his  wife  to  come  to  his  bed        *  * 
*                *                *                *        *         .  the  woman  says,  "  What 

shalt  thou  do  with  me,  and  such  and  such  a  woman  is  sufficient  for  thee ," 
referring  to  a  strange  woman ;  the  husband  then  says,  "If  I  love  such  and 
such  a  woman  then  thou  art  divorced :  "  the  learned  lawyers  have  discussed 
this  matter,  and  the  correct  rule  is,  that  the  woman  shall  not  be  divorced 
until  the  husband  says,  "  I  love  her." 

2286.  (1386.)  A  man  says  to  his  wife,  "  If  thou  art  not  with  me 
(i.e.,  in  my  estimation)  lighter  (or  more  contemptible)  than  dust,  then 
thou  art  divorced ;  "  if  the  husband  regards  her  very  low  so  that  people 
say  that  she  is  less  than  dust  to  him,  the  woman  is  not  divorced. 


ON   CONDITIONS    IN   DIVORCE.  175 

2287.  (1387).  A  man  says  to  his  wife,  <^  If  I  accase  thee  of  adultery, 
then  thoa  art  divorced  ;  "  he  then  calls  her,  ^'  Oh  daughter  of  an  aduU 
tress  : "  the  woman  shall  become  divorced  ;  because,  according  to  ordinary 
parlance,  this  is  considered  as  accusing  the  woman  of  adultery,  although, 
in  reality,  it  is  accusing  the  mother  of  adultery, 

2288.  (1388).  A  man  says  to  his  wife,  ^'  If  I  abuse  thee,  then  thou 
art  divorced ;  '*  he  then  says  to  her  "  May  God  not  prosper  thee :  "  she 
shall  not  be  divorced ;  because,  if  he  had  made  manumission  dependent  on 
abusing  the  slave,  and  then  says  to  the  slave,  **  May  God  not  prosper  thee,'' 
his  slave  shall  not  become  free ;  so  also  in  the  matter  of  divorce. 

2289*  (1389.)  A  man  prepares  a  feast  for  a  party,  and  a  man  from 
another  village  (not  belonging  to  the  party)  arrives ;  the  host  says, 
**  If  I  do  not  slaughter  one  of  my  cows  out  of  respect  to  the  comer  (he  who 
has  come  uninvited),  this  my  wife  is  divorced  ;  "  he  then  slaughters  one 
of  his  cows  before  the  man  goes  back :  his  oath  shall  be  satisfied  (and 
divorce  shall  not  be  caused) ;  but  if  he  does  not  slaughter  before  he  goes 
back,  then  he  shall  commit  a  breach  of  his  oath :  and  if  he  slaughters  a 
cow  belonging  to  his  wife,  he  shall  commit  a  breach  of  his  oath ;  because 
the  condition  for  the  fulfilment  of  the  oath  was  to  slaughter  a  cow  out  of 
his  cows,  unless  there  is,  between  him  and  his  wife,  such  unity  (or  amity) 
that  each  does  not  distinguish  his  or  her  property  from  that  of  the  other, 
and  that  if  one  of  them  appropriates  the  property  of  the  other,  then  no 
disagreement  takes  place  between  them. 

And  if  he  slaughters  one  of  his  cows  but  does  not  feast  him  with 
the  meat  of  the  cow,  so  that  the  comer  goes  away,  then  the  learned 
lawyers  have  said  that  if  the  village  to  which  he  goes  is  very  near, 
the  man  does  not  commit  a  breach  of  his  oath  ;  but  if  the  village  is  so  distant 
that  it  can  come  under  the  denomination  of  journey,  it  is  feared  that 
the  man  shall  commit  a  breach  of  his  oath ;  because  in  a  case  where  a  man 
comes  from  a  journey,  people  prepare  a  feast  for  him  by  making  a 
slaughter;  and  the  man's  oath  shall,  in  that  case,  relate  to  the  feast.    . 

2290.  (1390.)  A  woman  says  to  her  husband,  "Verily  dost  thcu 
absent  thyself  (on  journey,  &c.),  and  not  leave  maintenance  for  me ; " 
the  husband  becomes  angry ;  the  woman  says,  ^^  What  I  said  was  not  a 
bard  expression  so  as  to  necessitate  anger  that  thou  shouldest  be  angry  ; " 
the  husband  says,  ''If  this  is  not  a  hard  expression  then  thou  art  divorced 
thrice^"  intending  thereby  to  make   divorce  conditional,  and  not  mere 


176  THE  TAGOBK  LAW  LECTURES,  1891-92. 

resentment  (that  is  to  say,  not  intending  to  cause  immediate  divorce) :  the 
learned  lawyers  have  said  that  if  the  man  is  a  respectable  person,  having 
a  position,  so  that  imputation  like  this  is  an  insult  to  him,  the 
woman  shall  not  become  divorced ;  because  her  complaint  that  the  man 
goes  away  without  providing  for  maintenance  for  his  family,  is  something 
hard  (and  serious) ;  but  if  the  man  is  not  a  respectable  person  having  a 
position,  then  the  woman' shall  become  divorced. 

2291.     (1891.)    A  man  says,  '<  If  my  son  attains  the  age  of  circum- 
cision, and  I  do  not  cause  his  circumcision,  then  my  wife  is  divorced :  " 
the  lawyer  Aboo  Leith,  on  whom  be  peace,  says  that,  if  he  delays   the  cir- 
cumcision beyond  ten  years,  it  is  fit  that  the  man  should  commit  a  breach 
of  his   oath;   because  ten  years   is  the  extreme  age    of  circumcision;  - 
because  if  the  child  reaches  ten  years  of  age,  he  shall  be  chastised 
for    omission     to    observe    prayers,     and,   therefore,    his    circumcision 
shall  be  directed,  so   that  the  extreme  degree  in  purification  might  be 
attained :  and  the   Mashaikhs  other  than  Aboo  Leith  have  laid  down, 
that  the  man  shall  not  commit  a  breach  of  his  oath  until  he  delays  the 
circumcision  beyond    twelve    years   of  age;    and   the   Fatwa  is   given 
according  to  this  view,  because  this  is  the  lowest  period  when  a   boy  cun 
be  said  to  attain  his  majority  (booZoo^A);  because   when    the   boy   attains 
this  age  (of  12  years)  and  says,  "  I  have  had     *        *  ,"  his  word  shall  be 
accepted,  and  he  shall  be  decreed  to  have  attained  majority ;   and  before 
this  age,  if  tlie  boy  says,  "  I  have  had        ^        *  ,"  his  word  shall  not  be 
accepted,  and  he  shall  not  be  held  to  have  attained  his  majority. 

2292.     (1392.)     A  man  says  to  his  male  slave,  "  If  thou        *        * 
then  thou  art  free ; "  the  boy  then  says,  "  I  have        ^        *         *  "  and  his 
is  a  doubtful  case  (it  being  doubtful  whether  he  is  twelve  years  of  age  or 
not,  so  that  it  cannot   be   said   whether  his   statement   as   regards   his 
puberty  is  true  or  not)  :  his  word  shall  be  accepted,  because     *        *    by 
him  is  a  thing  which  cannot  be  known  to  another  person  besides  him- 
self, and,  therefore,  his  word  shall  be  accepted  in  this  matter ;  just  as  if 
a  man  says  to  his  female  slave,  she  being  in  a  doubtful  state  (as  regard 
the  question    of  her  age,   and   whether  she  has  attained   puberty    or 
not),  "  When  thou  shall   get  menses,  then   thou  art  free,"   or  says  to 
his  wife,  *'  When  thou  shalt  get  menses,  then  thou  art  divorced,"  and 
she  says,  "  I  have  got  menses  "  her  word  shall  be   accepted:  and   it  is 
reported  from  Mahomed,  on  whom  be  peace,  that  the  word  of  the  boy 
shall  not  be   accepted,   and   that   the   word  of  the   slave   girl  shall   be 


ON    CONDITIONS   IN    BIVORCB.  177 

accepted ;  because  ^  is  a  thing  which  another  can  know  to  a 
certain  extent,  and  for  this  reason  deposition  of  witnesses  in  the  matter 
of  *  is  permissible,  contrary  to  the  case  of  menses  (which  nobody 
else  can  know). 

2293.  (1393.)  A  man  says  to  his  wife,  who  is  in  her  menses, 
"  When  thou  shalt  have  menses,  then  thou  art  divorced/*  this  relates  to 
future  menses ;  but  if  he  says,  ^'  When  thou  shalt  have  menses  to-morrow, 
then  thou  art  divorced,"  he  knowing  that  she  is  in  her  menses,  then  this 
oath  relates  to  the  continuance  of  the  same  menses  till  the  morrow  ;  so 
that  if  the  menses  continue  until  the  dawn  of  the  morrow,  she  shall 
become  divorced,  because  future  menses  cannot  supervene  on  the  morrow 
(she  being  at  present  in  her  menses)  and,  therefore,  the  oath  shall  relate 
to  the  continuance  of  the  (present)  menses  if  the  husband  knows  of  the 
present  menses. 

And  so  also  if  the  husband  says  to  his  sick  wife,  ^^  If  thou  shalt  get 
sick  then  thou  art  divorced,*'  this  oath  relates  to  a  future  sickness  (after 
recovery  from  the  one  she  is  suffering  from  at  present) ;  but  if  he  says,  ^^  If 
thou  shnlt  be  sick  to-morrow,"  then  this  oath  relates  to  the  continuance 
of  the  same  (present)  sickness  apparently. 

And  if  the  man  says  to  his  wife  who  is  in  health,  ^'  When  thou  shalt 
be  in  health,  then  thou  art  divorced,**  then  the  divorce  shall  be  caused  as 
soon  as  he  pauses  after  his  oath  ;  because  health  is  a  thing  which  is  pro- 
longed (in  point  of  time,  as  contradistinguished  from  a  thing  which  is 
ilany  or  evanescent);  and  in  regard  to  a  thing  like  it,  every  moment 
can  be  said  to  be  its  commencement,  and,  therefore,  the  man  shall  commit 
a  breach  of  his  cath  at  once  ;  just  as  if  a  man  says  to  one  who  is  standing, 
"  When  thou  shalt  stand  **  and  to  one  who  is  sitting,  "  When  thou  shalt 
sit**  and  to  one  who  has  eye-sight,  "  When  thou  shalt  see**  and  to  his 
slave  girl,  "  When  I  shall  be  thy  owner,**  "  Then  thou  art  free ;  **  verily 
he  shall  commit  a  breach  of  his  oath,  as  soon  as  he  pauses  after  his  oath  ; 
because  a  thing  which  is  always  continuing  is  deemed  to  commence  with 
every  moment  of  time. 

And  although  menses  and  sickness  also  belong  to  things  which  are 
prolonged,  but  when  law  {Shera)  makes  rules  {Ahiam)  dependent  on  the 
entirety  of  the  same,  then  the  rules  [Ahham)  shall  not  relate  to  every  one 
of  the  various  parts,  and,  therefore,  the  whole  of  them  shall  be  considered 
as  one  (indivisible)  thing. 
23 


173  THE  TAGORE  LAW  LECTURES,  1891-92. 

2294.  (1394.)  A  man  says  to  bis  wife  (in  Persian),  '<  If  I  shall  clothe 
thee  with  what  is  produced  by  me  then  thou  art  divorced  ;  '*  the  woman 
tben  gives  thread  belonging  to  her  to  her  husband  in  order  that  he 
might  weave  it  (into  cloth)  for  her,  for  known  wages,  and  pays  him  the 
wages,  and  the  husband  weaves  the  same,  and  the  woman  clothes  herself 
with  it:  the  husband  shall  not  commit  a  breach  of  his  oath  ;  because  the 
cloth  is  the  earning  of  the  wife  and  not  that  of  the  husband,  and  because 
the  condition  is  **  To  clothe  "  and  he  does  not  clothe  her,  and  she  does  not 
clothe  herself  by  his  order,  and,  therefore,  he  shall  not  commit  a  breach 
of  his  oath ;  and  if  the  cotton  belongs  to  the  husband,  then  also  the 
husband  shall  not  commit  a  breach  of  his  oath,  on  account  of  the  second 
explanation  given  (that  he  does  not  clothe  her,  &c.). 

2296.  (1395.)  When  a  man  says  to  his  wife,  "  Thou  art  divorced,  in 
thy  fast ;  "  and  the  woman  makes  (or  forms)  intention  (in  the  night)  to 
keep  the  fast  (in  the  morning),  she  shall  become  divorced  when  the  morning 
shall  dawn  ;  and  if  he  says,  "Thou  art  divorced  in  thy  prayer,*'  she  shall 
not  become  divorced  until  she  goes  into  her  Rookoo  and  Sijda ;  because  the 
man  has  made  fast  and  prayer  conditions  of  divorce,  and  therefore  his  oath 
is  the  same  as  if  he  had  mentioned  the  conditional  preposition  ^^  If ''  (t.6.» 
thou  art  divorced,  if  thou  fast  or  pray).  And  if  he  says,  **Thou  art 
divorced  for  thy  entry  in  the  house"  or  says  "for  thy  menses*'  (mean- 
ing because  entry  or  menses  have  been  found,)  she  shall  become  divorced 
at  once;  and  if  he  says,  "Thou  art  divorced,  with  thy  entry  (in  the 
house)  **  or  "  with  thy  menses  '*  {i.e.,  "  If  thou  enter  or  if  thou  get  menses  *') 
she  shall  not  become  divorced  until  she  enters  the  house  or  gets  her 
menses.  So  also  if  he  says,  "In  thy  entry  in  the  house"  or  "In  thy 
menses,"  she  shall  not  become  divorced  until  she  enters  the  house  or 
gets  menses. 

2296.  (1396.)  A  woman  goes  to  the  house  of  her  father  in  a 
different  village;  her  husband  follows  her,  and  asks  her  to  return  to 
his  house,  and  the  woman  refuses  to  do  so  ;  the  husband  then  takes  oath 
by  her  divorce  if  she  does  not  go  to  his  house  this  very  night;  the 
woman  then  goes  with  her  husband,  who  takes  her  to  his  house  before 
the  morning  dawns :  the  learned  lawyers  have  said,  that  if  the  man 
has  been  for  the  greater  part  of  the  night  in  the  village  of  the  wife's 
father,  it  is  feared  that  he  shall  commit  a  breach  of  his  oath ;  but  if 
he  goes  away  before  the  expiry  of  the  greater  portion  of  the  night,  it 
is  hoped  that  he  shall  not  commit  a  breach  of  his  oath  :  and  the  correct 


ON    CONDITIONS   IN   DIVORCB.  179 

rule  is,  that  the  man  shall  not  commit  a  breach  of  his  oath,  when  his 
wife  goes  away  with  her  husband,  before  the  expiry  of  the  night  (that 
is,  if  the  woman  reaches  the  hasband^s  house  before  morning). 

2297-  (1397.)  A  woman  is  living  with  her  husband  in  her  father*s 
house;  her  husband  says  to  her,  *' Come  thou  with  me;"  she  refuses; 
the  husband  then  says,  **  If  thou  shalt  not  go  with  me,  then  thou  art 
divorced  thrice;"  and  the  husband  goes  out  of  the  house,  and  the  woman 
also  goes  out  (i.e.,  after  him)  in  his  footsteps,  and  she  reaches  the 
husband's  bouse  before  the  husband :  the  learned  lawyers  have  said  that 
if  the  woman  goes  out  so  that  her  going  out  cannot  be  called  going  along 
with  him,  then  the  husband  shall  commit  a  breach  of  his  oath. 

2298.  (1398.)  A  man  says  to  his  wife, '' If  thou  dost  not  get  up 
at  once  and  come  to  my  mother's  house,  then  thou  art  divorced  ; "  the 
woman  then  gets  up  immediately  before  the  husband  could  go  out,  and 
she  dresses  herself  and  goes  out,  she  then  returns  and  sits  down  until  her 
husband  goes  out,  and  then  she  also  goes  out ;  and  she  comes  to  the  house 
of  her  husband's  mother  after  her  husband  arrives  there  :  the  husband 
shall  not  commit  a  breach  of  his  oath ;  because  when  the  woman  got  up  and 
prepared  herself  to  go  out,  the  promptitude  (involved  in  the  husband's 
expression)  was  not  neglected,  because  suppose  she  has  to  urinate  and 
does  so,  and  then  dresses  for  the  purpose  of  going  out,  the  husband  shall 
not  commit  a  breach  of  his  oath. 

Bost  thou  not  see  if  the  husband  says  to  the  wife,  *^  If  thou  dost  not 
come  to   my  bed        *  *  *  *        at  the  present 

moment  (at  once),  then  thou  art  divorced;  "  and  the  husband  and  wife 
wrangle  about  the  matter,  so  that  the  discussion  is  lengthened  between  them, 
the  {fowr  or)  promptitude  (involved  in  the  expression  at  the  present  moment 
or  at  once)  is  not  destroyed  (in  consequence  of  the  dispute  and  discus- 
sion), so  that  if  she  goes  to  his  bed  (after  the  discussion) ,  the  man  shall 
not  commit  a  breach  of  his  oath  ;  and  if  the  wife  (thus  invited  by  the 
Losband  to  his  bed)  fears  that  (by  complying  with  his  wishes)  she  might  lose 
(the  time  of)  her  prayers,  and,  therefore,  says  her  prayers  (and  then  goes 
to  ber  husband's  Firaah),  Nuseer,  son  of  Tehea,  on  whom  be  peace,  says, 
the  husband  shall  commit  a  breach  of  his  oath  ;  because  to  say  prayers  is 
quite  a  different  act  (from  making  preparation  to  comply  with  the 
husband's  directions) ;  contrary  to  when  both  of  them  are  discussing  the 
matter  (that  is,  the  propriety  of  complying   or  not  with  the  husband's 


180  THE  TAGORE  LAW  LECTURES,  1891-92, 

wishes)  ;   whilst  other  learned  lawyers  have  said  that  the  man  shall  not 
commit  a  breach  of  his  oath  (in  the  case  of  prayers). 

2299.  (1399.)     A  man  intends  *  *  *  * 

*  *  but  tlie  wife  does  not  obey  him,  the  husband  then  says  to 
her,  **  If  thou  dost  not  enter  with  me  in  this  room,  then  thou  art 
divorced; "  the  woman  does  not  enter  at  once  (or  with  promptitude)  but 
enters  afterwards:  the  learned  lawyers  ha ee  said  that  if  she  enters  the 
room  after  *  *  *  *  *  *  she  ghall  become 
divorced. 

2300.  (1400,)    A   man   calls  his  female  sla^e  to  his  bed        ^        * 

*  *  *  ^  *  .  she  refuses ;  the  man  says, 
**  If  thou  shalt  not  come  (to  my  bed)  this  night,  then  thou  art  free;*'  the 
woman  comes  at  once,  but  the  man        *  *  ^  ^f  * 

*  :  the  female  shall  not  become  free.  So  also  if  the  man  expresses 
himself  thus  to  his  wife. 

So  also  if  a  man  says  to  his  male  slave,  ^^  If  thou  dost  not  come 
near  me  this  night,  so  that  I  may  beat  thee,  (then  thou  art  free ; ")  and 
the  slave  does  come  to  him  (that  night),  but  he  does  not  beat  the  slave ; 
the  man  shall  commit  a  breach  of  his  oath  according  to  the  view  of  Aboo 
Yusoof,  on  whom  be  peace,  but  Mahomed,  on  whom  be  peace,  says,  that 
the  man  shall  not  commit  a  breach  of  his  oath ;  and  the  Fatwa  is  given 
according  to  this  view. 

And  if  a  man  says  to  his  wife,  "  If  thou  dost  not  come  to  me      *     * 

*  *  *  *  *  then  thou  art  divorced ; "  the 
woman  goes  to  him,  *  *  *  *  *  : 
the  husband  shall  not  commit  a  breach  of  his  oath. 

2301.  (1401.)  A  man  says  to  a  number  of  people  {Jamaut)  in 
Persian,  '^  If  all  of  you  shall  not  go  to  my  house  as  guests,  then  my  wife 
is  divorced ; "  they  go  to  his  house,  but  do  not  eat  anything :  the  man  shall 
not  commit  a  breach  of  his  oath. 

2302.  (1402.)  A  man  says  to  his  wife  at  the  time  she  is  going  out 
of  his  house,  "  If  thou  shalt  return  to  my  house,  then  thou  art  divorced 
thrice ; "  the  woman  then  (before  going  out)  sits  down,  and  does  not  go 
out  for  a  while,  and  then  goes  out  and  comes  back;  the  husband  then 
says,  "I  had  intended  promptness"  (that  is,  my  intention  was  that  if 
you  were  to  go  out  at  once  you  would  be  divorced  :  and  inasmuch  as  yoa 
did  not  go  out  at  once,  there  is  no  divorce) :  some  of  the  learned 
lawyers  have  said  that  the   man  shall   not  be  believed  by  the  Eazee 


ON   CONDITIONS    IN    DIVOKCB.  181 

(and  divorce  shall  tnke  place),  whilst  others  have  said  tliat  the  maa 
Bliall  be  believed  by  the  K>izee;  and  this  view  is  correct,  because  the 
man^s  oath  relates  to  the  going  oat  which  was  in  contemplation  bj 
the  woman  bj  her  act  of  standing,  without  the  i:ieces8itj  of  any  in- 
tention 00  the  part  of  the  husband  (for  such  going  out),  and  when  he 
(also)  intends  promptitude,  it  is  more  fit  that  he  should  be  believed. 

2203.  (1403.)  A  man  pays  to  his  wife,  '^  If  thou  shalt  ascend  (or 
get  up  to)  this  story  (of  the  house),  then  thou  art  divorced;"  the  wo- 
man then  ascends  a  few  steps:  the  man  shall  not  commit  a  breach  of 
Lis  oath  ;  and  this  view  is  correct. 

And  if  the  husband  says  to  his  wife,  ''If  thou  shalt  nscend  this 
stair,  or  put  thy  foot  on  it,  then  thou  art  divorced  ;  "  and  the  woman 
tiien  advances  (and  puts)  one  foot  on  the  steps,  and  then  she  recollects  tlie 
matter  and  turns  back  :  she  shall  become  divorced ;  because  the  breach 
of  oath  was  realised  by  the  foot  being  put  on  the  steps. 

2304.  (1404.)  And  if  the  husband  says,  **  If  I  put  my  foot  in  the 
house  of  so  and  so,  then  my  wife  is  divorced  ;  "  the  man  then  puts  one 
of  his  two  feet  in  the  house  of  so  and  so,  he  shall  not  commit  a  breach 
of  his  oath,  because  to  put  one's  foot  in  the  house  is  an  implication 
for  entering  the  house  according  to  idiom  ;  and  therefore  the  man  shall 
not  commit  a  breach  of  his  oath  unless  he  enters  the  house. 

But  as  regards  that  case  (na.,  the  one  in  1403),  where  the  husband 
used  the  word  "to  ascend*'  and  *'  to  put  foot  on  the  steps,"  he  verily  used 
exaggeration  (for  the  purpose  of  preventing  ascent)  in  his  oath  (meaning 
if  thou  shalt  ascend  or  even  put  thy  foot  on  the  steps)  and  therefore 
the  breach  of  oath  took  place  when  the  foot  was  put  on  the  steps;  and 
this  is  just  as  if  a  man  says  (to  his  wife),  *^  If  thou  shalt  go  out  of 
this  house  or  put  thy  foot  in  the  street,  then  thou  art  divorced, ''  and  the 
woman  then  puts  her  foot  in  the  street,  the  husband  shall  commit  a  breach 
of  his  oath  ;  and  if  the  husband  speaks  of  going  out,  but  says  nothing 
regarding  the  foot  being  put  in  the  street,  and  the  woman  puts  one  of  her 
two  feet  in  the  street,  the  husband  shall  not  commit  a  breach  of  bis  oath. 

2306.  (1405.)  A  man  says,  **  If  God  torments  {azab)  the  infidels, 
then  my  wife  is  divorced  : "  the  learned  lawyers  have  said  that  his  wife 
shall  not  become  divorced ;  because  there  are  some  infidels  whom  God 
will  not  torment ;  and  the  man  shall  not,  therefore,  commit  a  breach  of 
his  oath* 


182  THE  TAGORE  LAW  LECTURES,  1891-92. 

2306.  (1406.)  A  man  says,  *'I{  I  shall  see  {Zyamt)  so  and  so, 
whether  he  be  alive  or  dead,  then  my  wife  is  divorced ;  **  he  then  follows . 
the  funeral  of  that  so  and  so :  the  learned  lawyers  have  said  that  the 
man  shall  not  commit  breach  of  his  oath  ;  because  following  a  funeral 
is  not  called  seeing  the  man  (deceased) :  and  it  is  reported  from  Aboo 
Yusoof,  on  whom  be  peace,  that  the  man  shall  commit  a  breach  of  his 
oath. 

2307.  (1407.)  A  man  says  *'  If  I  spend  (infak)  out  of  my  wife's 
property,  then  she  is  divorced ; ''  the  woman  then  burns  her  cow-dung 
cake  {Slrieen),  under  the  pot  {Kidr)  containing  raw  silk  (or  cocoon)  be- 
longing to  her  husband  without  his  order :  the  man  shall  not  commit  a 
breach  of  his  oath. 

2308.  (Ii08.)  A  man  says,  *'  If  I  shall  make  repairs  in  this  house, 
then  my  wife  is  divorced;"  then  a  wall  between  this  house  and 
a  neighbour's  house  becomes  dilapidated,  and  the  man  repairs  it,  and  in- 
tends by  such  repairs  the  repair  of  the  neighbour's  house  and  not  the 
repair  of  this  house:  the  learned  lawyers  have  said  that  the  man  shall 
commit  a  breach  of  his  oath,  and  his  intention  {Kv^sd)  shall  be  void. 

2309.  (1409.)  A  man  says  to  his  companions  **  If  I  do  not  take  you 
this  night  to  my  house,  then  my  wife  is  divorced  ; "  he  then  takes  them 
a  portion  of  the  way,  and  then  thieves  catch  them  (or  fall  upon)  and 
imprison  them:  the  learned  lawyers  have  said  that  the  man  shall  not 
commit  a  breach  of  his  oath  (because  it  is  necessary  that  the  possibility  of 
birr  or  the  fulfilment  of  the  oath  should  continue  the  whole  of  the  night). 

And  this  answer  agrees  with  the  views  of  Aboo  Huneef  a  and  Mahomed, 
on  whom  be  peace,  (who  hold  that  the  possibility  of  carrying  out  the 
oath  must  remain  in  existence  all  through  the  night  and  not  only,  as  Aboo 
Yusoof  says,  at  the  time  the  oath  is  taken). 

And  the  principle  of  the  rule  is,  that  when  a  man  swears  that  he  will 
drink  to-day  of  water  which  is  in  this  jug  {kooza\  and  he  then  throws  away 
the  water  (so  as  to  render  it  impossible  for  him  to  drink  the  same)  before 
the  day  expires,  he  shall  not  commit  a  breach  of  his  oath  according  to 
Aboo  Huneefa  and  Muhomed  (because  the  possibility  of  carrying  out  the 
oath  was  not  continued  the  whole  day  ;  but  if  the  man  allows  the  water 
to  remain  in  the  jug  the  whole  of  that  day,  and  does  not  drink  of  it,  and 
throws  away  the  water  the  next  day,  then  he  shall  commit  a  breach 
of  his  oath). 


ON   CONDITIONS    IN   DIVOBOR  183 

2310.  (1410.>  A  man  says  "  If  I  ride,  then  my  wife  is  divorced  :  '* 
ike  oath  shall  relate  to  riding  animals,  snch  as  the  horse,  the  camel, 
the  ass,  the  mule,  and  such  like  animals,  and  shall  not  relate  to  riding  on 
the  back  of  a  human  being  or  on  the  wall. 

But  if  he  says  **  I  shall  not  ride  on  any  thing  on  which  one  rides 
{Murkuh) "  and  he  rides  on  the  back  of  a  human  being :  some  of  the 
learned  lawyers  have  said  that  the  man  shall  commit  a  breach  of  his  oath, 
whilst  others  have  said  that  he  shall  not  commit  a  breach  of  his  oath,  and 
this  (latter)  view  is  correct ;  because  a  human  being  is  not  called  {Murkub 
or)  8  thing  on  which  one  rides. 

2311.  (1411.)  A  man  says  "If  I  speak  falsely,  then  my  wife  is 
divorced;''  he  is  then  questioned  regarding  some  matter,  and  he  nods 
his  head  falsely :  he  shall  not  commit  a  breach  of  his  oath  until  he  spenka 
(or  articulates). 

2312.  (141 2.)  A  man  says,  <<  If  I  break  wind  [ZuruUo)  then  my  wife  is 
divorced  ; "  then  wind  escapes  from  him  without  his  power  to  control :  be 
shall  not  commit  a  breach  of  his  oath,  just  as  if  he  swears  he  will  not 
enter  the  house  of  so  and.  so,  and  he  is  made  to  enter  under  compulsion. 

2313.  (1413.)  A  man  says  "If  I  commit  adultery,  then  my  wife  is 
divorced;  **  then  two  just  men  depose  to  an  admission  on  his  part  of  having 
committed  adultery  (after  the  oath) :  his  wife  shall  become  divorced,  but 
he  shall  not  be  subjected  to  the  prescribed  punishment  (flft^dei);  hxxtit  two 
just  men  depose  to  their  having  seen  him  commit  adultery,  then  be  shall 
not  commit  a  breach  of  his  oath,  and  his  wife  shall  not  become  divorced 
(because  four  witnesses  are  necessary)  ;  but  if  four  men  bear  witness  to 
the  fact,  and  only  two  of  them  are  just,  even  then  his  wife  shall  not 
become  divorced. 

2314.  (1414.)  A  man  says  to  his  wife  "If.  I  separate  from  thee, 
then  every  woman  with  whose  head  I  shall  place  mine  on  the  pillow,  is 
divorced ; ''  he  then  separates  from  his  wife,  and  marries  another  woman, 
and  puts  his  head  along  with  hers  on  the  pillow  :  his  (new)  wife  shall  not 
become  divorced;  because  (whilst  taking  his  oath)  he  has  not  referred  the 
divorce  to  ownership  or  to  the  cause  of  ownership  (that  is  to  say,  if  he  had 
said,  "Then  every  woman  wAom  f  «fcaK  marry  shall  be  divorced, '*  then 
his  future  wife  would  be  divorced,  the  ownership  or  cause  of  ownership 
being  indicated  by  the  use  of  words  of  marriage;  but  if  he  has  already 
another  wife,  and  his  oath  refers  to  that  wife,  then  the  expression  used 
would  cover  her  case). 


184  THE  TAOORB  LAW  LICTUBBS^  18dl-92. 

2316.  (1415.)  A  man  Bays  to  an  old  woman  '<  Verily  thou  art  my 
mother;"  she  says,  '^  I  am  not  thj  mother;"  then  the  husband  says, 
'*  If  I  do  not  take  pride  on  thy  being  my  mother,  then  my  wife 
is  divorced:"  the  learned  lawyers  have  said  that  the  man  shall  not 
commit  a  breach  of  his  oath,  until  he  says  with  his  tongae  ^^  I  do  not 
take  pride  ". 

2316.  (1416.)  A  man  says  to  his  wife,  who  holds  a  cup  containing 
water,  **  If  thou  shalt  drink,  then  thou  art  divorced ;  and  if  thou  shalt 
put  it  down,  then  thou  art  divorced,  and  if  thou  sbalt  throw  it  awaj^  then 
thou  art  divorced  : "  the  learned  lawyers  have  said  that  (the  device  in 
this  matter  is  that)  the  woman  shall  put  a  piece  of  cloth  in  the  cup  until 
it  absorbs  the  water. 

Moulana  (Kazee  Ehan,  the  author  of  these  Fatawa)  on  whom  be 
peace,  says,  that  there  is  no  necessity  for  tb is  ceremony  (or  trouble  to 
find  out  a  device);  because  if  somebody  else  takes  the  cup  away  from  her, 
or  if  she  gives  the  cup  to  somebody  else,  the  man  shall  not  commit  a 
breach  of  his  oath. 

2317.  (1417.)  A  man  says  to  his  wife,  ''  If  I  shall  purchase  a 
female  slave,  or  marry  (a  woman)  apon  thee,  then  thou  art  divorced  once;" 
the  wife  says,  "  I  do  not  agree  to  one  (divorce;")  the  husband  then  says 
to  her,  '^  then  thou  art  divorced  twice,  if  I  do  either  of  these  things ;" 
the  woman  says,  '*  I  do  not  agree  to  two  (divorces) ; "  he  then  says, 
'^  then  thou  art  divorced  thrice,  if  thou  dost  not  agree  to  two  (divorces)," 
without  adding  this  time,  *^  If  I  do  either  of  these  things :  "  Aboo 
Nusur,  son  of  Sulam,  on  whom  be  peace,  says,  that  the  third  expression 
is  founded  on  what  has  preceded  apparently  (so  that  the  three  divorces 
are  also  conditional). 

2318.  (1418.)  A  man  says  to  his  wife,  **  If  so  and  so  divorces  his 
wife,  then  thou  art  divorced  thrice ; "  and  that  so  and  so  disappears ; 
and  the  swearer's  wife  establishes  proof  by  witnesses  that  the  absentee 
divorced  his  wife  after  her  husband's  oath :  Aboo  Nusur  Duboosy,  on 
whom  be  peace,  says,  that  this  proof  by  witnesses  shall  not  be  accepted, 
and  this  view  is  correct ;  because  the  proof  by  witnesses,  whilst  it  relates 
to  the  condition  regarding  her  right,  is  detrimental  to  the  right  of  the 
absentee. 

And  this  case  is  dissimilar  from  that  where  the  husband  makes  his 
wife's  divorce  dependent  on  so  and  so's  entry  in  a  house,  in  which  case, 
if  the  swearer's  wife  establishes  proof  by  witnesses  that  the  so  and  so  did 


ON   CONDITIONS   IN    DITOBOC  185 

enter  the  house,  such  proof  bj  witnesses  shall  be  accepted,  and  the 
Eazee  shall  decree  the  di?orce  of  the  woman  present  before  the  Kazee  ; 
becanse  this  proof  bj  witnesses,  whilst  it  relates  to  the  condition  on 
which  her  right  depends,  does  not  operate  to  the  detriment  of  an 
absentee. 

2319.  (1419.)  A  man  sajs  to  his  wife,  ^'  Go  thou  to  so  and  so,  and 
get  back  from  him  such  and  such  a  thing,  and  bring  it  to  me  this  instant, 
and  if  thou  shalt  not  bring  it,  (this  instant)  then  thou  art  divorced  ;  ' 
the  woman  goes,  but  is  not  successful  in  getting  back  the  thing ;  but 
she  gets  it  back  from  him  the  next  day,  and  brings  it  to  her  husband  : 
the  learned  lawyers  have  said  that  the  man  shall  commit  a  breach  of  his 
oath,  because  his  expression  *'  bring  it  back  to  me  this  instant  ^'  is  a  clear 
(and  direct)  expression  denoting  promptness  (fowr). 

23io;  (1420.)  A  man  says  to  his  wife,  «If  I  *  *  ^  * 
*****  then  thou  art  divorced  ;  "  the  slave  girl  then 
says  that,  "The    man        *        *        *        *        (after    the    oath)         * 

*  ;**  bat  the  master  falsifies  her  :  the  word  to  be  accepted  shall  be  that 
of  the  master ;  and  if  the  wife  comes  to  know  of  the  fact        *        *        * 

*  *        *        *        *        *.*        *  it  shall  not   be    open    (or 

allowable  by  law)  to  her  to  live  with  him  or        *        *        *        *        * 

*  *        *        *        *^ 

But  if  the  master  says  (in  Persian),  "  If  I  have  done  so  *  * 
*********!  have  done  right :  '* 
then  this  shall  amount  to  an  admission  by  him,  and  he  shall  commit 
a  breach  of  his  oath. 

2321.  (1421.)  A  drunken  man  strikes  his  wife  $  she  goes  out  of 
his  house  ;  the  husband  then  says,  ''  If  thou  shalt  not  come  back  to  me, 
then  thou  art  divorced  ; ''  all  this  takes  place  in  the  afternoon,  (during 
the  time  when  Asor  prayers  are  said) :  the  woman  comes  back  to.  her 
husband  at  night  (during  the  time  when  Isha  prayers  are  said) :  the 
learned  lawyers  have  said  that  the  man  shall  commit  a  breach  of  his  oath ; 
because  his  oath  meant  promptitude  (fowr)  ;  and  if  the  husband  says, 
*'  I  did  not  intend  promptitude,''  he  shall  not  be  believed  by  the  Kazee  : 
And  in  a  case  where  the  wife  stands  up  to  go  out  (of  the  house),  and  the 
husband  says,  "  If  thou  goest  away,  then  thou  art  divorced ; "  and  the 
woman  then  sits  down,  and  then  after  having  sat  for  a  moment^  she 
goes  out^  the  man  shall  not  commit  a  breach  of  his  oath. 
24 


186  THE    TAQOKK    LAW    LECTtRfcS,    1891-92, 

2322.  (1422.)  A  man  says,  "If  I  have  done  so  and  so,  then  (lie 
concludes  in  Persian),  this  woman,  whom  I  have  in  house,  divorce  5  '*  the 
fact  is  that  he  has  done  the  act,  but  his  wife  is  not  in  his  house  at  the 
time  of  the  oath  :  the  man  shall  commit  a  breach  of  his  oath ;  because  his 
intention,  by  the  use  of  the  expression  (**  woman  in  house,")  was  to 
refer  to  his  wife;  but  if  he  says,  "This  woman  who  is  in  this  house, 
so  and  so  (that  is,  divorce) "  and  if  his  wife  is  not  in  the  house,  which 
lie  hns  particularised,  then  his  wife  shall  not  be  divorced ;  because  when 
the  house  is  fixed,  then  the  expression  does  not  mean  his  wife  (i.e., 
"  house  "  may  mean  wife,  but  "  this  house  "  means  the  house)* 

2323-  (1423.)  An  infant  boy  (minor  and  not  sui  juris)  says,  "  If  I 
drink  wine,  then,  every  woman,  whom  I  shall  marry,  is  divorced ;  '*  he 
does  drink,  he  being  an  infant;  he  then  marries  after  attaining  majority, 
and  his  father-in-law  thinks  that  the  divorce  has  become  operative;  the 
boy  who  is  major  says,  (in  Persian),  "Yes,  she  is  unlawful  to  me:  '*  the 
learned  lawyers  have  said  tliat  this  expression  (emanating  from  the  boy) 
is  an  admission  by  him  of  unlawfulness,  and  his  wife  shall  become  unlaw- 
ful to  him  as  a  beginning  (that  is,  now  for  the  first  time  not  by  reason  of  his 
oath,  which  is  inoperative,  having  been  taken  during  infancy,  but  by  reason 
of  his  admission) ;  and  others  have  said  that  his  wife  shall  not  become 
unlawful  to  him,  and  this  view  is  correct;  because,  he  made  no  admis- 
sion of  unlawfulness  as  a  beginning,  but  he  only  made  an  admission  regard- 
ing a  cause  (viz.y  drinking  of  wine  after  the  oath)  on  which  both  he  and 
his  father-in-law  are  agreed,  and  which  as  a  cause  of  unlawfulness  is  void 
(the  wine  having  been  drunk  in  infancy,  and  the  oath  also  having  been 
taken  in  infancy.    See  Futawai  Alumgiree,  Vol.  I,  page  611). 

2324.  (1424.)  A  man  says  to  his  wife,  "If  thou  shalt  purchase 
water  with  bread,  then  thou  art  divorced ;  "  the  woman  then  purchases 
from  the  water-carrier  (a  vender  of  water)  some  water  which  he  has  brought 
from  the  plain  (in  exchange  for  bread):  his  wife  shall  become  divorced; 
and  if  she  gives  bread  to  the  water-carrier  (water  vender)  and  says,  "  Bring 
me  water,  for  this  bread,**  some  of  the  learned  lawyers  have  said,  that 
the  husband  shall  not  commit  a  breach  of  his  oath  ;  because  this  is  hiring 
(the  water-carrier  in  lieu  of  wages)  and  not  sale,  (sale  of  a  non-existent 
thing  or  of  water  before  it  is  confined  in  the  mushuk  is  not  valid). 

S326.  (1425.)  A  woman  is  crying  in  her  house ;  her  husband  says 
to  his  mother-in-law,  "  If  thy  daughter  shall  not  go  out  of  thy  house,  and 


ON   CONDITIONS   IN   DIVORCE.  187 

sLall  cry  here,  then  she  is  divorced;  '*  the  wife  then  goes  out  of  the  house, 
and  then  comes  back  and  cries  :  the  lawyer  Aboo  Leith,  on  whom  be  peace, 
sajs,  that  if  any  person  in  the  house  hears  her  cry,  she  sball  become  di- 
vorced, when  she  cries ;  because  the  husband  only  prevented  her  from  cry- 
ing in  order  that  her  cry  might  not  be  heard ;  but  if  this  is  not  the  case, 
(i.e.,  if  nobody  hears  her  cry  after  her  return )  then  when  she  goes  out 
without  crying  after  the  oath,  the  oath  becomes  void,  and,  therefore,  the 
husband  shall  not  commit  a  breach  of  his  oath  by  her  crying  (inaudibly) 
after  this,  (that  is,  after  going  out  aud  then  coming  back  and  crying  inau- 
dibly). 

2328.  (1426.)  A  woman  says  to  her  husband  '^If  I  shall  bake  bread 
80  that  thou  mayest  eat  it,  then  my  slave  girl  is  free; ''  the  woman  then 
bakes  bread  for  her  neighbour,  and  the  husband  eats  of  it :  the  woman 
shall  not  commit  a  breach  of  her  oath;  because  the  meaning  oC  her  expres- 
sion is,  ^*  If  I  shall  bake  bread  for  thy  sake ; "  and  when  she  does  not 
bake  bread  for  his  sake  (or  use),  she  shall  not  commit  a  breach  of  her 
oath. 

2327.  (1427.)  A  man  says  to  his  wife,  '^  If  thou  shalt  enter  the  house 
of  80  and  so  without  my  meaning  and  wish,  then  thou  art  divorced ;  "  the 
woman  then  intends  to  go  to  the  house  of  so  and  so;  the  husband  says  (in 
Persian),  "You  may  go,  what  comes  to  me  "  (that  is,  I  will  not  be  visited 
by  the  consequences  which  may  fall  on  you) :  this  is  a  threat  and  not  per- 
mission, and  if  she  enters  the  house,  the  man  shall  commit  a  breach  of  his 
oath. 

2328.  (1428.)  A  man  says  to  one  of  his  two  wives,  when  she  asks 
him  to  divorce  her  co-wife  "  Verily  if  I  shall  divorce  her,  then  verily 
sbalt  thou  be  divorced ;  '^  (t.  e.,  if  I  shall  divorce  her  I  shall  divorce  thee 
also);  the  woman  says  ^^I  agree  to  it;"  he  then  divorces  her  co-wife,  and 
tiien  says  to  the  woman,  ^^  Purify  thy  womb  (an  indirect  expression  for 
divorce ; ")  he  then  denies  (having  divorced  the  woman) :  the  learned 
lawyers  have  said  that  it  is  not  lawful  for  the  woman  to  live  with  the 
man ;  and  if  she  intends  to  get  back  to  him  (as  his  wife)  and  if  he  has 
not  already  divorced  her  twice  before  this,  the  Eazee  shall  put  him  on 
his  oath  by  God  that  he  did  not  intend  by  the  expression  used  by  him 
(that  is,  purify  thy  womb),  more  than  one  divorce  (because  it  is  lawful  in 
using  such  an  expression  to  intend  three  divorces) ;  and  if  the  man  refuses 
to  take  the  oath,  the  woman  shall  not  return  to  him  (that  is,  he  shall  not 
be  competent  to  marry  her  unless  there  is  a  Mohullil) ;   and  if  he  takes  the 


188  THE   TAGOEK   LAW   LECTURBS,    1891-92, 

oath  (thus  shewing  he  intended  only  one  divorce),  then  the  woman  shall 
return  to  him  hy  a  fresh  marriage. 

2329.  (1^29.)  A  woman  is  living  with  her  hnsband  in  the  hoase  of 
a  relative  of  hers ;  the  husband  says  to  her  at  night,  **  If  thou  sbalt 
pass  tliis  night  in  this  house,  then  what  is  lawful  is  unlawful  on  me;'' 
the  woman  then  goes  out  of  the  house  at  once,  and  passes  the  night  in  a 
village,  where  her  husband  joins  her :  the  learned  lawyers  have  said  that 
if  the  husband's  intention  was  that  the  woman  should  go  away  herself, 
he  shall  not  commit  a  breach  of  his  oath  (but  if  his  intention  was  that  he 
should  take  her  himself  out  of  the  house^  he  shall  commit  a  breach  of  his 
oath) ;  and  the  word  to  be  believed  in  this  matter  is  his  word. 

2330.  (1430.)  And  it  is  laid  down  in  the  Jamai  Sogheer  (a  work 
by  Mahomed)  that  a  man  says  to  his  wife  in  Persian,  **  If  thou  shalt 
remain  in  this  house  this  night,  then  thou  art  so  and  so ; ''  she  then  goes 
out  with  her  husband  at  once,  and  passes  the  night  with  him  in  his  house: 
the  learned  lawyers  have  said  that  if  the  husband  means  that  she  shall 
go  with  her  goods  and  things  (or  belongings)  he  shall  commit  a  breach  of 
his  oath,  if  the  woman  leaves  her  belongings  in  that  place ;  but  if  he 
intends  that  she  should  go  out  herself  personally  without  (having  any  in* 
tention  regarding)  anything  else,  then  he  shall  not  commit  a  breach  of  his 
oath;  and  if  the  woman  is  doubtful  (as  to  her  lord's  intention)  she  shall 
put  him  on  his  oath  (after  having  gone  out  of  the  house  and  when  the 
doubt  regarding  the  divorce  arises),  and  if  he  takes  oath,  then  his  reckon- 
ing is  with  God. 

And  this  matter  (that  is  the  doubt  whether  divorce  has  been  caused 
or  not)  takes  place  when  he  fixes  a  time  (for  the  woman^s  going 
out)  saying  •*  If,  this  day,  thou  shalt  remain  here "  (in  which  case 
his  meaning  would  be  doubtful,  he  might  mean  that  she  shall  go  herself, 
and  might  also  mean  she  shall  take  her  things,  the  time  being  sufficient  for 
her  to  take  away  all  her  things) ;  but  if  he  fixes  a  year's  time,  then  (the 
doubt  shall  not  arise  and)  this  shall  mean  that  she  shall  remove  herself 
with  her  belongings ;  and  if  he  fixes  no  time,  and  he  has  no  intention 
(whether  she  should  take  her  things  or  not)  at  the  time  of  his  oath,  then 
his  oath  shall  be  taken  to  mean  that  the  woman  shall  remove  herself 
personally. 

2331.  (1431.)  A  man  intends  to  go  on  a  journey  ;  his  father-in-law 
makes  him  swear  saying,  '^If  thou  shalt  after  this  (that  is,  in  this  journeyX 
absent  thyself  from  thy  wife  and  shalt  not  return  to  her  in  the  beginning 


ON   CONDITIONS   IN   DIVOHCB.  189 

of  the  (next)  month,  then  thy  wife  is  divorced  ;  '*  the  son-in-law  says,  in 
Persian,  (yes) — ^^It  is''  without  adding  anything  farther;  he  then  remains 
absent  for  more  than  a  month:  his  wife  shall  become  diyorced;  because  the 
man  answered  his  father-in-*law's  words ;  and  the  answer  incorporates 
what  is  in  the  question,  and,  therefore,  his  wife  shall  become  divorced. 

2332.  (1432.)  A  man  reports  the  oath  of  another,  and  when  he 
reaches  the  point  where  divorce  is  to  be  reported,  it  occurs  to  him  to 
divorce  his  own  wife :  if  he  himself  intends,  at  the  time  of  the  mention  of 
the  divorce  (in  the  course  of  the  narrative),  to  give  divorce  by  making  it 
effective  at  once  (Isteenaf)  upon  his  own  wife,  and  if  the  expression  (con- 
taining the  mention  of  divorce  which  he  was  reporting)  although  joined 
without  interruption  {Mous-oot)  to  the  conditional  clause,  is  sufficient 
(otherwise  by  the  construction  of  its  sentence)  to  cause  divorce  (on  the 
narrator's  own  wife),  then  divorce  shall  be  caused  on  the  narrator's  wife  ; 
but  if  the  narrator  does  not  intend  his  wife's  divorce,  then  his  wife  shall 
not  be  divorced,  although  the  expression  might  be  sufficient  to  cause 
divorce  bj  the  narrator;  because  when  the  expression  containing  mention 
of  divorce  is  joined  to  the  condition,  it  shnll  (in  the  absence  of  such  in- 
tention) be  referred  to  the  narrative.  (For  instance,  a  person  reporting 
another's  speech,  says,  the  man  said  to  his  wife,  '^  If  I  shall  enter  the 
house,  then  my  wife  is  divorced:"  here  the  expression  used  is,  ^*my  wife," 
and  this  is  sufficient,  if  the  narrator  attributes  the  idea  to  himself,  to 
cause  immediate  divorce  on  his  wife ;  but  if  he  reports  the  speech  by 
saying  that  the  man  said  ^*  his  wife  is  divorced,"  then  this  expression  is 
not  sufficient  to  cause  divorce  upon  the  narrator's  wife ;  if  the  expression 
is  sufficient,  in  the  sense  thus  shewn,  then  if  the  narrator  intends  to  cause 
immediate  divorce  upon  his  wife,  such  divorce  shall  be  caused ;  but  if  he 
has  no  such  intention,  then  it  shall  not  be  caused,  and  it  shall  be  taken 
as  part  of  the  narrative.  Be  it  known  that  the  divorce,  which  the  narra- 
tor shall  cause,  shall  be  immediate  divorce,  and  not  a  conditional  one,  and 
that  the  condition  must  remain  of  the  nature  it  originally  was,  viz.y  part 
of  the  narrative,  otherwise  there  would  be  no  narrative  at  all :  if  the  ex- 
pression relating  to  divorce  is  disjoined  with  the  condition,  as  when  the 
narrator  reports  the  condition,  and  keeps  quiet  for  an  hour,  and  then  says, 
^^My  wife  is  divorced,"  this  shall  be  ascribed  to  the  narrator  himself,  and 
as  applying  to  his  wife.     See  paragraph  1086). 

2333.     (1433.)    A  man  has  four  wives,  with  all  of  whom  he  has  bad 
intercourse ;  he  then  says,  <^  Every  woman  out  of  you  fonr^  with  whom 


190  THE  TAOOBE  LAW  LECTURES^  1891-92. 

I  shall  not  have  intercoarse  this  night,  the  others  are  divorced ; ''  he  then 
has  sexual  intercoarse  with  one  woman,  and  the  morning  dawns;  the 
woman,  with  whom  he  has  had  sexaal  intercoarse  shall  be  divorced  thrice; 
because  the  man  rendered  absence  of  intercoarse  with  one  woman,  as  a 
condition  for  the  divorce  being  caused  on  the  rest  of  them,  bj  the  use  of 
an  expression  which  includes  all  the  women  in  consequence  of  the  general 
import  of  the  word  "  Every ;  "  and  as  regards  the  woman  with  whom  he 
has  intercourse,  the  condition  of  her  divorce  is  found  thrice  and  that 
condition  is  the  absence  of  sexual  intercourse  with  three  women  and  tliia 
woman  (with  whom  the  man  has  intercourse)  shall,  therefore,  be  divorced 
thrice :  but  as  regards  the  rest  of  the  women,  the  condition  regarding 
the  divorce  of  each  of  them  was  found  twice,  such  condition  being  the 
absence  of  sexual  intercourse  with  the  (two)  others,  and  each  shall  there- 
fore be  divorced  twice. 

2334.  (1434.)  •  A  man  is  asked,  ^^Is  there  any  woman  (wife)  for  thee, 
besides  this; ''  the  man  says,  ^^  £very  woman  who  is  for  me  (except  this  one) 
is  divorced  :  "  his  wife  shall  not  be  divorced  ;  contrary  to  the  case  where 
the  wife  says  to  her  husband,  "  Verily  dost  thou  wish  to  marry  a  womati 
upon  me  "  and  the  husband  says,  '^  If  I  shall  marry  a  woman,  then  she 
is  divorced  ; ''  and  the  husband  then  divorces  his  first  wife  by  a  bain  or 
complete  divorce,  and  he  then  marries  her  {viz.,  the  woman  who  was 
his  first  wife)  again :  she  shall  be  divorced  a  second  time. 

So  also  if  the  wife  says  to  her  husband,  "  Verily  lias  thou 
married  a  woman  upon  me"  and  the  husband  says,  '^  Every  woman  I  have, 
is  divorced : "  the  woman  so  addressed  shall  become  divorced^  except 
according  to  one  tradition  from  A.boo  Yusoof,  on  whom  be  peace. 

And  the  difference  between  these  (last  two)  cases,  is,  that  the  expres- 
sion used  by  the  husband  (in  the  last  two  cases)  is  founded  on  the  ex- 
pression used  by  the  wife,  and  therefore  the  word  which  found  place  in 
the  wife's  expression  (vw.,  the  general  word  "woman'O  also  finds  a  place 
in  the  expression  used  by  the  husband;  and  what  has  been  mentioned  in  the 
wife's  expression,  in  these  two  cases  is  the  word,  ^^  woman  "  and  this 
word  (woman)  includes  every  woman  that  there  might  be,  and,  therefore, 
the  woman  addressed  will  be  included  in  the  husband's  expression ;  bat 
in  the  first  case,  the  expression  used  by  the  person  who  put  the  question, 
<*  Is  there  for  thee  a  woman  besides  this  "  does  not  include  this  woman 
in  any  way  (because  she  is  excluded  by  the  words,  "  besides  this  ")  and 
therefore  the  husband's  answer  shall  (also)  not  include  her. 


ON   CONDITIONS   IN   DIVOECF.  191 

2335.  (1435.)  A  man  snys  to  Lis  wife,  *^Thon  art  divorced  to- 
morrow, when  thoa  enterest  the  bonse :  '*  the  mention  of  the  word, 
'<  to-morrow,"  is  a  snrplnsage  (LagKo)^  and  the  divorce  shall  be  connected 
T?ith  the  entry  in  the  house,  so  that  if  she  enters  the  honse  at  any  time^ 
she  shall  become  divorced;  but  if  the  husband  mentions  the  condition 
before  (tbe  effectual  clause)  and  says,  ^^  If  thou  enterest  the  house,  then 
thou  art  divorced  to-morrow,"  then  tbe  divorce  of  the  morrow  shall  be 
dependent  on  the  entry  in  the  bouse,  (tbat  is,  if  tbe  entry  takes  place  on 
the  morrow,  tben  the  divorce  shall  take  place)  ;  because  the  man  consti- 
tuted to-morrow's  divorce  as  the  effect  of  entry. 

2336.  (1436.)  And  if  a  man  says  to  his  wife,  '<  If  thou  enterest 
the  house,  then  thou  art  divorced  and  divorced  and  divorced  if  tbou 
speakest  to  so  and  so :  "  tbe  first  and  second  divorces  are  connected  with 
the  entry,  and  the  third  divorce  is  connected  with  the  second  condi- 
tion:  so  that  if  she  enters  tbe  house  she  shall  become  divorced  twice; 
and  if  she  speaks  to  so  and  so,  she  shall  become  divorced  once. 

2337.  (1437.)  And  if  the  husband  sayp,  '<If  thou  enterest  tbe 
house,  then  thou  art  divorced  if  thou  speakest  to  so  and  so  :  "  the  divorce 
which  is  dependent  on  her  speaking  to  the  so  and  so,  is  the  effect  of  the 
condition  relating  to  entry  in  the  house ;  so  tbat  if  she  speaks  to  the  so 
and  so,  before  the  entry  in  the  house,  and  then  enters  the  house,  no  divorce 
shall  be  caused  :  (that  is,  the  meaning  of  the  oath  is  this  that  entry  in 
the  house  shall  cause  divorce  only  if  the  woman  after  the  entry  speaks  to 
80  and  so). 

3338.  (1438.)  A  man  says  to  bis  wife,  '^Tbou  and  whichever  of 
my  wives  enters  the  house,  is  divorced : "  the  woman  addressed  shall 
become  divorced  at  once ;  and  if  she  enters  the  house,  being  still  in  her 
Iddut^  she  shall  become  divorced  a  second  time,  because  tbe  fact  that  the 
woman  was  indicated  by  a  special  term  (thou)  does  not  prevent  her  from 
being  included  in  the  general  expression  (whichever  of  my  wives). 

2339.  (1439.)  So  also  if  the  husband  says,  "Whichever  of  my 
wives  enters  this  house,  is  divorced  and  so  and  so :  '^  the  so  and  so 
shall  be  divorced  at  once  ;  and  if  she  enters  tbe  house  whilst  she  is  in  her 
Iddut^  she  shall  become  divorced  a  second  time. 

2840.  (1440.)  So  also  if  the  husband  says,  "Every  woman 
whom  I  shall  marry,  is  divorced ;  and  so  and  so,"  meaning  by  the  last 
words  the  wife  he  already  has :    the   so  and  so  shall  become  at  once 


192  THE  TAGORB  LAW  LECTUBIS^  1891-92. 

divorced  and  marriage  (of  the  hnsband  with  another  wife)  shall  not  be 
waited  for^  (in  order  that  the  present  wife  might  become  divorced) ;  and 
if  the  man  marries  (the  first  wife  who  was  so  divorced)  again  after  thiB, 
then  this  woman  (his  first  wife)  shall  become  divorced  a  second  time. 

231L  (1441.)  And  if  a  man  says  to  his  wife,  **  Then  art  divorced 
and  snch  and  such  a  woman  if  I  marry  her :  "  his  wife  shall  not  be 
divorced  until  he  marries  the  so  and  so,  (because,  **  If  I  marry  her," 
is  a  Mooghyyur  or  an  expression  which  alters  the  immediate  effect  of 
the  words,  "  Thou  art  divorced  "). 

2342.  (1442).  And  if  the  husband  says  to  his  wife,  ''Thou  and 
such  and  snch  a  woman  are  divorced  if  I  marry  her :  '^  the  divorce  shall 
not  be  caused  on  either  of  them,  until  he  marries  the  **  such  and  sach 
a  woman.'* 

2343.  (1443.)  And  if  he  says,  ^^Thon  and  such  and  such  a  woman 
are  divorced,  if  the  such  and  such  a  woman  enters  the  house :  *'  the 
divorce  shall  not  be  caused  nntil  the  such  and  such  a  woman  enters  the 
house. 

2344.  (1444.)  And  if  he  says,  (to  one  of  his  wives),  "  Every  wife 
I  have  is  divorced  and  thou  art  divorced : "  this  wife  shall  be  twice 
divorced,  and  the  other  wives  shall  be  divorced  once  each. 

234Q.  (1445.)  And  if  the  husband  says  to  his  wife,  ^*  Thou  and 
whichever  of  my  wives  enters  the  house,  are  divorced : ''  this  woman 
(that  is,  the  one  addressed,  shall  be  divorced  as  soon  as  the  man  pauses ; 
and  if  she  enters  the  house  during  her  Iddut,  she  shall  have  another 
divorce. 

2346.  (1446.)  And  if  a  man  says  to  his  male  slave,  ^'  Thou  art  free 
and  whichever  of  my  slaves  enters  the  house :  "  the  one  addressed  shall  be 
free  at  once :  and  if  the  man  says,  **  I  intended  this  slave's  freedom,, 
(likewise)  to  depend  on  his  entry  (in  the  house),'*  he  shall  not  be  believed 
by  the  Kazee. 

2347.  (1447.)  A  man  says  to  his  wife,  "  Every  woman  whom  I 
marry,  as  long  as  thou  livest,  is  divorced :  '*  the  wife  addressed  shall  not 
be  included  in  the  oath.  So  also  if  he  says,  ^^  Every  woman  whom 
I  marry,  as  long  as  such  and  such  a  woman  (likewise  his  wife),  lives  (is 
divorced),  **  the  such  and  such  a  woman  is  not  included  in  the  oath. 

23i8.  (1418.)  And  if  the  husband  says  to  his  wife,  '^  Every  woman 
whom  I  marry,  bearing  thy  name,  is  divorced ;  "    he  then  divorces  this 


ON  CONDITIONS   IN  DIYOBCfi.  193 

woman  and  then  marries  her  (the  very  woman  whom  he  haddiTorced)r8he 
shall  not  become  diyorced,  although  he  might  have  intended  (to  include) 
her  at  the  time  he  took  the  oath ;  just  as  if  he  says,  ^' Every  woman  whom 
I  marry  other  than  thee  is  divorced : ''  this  woman  shall  not  be  included 
in  the  oath,  although  he  might  intend  (to  include  her  in  the  oath). 

2349.    (1449.)    A  man  says  to  his  wife,    ''If  I  marry  upon  thee 

(that  is,  bring  thee  a  rival  wife)  as  long  as  thou  livest,  then  what  God  has 

made  lawful  to  me,  is  unlawful ; "  he  then  says,  ''  If  I  marry  upon  thee, 

then  it  is  obligatory  on  me  to  divorce ; "  he  then  marries  a  woman  upon 

her:  one  divorce  shall  be  caused  on  each  of  them  (by  the  force  of  the  expres-  % 

sioD,  what  ''  God  has  made  lawful  to  me  is   unlawful ''),  and  another 

divorce  shall  also  arise  (by  force  of  the  expression,  ''then  it  is  obligatory 

on  me  to  divorce  ")  which  the  husband  is  at  liberty  to  apply  to  whichever 

of  the  two  he  likes  ^  because  the  man's  expression,  "  Then  what  God  has 

made  lawful  is  unlawful  to  me ''    has  been  rendered   an  oath,  for  the 

divorce  of  every  woman  who  might  be  his  wife;  and  the  second  expression 

is  an  oath  for  the  divorce  of  one  of  his  wives,  without  such  a  one  being 

determined,  (that  is  to  say,  it  is  an  oath  for  the  divorce  of  one  of  his  wives 

without  specifying  the  particular  wife) ;  and,  therefore,  when  he  marries 

a  woman,  both  the  oaths  come  into  operation  {i.  e.,  inhUal  or  open  out) 

and,  therefore,  one  divorce  shall  be  caused  on  each  of  the  two  by 

virtue  of  the  first  oath,  and  by  virtue  of  the  second  expression,  according 

to  the  view  taken  by  him  who  validates  such  an  oatb,  another  divorce 

shall  be  caused  on  one  of  them   without  such  a  one  being  determined ; 

but  the  husband  shall  be  at  liberty  to  apply  this  divorce  to  whomsoever 

he  likes. 

Moulana  (Kazee  Khan,  the  author  of  these  Futawa)  on  whom  be 
peace,  says,  this  (latter  portion  of  the)  answer  is  open  to  doubt ;  because 
the  second  expression  is  an  oath  for  the  divorce  of  one  of  the  wives,  with- 
out such  a  one  being  determined,  and  as  soon  as  he  marries  a  woman,  one 
divorce  shall  be  caused  on  each  of  them  (by  virtue  of  the  first  oath) ; 
and  therefore  the  new  wife  shall  become  hain  or  completely  separated  with- 
out there  being  any  Iddhit  for  her  (there  having  been  no  sexual  intercourse 
with  her)  ;  then  how  will  the  husband  be  entitled  to  apply  the  second 
divorce  to  her?  (the  divorce  by  virtue  of  the  second  oath  shall,  therefore, 
apply  only  to  the  first  wife). 

8860L    (1450.)    A  man  has  four  wives ;  he  says,  "  Eveiy  wife  I  have 
is  divoroed»  when  I  enter  this  house ;  '^  he  then  divorces  one  of  them 
25 


IM  THB  TAGOBE  LAW  LBCTUKIS,    1891-92. 

speeifleallj',  bjr  a  hain  or  complete  divorce ;  lie  then  enters  tlie  boeee 
whilst  she  {viz.,  the  divorced  wife)  is  in  her  Iddut:  all  of  them  shall 
become  divorced  (including  the  divorced  wife,  who  shall  thus  have  twa 
divorces). 

2861.  (1451.)  A  man  says,  "Every  wife  I  have  is  divorced,'*  intend- 
ing by  this  expression,  (to  refer  to)  the  wife  who  is  already  married  to 
him,  and  also  the  woman  whom  he  may  acquire  (or  marry)  after- 
wards :  the  divorce  shall  not  be  caused  on  the  wife  whom  he  might  marry 
in  future  (because  ownership,  that  is  actual  marriage  or  cause  of  owner- 
ship, that  is,  the  use  of  the  words,  "  The  woman  whom  I  may  marry  '*  is 
wanting  here  at  the  time  of  the  oath). 

2352.  (1452.)  A  man  says,  ^^  Every  woman  whom  I  marry  is 
divorced,  if  I  speak  to  so  and  so ; ''  he  then  speaks  to  the  so  and  so,  and 
then  marries :  the  divorce  shall  not  be  caused  on  the  wife  (because  the 
marriage  should  have  preceded  the  speaking,  in  order  that  the  divorce 
might  be  caused)  ;  but  if  he  speaks  first  and  then  marries,  and  then 
again  speaks,  the  wife  whom  he  marries  after  he  spoke  first,  shall  become 
divorced  ;  this  is  stated  in  the  Koodoory. 

2868-  (1458.)  And  if  he  says,  ^^  Every  woman  whom  I  shall  marry, 
is  divorced,  if  I  speak  to  so  and  so  ;  he  then  marries  and  then  speaks, 
(she  shall  become  divorced) ;  and  he  then  marries  another  woman  and 
then  speaks,  the  second  wife  shall  not  become  divorced  (because  the  oath 
in  the  form  used  becomes  exhausted  after  the  condition  is  once  satisfied). 

2354-  (1454.)  And  if  a  man  says,  "  Every  woman  whom  I  marry 
shall  be  divorced,  whenever  I  speak  to  so  and  so :  "  he  then  marries  a 
woman  and  then  speaks  (to  the  so  and  so) :  she  shall  become  divorced  ; 
and  if  he  marries  a  second  wife,  and  then  speaks  to  the  so  and  so  (or 
speaks  to  the  so  and  so  without  having  married  a  second  woman),  the  first 
married  wife  shall  be  divorced  a  second  time  on  account  of  this  (second) 
speaking,  if  she  shall  be  in  her  Iddut,  and  the  second  wife  shall  not  be 
divorced. 

2366.  (1455.).  A  man  says  to  his  wife,  ^^  If  thou  art  not  pregnant, 
then  thou  art  divorced  thrice  ; "  she  then  gives  birth  to  a  child  in  two 
years  time  less  by  one  day,  from  the  time  of  the  oath :  the  woman  shall 
not  be  divorced  according  to  the  Kazee,  (because  two  years  being  the 
period  of  gestation,  it  is  clear  that  she  was  pregnant  when  the  oath  was 
taken).  .  ^ 


ON   COKBITIOKS   IK   DITO&OS.  195 

And  if  she  is  delivered  after  more  than  two  jMrSy  by  Me  day  <(from 
the  day  of  the  oath)^  she  shall  become  divorced. 

And  if  she  gets  her  menses  after  the  oath,  the  hnsband  should  not 
hare  seznal  intercourse  with  her  on  account  of  the  possibility  (beoauiefhe 
Uood  might  not,  in  reality,  be  on  account  of  menses)  that  she  might  not  be 
with  child  (a  thing  on  which  certainty,  so  far  as  the  Kazee  is  concerned, 
can  only  be  attained  by  the  circumstance  whether  the  delivery  takes  place 
less  or  more  than  two  years  after  oath) :  so  also  if  she  does  not  get 
menses,  it  is  not  proper  for  the  husband  to  have  sexual  intercourse  with 
her,  until  she  is  delivered,  (when  it  shall  be  known  for  certain  whether 
she  was  pregnant  or  not  at  the  time  of  the  oath). 

28B6.  (1456.)  A  man  says  to  his  wife,  *'If  I  say  to  thee,  ^  Thou 
art  divorced,*  then  thou  art  divorced ; "  he  then  says,  *'  Verily  have  I 
divorced  thee ''  (that  is,  in  other  words,  ^*  Thou  art  divorced''),  she  shall 
become  divorced  twice  (once,  by  bis  expression  "  I  have  divorced  thee,'' 
and  a  second  time  as  the  effect  of  the  condition),  so  far  as  the  Kazee  is 
concerned;  and  if  he  intends  that  the  divorce  is  to  be  caused  only 
by  his  expression,  ^'Thou  art  divorced"  (and  that  no  second  divorce  is  to  be 
caused  by  the  condition,  and  that  his  expression  though  in  form  a  condition 
was  not  really  so)  he  shall  be  confirmed  morally  as  between  him  and 
his  God,  (because  he  might  mean  by  the  expression,  '^  Then  thou  art 
divorced "  an  explanation  of  the  result  of  his  expression  '*  If  I  say  thou 
art  divorced"  and  not  giving  a  second  conditional  divorce,  that  is  to  say, 
it  is  possible  to  read  the  expression,  which  is  supposed  to  contain  the  oath, 
not  in  the  light  of  a  condition,  but  merely  as  a  statenient  of  fact). 

S3S7.  (1457.)  A  man  says  to  a  strange  woman,  '^  If  I  divorce  thee 
then  my  slave  is  free : "  this  oath  is  valid,  and  it  will  be  tantamount  to 
his  having  said,  *^  If  I  shall  marry  thee  and  divorce  thee,  then  my  slave 
is  free." 

But  if  he  says  to  her,  <<  If  I  divorce  thee,  then  thou  art  divorced 
thrice,"  this  oath  shall  not  be  valid. 

2368.  (1458.)  When  a  man  says  to  his  wife,  who  is  married  to  him 
by  an  invalid  (or  Fasid)  marriage,  ^^  If  I  divorce  thee  (then  my  slaveis 
free) ;  then  the  oath  relates  to  divorce  (uttered)  with  the  tongue  (that  is, 
the  oath  merely  implies  his  giving  utterance  to  words  of  divorce  although 
the  dirorce  shall  not  be  caused  on  her  by  reason  of  the  marriage  being 
Fiuidi. 


196  THE  TAOOBE  LAW  LBCTUBBS,  1891-92. 

2359.  (1459.)  A  man  swears,  '*  I  shall  positively  divorce  such  and 
such  a  woman  to-day  thrice  (saying  if  I  do  not  do  so,  then  my  fHAie  is 
free) ; "  and  such  and  such  a  woman  is  a  stranger  to  him^  or  a  woman 
whom  he  has  already  divorced  thrice :  his  oath  relates  to  his  giving  ntter- 
ance  to  words  of  divorce  with  his  tongue ;  and  this  is  just  as  if  he  swears 
**  I  shall  certainly  marry  such  and  such  a  woman  this  day  "  whilst  she  is 
the  wife  of  another  man,  who  has  had  intercourse  with  her ;  this  (latter) 
oath  shall  relate  to  an  invalid  marriage  (with  that  woman,  which  marriage 
shall  have  no  effect  except  satisfying  the  man's  oath,  and  shall  simply 
consist  of  the  use  of  the  words  of  proposal  and  acceptance  without  such 
words  creating  the  relationship). 

2360.  (1460.)  A  man  says  to  his  wife,  '^  If  thou  enterest  this 
house,  if  thou  enterest  this  house,  then  thou  art  divorced,''  the  husband 
referring  to  one  and  the  same  house ;  the  woman  then  enters  the  house 
once ;  she  shall  become  divorced  by  Istihsan. 

So  also  if  he  says,  '^  If  I  marry  thee,  if  I  marry  thee,  then  thou 
art  divorced ; "  he  then  marries  her  once,  she  shall  become  divorced  (and 
it  is  not  necessary,  in  order  to  make  the  condition  operative,  that  he  shall 
marry  her  once,  and  then  divorce  her,  and  then  again  marry  her). 

And  if  he  says,  ^'  If  I  marry  thee,  then  thou  art  divorced,  if  I  many 
thee  "  or  says,  ^^  When  thou  enterest  the  house  then  thou  art  divorced  when 
thou  enterest  this  house:''  the  woman  shall  not  be  divorced,  as  long  as  she 
does  not  enter  the  house  twice,  and  she  shall  not  become  divorced  as  long 
as  he  does  not  marry  her  twice  (because  the  effect  of  the  condition,  ''  If  I 
marry  thee"  is  the  expression,  "  thou  art  divorced  if  I  marry  thee," 
that  is,  the  divorce  which  is  dependent  on  a  second  marriage  is  the  effect 
of  the  condition  ^*  If  I  marry  thee  ^  "  if  he  marries  her  and  divorces  her 
and  then  again  marries  her,  this  second  marriage  will  give  rise  to  the 
divorce  involved  in  the  oath). 

2861.  (1461.)  A  man  says  to  his  wife,  "  Divorce  whichever  of  my 
wives  thou  pleaseth :  "  it  is  not  open  to  her  to  divorce  herself  according 
to  the  Zahir-i  Bawayet ;  but  it  is  reported  from  Aboo  Yusoof,  on  whom  be 
peace,  that  it  is  open  to  her  to  divorce  herself. 

So  also  if  he  says,  **  My  wives,  every  one  of  them,  is  divorced,  if 
thou  wish,''  and  the  wife  says,  ^'I  have  wished:"  the  divorce  shall  be 
caused  on  her  and  on  the  others,  according  to  the  view  of  Aboo  Yusoof,  on 
whom  be  peace,  (but  according  to  Aboo  Haneefa  and  Mahomed,  the  divorce 
shall  not  be  caused  on  this  wife). 


ON   COKDITIONS   IN   DIVORCE.  197 

2K2.  (1462.)  And  if  a  man  Bays  to  his  wife,  '^  The  authority  (to 
give  divorce)  to  my  wives,  is  in  thy  hands :  "  the  learned  lawyers  have 
said  that  it  is  not  permissible  to  her  to  divorce  herself ;  bat  it  is  reported 
from  Aboo  Ynsoof,  on  whom  be  peace,  that  it  is  competent  to  her  to 
divorce  herself. 

236S.  (1463.)  And  if  the  husband  says  to  his  wife,  '^My  wives, 
every  one  of  them,  are  divorced,  if  thou  shalt  enter  the  house ; ''  she  does 
enter  the  house :   she  shall  become  divorced  and  the  others  also. 

2384.  (1461.)  And  if  the  husband  says  to  her,  '<  Whichever  of  my 
wives,  thou  wisheth  her  divorce,  is  divorced ; "  she  wishes  the  divorce  of 
every,  one  of  them :  only  one  wife  shall  become  divorced,  ^because 
"  whichever  *'  relates  to  only  one) ;  and  if  he  says,  "  Whichever  of  my 
wives  wishes  her  divorce,  is  divorced ; ''  and  every  one  of  them  wishes 
her  own  divorce  :  all  of  them  shall  become  divorced. 

2866.  (1465.)  A  man  says  to  his  wife,  <'  Thou  art  divorced  to. 
morrow,  if  thou  wisheth : ''  her  wish  must  be  found  on  the  morrow 
(because  when  the  condition  comes  to  be  realized,  then  the  law  implies,  as  it 
were  by  a  fiction,  that  the  husband  has  now,  on  the  fulfilment  of  the  con- 
dition, again  given  utterance  to  the  same  words  of  divorce,  which  he  had 
pronounced  before). 

And  if  he  says,  ''If  thou  wisheth,  then  thou  art  divorced  to-moiTOw:'' 
she  must  wish  that  very  day  (and  the  divorce  shall  follow  her  wish  and 
the  word  morrow  shall  go  for  nothing)  according  to  the  view  of  Mahomed 
on  whom  be  peace ;  but  Aboo  Yusoof,  on  whom  be  peace,  says,  that  her 
wish  muat  be  found  on  the  morrow  in  both  cases  (whether  the  conditioi^ 
is  stated  after  or  before  in  the  sentence),  and  this  is  in  accordance  with  one 
of  the  traditions  from  Aboo  Eaneefa,  on  whom  be  peace. 

And  Zoofur,  on  whom  be  peace,  says,  that  the  wish  must  be  found  at 
present  in  both  cases  (and  the  divorce  must  follow  the  wish  and  the  word 
*^  morrow"  shall  be  surplusage),  and  such  is  the  view  of  Aboo  Haneefa,  on 
whom  be  peace. 

S366«  (1466.)  When  a  man  says  to  his  wife,  ^*  Adopt  (separation) 
to-morrow,  if  thou  pleaseth,  '*  or  "  Thy  power  (to  divorce  thyself)  is  in  thy 
hands  to-morrow,  if  thou  pleaseth,  '^  or  says,  '^  If  thou  pleaseth  adopt 
(separation)  to-morrow,  '*  or  says,  "  If  thou  pleaseth,  then  thy  power  (to 
divorce  thyself)  is  in  thy  hands  to-morrow :  '^  her  pleasure  must  be  found 
on  the  morrow. 


198  THE  TAGOBS  LAW  LBCTUSBB^  1891-92. 

A867.  (1467.)  So  also  if  he  says,  ''If  thou  piooseth,  ^orce 
thyself  to-morrow  i"  it  is  not  competent  to  her  to  divorce  herself  until  the 
morrow  arrires. 

2368.  (1468.)  So  also  if  the  husband  says,  ''Thou  art  diyorced 
when  thou  shalt  enter  the  house ;  if  thou  pleaseth.''  Aboo  Yusoof ,  on  whom 
be  peace  says— and  this  is  the  view  taken  by  Aboo  Haneefa,  on  whom  be 
peace— -that  the  wish  (of  the  woman  for  her  divorce)  most  be  fonnd  after 
the  entry  (the  expression  means,  ''  On  your  entering  the  house,  you  are 
divorced  if  you  wish ; ''  she  must  first  enter  the  house  and  then  wish 
for  a  divorce). 

8869.  (1469.)  And  if  the  husband  says  to  his  wife,  ''  Thou  art 
divorced  in  the  beginning  of  the  month,  if  thou  pleaseth  :  "  she  most 
wish  at  the  beginning  of  the   month.     (See  paragraph  1465). 

2370.  (1470.)  A  man  says  to  his  wife,  "  Thou  art  divorced  thrice, 
if  thou  pleaseth ;  '^  she  then  says,  *^I  am  divorced:  *'  this  is  void  (because 
her  pleasure  should  be  to  take  three  divorces  or  not  at  all) :  but  if  she 
says,  ^  £  am  divorced  thrice,'^  then  she  shall  become  thrice  divorced. 

2371.  (1471.)  A  man  says  to  his  wife,  '^  Divorce  thyself  ten  times, 
if  thou  pleaseth ; ''  she  then  says,  *'  I  have  divorced  myself  thrice : " 
no  divorce  shall  be  caused. 

And  if  he  says,  *^  Divorce  thyself  once,  if  thou  pleaseth ;  '*  and  she 
says,  '^  YerUy  do  I  wish  three:''  no  divorce  shall  be  caused  according  to 
Aboo  Haneefa,  on  whom  be  peace,  (because  the  condition  was  not  fulfilled 
expressly) ;  but  Aboo  Tusoof,  on  whom  be  peace,  says,  that  one  divorce 
shall  be  caused  (because  three  includes  one). 

2372.  (1472.)  And  if  the  husband  says  to  his  wife,  '^Divorce  thyself 
if  thou  pleaseth,  and  divorce  such  and  such  a  woman  if  thou  pleaseth," 
referring  to  his  other  wife ;  the  woman  sajs,  ^'Such  and  such  a  woman 
is  divorced  and  I  am  divorced,  '^  or  says,  *^  I  am  divorced  and  such  and 
such  a  woman  is  divorced:''  both  the  women  shall  become  divorced: 
it  has  been  so  held  by  Mahomed,  on  whom  be  peace. 

2373.  (1478.)  So  also  if  the  husband  says  to  his  wife,  ''Thou 
art  divorced  once  if  thou  pleaseth  and  thou  art  divorced  thrice  if  thou 
pleaseth ; "  the  woman  says,  "  Verily  have  I  wished  for  once,  verily  have 
I  wished  for  two : "  then  if  she  utters  both  the  sentences  together  (with- 
out any  break  between  them),  she  shall  be  thrice  divorced. 


ON  coNDmoKS  nr  divobc£.  199 

fiST4.  (1474.)  So  also  if  the  husband  sajs,  ''Divoroe  ikyself 
if  thoa  pleaseth  and  emancipate  my  slave  if  thou  pleaseih ;  "  she  then 
commences  with  her  own  divorce  or  with  the  emancipation  of  the  shtve: 
either  coarse  is  permissible. 

It  is  said   (by  Mahomed)  that  when  the  power  to  divorce  and  to 
emancipate  has  been  given  on  behalf  of  (one  and  the  same  person)   the 
hnsband^  both  the  matters  shall  be  considered  as  one  (act)^  so  that  she  shall 
not  lose  the  power  to  exercise  the  authority  in  respect  of  the  other  act  if  she 
commences  with  one  act;  (whereas  if  they  had  not  been  regarded  as  one  act, 
and  if  the  authority  had  been  given  for  the  two  acts  by  two  different  indi- 
viduals, and  if  she  had  exercised  her  authority  with  reference  to  one  act, 
then     she    would    lose    her     authority    with    reference    to    the    other 
act;  because  when  an  authority  is  made  dependent  on  her  pleasure 
by  the    use    of    the  words  "when**  or   "if/'   and  not  by  the  word 
^'whenever/'  then  the  wife  must   show  her  pleasure  and  must  exer-^ 
cise  the   authority  in  the    same  nvujlis    in  which    the    authority    has 
been  given   without  changing  the  mujlis  by  engaging  herself  in  doing 
anything   else;   and,  therefore,   in   case  two  persons  separately  give  her 
authority,  if  she  selects  divorce  to  commence  with,  the  mujlis  changes  as 
soon  as   the  matter  of  divorce  is  over,  and,  therefore,  the  exercise  of 
authority  for  the  manumission  would  not  be  in  the  same  mujlis  in  which 
such  authority  has  been  given;   if  only  one  act  is  done,  the  mujlis  is  the 
same ;  if  two  acts  are  done,  the  mujlis  changes  :    when  the  same  person 
authorises  two  acts,  they  both  constitute  one  act  for  the  sake  of  the  unity 
of  the  mujlis.     When  the  husband  authorizes  his  wife  to  divorce  herself 
this  amounts  to  Tufweest,  or  the  vesting  the  wife  with  authority  to  divorce, 
which  the  husband  had.     It  does   not  amount  to  making  her  his  Vakeel 
for  the  purpose ;  because  the  wife  could  not  be  both  the  vakeel  and  the 
principal.     Tufweez  involves  Tumhek  ;  and  in  Tumleek  acceptance  on  the 
part  of  the  donee  in  the  same  mujlis  is  necessary ;  therefore  in  Tufweez 
it  is  necessary  that  the  wife    should  exercise  the  authority  of  divorcing 
herself  at  the  same  mujlis.    This  is  the  case  when  the  Tufweez  is  in  gen- 
eral terms,  that  is  to  say,  when  the  husband  simply  says, — "  Divorce  thy- 
self,'' in  which  case  the  wife   must  divorce   herself  at  the  same  miylis, 
so  also  if  he  says,  *'  Divorce  thyself  if  or  when  thou  pleaseth."    But  if  he 
says,*-^'  Divorce  thyself  whenever  thou  pleaseth,"  then  it  is  not  necessary 
that  the  wife  should  exeroise  her  authority   at  the  same  may'lis.    See 
Rood-ul-Moohtar,  Volamell,  page  780). 


200  THE  TAOOEK  LAW  LBCTUEES,    1891-92. 

And  if  the  husband  says  to  his  wife,  '^  Divorce  thyself  if  thou 
pleaseth  "  and  another  man  says  to  her,  **  Emancipate  my  slare  if  thou 
pleaseth, ''  and  the  woman  commences  with  the  manumission  of  the  slave, 
before  divorcing  herself,  the  authority  to  divorce  shall  go  out  of  her  hands 
(and  vice  versa) ;  because,  (says  Mahomed)  the  reason  is  this,  that  the  woman 
commenced  (or  occupied  herself  with)  an  act  which  was  other  than 
divorce. 

8375-  (1475.)  A  man  says  to  his  wife,  ^'  Thou  art  divorced,  if  such 
and  such  a  man  does  not  wish  thy  divorce  to-day ; ''  the  so-and-so  says 
(before  the  expiry  of  the  day),  ^' I  do  not  wish'' :  the  woman  shall  not 
become  divorced ;  because  (the  day  not  having  expired)  it  is  (still)  compe* 
tent  to  him  to  express  a  wish  in  (what  remains  of)  the  day. 

2376>  (1476.)  A  man  says  to  his  wife,  '^  Thou  art  divorced  once, 
if  thou  pleaseth : ''  she  says,  ''  I  will,  half  of  one : ''  she  shall  not  become 
divorced. 

2377'  (1477.)  A  man  says  to  his  wife,  '' Divorce  thyself  once 
completely  {bain)  if  thou  pleaseth ;  "  the  woman  divorces  herself  once 
by  way  of  a  reversible  (or  Bujue)  divorce:  no  divorce  shall  be 
caused  according  to  the  view  of  Aboo  Yusoof,  on  whom  be  peace,  and 
that  is  to  be  inferred  {Eyas)  from  the  view  of  Aboo  Haneefa,  on  whom 
be  peace ;  (because  he  held  that  the  exercise  of  authority  most  be  ia 
terms  of  the  authority  given) . 

2378.  (1478.)  And  if  the  husband  says  to  his  wife,  '^Divorce 
thyself  once,  so  th»it  I  may  have  power  to  revoke  it,  if  thou  pleaseth ; " 
she  then  divorces  herself  once  (bain  or)  completely :  one  reversible  (or 
revokable)  divorce  shall  be  caused,  according  to  the  view  of  Aboo  Yusoof, 
on  whom  be  peace ;  because  the  woman's  wish  for  a  {bain  or)  complete 
divorce,  involves  her  wish  for  a  divorce  generally  (or  unqualified,  i.0., 
simple  divorce;  and  an  unqualified  divorce,  that  is,  a  divorce  without  an 
adjective  to  qualify  it,  is  always  reversible) :  and  no  divorce  shall  be 
caused  according  to  inference  {Kya$)  from  the  view  of  Aboo  Haneefa, 
on  whom  be  peace ;  because  the  woman  has  not  exercised  the  wish  (with 
such  quality  annexed  to  it)  as  was  entrusted  to  her ;  and,  therefore, 
the  divorce  shall  not  be  caused;  just  as  if  a  man  says  to  hia  wife, 
<^  Divorce  thyself  once  *'  and  she  divorces  herself  thri<9e:  no  divorce  shall 
be  caused  according  to  the  view  of  Aboo  Haneefa,  on  whom  be  peace, 
(although  three  involves  one.    See  paragraph  1471). 


ON  ooHDrnoKB  or  Diroftcs.  sot 

•870.  {14J79.)  A  man  says  to  another  man,  '^DiVc^ce  my  WiCe^ 
o£  iriistoretr  nature  God  wishes  and  you  wish ;  "  the  addressee  divorces 
the  woman :  the  divorce  Bhall  not  be  caused. 

So  also  if  the  man  says  to  his  wife,  '^  Thou  art  divorced  if  God 
Irishes  and  you  wish : "  no  divorce  shall  be  caused  (even  if  the  woman 
wishes;  because  in  addition  to  her  wish,  God's  wish  must  also  be  found)* 

S380.  (1480.)  A  man  says  to  his  wife,  '<Thou  art  divorced  if 
tluNi  pleaseth,  thou  pleaseth,  thou  pleaseth;^'  the  woman  says,  <'I  have 
wished :  "  no  divorce  shall  be  caused  until  she  says  thrice,.  '^  I  have 
wished,*' 

8881.  <148L)  And  if  he  says  to  his  wife,  ^' Thou  art  divorced^ 
whenever  (Muta)  tiiou  pleaseth; "  she  says  in  the  same  mujlis  or  after- 
wards, '^  I  do  not  wish :  "  her  authority  shall  not  go  out  of  her  hands 
(because  she  might  wish  again,  the  authority  being  general). 

So  also  if  he  says,  ''Thou  art  divorced  whenever  {Muta)  thou 
refxueth  (to  divorce  thyself) ; "  the  woman  says,  "  I  do  not  refuse  "  (the 
force  of  the  condition  shall  still  continue  and  the  divorce  shall  be  caused 
whenever  she  refuses) . 

2382i  (1482.)  And  if  the  husband  says  to  his  wife,  ''Divorce 
thyself  thrice,  if  thou  pleaseth ; "  she  says,  "I  am  divorced :''  no  divorce 
shall  be  caused  (because  she  has  not  wished  three  divorces). 

S888.  (1488.)  And  if  he  says  "  Divorce  thyself,  if  thou  pleaseth; '' 
the  woman  says,  "  Verily  do  I  wish  to  divorce  myself :  *'  this  is  void 
(and  the  divorce  shall  not  be  caused ;  because  she  has  merely  expressed  a 
wish  to  divorce  herself  in  future,  whereas  she  ought  to  have  divorced 
herself  then  and  there  in  the  same  mujlis,  and  she  cannot  exercise  the 
authority  of  divorcing  herself  afterwards,  the  conditional  sense  having  been 
expressed  by  the  word  "  if  "  and  not  by  the  word  "whenever'*  or  muta). 

S88i.  (1484.)  A  man  says  to  his  wife,  "  Divorce  thyself,  when  (tsa) 
thou  pleaseth  ;*'  the  man  then  becomes  insane  without  any  lucid  interval ; 
the  woman  then  divorces  herself:  Mahomed,  on  whom  be  peace,  says,  that 
all  mattersin  which  the  husband  has  power  of  revoking  his  words,  become 
void  by  reason  of  his  insanity  (and  in  this  case  his  expression  amounts 
to  giving  authority  to  the  wife  on  his  behalf  to  divorce  herself  by  way 
of  Tufweez — See  para.  1474— In  case  of  Tumleek  the  owner  has  authority 
to  revoke  before  acceptance  by  the  donee.  Therefore,  the  authority  in  ques- 
26 


202  THE    TAGOBE  LAW  LECTUBESj   1891'92. 

tiott  becomes  yoid  by  reason  of  his  insanity;  because  the  said  authority 
was  revokable) ;  and  matters,  in  which  the  man  has  no  power  of  reToldng^ 
his  words,  are  not  rendered  void  by  insanity  [e.g.,  ^'  If  thou   enter  the 
house  thou  art  divorced"). 

2385.  (1485.)  A  man  says  to  his  wife,  '^  Thou  art  divorced  if 
thou  pleaseth  one  (divorce),  and  if  thou  pleaseth  two ; "  the  woman  says, 
^'I  have  verily  wished  thrice:"  she  shall  become  divorced  thrice 
(because  the  effect  of  and  was  to  give  her  authority  to  give  three 
divorces). 

2386.  (1486.)  And  if  he  says  to  his  wife,  ^*  Thou  art  divorced  thrice 
and  such  and  such  a  woman  once,  if  thou  pleaseth ; "  the  wife  wishes  one 
divorce  to  the  such  and  such  a  woman ;  the  such  and  such  a  woman 
shall  become  divorced  once,  and  her  authority  to  divorce  herself  thrice 
shall  become  void  (that  is,  '^  If  thou  pleaseth  "  being  used  after  both,  it 
is  not  necessary  that  the  wife  should  express  the  two  wishes  at  once  in 
order  to  give  effect  to  the  expression.  She  might  express  her  wish  in  fa- 
vour of  the  divorce  of  both,  and  her  wish  shall  have  effect  given  to  it.  She 
might  wish  the  divorce  of  one,  and  her  wish  shall,  in  this  case,  also  have 
effect  given  to  it,  but  in  this  case  she  cannot :  after  having  wished  the 
divorce  of  one,  wish  the  divorce  of  the  other.    See  paragraph  1474). 

2887-  (1487.)  A  man  says  to  his  wife,  ^^  If  thou  wisheth  and  if 
thou  dost  not  wish,  thou  art  divorced : "  this  case  presents  itself  in 
various  forms. 

One  of  them  is,  when  the  man  makes  mention  of  the  wish  first  and 
says,  '^  If  thou  wisheth  and  if  thou  dost  not  wish,  thou  art  divorced.^' 

Or  (secondly)  he  might  mention  the  divorce  first,  and  say,  **  Thou 
art  divorced,  if  thou  wisheth  and  if  thou  dost  not  wish. " 

Or  (thirdly)  he  might  mention  the  divorce  in  the  middle  of  the 
speech  and  say,  ^^  If  thou  wisheth  thou  art  divorced  and  if  thou  dost  not 
•wish." 

Each  of  these  three  forms  subdivides  itself  into  two  classes,  one  of 
which  is,  when  the  man  repeats  the  conditional  particle  and  says,  *^If 
{In)  thou  wisheth  and  if  thou  dost  not  wish,  thou  art  divorced :  or 
(secondly)  he  does  not  repeat  the  conditional  particle  but  uses  the  con* 
junction  ("and"  only)  and  says,  "If  thou  wisheth  and  dost  not  wish, 
thou  art  divorced. " 


ON   CONDITIONS    IN  DIVOBCS.  203 

And  words  (by  which  the  husband  c&n  express  the  condition  on 
which  the  divorce  depends)  are  (of)  three  (kinds) :  wish  (or  pleasure  of  the 
woman),  and  (her)  refusal  and  (her)  abomination  (or  abhorrence  on  her 
part). 

Then  if  he  does  not  repeat  the  conditional  particle  but  uses  (only) 
the  conjunction,  the  divorce  shall  not  be  caused  in  any  of  the  three  caseSi 
whether  the  divorce  is  mentioned  before  the  wish,  or  is  mentioned  after, 
or  is  mentioned  in  the  middle ;  because  in  the  event  of  the  conjunction 
(and)  being  used  (and  the  conditional  particle  not  being  repeated  as  when 
he  says,  "If  thou  wisheth  and  dost  not  wish,  thou  art  divorced'*  or  "Thou 
art  divorced,  if  thou  wisheth  and  dost  not  wish,"  or  "If  thou  wisheth,  thou 
art  divorced  and  dost  not  wish,")  the  divorce  shall  relate  both  to  the  wish 
and  the  absence  of  the  wish ;  just  as  if  a  man  says,  "  If  thou  eateth  and 
drinketh,  thou  art  divorced ; "  in  which  case  the  divorce  has  relation  to 
both  (the  acts,  so  that  if  she  only  drinks  or  only  eats  no  divorce  shall  be 
caused);  but  the  combination  of  wish  and  its  absence  cannot  be  conceived 
(at  one  and  the  same  time),  and,  therefore,  no  divorce  shall  ever  be 
caused. 

And  if  the  man  repeats  the  conditional  particle  and  uses  the  words  indi« 
cative  of  wish  before  (or  antecedently)  saying,  "If  thou  wisheth  and  if  thou 
dost  not  wish,  then  thou  art  divorced : "  the  divorce  shall  never  be  caused ; 
because^  in  the  event  of  the  condition  being  mentioned  before  (or  antece* 
dently)^  the  divorce  appertains  both  to  the  wish  and  the  absence  of  wish; 
just  aa  if  a  man  says,  "If  thou  shalt  eat  and  if  thou  shalt  drink,  then  thou 
art  divorced, "  in  which  case,  the  divorce  is  dependent  on  both  the 
events.     Therefore,  the  oath  (of  divorce)  in  this  case  is  not  valid. 

So  also  (divorce  shall  not  be  caused)  if  he  says,  "  If  thou  wisheth 
and  if  thou  refuseth  then  thou  art  divorced, ''  or  if  he  mentions  the  word 
"  Abhoreth  "  in  the  place  of  "  refuseth. " 

And  if  he  mentions  the  divorce  before  the  wish,  saying,  "  Thou  art 
divorced,  if  thou  wisheth  and  if  thou  dost  not  wish;"  and  the  woman  says 
in  (her  same)  Mujlia,  "  I  have  wished :  "  she  shall  become  divorced,  on 
account  of  the  existence  of  the  wish :  so  also  if  she  gets  up  at  the  Mujlis, 
before  saying  anything,  she  shall  become  divorced;  because  in  the 
event  of  the  divorce  being  mentioned  first  (or  antecedently),  the  divorce 
appertains  to  either  of  the  two  events  (and  not  to  both  together) ;  just 
as  if  a  man  says,  "Thou  art  divorced  if  thou  eateth  and  if  thou  drinketh." 
Therefore  when  (in  the  case  of  the  divorce  under  consideration)  she  says^ 


204  THE   TAQOSS     LAW  LSCTUB^,   1891-92. 

*y  I  h^ye  wishedj  '^  she  shall  become  divorced  oa  aacooat  of  the^  ezi^nce 
q£  tHe  wisli :  so  also  if  she  gets  up  at  her  Mv^jU^  (or  meeting)  be^^T^ 
aajriog  anything,  she  shall  become  divorced  on  account  of  absenoi^  (4 
wish  (because  getting  up  at  the  meeting  is  indicative  of  absence  of  wi^bi 
90  ^so  if  she  does  not  express  a  wish  or  does  not  stand  up  iMid  the  Jfiy{u 
changes,  then  also  the  absence  of  wish  shall  be  found). 

And  if  the  man  mentions  the  divorce  in  the  middle  and  says^  ^  It 
thou  wisheth,  then  tiiou  art  divorced,  and  if  thou  dost  not  wish;"  then 
this  is  tantamount  to  using  ^<  divorce ''  before  both  the  conditional  events, 
for  reasons  to  be  found  in  the  Jamai-ool  Kubeer. 

And  if  the  man  uses  the  word  ^^  refuseth/'  and  meBtions  <' divorce" 
first,  saying,  '^  Thou  art  divorced,  if  thou  wisheth  and  if  thou  refuseth," 
and  the  woman  says,  ^^  I  have  wished  "  or  says,  <'  I  have  refused : "  tlid 
divorce  shall  be  caused ;  because  either  of  the  two  events  constitutes  the 
condition  \  and  if  she  gets  up  at  the  meeting  before  saying  anything! 
the  divorce  shall  not  be  caused;  because  one  of  the  two  events  (t.0.,  widior 
refusal)  constitutes  the  condition,  and  neither  of  them  is  found  here.  That 
the  wish  is  found  wanting  (when  she  does  not  say  anything  but  gets  ip) 
is  apparent ;  because  ordinarily  getting  up  is  indicative  of  absence  of 
wish ;  and  so  also  refusal  is  found  wanting  (when  ^he  merely  gets  up) 
because  refusal  is  an  act,  and  an  act  is  known  by  the  doing  of  it  (Jidd) 
contrary  to  the  case  of  absence  of  wish  (in  which  case  divorce  is  caused 
bj  her  getting  up,  because  standing  up  denotes  absence  of  wish).  And 
botii  wish  and  refusal  are  expressed  by  word  of  mouth,  and  not  by  an  act 
of  the  mind :  and  abhorrence  is  tantamount  to  refusal. 

And  if  the  man  mentions  divorce  in  the  middle,  and  says,  "  If  thou 
wisheth  then  thou  art  divorced,  and  if  thou  refuseth  ;'*  then  this  is  tanta- 
mount to  his  mentioning  divorce  before  (or  antecedently). 

Mohamed,  on  whom  be  peace,  says,  that  all  this  is  when  the  man  has 
no  (particular)  intention  for  anything  (that  is,  when  he  has  no  intention 
of  causing  divorce  immediately  or  of  making  it  conditional),  but  if  the 
man  intends  the  causing  of  immediate  divorce,  and  not  making  the  same 
conditional,  the  divorce  shall  be  caused  in  all  cases,  whether  the  man 
mentions  the  divorce  first,  or  mentions  it  last,  or  mentions  it  in  th&  middle ; 
because  when  the  man  intends  the  immediate  causing  of  a  divorce,  he  in 
effect  says,  "  Thou  art  divorced,  whether  thou  wisheth  or  dost  not  wish  ** 
(aud  in  this  view  the  conditional  meaning  of  the  word  **  if  "  is  avoided), 
or  says,  <^  Thou  art  divorced,  whether  thou  wisheth  or  thou  refuseth* '' 


ON  CONDITIOHfl  VL  DITOBCK.  205 

Ami  i£  ika  huabuid  (iDrtead  q£  9Bj'mg,  ^Tlion  art  divoroec^  if 
thou  wisheth  and  if  thou  refuseth)  says  to  his  wife,  '^Thou  art 
diT<^eed  when  {Mufa^  thou  wisheth  and  thou  refuseib^'^  theatthis 
(ia  not  conjELoed  to  the  same  meeting^  but)  relates  to  the  same  meeting 
or  to  aiipther  meeting. (that  is^  it  is  not  necessary  that  her  wish  or  refusal 
should  be  expressed  at  the  same  meeting  as  in  the  case  when  the  con- 
dition is  expressed  bj  ''  if ; "  with  the  word  ^'  Muta^'^  the  wish  or  refusal 
might  be  expressed  at  another  meeting  and  whenever  expressed,  the  clause, 
would  be  operative) :  and  she  shall  not  be  divorced  until  she  sa;a»  **  I 
have  wished "  or  <<  I  have  refused ; ''  contrary  to  the  ca^e  where  tha 
man  says,  ''Thou  art  divorced,  if  thou  wisheth  and  thoare£useth»'' 
because  this  (latter)  case  is  confined  to  the  same  meeting  (that  is»  in  this 
case  the  woman  must  express  her  wish  or  refusal  at  the  same  meeting) ;. 
80  that  (in  the  case  of  ''  if '')  if  she  uses  words  indicating  either  of  the 
two  conditions  (of  wish  or  refusal),  her  authority  ceases  (and  one  divorce 
shall  be  oaaeed  if  she  says  '^I  have  wished,''  and  her  right  to  divorce  herself 
oeues  there,  and  she  cannot  cause  another  divorce  by  saying  ''I  refuse  :''> 
but  the  expression  **when**  {Muta  or  '^whenever,'*  or  "at  any  time  '*)  is  used 
for  time,  and  therefore  her  authority  shall  not  cease  if  she  uses  one  of  the 
expressions  on  which  the  condition  depends  (those  expressions  being  <*I 
wish"  or  '*  I  refuse; ''^  but  on  the  other  hand,  having  caused  one  divorce  on 
herself  by  the  use  of  one  expression,  she  can  cause  another  by  again  using- 
tbesame  expression  or  the  other  expression;  inciter  words,  by  the  use  of 
this  word  Muta,  the  authority  is  capable  of  repetition).  Dost  thou  not 
see  (an  argament  to  shew  that  by  the  use  of  the  expression  ''  Muta/^  the 
authority  ia  not  confined  to  the  same  meeting)  that  if  the  husband  says 
to  his  wife,  "Thou  art  divorced,  at  any  time  (if»to  or  whenever)  thoir 
wisheth,"  and  the  woman  says  at  the  same  meeting  or.  af terwards,  <'  I 
do  not  wish/'  her  authority  does  not  go  out  of  her  hands,,  and  it  ia 
competent  to  her  to  ''  wish  "   the  divorce  after  this. 

So  also  if  he  says,  **  Whenever  {Muta)  thou  refuseth  (this  is  also 
not  confined  to  the  same  meeting). 

2S8&     (1488.)    And  if  the  husband  makes  the  divorce  dependent 
on  the  vriah  of  God  saying,  "  Thou  art  divorced,  if  it  pleaseth  God,"  or  - 
says,  «if  God  likes  it,"  or  ''if  God  consents,"  or  "if  God  intends," 
or  "if   God  haa  destined, "   divorce  shall  not  be  caused    (because  ncH 
body  knows  whether  God  wishes  or  not). 

So  also  if  he  says,  "  Thou  art  divorced^  what  God  pleaseth  ^'  ot 


206  THE   TAGOBE  LAW  LECTCBES^    1891-92. 

says,  ^^  Thou  art  divorced  only  if  it  pleaseth  God/'  or  says,  <<  If  God 
does  not  wish.  '^ 

2389.  (1489.)  And  if  he  says,  '^Thon  art  diyorced  howsoever  [Kaifa 
— whether  reversible  or  irrevokable)  God  wisheth:'*  one  reversible  divorce 
shall  be  caused  (because  the  fact  of  divorce  is  not  dependent  on  God 
but  only  its  quality ;  and  in  the  absence  of  specification,  the  Sfcem  says 
that  by  the  use  of  the  expression,  "  Thou  art  divorced  **  one  reversible 
divorce  shall  be  caused,  and,  therefore,  that  must  be  God's  wish). 

So  also  (one  reversible  divorce  shall  be  caused)  if  the  husband 
says,  '<Thou  art  divorced,  although  God  wisheth  (i.e.,  whether  God 
wishes  or  not).'* 

2390.  (1490.)  And  if  the  husband  says,  ''  If  it  pleaseth  God,  then 
thou  art  divorced :"  the  woman  shall  not  become  divorced,  according  to 
all  (that  is,  Aboo  Huneefa,  Yusoof  and  Mohamed.     See  paragraph  1488). 

2391.  (1491.)  And  if  he  says,  ''If  it  pleaseth  God,  thou  art  divorced 
(omitting  the  word  "then"  before  ''thou:")  the  woman  shall  not 
become  divorced,  according  to  Aboo  Yusoof^  on  whom  be  peace ;  but  she 
becomes  divorced  according  to  Mohamed,  on  whom  be  peace;  (becanse 
the  latter  says  that  when  the  word  connecting  one  part  of  the  sentence 
with  the  'other  is  wanting,  then  the  last  part  must  be  treated  as  an 
independent  sentence).  But  the  Fatwa  is  according  to  the  view  of 
Aboo  Yusoof,  on  whom  be  peace;  (because  in  the  effectual  clause  following 
the  conjunction  "  if, "  the  word  "  then"  is  not  always  used). 

So  also  if  he  says,  "If  it  pleaseth  God  and  thou  art  divorced; 
(according  to  Aboo  Yusoof  no  divorce  shall  be  caused,  but  according  to 
Mohamed,  it  shall  be  caused). 

2892.  (1492.)  Aboo  Yusoof  and  Mohamed,  on  whom  be  peace,  have 
differed  whether — in  the  event  of  the  divorce  clause  being  joined  to  the  ex- 
ception (vur.,  the  words,  "If  it  pleaseth  God")  under  circumstances  where 
the  exception  is  valid  (or  effectual  and  not  surplusage,  it  being  surplusage 
if  for  instance  it  is  used  after  a  break  and  some  time  after  the  use  of  the 
expression,  "Thou  art  divorced") — the  whole  put  together  (that 
is,  the  whole  of  the  expression,  "  Thou  art  divorced  if  it  pleaseth  God  " 
or  "If  it  pleaseth  God  then  thou  art  divorced  ")  constitutes  an  oath  (which 
the  expression  undoubtedly  would  have  been  if  instead  of  the  conditional 
clause  being  the  wish  of  God,  any  other  conditional  clause  had  been  used): 
Aboo  Yusoof,  on  whom  be  peace,  says,  that  the  same  amounts  to  an  oath. 


OK  CONDITIONS  IN   DIVOBCB.  207 

80  that  if  a  man  sajs  to  his  wife,  ''  If  I  shall  take  oath  bj  thy  divorce, 
then  my  slave  is  free  "  and  he  then  says  to  her,  "  Thou  art  divorced^  if 
it  pleaseth  God"  and  he  says  so  in  a  way  so  that  the  exception  (that  is, 
the  expression  <^if  it  pleaseth  G-od")  is  valid  according  to  both  Aboo 
Tnsoof  and  Mahomed,  then  the  man  shall  commit  a  breach  of  his 
oath,  according  to  Aboo  Yasoof,  on  whom  be  peace,  bat  Mahomed, 
on  whom  be  peace,  says,  that  (the  expression  ^^  Then  art  divorced  if  it 
pleaseth  God^')  does  not  amount  to  an  oath,  and  the  man  shall  not 
commit  a  breach  of  his  oath  (regardiog  the  freedom  of  the   slave). 

And  regard  being  had  to  the  same  difference  of  opinion,  if  the 
man  says  to  his  wife,  ^^Thou  art  divorced  if  thou  enter  the  house 
and  my  slave  is  free  if  thou  speak  to  so  and  so  if  it  pleaseth  God ; ''  (the 
meaning  of  it  being  that  ^*  Thou  shalt  be  divorced  in  the  event  of  thy  en- 
tering the  house,  if  it  pleaseth  God,  and  my  slave  shall  be  free  in  the  event 
(of  thy  speaking  to  the  so  and  so,  if  it  pleaseth  God; '')  then,  according 
to  the  view  of  Mahomed,  the  exception  shall  relate  both  to  the  divorce  and 
the  manumission  (and  not  only  to  the  manumission,  to  which  it  adjoins),  and 
according  to  the  view  of  Aboo  Yusoof,  on  whom  be  peace,  the  exception 
shall  relate  (only)  to  the  second  oath  (and  shall  not  apply  to  both)  just 
as  if  instead  of  using  the  exception,  the  man  had  used  a  condition. 
(That  is  to  say,  an  oath  or  Yameen  must  always  follow  the  preceding  clause 
without  intermission ;  and  according  to  Mahomed's  view  an  exception  is 
not  an  oath,  but  is  an  avoidance  of  what  precedes  ;  therefore,  not  being 
an  oath,  the  rule,  which  requires  absence  of  intermission,  does  not  apply^ 
80  that  the  exception  shall  relate  to  both  the  clauses;  but  Aboo  Yusoof 
says  that  the  exception  being  an  oath,  its  operation  shall  be  confined  to 
the  clause  to  which  it  is  joined  without  intermission  and  break). 

2393-  (1493.)  And  if  the  man  says  to  his  wife,  ^^Thou  art  divorced, 
with  the  intention  of  God"  or  <«  with  God's  love"  or  *^ with  God's 
pleasure"  or  *'with  his  consent"  (that  is,  if  God  intends  or  loves 
divorce,  or  is  pleased  with  or  consents  to  divorce);  the  woman  shall  not 
become  divorced. 

So  also  if  instead  of  "  with  (bat)  "  he  uses  the  word  **  in  (or  fee) " 
and  says,  **  Thou  art  divorced  in  the  will  of  God  "  or  "  in  the  intention 
of  God  "  or  "  in  the  command  of  God  "  or  "  in  the  mandate  of  God  " 
or  "in  the  decree  of  God"  or  "in  the  power  of  God"  or  "in  the 
destination  by  God, "  the  woman  shall  not  be  divorced  (see  paragraph 
1395  as  regards  the  use  of  the  word  in  or  "/ee.") 


208  THs  TMCM  um  Ltcvoms^  1991-92. 

MM.  (1404.)  And  if  be  says,  «<Thoii  «rt  divorced  in  ikm  kuoiviedge 
of  Gk>d'*  or  ^Mn  his  knowings ''  the  woman  shall  become  diTOfMl 
(because  the  expression  means  ^*  If  God  knows;  ^'  but  God  knows  ererj 
thing) ;  and  if  he  uses  the  particle  'Ham*'  (or  for)  saying,  ^Thon  art  div^oroed 
for  the  wish  of  God'*  or  "for  his  love  (of  dirorce)'^  or  "for  tiie 
decree  oi  God''  or  snch  like  expressions,  the  woman  shall  become 
^mrced,  (because  there  is  no  ccmdition  here.    See  paragraph  1895). 

And  if  he  says,  ^'Tbon  art  divorced  with  the  aid  of  God''  or 
<«  with  the  command  of  God  "  or  "  with  the  decree  of  God  "  or  ^'  with 
the  knowledge  of  God''  or  "with  the  power  of  God,''  the  woman 
shall  become  divorced. 

2395.  (1495.)  And  one  of  the  conditions  for  the  validity  of  the 
exception  (that  is,  to  make  it  operative  and  effectual)  according  to  our 
Mashaikhs,  on  whom  be  peace,  is,  that  the  exception  should  be  capable  of 
being  heard  (that  is,  it  must  be  audibly  uttered)  so  that  if  a  human  being 
should  take  his  ear  close  to  the  speaker's  mouth,  he  may  hear  it:  and  it 
is  valid  for  the  deaf  to  use  the  exception. 

And  another  condition  relating  to  the  validity  of  the  exception  is, 
that  the  same  should  be  joined  (to  the  preceding  clause) :  and  the 
exception  does  not  become  disjoined  (interrupted)  by  the  taking  of  breath, 
(See  paragraph  1524  post  and  Vol.  I,  Futawai  Alumgeroe,  page  6S6)  or 
by  sneezing,  and  not  by  belching  (See  paragraph  1524  post) :  and  (use  of 
words)  addressing  the  object  (Nida)  between  the  exception  and  what  has 
preceded  it,  does  not  amount  to  an  interruption  (so  as  to  invalidate  the 
exception) ;  so  that  if  a  man  says,  *'  Thou  art  divorced.  Oh  Oomra,  if  it 
pleaseth  God, "  the  exception  is  valid ;  so  also  if  he  says,  **  Thou  art 
divorced.  Oh  adulteress,  if  it  pleaseth  God,"  the  exception  is  correct; 
so  also  if  he  says,  '^  Thou  art  divorced  thrice.  Oh  such  and  such  a  woman, 
excepting  once,"  the  exception  of  one  divorce  shall  be  valid,  and  two 
divorces  shall  be  caused :  and  if  he  says,  <<  Thou  art  divorced  so  that 
thy  heart  might  gladden,  if  it  pleaseth  God, "  these  words  (which  are 
Lugho  or  unnecessary)  shall  be  held  to  have  caused  a  break,  and,  therefore^ 
the  divorce  shall  be  caused,  and  the  exception  shall  not  be  valid  (or 
operative  and  effectual). 

S896.  (1496.)  A  man  says  to  his  wife,  '^  Thou  art  divorced,  if  it 
pleaseth  God  thou  art  divorced : "  according  to  us  the  exception  shall 
relate  to  the  first  clause,  and  one  divorce  shall  be  caused  (immediately)  as 
the  effect  of  the  second  clause ;  but  according  to  the  view  of  Zoofar,  on 


dw  coNDinoNH  nr  ditorci.  209 

Wfernn  be  pMoe,  the  exception  sball  relate  to  both  the  elanseB,  aa4  b9 
diTdiree  shall  be  cansecl. 

SS97.  (1497.)  And  if  the  man  says,  '^  Thou  art  divorced  thrice  if 
itpleaseth  God  thou  art  divorced:"  the  woman  shall  become  once  divorced 
immediately. 

2398.  (1493.)  And  if  the  man  says,  ''Thou  art  divorced  once  if 
it  pleaseth  God  and  thou  art  divorced  twice  if  it  d6es  not  please  God :  ^' 
the  learned  lawyers  have  said  that  no  divorce  shall  be  caused.  And  t'hiii 
answer  is  obvious  according  to  Mahomed,  on  whom  be  peace ;  because 
according  to  him,  the  exception  avoids  the  result  whether  it  is  used 
before  or  after  (See  paragraph  1191);  and  the  mian's  expression,  ^If 
it  pleaseth  God  "  and  his  expression,  *^  If  it  does  not  please  God.''  are 
each  of  them  exceptions,  and,  therefore,  each  expression  of  divorce  is 
rendered  void.    (See  paragraph  1492). 

But  according  to  the  view  of  Aboo  Yusoof,  on  whom  be  peace, 
exception  is  a  condition,  and,  therefore,  the  first  (expression  of)  divorce 
shall  depend  on  the  will  of  God,  and  the  second  (expression  of)  divorce 
shall  depend  on  the  absence  of  God's  pleasure;  and  the  pleasure  of 
God  is  hidden  from  us,  and  we  cannot  be  aware  of  its  existence  until 
it  is  made  known,  and  therefore  divorce  shall  not  be  held  to  have 
taken  place;  and  because,  on  account  of  the  second  expression,  the  divorce 
is  made  dependent  on  the  absence  of  God's  pleasure,  therefore,  if  we  hold 
that  thatdivorce  has  taken  place  (as  the  result  of  the  second  clause)  then  (it 
follows  that)  God's  pleasure  has  become  known,  (because  nothing  in  the 
world  takes  place  except  by  the  will  of  God,  and  therefore  the  divorce, 
which  we  have  assumed  to  have  taken  place  as  the  result  of  the  second 
expression,  must  be  on  account  of  the  will  of  God)  and  therefore  the  second 
expression  (itself)  becomes  nullified  (because  it  deals  with  the  absence 
of  the  will  of  God,  and  here  we  have  got  divorce  as  the  result  of  the  will 
of  God)  whilst  at  the  same  time  operation  has  been  given  to  it  (on  the 
assumption  that  the  divorce  has  taken  place);  and  therefore  the  divorce 
shaH  not  be  valid. 

S389.  (1499.)  And  if  a  man  says  to  his  wife,  '^  Thou  art  divorced  this 
day  once,  if  it  pleaseth  God,  and  if  it  doth  not  please  God  (to-day)  then 
two  divorces,"  and  the  day  expires,  and  the  woman  is  not  divorced  (that  is, 
the  husband  does  not  give  a  divorce,  and  she  does  not  become  divorced  as 
a  consequence  of  the  first  clause  on  account  of  the  exception;  thus  shewing 
that  it  has  not  pleased  God  that  she  should  become  divorced),  Aboo 
27 


210  THB  TAGOBB  LAW  LECTXIEES,   1891-92. 

Tofloof ,  on  whom  be  peace,  says,  that  two  divoroes  shall  be  caused;  because 
if  it  had  pleased  God  that  one  divorce  should  be  caused,  God  would 
have  necessarily  caused  to  be  pronounced  from  the  man's  lips  one  divorce 
on  that  day,  and,  therefore,  when  the  day  expired,  and  she  did  not  become 
divorced,  God's  pleasure  became  non-existent ;  but  if  the  man  divorces 
her  once  that  day,  then  more  than  that  shall  not  be  caused. 

9100.  (1500.)  And  if  the  man  says,  '' Thou  art  divorced  thrice  and 
thrice,  if  it  pleaseth  God :"  then  according  to  the  view  of  Aboo  Haneefa, 
on  whom  be  peace,  the  woman  shall  become  thrice  divorced  (as  the  result 
of  the  first  portion  of  the  expression,  which  is  not  made  dependent  on  the 
will  of  God,  there  being  an  interruption  or  break). 

SlOl.*  (1601.)  So  also  if  a  man  says  to  his  slave,  '^Thou  art  free 
and  free, if  it  pleaseth  God:"  the  slave  shall  become  free  according  to 
Aboo  Haneefa  (as  the  result  of  the  first  portion  of  the  expression  which 
is  not  made  dependent  on  the  will  of  God) ;  because  the  second  asseve* 
ration  is  a  surplusage  (because  the  slave  could  only  be  free  once  for  all), 
and,  therefore,  it  shall  be  held  to  have  caused  a  break  between  the  ex- 
ception, and  what  precedes  it :  and  his  two  companions  have  said  that 
the  exception  is  valid  and  no  divorce  or  freedom  shall  be  caused. 

And  as  the  result  of  this  difference,  if  the  man  says,  ^' Thou 'art 
divorced  thrice  and  once  if  it  pleaseth  God:"  then  according  to  Aboo 
Haneefa,  on  whom  be  peace,  three  divorces  shall  be  caused  (because  the 
mention  of  one  after  three  is  Lugho  or  surplusage,  as  three  inclades  one). 

And  if  the  man  says,  ''  Thou  art  divorced  once  and  thrice  if  it 
pleaseth  God,  the  exception  shall  be  valid,  according  to  them  all  (because 
the  mention  of  three  after  one  is  not  Lugio  or  surplusage,  and,  therefore, 
the  exception  shall  be  valid,  and  the  divorce  shall  not  be  caused). 

2402.  (1502.)  A  man  divorces  his  wife  thrice ;  then  two  just  men 
depose  before  him,  '<  You  verily  used  the  exception  {IsHana,  or  the  words 
4f  it  pleaseth  God ')  adjoined  to  the  words  of  divorce;"  and  the  man 
does  not  remember  this  circumstance :  the  learned  lawyers  have  said 
that  if  the  man,  when  in  a  state  of  anger,  gets  into  such  a  condition 
that,  what  he  does  not  intend  escapes  his  mouth,  and  that  he  does 
not  remember  what  escapes  his  mouth,  then  it  is  permissible  to  him 
to  believe  the  statement  of  the  witnesses,  otherwise  not. 

2403.  (1503.)  When  a  woman  claims  a  divorce  (that  is,  lays  a  claim 
before  the  Kazee  that  her  husband  had  divorced  her) ;  and  the  husband 


Oi(  CONDITIONS  IN    DIVOBCE.  211 

sajs  (to  the  Kazee),  *'  I  said  to  the  woman,  '  thou  art  diyorced,  if  it 
pleaseth  God ; '  "  and  the  woman  falsifies  him  regarding  his  allegation  o{ 
baring  used  the  Isiisna  (or  exception) :  it  is  said  in  the  Zahir-i-Bawajet, 
that  the  word  to  be  accepted  is  that  of  the  hxisband;  but,  according  to 
some  of  the  modern  writers,  the  word  of  the  husband  shall  not  be  ac« 
cepted  unless  supported  by  proof  by  witnesses  Q)yywn(i)\  but  if  the 
husband  says  to  the  Elazee  that  what  he  did  was  that  he  said  ^'  I 
divorced  thee  yesterday,  and  I  said  if  it  pleaseth  God,"  then,  according  to 
the  Zahir-i-Buwayet,  the  word  to  be  accepted  shall  be  that  of  the 
husband. 

And  it  is  stated  in  the  Nuwadir,  that  there  is  a  difference  between 
Aboo  Yusoof  and  Mahomed,  on  whom  be  peace :  the  author  of  the 
Nuwadir  then  goes  on  to  say  that,  according  to  the  view  of  Aboo  Yusoof, 
on  whom  be  peace,  the  word  of  the  husband  shall  be  accepted,  and  the 
divorce  shall  not  be  caused ;  but  that  according  to  the  view  of  Mahomed, 
on  whom  be  peace,  the  divorce  shall  be  caused  and  the  word  of  the  husband 
shall  not  be  believed;  and  this  (latter)  view  is  that  which  is  accepted^ 
and  the  Futwa  is  given  accordingly  in  order  to  be  on  the  safe  side  (and 
to  keep  to  the  side  of  caution)  in  the  matter  of  a  woman's  person  in 
these  times  when  people  are  prone  to  mischief. 

2104.  (1504.)  And  if  the  husband  has  divorced  his  wife  in  the 
form  of  a  Khoola  (without  the  husband  at  the  time  of  the  divorce  making 
any  mention  of  the  exchange  or  consideration  for  the  Khoola) ;  and  the 
husband  then  claims  to  have  used  the  exception  in  the  Khoola :  then, 
according  to  the  Zahir-i-Buwayet,  this,  (that  is,  Khoola)  and  divorce  (See 
paragraph  1503)  are  equal  (in  respect  of  the  effect  of  the  use  of  the 
exception)  ;  but  if  the  husband  mentions  the  exchange  or  consideration 
in  the  Khoola  saying,  '^  I  have  given  thee  thy  Khoola  in  consideration  of 
so  much,  and  thou  hast  accepted;''  the  husband  then  claims  to 
have  used  the  exception  :  Isam  and  others  have  said  that  the  man  shall 
not  be  believed  by  the  Eazee  when  he  accepts  property  (or  reward)  for 
the  Khoola :  and  by  " accepts  property  (or  reward)  for  the  Khoola" 
they  mean  the  mention  of  consideration  in  the  Khoola  and  not  really 
receiving  the  consideration ;  and  just  as  the  Kazee  will  not  believe  the 
husband  in  what  we  have  stated  {mss.,  that  he  used  the  exception)  the 
woman  also  will  not  believe  him  (and  will  not  live  with  him). 

And  if  witnesses  depose  to  the  Khoola  or  divorce  (having  been  given 
by  the  husband)  without  the  exception :  it  is  said  in  the  Syur-ool  Eabeer 


212  THE   TAGOBB   LA.W  LECTUBBS,    1891-92. 

(fli^t  tUk  qaestion,  wbetber  the  exception  was  used  or  not  shall  liate  to 
lie  trisated  in  the  following  way)  that  when  the  husband  and  wife  diSeri 
the  man  sayihg,  ^^I  said  Messiah  is  son  of  God  as  the  Christians  sb; '^ 
{#lben  the  man  shall  not  become  a  Kafir  and  the  marriage  shfiUnotbe 
annnlled) ;  but  the  woman,  on  the  other  hand,  says  thou  didst  not  say  ^'as 
the  Christians  say'^  (the  effect  of  which  is  to  make  the  maastaKafii 
when  the  marriage  shall  be  annulled) :  the  word  to  be  accepted  shall  be 
tlkat  Of  the  husband,  on  his  oath :  (so  also  in  the  case  of  the  dispijite 
regarding  the  use  of  the  exception,  the  husband's  words  shfdl  be 
believed). 

And  if  the  woman  produces  witnesses,  who  say,  **  We  did  hear  the 
bnsband  say  '  Messiah  is  the  son  of  God  '  and  that  the  husband  did  not 
pay  anything  else ; ''  whilst  the  husband  says,  ^<  I  said  '  as  the  Christians 
say, '  but  they  did  not  hear : ''  the  Eazee  shall  verily  give  effect  to  the 
avidence  of  the  witnesses  (of  the  woman)  and  shall  effect  separation 
between  him  and  his  wife,  (and  according  to  this  analogy  the  case 
involving  exception  must  also  be  treated  in  the  same  fashion). 

But  if  the  witnesses  (cited  by  the  woman)  say,  we  do  not  know  whether 
the  man  said  this  or  not  (that  is,  whether  the  husband  used  the  words  '^astbe 
Christians  say'')  but  that  we  did  not  he^r  from  thehusbandanythingbesideB 
his  w:ords  '^Messiah  is  the  son  of  God : ''  the  Kazee  shall  not  believe  the  evi- 
dence pf  the  witnesses  (because  they  cannot  say  whether  the  words  were 
used  or  not)  until  those  witnesses  depose  that  the  husband  did  not  say,  with 
the  words,  ^^  Messiah  is  the  son  of  God ''  other  words  (to  the  effect  ^^as 
Christians  say/')  And  the  learned  lawyers  have  treated  the  husband's 
<!laim  of  having  used  the  exception  whilst  divorcing  his  wife  in  the  same 
way  as  the  above  case. 

Shamsh-ool  Ayma  Sarukhsy,  on  whom  be  peace,  has  said,  that  this  is 
one  of  those  cases  in  which  evidence  of  a  negative  fact  is  accepted. 

.  And  if  the  exception  has  come  out  of  his  mouth  without  his  inten- 
tion, or  if  he  has  used  the  exception  without  knowing  its  meaning,  the 
effect  of  the  same  is  already  stated.    (See  paragraph  997.) 

2405.  (1505.)  A  man  says  to  his  wife,  "  Thou  art  divorced,  and 
diyorjced,  and  divorced,  if  it  pleaseth  God :  "  the  exception  is  correct^  and 
the  divorce  shall  not  be  caused ;  (because  repeating  divorce  three  tij^i^  ii 
saying,  <*  Thou  art  thrice  divorced, "  and,  therefore,  there  is  no  break  or 
interruption ;  but  if  he  had  repeated  divorce  four  times,  there  would  have 
been  a  break). 


ON   C0V]>ITI02^   I^   BlTOi^B.  ^^S 

9409.  (150&)  An4  if  ihfi  masx  aays,  to  tip  wi,f^^  '^  Tl^oa  ftrt  4ivon$q4^ 
and  diyorced,  dad  dirorced,  and  divorcod^  if  it  plea^seth  God:"  th^  lear^i^ 
lawyers  have  said  that,  according  to  inference  [Kyas)  from  what  Aboo 
Htineefa,  on  whom  be  peace,  has  said,  three  divorces  shall  be  caused ; 
because  something  (that  is,  the  fourth  word  of  divorce  which  is  a  surplus- 
age) intervened  between  three  divorces  and  b^ween  \3^q  ^zception^  which  is 
of  no  effect,  and  therefore  that  thing  ^s  (Znig&P  or)  ^  i^ere  9urj>Iu8age;  ap^ 
therefore  the  exception  shall  not  be  correct  (or  operative,)  just  as  if 
the  husband  after  mentioning  three  divorces  makes  a  pause  before  coming 
to  the  exception. 

And  according  to  the  view  of  Aboo  Yusoof  and  Mahomed,  on  whoi;i^ 
be  peace,  no  divorce  shall  be  caused. 

2107.  (1507.)  Moulana  (Eazee  Shan,  the  author  of  these  Fntawa), 
OB  whom  be  peace,  has  laid  down  that,  if  the  husband  says  to  his  wife, 
"  Thou  art  divorced  twice  and  twice,  except  one,"  then  the  woman  shall 
become  thrice  divorced  (because  the  exception  here  takes  away  one  out 
of  two  plus  two  (and  no  Lugho  matter  intervenes). 

9408-  (1508.)  And  if  the  husband  sa^s  to  his  wife,  <<Thou  art 
divorced  twice  and  twice  except  twice : ''   two  divorces  shall  be  caused.    ; 

MQ0-  (1509.)  AmA  if  he  .says,  ^^  Tkon  wt  divorced  twice  and  twice 
eu^pt  tlvice :  **  the  woaum  shaJl  become  thrioe  divorced ;  because  ifc  is 
not  poBsiUe  to  give  effect  to  this  expression  as  an  exception  of  throe 
from  two,  whetl^er  it  be  the  first  two  or  the  second  two ;  and  it  is  not 
possible  to  give  effect  to  the  expression  as  ml  exception  of  three  lErom 
the  two  twos  taken  together;  (because  an  exception  relates  to  th^t  io 
which  it  is  aearest,  see  Futuh-ool  Eadeer,  YoL  2,  page  233);  the  expression 
therefore  becomes  an  eicceptian,  so  that  one  and  a  moiety  musit  be  tafae^L 
out  of  each  of  the  two  twos,  and,  therefore,  the  exception  nejcessariijr 
becomes  void.  (See  Budd-ool  Moohtar,  Vol.  2,  page  845,  and  Futawai 
Alumgeree,  Vol.  I,  page  683,  and  Door-ool  Mooktar,  page  250  of  the  Edi- 
tion of  1856.  In  causing  divorce  a  fraction  is  taken  as  a  full  number,  but 
in  excepting  a  fraction  the  fraction  nullifies  the  whole  of  the  exception^ 
See  paragraph  1534  pa$t.  Be  it  noted  that  the  second  ''  twice  ^'  is  not  a 
Liijt&oor  fforpliisagej  .because  aft^r  two  divorces  the  man  still  ha$  ipnid 
div/ikrqe  in  his  power ;  but  if  he  say^i  *'  Tjijirice  and  thrice  except  four  "  ai 
in  paragn^ph  1512  past,  the  second  thrice  becomas  a  snrplns  interruption^ 


214  TH£  TAaOBB  LAW  LECTURES^  1891-92. 

and  therefore  the  exception  in  this  case  is  void  on  account  of  the  inter- 
vention of  a  surplusage.    See  also  paragraphs  1682  and  1551  post). 

S410.  (1510.)  When  a  man  says  to  his  wife,  ^*  Thou  art  divorced 
four  times  except  three :  '^  one  divorce  shall  be  caused. 

2411.  (1511.)  So  also  if  he  says,  ^^Thou  art  divorced  ten  times 
except  nine :  '^  this  shall  amount  to  one  divorce. 

2412.  (1512.)  And  if  the  husband  says  to  his  wife,  <'Thou  art 
divorced  thrice  and  thrice  excepting  four :  **  Aboo  Huneef a,  on  whom  be 
peace,  says,  that  three  divorces  shall  be  caused ;  because  the  second 
*'  thrice ''  is  a  surplusage,  and,  therefore,  the  same  becomes  an  interrup- 
tion between  the  exception  and  the  word  ^Hhrice"  mentioned  first* 
And  Mahomed,  on  whom  be  peace,  says,,  that  two  divorces  shall  take 
place ;  because  the  husband  joined  the  first  **  three ''  to  the  second 
*^  three,''  by  the  conjunction  ^*  and,''  and  he,  therefore,  in  effect  said, 
''  Thou  art  divorced  six  times  except  four; "  and,  therefore,  two  divorcee 
shall  be  caused. 

2418.  (1513.)  And  if  the  husband  says,  ^<  Thou  art  divorced  thrice 
except  once  and  twice:"  it  is  reported  from  Aboo  Huneefa,  on  whom 
be  peace,  that  he  held  that  three  divorces  shall  take  place ;  (because  the 
exception  is  void  being  an  exception  of  a  thing  from  itself)  just  as  if  he 
had  said,  ''Thou  art  divorced  thrice  except  thrice."  And  Aboo 
Yusoof ,  on  whom  be  peace,  says,  that  two  divorces  shall  be  caused; 
(because  the  exception  of  '<  once  "  having  become  operative  on 
account  of  its  close  proximity  to  the  word  ''  except,"  there  remained 
two;  and  if  from  this  two,  the  two  involved  in  the  word  "twice"  is  also 
to  be  excepted,  then  there  will  be  an  exception  of  three  from  three ;  see 
paragraph  1516  pasf) ;  and  therefore  the  exception  of  ''  once  "  ia  valid, 
and  that  of  the  rest  void. 

2414.  (1514.)  And  if  the  man  says,  ''  Thou  art  divorced  once,  and 
once,  and  once,  except  three:"  the  woman  shall  become  thrice  divorced, 
just  as  if  he  had  said,  ''  Thou  art  divorced  thrice  except  thrice." 

2415.  (1515.)  So  also  if  the  man  says,  ''Thou  art  divorced  once, 
and  once,  and  once,  except  once,  and  once,  and  once : "  the  woman  shall 
become  thrice  divorced  (the  exception  is  inoperative,  as  it  amounts  to  an 
exception  of  the  thing  from  itself). 


ON  CONDITIONS  IN  DITOBCE.  215 

8^6.  <1616.)  And  if  a  man  says  to  his  wife,  ^^  Thou  art  diyorced 
thrice,  except  once,  and  once,  and  once:''  the  woman  shall  become 
diforced  thrice;  becanse  the  man  has  brought  together  the  things  excepted, 
bj  the  conjunction  <<  and ''  so  that  the  husband  in  effect  says,  ''  Thou 
art  divorced  thrice  except  thrice/' 

And  Aboo  Yusoof,  on  whom  be  peace,  says,  one  diyorce  shall  take 
place,  and  the  exception  is  correct  (or  yalid  and  operative)  in  respect  of 
the  first  ^'  one  "  and  the  second  **  one ; "  because  this  amounts  to  excepting 
a  smaller  from  a  larger  quantity  (that  is,  it  amounts  to  excepting  two 
from  three)  and  that  the  exception  of  the  remainder  (that  is,  the  third 
^'  one  ")  is  not  correct,  in  order  to  avoid  the  result  of  excepting  a  thing 
from  itself. 

2417.  (1517.)  And  if  the  man  says,  ''Thou  art  divorced  thrice 
except  once  or  twice,"  and  dies  before  explaining  himself  (whether  he 
intended  to  give  effect  to  the  expression  ''  once"  or  to  the  expression 
"  twice"  contained  in  the  exception  in  the  alternative  form)  then,  accord- 
ing to  some  traditions  from  Aboo  Yusoof,  on  whom  be  peace,  one  divorce 
shall  be  caused;  but  two  divorces  shall  be  caused  according  to  Mahomed, 
on  whom  be  peace :  so  that  according  to  Aboo  Yusoof,  on  whom  be  peace, 
the  (result  is  that  the)  exception  operates  on  the  larger  number  (of  the 
two  numbers  mentioned  in  the  exception,  that  is,  two)  and  the  divorce 
cansed  is  confined  to  the  smaller  number  (that  is  one) ;  but  according  to 
Mahomed,  on  whom  be  peace,  the  number  excepted  is  the  smaller  number 
(of  the  two  numbers  mentioned  in  the  exception,  that  is,  one)  and  there- 
fore two  divorces  shall  be  caused.  But  on  the  other  hand,  it  is  stated  in  the 
book  on  Wusaya  (or  Wills)  that  in  case  there  is  a  doubt  as  to  the  operation 
of  the  exception  (and  the  doubt  arises  when  the  two  numbers  are  used  in  the 
alternative  as  in  the  case  given,  and  the  doubt  is,  whether  it  will  operate  as 
regards  "once"  or  "twice")  then  according  to  the  view  of  Aboo  Yusoof,  on 
whom  be  peace,  the  exception  must  relate  to  the  smaller  number  (that  is, 
the  lesser  of  the  two  excepted  things  must  be  excepted)  becanse,  according 
to  him  (that  is,  Aboo  Yusoof),  exception  means  deducting;  and  when  doubt 
arises  whether  a  smaller  number  or  a  larger  number  is  to  be  excepted,  then 
only  that  is  to  be  excepted  regarding  which  there  is  certainty;  (e.jf.,  in 
the  case  given  the  doubt  is  whether  two  is  excepted  or  one  is  excepted; 
then  if  we  hold  that  two  is  excepted,  that  two  includes  one,  and  therefore 
there  is  no  doubt  as  to  one,  and  therefore  one  should  be  excepted  and  two 
divorces  should  be  caused);  but  that,  according  to  the  view  of  Mahomed,  on 


2ffft  THE  taOkob*  iiW  tttrvntB,  1891.92. 

yffhwnhe  p&tiii^y  ex()epti6h  ilieanfl  (and  itn|)li^)  a  sta^teibent  ot  €bi^  re- 
nminddr  after  (having  dedaotecl)  the  thing  ^i^tcepted,  and,  ther^re,  any 
donbt  which  arises  regarding  the  exception  effects  the  whole  of  the 
#xpresE(iort  with  doubt,  and  therefore  nothing  shall  be  established  (by  the 
whole  of  the  expression)  but  that  in  regard  to  which  there  is  (absohitc) 
eeHAinty  (and,  therefore,  in  the  case  given,  donbt  arises  whether  the  whole 
expression  meant  to  assert  one  or  two ;  if  the  exception  relates  to  one, 
tiien  the  expression  means  to  assert  two,  but  if  the  exception  applies  to 
two,  then  the  expression  means  to  aoteert  one ;  therefore  the  certainty 
&,  that  the  expression  ni«ant  to  as^rt  one). 

And  it  is  stated  in  Hie  chapter  on  Ikrar  when  a  man  says  to  another, 
''For  thee,  are  dae  against  me  a  thousand  except  hundred  or  fifty,''  then  it 
is  stated  in  the  Nuwadir  of  Aboo  Soolyman,  on  whom  be  peaoe,  that 
what  is  due  against  the  man  is  nine  hundred  and  fifty  (relying  on  the 
view  of  Aboo  Yusoof ,  that  exception  means  taking  off,  and  therefore  what 
is  certain  must  be  excluded) :  and  it  is  stated  in  the  traditions  from  Aboo 
Hufs,  on  whom  be  peace,  that  what  is  due  against  the  man  is  nine 
hundred;  and  this  latter  view  is  correct  (relying  on  the  view  of  Mahomed 
that  the  whole  must  be  taken  as  a  net  statement,  and  therefore  that  in 
which  there  is  doubt  must  be  thrown  away). 

M18.  (1518.)  A  man  salys  to  his  wife, ''  Thou  art  divorced  thrice 
except  something :  **  dhe  shall  become  divorced  twice  according  to  the 
¥a^ee  (because  the  exception  shall  apply  to  one,  that  being  certain). 

2419.  (1519.)  When  a  man  says  to  his  wife,  '*  Thou  art  divorced 
thrice  except  once  to-morrow ''  or  says,  ^^  Except  once,  if  I  speak  to  so 
and  so:''  no  divorce  shall  be  caused  before  the  morrow  arrives,  or  before 
the  speaking  takes  place  :  and  in  the  event  of  the  speaking  taking  place 
or  the  morrow  arriving,  two  divorces  shall  take  place ;  because  the 
principle  is,  that  the  thing  from  which  something  is  excepted  must  be 
of  the  same  quality  (/irw— kind  or  genus)  with  the  thing  excepted,  and, 
therefore,  when  the  thing  excepted  is  made  dependent  on  another  thing 
or  is  referred  to  the  morrow,  then  the  thing  from  which  exception  is 
made  must  also  be  made  dependent  on  that  other  thing  or  must  refer 
to  the  morrow  (and  therefore  no  divorce  shall  be  caused  immediately). 

3420.  (1520.)  When  a  man  says  to  his  wife,  '^Thou  art  divorced. 
Oh  adulteress,  thrice ; "  Aboo  Haneefa,  on  whom  be  peace,  says,  tfaiat  the 
woman  ahaH  become  thrice  divorced,  but  there  shall  be  no  punishment 


ON  CONDITIONS   IN  DIVORCE.  217 

for  the  man  (for  false  imputation  of  adultery)  nor  will  Lian  be  necessarj 
on  him :  but  Aboo  Yusoof ^  on  whom  be  peace^  says^  that  the  woman  shall 
be  dirorced  once  (that  is^  as  the  result  of  ^'Thou  art  divorced '')  and  the 
man  shall  be  liable  to  punishment,  because  the  consequences  of  a  false 
imputation  {Kusmf  or  accusation)  of  adultery  are  more  severe  than  the 
consequences  of  a  divorce,  and,  therefore,  the  expression  of  adultery 
(that  is,  the  man^s  expression  ^Oh  adulteress')  shall  be  held  to  have 
caused  a  break  between  the  word,  *'  thrice  "  and  the  word  "  divorced ;" 
and  therefore  one  divorce  shall  be  caused,  (because  the  interruption  caused 
does  away  with  the  effect  of  the  expression  "thrice"  and  the  word  **thrice'' 
shall  not  relate  to  divorce  at  all,  not  being  adjoined  to  divorce ;  but,  on 
the  other  hand,  Aboo  Haneef  a  says,  it  must  be  read  as  occurring  without 
any  break  at  all  and  as  relating  to  divorce). 

2421.  (1521.)  And  if  a  man  says  to  his  wife  with  whom  he  has 
not  had  sexual  intercourse,  "  Thou  art  divorced,  divorced  thrice  :  "  only 
one  divorce  shall  be  caused  (because  one  divorce  is  sufficient  for  her). 

2422.  (1522.)  A  man  says  to  his  wife,  "  Thou  art  divorced  thrice, 
therefore  know  thou,  if  God  pleaseth : "  the  exception  is  valid  (and  operative 
and  effectual,  because  the  expression,  *' Therefore  know  thou"  is  not  the 
introduction  of  unconnected  words,  and  those  words  do  not  cause  a  break 
or  interruption,  and  there  shall  be  no  divorce;  the  word  "therefore"  shew- 
ing that  it  is  a  part  of  the  first  expression). 

2423.  (1523.)  If  a  man  says,  "  Thou  art  divorced  thrice,  know 
thou,  if  God  pleaseth  "  or  says,  "  Go  thou,  if  God  pleaseth :  "  she  shall 
become  thrice  divorced,  and  the  exception  shall  be  void  (because  the 
expression^  "  Enow  thou  "  without  being  introduced  by  "  therefore  " 
shews  that  it  is  an  independent  speech  not  related  to  the  first  portion 
of  the  sentence) . 

2424.  (1524.)  A  man  takes  oath  by  the  divorce  of  his  wife  and  in- 
tends (that  is  to  say,  has  a  mind)  to  say  at  the  end,  "  If  it  pleaseth  God," 
when  some  person  stops  his  mouth;  then  if  he  mentions  the  exception,  after 
the  person  has  let  go  his  hold  on  his  mouth,  and  mentions  it  immediately 
after  (Mousoolan)  the  hand  is  removed  from  his  mouth,  the  excep- 
tion shall  be  correct  (and  operative  or  effectual),  just  as  in  the  case  of 
interruption  caused  between  divorce  and  exception,  by  sneezing  or 
belching  (in  which  case  the  exception  is  valid,  and  no  divorce  is  caused, 
see  paragraph  1495). 

28 


218  THE   TAOOBl   LAW  LVCTTTBBS^   1891-92. 

2426.  (1625.)  A  man  intends  to  administer  oath  to  another  man, 
but  fears  that  the  swearer  might  use  the  exception  :  then  the  deyice  in 
this  matter  for  the  man  first  mentioned  is,  that  he  should  command  the 
other  man  to  say  immediately  after  his  oath  and  as  adjoined  to  it 
{Mou8oolan)y  "  God  is  pure  "  or  '*  I  ask  pardon  from  God/'  or  to  use  such 
an  expression  that  the  exception  would  be  invalid  after  it. 

2426.  (1526.)  A  man  says,  ^^  By  God  I  will  not  speak  to  so  and  so, 
may  God  pardon,  if  it  pleaseth  God :  '^  the  learned  lawyers  have  held 
that  this,  in  case  of  an  oath  relating  to  divorce,  shall  amount  to  an  excep- 
tion, morally  speaking,  (but  according  to  the  Kazee  it  shall  not  so  amount, 
there  being  interruption,  and  therefore  the  Eazee  shall  not  decree 
divorce). 

2427.  (1527.)  A  man  says  to  his  wife,  "Thou  art  divorced  thrice  or 
not  {Au  la\**  and  the  Persian  of  it  is  "  or  not : "  no  divorce  shall  be  caused. 
So  also  if  he  says,  "  Thou  art  divorced  and  except  {Wo  illi)  "  and  the 
Persian  of  it  is,  "  and  but "  (no  divorce  shall  be  caused). 

2428.  (1528.)  So  also  (no  divorce  shall  be  caused),  if  he  says, 
"  Thou  art  divorced  thrice  if  it  be  {In  kana)  and  the  Persian  of  it  is  **  if  it 
be."  So  also  if  he  says,  "  Thou  art  divorced  thrice  if  (in)  *'  and  the 
Persian  of  it  is  "  if  (or)  Agvbr** 

So  also  if  he  says,  "  Thou  art  divorced  thrice,  if  not  {in  Hm)  *'  and 
the  Persian  of  it  is  "if  not — Agur-na.^^ 

So  also  if  he  says,  "Thou  art  divorced  thrice  if  it  be  not  [Inlum 
yukoon)  "  and  the  Persian  of  it  is  "  Agur  na  buwud — if  it  be  not." 

Because  all  these  expressions  are  expressions  indicative  of  condition; 
and  whenever  a  condition  adjoins  the  effect,  the  condition  takes  away 
from  the  effect  the  quality  of  instantaneous  operation  (or  Turyeez  and 
Eekaa). 

2429.  (1529.)  A  man  takes  an  oath  on  the  divorce  of  his  wife 
that  he  will  not  speak  to  so  and  so  except  by  mistake  (saying,  "  I  will 
not  speak  to  so  and  so  for  ever  except  by  mistake ;  and  if  I  speak  except 
by  mistake,  my  wife  is  divorced) ;  he  then  speaks  to  the  so  and  so  by 
mistake,  and  then  speaks  to  him  knowingly :  he  shall  commit  a  breaoh  of 
his  oath,  because  what  he  excepted  was  "  speaking  by  mistake  **  from 
absolute  speaking  and,  therefore,  what  remains  over  and  above  the  speak* 
ing  by  mistake,  remains  included  in  the  oath  (that  is,  the  oath  includes 
intentional  speaking). 


ON   CONDITIONS   IN   DIYOBOE.  219 

2430.  (1680.)  And  if  a  man  says  to  his  wife,  ^^Thoaart  divorced 
if  I  speak  to  so  and  so  unless  I  do  so  by  mistake ''  {Ula  un)  and  speaks 
bj  mistake,  and  then  speaks  knowingly  :  he  shall  not  commit  a  breach  of 
his  oath,  becaase  the  expression  ^^  nnless  "  {lUa  un)  is  nsed  to  shew 
the  point  of  limit  (or  Ohaitj  that  is,  the  oath  means,  '^  I  will  not  speak 
to  80  and  so  np  to  the  time  I  forget,''  therefore  when  he  forgets,  the 
prohibition  reaches  its  point  of  limit,  and  the  oath  comes  to  an  end, 
contrary  to  the  case  in  1529,  where  the  limit  of  absence  of  speaking  is  not 
a  mistake).  God  says  [see  Vol.  I.  of  these  Lectures,  page  12,  paragraph 
75  (71),]  "  Ton  will  not  (yourself)  take  it  unless  (or  Ilia  un)  you  shut 
yonr  eyes  to  it ; "  and  he  intends  by  this,  Ohait  or  termination  (that  is, 
the  period  of  not  taking  lasts  as  long  as  the  eyes  are  open,  and  the  period 
of  not  taking  terminates  by  the  closing  of  the  eyes,  and  therefore  the 
closing  of  the  eyes  is  the  Ghait  or  termination  of  the  period  of  not  tak- 
ing). Therefore,  if  he  speaks  by  mistake,  his  oath  comes  to  an  end,  and 
he  shall  not  commit  a  breach  of  his  oath  afterwards. 

2431.  (1581.)  A  man  says  to  another,  '^I  shall  certainly  come  to 
thee  up  to  {Ha)  ten  days  except  that  {Ilia  un)  I  am  dead  "  and  intends  in 
his  mind,  "  If  I  do  not  erer  die ;  '^  (that  is,  "  I  shall  certainly  come 
to  thee  within  ten  days  if  I  live  for  ever,  and  if  I  do  not  live  perpetually 
but  die  like  others,  I  shall  not  come) ;  "  then  if  his  oath  is  in  reference 
to  God,  he  shall  not  commit  a  breach  of  his  oath  (because  the  words  are 
open  to  the  construction  which  the  man  says  he  intended) ;  but  if  his 
oath  relates  to  divorce  or  emancipation,  he  shall  not  be  believed  (because 
the  apparent  meaning  of  his  oath  is,  "  If  I  live  for  ten  days  I  shall  come 
to  thee  within  ten  days). 

2432.  (1532.)  A  man  says  to  his  wife,  "  Thou  art  divorced  twice 
and  once^  except  once :  "  two  divorces  shall  be  caused,  because  bringing 
together  one  and  two  by  the  conjunction  '^and ''  is  the  same  as  expressing 
a  collective  sense  by  a  collective  expression ;  so  that  he  in  effect  says, 
"  Thou  art  divorced  thrice  except  once,''  therefore  two  divorces  shall  be 
caused.    (See  paragraphs  1509  and  1551  post). 

2483.  -(1533.)  And  if  a  man  says  to  his  wife,  ^'  Thou  art  divorced 
thrice,  other  than  (Ohyr)  three,  other  than  two :  "  then  Mahomed,  on 
whom  be  peace,  says  that  two  divorces  shall  be  caused. 

And  if  he  says,  ^^  Thou  art  divorced  ten  times,  except  nine,  except 
one : "  two  divorces  take  place. 


220  THE  TAQOKE  LAW  LECTURES,  1891-92. 

And  the  principle  in  these  cases  (where  after  one  number^  there  are 
two  or  more  numbers  mentioned  by  way  of  exceptions,  see  Rndd-ool 
Moohtar,  Vol.  II>  page  847),  is,  that  the  first  mentioned  number  shall  be 
put  on  the  right  hand  (i.e.,  on  the  left  hand  in  English),  and  the  second 
number  shall  be  put  on  the  left  hand  {i.e.y  on  the  right  hand  in  English), 
and  then  the  third  number  shall  be  placed  again  on  the  right  hand  (t.e., 
on  the  left  hand  in  English),  and  then  he  shall  subtract  the  sum  of  what 
is  on  the  left  side  (i.6„  on  the  right  side  in  English)  from  what  is  on  the 
right  side  (i.e.,  on  the  left  side  in  English),  and  what  remains  on  the 
right  side  (i.e.,  on  the  left  side  in  English)  after  the  subtraction^  shall 
denote  the  number  of  divorces  caused  on  the  woman — 

3    first  mentioned;  3    second  mentioned. 
2    third  mentioned. 


5  minus  3=2 
10  9 

1 

11 

11  minus   9=2. 

2434.  (1534.)  And  if  he  says,  "  Thou  art  divorced  thrice  except 
one  or  half  of  one  :  "  three  divorces  shall  be  caused  ;  because  the  man 
creates  a  doubt  in  the  thing  excepted  (by  using  the  word  "  or  ") :  and 
therefore  the  least  number  is  the  thing  excepted,  (see  paragraph  1517), 
so  that  he,  in  effect,  says,  "Thou  art  divorced  thrice  except  half  of  one'' 
(and  the  exception  of  a  fraction  is  not  valid,  see  paragraphs  1509  and 
1551 ;  what  is  certain  shall  be  excepted  and  that  is  half :  therefore  ''  one  " 
goes  for  nothing,  but  half  for  the  purposes  of  exception  amounts  to 
nothing;  therefore  nothing  is  excepted). 

2435.  (1535.)  So  also  if  the  man  says,  "  Thou  art  divorced  thrice 
except  once  or  nothing: ''  three  divorces  shall  be  caused,  because  he 'makes 
no  exception. 

2436.  (1536.)  When  a  man  says  to  his  wife,  "  Thou  art  divorced 
twice,  and  twice  and  twice  except  four :"  she  shall  become  divorced  twice. 

And  if  he  says,  "  Thou  art  divorced,  thou  art  divorced,  thou  art 
divorced  except  once;''  three  divorces  shall  be  caused  (because  there  being 


ON   CONDITIONS   IN   DIVORCE.  221 

no  "  and  "  the  exception  shall  relate  to  that  which  precedes  it,  and  there- 
fore this  is  a  case  of  exception  from  the  thing  itself,  and  therefore  the 
exception  is  yoid). 

So  also  if  he  says,  "  Thou  are  divorced  thrice,  except  once  and  once 
and  once ;"  she  shall  become  divorced  thrice  (the  exception  being  void  as 
being  the  exception  of  a  thing  from  itself). 

2437.  (1637.)  A  man  says  to  his  wife,  "  Thou  art  hain  (completely 
divorced)'*  intending  thereby  *'  thrice  except  once : "  the  woman 
shall  become  twice  hain  (that  is,  she  shall  become  twice  divorced  and 
the  two  divorces  shall  be  of  the  bain  character) .  But  Mahomed,  on  whom 
be  peace,  says,  that  she  shall  be  once  (bain  or  completely)  divorced  (the  in- 
tention being  disregarded,  and  the  exception  is  disregarded^  because  he, 
in  effect^  says,  "  Thou  art  divorced  once,  except  once.)  ** 

8488.  (1638.)  So  also  if  he  says,  "  Thou  art  divorced  thrice  all 
bain  or  complete  except  once:''  she  shall  become  twice  completely 
divorced. 

2439.  (1539.)  And  if  he  says,  ^*  Thou  art  divorced  tbrice  com- 
pletely except  once,"  or  says,  "thrice  aUbuttuta  (cut oflE)  except  once,"  two 
revocable  divorces  shall  be  caused  (because  when  he  uses  the  word  bain 
in  the  plural  number  and  says  "  all  bain  "  as  in  paragraph  1538,  this  means 
that  each  divorce  is  bain  ;  when  he  says  thou  art  divorced  tbrice  com^ 
pletely  as  in  this  paragraph,  this  means  that  three  divorces  shall,  according 
to  law,  make  you  bain  ;  therefore  two  divorces  shall  take  place,  but  they 
shall  be  of  the  Bujue  or  revocable  character). 

2440.  (1540.)  So  also  if  he  says,  ''  Thou  art  divorced  thrice  except 
one  bain "  or  "  One  cut  off  or  aUbuttuta : ''  two  revocable  divorces 
shall  be  caused. 

2441.  (1541.)  And  if  he  says,  "Thou  art  divorced  thrice  (which 
are)  unlawful  except  once  :"  she  shall  be  divorced  twice  with  the  husband 
having  power  of  revocation :  (it  is  prohibited  to  give  three  divorces  at 
once ;  the  man  shall  be  sinful  if  he  does  so,  although  the  three  divorces 
shall  be  caused). 

2442.  (1542.)  A  man  says  to  his  wife,  "If  thou  shalt  enter  the 
house,  then  thou  art  divorced  thrice  which  shall  not  be  caused  on  thee 
except  after  thou  hast  spoken  to  so  and  so  ;  ^'  the  woman  then  enters  the 
house:  she  shall  become  thrice  divorced,  and  the  condition  of  speaking  to 


222  THE  TAQOBE  LAW  LECTURES^  1891-92. 

80  and  so  shall  be  void,  (because  a  surplusage  oonsisting  of  **  wbich  shall 
not  be  caused  "  is  found  here  which  avoids  the  exception). 

2448.  (1543.)  And  if  he  sajs,  "  Thou  art  divorced  to-day  thrice 
which  will  be  caused  on  thee  to-morrow:"  the  woman  shall  become  divorced 
this  day  thrice  (because  the  Eekaa  or  Tunjeez  or  Insha  that  is  the  causing 
of  divorce  must  be  instantaneously  effective  unless  there  is  a  condition,  and 
here  there  is  no  condition  or  exception  to  postpone  the  Turyeez  or  instan- 
taneous effectuation  of  the  divorce). 

2444.  (1544.)  And  if  the  man  says  to  his  wife,  ''Thou  art  divorced 
to-day,  if  it  pleaseth  Satan  or  it  pleaseth  the  Angel:''  no  divorce  shall  take 
place  (because  the  pleasure  of  Satan  or  the  Angel  cannot  be  known). 

2445.  (1545.)  And  if  the  man  says, ''  Thou  art  divorced,  whatever 
God  wishes  will  happen :"  no  divorce  shall  be  caused. 

So  also  if  he  says, ''  Thou  art  divorced  except  what  God  wishes,'' 
or  says, ''  except  that  God  wishes  :"  no  divorce  shall  be  caused  (because 
these  are  different  forms  of  exception). 

2446.  (1546.)  When  a  man  says  to  his  wife  (with  whom  he  has 
had  intercourse),  "  Thou  art  divorced  twice,  no  but  {la  bul)  once  (that 
is,  not  twice,  but  once) :"  she  shall  become  divorced  thrice  (because  two 
divorces  were  caused  as  soon  as  the  words  were  spoken,  and  the  husband 
has  no  power  to  remove  the  divorces  so  caused  and  one  more  shall  be 
caused  because  the  husband  causes  it). 

And  if  he  says,  "  Thou  art  divorced,  not  but  (la  bul)  divorced,"  (that 
is, ''  No,  not  divorced  by  the  first  mentioned  expression,  but  divorced  by  the 
second  expression) : "  the  woman  shall  be  divorced  twice  (that  is,  once  by 
the  first  expression,  which,  when  used,  causes  instantaneous  divorce,  al- 
though by  the  particle  subsequently  used  the  man  seeks  in  vain  to 
negative  the  effect  thereof ;  and  a  second  divorce  by  the  second 
expression). 

So  also  if  he  says,  **  Thou  art  divorced  once,  not  but  {la  huT) 
once, "  (two  divorces  shall  be  caused). 

So  also  if  the  man  says,  <'  Thou  art  divorced  once,  not  but  {la  hut) 
divorced  once,"  (two  divorces  shall  be  caused). 

2447*  (1547.)  A  man  says  to  his  wife,  ^^Thou  art  divorced  or 
nothing,"  the  expression  is  void  (and  no  divorce  shall  take  place) ;  and 
then  if  he  says,  '*  I  cause  the  divorce  which  I  said  (in  the  aforesaid  first 


OK  CONDITIONS   IN  DIYOBCB.  223 

expression,  in  which  the  word  nothing  was  used  :)**  the  woman  shall  now 
be  divorced  (see  paragraph  982). 

And  this  is  an  illustration  of  a  case  where  a  man  divorces  his  wife 
and  another  man  says,  *^  I  cause  the  divorce  (on  my  wife)  of  the  so  and  so 
(referring  to  the  first  mentioned  man)  who  has  caused  it  on  his  wife/' 
in  which  case  the  wife  of  the  speaker  shall  be  divorced. 

2448*  (1548.)  A  man  says  to  his  wife,  ^^  Thou  art  divorced  once, 
not  but  {la  ltd)  to-morrow :"  the  woman  shall  become  immediately 
divorced  once ;  and  when  the  morning  of  the  next  day  dawns  and  the 
woman  is  in  her  Iddut,  another  divorce  shall  be  caused. 

2449.  (1549.)  A  man  says  to  his  wife,  ^^  Thou  art  divorced  thrice, 
except  a  moiety  of  it  {i.e.,  of  one  divorce  or  Tulkut)  :*'  two  divorces  shall 
be  caused  (according  to  the  view  of  A  boo  Yusoof,  because  to  subtract  a 
moiety  from  three  means  to  subtract  one  from  three,  a  fraction,  according 
to  him,  being  equivalent  to  the  full  number  both  in  the  matter  of  causing 
divorce  and  also  in  the  matter  of  excepting  divorce ;  therefore  one  being 
subtracted  from  three  there  remains  two ;  see  Vol.  II,  Budd-ool  Moohtar, 
page  847,  where  it  is  laid  down  that  where  a  man  says,  ^'  Thou  art  divorced 
thrice  except  a  moiety  of  one  divorce,*'  three  divorces  shall  be  caused 
according  to  the  approved  view,  but  two  divorces  shall  be  caused  according 
to  the  Sany,  i.6.,  Aboo  Tusoof ;  because,  says  the  Eudd-ool  Moohtar,  a 
divorce  cannot  be  divided  into  fractions  in  causing  it,  so  also  it  shall  not  be 
divided  into  fractions  in  the  exception;  so  that  the  husband  shall  be  taken 
to  mean,  "  except  one.")  But  if  he  says,  "  Except  a  moiety  of  each," 
then  three  divorces  shall  be  caused  (according  to  all  the  authorities ;  because, 
according  to  Aboo  Yusoof,  either  the  expression  means  excepting  three 
when  there  is  an  exception  of  a  thing  from  itself,  and  the  exception 
is  invalid,  or  it  means  the  causing  of  three  moieties  of  divorce  which 
means  three  divorces ;  whilst  according  to  Aboo  Haneefa,  the  exception 
of  a  fraction  vitiates  the  exception). 

2460.  (1550.)  A  man  says  to  his  wife,  ^^  Thou  art  divorced,  if  thou 
never  had  a  father ''  or  says,  "  if  thou  never  had  a  sister,"  or  says,  '*  if 
verily  I  do  not  love  thee:"  this  amounts  to  an  exception,  and  the  woman 
shall  not  be  divorced  in  any  way. 

2451.  (1551.)  What  renders  an  exception  void  consists  of  five  things ; 
one  of  which  is  when  the  thing  excepted  is  larger  than  the  thing  from 
which  it  is  excepted;  as  for  instance,  if  you  were  to  say,  '^Thou  art  divorced 


224  THE  TAQOBE  LAW  LECTURES,  1891-92. 

thrice,  except  four/'  and  in  this  case,  the  exception  is  not  valid;  secondly y^ 
when  a  fraction  of  a  divorce  is  excepted  ;  for  instance,  if  you  were  to 
say,  ^'  Tbou  art  divorced  except  half  of  it,'^  in  which  case  the  woman 
shall  become  divorced  once ;  thirdly, — ^when  the  thing  excepted  is  similar 
to  the  thing  from  which  it  is  excepted  ;  as  for  instance,  if  you  were  to 
say,  **  Thou  art  divorced  thrice  except  thrice ;  **  fourthly, — pausing 
otherwise  than  for  the  purpose  of  taking  breath  or  on  account  of 
sneezing  and  the  like,  when  the  pause  is  made  without  any  necessity, 
although  the  pause  might  be  for  a  short  period  (that  is,  pause  even  for 
a  short  period  without  any  necessity  invalidates  the  exception,  but  pause 
does  not  invalidate  it  when  it  is  made  to  take  breath  or  to  sneeze,  &c.),  and, 
according  to  some  of  the  traditions,  when  the  man's  pause  is  for  a  period 
equal  to  that  occupied  in  taking  breath,  although  he  could  have  avoided 
the  pause,  the  pause  shall  not  invalidate  the  exception  (but  the  exception 
shall  be  considered  valid  and  as  having  been  pronounced  in  immediate 
succession,  without  any  break) ;  fifthly, — that  expression  which  renders 
part  of  the  exception  valid  and  renders  a  part  void ;  just  as  if  you  were  to 
say,  "  Thou  art  divorced  twice  and  twice  except  three  "  (here  the  three 
cannot  be  excepted  either  from  the  first  two  or  from  the  second  two,  and 
therefore  it  is  necessary  to  take  one  and  a  half  from  the  first  two  and  one 
and  a  half  from  the  second  two,  but  you  can  take  out  one  from  each  of 
the  two  and  cannot  take  out  the  fraction  from  each,  and,  therefore,  the 
exception  shall  be  wholly  void). 
God  knows  best. 


CASES  WHERE  DIVORCE  IS  MADE  DEPENDENT  ON  MAJSIRIAGE. 

2452.  (1552.)  A  man  says,  "If  I  do  so  and  so  then  my  wife  is 
divorced,*'  he  having  no  wife  at  the  time;  he  then  marries  a  wife,  and  after- 
wards does  the  act  (which  he  had  sworn  not  to  do) :  he  shall  not  commit  a 
breach  of  his  oath  (because  it  is  necessary,  when  taking  an  oath  making 
the  divorce  of  a  woman  dependent  on  something,  that  she  should  be  then, 
that  is,  at  the  time  of  the  oath,  in  the  man's  ownership  by  marriage,  or 
the  condition  itself  must  be  the  cause  of  ownership  by  marriage,  that  is  to 
say,  the  condition  must  be  marriage  itself). 

2453.  (1553.)  And  if  a  man  says,  *^  If  I  marry  a  woman  or  order 
(or  authorise)  a  person  to  give  me  in  marriage  to  a  woman,  then  the 
woman  is  divorced  ; "  he  then  orders  some  person  to  give  him  in  marriage 


DITOBOB   D»P«irPBHT  ON   MABEIAOB.  825 

to  a  woman,  and  the  person  so  ordered  does  as  he  is  bid:  the  wife  of  the 
swearer  shall  not  become  diyOrced,  inasmnch  as  the  man  eommits  a  breach 
of  his  oath  by  giving  the  order,  but  the  breach  does  not  lead  to  the  effect 
contemplated  in  the  oath  (becanse  the  oath  was  ^^  If  I  order  a 
marriage,  then  the  woman  is  divorced :  '^  therefore  the  divorce  is  the 
eSeet  of  the  order  itself,  so  that  as  soon  as  the  order  is  given,  a  breach  of 
the  oath  takes  place,  bat  this  breach  does  not  lead  to  the  divorce,  because 
there  is  no  oath  in  existence  at  the  time  of  the  marriage,  which  takes 
place  after  the  oath ;  and  the  other  portion  of  the  oath  becomes  in- 
effectaal,  because  the  oath  being  in  the  alternative,  the  order  satisfies  the 
oath). 

And  this  is  an  illustration  of  what  is  reported  from  Aboo  Yusoof ,  on 
whom  be  peace^  that,  if  a  man  sajs,  ^^If  I  marry  such  and  such  a  woman  or 
make  proposals  for  her  marriage,  then  she  is  divorced,  '^  he  then  makes 
proposals  for  marrying  a  woman,  and  marries  her,  he  shall  not  commit  a 
breach  of  his  oath  ;  because  the  breach  of  oath  was  committed  by  the 
proposal  to  marry  the  woman  (and,  therefore,  there  shall  be  no  fresh  breach 
as  a  consequence  of  the  marriage ;  and  although  there  was  a  breach  of 
oath  as  the  effect  of  the  proposal,  the  consequence  of  the  breach  is  not 
secured^  because  the  condition  was  a  thing  different  from  marriage,  and 
the  other  part  of  the  oath  leads  to  no  consequence  for  reasons  already 
stated). 

2454.  (1554.)  When  a  man  says  to  an  unknown  woman  or  to  one  who 
was  his  wife,  but  has  been  divorced  by  him  completely,  and,  therefore,  has 
become  completely  separated  {bain)  from  him,  ^^If  I  make  proposals  to 
thee,'*  or  says,  "  propose  to  thee,"  or  says,  "  if  I  wish  to  propose,'*  or 
says,  "  if  I  wish  (thee),'*  ^'  divorce  on  thee;  **  he  then  marries  her:  the 
learned  lawyers  have  said  that  his  wife  shall  not  become  divorced  j  because 
the  man  commits  a  breach  of  his  oath  by  his  intention  to  marry  before 
marriage ;  he  shall  not,  therefore,  commit  a  breach  of  his  oath  by 
marriage. 

Moulana  (Eazee  Ehan,  the  author  of   these  Futawa)  on  whom  be 

peace,  says,  that  this  answer  is  clear  when  (after  having  taken  the  oath 

^8  aforesaid)  the  man,  before  (actual)  marriage,  says,  ^*  I  desire  to  pro- 

f^oee  to  such  and  such  a  woman''  (in  which  event,  the  case  comes  exactly 

v"^thin  the  oath,  the  intention  to  marry  having  found  expression  in  words, 

^^Ithongh  no  divorce  would  be  the  result  inasmuch  as  the  condition 

29 


THB  TAaOBB  LAW  LECTUBKS,    1891-92. 

is  an  event  different  from  marriage);  bat  if  he  does  not  say  so  (that  is, 
if  he  does  not  say  before  actual  marriage  ^^I  desire  to  propose  to  such  and 
such  a  woman),  and  if  his  oath  has  been  expressed  in  the  words,  "  If  I  wish 
thee,"  or  "  wish  to  propose  to  thee,'^  (as  in  the  oath  at  the  beginning  of 
the  first  portion  of  paragraph  1554)  then  this  answer  is  difficult  of  compre- 
hension; because  intention  is  a  mere  act  of  the  mind  just  as  one's  wish 
{M^b8heeut)  and  consent  {Beza,  i.6.,  acquiescence),  and,  therefore,  the  man 
shall  not  be  held  responsible  (for  what  passes  in  his  mind)  until  he  gives 
expression  to  that  intention. 

2456.  (1555.)  A  man  says,  "  If  they  give  me  such  and  such  a  wo- 
man for  my  wife,  divorce  to  her  :"  the  learned  lawyers  have  said  that  this 
oath  is  not  correct,  so  that  if  he  (himself)  marries,  he  shall  not  commit  a 
breach  of  his  oath  (and  the  oath  is  not  binding,  because,  in  order  to  make 
the  oath  binding,  it  must  relate  to  a  marriage  to  be  contracted  by  himself 
and  not  by  others)  :  and  Sheikh-ool  Imam  Aboo  Baker  Mahomed,  son  of 
Fuzul,  on  whom  be  peace,  says,  that  this  oath  is  correct,  and  the  woman 
shall  become  divorced  (because  when  the  man  says,  ^'  If  people  marry  me 

to  so  and  so  "  means  "  If  it  so  happens  that  I  should  marry  her)." 

# 

2456.  (1556.)  So  also  if  a  man  says  to  his  parents,  ''If  you  both 
shall  give  me  in  marriage  to  a  woman,  then  she  is  divorced ;  they  then 
give  the  man  (their  son)  in  marriage  to  a  woman  by  his  order :  the 
learned  lawyers  have  said  that  this  oath  is  not  correct,  and  the  woman 
shall  not  become  divorced.  And  Sheikh-ool  Imam  Aboo  Baker  Maho- 
med, son  of  Fuzul,  on  whom  be  peace,  says,  that  this  oath  is  correct, 
and  the  woman  shall  become  divorced  :  and  this  view  is  coiTect ;  because 
the  act  of  giving  one  in  marriage  is  not; completed  without  the  swearer 
marrying  (the  woman). 

2467.  (1557.)  And  if  a  man  says,  (in  Persian),  «  If  they  give  the 
daughter  of  so  and  so  to  me,  divorce  to  her ;  "  they  then  give  her  in 
marriage  (to  this  man) :  she  shall  not  become  divorced.  But  if  he  says, 
"  If  they  give  (the  daughter  of  so  and  so)  to  me  for  my  wife ; "  then  she 
shall  become  divorced. 

2468.  (1558.)  And  if  a  man  says  (in  Persian),  "  If  such  and  such 
a  woman  is  given  to  me  for  my  wife,"  (without  saying  "  and  if  I  marry 
her") :  the  learned  lawyers  have  said  that  this  oath  is  not  correct. 

Montana  (Kazee  Ehan,  the  author  of  these  Fntawa),  on  whom  be 
peace,  says,  that  it  is  fit  that  the  oath  should  be  correct  (and  binding) 


DlYOBCfi   DEPENDENT  ON   UARBIAGE.  227 

according  to  the  view  of  Sheikh-ool  Imam  Aboo  Baker  Mahomed,  son  of 
Fozol,  on  whom  be  peace. 

2469.  (1559.)  And  if  a  man  says,  ^'  If  I  take  such  and  such  a 
woman  as  my  wife,  divorce  to  her ;  "  he  then  marries  her :  the  woman 
shall  become  divorced. 

2460.  (1560.)  And  if  a  man  says  to  his  married  wife,  ^'  If  I  marry 
thee,"  or  says  (in  Persian),  "if  I  take  thee  as  my  wife,*'  this  relates  to 
(future)  marriage  (that  is,  the  woman  being  already  married,  the  word 
Ttuuwwoof  or  "  marry  *'  in  the  oath  shall  not  be  supposed  to  signify  any 
other  or  secondary  meaning,  such  as  sexual  intercourse,  but  it  shall  be 
restricted  and  confined  to  its  own  primary  and  literal  meaning,  so  that 
the  divorce  shall  only  take  place  if  the  man  happens  to  divorce  her  and 
then  marries  her  again). 

S461.  (1561.)  So  also  if  he  says  (in  Persian),  "If  I  marry  thee 
(i.6.,  make  nikah  with  thee) : "  this  oath  shall  relate  to  the  marriage  (and 
not  to  its  secondary  meaning  of  sexual  intercourse),  and  this  is  the  cor- 
rect view. 

And  if  he  says  in  Arabic,  ^'  If  I  make  nikah  with  thee  (then  thou  art 
divorced) :  '^  the  oath  shall  relate  to  sexual  intercourse  (because  nikah  pri- 
marily means  sexual  intercourse). 

2462.  (1562.)  And  if  a  man  says  (in  Persian)  to  a  woman  whom  he 
has  divorced  by  a  revocable  {Rujue)  divorce,  ^'  If  I  take  thee  as  my 
wife,"  this  shall  relate  to  marriage;  and  if  he  intends  (by  the  words,  ^^If 
I  take  thee  as  my  wife  ^')  to  mean  revocation  of  the  divorce  (the  words 
being  susceptible  of  that  meaning)  his  intention  shall  be  correct  (and  valid 
and  operative) ;  but  in  the  absence  of  any  intention,  the  oath  shall  relate 
to  marriage,  (because  the  words  ordinarily  mean  marriage). 

9463.  (1563.)  A  Fuzoolee  (volunteer)  gives  a  man  in  marriage  to  a 
woman ;  the  man  then  (before  ratification)  takes  oath  that  he  will  not 
marry  a  woman ;  the  swearer  then  ratifies  (or  permits)  the  marriage 
which  the  Fuzoolee  (or  volunteer)  had  contracted  before  the  oath :  the 
man  shall  not  commit  a  breach  of  his  oath ;  because  ratification  (or  per- 
mission) is  not  marrying. 

And  if  the  man  takes  the  oath  before  the  Fuzoolee  (or  volunteer)  gives 
him  in  marriage,  saying,  "I  will  not  marry  a  woman  (and  if  I  do  so  she  is 
divorced)''  and  afterwards  the  Fuzoolee  gives  him  in  marriage  to  a  woman, 
and  the  swearer  ratifies  the  marriage  (contracted)  by  the  Fuzoolee  by  express 


228  tHB   TAOOBE   LAW   LKCTURKS,    1891-92. 

words,  lie  sball  commit  a  breach  of  fais  oath :  (because  ratification  relates 
to  the  marriage  at  the  time  it  was  contracted  by  the  Fuzoolee,  and  in  this 
case  such  time  was  after  the  oath) ;  but  if  the  man  ratifies  the  marriage 
by  acts  such  as  sending  the  dower  or  such  like  things,  the  learned 
lawyers  have  differed  in  this  matter :  and  most  of  the  Mashaikhs  are  of 
opinion  that  the  man  shall  not  commit  a  breach  of  his  oath. 

2464.  (1564.)  And  if  a  man  appoints  another  man  his  Vakeel,  for  the 
purpose  that  the  Vakeel  should  give  the  man  in  marriage  to  a  woman; 
the  man  then  takes  oath  that  he  will  not  marry,  (saying  ^^  if  I  marry  a 
woman  then  she  is  divorced  ;'0  and  the  Vakeel  gives  the  man  in  marriage 
to  a  woman  :  the  man  shall  commit  a  breach  of  his  oath ;  because  the 
contract  made  by  the  Vakeel  relates  to  the  client  as  (if  the  contract 
had  been  effected  by)  the  words  of  the  client,  and,  therefore,  the  man 
shall  commit  a  breach  of  his  oath,  just  as  if  a  man  were  to  ratify  by 
express  words  the  marriage  contract  by  the  Fuzoolee  (as  in  paragraph 
1563  second  case). 

2466.  (1565.)  And  if  a  virgin  (i.e.,  one  not  already  married), 
swears  that  she  will  not  give  her  person  in  marriage  (that  is,  not  marry 
at  all),  and  her  guardian  gives  her  in  marriage  ;  and  she  keeps  quiet  (on 
the  information  being  conveyed  to  her) :  it  is  reported  from  Mahomed 
on  whom  be  peace,  that  he  (Mahomed)  has  said  that  she  shall  commit  a 
breach  of  her  oath,  and  that  he  (Mahomed)  has  rendered  her  permission 
(or  ratification)  by  acts  as  a  breach. 

2466.  (1566.)  A  man  swears  that  he  will  not  marry  a  woman ;  he 
then  marries  a  woman  by  an  invalid  marriage :  it  is  stated  in  the  work 
called  the  Kitab,  that  he  shall  not  commit  a  breach  of  his  oath :  the 
learned  lawyers  have  said  that  this  is  the  view  of  Aboo  Yusoof  and 
Mahomed,  on  whom  be  peace  ;  but  that,  according  to  the  view  of  Aboo 
Haneefa,  on  whom  be  peace,  the  man  shall  commit  breach  of  his  oath : 
but  the  correct  view  is  that  laid  down  in  the  Kitab  (of  Mahomed). 

2467.  (1567.)  A  man  says,  ^^  Every  woman  whom  I  shall  marry>  is 
divorced,"  intending  thereby  to  refer  to  the  women  of  such  and  such  a 
place,  or  intending  thereby  to  refer  to  Negro  women  or  other  (particular) 
women :  the  man  shall  not  be  believed  by  the  Eazee  according  to  the 
Zahir-i-Bawayet 

2468.  (1568.)  And  if  a  man  says,  <<  Every  woman  whom  I  shall 
ever  (or  for  all  time  to  come)  marry  "  or  says,  **  whom  I  shall  many  for 


mvOSCE  BBPENDENT   ON   UABElAaB.  229 

tUrtj  years,  is  divorced,  if  I  speak  to  so  and  so ;  '^  and  he  then  marries 
a  woman^  before  speaking  (to  the  so  and  so),  and  marries  another  after 
that  (tbat  is,,  after  speaking  to  the  so  and  so) :  every  woman  whom  he 
marrieB,  daring  that  time,  shall  become  divorced. 

Bat  if  his  oath  has  no  reference  to  time,  as  for  instance  when  he  says, 
«  Every  woman  whom  I  shall  marry  is  divorced  if  I  speak  to  so  and  so,'' 
and  he  marries  one  woman  before  speaking  to  the  so  and  so  and  marries 
another  woman  after  speaking  to  the  so  and  so,  then  she  whom  he  has  mar- 
ried before  speaking  to  the  so  and  so,  shall  become  divorced,  but  the 
woman  whom  he  marries  after  speaking  to  the  so  and  so  shall  not  become 
divorced. 

And  verily  has  this  case  been  discussed  before.  See  paragraphs  1452, 
1453  and  1454. 

2469-  (1569.)  And  if  a  man  says,  '^  If  I  speak  to  so  and  so,  then 
every  woman  whom  I  shall  marry,  is  divorced :  "  then  divorce  shall  not  be 
caased  on  the  woman  whom  he  marries  before  speaking  to  the  so  and 
10,  whether  the  oath  is  an  absolute  one  (that  is,  without  reference  to  time) 
or  one  which  has  reference  to  time. 

And  if  lie  intends  that  divorce  should  be  caused  on  the  woman  whom 
he  marries  before  speaking  to  the  so  and  so,  his  intention  shall  be  correct 
for  valid  and  operative) ;  because  speaking  to  the  so  and  so  admits  of 
taking  place  before  and  after  the  marriage  ;  and,  therefore,  divorce  shall 
be  caused  on  the  woman  whom  he  had  married  before  speaking  to  the  so 
and  so  by  virtue  of  his  intention,  and  divorce  shall  be  caused  on  the 
woman  whom  he  marries  after  speaking  to  the  so  and  so  by  virtue  of  the 
obvious  meaning  of  the  words  used  (in  the  oath)  :  and  therefore  divorce 
shall  be  caased  on  both  of  them. 

2470.  (1570.)  A  man  says,  "  Whichever  woman  I  shall  marry  is 
divorced :  *'  the  oath  shall  relate  to  one  woman  (only)  unless  the  man 
intends  all  women  (that  is,  women  generally). 

2471.  (1571-)  A.nd  if  the  man  says  in  Persian,  **  Whatever  woman 
I  shall  take  as  wife,  divorce  on  her :  "  this  shall  apply  to  every  woman 
whom  he  shall  marry. 

And  some  of  the  learned  lawyers  have  said  that  (in  this  case) 
the  divorce  shall  not  be  caused  except  on  one  woman,  and  they  have 
rendered  the  same  as  the  Persian  version  of  the  expression  (iu  Arabic), 
"  Whichever  woman  I  shall  marry." 

Bat  ^e-eorrect  view  is  that  first  stated. 


230  TH£   TAGOB£  LAW    LKCTUBES^   1891-92. 

2472.  (1572.)  And  if  a  man  sajs  in  Persian,  '*  Every  woman  what- 
soever, that  comes  in  my  marriage  (is  divorced) :  "  it  is  fit  that  this  oath 
shall  apply  to  every  woman  whom  he  shall  marry,  according  to  the  view 
of  them  all  (i.e.f  Aboo  Haneefa  and  his  two  disciples) ;  because  the 
man  renders  "  marriage "  as  the  quality  of  **  woman,"  and,  therefore, 
the  "  woman"  shall  be  understood  in  the  sense  of  universality  {Oomoom) 
on  account  of  the  universality  {Oomoom)  of  the  quality  {wusf). 

And  if  he  says  (in  Persian),  "  Whichever  I  shall  marry  (shall  be 
divorced) : ''  then  the  oath  shall  refer  to  every  woman  once,  unless 
he  intends  thereby  a  repetition  of  divorce  on  the  same  woman  (on  the 
occasion  of  fresh  marriage  with  her). 

2473.  (1573.)  And  if  thd  man  says  (in  Persian),  <'£verytime  that 
I  shall  marry  a  woman  :  "  this  oath  shall  include  every  woman,  and  the 
divorce  shall  be  repeated  on  every  woman  by  the  repetition  of  marriage 
(with  the  self -same  woman). 

2474.  (1574.)  And  if  a  man  says  (in  Persian),  '^  At  whatever  time 
that  I  shall  (marry  or)  take  woman  (she  shall)  be  divorced : "  this  oath 
shall  apply  only  to  one  woman  and  not  to  any  other  (and  after  one  mar- 
riage the  oath  exhausts  itself). 

2475.  (1575.)  And  if  a  man  says  (in  Persian),  *^  If  I  desire  such 
and  such  a  woman  "  or  says,  "  Every  woman  that  I  desire :  ^*  then  if  this 
is  said  at  a  place  where  people  imply  by  the  expression  ("I  desire,'0 
a  marriage,  divorce  shall  be  caused  :  but  if  this  is  said  at  a  place  where 
people  imply  proposal  (or  overture)  by  the  expression,  then  the  oath  shall 
not  be  correct  (that  is,  valid  and  operative)  and  divorce  shall  not  be 
caused  in  the  event  of  marriage  taking  place. 

And  according  to  our  idiom,  this  word  (desire)  means  marriage  and 
not  proposal  (or  overture). 

2476.  (1576.)  A  man  says  in  Persian,  <' If,  besides  thee,  I  take  a 
woman  (that  is,  marry) "  or  says,  "  If,  besides  thee,  I  have  a  woman  (that 
is,  a  wife)  then  she  is  divorced  "  or  says,  ^*  then  she  is  a  thousand  times 
divorced ; "  he  then  marries  a  woman  besides  her,  and  he  afterwards 
marries  another  (that  is,  a  third  woman):  the  woman  whom  he  marries  first 
(after  his  oath)  shall  become  divorced  and  not  the  woman  whom  he 
marries  (after  the  oath);  because  the  man's  expression  ^' woman"  includes 
only  one  woman. 

2477.  (1677.)    And  if  he  says  (in  Persian),  "If  to  me  there  be  in 


DITOSOK  DKPBNBVN7  ON  MARBIAGB.  231 

this  world  a  woman  (that  is,  a  wife),  then  she  is  thrice  divorced ;  "  he 
then  marries  a  woman  :  she  shall  become  divorced  :  and  if  he  marries 
another  woman,  she  shall  not  become  divorced^  for  the  reason  already 
stated  (in  the  previous  paragraph)  that  this  word  (that  is,  '^  woman  '') 
does  not  include  except  one  woman  (that  is^  it  applies  only  to  one  woman). 

2478.  (1578.)  A  woman  says  to  an  unknown  man,  **  I  have  given 
ffljself  in  marriage  to  thee ;  '^  the  man  says  ^^  then  thou  art  divorced  :  " 
the  woman  shall  become  divorced:  but  if  he  says,  "thou  art  divorced" 
(without  using  the  word  **  then  ")  she  shall  not  become  divorced,  and  this 
latter  expression  (that  is,  ^*  thou  art  divorced '')  shall  not  imply  an  accep- 
tance of  the  marriage,  because  this  expression  is  by  way  of  information. 
But  in  the  first  case  (that  is,  where  the  man  says  '^then  thou  art  divorced'^ 
the  word  t?ien  implies  acceptance  of  the  proposal  of  the  marriage 
which  emanated  from  the  woman  and)  the  husband  renders  her  divorce  as 
the  effect  of  her  marriage ;  and  her  divorce  cannot  be  regarded  as  the 
effect  of  her  marriage  unless  the  man  has  accepted  the  proposal  of  marriage; 
and  therefore  the  man's  expression  (that  is,  the  words,  "  then  thou  art 
divorced")  becomes  an  acceptance  of  the  marriage,  and  consequently  tbe 
divorce  is  caused  afterwards  (that  is,  the  man,  in  effect,  says,  "  If  thou 
give  thy  person  in  marriage  to  me,  I  have  accepted  the  marriage  and 
divorced  thee  "). 

2479.  (1579.)  A  man  says  "  Every  woman  whom  I  shall  ever  marry 
in  (i.  6.  within)  such  and  such  a  village,  is  divorced ;  "  he  then  takes  out 
a  woman  from  that  village  and  marries  her  :  the  woman  shall  not  become 
divorced,  because  the  man  has  not  married  her  in  that  village.  So  also 
if  he  does  not  take  her  out  of  that  village,  but  marries  her  in  a  village 
other  than  that  village,  (by  means  of  a  vakeel  for  instance)  he  shall 
not  commit  a  breach  of  his  oath  ;  because  the  condition  for  the  breach  of 
the  oath  is  tbe  marrying  her  in  that  village. 

2480.  (1580.)  And  if  a  man  says,  ^'  Every  woman  whom  I  shall 
marry  from  such  and  such  a  village  (is  divorced)  ; "  he  then  marries  a 
woman  from  that  village  (that  is,  belonging  to  that  village) :  the  man 
shall  commit  a  breach  of  his  oath  wherever  he  might  marry  her. 

2481.  (1581.)  A  man  says  "Every  woman  I  shall  have  (as  a  wife) 
at  Bokhara  (that  is,  every  woman  whom  I  shall  marry  at  Bokhara)  is 
divorced ; "  he  then  marries  a  woman  at  Bokhara ;  she  shall  become 
divorced :  bat  if  he  marries  the  woman  at  a  place  different  from  Bokhara 


THV  TAQOBC   tAW   LB0TURX8,   1891-92, 

and  then  takes  her  to  Bokhara^  then  the  Mashaikhs,  on  whom  be  peace, 
hate  differed  in  this  matter  :  some  of  them  have  held  that  the  woman 
shall  become  divorced  (having  construed  the  oath  to  mean  whatever  wife 
of  mine  shall  reside  at  Bokhara) ;  whilst  others  have  held  that  she  shall 
not  become  divorced  :  and  this  view  is  correct ;  because,  according  to 
ordinary  parlance  {oorf)^  the  words  imply  the  taking  place  of  marriage  at 
Bokhara. 

2482.  (1582.)  A  man  says,  ^^  If  I  marry  a  woman  from  the  daughters 
of  so  and  so,  then  she  is  divorced/'  the  fact  being  that  at  the  time  of  the 
oath,  the  so  and  so  has  no  daughter,  but  he  gets  a  daughter  born  after- 
wards, and  the  swearer  marries  such  a  daughter :  the  learned  lawyerfi 
have  said  that  the  man  shall  not  commit  a  breach  of  his  oath,  and  the  con- 
dition (for  the  validity  of  the  oath)  is,  that  the  daughter  should  be 
in  existence  at  the  time  of  the  oath,  and  what  comes  into  existence 
{Jiaadis)  after  the  oath,  shall  not  be  included  in  the  oath ;  just  as  if  a  man 
swears  that  he  will  not  marry  any  of  the  residents  of  '*  this  "  house,  tbe 
fact  being  that  there  is  no  resident  in  that  house  but  afterwards  some 
people  come  to  live  in  that  house,  and  the  swearer  marries  a  woman  from 
amongst  such  people,  the  man  shall  not  commit  a  breach  of  his  oath,  and 
the  existence  of  residents  in  that  house  is  a  condition  (for  the  validity  of 
the  oath)  at  the  time  of  the  oath.  And  this  view  is  in  accordance  with 
that  held  by  Mahomed,  on  whom  be  peace. 

But  by  inference  (Kyas)  from  the  sayings  of  Aboo  Haneefa  and  Aboo 
Yusoof,  on  whom  be  peace,  what  is  in  existence  at  the  time  of  the  oatb 
as  well  as  what  comes  into  existence  afterwards,  are  both  included  in  the 
oath  ;  just  as  if  a  man  swears  that  he  will  not  speak  to  the  son  of  so  and 
so  who  has  no  son  (at  the  time  of  the  oath),  but  who  gets  a  son  after- 
wards, and  the  swearer  speaks  to  that  son,  he  shall  commit  a  breach  of  bis 
oath  according  to  the  view  of  Aboo  Haneefa  and  Aboo  Yusoof,  on  whom 
be  peace,  but  he  shall  not  commit  a  breach  of  his  oath  according  to  that 
of  Mahomed,  on  whom  be  peace. 

2483.  (1583.)  And  if  a  man  says  '^By  God  I  shall  not  marry  a 
woman  from  amongst  the  residents  of  Koof a ;  he  then  marries  a  woman 
from  amongst  the  residents  of  Koofa,  such  woman  having  been  born  after 
the  oath  :  the  man  shall  commit  a  breach  of  his  oath  (according  to  all 
three). 

Mahomed,  on  whom  be  peace,  makes  a  difference  between  this  case 
and  between  the  case  (stated  in  1582)  relating  to  the  '^  daughter  of  80 


DIYOVCfi   PSPKffDBlTT  ON  MABRfAati.  233 

andflo;''  beoaase  (sajs  Mahomed)  the  residents  of  Eoofa  consti- 
tute a  tribe  {Koum),  who  cannot  be  counted,  and  therefore  (in  the 
case  of  the  residents  of  Koofa)  the  incentive  to  the  oath  is  not  anger 
on  account  of  the  swearer's  rights  in  reference  to  the  residents  (of  Eoofa) 
but  on  the  other  hand  the  incentive  to  the  oath  relates  to  the  place  of 
Eoofa  itself,  and^  therefore,  those  that  are  in  existence  (in  Eoofa)  at  tbe 
time  of  the  oath  as  well  as  those  who  come  into  being  afterwards,  are  both 
included  in  the  oath  :  on  the  contrary  in  the  case  of  ^^  the  daughter  of 
so  and  so/'  there  the  incentive  to  the  oath  is  the  swearer's  anger  on 
account  of  his  rights  in  reference  to  the  daughters  of  so  and  so,  and 
therefore  those  (of  the  so  and  so's  daughters)  who  are  in  existence  shall 
be  included  in  the  oath,  and  not  those  who  come  into  being  afterwards. 

2484.  (1584.)  And  if  a  man  swears  that  he  will  not  marrj,  '^  out  of 
(or  from  amongst)  the  women  of  Busora;"  he  then  marries  a  girl  who  is 
born  at  Busora,  who  is  brought  up  at  Eoofa  and  is  domiciled  {watun)  there : 
the  swearer  shall  commit  a  breach  of  his  oath  according  to  Aboo  Huneefa 
on  whom  be  peace ;  because  what  is  to  be  regarded  according  to  him  in 
this  matter  is  birth. 

2485.  (1585.)  A  man  swears  (in  Persian)  that  he  will  not  marry  <<out 
of  (or  from  amongst)  the  descendants  {Nuzad  or  lineage)  of  so  and  so;"  he 
then  marries  the  so  and  so's  daughter's  daughter :  the  learned  lawyers 
have  said  that  the  man  shall  commit  a  breach  of  his  oath  ^  because  this 
word  descendant  (Nuzad)  in  ordinary  parlance  includes  the  daughter's 
daughter  just  as  it  includes  son's  daughter. 

2486.  (1586.)  And  if  a  man  swears  that  he  will  not  marry  *'  out  of 
(or  from  amongst)  the  residents  {ahl-i-bait)  of  the  house  of  so  and  so;"  and 
he  marries  the  so  and  so's  daughter's  daughter :  he  shall  not  commit  a 
breach  of  his  oath ;  because  this  expression  (ahUi-bait)  does  not  include 
the  daughter's  children. 

2487.  (1587.)  A  man  says  '^  If  I  marry  a  woman  as  long  as  {ma 
doomio)  I  am  in  Eoofa,  then  she  is  divorced ; "  he  then  leaves  Eoofa  but 
returns  to  it  again,  and  marries  a  woman  (there) :  the  woman  shall  not 
become  divorced;  because  his  oath  was  confined  as  regards  time,  as  long  as 
he  was  to  be  in  Eoofa,  and  when  he  left  Eoofa  his  oath  came  to  an  end.  But 
if  he  leaves  Eoofa  himself  alone,  but  his  domicile  (watun)  remains  there, 
even  in  that  case,  he  shall  not  commit  a  breach  of  his  oath  unless  he  intends 
permanency  of  his  domicile  at  Eoofa  (that  is,  if  his  intention  is  to  take 
oath  not  to  marry  as  long  as  his  domicile  remains  at  Eoofa,  then  if  he 

30 


334  THE  TAOOBB  LAW  LBCTCTBEB^   1891-92. 

leaves  Eoofa  and  marries  elsewhere,  he  shall  still  commit  a  breach  of  his 
oath). 

2488.  (1588.)  A  man  says  to  his  parents,  '^  If  I  marry  a  woman  as 
long  as  you  both  are  alive,  then  she  is  divorced ;"  he  then  marries  a 
woman  whilst  they  are  alive:  she  shall  become  divorced  ;  but  if  he  marries 
another  woman  in  their  lifetime,  this  second  woman  shall  not  become 
divorced,  for  the  reason  stated  by  us  that  his  expression  "  woman " 
applies  only  to  one  woman.    (See  paragraphs  1576  and  1577). 

2489.  (1589.)  And  if  a  man  says  to  his  parents,  '^  Every  woman 
whom  I  shall  marry  as  long  as  (ma  doomtooma)  you  both  are  alive  "  or  says 
in  Persian,  "  Every  woman  whom  I  shall  desire  (as  wife,  &c.)  :'*  then 
every  woman  whom  he  shall  marry  during  then-  life  shall  become 
divorced. 

And  if  one  of  the  two  parents  dies,  then,  if  his  intention  was  not  to 
marry  during  the  life  of  one  of  them,  the  result  will  be  according  to  his 
intention :  so  also  if  his  intention  was  not  to  marry  during  the  lives 
of  both  of  them,  the  result  will  be  according  to  his  intention :  but  if  he  had 
no  (particular)  intention,  it  is  fit  that  his  oath  shall  not  continue  in  force 
after  the  death  of  either  of  them,  just  as  if  a  man  swears  that  he  will  not 
speak  to  the  brothers  of  so  and  so,  in  which  case  if  he  speaks  to  one  of 
the  brothers,  he  shall  not  commit  a  breach  of  his  oath. 

2490.  (1590.)  A  man  swears  he  will  ^^  not  marry  a  woman ;"  he 
then  marries  an  infant  girl :  he  shall  commit  a  breach  of  his  oath ;  bat  if 
he  swears  that  he  will  not  speak  to  a  woman,  and  speaks  to  an  infant  girl, 
he  shall  not  commit  a  breach  of  his  oath. 

2491.  (1591.)  A  man  says,  ^^  If  I  marry  a  woman  who  had  a  hus- 
band, then  she  is  divorced  ;  '^  he  then  divorces  completely  {bain)  his  own 
wife  (viz,,  the  wife  he  already  had  at  the  time  of  his  oath)  and  then  mar- 
ries her  again :  the  woman  shall  not  become  divorced ;  because  the  in- 
centive to  the  oath  was  the  anger  of  the  swearer  on  account  of  (i.e.* 
towards)  the  woman's  husband,  and,  therefore,  the  oath  shall  relate  to 
somebody  beside  himself* 

2492.  (1592.)  So  also  if  the  man  swears  that  he  '^  will  not  have 
sexual  intercourse  with  a  woman,  with  whom  a  man  has  had  sexual 
intercourse :  '*  it  will  still  be  open  to  him  to  have  sexual  intercourse  with 
his  wives  and  female  slaves. 


DIVOSCE   DEF£Ni)EKT  OIT  MAERIAOE.  235 

2493.  (1593.)  A  man  swears  that  he  **  will  verily  marry  in  con- 
cealment ; ''  he  then  marries  a  woman^  the  marriage  being  attested  by 
two  witnesses  :  this  marriage  shall  be  one  of  concealment ;  because  a 
marriage  is  not  capable  of  being  contracted  without  two  witnesses ;  and 
therefore,  the  marriage,  which  is  attested  by  two  witnesses,  is  not  held  to 
be  attended  with  publicity.  Therefore  if  the  man  marries,  so  that  the 
marriage  is  attested  by  three  male  witnesses,  then  the  man  shall  commit 
a  breach  of  his  oath. 

2494.  (1594.)  A  man  says  to  two  women,  "  If  I  propose  to  you  two 
(that  is,  make  overtures  of  marriage  to  you)  or  marry  you  two,  then  you 
two  are  divorced;"  he  then  proposes  to  both,  and  then  marries 
both :  the  man  shall  not  commit  a  breach  of  his  oath,  for  the  reason 
stated  by  me  as  regards  the  case  of  a  single  woman,  and  the  same  rule 
applies  to  the  case  of  two  women.     (See  2nd  part  of  paragraph  1553). 

2495.  (1595.)  A  man  knows  (to  a  certainty)  that  he  has  taken  oath 
for  the  divorce  of  every  woman  whom  he  was  to  marry  (that  is,  he  remem- 
bers to  have  taken  an  oath  thus — "Every  woman  whom  1  marry,  is 
divorced"),  but  he  does  not  remember  whether  at  the  time  he  took  the 
oath,  he  was  of  age  or  not ;  he  then  marries  a  woman  :  he  shall  not  com- 
mit a  breach  of  his  oath ;  because  he  doubts  the  correctness  (or  validity) 
of  the  oath,  and  he  shall,  therefore,  not  commit  a  breach  of  his  oath  on 
account  of  this  doubt. 

2496.  (1596.)  A  man  says,  "  If  I  marry  a  woman  up  to  (Ila)  five 
years,  then  she  is  divorced ;"  he  then  marries  in  the  fifth  year :  the 
woman  shall  become  divorced ;  because  his  oath  does  not  come  to  an  end 
before  the  expiration  of  the  fifth  year.  Dost  thou  not  see  that  if  a  per- 
son gives  a  lease  of  his  house  up  to  {Ila)  five  years,  then  the  fifth  year 
shall  be  included  in  the  lease. 

S487.  (1597.)  A  man  says  <^  If  I  eat  of  the  bread  of  my  father,  until 
I  have  married  Fatima,  (t.  e.,  before  I  have  married  Fatima)  then  every 
woman  whom  I  shall  marry,  is  divorced ;  "  he  then  eats  of  the  bread  (of 
his  father)  and  then  marries  Fatima,  she  shall  become  divorced ;  because 
when  he  eats  of  the  bread  before  marrying  Fatima,  {u  a.,  when  the  condi- 
tion comes  to  be  fulfilled)  then  he  (in  effect)  says  at  the  time  of  the 
eating  "  Every  woman  whom  I  marry,  is  divorced"  and,  therefore,  when 
he  marries  Fatima  after  the  eating,  Fatima  shall  become  divorced.    > 

2498.    (1598.)    But  if  he  says,  '^  Every  woman  whom  I  shall  marry^ 


236  THE  TAQOBI  LAW  LEGTUBES,  1891-92. 

as  long  as  I  have  not  married  Fatima,  is  diyoreed ;  '^  then  Fatima  dies,  or 
absents  herself  (i,  e.y  disappears) ;  and  the  man  then  marries  another 
woman :  this  woman  (so  married)  shall  become  divorced  in  the  event  of 
Fatima  having  disappeared)  but  she  shall  not  become  divorced  in  the  event 
of  Fatima's  death  ;  becanse,  in  the  case  of  Fatima  having  disappeared,  the 
man  marries  a  woman  different  from  Fatima,  daring  the  subsistence  of 
his  vow,  and  therefore  the  man  shall  commit  a  breach  of  his  oath  ;  but  in 
the  case  of  Fatima's  death,  the  man  shall  not  commit  a  breach  of  his  oath 
according  to  Aboo  Haneefa  and  Mahomed,  on  whom  be  peace,  because 
according  to  them,  the  man^s  oath  becomes  void  by  the  death  of  Fatima 
(because  possibility  of  Birr  or  fulfilment  is  removed  by  death)  and  he 
shall,  therefore,  not  commit  a  breach  of  his  oath  after  this  {%.  6.,  after  the 
possibility  of  fulfilment  has  passed  away). 

2199.  (1599.)  A  man  says,  ^^If  I  marry  such  and  such  a  woman, 
then  she  is  divorced ; "  then  a  Fuzoolee  (or  volunteer)  gives  that  woman 
in  marriage  to  the  man  without  her  permission  (that  is,  the  Fuzoolee 
acts  in  reference  to  the  woman) ;  she  then  ratifies  the  marriage  after 
this :  the  woman  shall  become  divorced.  Some  of  the  learned  lawyers 
have  held  that  it  is  fit  that  the  woman  shall  not  become  divorced ;  because 
the  man  commits  a  breach  of  his  oath  by  the  marriage  contracted  by  the 
Fuzoolee,  and  the  woman  is  not  under  his  marriage  before  she  ratifies 
the  marriage,  because  the  husband  commits  a  breach  of  oath  by  the 
contract  made  by  the  Fuzoolee ;  but  the  woman  does  not  come  under 
the  Nikah  of  the  husband,  before  she  ratifies  the  marriage;  therefore  the 
oath  exhausts  itself  without  there  being  any  consequence,  and,  there- 
fore, the  woman  shall  not  be  divorced. 

But  the  correct  view  is,  that  the  woman  shall  become  divorced ;  be- 
cause the  marriage  by  the  Fuzoolee  was  not  concluded  before  ratification 
(and,  therefore,  when  she  ratifies  the  marriage,  then  the  marriage  takes 
place,  and  the  consequence  of  the  oath  is  realised),  and  therefore  there  is 
no  breach  of  oath  before  the  ratification. 

And,  therefore,  if  the  man  takes  an  oath  that  he  will  not  marry  (at  all) 
and  then  he  marries  a  woman,  who  is  given  in  marriage  to  him  by  a 
Fuzoolee  (acting  in  reference  to  the  woman),  the  man  shall  not  commit  a 
breach  of  his  oath  before  the  marriage  is  ratified  by  the  woman.  (See 
paragraph  1568.) 

2500.  (1600.)  A  man  swears  that  he  will  not  marry  such  and  such 
a  woman,  or  swears  that  he  will  not  marry  any  woman  ;  he  then  marriea 


BIYOBCB   DEFEKDENT  ON   MARRIAGE.  237 

a  woman  by  way  of  an  inralid  marriage  and  then  separates  from  her,  and 
then  marries  her  by  way  of  a  valid  marriage :  he  shall  commit  a  breach  of 
hit  oath ;  because  he  committed  no  breach  of  his  oath  by  the  invalid 
marriage  (because  the  invalid  marriage  was  no  marriage  at  all)  but  he 
commits  a  breach  of  his  oath  by  the  valid  marriage.  (See  para- 
graph 1566.) 

2501.  (1601.)  A  man  swears  that  he  will  not  marry  any  woman  ;  he 
then  becomes  insane,  and  his  father  gives  him  in  marriage  to  a  woman:  the 
swearer  shall  commit  no  breach  of  his  oath  (because  it  was  his  father  who 
gave  him  in  marriage ;  and  although  marriages  by  a  father  of  his  adult 
son  are  dependent  on  the  ratification  by  that  son,  here  the  marriage  will  be 
valid  without  the  son's  ratification,  he  being  incapable  of  such  ratification 
either  by  express  words  or  by  his  acts,  and,  therefore,  the  marriage 
must  be  held  to  have  been  contracted  by  the  father) ;  on  the  contrary  (see 
paragraph  1564)  in  the  case  of  a  man  who  appoints  another  man  his 
Vakeel  for  the  purpose  of  giving  the  former  in  marriage,  and  who 
afterwards  swears  that  he  will  not  marry,  if  the  Vakeel  afterwards 
gives  the  man  in  marriage  to  a  woman,  the  man  shall  commit  a  breach  of 
his  oath  (because  the  Vakeel's  acts  are  the  man's  own  acts,  and  he  ought 
to  have  gone  and  prohibited  the  Vakeel  from  acting  on  his  behalf  any 
further). 

2502.  (1602.)  A  man  says  (in  Persian),  "If  I  give  my  daughter 
to  anybody  for  his  wife,  or  allow  that  they  (i.e.,  other  people)  should  give 
her  to  anybody,  then  he  (the  man  himself)  is  bound  to  do  so  and  so  {e,g,y  to 
free  a  slave) ;"  then  the  device  in  this  matter  is,  that  the  daughter  should 
appoint  a  man  as  her  Vakeel  to  give  her  in  marriage,  if  she  is  of  age, 
and  the  Vakeel  should  give  her  in  marriage,  and  the  father  should  say 
''I  do  not  permit  what  they  have  done/'  thus  the  marriage  shall  be  valid, 
(because  a  woman  of  age  can  give  herself  in  marriage)  and  the  father 
shall  not  commit  a  breach  of  his  oath,  (because  he  has  acted  within  his 
oath). 

2508.  (1603.)  A  man  swears  that  he  will  not  give  his  minor 
daughter  in  marriage  (to  anybody) ;  a  Fuzoolee  then  gives  her  in 
marriage,  and  the  father  ratifies  the  marriage  by  his  acts :  he  shall  com- 
mit no  breach  of  his  oath ;  just  as  if  a  man  swears  that  he  will  not  sell 
(a  thing)  and  somebody  else  sells  the  thing  without  his  order  (or  authority) 
and  the  swearer  receives  possession  of  the  consideration  (sumun) ;  when 
the  swearer  shall  not  commit  a  breach  of  his  oath. 


238  THE  TAGOBE  LAW  LECTURES,  1891-92. 

2504.  (1604.)  A  man  says  to  his  wife,  ^^  Every  woman  whom  I  shall 
marry,  verily  have  I  sold  her  divorce  to  thee  for  one  dirhem ;  '*  he  then  mar- 
ries a  woman,  then  the  wife  who  was  with  the  man  (that  is,  his  first  wife 
for  whose  satisfaction  the  oath  was  taken)  says,  when  she  comes  to  know  of 
the  Nikah  made  by  the  husband  with  the  other  woman,  ^'  I  have  accepted 
(the  purchase  of  the  Talaky  or  says,  "  I  have  divorced  her  "  {i.e.,  "  I 
have  accepted  the  purchase  and  I  have  divorced  her '')  or  says,  '*  I  have 
purchased  her  (that  is,  the  new  wife's)  divorce :  **  then  the  woman 
(newly)  married  by  the  husband  shall  become  divorced. 

And  if  the  woman  who  was  with  the  man  already,  {i.e.,  his 
first  wife)  says,  before  the  husband  marries  the  second  wife,  "  I 
have  accepted  (the  purchase  of  the  divorce),^'  then  her  acceptance 
shall  not  be  valid ;  because  this  amounts  to  acceptance  before  any  proposal 
was  made  (because  the  oath  means,  ^'  If  I  marry  a  woman,  then  I  sell  her 
Talak  to  thee  for  a  dirhem ;"  here  there  is  no  proposal  to  sell  at  all  before 
he  mames,  and  when  he  marries^  then  it  must  be  held  by  a  fiction  of  law 
that  a  proposal  comes  from  him  to  the  effect,  "  I  sell  the  Talak  to  thee  ;  " 
and  if  the  first  wife  then  says,  ^^  I  have  accepted,^'  this  is  a  true  sale;  and 
if  the  first  wife  says,  **  I  have  accepted  "  before  the  husband's  second 
marriage,  then  there  cannot  be  a  sale,  because  acceptance  has  been 
found  without  a  proposal  of  sale). 

2606.  (1605.)  A  man  says  (in  Persian),  ^^  Every  woman  he  might 
have  (as  wife)  for  thirty  years,  she  should  be  divorced  from  him;'*  intend- 
ing thereby  that  the  oath  shall  apply  to  a  woman  he  might  acquire  (as 
wife)  after  the  oath  (and  not  to  his  present  wife);  or  he  had  no  (particular) 
intention  :  then  the  wife,  who  is  with  him  at  the  time  of  the  oath,  shall 
not  become  divorced;  because,  according  to  ordinary  parlance,  this  (that 
is,  the  expression  used  in  the  oath)  refers  to  the  woman  whom  the  man 
may  acquire  (as  wife)  after  the  oath. 

The  lawyer,  Aboo  Leith,  on  whom  be  peace,  says,  that  the  man's  expres- 
sion  (in  Arabic),  "  Every  woman  who  may  be  for  me"  (which  is  the 
Arabic  rendering  of  the  expression  used  in  the  oath)  is  equivalent  to 
his  expression  (in  Arabic),  "  Every  woman  whom  I  may  marry." 

But  if  the  man  intends  (by  the  expression  used)  to  include  in  his 
oath,  the  woman  who  is  already  in  his  marriage  as  well  as  the  woman 
whom  be  might  marry  after  the  oath  during  the  aforesaid  time,  then  his 
intention  shall  be  correct ;  because  he  intends  to  include  the  woman  who 


DIYOBCfE   DEPBKDBNT  ON  KABBIAGK.  239 

might  be  in  his  marriage  at  the  time  of  the  condition,  if  the  oath  is 
dependent  (or  conditioned  as  regards  time). 

But  if  he  intends  his  oath  to  apply  to  his  present  wife  and  not  to  the 
wife  whom  he  might  acquire  after  the  oath^  then  the  present  wife  shall  be 
incladed  in  his  oath  by  the  effect  of  his  intention,  and  the  woman  whom 
he  might  marry  afterwards  shall  be  incladed  in  the  oath  by  the  force  of 
express  words  used ;  because  the  expression  used  apparently  applies  to 
the  woman  whom  the  man  might  acquire  afterwards  (as  his  wife),  and 
therefore  it  is  not  competent  to  the  man  to  take  away  the  application  of 
the  oath  to  her  whom  he  might  afterwards  acquire  (as  his  wife). 

So  also  if  the  man  says,  ^'  Every  woman  he  might  have  (as  his 
wife),"  without  specifying  any  time,  (the  effect  of  this  oath  is  the  same 
as  the  above). 

2506.  (1606.)  And  if  a  man  says  (in  Persian),  "  Every  woman  he 
might  have  (as  wife)  or  may  have  (as  wife)  i^'  then  our  Mashaikhs  and  those 
of  Balkh,  on  whom  be  peace,  have  said  that  this  expression  and  that  used 
in  the  above  case  (that  is,  in  the  previous  paragraph)  are  equivalent  (in 
regard  to  the  several  ways  in  which  the  case  might  be  looked  at) ;  be- 
cause his  expression  "  and  may  have  *'  (hashud)  is  intended  to  reiterate  the 
meaning  of  the  first  expression  used  {viz.y  might  have — boowud)  and  there- 
fore that  (second)  expression  (bashud)  shall  not  have  the  effect  of  altering 
the  meaning  of  the  first  expression  (as  might  be  supposed  by  regarding 
it  as  a  surplusage  causing  a  break  between  the  conditional  expression  and 
its  effect). 

But  the  Mashaikhs  of  Samarkand,  on  whom  be  peace,  say  that  this 
oath  is  not  validly  contracted,  because  the  second  expression  (bashud) 
only  expresses  the  same  meaning  as  the  first  expression  {boovmd)^ 
and  therefore  the  second  expression  is  a  surplusage,  and  it  constitutes 
an  interruption  between  the  first  expression  (boowud)  and  its  con- 
sequence (or  effect,  that  is  Jma,  viz.,  "thou  art  divorced ; ")  and  therefore 
it  is  fit  that  the  oath  shall  not  be  held  to  be  valid,  according  to  the  view  of 
Aboo  Haneefa,  on  whom  be  peace;  just  as  if  a  man  says  to  his  slave,  "Thou 
art  free,  and  free,  if  it  pleases  God,"  or  says  to  his  wife,  "Thou  art  divorced 
thrice  and  thrice,  if  it  pleases  Qod,''  in  which  case  the  repeated  word 
becomes  an  interruption  between  the  exception  (that  is,  the  expression  "if 
it  pleases  God'*)  and  between  the  first  word  (that  is,  the  word  "  free  "  or 
"  thrice,'*  first  used),  and  the  exception  shall  not  be  valid,  and  divorce  or 
freedom  shall  be  immediately  caused. 


240  THE  TAQOBR  LAW  tBCTOBBS,   1891-92. 

But  the  correct  view  is  that  taken  by  oar  Mashaikhs,  on  whom  be 
peace;  because  it  is  necessary  to  assign  a  meaning  to  the  expression^  as  far 
as  this  may  be  possible;  and  it  is  possible  to  assign  a  meaning  to  the  expres- 
sion (instead  of  the  whole  being  rendered  without  eflEect)  by  considering  the 
second  word  used  as  a  repetition  of  what  is  denoted  by  the  first  word;  but  if 
it  be  assumed  (that  is,  if  the  second  word  be  assumed)  as  surplusage,  then 
it  is  not  correct  that  every  surplusage  should  be  regarded  in  the  light  of 
an  interruption  :  dost  thou  not  see  that  if  a  man  says  to  his  wife,  who  is 
present  (before  him),  **  Thou  art  divorced,  oh  such  and  such  a  woman 
(calling  her  by  her  name),  if  thou  shalt  enter  the  house,'*  the  oath  is  ralid, 
and  calling  her  (by  saying  "  oh  such  and  such  a  woman,")  is  not  con- 
sidered as  an  interruption. 

2607.  (1607.)  And  if  a  man  says  (in  Persian),  "  Every  woman  whom 
he  might  desire  [Khdhud  i.e.,  marry — see  paragraph  1575)  and  whom  he 
might  have  i})oowud)  and  who  may  be  {bashud)^  as  his  wife,  is  divorced,  if 
he  does  not  do  such  and  such  an  act : "  the  learned  lawyers  have  said  that 
one  of  the  three  words  used  must  be  considered  as  surplusage  (because  a 
repetition  or  Takeed  is  made  by  the  use  of  a  second  word)  and  shall  be  a 
surplusage,  and  shall  constitute  an  interruption,  according  to  all;  but  this 
will  be  the  result  (viz.y  one  of  the  three  words  used  must  be  considered  an 
interruption)  if  the  man  does  not  intend  by  one  of  the  last  two  words 
used,  his  present  wife;  but  if  he  does  so  intend,  it  is  proper  that  his  inten- 
tion should  be  correct  (as  not  being  inconsistent  with  the  words  used) 
and  that  his  oath  should  also  be  valid  (because  then  the  first  word  would 
imply  fk  future  wife,  and  the  second  word  would  imply  Takeed,  or  repeti- 
tion of  the  first  word,  and  the  third  word  would  apply  to  the  present 
wife). 

2508-  (1608.)  And  in  a  place  where  it  is  valid  to  make  divorce 
dependent  on  marriage,  if  the  man  wishes  to  marry  a  woman  and  that 
she  might  (still)  not  be  divorced  (that  is,  if  he  wishes  to  avoid  the  oonse* 
quence  of  his  oath,  and  get  out  of  it),  then  (the  device  is  that)  he  has  two 
courses  open  to  him.  One  of  them  is  that  a  Fuzoolee  should  gi^e  the  man 
in  marriage  to  a  woman,  and  the  man  should  ratify  the  marriage;  and  the 
second  is  to  have  the  oath  rendered  void :  (see  paragraph  1614  posi).  The  first 
course,  in  our  time,  is  preferential,  and  this  is  quite  clear  (because  Aboo 
Haneefa  does  not  recognise  the  process  to  avoid  the  oath ;  Shafei  alone 
recognises  it) ;  and  if  the  swearer  intends  that  some  Fuzoolee  should  give 
him  in  marriage,  then  the  man  must  go  to  one  learned  in  law  {Alim)  and 


DIVOBCB  DEPflNBBNT  ON    IIABBUQE.  241 

B91J  to  him  (in  Persian),  ^'I  have  sworn  in  this  matter  in  this  way  (setting 
forth  his  oath),  and  I  am  in  need  of  my  marriage  being  contracted  by  a 
Fozoolee.  ^'  The  lawyer  (to  whom  these  words  have  been  addressed  and 
who  has  not  been  made  his  Vakeel,  but  who  knows  his  meaning)  should 
give  him  in  marriage  to  a  woman,  and  the  man  should  ratify  the 
marriage  by  acts  (e.  g.,  sending  her  the  dower);  the  man  shall  not  commit 
a  breach  of  his  oath. 

So  also  if  the  man  were  to  say  to  a  number  of  people  assembled 
[Jwnau{)y ''  I  am  in  need  of  getting  married  by  a  Fazoolee,"  and  one  of 
those  present  gives  him  in  marriage  to  a  woman,  and  the  swearer  ratifies 
the  marriage  by  his  acts  (he  shall  not  commit  a  breach  of  his  oath,  and 
the  Fuzoolee  shall  not  be  the  man's  Yakeel). 

2609.  (1609.)  So  also  if  a  man  says  (in  Persian)  to  a  number 
of  people  assembled  {Jumaut),  **  I  am  in  want  of  a  man  who  should  desire 
a  woman  for  me  (that  is,  who  should  give  me  in  marriage  to  a  woman),'' 
it  is  permissible  for  him  to  say  so,  and  this  shall  not  amount  to  authoris- 
ing any  person  as  Yakeel,  because  to  make  an  unknown  man  Vakeel  is 
void. 

2510-  (1610.)  And  if  a  man  says  to  another  man  (in  particular), 
**  Do  contract  a  Fuzoolee  marriage  for  me :  "  the  learned  lawyers  have 
held  that  this  amounts  to  making  that  other  man  a  Yakeel ;  and  if  the 
man  so  directed  gives  him  in  marriage,  then  the  man  (the  speaker)  shall 
commit  a  breach  of  his  oath. 

2511.  (1611.)  And  if  the  swearer  intends  (or  is  desirous)  to  ratify 
by  acts  the  marriage  contracted  by  the  Fuzoolee,  he  shall  ratify  the  same 
by  sending  the  dower,  and  not  by  kissing  and  not  by  touching  (because 
these  are  acts  which  are  lawful  after  the  marriage  has  been  ratified,  and 
the  ratification  must,  therefore,  be  by  other  acts ;  but  if  the  ratification 
is  done  by  kissing  and  touching,  the  ratification  shall  be  complete,  but 
the  kissing  and  touching  would  involve  sin,  as  having  been  found  before 
the  marriage  became  operative)  in  order  that  the  first  act  (between  the 
husband  and  the  wife)  might  not  be  found  before  the  marriage  has  become 
operative;  and  if  he  sends  her  a  present  Or  a  gift,  this  shall  not 
amount  to  ratification  (because  presents  are  made  to  strangers  also; 
there  should,  therefore,  be  something  which  is  peculiar  to  the  relationship 
of  husband  and  wife) ;  so  that  if  the  man  ratifies  the  marriage  by  words 
after  this  (that  is,  after  he  has  sent  presents  or  made  a  gift),  the  woman 
31 


sl^all  beoome  divorced  (as  the  consequence  of  his  oath  refened  to  in 
paragraph  1608). 

And  if  the  man  sends  to  the  woman  (to  whom  a  Fnsoolee  has  giren 
him  in  marriage)  her  dower,  and  he  afterwards  ratifies  the  marriage 
by  words,  the  woman  shall  not  become  divorced. 

Because  the  sending  of  presents  and  making  of  gifts,  is  not  a  thing 
specially  relating  to  marriage  relation  or  to  its  effect,  and  therefore  the 
same  shall  not  amount  to  ratification :  but  the  sending  of  dower,  on 
the  contrary  (shall  amount  to  ratification). 

2512.  (1612.)  And  if  a  man  says  (in  Persian)  to  one  whom  he  has 
divorced  by  {bain  or)  complete  divorce,  or  to  an  unknown  woman,  "  If 
any  person  takes  thee  as  wife,  and  makes  a  gift  of  thee  to  me,  then 
thou  art  divorced  : ''  this  oath  shall  be  void  because  he  does  not  refer  the 
divorce  to  the  cause  of  ownership  (that  is,  marriage  with  himself)  and 
therefore  the  oath  shall  not  be  valid. 

2518«  (1613.)  And  if  a  man  says,  '*  Every  woman  who  shall  enter  iq 
my  marriage  (that  is,  whom  I  shall  myself  marry],  is  divorced; "  and  a  Faz- 
oolee  gives  him  in  marriage,  and  the  swearer  ratifies  the  marriage  by  his 
acts:  the  learned  lawyers  have  said  that  this  expression  and  the  expression, 
*^  Every  woman  whom  I  shall  (myself)  marry"  are  of  equal  effect  (so  that 
the  marriage  by  the  Fuzoolee  ratified  by  acts  is  not  included  in  the  oath ; 
and  these  two  expressions  are  of  equal  effect  for  this  reason  namely) 
because  there  is  only  one  cause  for  the  woman  entering  in  the  marriage 
of  the  man,  and  that  cause  is  the  act  of  marrying,  and  therefore  when 
the  man  mentions  the  effect  (as  he  does  when  he  says  ^^Every  woman  who 
enters  in  my  marriage  '^)  the  result  is  the  same  as  if  he  mentions  the 
cause  {viz,,  the  act  of  marrying). 

And  thisi  is  an  illustration  of  the  rule  that  when  a  mai)  claims  the 
child  of  a  free  woman  (as  his  child),  or  makes  an  admission  regarding  the 
parentage  of  the  child  of  a  free  woman  (ascribing  the  parentage  to  him- 
self), this  shall  amount  to  an  admission  of  marriage  with  the  mother 
(because  the  cause  is  marriage,  and  the  effect  is  the  establishment  o£ 
parentage,  or  nv^), 

2614  (1614.)  Then  (in  continuation  of  paragraph  1608)  as  regards 
the  way  to  render  an  oath  void:  if  a  man  of  the  Hanifite  sect  says,  '*  When 
\  marry  a  woman,  then  she  is  divorced  thrice ; ''  and  he  then  goes  to  the 
K]\zee  and  demands  of  him  the  avoidance  (or  nullification)  of  the  oath ; 


mVOBCE   BSPBKBBNT  OK  MABBIAOC.  243 

tiien  if  the  Eazee  is  of  the  Hanifite  sect,  it  is  not  proper  for  him  to  nollify 
the  man's  oath^  becanse  if  he  does  so,  he  woald  be  acting  contrary  to  his 
oonTictions   (because,  according  to  Aboo  Haneefa,  an  oath  cannot  be 
nallified) ;  bat  it  is  fit  for  the  Eazee  (of  the  Hainfite  sect),  if  he  is  vested 
with  authority  to  appoint  a  Deputy  {Istikhlaf)^  to  send  the  swearer  to  a 
man  professing  the  Shafei  tenets  (that  is,  to  one  learned  in  the  law  of 
the  Shafei  sect   whether    he    be    a    Eazee    or   not),  without  maMng 
any    (positive)   order    on    the  man,  to  whom  the  swearer  is  sent,  to 
nullify  the  oath;  because  in  the  same  way  as  it  is  not  competent  to 
the  Eazee  to  make  a  decree  contrary  to  his  own  conviction,  it  is  likewise 
not  proper  for  him  to  direct  some  other  person  to  act  contrary  to  what 
his  (that  is,  the  Eazee's)  convictions  are  (that  is,  the  Eazee  must  not  him- 
self do,  or  get  somebody  else  directly  to  do  a  thing  contrary  to  the  prin- 
ciples of  his  particular  sect);  but  the  Eazee  shall  direct  the  referee  (that  is, 
the  person  of  the  Shafei  sect)  to  hear  the  case  of  the  two  parties  (because 
the  case  must  arise  after  marriage,  and  an  abstract  case  must  not  be  submit- 
ted to  the  Eazee)  and  make  a  decree  between  the  two  parties  (when  it  is 
expected,  according  to  what  has  been  laid  down  in  that  behalf  in  regard  to 
the  Eazee  of  the  Hanifite  school,  that  the  Shafei  referee  shall  decide 
according  to  the  doctrine  of  his  sect,  by  which  an  oath  can  be  set  aside  or 
dissolved,  though  not  according  to  the  view  of  Aboo  Haneefa). 

And  if  after  this  (that  is,  after  the  swearer  has  demanded  the  disso- 
lution of  his  oath),  if  the  first  or  the  second  Eazee,  takes  some  property 
(or  in  other  words,  bribe)  to  effect  this  purpose  (that  is,  to  dissolve  or  annul 
the  oath),  the  decree  for  the  nullification  of  the  oath  shall  not  be  valid, 
according  to  all  the  authorities,  and  his  decree  shall  not  be  operative.  But 
if  the  Eazee  takes  wages  for  writing,  then  if  he  charges  in  excess  of 
wages  dne  for  similar  work,  even  then  the  same  result  follows ;  but  if  he 
receives  (only)  to  the  extent  of  wages  for  similar  work,  then  this  circum- 
stance does  not  prevent  (or  affect)  the  validity  of  the  setting  aside  of  the 
oath :  bat  it  is  preferable  that  the  Eazee  should  take  nothing. 

And  if  the  swearer  goes  to  the  second  Eazee  (^.e.,  the  Shafei  referee), 
with  the  warrant  (or  letter)  of  the  first  Eazee,  the  second  Eazee  shall 
not  hear  the  swearer's  word,  and  he  shall  not  nullify  the  oath  except  in  the 
presence  of  his  opponent :  the  swearer  shall  then  produce  with  him  the 
woman  whom  he  married  (contrary  to  his  oath)^  and  the  woman  shall  lay 
claim  against  the  swearer,  that  she  is  verily  his  wife,  and  that  he  verily 
married  hw  for  a  hundred  dinars,  and  that  it  is  obligatory  on  him  to  pay 


244  THE  TAOOBE  LAW  LECT0BSS,   18^1-9^. 

her  dower  and  to  conform  himself  to  the  oLUgations  of  the  marriage^  con- 
sisting of  maintenance  and  residence,  and  other  matters;  and  the  man 
shall  then  say,  '^  Yes,  I  married  her  for  one  hundred  dinars,  except  that  I 
made  an  oath,  before  marrying  her,  that  ^  if  I  marry  a  woman^  then  she 
is  dirorced,'  and  although  I  married  her,  still  di7orce  was  caused  on  her 
before  I  had  sexual  intercourse  with  her,  as  a  consequence  of  my  pre?iou8 
oath ; "  then,  when  the  Kazee  (of  the  Shafei  sect)  hears  the  pleadings  of 
both  parties,  and  the  woman  demands  from  the  Kazee  an  order  for  the 
continuance  of  the  marriage,  then  the  Eazee  shall  say,  '^  I  ha?e  decreed 
that  the  oath  mentioned  by  thee  shall  be  void,  and  that  the  marriage 
shall  continue  between  you  two : ''  the  decree  so  passed  by  the  Kazee  of 
the  Shafei  sect  shall  have  effect  given  to  it,  and  the  woman  shall  become 
lawful  to  the  swearer.  And  it  is  not  necessary  that  the  annulment  (or 
avoidance)  of  the  oath  (so  decreed  as  aforesaid  by  the  Shafei  referee) 
shall  be  adopted  (or  promulgated)  by  the  Kazee  (of  the  Hanifite  sect) : 
but  if  the  latter  adopts  (or  promulgates)  the  same,  it  is  better. 

[Note.— According  to  Shafei,  the  expression  does  not  amount  to  an 
oath,  because  he  maintains  that  present  ownership  must  be  found  in 
order  that  the  oath  should  be  valid;  therefore,  according  to  him,  if  a  man 
says  to  his  wife,  ^^  If  you  enter  the  house  you  are  divorced, "  this  is  a 
valid  oath ;  but  it  is  not  a  valid  oath  for  him  to  say  to  a  woman,  <'  If  I 
marry  thee,  then  thou  shalt  be  divorced.''  But  according  to  Aboo  Haneef  a, 
both  oaths  are  valid.  In  the  present  case,  according  to  Shafei  there  is  no 
valid  oath,  and  therefore  the  marriage  is  valid,  and  the  Shafei  Kazee 
decrees  accordingly.   See  also  paragraph  742] . 

2515.  (1615.)  And  if  the  swearer  has  taken  several  oaths  with  re« 
f erence  to  the  same  woman,  saying,  in  reference  to  her,  repeatedly,  '<  If  I 
marry  thee,  then  thou  art  divorced ; ''  or  says  ''  As  often  {Kooluma)  as  I 
marry  thee,  thou  art  divorced ; ''  or  says  ^^  When  I  marry  a  woman,  then 
she  is  divorced,"  repeating  this  (that  is,  the  last  oath)  several  times ; 
then  when  the  Kazee  of  the  Shafei  sect  decrees  the  subsistence  (or  the 
continued  validity)  of  the  marriage  of  this  woman,  all  the  oaths  shall  be 
annulled  (with  reference  to  this  woman)  according  to  all  the  authorities. 

And  if  he  had  said  to  a  woman,  '<  When  I  marry  thee,  then  thou  art 
divorced ;  '*  and  he  then  says  to  another  woman,  "  When  I  marry  thee, 
then  thou  art  divorced;"  and  he  then  marries  one  of  them,  and  the  Kazee 
(of  the  Shafei  sect)  annuls  the  oath  as  regards  one  of  the  women^  and 


DIYOBCE   DBFBNDBNT  ON   MABBUQE.  245 

decrees  the  subsistence  of  the  marriage  with  her,  this  shall  not  amount  to 
an  annulment  of  the  oath  as  regards  the  other  woman  ;  so  that  if  he 
marries  the  other  woman  she  shall  become  di?orced  according  to  them  all. 
So  also  if  the  oaths  relate  to  many  women.  And  if  he  contracts  one 
oath  in  regard  to  several  women,  saying,  **  Every  woman  whom  I  shall 
marry  is  divorced/'  and  if  the  oath  is  annulled  in  regard  to  one  woman, 
(by  the  Shafei  Eazee),  the  learned  lawyers  have  regarded  this  as  a 
disputed  case,  basing  themselves  .on  inference  from  a  case  stated  in  the 
Moontnka  (which  is  as  follows). 

8616*  (1616.)  A  man  says,  ''Every  slave  whom  I  shall  own,  is  free;" 
he  then  becomes  the  owner  of  a  slave ;  the  slave  then  establishes  proof  by 
witnesses  regarding  bis  oath,  and  the  Kazee  decrees  that  the  man  did 
take  the  oath  and  also  decrees  that  the  slave  shall  be  free ;  the  man 
then  becomes  the  owner  of  another  slave,  the  question  is,  whether  the 
second  slave  is  obliged  to  establish  proof  by  witnesses  regarding  the  fact 
that  the  man  did  take  the  oath:  the  learned  lawyers  have  said  that 
according  to  the  view  of  Mahomed,  on  whom  be  peace,  it  is  not  necessary 
for  the  (second)  slave  to  establish  such  proof ;  and  that,  according  to  the 
Yiew  of  Aboo  Yusoof,  on  whom  be  peace, — and  that  is  a  tradition  from 
Aboo  Haneefa,  on  whom  be  peace,^the  slave  shall  be  obliged  to  establish 
such  proof. 

And  most  of  the  Mashaikhs,  on  whom  be  peace,  act  on  the  view  of 
Mahomed,  on  whom  be  peace,  in  cases  of  divorce. 

And  this  case  is  just  like  the  case  where  a  man  claims  against 
another  man,  that  the  former  is  the  Vakeel  on  behalf  of  so  and  so  who 
is  absent,  in  regard  to  all  (his  client's)  the  absentee's  rights  and  claims 
against  people,  and  that  the  absentee  has  owing  from  the  defendant  so 
much;  and  he  establishes  proof  by  witnesses  to  substantiate  this  (that  is, 
his  authority  and  the  debt),  and  the  Kazee  decrees  in  favor  of  the  man's 
general  agency :  the  man  shall  not  be  obliged  to  prove  his  agency  against 
other  debtors. 

2517.  (1617.)  A  man  says  to  a  woman,  <^If  I  marry  thee,  then  thou 
art  divorced ; "  he  then  marries  her  and  divorces  her  thrice ;  the  woman 
then  refers  the  matter  to  the  Eazee  to  get  the  oath  annulled :  the  Kazee 
shall  not  annul  the  oath;  because  if  the  Kazee  were  to  set  aside  the  oath, 
the  woman  would  become  thrice  divorced  by  the  immediate  divorces  caused 
after  the  marriage;  and  therefore  the  setting  aside  of  the  oath  or  Twmem 
by  the  Easee  would  not  end  in  any  result  (that  is,  when  the  oath  is  in  f  orce^ 


246  THB  TAGORB  LAW  LSCTUEES^  1891'-d2. 

then  at  the  time  of  the  marriage,  one  divorce  is  oansed  bj  the  effect  of 
the  oath,  and  the  woman,  being  one  with  whom  no  seznal  interooane 
is  had,  becomes  completely  separated,  and,  therefore,  there  is  no  snbjeet 
on  which  the  three  divorces  subsequently  given  conld  operate :  bat  if 
the  Ea£ee  were  to  set  aside  the  oath,  then  the  divorce,  which  was  contem- 
plated by  the  oath,  would  not  be  caused,  and  the  woman  would  remain  his 
wife,  but  then  the  three  divorces  caused  by  the  husband  after  the  marriage, 
as  immediate  and  instantaneous  divoroes,  would  be  operative,  and  there- 
fore, no  good  would  result  if  the  Eazee  were  to  set  aside  the  oath), 

2518.  (1618.)  And  if  a  man  of  the  Hanifite  sect,  tiiakes  divorce  de- 
pendent on  an  act  of  marrying  (or  marriage),  and  he  then  marries  a  woman, 
but  he  does  not  refer  the  matter  to  the  Kazee  (of  the  Hanifite  sect)  bnt 
makes  a  prayer  to  one  of  the  Shaf ei  sect,  who  gives  a  Fntwa  that  tiie 
divorce  has  not  been  caused,  it  is  not  proper  for  the  swearer  to  abide  by 
the  Futwa  of  the  Shafei  Eazee  and  to  give  up  the  principles  of  his 
own  sect;  because  it  is  obligatory  on  him  to  abide  by  the  view  which 
our  learned  in  the  law,  on  whom  be  peace,  take,  and  not  by  the  view  taken 
by  those  who  follow  the  Shafei  sect,  on  whom  be  peace,  and  the  Fatwa, 
given  by  those  who  follow  the  Shafei  sect,  shall  be  no  guide  for  the 
Hanifitos. 

2519.  (1619.)  And  if  a  woman  along  with  a  man  asks  another  man 
t6  ajrbitrate  for  them  in  such  a  matter  (that  is,  the  matter  to  avoid  an 
oath) ;  then  if  the  man  so  appointed  to  arbitrate  is  of  the  Hanifite 
sect,  his  order  (setting  aside  the  oath)  shall  not  be  operative;  bnt 
if  he  is  of  the  Shafei  sect,  then  the  learned  lawyers  have  differed  (on  the 
question  whether  his  order  should  be  carried  into  effect)  :  some  of  them 
have  said  that  his  order  shall  not  be  operative ;  because  his  order  is 
equivalent  to  a  Futwa :  the  correct  view  is,  that  his  order  shall  be  oper- 
ative on  them  (so  that  the  Eazee  shall  compel  the  parties  to  act  up  to  it 
without  himself  going  into  the  question  afresh).  Shums-ool  Ayma 
Hulwai,  on  whom  be  peace,  has  laid  down  that  the  order  of  the  arbitrator 
— in  a  case  which  (is  not  provided  for,  but  which)  must  be  inferred  (by  the 
process  of  reasoning  called  Eyas,  and  which  case  is  called  Moojtuhidat), 
such  for  instance  as  the  case  relating  to  Einayat  (or  indirect  expression 
of  divorce)  and  the  (case  relating  to)  divorce  depending  on  a  condition 
and  other  matters,-- is  effective;  and  it  is  not  competent  to  either  party  to 
resile  from  his  order  (that  is^  to  act  contrary  to  it)  after  the  order  has 
been  made. 


NVOBCE  DBPISBXNT  OV  lEABBUOB.  247 

Monlana  (Eazee  Ehan,  the  author  of  these  Fatawa),  on  whom  be  peace» 
says,  that  thia  point  {via.,  what  has  been  stated  aa  a  role  that  the  order 
of  the  Shafei  arbitrator  is  binding  ii|  reference  to  Moojtuhidat  questions 
eontrarj  to  the  kjas  qf  Aboo  Haneefa)  is  one,  which  is  ^t  to  be  known  but 
not  to  be  prom^lgated  (and  made  known  to  others),  with  a  view  to  avoi^ 
the  public  being  emboldened  to  resort  to  the  course  {viz.,  that  of  asking 
a  Sbafei's  opinion  on  such  matters  when  the  principle  of  his  own  sect  is 
unfavorable  to  him)  and  it  is  for  this  reason  that  the  Mashaikhs  have 
refrained  from  giving  Futwa  validating  the  order  of  an  arbitrator.  (See 
also  paragraj>h  742.) 

8B90l  (1620.)  And  if  the  man  and  wife,  appoint  a  man  arbitrator 
without  informing  him  that  thej  have  appointed  him  to  arbitrate  in  a 
particular  matter,  but  they  put  forward  their  case  before  the  arbitrator, 
and  the  arbitrator  arbitrates  between  them  ;  then,  according  to  the  view 
of  him  who  allows  arbitration  of  an  arbitrator  at  all,  this  arbitration  (of 
the  arbitrator,  who  was  appointed  to  arbitrate  in  a  matter  which  was 
disclosed  on!  j  in  the  statement  of  the  case  and  not  at  the  time  of  the 
appointment)  shall  be  valid ;  because  it  is  valid  to  appoint  an  arbitrator 
without  his  knowledge  (of  his  having  been  appointed  arbitrator). 

S581.  (1621.)  And  if  a  swearer  (who  had  taken  oath  that  ^^  if  I  marry 
a  woman,  then  she  is  divorced  ")  marries  a  woman,  and  the  swearer  does 
not  refer  the  matter  to  the  Kazee  (i.e.,  does  not  ask  the  Kazee  to  release  him 
from  his  oath)  so  that  the  woman  (disregarding  the  first  marriage),  marries 
another  husband  without  the  knowledge  of  the  first  husband,  and  then  they 
(that  is,  the  swearer  and  the  woman  married  by  him)  refer  the  matter 
to  the  (Shafei)  Eazee  (that  is,  ask  the  Eazee  to  set  aside  the  oath)  and 
both  of  them  state  their  case  to  the  Kazee^  and  the  Eazee  makes  an  order 
nallifying  the  oath  and  that  the  divorce  (involved  in  the  oath)  has  not  been 
caused,  the  Eazee's  order  shall  not  be  operative ;  because  the  marriage  of 
the  woman  with  the  second  husband  prevents  the  Eazee  from  making  an 
order  in  favor  of  the  first  husband.  And  the  nullification  of  the  oath 
of  the  swearer  (releasing  him  from  the  consequences  of  his  oath  and 
validating  his  marriage)  is  not  a  more  laudable  act  than  rendering  the 
second  marriage  void  (that  is,  of  two  things,  one,— to  set  aside  the  oath 
and  validate  the  first  marriage,  and  the  other,— to  maintain  the  second 
marriage, — the  latter  is  preferable  to  the  former).    Qod  knows  best. 


248  THie  TAOOBE  LAW  LVCTITBEB^    1891-92. 

Section  I. 

ON  BBNDBRING  UNLAWFUL  ON  ONE'S  SELF  THAT  WHICH  IS 

LAWFUL. 

2522.  (1622.)  A  man  says,  ^^Everj  thing  lawfol,  is  nnlawf  ol  to  me,'' 
or  says,  *^  Every  thing  made  lawful  by  God  is  nnlawful  to  me/'  or  says, 
^*  Every  thing  lawful  to  Moslems ;  "  and  the  fact  is  that  he  has  a  wife ;  and 
the  man  forms  (or  entertains)  no  particular  intention  at  the  time  of  taking 
the  oath  (whether  the  wife  is  also  included  in  the  oath) :  the  learned  law- 
yers have  differed  in  the  matter  {viz.,  whether  his  wife  shall  become 
divorced  or  not) :  Sheikh-ool  Imam  Aboo  Baker  Mahomed,  son  of  Fuzol, 
on  whom  be  peace,  and  the  lawyer  Aboo  Jaffer  and  Aboo  Bakur  Iskaf, 
and  Aboo  Bakur,  son  of  Syeed,  on  whom  be  peace,  eay,  that  the  man's  wife 
shall  become  bain  from  him  by  one  divorce  (that  is,  one  bain  divorce  shall 
be  caused  on  her) ;  and  if  he  intends  to  cause  three  divorces  by  his  oath, 
then  three  divorces  shall  be  caused;  and  if  the  man  says,  '^I  did  not  in- 
tend by  this  (that  is,  by  the  expression  used  in  the  oath),  a  divorce,''  he 
shall  not  be  believed  by  the  Eazee ;  because,  in  ordinary  parlance  {Oorf) 
this  expression  has  become  (a  formula  of)  divorce :  and  for  this  reason 
only  men  (and  not  women)  are  made  to  take  such  oaths  (because  a  wo- 
man has  no  power  to  divorce  her  husband) ;  then  if  the  man  has  only  one 
wife,  she  shall  become  completely  separated  (badn)  by  one  divorce  (that 
is,  one  bain  divorce  shall  be  caused  on  her) ;  and  if  he  has  three  or  four 
wives,  then  one  complete  {bain)  divorce  shall  be  caused  on  each  one  of 
them. 

2623.  (1623.)  And  if  the  man  swears  saying,  **  If  I  have  done  such 
and  such  a  thing,  (then  what  is  lawful  is  unlawful  to  me), "  the  fact 
being  that  he  really  has  done  the  act ;  and  he  has  one  wife  or  several 
wives:  all  of  them  shall  become  completely  separated  (that  is,  a  bain 
divorce  shall  be  caused  on  them  so  that  they  would  become  unlawful) ; 
and  if  he  bas  no  wife,  then  nothing  shall  be  obligatory  on  him  (by  way  of 
Kuffara  &c.,  as  the  consequence  of  a  breach  of  his  oath) ;  because  this  oath 
has  been  regarded  as  an  oath  of  divorce  (and  not  an  oath  by  God)  ;  and  if 
we  render  this  expression  into  an  oath  by  Qod,  then  the  oath  is  one  of  the 
Ghoomooa  (or  of  the  kind  relating  to  the  past  when  Kuffara  is  not  obliga» 
tory). 

2524.  (1624.)  A.nd  if  the  man  swears  in  this  form  regarding  a 
matter  which  is  to  happen  in  future  (saying  ^<if  I  do  so  and  so,  then  eveiy 
thing  made  lawful  by  Qod  shall  be  unlawful  to  me  ^') ;  he  then  does  the  act. 


DirOBCS  D8PENDINT    ON  MABBIAaV.  249 

and  be  has  no  wife :  it  is  obligatory  on  him  to  make  Kufara  (or  penance) 
for  his  oath ;  becanse,  making  upon  one's  self  nnlawf ul  that  which  is 
lawful  is  an  oath,  and  for  this  reason  if  a  man  says  to  another  (in  Persian), 
"It  is  {Haram  or)  unlawful  for  me  to  speak  to  thee,  *'  and  he  then  speaks 
to  him,  he  shall  have  to  pay  Kufara  (or  penance)  for  his  oath ;  just  as 
if  a  man  says  (in  Arabic),  ^^  By  God  1  will  not  speak  to  so  and  so  **  (in 
which  case  the  Kufara  is  obligatory,  and  so  will  it  be  obligatory  in  the 
pieyions  case  in  which  the  Persian  expression  was  used  and  in  which  the 
word  "  God  "  was  not  used). 

And  if  he  has  a  wife  at  the  time  of  the  oath,  but  she  dies  before  the 
condition  (of  the  breach  of  oath)  is  realised,  or  she  has  become  completely 
separated  without  liability  to  Iddut  (at  the  time  the  condition  of  the  breach 
is  realised  and  the  man  brings  the  condition  into  existence)  and 
then  (that  is,  after  the  death  of  the  wife,  or  after  she  has  become 
lain)  the  man  brings  the  condition  into  existence  (and  commits  a 
breach  of  his  oath),  Euffara  (or  penance)  shall  not  be  obligatory  on  him; 
because  (in  consequence  of  the  existence  of  the  wife  at  the  time  of  the 
oath)  his  oath  could  relate  to  the  divorce  of  his  wife  at  the  time  the  oath 
came  into  existence ;  (that  is,  at  the  time  of  the  oath  there  was  a  subject 
on  whom  the  oath  could  bring  its  consequence,  and  that  consequence  was 
divorce  on  the  wife  then  in  existence). 

But  if  he  has  no  wife  at  the  time  he  takes  the  oath  (and  consequently 
the  oath  becomes  one  in  reference  to  God)  and  he  afterwards  marries  a 
woman,  and  then  acts  so  as  to  bring  the  condition  into  existence,  the  learned 
lawyers  have  differed  in  this  matter :  the  lawyer  Aboo  Jaffer,  on  whom  be 
peace,  says,  that  the  woman  whom  the  man  marries  after  taking  the  oath 
shaU  become  completely  separated  {hain) ;  whilst  others  have  said  that  the 
woman  shall  not  become  divorced,  and  the  Fntwa  is  given  accordingly ; 
because  the  man's  oath  became  an  oath  by  God  (and  not  an  oath  relating  to 
divorce)  at  the  time  the  oath  was  brought  into  existence  (because  the  man 
had  no  wife  then);  and  therefore  this  oath  shall  not  be  an  oath  relating  to 
divorce  after  the  oath  has  become  (or  been  converted  into)  an  oath  by  God. 

8025.  (1625.)  And  if  the  man  says  (in  Persian)  <<  Whatever  I  hold 
by  the  right  hand  (is  unlawful  to  me) :  **  this  is  an  oath  relating  to 
divorce,  (and  not  an  oath  by  God)  although  he  might  have  no  intention  to 
cause  his  wife's  divorce. 

And  if  he  says,  '*  Whatever  I  hold  by  the  left  hand,  &c. "  then  this 
oath  shall  not  be  regarded  as  an  oath  relating  to  the  divorce  of  his  wife, 
82 


onless  the  man  haa  such  an  intention;  bQeaaae  Hhere  is  no  ngage  for  it  (that 
is,  according  tx)  nsage,  the  expression  containing  the  wovds  ^^iett  hand" 
is  not  used  for  diyorce).  And  in  the  work  called  the  Khoolaaa,  it  is* 
stated  that  this  expression  (relating  to  the  left  hand)  shall  not.  amount 
to  (an  oath  for)  divorce^  althongh  the  man  might  have  snch  an  intention; 
because  it  is  not  so  recognised  by  usage. 

And  if  the  man  says,  ^'  Whatever  I  have  been  holding  by  the  right 
hand-  is  unliEtwfnl  to  me ; ''  the  learned  lawyers  have  said  that  thts<i»  just 
as  if  he  says,  '*  Whatever  I  hold  by  the  right  hand." 

And  if  he  s^s, '' Whatever  I  hold  with  my  hand  '*  (without  spedfyiDg 
the  right  or  the  left  hand) :  the  learned  lawyers  have  differed  in  thia  matter; 
some  of  them  have  said,  that  the  expression  shall  not  become  (an  oath  for) 
divorce,  unless  he  has  such  an  intention,  whilst  otiiers  have  said  that^ 
according  to  usage,  that  expression  is  similar  to  the  expression,  <'  What- 
ever I  hold  with  my  right  hand/' 

2626-  (1626.)  A  man  says  to  his  wife,  **  Thou  art  upon  me  unlaw- 
fol,''  and  according  to  him  <' unlawful''  means  divorced';  but  he  entertains 
no  intention  of  divorce:  his  wife  shall  become  divorced ;  because  when  the 
word  according  to  him  means  divorce,  then  he  did  entertain  an  intention 
of  divorce. 

And  if  a  man  says  to  his  wife,  *^  Thou  art  with  me  in  unlawfulness,  " 
that  is  equivalent  to  his  saying,  ^'  Thou  art  upon  me  unlawful,''  and 
his  wife  shall  become  unlawful  to  him. 

3527.  (1627.)  And  if  a  man  says  to  his  wife,  ^  If  I  do  so  and  so, 
then  thou  art  my  mother,"  intending  thereby  that  she  shall  become 
unlawful  to  him :  this  is  void,  and  nothing  shall  be  obligatory  on:  him 
(^ither  by  way  of  Kuffara  or  divorce ;  because  the  man  does,  not  say,,  ''like, 
my  mother, "  in  which  case  this  would  amount  to  Zihar^  if  such  was  his. 
intention.  See  YoL  II,  Sharah  Vikaya,  page  83.  He  having  said,  "  my 
mother,."  it  is  not  possible  to  give  effect  to  the  expression  either  according 
to  its  real  or  ita  secondary  meaning,  and,  therefore,  it  comes  to  nothing  at 
all.  The  expression  shall  not  cause  divorce,  because  mother  is  perpetually 
unlawful,  or  Huram-i-Moabbud,  and  divorce  does  not  involve,  perpetual 
prohibition  as  its  consequence ;  and,  therefore,  that  expression  and  divorce 
are  inconsistent  with  each  other). 

'     968S)    (16^8.)    A  man  says  (in  Persian),  *'  My  wife  is.  unlawful^  and 
if  she  is  not  unlawful,,  she  iB  Kafir, ^*  intending,  nothing  by  sa^fingf  sp :  the 


blVOBCE   D£P£NDE1^T    6N  IIABBIAQE.  251 

learned  lawyers  have  said  that  tbe  man  shall  he  held  to  have  made  Eela 
(tbat  is,  made  a  vow  not  to  have  intercourse  with  his  wife)  and  they 
only  say  so  basing  themselves  on  what  is  laid  down  in  the  Eitab  (of 
Mabomed,  with  regard  to  another  case) :  and  in  the  Eitab  (of  Mahomed) 
it  is  stated  that  When  a  man  says  to  his  wife,  *^  Thou  art,  upon  me, 
unlawful,^  he  shall  be  held  to  have  made  an  Eela.**  'But  according  to 
nsage,  this  expression  amounts  to  divorce  (that  is,  it  opetutes  by  way  of 
divorce)  and,  therefore,  the  man  shall  not  be  held  to  hav6  made  tea  Eda. 

2629.  (1629.)  A  man  says  to  his  wife  twice, '^  Thou  iirt  upon  me 
unlawful;"  and  intends  divorce  by  the  first  ex;pression,  and  an  oath  by  the 
second:  then  this  will  be  in  accordance  with  his  intention  ;  because  when 
an  expression  is  impossible  in  its  real  meaning,  it  can  have  a  meaning 
gi?en  to  it  according  to  intention  (because,  by  tlie  first  use  of  the  expres- 
sion a  hain  divorce  has  been  caused,  and  the  woman  has  become  unlawful, 
therefore,  if  the  second  use  of  the  same  expression  were  to  be  referred  to 
tbe  real  meaning  of  the  expression,  that  meaning  would  be  useless,  because 
the  woman  has  already  become  unlawful;  and  therefore  if  he  intends  an  oath 
by  the  second  use  of  the  expression,  his  intention  shall  be  valid ;  so  that 
if  he  were  to  marry  her  afresh,  and  have  sexual  intercourse,  he  would  have 
to  make  a  Kuffara  for  the  breach  of  the  oath:,  all  this  is  when  the 
hnsband  has  not  had  sexual  intercourse  with  her ;  because,  if  he  has  had, 
then  he  can  give  her  two  express  divorces). 

S680.  (1630.)  And  if  a  man  says  to  both  of  the  wives  he  ha;s,  '^  You 
toth,  upon  Dae,  are  unlawful,''  intending  to  cau^e  three  divorces  on  one 
wife  and  one  divorce  on  the  other  wife:  both  ^f  the  womeoi  shall  be  thrice 
divorced  According  to  Aboo  Yusoof,  on  whom  be  peace;  and  Aboo 
Haneiefa,  on  whom  be  peace,  says,  that  the  matter  shall  be  as  the  man 
intended,  and  Futwa  is  given  accordingly. 

Motdana  (Eazee  Ehan,  the  author  of  these  Futawa),  on  whom  be 
peace,  says,  that  it  is  fit  that  the  view  held  by  Mahomed,  on  whom  be 
peace,  (no  express  view  on  the  precise  question  having  been  reported  from 
him)  j^ould  be  (taken  to  be)  similiar  to  that  held  by  Aboo  Haneefa  on 
irhom  be  peace. 

The  principle  of  this  case  is  the  rule  which  relates  to  the  question 
whether,  when  a  man  uses  the  formulSf  of  nvMur  (or  vow),  and  forms  an 
intention  both  of  an  oath  {oxYamemi)  and  of  a  nunur,  the  man's  intention 
8han  b&  carried  into  effect. 


252  THE  TAOOBl  LAW  LICTITBES^    1891-92. 

And  if  the  man  says,  ^'  I  intended  divorce  as  regards  one  wife  (by  the 
expression  stated  at  the  beginning  of  this  paragraph)  and  oath  in  regard 
to  the  other  wife,"  (that  is,  he  says,  '^my  intention  when  I  said  to  my  two 
wives, '  You  both  are  upon  me  unlawful,'  was  that  one  should  be  divorced 
and  the  other  should  be  unlawful  upon  me")  then,  according  to  Aboo 
Yusoof,  on  whom  be  peace,  divorce  shall  be  caused  on  both  the  wives;  but 
according  to  Aboo  Haneefa  and  Mahomed,  it  is  fit  that  the  result  should 
be  as  he  intended. 

[NoTB. — A  nuzur  or  vow  is  to  render  obligatory  or  Wajib  on  one's  self 

what  is  Moobah  or  permissible:  the  formula  or  Seegha  of  it  is — **Aluyya  or 

upon  me;"  e.g.^  ''I  have  made  the  fast  of  Bajub  obligatory  on  me."  Tumeen 

or  oath  is  to  render  unlawful  that  which  is  lawful.    A  vow  necessarily 

involves  an  oath :  when  the  vow  is  to  fast  in  Bujub,  then  there  is  necessarily 

an  oath  not  to  eat  and  drink:  by  the  oath,  what  is  the  Zid  or  contrary  of  the 

particular  item  of  Moobah  or  thing  lawful  referred  to  in  the  Tumeen  is 

rendered  haram  or  unlawful.    There  is  no  difference  between  the  three 

Imams  in  four  cases  : — Utly.  When  a  person  uses  the  formula  of  vow 

or  nuzuVf  and  has  no  particular  intention,  then  the  result  is  that  the  matter 

referred  to  in  the  vow  shall  be  obligatory ;  and  in  the  absence  of  the  vow 

being  carried  out,  the  person  shall  be  sinful ;  but  Kufara  shall  not  be 

obligatory;    becaase   there  is   no   Tumeen, — 2n^Zy,  When   there  is  an 

intention  of  a  vow  or  nuzur  alone,  without  any  intention  regarding  the 

oath. — Srdly,  When  there  is  an  intention  of  a  vow  or  nuzur,  and   a 

negation  of  intention  regarding  oath  or   Tumeen.    In  the  2nd  and  3rd 

cases  the  result  is  the  same  as  in  the  1st  case. — 4<&Z^^  When  there  is  an 

intention  of  an  oath  or  Tumeen,  and  negation  of  intention  regarding 

vow  or  nuzur :  here  the  result  will  be  only  an  oath  and  not  a  vow.    The 

fifth  is  where  there  is  an  intention,  both  of  a  vow  or  nuzur  and  an  oath 

or  Tumeen :  here,  according  to  Aboo  Haneefa  and  Mahomed,  the  result 

.  will  be  both  a  vow  and  an  oath ;  but  Aboo  Yusoof  says,  the  result  will 

.  only  be  a  vow.    The  eixth  case  is  where  there  is  an  intention  of  an  oath 

or  nuzur  without  a  negation  of  a  vow  or  nuzur.      Here  also,  according  to 

Aboo  Haneefa  and  Mahomed,  the  result  will  be  both  a  vow  and  an  oath; 

but  Aboo  Yusoof  says,  the  result  will  be  only  an  oath.    The  //{&  case 

applies   to  the    text   in    the   present   paragraph.    The    formula  used 

is    that   applicable   to   vow,   because    the   man   renders    obligatory  on 

him  the  divorce  of  his  wife,  which  is  only  a  Moobah  or  permissible  act : 

then  the  analogy  as  regards  two  intentions  in  the  fifth  case  is  pursued  fur- 


biYOBCE   DBPEKDSNT  ON  MASSUGE.  253 

ther :  Aboo  Yusoof  does  not  allow  two  intentions,  and,  therefore,  tlie  in- 
tention  to  give  three  divorces  prevails  as  regards  both  the  wives,  and  the 
intention  of  three  divorces  prevails  upon  the  intention  of  one  divorce  as 
being  more  consistent  with  the  meaning  of  the  word,  ^'  Unlawful,"  in  the 
formula  used  by  the  husband :  but  Aboo  Haneefa  and  Mahomed  hold 
both  intentions  to  be  valid  in  the  fiflh  case,  and,  therefore,  by  analogy,  in 
the  present  case,  the  result  shall  be  as  intended  by  the  husband.] 

2631.  (1631.)  And  if  a  man,  who  has  three  wives,  says  to  them, 
^'  Ton  all,  upon  me,  are  unlawful "  and  intends  to  cause  three  divorces 
on  one  of  them,  and  intends  an  oath  as  regards  another,  and  intends  a 
falsehood  as  regards  the  third  :  the  learned  lawyers  have  said  that  each  of 
the  wives  shall  become  divorced  thrice :  Moulana  (tbe  author  of  these 
Fatawa),  on  whom  be  peace,  says,  that  it  is  proper  that  this  should  be 
the  result  according  to  the  view  of  Aboo  Yusoof,  on  whom  be  peace, 
but  that  according  to  inference  {Kyas)  from  the  view  taken  by  Aboo 
Haneefa  and  Mahomed,  the  result  should  be  according  to  the  intention  of 
the  man  (so  that  one  wife  shall  become  thrice  divorced,  and  as  to  another, 
the  expression  will  be  an  oath  not  to  approach  her,  so  that  if  the  man  has 
sexual  intercourse  with  her,  he  shall  be  liable  to  penance  or  Kvffara^  that 
is,  expiation,  and  as  to  the  third  wife,  the  expression  will  be  of  no  effect: 
be  it  noted  that  the  expression  amounts  to  a  divorce  only  in  consequence 
of  0<yrf  as  stated  in  paragraph  1628;  and  therefore  when  the  man  intends 
it  to  be  an  oath  it  is  not  a  divorce  and  does  not  effect  separation). 

2832.  (1632.)  A  man  has  in  his  hands  a  number  of  dirhems,  and  he 
says,  ''These  dirhems  upon  me  are  unlawful; ''  he  then  purchases  some- 
thing with  them  :  he  shall  commit  a  breach  of  his  oath  (and  he  shall  have 
to  make  Kufara)  ;  but  if  he  makes  a  gift  of  them,  or  gives  them  in  Siidha 
(charity),  he  shall  not  commit  a  breach  of  his  oath ;  because  by  taking  such 
an  oath,  it  is  not  intended  that  the  exercise  of  all  acts  of  disposition 
should  become  unlawful,  but  what  is  intended  is  only  the  prohibition 
against  what  specially  appertains  to  them  in  mosieases,  and  that.is  .to  use 
them  in  making  purchases. 

2B83.  (1633.)  And  if  a  man  says,  ''This  wine,  upon  me,  is  unlaw- 
ful,^' and  he  then  drinks  it:  Aboo  Haneefa  and  Aboo  Yusoof,  on  whom  be 
peace,  have  differed  in  this  matter :  one  of  them  (which  of  th:em  cannot 
be  ascertained)  says,  that  £ii^ara  shall  be  obligatory  on  the  man;  and  tbe 
other  says  Kufara  shall  not  be  obligatory  on  him ;  because  (this  does  n6t 


^4  TQl  TAQOfiE  LAW  LtCtV'KEB,    1891-92. 

ftmoant  to  an  oatli,  iniEismuch  as)  be  has  merely  given  information  of  what  is 
correct  (and  expressed  a  fact) ;  but  the  Fntwa  is,  that  the  man'^  intention 
Shan  be  enquired  into;  so  that  if  he  merely  intends  an  information 
(or  a  statement  of  what  is  a  fact  and  a  correct  postulate  as  regards  wine) 
then  he  shall  not  be  obliged  to  make  a  Kuffara;  but  if  he  intends  an  oath, 
then  Kuffara  shall  be  obligatory  on  him;  and  in  the  absence  of  any  inten- 
tion, the  man  shall  not  be  liable  to  Kuffara. 

SSM*  (1684.)  A  man  says,  ^*  Wbtft  God  has  made  lawful  is^ipc^n  me 
tojolsmiui;"  he  then  says  (in  Persian),  ^<  And  whatever  I  shall  hold  by 
the  right  hand  is  unlawful  on  me  (which  is  an  indirect  mode  of  divorcing 
the  wife)  if  I  have  done  such  and  such  an  act/'  the  fact  being  that  he  has 
Terily  done  the  act :  the  learned  lawyers  have  ^id  that  (the  result  is  that) 
his  wife  shall  become  completely  s^arated  from  him  (hain)  with  one 
.divorce  ^that  is,  one  div(»rce  shall  be  caused  on  her)  $  because  making 
tbe  divorce  dependent  on  a  thing  which  has  already  taken  place  (e.g.,  in 
Hie  second  expression  in  which  the  words  used  were — '^  If  I  have  done 
4rach  and  such  an  act,"  the  act  had  already  beeti  done)  amounts  to  the 
immediate  (or  Tutyeee  that  is,  instantaneous)  causing  of  the  divorce :  and 
when  the  woman  has  already  become  completely  separated  {bain)  by  the 
first  mentioned  expression,  then  the  second  divorce  involved  in  the  second 
'expression  shall  not  affect  her  (that  is,  the  firert  expression  caused  one 
^▼oroe,  and  the  second  expression,  which,  although  expressed  in  the  form  <^ 
a  condition,  also  has  the  effect  of  causing  an  immediate  divorce;  but  the 
woman  having  become  completely  separated  by  the  first  divorce,  the  second 
divorce  shall  not  be  caused  on  her;  because  there  is  nothing  to  shew  that  the 
intention  is  to  cause  another  divorce,  and  the  second  expression  shall  be 
considered  as  an  explanation  of  the  first  expression;  see  Futawai  Alumgiree 
Vol.  I,  page  533,  where  it  is  laid  down  that  if  the  husband  gives  one  6min 
divorce,  and  then  says,  ** Thou  art  bain"  only  one  divorce  shall  be  the 
result;  but  if  he  says,  ''Thou  art  divorced  6aif^ ''  then  another  divorce 
shall  be  caused). 

And  if  the  (condition  or)  dependence  (in  the  oath)  is  upon  a  future 
event  (i.e.,  if  he  says,  "  If  I  will  do  such  a  thing"  instead  of  saying,  "if 
I  iiat^  "done  such  and  such  an  acf)  and  the  man  then  does  tibe  act  by 
whioh  liie  condition  comes  into  existence,  then  two  divorces  shall  l^ 
GMsed  on  her  (because  the  expr^ssibn*--'' what  God  has  made  lawful  is 
upon  me  ufilawfuP  is  used  in  the  past  sense,  the  meankig  being  ^  has 
toco»e  vpeii  me  uniiwful ; ''  ther^ore,  if  lihe  expression  which  follows 


Uhasapafit  senBOj^  then  the.  seconcl  expcession:  i^  oapaUe  o£  being  an, 
explanation  of  the  first  expression,  but  if  the  second,  expression  refers  to  a^ 
fatnz^  erent,  then  the  second  expression  cannot  becomei  an  explanation  o£ 
the  first  expression). 

208B.  (163&)  A.  man  aajs  to  his  wife  ia  a  stab  eithev  of  anger  or  o£ 
calmness  of  mind,  ^*  Thou,  npon  me,  art  nnlawf ol ;  then  get  Khoola  fnont 
me:"  one  complete  (bam),  divorce  shall  be  caused  on  her  whether  he 
iniiends  a  divorce  or  not*. 

3SflB.  (1686.)  And  if  a  man  says  to  hia  wife  (in  Persian),  '<  Deser- 
ted, deeerted,  nnlawfal,  nalawfnl "  bat  sajs,  **  I  did  not  intend  divorce 
by  these  words :  '**  he^  shall  not  be  belioTed  by  the  Kazee ;  becanse  his 
expression  *'  deserted  **  and  *'  unlawful "  are  words  of  diyovee,  he  shall 
therefore,  not  be  believed ;  and  the  learned  lawyers  have  said  that  the 
woman  shall  become*  thrice  divorced  (because  he  mentioned  the-  divorce 
four  times);  because  the  divorce  caused  by  his  expression  "deserted" 
is  one  reversible  divorce,  and  when  he  repeats  the  same  expression 
then  two  reversible  divorces  are  caused ;  and  a  third  divorce  is  caused 
by  his  expression'  "  Unlawful,  unlawful"  (that  is,. in  reality,  four  divorces 
are  caused,  but  three  being  enough^  the  fourth  goes  for  nothing). 


Section  II. 

ON  DIVOEOE  CA.USBD  BY  THE  VAKEEL  (OB  AGENT);  OE  BY  THE  WOMAN 
HBB8ELF  (WITH  AUTHORITY  PEOM  THE  HUSBAND). 

2637.  (1637.)  A  man  vests  the  authority  to  divorce  in  the  hands  of 
his  wife;  the  woman  says  to  her  husband,  ^' I  have  divorced  thee:'' 
this  act  shall  be  void  just  as  if  the  husband  refers  the  divorce  to  him- 
self (saying  I  have  divorced  myself) ;  but  if  she  says  at  the  meeting  (her 
authority  to  divorce  herself  having  been,  by  the  expression  used  here, 
confined  to  divorcing  herself  at  the  same  meeting),  "  Thou  art,  upon  me 
unlawful, "  or  says,  "  Thou  art  bain  from  me,  *'  or  says  "  I  am  unlaw- 
ful on  thee,  *'  or  says,  "lam  bain  from  thee,"  then  the  woman  shall 
become  completely  separated  (bain)  with  one  divorce,  just  as  if  the 
hasband  were  to  refer  the  unlawfulness  to  his  own  self  (saying  "  I  am 
untowf  nl  on  thee  '')• 

And  if  she  says,  *'Thoa  art  bain*'  without  adding  "from  me,"' 
or  sftjis^  *'  Thou  wt  unlawful "  wittiout  saying  "  upon  me, "  then  her 
expreeeion  shall  be  void  {batil)  ;  because  the  separation  of  the  woman: 
(in  the  asnse'  thail  tha  vebdionabip  ot  husband  and  wife  has  come  to  an^ 


256  THB  TAaOBB  LAW  LBCTUEKS,  1891-92. 

end)  and  anlawfalness  of  her,  mostlj  does  not  take  place  except  when  the 
ownership  of  marriage  is  at  an  end;  and  therefore  the  separation  as  refer- 
red  to  the  woman  and  the  unlawfulness  as  applied  to  her,  wiU  cause 
divorce ;  bat  mere  (or  absolute)  separation  and  unlawfulness,  (as  ex- 
pressed in  the  expression  in  which  reference  is  not  made  by  her  to  herself) 
will  not  be  sufficient  to  cause  divorce. 

And  if  she  says,  "  I  have  withheld  hands  **  without  saying  *'  my 
(bands),"  she  shall  not  become  divorced;  just  as  if  the 'husband  says 
*' Exercise  thy  authority"  (Jkhtary — an  iudirect  mode  of  vesting  the 
wife  with  authority  to  divorce  herself)  intending  thereby  to  vest  the 
wife  with  authority  to  divorce  herself,  and  the  womau  says,  '*  I  have 
exercised  authority, "  no  divorce  shall  be  caused  (unless  she  says  ^^Over 
myself"  or  nufsy). 

2638.  (1688.)  And  if  the  man  says  to  his  wife,  ^'  Exercise  thy 
authority"  and  the  woman  says,  '^I  have  exercised  authority,"  and  then 
says,  **  I  meant  myself  (nw/iy);"  then  if  she  says  so  at  the  same  meeting, 
she  shall  become  divorced  and  she  shall  be  believed  (by  the  Kazee) ;  but  if 
she  says  so  after  standing  up  at  the  meeting,  she  shall  not  become  divorced, 
and  her  word  shall  not  be  accepted ;  because  the  woman  has  authority 
to  (exercise  her  authority  and)  create  {Insha)  the  divorce  as  long  as  she 
remains  in  the  same  mujlisy  and,  therefore,  her  word  (expressed  at  the  same 
meeting)  shall  be  accepted,  contrary  to  the  case  where  she  says  so  after 
standing  up  at  the  meeting. 

2639.  (1639.)  A  man  vests  the  authority  to  divorce  in  the  hands 
of  his  wife :  the  authority  shall  not  be  vested  in  her  hands  until  sbe 
knows  of  it ;  so  that  if  she  divorces  herself  before  knowing  that  she  has 
been  vested  with  such  authority,  the  divorce  shall  not  be  caused  on  her. 

2640.  (1640.)  A  man  says  to  his  wife,  "  The  authority  to  divorce 
my  wives  is  in  thy  hands, "  or  says  to  her  **  divorce  whichever  of  my 
wives  tliou  pleaseth ; "  she  then  divorces  herself :  the  divorce  shall  not 
be  caused ;  and  verily  have  we  discussed  this  matter  before,  (See  para- 
graph 1462). 

2641.  (1641.)  A  man  says  to  his  wife,  '*The  authority  of  three 
divorces  is  in  thy  hands,  if  thou  were  to  release  me  from  thy  dower, " 
and  the  wife  says,  "  Make  me  Vakeel  with  authority  that  I  may  divorce 
ipyself  ^  "  the  man  then  says  to  her,  "  Thou  art  my  Vakeel  to  divorce 
thyself ; "  the  woman  then  stands  up  at  the  meeting :  her  authority  shall 


8Q«ik  of  h&t  bandar  lo  that  i£  she  divoredB  hertdf  (after  she  has  aboocl^o^ 
at  the  place  where  she  bad  been  seated),  the  dlvorea  dliaii  not  bd  oaoaed^ 
hecnue  conatitatiiig  the  wife  a  Vakeel  to  dhionsa  herself^  is  eatmrting 
hav  {Ti^fweg)  with  authority  to  divoroe  herself ^  and,  tinerefoxej  the  aathoritj' 
if  confiaad  ta  the  meeting ;  and  i£  she  divorces  herself  at  the  meetings 
then^  if  she  first  releaaea  her  husband  from  her  dower  (and  then  diroroes* 
herself),  she  shall  become  divorced ;  bat.  it  she  does  not  release  him 
from  her  dower  (before  divorcing  herself),  then  she  shall  not  beeome 
divorced ;  because  the  aathoritj  is  vested  in  her  with  the  oondition  that 
she  shall  release  the  husband  from  her  dower. 

[Note.  IE  a  Vakeel  is  entrusted  with  authoritj  in  some  matter^  the. 
exercise  of  that  auUK^ity  is  not  confined  to  the  meeting  where  the  authoritj 
is  given ;  and  the  Vakeel  is  at  liberty  to  exercise  the  authority  whenever  and 
wherever  he  chooses  consistently  with  the  terms  of  his  authority:  but  here, 
although  the  woman  was  apparently  appointed  the  Vakeel,  still  she  was  not, 
in  reality,  appointed  a  Vakeel,  inasmuch  as  the  business  concerned  her  own 
self;  therefore  the  appointment  was  not  Towked  but  Tujweez;  and  the  latter 
means  the  making  another  person  owner  of  an  act  which  appertains  to 
the  person  making  the  Tufweez]. 

2642.  (1642.)  A  man  says  to  his  wife,  *^  The  authority  to  divorcO' 
thyself  is  in  thy  hands  up  to  (or  for)  ten  days  :  "  she  shall  have  authority 
vested  in  her  hands  from  the  time  the  man  so  expressed  himself  for  ten 
days,  counting  from  the  moment  when  the  husband,  said  so ;  because 
vesting  the  wife  with  authority  admits  of  being  circumscribed  by  time 
and  the  particle  '^  up  to''  (Ila)  expresses  the  limit  (or  termination,  i.e., 
Ohait^  I  on  the  contrary,  if  the  man  says,  ^^  Thou  art  divorced  up  to 
(IZa)  ten  days,'^  the  woman  shall  verily  become  divorced  after  ten  days, 
because  divorce  is  a  thing  which  does  not  admit  of  being  circumscribed 
{Towkeef)  by  time,  and,  therefore,  here  the  expression,  "up  to*'  (Ila)  shall 
mean  '<  after ''  (and  the  meaning  is  not  that  the  woman  shall  remain 
divorced  for  ten  days). 

2S43.  (1643.)  And  if  a  man  says,  "The  authority  to  divorce 
thyself  is  in  thy  hands  up  to  [Tla)  ten  days  **  and  intends  that  she 
shall  have  authority  in  her  hands  after  ten  days :  his  intention  shall 
be  correct  morally  speaking  as  between  him  and  his  God,  because  the 
man  intends  what  the  words  used  by  him  admit  of  (as  in  the  case  in 
paragraph  1642) ;  bat  the  (alleged)  intention  is  contrary  to  what  is  appa- 
rent, (the  obvious  meaning  being  that  she  shall  remain  vested  with 
33 


258  THE  TAOOBK  LAW  LECTUBBSj  1891-92. 

sach  authority  for  ten  days  and  not  afterwards),  and  therefore  the  man 
ahall  not  be  believed  by  the  Eazee. 

2644.  (1644.)  And  similarly,  if  a  man  says  to  another,  ^^The 
authority  to  divorce  my  wife  is  in  thy  hands  up  to  one  year : ''  the  latter 
shall  have  the  authority  in  his  hands  for  a  year ;  and  after  the  expiry  of 
the  year,  the  authority  shall  no  longer  remain  in  him,  whether  he  knows 
the  same  or  not :  (this  is  Tufweez  and  not  Towkeel)» 

2646.  (1645.)  And  if  a  man  gives  to  his  wife  authority  to 
divorce  herself  ''for  a  month  ''  or  ''  for  a  year,''  and  the  woman  refuses 
to  accept  the  authority,  or  prefers  to  remain  with  her  husband,  or  says, 
"I  do  not  choose  to  divorce  myself,'*  then  the  authority,  which  is 
vested  in  her  hands,  shall  become  void.  But  Aboo  Yusoof,  on  whom  be 
peace,  says,  that  the  authority  (shall  not  be  void,  but)  shall  remain  in  her 
hands,  so  that  she  shall  be  free  to  exercise  it  (if  she  chooses)  at  a  meeting 
different  from  that  in  which  the  above  conversation  took  place,  (and  so  on 
until  the  month  or  the  year  expires). 

2646.  (1646.)  And  if  a  man  says  to  his  wife,  '^The  authority 
to  divorce  thyself  is  in  thy  hands,  when  thou  pleaseth  or  ''  as  long  as 
{Muta^  i.e.,  the  same  as  ^  when '  or  lea)  thou  pleaseth :  "  the  authority  shall 
be  in  her  hands  (to  be  exercised)  only  once  whether  she  exercises 
that  authority  at  the  same  meeting  or  at  a  different  meeting.  And  if 
she  prefers  to  remain  with  her  husband,  her  authority  shall  go  out  of 
her  hands ;  and  this  authority  shall  not  become  void  by  her  standing  up  at 
the  meeting. 

2647.  (1647.)  And  if  a  man  says  to  his  wife,  ''  The  authority  to 
divorce  thyself  iain  thy  hands  as  often  as  (KooUuma)  thou  pleaseth:"  the 
authority  shall  be  in  her  hands  to  divorce  herself  as  often  as  she  pleases, 
until  the  number  three  is  completed  :  and  if  she  marries  another  husband 
after  three  divorces,  and  then  goes  back  to  her  first  husband  (by  marriage 
after  being  divorced  by  the  second  husband),  then  she  shall  have  no  further 
authority  in  her  hands.  And  if  it  pleaseth  her  to  divorce  herself  once,  andshe 
becomes  (once  divorced),  and  then  the  same  husband  marries  her  after  her 
Iddut,  she  shall  still  be  competent  to  exercise  her  pleasure  to  divorce  herself 
for  what  remains  out  of  the  three  divorces  (that  is,  she  shall  have  the  power 
of  two  divorces ;  because,  under  these  circumstances,  the  husband  himself 
has  authority  to  divorce  only  twice) :  and  if  she  is  pleased  to  divorce  herself 
once  and  does  become  once  divorced,  and  then  marries  a  different  husband 
after  the  expiry  of  the  Iddut,  B,ni  then  goes    back  to  her  first  husband 


DIYORCB   DBPEKDBNT  ON   MABBIAG£.  259 

(who  marries  her  after  the  second  husband  has  divorced  her),  she  shall  be 
competent  to  exercise  her  pleasure  and  have  the  power  of  three  future 
divorces  according  to  Aboo  Haneef a  and  Aboo  Yusoof,  on  whom  be  peace : 
and  this  case  is  called  the  Masalai-Hudum  (that  is,  the  case  of  absorption 
or  eflfaoement  of  divorce;  that  is,  when  the  woman  comes  back  to  her  first 
husband  in  the  manner  described,  the  latter  again  obtains  the  power  of 
three  divorces,  and  whatever  divorces  he  had  given  in  the  first  relationship 
of  husband  and  wife,  becomes  effaced  or  swept  away  and  removed  by  the 
second  husband;  the  wife,  therefore,  has  a  corresponding  power). 

254a  (1648.)  And  if  the  husband  says  to  his  wife,  ''The  authority 
to  divorce  thysdf  is  in  thy  hands  in  this  year,"  and  the  woman  divorces 
herself y  and  he  then  marries  her :  she  shall  have  no  further  authority 
(although  the  year  is  not  out)  according  to  Aboo  Yusoof,  on 
whom  be  peace.  And  Aboo  Yusoof,  on  whom  be  peace,  says  that,  accor  - 
ding  to  inference  from  the  view  of  Aboo  Haneefa,  on  whom  be  peace,  the 
woman  shall  still  have  authority  (until  the  year  is  out). 

2649.  (1649.)  And  if  the  husband  says  to  his  wife,  ''  The  authority 
to  divorce  thyself  is  in  thy  hands  in  this  year "  and  he  (himself) 
diyorces  her  once,  before  having  sexual  intercourse  with  her,  and  then 
marries  her  again  in  the  same  year :  she  shall  (still)  have  authority  in 
her  according  to  Aboo  Haneefa,  on  whom  be  peace.  (But  according  to 
Aboo  Yusoof  she  shall  have  no  authority). 

2660.  (1650.)  A  man  says  to  his  wife,  " The  authority  to  divorce  thy- 
self is  in  thy  hands  to-day  and  to-morrow  and  the  day  after  to-morrow;  '^ 
the  woman  then  on  the  same  day  refuses  to  accept  the  authority:  her 
authority  for  the  other  days  also  shall  become  void  {batU) ;  and  it  is  not 
contipetent  to  her  to  divorce  herself  after  this.  But  it  is  stated  in  the 
Wakyat  that  it  is  competent  to  her  to  divorce  herself  on  the  morrow. 
But  the  correct  view  is  that  first  stated. 

2661  (1651.)  And  if  a  man  says  to  his  wife,  ^^  The  authority  to  di- 
Torce  thyself  is  in  thy  hands  to-day  and  the  day  after  to-morrow; ''  and  she 
refases  to  accept  the  authority  that  day:  she  shall  be  competent  to  exercise 
her  authority  the  day  after  to-morrow  (because  one  day^s  interruption 
shows  she  had  two  different  authorities;  and  her  surrender  of  one 
day's  authority  does  not  involve  forfeiture  of  the  other  day's  authority). 

So  also  if  she  says  that  day,  ^^I  have  rendered  void  each 
authority :  '^    (she  shall  still  have  authority  in  reference  to  the  day 


960  Tax  TAGora  j^w  wpvubks,  1891^9^. 

lifter  l^e  morrow;  because  her  surrender  o£  autbority^  which  bM  not  jet 
come  inta  aicisteace,  is  not  binding  ^n  hei*  when  the  daj  arrive9)f 

S0B2.  (16S3.)  And  tf  he  sajs  to  hep,  ''^  The  ani^hority  «o  diveme 
thyself  is  in  thy  hands  to^ny  and  to«moiprow/'  and  she  refnees  te 
ftcoept  the  authority  that  day :  her  authority  shall  become  (wholly)  vmd; 
because  regard  is  to  be  had  to  the  time  which  has  been  first  mentioned 
(in  the  authority),  and  tlierefove  the  authority  for  the  first  mentioned 
time  is  rendered  Toid  by  the  refusal  to  accept  the  authority  (and  the 
time  next  mentioned  being  adjacent  to  the  first,  also  goes  with  it) ;  5^**^ 
as  when  a  man  says  to  his  wifCi  ^'  Thou  art  divorced  to-day>  to-morrow  " 
in  which  case  the  divorce  shall  be  caused  instantaneously. 

SSB8.  (1668.)  A  man  says  to  his  wife,  "*  The  anthority  to  diTorce 
thyself  is  in  tby  hands  and  the  authority  to  divorce  my  wife  so  and  eo, 
is  in  thy  hands;''  and  she  says,  ^  I  have  divorced  so  aud  so''  and  ahe 
then  divorces  herself <  this  is  correct  (although  not  im  the  order  mentianed 
by  the  husband)  because  the  whole  ie  one  trust  {Tufweez),  and,  therefore, 
whichever  she  commences  with,  her  authority  as  regarcU  the  other  shall 
not  become  void, 

2|iM»  (1654.)  A  man  vests  in  his  wife  the  authority  to  divorce 
herself >  «nd  she  says,  ^^  Give  me  so  much  if  thou  divorce  me/'  and 
the  hosband  say«j  ^*  I  do  not  hnpw  this  (that  is,  what  thou  meaneth) ; " 
and  the  woman  says,  '^  If  thou  hast  vested  me  with  authority  to  divorce 
myself,  then  verily  have  I  divorced  myself : "  the  woman  shall  not  become 
divorced;  because  when  the  woman  occupied  herself  in  demanding  property, 
her  authority  became  void  (because  her  expression  regarding  the  giving 
of  property  shewed  hesitation  and  refusal  on  her  part  to  accept  the 
authority). 

2566t  (16^5.)  A  man  says  to  his  wife,  "  The  authority  to  divorce 
thyself  with  three  divorces  is  in  thy  hands,**  and  she  says^  '^Whj 
dost  not  thou  divorce  me  by  thy  tongue : "  this  shall  not  amount  to  a 
refusal  to  accept  the  authority  (and  the  mujKs  does  not  change,  for  the 
topic  of  divorce  was  going  on),  and  it  shall  be  competent  to  her  to  divorce 
herself. 

2B66,  (1656.)  A  man  says  to  his  wife,  '^  If  thou  shalt  enter  the 
house  of  so  and  so^  then  the  authority  to  divorce  thyself  is  in  thy  hands;  ^ 
the  woman  enters  the  house  and  divorces  herself:  then,  if  she  divorces 
eberelf   at  a  time  when  she  reaches  a  place  (in  the  house}  where  she 


mVMCi:  MPBNMMT  OK  MAABIA^aB.  26^1 

conUt  be  said  to  have  anlered  the  lK>ii8e,  and  does  not  advance  or  recede 
from  that  plaoe,  she  shall  become  divorced^  bat  if  she  takes  (or  adyanoes) 
two  atepa  from  that  place  (although  still  within  the  house)  and  then 
diforoes  berselfy  she  shall  not  become  divorced  (beoanse  the  eonditiom 
was  entry  in  the  honse). 

S857.  (1657.)  A  man  gives  in  his  wife's  Lands  the  authoiitj  to 
divorce  herself,  or  gives  her  the  option  (to  divorce  herself  or  not)  whilst 
the  woman  is  on  horseback,  and  she  gets  down,  or  she  is  on  the  ground 
(when  the  authority  or  option  is  given)  and  she  gets  on  horse- 
back (after  hearing  of  the  authority  or  the  option) :  her  option  (and  her 
antheritjO  b^U  become  void. 

So  also  (shall  her  authority  or  option  become  void)  if  she  is 
sitting  (when  the  husband  pronounces  the  words)  and  then  lies  down  oti 
her  side  to  sleep. 

And  if  she  is  standing  (when  the  husband  expresses  himself)  but 
subsequently  sits  down,  or  if  she  is  reclining  on  a  pillow  but  subse- 
quently sits  up  erect,  her  option  (and  authority  to  divorce  herself)  shall 
not  become  void  (because  the  change  in  posture  in  these  two  cases  instead 
of  denoting  repugnance  implies  deeper  interest  in  the  subject). 

And  if  she  is  sitting  but  subsequently  reclines,  her  option  (and 
authority  to  divorce  herself)  shall  not  become  void  according  to  Zoofar^ 
on  whom  be  peace,  and  the  view  of  Zoofar  is  one  of  two  traditions  from 
Aboo  Tusoof,  on  whom  be  peace.  Because  sitting  down  (in  the  case  where 
she  was  standing  when  she  heard  her  husband) ;  or  reclining  (when  she 
heard  bim  whilst  she  was  sitting)  takes  place  to  collect  one's  judgment 
and  does  not  imply  refusal  to  accept  the  authority  (Airaz), 

And  if  she  reads  a  little  (after  hearing  her  husband),  then  her 
option  shall  not  become  void ;  (but  if  she  reads  a  long  passage,  that  will 
imply  refusal^  and  her  option  shall  be  void). 

And  if  she  is  asked  to  take  her  meal  (after  the  husband  has  ex^- 
presaed  himself  as  above)  and  eats  it  (at  the  same  place  where  the 
antborify  ia  given)  at  if  she  (after  her  husband's  worda)  combs  her  bair^ 
or  takea  a  batb»  or  dyes  (her  hair  or  fingers),  or  if  her  husband  has  sexual 
intercourse  with  her,  or  if  she  stands  up  at  the  meeting  (t^.,  stande 
up  at  the  place  where  she  was  seated),  her  option  shall  become  void.  So 
also  if  she  commences  her  prayers  (after  the  husband  has  said  so,  her 
option  shall  become  void). 


262  THB  TAOOBB   LAW  LECTtTBES^    1891-92. 

Bat  if  she  is  (at  the  time  her  husband  expresses  himself  so)  in  the 
midst  of  her  Farz  prayers,  the  authority  shall  not  become  void  until  she 
completes  her  prayers  (so  that  if  she  continues  her  prayers  instead  of 
interrupting  the  prayers  and  exercising  the  authority,  her  authority  is  lost) ; 
but  if  she  is  in  the  midst  of  her  prayers  of  Nufilf  her  option  shall  not 
become  void,  unless  she  stands  up  for  the  next  set  of  prayers  (Shoofa 
means  a  service  consisting  of  two  prayers  of  the  NuJU  kind  although  the 
intention  might  be  to  offer  four  or  more  sets  of  service  at  one  and 
the  same  time  and  with  one  and  the  same  intention.  See  Fatawai 
Alumgiree,  Volume  I,  page  544). 

2558.  (1658.)  And  if  the  guardians  of  the  wife  are  assembled  and 
are  demanding  her  divorce,  and  their  discussion  is  prolonged,  and  then 
the  husband  says  to  the  woman's  father,  ^'  What  do  you  require  of 
me  9  do  what  you  require;''  and  then  goes  away ;  and  the  woman's  father 
then  divorces  her  at  the  same  meeting :  the  woman  shall  not  become 
divorced  ;  because  what  the  husband  has  said  is  ambiguous  ;  it  may  implj 
the  entrusting  of  the  authority  of  divorce  to  the  father  of  the  wife  and  it 
may  imply  something  else  {e.g.,  expression  of  displeasure  or  disapproval) ; 
and,  therefore,  the  words  shall  not  be  held  to  amount  to  a  vesting  of 
authority  by  reason  of  this  doubt. 

8559.  (1659.)  A  woman  says  to  her  husband  whilst  quarrelliog, 
'^  If  what  is  in  thy  hands  were  in  my  hands,  I  would  have  released  my- 
self ; "  the  husband  says,  ^^  What  is  in  my  hands  is  in  thy  hands,"  and 
the  woman  says,  '^  I  have  divorced  myself  thrice ;  "  and  the  husband 
says  to  her,  '^  Say  again,"  the  woman  says,  '^  I  have  divorced  myself 
thrice,  the  husband  says,  ^^I  did  not  intend  divorce  by  the  expression  used 
by  me  'what  is  in  my  hands  is  in  thy  hands':  "  the  woman  shall  become 
thrice  divorced  by  her  repeating  the  expression  a  second  time,  '^  I  haye 
divorced  myself  thrice;"  (because  when  the  husband  says  he  had  no  inten- 
tion of  divorce,  then  the  woman's  first  expression  shall  not  cause  divorce  on 
her ;  but  when  the  man  asks  her  to  repeat  it,  and  the  woman  does  repeat 
it,  this  amounts  to  giving  the  woman  authority) ;  so  that  if  the  husband 
had  not  said  to  her,  '*  Say  a  second  time,"  the  word  to  be  accepted  would 
have  been  his  word  both  morally  and  according  to  the  Kazee,  and  his 
wife  would  not  have  become  divorced. 

2560.  (1660.)  A  man  says  to  his  wife,  ''Say  I  am  divorced: "  the 
divorce  shall  not  be  caused  as  long  as  the  woman  does  not  say  so;  contrary 
to  this  where  the  husband  says  (to  another)  "Say  to  my  wife,  verily  she  is 


BIVOBCB  DBPBNDBKT  ON  HABBIAGB.  268 

diForoed/'    the  woman  becomes  diyorced  at  once :  and  verily  have  we 
mentioned  this  matter.      (See  paragraph  974). 

2561.  (1661.)  Some  high  words  pass  between  a  husband  and  his 
wife,  and  the  wife  says,  "  Oh  God,  deliver  me  from  this  man,"  and 
the  hosband  says,  "  Dost  thou  wish  to  be  delivered  from  me  f  (if  so) 
then  the  authority  (to  divorce  thyself)  is  in  thy  hands,''  intending 
thereby  divorce,  without  intending  the  number ;  the  woman  then  says, 
"  I  have  divorced  myself  thrice ; "  the  husband  then  says,  "  Thou  hast 
got  deliverance : "  no  divorce  shall  be  caused  on  her,  according  to  Aboo 
Haneefa,  on  whom  be  peace;  because,  when  the  man  does  not  intend  three 
divorces,  then  it  is  the  same  as  if  the  husband  says  to  her,  **  Divorce 
thyself,  "  without  intending  the  number,  and  in  this  case  if  the  woman 
were  to  say,  "  I  have  divorced  myself, "  no  divorce  shall  be  caused  accor- 
ding to  Aboo  Haneefa,  oh  whom  be  peace,  but  one  divorce  shall  be  caused 
according  to  the  view  of  his  two  disciples. 

And  it  is  no  objection  to  say— when  the  husband,  after  the  wife 
had  said,  **  I  have  divorced  myself  thrice, ''  said,  ^^  Thou  hast  got 
deliverance, '' —  why  does  not  this  expression  of  the  husband  amount  to 
ratification  (or  permission)  of  the  acts  of  the  woman :  because  we  answer 
the  objection  by  saying  that  the  husband's  expression,  ^^  Thou  hast  got 
deliverance"  admits  of  having  been  said  by  way  of  a  joke  (or  of 
defiance)  and,  therefore,  the  same  shall  not  be  held  to  constitute  ratifi- 
cation (or  permission),  by  reason  of  the  doubt. 

2662.  (1662.)  A  woman  says  to  her  husband  (in  Persian),  **  I  am 
thy  Vakcfel;  **  the  man  says,  "Ton  are ;"  the  woman  then  says,  "  I  have 
divorced  myself  thrice ;  "  the  husband  then  says  in  Persian,  '^  Thou  hast 
become  unlawful  to  me,  I  ought  to  be  separate  from  thee  ; "  then  both 
separate ;  then  the  bosband  intends  to  take  her  back ;  the  learned 
lawyers  have  said  that  the  husband  shall  be  questioned  as  regards  his  in. 
tention;  and  if  he  says,  '^  I  intended  by  the  words  I  used  (that  is,  by  the 
words  'You  are,')  the  making  her  Vakeel  to  divorce  herself,  but  I  did 
not  intend  the  number,"  then  the  woman  shall  become  completely  separate 
(hain)  with  one  divorce.  This  answer  is  only  correct  according  to  the 
view  of  Aboo  Yusoof  and  Mahomed,  on  whom  be  peace ;  but,  according 
to  the  view  of  Aboo  Haneefa,  on  whom  be  peace,  the  learned  lawyers 
have  held  that  no  divorce  shall  be  caused;  and  the  Futwa  is  given  accor<> 
dingly.    (See  paragraph  1661). 


264r  THB  TMOm  LAW  BVOWMft,   1691^2. 

9BVS.  (1663.)  A  woman  8^79  to  her  hugbaiicl,  "^  Dost  thon  btmid 
that  I  should  divorce  myself  ;*'  ttie  matt  says,  ^  Yes ;  '^  the  womaii  then 
sa/s^  <^  I  hare  divorced  myself : ''  thea  if  the  husband  intends  to  entrast 
the  power  of  divorce  to  her,  she  shall  become  once  divorced,  bat  if 
by  the  words  he  used,  he  intends  to  mean,  <'  divorce  thyself,  if  it  is  in 
thy  power  to  do  so'^  (implying  thereby  that,  ''thou  hast  no  power  and 
cannot  divorce  thyself"),  the  woman  shall  not  become  diyorced. 

2564  (16640  A  man  says  to  another,  ''Dost  thou  intend  that  I 
should  ^vorce  thy  wife  thrice  9  "  the  husband  says,  '^  Yes ; "  the  man 
says,  ''I  have  divorced  thy  wife  thrice  :''  the  learned  lawyers  iiave  said 
that,  the  woman  shall  beeome  thrice  divorced*  But  (this  ia  not  correct) 
and)  the  correct  view  is  that  this  case  and  that  which  haa  preceded  it  (see 
paragraph  1663)  are  equal  in  effect^  and  divorce  shall  only  be  caused 
w^han  the  man  intends  to  entrust  the  other  with,  authority  to  divorce. 

2565.  (1665.)  A  man  appoints  another  his  Vakeel  to  divorce  hia 
WLf.e ;  the  Vakeel  then  divorces  her  thrice :  then  if  the  husband  in- 
tended, at  the  time  of  appointing  the  man  his  Vakeel,  to  appoint  him 
as  a  Vakeel  with  authority  to  give  three  divorces,  the  woman  shall  be- 
come thrice  divorced;  but  if  the  husband  did  not  intend  to  give  authority 
to  divorce  thrice,  no  divorce  shall  be  caused  according  to  the  view  of 
Aboo  Eaneefa,  on  whom  be  peace. 

2566.  (1666.)  A.  man  says  to  another,  '^  Divorce  my  wife  by  rever. 
sible  divorce ;  *'  the  Vakeel  says  to  her,  *^  I  have  divorced  thee  irreversi- 
bly (bain — completely) :  "  one  reversible  divorce  shall  be  caused;  bat  if 
the  Vakeel  says,  '<  I  have  made  thee  ham, "  no  divorce  shall  be  oaosed 
(because  in  the  former  case  that  which  was  done  with  authority  was  ca- 
pable of  being  separated  from  that  which,  was  done  without  aothorilry;  when 
he  said ''  I  have  divorced  thee  irreversibly,"  he  waa  acting^  within  his  power 
except  in  regard  to  the  last  word^  but  the  ezpreaaion  without  regard  to 
the  last  word  ia  sufficient  to  cause  one  divorce;  and,  therefore,  the  last  wosd 
shall  be  considered  a;  surplusage). 

So  also  if  the  huaband  saya  to  the  VakeeU  ^^  Diwree  her  with  an 
irrevarsible  (bain)  divorce,"  and  the  Vakeel  says  to  her,  ^  Thou  art 
divorced  with  one  divorce  reversible : "  then  one  irreversible  divorce  shall 
be  caused  (because  when  the  Vakeel  saya,  **  Thou  art  divi^ced  with  one 
divorce,"  this  must  mean  that  the  divorce  most  be  of  the  nature  eon* 
tained  in  the  aathodtf,  and^  therefore,  one  irreversible  divorce  shall  be 
caused,  and  the  word  ^'  reversible  "  shall  be  treated  aa  &  aurplogage^ 


DIVOBCB   DBPEKDGNT   ON   ttlRRIiaB.  265- 

%67.  (1667i)  A  man  says  to  another  (in  Persian),  "Divorce  my 
Wife,  in  the  presence  of  my  brother  so  and  so  ;  "  the  other  man  divorces 
ker  without  the  presence  of  tlie  brother;  the  divorce  shall  be  caused; 
because  the  husband's  expression,  "  In  the  presence  of  my  brother, ''  was 
used  by  the  husband  by  way  of  advice  (to  the  other  man),  and,  therefore, 
divorce  shall  not  be  dependent  on  the  presence  of  the  brother;  just  as  id 
a  man  says, to  another,  ^'Divorce  my  wife  in  the  presence  of  witnesses," 
and  the  other  man  divorces  her  without  the  presence  of  the  witnesses, 
the  divorce  shall  be  caused*  And  tliis  is  as  if  a  man  appoints  another 
his  Vakeel  to  sell  his  slave,  sayin^,^  ^^  Sell  him  in  the  presence  of  witr 
nesses  "  but  the  Vakeel  sells  the  slave  without  the  witnesses,  the  sale 
shall  be  valid.  On  the  contrary,  if  the  man  says,  "  Do  not  sell  him 
except  in  the  presence  of  witnesses,*'  the  sale  sliall  not  be  valid  except 
in  the  presence  of  witnesses. 

2668'.  (1668.)  A  man  says  to  another,  '^I  do  not  prevent  thee 
from  divorcing  my  wife:''  this  shall  not  amount  to  constituting  the 
other  man  a  Vakeel ;  but  if  he  says  to  his  slave,  ^^  I  do  not  prevent  thee 
from  doing  trade,"  this  shall  amount  to  permission  to  the  slave  to  follow  a 
trade;  because  the  man's  expression  of  this  nature  to  his  slave  cannot  be 
used  except  when  the  master  sees  the  slave  selling  and  purchasing  withoutf 
prevention,  in  which  case  {viz.,  that  of  passively  witnessing  the  slave's  ac- 
tion without  active  interference)  the  slave  shall  become  {Mazoon  or)  a  slave 
with  authority  (or  permission)  to  foUoVv  a  trade;  and,  therefore,  in  this  case 
(when,  after  seeing  ail  this,  the  master  expressly  says,  '^  I  do  not  prevent 
thee/')  it  is  much  more  necessary  that  the  slave  shall  become  a  slave 
with  authority  to  follow  a  tmde  (Ma2;oon). 

And  if  a  man  sees  a  person  divorcing  his  (t.^.,  the  man's)  wife,  and 
does  not  prevent  him  from*  doing  so,  the  person  who  divorces  shall  not 
become  the  man's  Vakeel,  and  the  divorce  shall  not  be  caused.  So  also 
shall  the  divorce  not  be  caused  in  the  present  case  (where  the  man  says, 
"  I  do  not  prevent  thee  from  divorcing  my  wife,") 

2509.  (1669.)  A  man  says  to  his  wife,  *'  The  authority  (to  divorce 
thyself)  is  in  thy  hands ; "  she  says,  '*  I  have  chosen  {Ikhteary  that  is, 
divorced)  myself : "  the  learned  lawyei^  have  entered  into  a  discussion 
in  regard  to  this  matter :  some  of  them  have  said  that  divorce  shall 
he  caused;  because  this  (the  husband's)  expression  is  stronger  than  vesting 
in  the  woman  the  authority  to  divorce  herself  (by  expressly  using 
the  word  divorce).  And  this  answer  is  only  correct  when  the  luisband 
94 


266  THE  TAQOBK  LAW  LKCTOBIS,  1891-92. 

intends,  bj  the  use  of  the  expression^  to  entrust  Lis  wife  witli  aathoritj 
to  divorce  herself;  because  (simplj)  '^  putting  her  authority  in  her  hands'' 
does  not  amount  to  entrusting  her  with  authority  to  divorce  herself 
except  with  intention* 

8670.  (1670.)  And  when  a  man  entrusts  the  authority  to  dirorce 
his  wife  in  the  hands  of  an  insane  person  or  an  infant  (both)  having 
some  sense  (JA;{),  this  shall  be  valid  s  ond  it  is  not  competent  to  the  bus- 
band  to  retract  from  this. 

2671.  (1671.)  A  man  entrusts  the  authority  to  divorce  his  wife  in 
the  hands  of  two  men :  neither  of  them  shall  alone  be  competent  to 
pronounce  the  divorce. 

2672.  (1672.)  A  man  says  to  his  wife,  ^^The  authority  to  divorce 
thyself  is  in  thy  hands  this  year;"  he  then  divorces  her  once,  before 
having  sexual  intercourse  with  her;  he  afterwards  again  marries  her  in  the 
same  year:  Eurkhy,  on  whom  be  peace,  says,  that  the  authority  to  divorce 
herself  shall  be  in  her  hands  in  that  year  according  to  Aboo  Haneefa,  on 
whom  be  peace.    (See  paragraph  1649.) 

2673.  (1673.)  A  man  appoints  another  his  Yakeel  to  divorce  his  wife; 
the  Yakeel  then,  in  a  state  of  drunkenness,  divorces  her:  the  learned  law- 
yers have  differed  in  this  matter  {viz.,  whether  the  divorce  shall  be 
caused  or  not):  some  of  them  haye  said  that  the  divorce  shall  not  be  caused, 
just  as  if  a  man  appoints  another  his  Yakeel  to  divorce  his  wife,  and  the 
Yakeel  becomes  insane,  and  then  divorces  the  wife  (in  which  case  the  divorce 
shall  not  be  caused) :  but  the  correct  view  is,  that  the  divorce  (so  given  aa 
above  by  the  drunken  Yakeel)  shall  be  caused. 

2574.  (1674.)  A  man  says  to  another,  '<  I  have  appointed  thee 
my  Yakeel  in  regard  to  all  my  affairs;''  the  Yakeel  divorces  the 
man's  wife  :  the  learned  lawyers  have  differed  in  regard  to  this  matter; 
but  the  correct  view  is  that  the  divorce  shall  not  be  caused. 

And  in  the  Fatawa  given  by  Aboo  Jaffer,  on  whom  be  peace,  it  is 
stated  that  where  a  man  says  to  another,  ^'I  have  constituted  thee  my  Yakeel 
in  regard  to  all  my  affairs,  and  I  have  put  thee  in  my  place : "  this  shall 
not  amount  to  a  general  authority ;  and  if  the  man's  affairs  are  of  divers 
nature,  so  that  he  has  no  known  profession  in  particular,  then  the  agency 
is  void  ;  but  if  the  client  is  a  merchant,  then  the  agency  dhall  relate  to 
affairs  of  trade.  Aboo  Jaffer  says  that  if  a  man  says,  ^  I  have  appointed 
thee  my  Yakeel  in  all  my  affairs  in  which  agency  is  permissible, "  hii 


DIVORCE   DSPINDKNT  OK   MARSIiaB.  267 

agency  shall  (then)  be  of  a  general  nature  extending  to  selling  and  giving 
lease,  and  contracting  marriages  and  to  all  things.  And  it  is  reported 
from  Mahomed,  on  whom  be  peace,  that  if  a  man  says  that  ''  he  is  my 
Vakeel  in  regard  to  all  things  which  are  legal  and  which  I  do, ''  the 
other  man  sbal  1  become  his  Vakeel  in  the  matter  of  selling,  and  making 
gifts  and  granting  leases.  And  it  is  reported  fix>m  Aboo  Haneefa,  on  whom 
be  peace,  that  (in  such  a  case)  the  man  shall  be  his  Vakeel  in  matters  in 
which  consideration  passes,  and  not  in  gifts  and  emancipation. 

Monlana  (that  is,  Kazee  Ehan,  the  anthor  of  these  Fatawa),  on  whom 
be  peace,  says,  all  this  is  true  when  the  appointment  is  not  made  in  the 
coarse  of  a  topic  regarding  divorce ;  but  if  the  appointment  is  made  in 
the  coarse  of  a  topic  regarding  divorce,  the  Vakeel  shall  be  authorised  to 
give  divorce. 

857&  (1675.)  The  Sultan  compels  a  man  to  appoint  him  as  his 
Vnkeel  to  divorce  his  wife  (saying : — Do  you  appoint  me  your  Vakeel  to 
divorce  your  wife  P)  the  man  from  fear  of  being  beaten  and  imprisoned, 
says,  ''  Thou  art  my  Vakeel,''  without  adding  anything  further ;  the 
Vakeel  then  divorces  the  man's  wife ;  then  the  client  says,  "  I  did  not 
appoint  the  Sultan  my  Vakeel  to  divorce  my  wife :  "  the  learned  lawyers 
have  said  that  the  man  shall  not  be  heard,  and  the  divorce  shall 
take  place;  because  the  man  expressed  himself  by  way  of  an  answer  to 
what  was  proposed  to  him,  and  the  answer  incorporates  what  is  in  the 
question  • 

2876.  (1676.)  4-  man  says  to  another,  "  Divorce  this  my  wife," 
or  **  Emancipate  this  my  slave,"  or  '^  Make  him  (the  slave)  a  Moodvb-- 
hhur;'^  the  Vakeel  accepts  this,  and  the  client  disappears:  the  Vakeel  shall 
not  be  compelled  to  pronounce  the  divorce,  or  to  emancipate  the  slave, 
or  to  do  other  things  except  in  one  case,  viz.y  if  a  man  says  to  another, 
<<  Make  over  the  cloth  to  so  and  so,"  then  the  man  so  ordered  shall  be 
compelled  to  make  over  the  cloth ;  because  in  the  case  of  the  cloth  or 
otlier  definite  thing,  it  is  possible  that  the  cloth  might  have  been  kept  in 
trust  with  the  person  so  directing,  and  it  is,  therefore,  obligatory  on  him 
(the  Vakeel)  to  restore  the  trust  property.  But  in  the  case  of  divorce  and 
emancipation  and  other  matters  (compulsion  shall  not  be  used  on  the 
Vakeel  to  exercise  his  authority,  because)  the  man  giving  the  order  only 
directs  the  Vakeel  to  act  in  what  was  in  his  (own)  power  (that  is,  in 
matters  in  which  he  himself  could  exercise  a  choice,  and  in  which  he  was 
under  no  compulsion  to  act  in  a  particular  way,  and  the  person  so  directing 


268  THE  TAGOKB    LAW   LECTURES,    1891-92, 

wo»  not  in  any  way  boand  to  cause  the  divorce  or  the  emancipation :  and 
therefore  compnlsion  abal)  not  be  Qsed  on  the  Yakeel  (to  exercise  his 
authority  and  give  the  divorce,  Ac.) 

2677.  (1677.)  A  man  intends  to  go  on  a  journey;  he  appoints 
another  man  as  his  Vakeel  to  divorce  his  wife;  he  then  takes  away 
the  power  of  the  Vakeel,  and  does  so  without  the  presence  of  the  woman 
(his  wife)  r  then,  if  the  appointment  of  the  Vnkeel  was  not  made  iu 
consequence  of  the  wife  having  made  a  request  for  the  appointment  of 
a  Yiikeel  to  divorce  her,  then  the  revocation  of  the  VakeeFs  authority 
is  valid  r  but  if  the  appointment  was  in  consequence  of  such  a  request 
by  the  wife,  tlien  some  of  the  learned  lawyers  liave  said  that  the  hus- 
band is  not  competent  to  revoke  the  authority  of  the  Vakeel,  except 
in  the  presence  of  his  wife ;  just  as  if  a  man  appoints  another  as  liis 
Vakeel  to  fight  out  his  case,  and  does  so  in  consequence  of  a  demand 
by  the  opposite  party  (who  says,  for  instance,  "  You  are  going  away,  in 
your  absence  my  byyunna  or  proof  by  witnesses  will  not  be  admissible ; 
therefore  you  must  leave  an  agent  ;'0  and  in  this  last  instance  the  man  is 
not  competent  to  revoke  the  authority  without  the  presence  of  the  oppo- 
site party, 

Shaikh-ool  Imam  Shams-ool  Aima  Sarukhsy,  on  whom  be  peace,  says, — 
that  the  correct  view  is  that  it  is  competent  to  the  husband  to  remove 
(without  the  presence  of  the  wife)  the  Vakeel  who  had  been  authorised  to 
give  divorce,  although  the  Vakeel  might  have  been  appointed  at  the  request 
of  the  woman  ;  because  divorce  is  not  obligatory  on- the  husband  (to  ffive) 
at  the  request  of  the  wife,  and  the  husbfind  shall,  therefore,  be  competent 
to  release  the  Vakeel  from  the  agency. 

2678.  (1678.)  And  if  a  man  appoints  another  his  Vakeel  to  divorce 
bis  wife,  saying,  <^  As  often  as  (KooUuma)  I  shall  remove  thee,  (then)  thou 
art  my  Vakeel :  **  some  of  the  learned  lawyers  have  said  that  this  ap- 
pointment is  not  valid;  because  it  involves  alteration  of  (or  interference 
with)  what  is  provided  by  the  law  {Shera),  and  that  (alteration)  is  to  make 
obligatory  what  is  not  so  ;  whilst  others  have  said  that  the  appointment  is 
valid,  and  the  man  shall  not  have  authority  to  dismiss  the  Vakeel^  because 
as  often  as  the  man  removes  the  Vakeel,  the  latter's  appointment  comes 
to  be  renewed. 

Sbeikh-ool  Imam  Shams-ool  Aima  Sarukhsy,  on  whom  be  peace, 
says,  that  the  correct  view  is  that  the  man  is  competent  to  remove  the 
agent 


DIVORCE    DEFENDANT  ON   HABRIAGE,  269 

The  leflrned  lawyers  have  next  differed  in  regard  to  the  mode  of 
removiDg  the  ngent.  The  same  Sheikh-ool  Imaniy  on  whom  be  peace,  says, 
that  when  the  man  says,  ^^I  have  removed  thee  from  all  agency/'  the 
agent  shall  become  dismissed,  and  this  removal  shall  apply  to  (both 
sorts  of  appointments,  via.),  appointments  which  immediately  (pr  instanr 
tnneoosly — Moonujjuz)  come  into  effect,  or  those  in  which  the  appointment 
is  dependent  on  something  else  (as  in  the  case  given,  viz.^  as  often  as  I 
remove  thee,  &c).  Whilst  others  have  said  that  the  man  shall  say,  "I 
Lave  removed  thee  in  the  same  way  as  I  appointed  thee  my  Vakeel,''  and 
(yet)  others  have  said  that  the  man  shall  say,  '^  I  have  retracted  the 
conditional  powers  given  by  me,  and  I  have  removed  thee  from  absolute 
(or  unconditional)  powers  as  Vakeel." 

2579.  (1679.)  A  woman  divorced  by  lain  divorce  (itvhtootutoon)^ 
appoints  the  husband,  who  had  divorced  her,  to  take  her  back  by  a  fresh 
marriage  (that  is  to  say,  appoints  him  to  marry  her  to  himself,  and  the 
divorce  having  been  irreversible  and  not  Rajtiey  fresh  marriage  is  neces- 
sary); the  Vakeel  says,  (in  Persian)  in  the  presence  of  witnesses  ("I  have) 
brought  back  in  consideration  of  a  hundred  dinars:"  Abool  Eassim 
Saffar,  on  whom  be  peace,  says,  the  marriage  is  valid,  and,  says  he,  the 
man's  expression,  "Brought  back"  is  equivalent  to  his  saying,  *'I  have 
brought  (thee)  back." 

2680.  (1680.)  A  man  appoints  another  as  his  Vakeel  to  divorce 
his  two  wives,  and  the  Vakeel  divorces  one  of  them :  she  shall  become 
divorced  ;  because  the  Vakeel  performed  a  part  of  the  duty  entrusted 
to  him. 

2581.  (1681.)  A  man  appoints  another  as  his  Vakeel  in  order 
to  divorc€|  his  wife  in  the  traditionary  form  ;  the  Vakeel  then  divorces 
the  man's  wife  at  a  time  other  than  the  traditionary  time  {i.e.,  he  divorces 
her  at  a  time  when  it  is  not  fit,  according  to  the  traditions,  to  give  divorce, 
such  non-traditionary  time  being  either  a  period  of  pollution  or  a  period  of 
purity  in  which  intercourse  has  taken  place) :  the  divorce  shall  not  be 
caused  at  present,  neither  shall  it  be  caused  when  the  traditionary  time 
arrives.  (See  paragraph  1697);  and  the  Vakeel  shall  not  go  out  of  his 
authority ;  so  that  if,  after  this,  he  divorces  her  in  the  traditionary  time, 
the  divorce  shall  be  caused. 

2682.  (1682.)  A  man  appoints  another  his  Vakeel  to  divorce  his 
wife^    and    then   the    client  himself    divorces    her^    either    irreversibly 


270  THE   TAGOBE   LAW  LBCTUfiES,    1891-92. 

or  reversibly  \  the  Vakeel  then  (also)  divorces  her :  the  divorce  given 
by  the  Vakeel  shall  be  caused  as  long  as  the  woman  is  in  her 
Iddutf  and  the  Vakeel's  authority  shall  not  terminate  in  consequence 
of  the  husband  himself  giving  an  irreversible  {bain)  divorce,  when 
the  divorce  given  by  the  Vakeel  is  not  in  consideration  of  pro* 
perty ;  (that  is^  if  the  client  authorises  the  Vakeel  to  make  Khoola^ 
that  is,  to  divorce  his  wife  for  consideration,  and  if  afterwards  the  client 
himself  divorces  the  wife  with  or  without  the  consideration,  the  Vakeel's 
power  shall  come  to  an  end) :  then  if  the  Vakeel  does  not  divorce  the 
wife  (so  divorced  as  aforesaid  by  the  hnsband  himself)  until  the  client 
marries  her  again  before  the  expiry  of  her  IddtU,  and  the  Vakeel  now 
divorces  her,  the  divorce  given  by  the  Vakeel  shall  be  caused  on  her 
(because  before  expiry  of  the  Iddut  the  marriage  still  lingers  on,  and 
the  Vakeel  was  authorised  to  divorce  within  the  duration  of  a  parti* 
cular  marriage  which  does  not  completely  end  until  the  Iddut  expires) : 
if  the  client  marries  her  after  the  expiry  of  the  Iddut,  and  the  Vakeel 
afterwards  gives  her  divorce,  the  divorce  given  by  the  Vakeel  shall  not  be 
caused. 

^So  also  if  the  husband  or  wife  becomes  an  infidel  {Moortud}^ 
may  God  prevent  such  a  catastrophy — and  the  Vakeel  afterwards 
divorces  her :  the  divorce  given  by  the  Vakeel  shall  be  caused  as  long 
as  she  remains  in  her  Iddut;  and  if  the  client  (the  husband)  goes  to  Dar-ool 
Hurub  whilst  he  is  an  infidel,  and  the  Eazee  decrees  that  the  man  has 
merged  (Lehak)  into  the  Dar-ool  Hurub  (which  amounts  to  a  decree  of 
civil  death)  the  appointment  as  a  Vakeel  shall  become  void,  so  that  if 
the  husband  returns  from  the  Dar-ool  Hurub,  as  a  Moslem,  and  marries 
the  same  woman,  and  then  the  Vakeel  divorces  her,  the  divorce  given 
by  the  Vakeel  shall  not  be  caused  (because  he  becomes,  as  it  were,  born 
again,  and  tite  marriage  becomes  entirely  a  new  marriage). 

And  if  the  Vakeel  becomes  an  infidel — may  God  prevent  such  a 
catastrophy y — he  shall  remain  vested  with  the  authority  although  he 
might  have  gone  into  the  Dar-ool  Hurub,  except  when  the  Kazee  decrees 
that  the  man  has  lapsed  (or  merged)  into  the  Dar-ool  Hurub ;  because 
the  decree  of  the  Kazee  that  the  man  has  gone  into  the  Dar-ool  Hurub 
is  equivalent  to  his  death. 

2683.  (1683.)  A  man  says  to  another,  *'  When  I  marry  such  and 
such  a  woman,  then  divorce  her;''  the  man  then  marries  her :  it  shall 
be  competent  to  the  Vakeel  to  divorce  the  woman,  because  giving  condi- 
tional powers  to  a  Vakeel  is  valid. 


DIYOBCI   BKPSNDSVT  OK    KABBIAGS.  271 

2684.  (1684.)  And  if  a  man  appoints  an  absent  person  to  divorce 
his  wife^  and  the  Vakeel  divorces  ber  before  he  comes  to  know  that  he 
has  been  appointed  Vakeel :  the  divorce  given  by  him  is  void ;  because 
anthoritj  as  Vakeel  is  not  established  in  a  man  before  he  knows  of  the 
appointment. 

S686.  (1685.)  A  man  appoints  another  to  divorce  his  wife }  the  Vakeel 
refuses  to  accept  the  authority  (or  to  act  in  the  matter),  but  he  afterwards 
divorces  the  man's  wife :  the  divorce  given  by  him  shall  not  be  caused ;  but 
if  the  Vakeel  (instead  of  refusing  to  act)  keeps  quiet,  and  does  not 
(expressly)  accept  or  refuse,  and  then  divorces  the  woman,  the  divorce 
given  by  him  shall  be  caused  by  way  of  analogy  {Istihsan). 

8586.  (1686.)  A  man  says  to  another,  <'  Thou  art  my  Vakeel  in 
the  matter  of  divorcing  my  wife,  if  she  wishes,  or  desires,  or  intends  : '' 
the  other  man  shall  not  become  Vakeel  until  the  woman  expresses  a 
desire  at  the  meeting  (at  which  she  receives  the  information ;  because 
the  man  made  the  appointment  of  the  Vakeel  dependent  on  her 
desire,  and  therefore  the  appointment  as  his  Vakeel  is  confined  to  the 
same  meeting  at  which  she  receives  the  information  ;  just  as  if  the  man 
makes  her  divorce  dependent  on  her  desire  (saying  my  wife  is  divorced  if 
she  desires;  in  which  case,  she  must  express  her  desire  at  the  meeting  at 
which  she  gets  the  information).  And  if  she  expresses  her  desire  (to 
have  herself  divorced)  at  the  meeting,  the  man  shall  become  the  Vakeel 
of  the  husband;  but  if  the  Vakeel  gets  up  at  the  meeting  (at  which  he  has 
come  to  be  appointed  as  the  husband's  Vakeel)  before  divorcing  tlie  woman, 
hia  authority  as  Vakeel  shall  become  void  :  whilst  some  of  the  learned 
lawyers,  on  whom  be  peace,  have  said  that  the  VakeePs  authority  shall  not 
become  Toid  (by  standing  up) ;  because  what  is  made  dependent  on  a  con- 
dition is,  at  the  time  when  the  condition  is  found,  just  as  if  it  is  without  a 
condition  {Moonut);  and  therefore  it  is  just  as  if  the  husband,  after  the 
wife's  desire  becomes  known,  says,  *'Thou  art  my  Vakeel  to  divorce  her;" 
in  which  case  the  exercise  of  the  VakeeFs  power  does  not  depend  on  the 
(unity  of  the)  meeting. 

The  learned  lawyers  have  said  that  the  correct  view  is  that  taken 
in  the  Book  (that  is,  the  riew  mentioned  first) ;  because  the  foundation  of 
the  anthority  to  divorce  is  based  on  the  woman's  desire,  in  pursuance  of 
the  husband's  words,  by  which  such  authority  was  made  dependent  on  the 
woman's  desire,  and  her  desire  is  limited  to  the  unity  of  the  meeting  (that 


272  THte   tAGOR*   LlW   LKCT0fiBS,    1891'92. 

re,  the  desire  must  be  expressed  at  the  meeting)  and  therefore  the  YaEeePs 
power  mast  be  limited  to  the  same  meeting. 

2687.  (1687.)  And  if  a  man  sajs  to  another,  "  Thou  art  my  Vakeel 
to  divorce  my  wife  if  thou  pleaseth  ;  "  the  Vakeel  expresses  liis  desire  at 
the  same  meeting :  this  is  valid  (that  is,  it  is  valid  in  th^  Vakeel  to 
eLxpf^edis  his  desire  and  give  divorce  at  the  same  meeting;  but  it  is  not  valid 
for  him  to  give  divorce  after  the  meeting) ;  but  if  the  Vakeel  gets  up  at  the 
meeting  before  expressing  his  desire,  his  authority,  shall  become  void;  be- 
cause to  make  the  agency  {Vekalut)  dependent  on  desire  amounts  io{Tumleek 
or)  making  t}ie  man  owner  of  the  conditional  Talak  for  the  purpose  of 
causing  divorce  at  the  desire  (of  the  man,  and  Tiimleek  depends  on  tlie 
Mujlis). 

2688-  (1688.)  A  man  says  to  another,  "Thou  art  my  Vakeel  to 
divorce  my  wife,  on  condition  that  I  shall  have  the  option  (to  confirm 
the  appointment  or  annul  it)  for  tliree  days:  *'  the  appointment  as  Vakeel 
is  valid  (and  the  appointment  shall  take  effect  at  once)  and  the  option 
shall  b^  void.  So  also  if  the  man/whilst  appointing  another  man  as  hia 
Vakeei,  gives  the  other  man  the  option  to  accept  the  appointment  or  not 
(the  man  saying  to  the  Vakeel,  I  appoint  you  Vakeel  and  give  you  option 
for  three  days  within  which  to  accept  the  appointment  or  not,  and  the 
Vakeel  agrees  to  the  proposal),  the  appointment  as  Vakeel  shall  be  valid 
And  the  option  shall  be  void. 

So  also  if  a  man  appoints  another  as  his  Vakeel  in  a  matter  other 
than  divorce,  and  stipulates  for  a  condition  of  option  in  the  appointment 
of  the  Vakeel,  the  appointment  as  Vakeel  shall  be  valid,  and  the  option 
shall  be  void. 

2589.  (1689.)  A  man  having  four  wives,  says  to  another  person, 
"Divorce  my  wife;  *'  and  the  Vakeel  divorces  one  of  his  wives  without 
Specifying  which,  or  says,  **  I  have  divorced  thy  wife :  "  the  divorce  is 
valid,  and  the  right  to  determine  (on  which  of  the  wives  the  divorce 
was  caused)  shall  be  in  the  husband  and  not  in  the  Vakeel :  so  also 
if  the  Vakeel  divorces  one  of  the  wives,  specifying  her,  the  divorce  shall  be 
valid;  and  if  the  husband  says,  '^  I  did  not  mean  this  wife  (that  is,  it  was 
not  my  intention  that  you  should  have  divorced  this  wife)  his  word  shall 
not  be  accepted;  and  this  case  is  similar  to  one  where  a  man  says,  ^^Sell  one 
out  of  my  slaves,"  and  the  Vakeel  sells  a  particular  one  out  of  the  man's 
slaves, in  which  case  the  sale  shall  be  valid ;  and  if  the  client  says,  ''I 
did  not  intend  this  slave, "  bis  word  shall  not  be  accepted^ 


DIVORCE   DEPENDIOT  0«r  MARRIAGE.  278 

8B90«  (1690.)  A  man  says  to  another,  '^  Tbe  authority  to  divorce 
my  wife  is  in  thy  hands,  therefore  divorce  her;^^  and  the  person  so 
directed  says  to  her  at  the  (same)  meeting,  ^^  Tboaart  divorced/'  or  says, 
<*  I  have  divorced  thee :  "  one  complete  (bain)  divorce  shall  be  caused, 
except  when  the  husband  intends  tbrce  divorces,  in  which  case,  three 
divorces  shall  (by  the  Vakeel's  expression)  be  caused.  (Two  divorces  shall 
not  be  caused  although  the  husband  might  have  such  an  intention,  because 
the  imperative  form  denotes  the  singular  number,  and  that  number  might 
be  the  real  or  actual  singular  as  in  the  case  of  a  unit,  or  it  might  be  sin- 
gular not  actually  but  metaphorically,  that  is  collectively y  and  in  the  latter 
case,  it  shall  apply  only  to  three  and  not  to  two  divorces). 

So  also  if  the  man  says  to  another,  ^'  Divorce  my  wife,  and  the 
authority  to  divorce  her  is  in  thy  hands: ''  this  case  and  the  case  just 
mentioned  are  equal. 

2591.  (1691.)  And  if  a  man  says  to  another,  ^^Tbe  authority  to 
divorce  my  wife  is  in  thy  hands  in  regard  to  one  divorce  '*  or  "  as  to  one 
divorce ;  '*  "  therefore  divorce  her ;  "  the  person  so  directed  divorces  her 
at  the  same  meeting;  one  reversible  {Eujvs)  divorce  shall  be  caused. 
So  also  if  he  says  to  another,  "  Divorce  my  wife,  and  verily  have  I 
made  over  the  matter  (of  giving  divorce)  to  thee : "  tbis  is  Tufweez  (or 
the  making  over  the  divorce  to  the  other  man)  and  it  is  limited  to  the  same 
meeting  (that  is  to  say,  the  man,  to  whom  the  power  to  divorce  is  made 
over,  must  give  divorce  at  the  same  meeting) ;  and  when  the  other  man 
(so  directed)  divorces  the  wife  at  the  meeting,  one  reversible  divorce  shall 
be  caused.  So  also  if  he  says,  **  I  have  made  over  to  thee  the  matter  of 
her  divorce,  therefore  divorce  her:  **  thelatter's  power  to  divorce  is  limited 
to  the  same  meeting  (at  which  he  is  entrusted  with  the  powerj  and 
the  divorce  so  given  shall  be  reversible. 

[Note: — In  paragraph  1690,  the  words  used  in  the  Arabic  when 
literally  translated  stand  as  follow, — "  The  authority  in  regard  to 
my  wife  is  in  thy  hands ; "  this  is  an  indirect  expression  of  divorce;  for 
instance,  when  the  husband  addressing  his  wife  says,  ^^  thy  authority  is 
in  thy  hands,"  that  means  that,  "  Thou  hast  full  authority  to  remain  my 
wife  or  not :"  the  divorce  caused  by  this  expression  is  always  iain  or 
complete;  because  in  Etyue  or  reversible  divorce,  the  relationship  of 
husband  and  wife  is  not  completely  cut  off  until  the  expiry  of  the  Iddut; 
the  expression  gives  her  authority  either  to  remain  his  wife  or  not  to 
remain  his  wife ;  and  the  way  to  accomplish  the  latter  aim  is  by  a  bain  or 
35 


274  THE  TAQORE  LAW  LECTURES,  1891-92. 

complete  divorce.  But  when,  as  in  paragraph  1691,  the  husbaiicl  ex- 
pressly mentions  one  divorce,  then  his  expression  means  that  the 
authority  to  divoifce  once  or  not  is  in  the  hands  of  the  Vakeel  or  the  wife, 
as  the  case  may  be ;  and  when  the  word  divorce  is  used  without  a  qualifi- 
cation, then  a  Rujue  or  reversible  divorce  is  meant.  Therefore  in  para- 
graph 1691  one  reversible  divorce  is  caused.] 

2692.  (1692.)  And  if  a  man  says  to  another,  **  Divorce  my  wife 
and  separate  her  completely,  (that  is,  *  give  her  a  hain  divorce  * )"  or  says, 
"  Separate  her,  therefore  divorce  her :  "  this  is  making  the  other  man 
Vakeel  (the  imperative  form  having  been  used) ;  and  it  does  not  depend 
on  the  unity  (or  sameness)  of  the  meeting  (that  is,  the  Vakeel  need  not  give 
the  divorce  at  the  same  meeting) ;  and  it  is  competent  to  the  husband  to 
revoke  the  appointment.  And  when  the  Vakeel  does  divorce  her,  then  one 
irreversible  (or  hain)  divorce  shall  be  caused ;  and  it  is  not  competent  to 
this  Vakeel  (that  is,  the  Vakeel  having  authority  as  aforesaid)  to  give 
more  than  one  divorce. 

2693.  (1693.)  And  if  a  man  says  to  another,  "  Divorce  my  wife, 
and  verily  have  I  made  over  into  thy  hands  the  authority  to  divorce  her," 
or  says,  "  I  have  made  over  into  thy  hands  the  authority  to  divorce  her, 
and  (do  thou)  divorce  her  s  '*  the  divorce  implied  by  the  second  phrase 
(in  each  of  the  two  expressions  quoted  above)  is  different  from  that 
implied  in  the  first  phrase  (of  each  of  the  two  expressions  respectively) ; 
because  the  conjunction  and  is  used  for  the  purpose  of  coupling  two 
things  :  (and  the  person  so  directed  shall  therefore  have  authority  to  give 
two  divorces,  namely,  one  by  virtue  of  the  expression  used  before  the  and 

and  the  other  by  virtue  of  the  expression  used  after  the  and).  But  the 
particle  {Therefore,  or)  Fa  (if  that  particle  Fa  is  used  instead  of  the  word 
and)  comes  in  this  place  for  the  statement  of  the  reason,  and,  therefore, 
the  person  so  directed  will  not  be  competent  to  give  except  one  divorce 
(that  is  to  say,  he  will  not  be  competent  to  give  more  than  one  divorce). 

And  if  the  expression  is  used  with  the  conjunction  andy  and 
the  Vakeel  gives  the  divorce  at  the  meeting,  the  wife  shall  become  com- 
pletely separated  (pain)  with  two  divorces  ;  because  the  divorce,  which  is 
caused  as  a  consequence  of  the  expression,  ^*  The  authority  to  divorce 
her,  &c."  is  irreversible  {ovhain)  divorce  (because  the  expression  ^^  Amroha 
ha  Yudaka  "  is  one  of  those  indirect  expressions  which  cause  irreversible 
divorce,  as  other  indirect  expressions  cause  reversible  divorce) :  then  if  one 
of  the  two  divorces  is  irreversible,  the  other  divorce  also  (which  is  caused 


DIVORCE   DEPENDENT  ON   MABBTAQE.  275 

by  the  imperative  form  "divorce,"  and  which  would  otherwise  amount  to 
reversible  divorce)  would  be  irreversible  (or  bain) ;  because  it  is  quite  clear 
that  the  man  has  no  power  to  revoke  the  divorce  (that  is,  if  one  divorce  is 
irreversible,  then  the  other,  though  it  would  have  been  otherwise  rever- 
sible, must,  in  conjunction  with  an  irreversible  divorce,  be  irreversible  ; 
because  if  the  second  divorce  is  reversible,  the  effect  must  be  that  the 
husband  shall  have  the  power  to  take  back  the  wife ;  but  in  consequence 
of  the  first  divorce  being  irreversible,  the  husband  shall  not  have  such 
power :  therefore  the  second  divorce  must  also  participate  in  the  character 
of  the  first  divorce)  :  but  if  the  Vakeel  gives  the  divorce  after  standing 
up  at  the  meeting,  then  one  reversible  (or  Rujue)  divorce  shall  be  caused, 
because  what  amounted  to  Ttifweez  (or  the  entrusting  of  the  divorce) 
becomes  void  bj  the  person  standing  up  at  the  meeting,  and  there 
remains  in  him  only  the  power  as  Vakeel  to  give  an  express  (or  sureehf  i.e., 
direct)  divorce. 

[Of  the  two  expressions  used,  the  imperative  verb,  "divorce*^  is  a  direct 
expression  of  divorce,  and  it  is  the  form  used  in  constituting  another  as 
Vakeel,  and  the  Vakeel  is  not  bound  to  exercise  his  authority  at  the  same 
meeting,  and  the  divorce  caused  by  the  Vakeel  so  constituted  is  a  rever- 
sible divorce:  the  other  expression,  "The  authority  to  divorce  my  wife 
is  in  thy  hands  "  does  not  amount  to  constituting  another  man  as  Vakeel 
but  amounts  to  Thifweez  or  entrusting  the  divorce  to  another ;  and  the  rule 
is,  that  the  trustee  must  exercise  the  power  at  the  same  meeting ;  and  if  he 
exercises  this  power,  then  the  divorce  given  by  him  is,  as  stated  above,  a  bain 
divorce;  so  that  if  he  gets  up,  the  meeting  is  changed,  and  with  the 
change  of  the  meeting,  the  authority  of  the  trustee  is  lost;  therefore  when 
the  man  so  entrusted  gets  up  at  the  meeting,  the  power  is  lost,  and 
therefore,  if  he  gives  a  divorce  after  standing  np,  it  will  only  be  in  the 
exercise  of  the  power  given  to  him  by  the  imperative  verb  "Divorce,**  and 
this  divorce  shall,  as  stated  above,  be  only  reversible]. 

So  also  if  the  man  says,  "The  authority  to  divorce  her  is  in 
thy  bands  and  do  thou  divorce  her." 

2594.  ^1694.)  And  if  the  husband  says  to  another  man,  "  Divorce 
her  and  make  her  completely  separate  {bain — that  is,  *  give  her  an  irre- 
versible divorce')**  or  says,  "Make  her  completely  separate  {bain)  and 
divorce  her;'*  the  other  man  then  divorces  her  either  at  the  same 
meeting  or  at  a  different  meeting :  two  divorces  shall  be  caused  ;  because 
the  husband  constituted  the  man  his  Vakeel  (by  the  use  of  the  imperative 


276  THE  TAOORE  LAW  LECTURES,  1891-92. 

expression)  for  doingf  two  things, — to  completely  separate  the  wife  (that 
18,  to  en  use  irreversible  divorce)  and  to  give  a  divorce:  and  agency  (or 
Towkeel)  is  not  rendered  void  by  the  agent  standing  up  at  the  meetings 
andj  therefore,  two  (irreversible)  divorces  shall  be  caused* 

2698.  (1695.)  A  man  entrusts  the  divorce  of  his  wife  to  an  infant: 
it  is  laid  down  in  the  Oosool  (a  work  of  Mohamed)  that  if  the  child  is 
able  to  express  himself,  then  this  shall  be  valid. 

2596.  (1696.)  And  if  a  man  makes  over  the  divorce  of  his  wife  into 
the  hands  of  another  man,  who  becomes  insane,  and  then  gives  the  divorce, 
Mohamed,  on  whom  be  peace,  says,  that  if  the  insane  man  doe»not  under- 
stand what  he  says,  the  divorce  given  by  him  shall  not  be  caused. 

And  if  the  client,  who  gives  the  authority  to  divorce,  shall  become 
insane,  then,  if  he  becomes  temporarily  insane  and  then  recovers  himself, 
the  Vakeel's  authority  shall  continue  to  remain  in  force ;  but  if  the  client 
remains  insane  permanently,  the  Yakeel's  authority  shall  become  void* 
(See  paragarph  1670). 

And  Ibn-i-Samaa  has  stated  as  a  report  from  Mahomed,  on  whom 
be  peace,  that  he  measured  the  expression,  "permanent  "  by  **  one  day,^ 
at  first,  but  he  Mahomed  afterwards  retracted  from  this  view  and  said 
that  if  the  client  remains  insane  for  one  month,  the  Yakeers  authority 
shall  cease  ;  but  if  he  remains  insane  for  a  lesser  period,  the  Vakeel  shall 
not  lose  his  authority :  he  then  resiled  from  this  view  also,  and  said 
that  the  Vakeel's  authority  shall  not  cease  unless  the  client  remains  insane 
for  a  year:  and  Aboo  Haneefa,  on  whom  be  peace,  has  not  fixed  any  time 
for  this  (i.e.,  as  to  what  constitutes  a  permanent  insanity). 

2597.  (1697.)  A  man  says  to  another,  *^  Divorce  my  wife,  divorcing 
her  according  to  the  Soonnut;**  the  Vakeel  says  to  her,  "  Thou  art 
divorced  according  to  the  SoonrnU : ''  then  if  the  woman  is  in  the  period 
of  her  purity,  in  which  period  the  husband  has  not  had  intercourse  with  her, 
and  is  not  in  her  menses,  she  shall  be  divorced  once ;  but  if  she  is  in  her 
menses,  or  if  she  is  in  a  period  of  purity  such  that  the  husband  has  had 
intercourse  with  her  in  that  period,  the  expression  used  by  the  Vakeel 
shall  become  void,  and  no  divorce  shall  be  caused  by  what  he  said  either 
at  present  (because  the  SoanniU  divorce  is  that  which  is  given  in  a  period  of 
purity — See  paragraph  1681,  in  which  period  of  purity  the  husband  has  not 
had  sexual  intercourse)  or  when  she  gets  her  next  menses  and  becomes  pure; 
because  the  Vakeel  has  no  power  to  refer  the  divorce  to  any  event  (by  saying 


DIYOBCE   DSPSHBENT  OH   MAEKIAGS.  277 

''If  70T1  get  menses  and  become  pnre,  then  yon  are  divorced  *').  Because 
when  a  man  sajs  to  another,  '*  Divorce  my  wife  when  she  gets  her 
menses  and  becomes  pure  ^'  and  the  Vakeel  says  to  her,  <'  When  then 
sbalt  get  menses  and  become  pure,  then  thou  art  divorced,"  this  is 
Toid ;  so  also  if  a  man  says  to  another,  ''  Divorce  my  wife  to-morrow  '' 
and  the  Vakeel  says  to  her,  **  Thou  art  divorced  to-morrow ;  "  this 
is  void :  so  also  if  a  man  says  to  another,  ''  Divorce  my  wife  "  and  the 
Vakeel  says  to  her,  <*  Thou  art  divorced  when  thou  enterest  the  house,'' 
and  the  woman  does  enter  the  house ;  no  divorce  shall  be  caused  (because 
in  all  these  cases,  the  Vakeel  has  no  power  to  refer  the  diyorce  to  a 
future  event). 

2698.  (1698.)  And  if  a  man  says  to  another,  '^Divorce  my  wife  thrice, 
according  to  the  Soonnut/*  and  the  Vakeel  says  to  her  in  the  period  of  her 
parity  in  which  the  husband  has  not  had  intercourse  with  her,  ''  Thou 
art  divorced  thrice,  according  to  the  Soonnut ;  ''  then  (only)  one  divorce 
(according  to  Aboo  Haneefa)  shall  be  caused  at  present,  and  the  rest  shall 
become  void  (because  the  Vakeel  should  have  given  three  distinct 
divorces  in  three  different  periods  of  purity,  in  each  of  which  the 
husband  must  have  had  no  connexion).  And  some  of  the  learned  lawyers 
have  said  that,  according  to  analogy  {Kyas)  from  the  view  of  Aboo 
Haneefa,  on  whom  be  peace,  it  is  fit  that  no  divorce  should  be  caused  (in 
the  aforesaid  case) ;  because  the  Vakeel  was  ordered  to  give  one 
divorce  in  each  period  of  purity,  and  (say  they)  according  to  Aboo 
Haneefa,  when  a  man  who  has  been  ordered  to  give  one  divorce,  causes 
three  divorces,  no  divorce  shall  be  caused.  Bat  the  most  correct  view 
is,  that  one  divorce  shall  be  caused  in  each  period  of  purity  with- 
out any  difference  of  opinion  (amongst  the  three  Imams  ;  that  is,  the 
effect  of  the  expression  used,  though  used  once  shall  be  to  cause  one 
divorce  in  each  of  the  three  periods  of  purity);  because,  according 
to  Aboo  Haneefa,  on  whom  be  peace,  what  is  necessary  (in  order 
to  legalise  the  act  of  the  Vakeel)  is  concordance  (between  what  the 
Vakeel  did  and  what  he  was  authorised  to  do)  with  regard  to  words 
(that  is,  verbal  correspondence  or  agreement)  because  when  a  man 
says  to  another  **  Divorce  my  wife  thrice  *'  and  the  Vakeel  divorces  her 
^  A  thousand  times  "  (saying,  '^  I  divorce  thee  a  thousand  times,")  this  is 
not  valid  (and  no  divorce  shall  be  caused) ;  so  also  if  a  man  says  to 
another,  "  Divorce  my  wife,  halt  a  divorce  '^  and  the  Vakeel  divorces  her 
'^once,''    no  divorce  shall  be   caused  (although,  in  substance,  both  the 


278  THE  TAOOBE  LAW  LECTURES^  1891-92. 

expressions  amount  to  the  same  thing,  because  half  a  divorce  is  equivalent 
to  one  divorce) :  and  in  the  present  case,  verbal  concordance  is  found 
(because  the  client  has  said,  "  Divorce  thrice  according  to  the  Soonnut" 
and  the  Vakeel  has  exercised  his  authority  bj  saying,  '^I  divorce  thee 
thrice  according  to  the  Soonnut ") ;  and  therefore  one  divorce  shall  be 
caused  (in  the  present  period  of  purity,  and  two  more  divorces  sliall  be 
caused  in  the  two  succeeding  periods  of  purity). 

2699.     (1699.)    A  man  says  to  another,    ''  Divorce  my  wife   thrice 
according  to  the   Soonnut  in  consideration  of  a  thousand ;''  the  Vakeel 
says  to  her,  at  a  time  which  can  be  appropriately  called  the   Soonaat 
time  (that  is,  during  a  period  of  purity  in  which  no  intercourse  is  foand), 
'^  Thou  art  divorced  thrice,  according  to   the  Soonnut,  in   consideration 
of  a  thousand ; ''  and  the  woman  accepts  this:  one  divorce  shall  be  caused 
in    consideration    of    one-third    of     a    thousand;    and    if  the    Vakeel' 
when  the  second  period   of   purity   arrives,    gives  her  one    divorce  in 
consideration  of  one-tUird  of  a  thousand,  and  the  woman  accepts  it,  then 
another  divorce  shall  be  caused  without  her  being  obliged  to  pay  anything 
for  it,  (not  even  the  one-third  stipulated  at  the  second  divorce ;  because  when 
she  stipulated  to  pay  the  first  one-third,  that  was  in  consideration  of  the 
Milki-Moota  or  the  right  of  being  enjoyed  by  the  husband;  therefore  such 
right  must  have  come  to  an  end  by  the  first  stipulation  to  pay  a  third  and 
nothing  after  that  remains  for  which  the  second  one-third  would  be  a 
consideration) ;    so  also  if   the  Vakeel  gives  her  a  third  divorce  in  the 
third  period  of  purity  (no  consideration  is  obligatory  on  the  wife).    Bafc 
if  the  Vakeel  first  gives  her  one  divorce  in  consideration  of  one-third  of  a 
thousand,  and  the  husband  then  marries  her  again,  and  the  Vakeel  then 
again  gives  her  another  single  divorce  in  consideration  of  one-third  of  a 
thoDsand,  the  second  divorce  shall  be  caused  in  consideration  of  one-third 
of  a  thousand ;  (because  by  the  second  marriage  the   Milk-i-Moota  is 
found  with  a  fresh  start,  and,  therefore,  there  would  be  consideration  in 
the  case  given) ;  and  so  the  third  divorce  in  the  same  way  (that  is,  if  the 
third  divorce  is  given  after  the  third  marriage,  then  the  remaining  one- 
third  of  the  thousand  shall  be  payable). 

2600.  (1700.)  When  a  man  appoints  two  persons  as  Vakeel  to  give 
divorce  to  his  wife,  (without  saying  "  you  two  must  act  jointly  in  the  mat- 
ter of  the  divorce'*)  each  of  the  two  shall  be  competent  to  give  divorce,  when 
the  divorce  is  not  in  consideration  of  property.   (See  paragraph  1702  post). 

2601.  (1701.)    And  if  a   person    appoints    two    men    (jointly)   to 


mVOBCB   DEPENDENT  ON    MARBIAQE.  279 

give  divorce  to  bis  wife,  and  says,  '^  Oae  of  you  should  not  divorce  her 
without  the  other/'  and  one  of  them  divorces  ber ;  and  then  the  other 
also  divorces  her,  or  one  of  them  gives  tbe  divorce,  and  the  other  permits 
the  same  :  then  no  divorce  shall  be  caused. 

2602.  (1702.)  And  if  a  man  appoints  two  persons  to  give  divorce 
in  consideration  of  property,  one  of  them  cannot  act  without  the 
otber :  so  also  in  the  matter  of  emancipation,  whether  they  are  appointed 
Vakeels  on  behalf  of  the  husband  or  on  behalf  of  the  wife. 

2603.  (1703.)  And  if  a  man  says  to  two  men,  **  Divorce  her  thrice 
you  both  together,''  but  one  of  them  divorces  her  once,  and  subsequently 
the  other  divorces  her  twice,  no  divorce  shall  be  caused  unless  both  of 
them  join  together  and  give  three  divorces. 

2601  (1704.)  A  Vakeel  having  authority  to  divorce,  when  the  divorce 
is  not  for  consideration,  is  not  dismissed  (that  is,  does  not  lose  his 
authority)  by  the  client  himself  giving  the  divorce,  whether  the  client 
gives  an  irreversible  (or  hain)  divorce  or  a  reversible  (or  Buf'm)  divorce : 
and  it  shall  be  competent  to  the  Vakeel,  after  the  husband  has  so  divorced 
as  aforesaid,  to  divorce  her,  as  long  as  she  is  in  her  Iddut ;  and  when  the 
IditU  expires,  the  Vakeel  shall  become  dismissed  (or  go  out  of  office; 
because  by  the  expiry  of  the  Iddut  the  relationship  of  husband  and 
wife  ceases  to  exist) :  so,  if  the  client  marries  her  after  the  expiry  of  the 
Iddui^  and  subsequently  the  Vakeel  divorces  her,  no  divorce  shall  be 
caused ;  but  if  the  client  marries  her  before  the  expiry  of  the  Iddut,  and 
the  Vakeel  subsequently  divorces  her,  the  divorce  shall  be  caused.  (See 
paragraph  1682). 

2605.  (1703.)  A  man  says  to  another,  "  Divorce  my  wife  once  in 
consideration  of  a  thousand  dirhems ;  **  the  husband  then  himself  divorces 
her  in  consideration  of  a  thousand  dirhems,  and  the  woman  accepts  this : 
she  shall  become  once  divorced  in  consideration  of  a  thousand  dirhems, 
and  this  shall  amount  to  the  dismissal  of  the  Vakeel,  whether  or  not  the 
Vakeel  knows  that  the  client  has  given  the  divorce;  so  that  if  the  client 
marries  her  after  having  himself  divorced  her  (as  aforesaid),  and  then  the 
Vakeel  gives  one  divorce  to  her  in  consideration  of  a  thousand,  and  she 
accepts  the  same,  no  divorce  shall  be  caused,  because  the  Vakeel  became 
dismissed  by  the  client  having  himself  divorced  his  wife. 

2606.  (1706.)  A  man  divorces  his  wife  by  a  complete  (or  bain) 
divorce,  and  then  says  to  another,  '^  Divorce  her  in  consideration  of  a 


280  THE  TAGOBE  LAW  LECTURES,  1891-92. 

tboasand ; "  before  the  Yakeel  divorces  her,  the  hasband  marries  her 
(again)  daring  her  Iddut;  if  the  Yakeel  then  divorces  her  in  consideration  of 
a  thousand,  and  the  woman  accepts  the  same,  the  woman  shall  ^become 
divorced  in  lieu  of  a  thousand ;  but  if  the  hasband  does  not  marry  her 
before  the  divorce  is  given  by  the  Yakeel,  and  the  Yakeel  divorces  her  onoe 
during  her  Iddut  in  consideration  of  a  thousand,  and  the  woman  accepts  the 
same,  then  one  divorce  shall  be  caused  on  her,  and  she  shall  not  be  obliged  to 
pay  anything  (because  the  husband  has  already  irreversibly  divorced  her, 
therefore  there  is  no  consideration  for  the  thousand ;  but  the  divorce 
given  by  the  Yakeel  having  been  given  during  the  Iddut,  when  the  rela- 
tionship of  husband  and  wife  was  not  completely  cut  off,  the  divorce  shall 
be  caused). 

On  the  contrary  (as  in  paragraph  1705),  when  the  husband 
appoints  another  as  his  Yakeel  to  divorce  his  wife  in  consideration  of  a 
thousand,  and  then  the  husband  himself  divorces  her  in  consideration 
of  a  thousand,  and  then  the  Yakeel  also  divorces  her  in  consideration  of 
a  thousand,  the  divorce  given  by  the  Yakeel  shall  not  be  caused ;  because 
the  appointment  of  the  Yakeel,  before  the  husband  divorced  his  wife, 
was  with  the  object  of  establishing  property  (that  is,  obtaining  the 
consideration  of  a  thousand  dirhems)  and  when  the  client  himself  divorcos 
in  consideration  of  a  thousand,  after  the  appointment  of  the  Yakeel, 
then  it  is  not  possible  to  imagine  a  divorce  (to  be  given  by  the  Yakeel) 
which  would  establish  property  (or  bring  the  consideration  of  a  thousand 
which  has  been  already  brought  in)  and  therefore  the  Yakeel  shall  neces*- 
sarily  go  out  of  his  office. 

But  when  (as  in  paragraph  1706)  the  man  appoints  another 
man  as  his  Yakeel  in  order  that  the  latter  might,  in  consideration  of  a 
thousand,  divorce  the  woman  who  is  already  completely  separated, 
then  (what)  he  (does  is  that  he)  appoints  the  Yakeel  to  divorce  in  a 
way  in  which  the  consideration  is  merely  mentioned,  and  not  in  a  way  to 
establish  the  consideration  (because  the  husband  having  already  completely 
divorced  his  wife,  he  cannot  stipulate  for  a  consideration  to  be  realised 
a  second  time  by  the  Yakeel);  because  the  husband  was  himself,  at  the  time 
of  appointing  the  Yakeel,  not  competent  to  give  such  a  divorce; 
and  therefore  when  the  Yakeel  performed  the  act  he  was  charged  with, 
the  divorce  shall  be  caused  (without  the  woman  being  liable  to  pay  the 
thousand). 

Just  as  if  a  man  appoints  another  as  his  Yakeel  to  sell  his  slave,  bat 


DIVORCE   DEPENDENT  ON  ttARBtAOfi.  281 

the  Vakeel  becomes  insane,  but  the  insanity  is  of  a  character  so  that 
the  Vakeel  continues  to  understand  what  a  sale  is,  and  what  a  purchase 
is,  and  the  Vakeel  then  sells  the  slave,  the  sale  by  the  Vakeel  shall  not 
be  operative :  (this  is  an  example  to  illustrate  the  case  involved  in  para- 
graph 1705).  And  if  the  man  appoints  as  his  Vakeel  to  sell  his  slave 
a  man  who  is  already  insane  in  the  same  way  (that  is,  whose  insanity 
is  of  the  same  character  as  aforesaid)  and  the  Vakeel  then  sells  the  slave, 
the  sale  by  the  Vakeel  shall  become  operative.  Because  when  the  Vakeel 
was  not  insane  at  the  time  of  his  appointment,  then  the  authority  to 
sell  was  such  that  the  responsibility  in  the  matter  of  the  sale  (such  as  to 
surrender  property  and  realise  consideration)  appertained  to  the  Vakeel ; 
and  after  the  Vakeel  became  insane,  if  the  sale  by  him  were  to  be  held  to 
be  operative^  then  the  responsibility  would  (no  longer  be  fixed  in  the  Vakeel 
hot  would)  be  on  the  client,  and  therefore  the  sale  by  such  Vakeel  shall 
not  be  operative. 

But  if  the  Vakeel  was  alrealy  insane  at  the  time  of  his  appointment, 
then,  when  he  is  appointed  to  sell,  the  responsibility  in  the  matter  of  the 
sale  (e.g.yio  receive  the  purchase-money  and  surrender  the  thing  sold,  &c.,) 
was  with  the  client  (from  the  beginning),  and  when  such  Vakeel  does 
the  act  which  he  is  charged  to  do,  the  sale  by  him  shall  be  binding  on 
the  client. 

2607.  (1707.)  A  man  appoints  another  as  his  Vakeel  to  divorce 
or  to  emancipate ;  the  Vakeel  appoints  another  man  as  his  Vakeel,  and 
the  latter  gives  the  divorce,  either  in  the  presence  or  absence  of  the 
first:  his  act  is  not  valid, 

2608.  (1708.)  So  also  if  a  man  appoints  another  as  his  Vakeel 
to  divorce  or  to  emancipate,  and  a  stranger  divorces  the  wife,  and  the 
Vakeel  ratifies  the  act,  the  act  shall  not  be  valid, 

2609.  (1709.)  And  in  the  case  of  Khoola  and  of  marriage,  when  a 
Vakeel  appoints  another  as  his  Vakeel,  and  the  Vakeers  Vakeel  does  the 
act  (relating  to  the  Khoola  or  marriage)  in  the  presence  of  the  first  (i.e.,  in 
the  presence  of  the  Vakeel),  or  if  a  stranger  does  the  act  (in  the  presence 
of  the  Vakeel),  and  the  Vakeel  permits  this  (or  ratifies  it),  the  act  shall 
be  valid. 

2610*     (1710.)    And  it  is  reported   from   Mohamed,   on  whom  be 

peace,  that  in  a  case  in  which  there  are  two  men,  each  of  whom  owns  a 

slave;  and  each  of  the   masters  appoints   one   and  the  same   man  to 

emancipate  his  slave,  and  the  Vakeel  says,  ^^  I  emancipate  one  of  the  two 

36 


282  THE  TAQORE  LAW  LECTURES,  1891-92. 

slaves''  and  tben  dies  before  he  could  specify  which  slave  he  meant  to 
emancipate :  it  is  said  bj  Mohamed,  on  whom  be  peace,  that  reasoning 
from  analogy  (or  Kyas)^  no  slave  should  be  emancipated,  but  "  I  (Moba- 
ined)  think  it  preferential  to  emancipate  both  the  slaves  (because  to 
emancipate  a  moiety  of  a  slave  is  to  emancipate  him  in  his  entirety) 
and  each  of  the  slaves  shall  work  so  that  each  should  earn  to  the  extent 
of  a  moiety  of  his  price  (and  the  respective  masters  shall  each  get  such 
moiety)." 

2611.  (1711.)  When  a  Vakeel,  authorised  to  emancipate,  admits  that 
he  emancipated  the  slave  "  yesterday  '*  and  the  principal  falsifies  bim 
(in  regard  to  the  fact  of  the  emancipation),  the  Vakeel's  word  shall  not  be 
accepted  ;  because  his  admission  of  having  emancipated  the  slave  18 
made  at  a  time  when  his  authority  is  at  an  end  (on  his  own  shewing; 
because  his  authority  comes  to  an  end  when  he  gives  the  emancipation] ; 
80  also  in  the  case  of  a  Vakeel  who  has  authority  to  divorce. 


CHAPTER  III. 
Section  1. 

ON  KHOOLA, 

2612.  (1712.)  [Note. — Khoola  means  to  take  ofiF,  e.j.,  y6u  take  off 
your  clothes  or  take  oS  your  boots  :  its  secondary  meaning  is  to  take  off 
clothes :  the  spouses  are  as  clothes  to  each  other,  and  when  they  make 
Khoola  each  of  them  takes  ott  his  and  her  clothes.  According  to  the  Shera, 
Khoola  consists  in  destroying  the  Milk-i-Nikah  or  ownership  of  marriage 
with  the  consent  and  acceptance  of  the  wife  by  the  use  of  the  word  Khoola^ 
or  what  is  tantamount  to  that  word.  See  Buhur-ool  Baik,  a  Commentary 
on  Kunz-ool  Dakaik,  Vol.  IV,  page  77,  Egyptian  Edition  of  1811  Hijree.] 

Khoola^  and  Divorce  in  consideration  of  property  are  tantamount  to 
an  oath  on  behalf  of  the  husband  :  so  is  also  emancipation  in  consideration 
of  property  an  oath  on  behalf  of  the  master:  and  the  Khoola  and 
divorce  in  consideration  of  property  consist  in  the  making  of  a  return 
(or  Moawiza,  that  is,  the  payment  of  consideration)  on  behalf  of  the  wife; 
so  also  is  emancipation  in  consideration  of  property  the  making  of  a 
return  (or  the  payment  of  consideration)  on  behalf  of  the  slave;  and  there- 
fore the  laws  of  oath  must  be  observed  on  behalf  of  the  husband ;  so  that 
if  the  husband  says,  ^^I  have  given  thee  Khoola  in  consideration  of  so 
much ''  (and  this  is  tantamount  to  an  oath  in  this  way  because  it  is 


iraooLA.  283 

equivalent  to  saying,  **  If  thou  shalt  agree  to  pay  so  mucb,  I  will  give 
thee  up  as  my  wife**),  and  if,  before  acceptance  by  the  wife,  the 
hasbaud  retracts  from  what  he  has  said,  it  shall  not  be  competent  to  him 
to  do  80  (because  after  an  oath  has  been  taken,  it  cannot  be  retracted) ; 
80  also  if  the  husband  stands  up  (at  the  meeting,  and  this  standing 
up  denotes  change  of  the  meeting)  before  acceptance  by  the  wife,  the 
acceptance  by  her  shall  be  valid  (because  Khoola  is  an  oath,  and  the  oath- 
taker  cannot  avoid  it  by  changing  the  meeting ;  but  the  wife  can  avoid 
it,  see  paragraph  1713 post);  and  the  statement  of  the  husband  shall  be 
binding  on  him,  although  the  woman  might  have  been  absent  (at  the 
time  of  the  statement) ;  and  when  the  wife  receives  intelligence  (that 
the  husband  has  given  her  the  Khoola) ^  it  is  necessary  for  her  (if  she  is 
desirous  of  accepting  the  Khoola)  to  express  her  option  of  acceptance 
at  the  meeting  at  which  she  receives  the  intelligence. 

So  also  if  the  husband  says,  "  When  to-morrow  arrives,  I  shall 
give  her  Khoola,  in  consideration  of  a  thousand,  '*  or  says,  '^  When  so 
and  so  shall  arrive,  then  I  shall  give  her  Khoola,  in  consideration  of  a 
thousand,"  it  is  valid  for  him  to  say  so  (because  Khoola,  as  regards  the 
husband  is  an  oath,  and  an  oath  admits  of  a  condition) ;  and  the  woman 
must  (if  at  all)  accept  the  Khoola  after  the  arrival  of  the  morrow  or 
after  the  arrival  of  the  so  and  so,  at  the  same  meeting  (that  is,  at  the  same 
meeting  at  which  the  morning  dawns  on  her  or  at  the  same  meeting 
at  which  the  so  and  so  on  his  arrival  finds  her). 

And  if  the  husband  stipulates  for  a  condition  of  option  (for  himself) 
in  the  matter  of  Khoola,  the  condition  of  option  by  the  husband 
shall  not  be  valid,  just  as  the  condition  of  option  is  not  valid  in  any  way 
in  a  (mere)  oath,  (although  such  condition  is  here  according  to  Aboo 
Haneefa  valid  on  behalf  of  the  woman^  on  whose  side  Khoola  is  not  an 
oath)* 

2613.  (1718.)  And  the  laws  relating  to  the  {Moamzat  or)  the 
making  of  return  (and  passing  of  consideration)  shall  be  conformed  to 
on  behalf  of  the  wife  and  the  slave  (whose  emancipation  is  dependent 
on  a  consideration) :  so  that  if  the  wife  makes  a  beginning  in  the 
matter  of  Khoola,  and  subsequently  retracts  before  acceptance  by  the 
husband,  it  is  competent  to  her  to  retract,  whether  the  husband  knows 
of  the  same  or  not ;  and  her  proposal  to  get  the  Khoola  shall  become 
void  by  the  standing  up  of  either  of  them  (before  the  acceptance  by  the 
husband),  whichever  of  the  two  might  stand  up. 


284  THE  TAGOBB  LAW  LECTUBBS,  1891-92. 

And  the  proposal  made  by  the  wife  shall  not  be  valid,  when  the 
husband  is  absent,  and  when  nobody  (on  behalf  of  the  husband)  accepts 
the  same.  And  the  proposal  made  by  the  woman  or  the  slave  does  not 
admit  of  being  made  dependent  on  any  condition  or  of  being  referred  to 
time  (because  it  is  Moaunza  on  their  behalf,  and  MoawUa  does  not  admit 
of  a  condition). 

And  if  the  woman,  in  obtaining  the  Khoolay  stipulates  for  a  condition 
of  option  for  herself,  it  is  valid  in  her  so  to  stipulate,  according  to  the  view 
of  Aboo  Haneefa,  on  whom  be  peace  (because  Khoola  is  Moawiza  on  her 
side) ;  but  his  two  companions  have  held  that  such  stipulation  is  not  valid. 

2614.  (1714.)  Khoola  is  sometimes  eflPected  by  the  use  of  tlie 
word  "  Khoola, ''  and  sometimes  by  the  use  of  the  words  **  sell  and  pur- 
chase" and  sometimes  by  the  use  of  the  Persian  language.  And  if  the 
Khoola  has  been  effected  by  the  use  of  the  word,  "  Khoola,'*  then^  if 
the  husband  has  given  her  Khoola  in  consideration  of  specific  property 
{e,g.y  for  a  thousand  dirhems  or  a  piece  of  cloth),  and  the  husband  does 
not  make  any  mention  of  the  wife's  dower,  and  the  wife  accepts  this 
Khoola,  the  wife  shall  be  bound  to  pay  the  consideration  (and  the  con- 
sideration shall  not  be  set  off  against  the  dower) ;  and  the  effect  as  regards 
the  dower  in  this  case  is  this,  that  if  the  wife  is  one,  with  whom  the 
husband  has  had  sexual  intercourse,  and  she  has  already  realised  her 
dower,  then  she  shall  be  liable  to  pay  the  consideration  for  the  Khoola, 
and  no  party  shall  be  entitled  to  have  any  claim  against  the  other  party 
for  anything,  according  to  them  (that  is,  Aboo  Haneefa,  Mohamed 
and  Yusoof);  but  if  the  wife  is  not  one  with  whom  the  husband  has  had 
sexual  intercourse,  and  she  has  already  realised  the  whole  of  the  dower 
(she  being  only  entitled  to  a  moiety  of  the  dower,  not  being  one  with 
whom  there  has  been  sexual  intercourse),  then,  according  to  Aboo 
Haneefa,  on  whom  be  peace,  the  husband  shall  only  be  entitled  to  get 
the  consideration  from  the  woman  and  nothing  else  (that  is,  he  shall  not 
get  back  the  moiety  of  the  dower);  but  according  to  his  two  companions, 
on  whom  be  peace,  the  husband  shall  be  entitled  to  get,  from  the  wife, 
the  consideration  for  the  Khoola  and  also  (get  a  return  of)  a  moiety  of 
the  dower :  but  if  the  dower  has  not  already  been  realised  by  the  wife 
(whether  she  is  one  with  whom  the  husband  has  had  intercourse  or  not) 
then,  according  to  Aboo  Haneefa,  on  whom  be  peace,  the  woman  shall  not 
be  entitled  to  get  from  the  husband  anything  on  account  of  dower,  bat 
according  to  his  two  disciples  on  whom  be  peace,  the  woman  shall  get 
from  the  husband,  a  moiety  of  the  dower. 


KHOOLA.  285 

[Note. — This  cose  lias  become  confusecl,  and   the  rule  has  become 

obscared  owing  probably  to  attempts  from  time  to  time,  to  sapplj  ellipsis 

in  the  Text  of  £azee  Khan;  so  that  from  the  Text  as  it  stands,  the  correct 

rale  applicable  to  the  yarious  forms   in  which  this  case  resolves  itself 

cannot  be  clearly  realised.     Bat  having  consalted  the  following  author!* 

ties,  the  rule  appears  to  be  as  stated  below :  Inaya,  Tol.  II,  page  230 ; 

Shuruh  Vikaya,  Vol.  II,  page  82 ;   Patuh-ool   Kudeer,   Vol.  II,  page  284. 

When  the  husband  gives  Klioola  in  lieu  of  some  specific  property  other  than 

the  dower,  then  the  husband  is  entitled   to  the  consideration :    and  as 

regards  the  dower  the  rule  is  as  follows : — Firstly,  if  the  wife  is  one  with 

whom  the  husband  has  had  intercourse   and  she  has  already  realised 

her  dower,  then  the  husband  is  not  entitled  to  get  back  the  dower;  and  if 

she  has  not  realised  the  dower  then,  according  to  Aboo  Haneefa,  she 

is  not   entitled  to  claim  the  dower ;   because,  according  to  him,  Khoola 

puts  an  end  to  all  rights,   which   the  spouses  have  against  each  other — 

except  her  maintenance  during  the  period  of    the  Iddut,   the  right  to 

which  is  not  put  an  end  to  except  by  express  agreement,  and  except 

also  the  right  of  dwelling  or  Sookna  during  the  Iddut,  which  being,  as  it 

is  termed,  the  right  of  God,  cannot  be  put  an   end  to  even  by  express 

agreement :   but  according  to  the  two  disciples  the  wife  shall  be  entitled 

to  claim  the  whole  of  the  dower  from  the  husband,  because  the  dower  is 

her  right,  shelbeing  one  with  whom  the  husband  has  had  intercourse,  and 

the  dower  has  not  been  realised  by  her.    If  she  be   one  with  whom  the 

husband   has  not  had  sexual  intercourse,  then    if   she  has  realised  the 

whole    of    the    dower,    the    husband,   according  to   Aboo    Haneefa,  is 

not  entitled  to  get  a  return  of    any    portion    of    the    dower  from  the 

wife;    but,   according  to  his  two  disciples,  the  husband  is  entitled  to  get 

returned  to  him  one  half  of  the  dower,  because,  before  intercourse,  only  one 

half  of  the  stipulated  dower  becomes  due  :  if  the  woman  has  not  realised 

her  dower,  then  according  to  Aboo  Haneefa,  the  woman  is  not  entitled  to 

claim   any  dower  from  the  husband;  but  according  to  his  two  disciples^ 

she  shall  be  entitled  to  recover  one  half  of  her  dower  from  her  husband.] 

2615.  (1715.)  And  if  the  husband  has  ma,Ae  Khoola  with  his  wife  in 
consideration  of  her  (entire  dower)  saying,  "  I  give  Khoola  in  consider- 
ation of  the  whole  Of  the  stipulated  dower"  (which  amounts  to 
so  much,  say  a  1,000),  then  if  the  wife  is  one  with  whom  the 
husband  has  had  sexual  intercourse,  and  if  she  has  already  realised  her 
dower,  then  the  husband  shall  get  back  from  her  the  dower  so   realised 


286  THE  TAOOBE  LAW  LECTURES^  1891-92. 

by  her;  bat  if  she  has  not  already  realised  her  dow^er,  then  the  whole  of 
the  dower  shall  cease  to  be  reoo7erable  from  the  husband^  and  no  party 
shall  pursue  the  other  in  respect  of  anything:  but  if  the  wife  is  not  one 
with  whom  the  husband  has  had  sexual  intercourse,  then  if  the  wife  has 
already  realised  the  whole  of  the  dower  (although  she  was  entitled  to  gefc 
only  a  moiety],  which  say  was  a  thousand,  the  husband  shall  be  entitled 
to  get  from  the  wife  the  whole  of  the  dower  according  to  obscure  analogy 
(or  Istihsan)^  but  according  to  clear  analogy  {Kya8  or  reasoning),  the 
husband  shall  be  entitled  to  get  from  the  wife  a  thousand  and  five  hundred, 
that  is,  a  thousand  in  consequence  of  the  dower  haying  been  the  consider- 
ation for  the  Khooldf  and  five  hundred  in  consequence  of  (the  Khoola  having 
been)  a  divorce  (or  Talak)  before  he  has  had  sexual  intercourse  with  her 
(that  is,  the  dower  being  the  consideration  for  the  JETAooJa,  the  husband 
is  entitled  to  get  back  the  whole  of  the  dower  which  in  this  case  is  a 
thousand;  but  by  another  right  he  is  entitled  to  get  back  five  hundred, 
because  the  wife  was  only  entitled  to  get  five  hundred,  in  consequence 
of  the  absence  of  sexual  intercourse;  but  she  has  realised  a  thousand, 
and,  therefore,  she  is  the  husband's  debtor  to  the  extent  of  five 
hundred,  which  he  is  entitled  to  recover  from  her)  ;  but  if  she  has  not 
realised  her  dower  then,  according  to  clear  analogy  {Kyds)  the  husband 
shall  (in  the  net  result)  realise  from  her  five  hundred  (that  is,  the  con- 
sideration for  the  Khoola  was  one  thousand,  but  the  wife  was  entitled 
to  five  hundred  from  the  husband  in  consequence  of  the  separation 
having  been  before  intercourse ;  this  five  hundred  is  set  off  against  the 
thousand,  and  the  husband  would  be  entitled  to  recover  five  hundred),  but 
according  to  obscure  analogy  (Jstihsan)  the  dower  shall  drop  from  the 
husband,  and  the  husband  shall  not  be  entitled  to  realise  anything  from 
the  wife. 

2616.  (1716.)  And  if  the  husband  has  made  ZAooZa  with  the  wife 
in  consideration  of  a  portion  of  her  (due)  dower  (without  mentioning  the 
amount) ;  as  for  instance,  when  he  makes  Khoola  with  her  for  a  tenth 
part  of  her  dower,  her  dower  being  a  thousand,  then  if  the  wife  is  one 
with  whom  the  husband  has  had  sexual  intercourse,  and  if  she  has  realised 
the  whole  of  her  dower,  the  husband  shall  realise  from  her  a  hundred 
dirhems,  and  the  rest  of  the  dower  shall  appertain  to  her  according  to 
them  (A.boo  Haneef a,  Mahomed  and  Aboo  Tusoof) ;  but  if  the  dower  has 
not  been  already  realised  by  the  wife,  then  according  to  Aboo  Haneefa, 
on  whom  be  peace,  the  whole  of  the  dower  shall  cease  to  be  payable  by  the 


ICHOOLA.  287 

hli8l)and  (because  Khoola  puts  an  end  to  all  rights  arising  from  the  nikah, 
as  between  the  husband  and  the  wife^  see  paga  82,  Shuruh  Yikaya,  Vol.  II) ; 
bat  according  to  his  two  disciples  only  one  hundred  dirhems  shall  become 
extinct  (and  not  realizable)  from  the  husband,  and  the  wife  shall  be  entitled 
to  realise  from  him  the  nine  hundred ;  but  if  the  wife  is  not  one  with  whom 
the  husband  has  had  sexual  intercourse,  then  if  she  has  already  realised  the 
whole  of  the  dower,  the  husband  shall  be  entitled  to  realise  from  the  wife 
the  tenth  of  a  moiety  of  her  dower  that  is  fifty,  because  her  dower,  in  the 
case  of  divorce  before  sexual  intercourse,  is  a  moiety  of  the  (fixed)  dower, 
and,  therefore,  the  husband  shall  realise  from  her  the  tenth  part  of  a  moiety 
only  of  her  dower,  and  the  rest  shall  appertain  to  her  (this  is  according  to 
Aboo  Haneefa) ;  but  according  to  the  two  disciples  of  Aboo  Haneefa,  the 
hasband  shall  realise  from  her  fifty,  for  the  reason  stated  {viz.,  that 
five  hundred  shall  be  considered  to  be  her  dower)  and  the  hasband  shall 
also  realise  from  her  five  hundred,  on  account  of  the  divorce  before  sexual 
intercourse :  but  if  the  wife  has  not  already  realised  her  dower,  then  the 
hasband  shall  become  free  from  liability  for  the  whole  of  the  dower 
according  to  Aboo  Haneefa,  on  whom  be  peace ;  but  according  to  his  two 
disciples,  on  whom  be  peace,  five  hundred  will  drop  from  the  husband  on 
account  of  the  divorce  before  sexual  intercourse  and  fifty  will  cease  to  be 
payable  by  him  in  consequence  of  the  same  being  the  consideration  for  the 
Khoola ;  and  the  woman  shall  realise  from  the  husband  four  hundred 
and  fifty. 

2617.  (1717.)  And  if  Khoola  takes  place  by  the  words  '*  mutual 
release  ^'  {Mooharaat)y  then  the  effect  (on  the  rights  of  the  parties  on  the 
questions  which  have  preceded),  according  to  Aboo  Haneefa,  on  whom  be 
peace,  is  what  we  have  stated  in  regard  to  f&ooZa  according  to  him  :  and 
according  to  Mahomed  also,  on  whom  be  peace,  the  consequences  are  the 
same  as  those  mentioned  by  us  in  regard  to  Khoola  according  to  him:  but 
according  to  Aboo  Yusoof,  on  whom  be  peace,  the  consequences  in  the 
case  of  '*  Mutual  release ''  {Moobaraat)  are  the  same  as  those  stated  by 
•us  in  regard  to  Khoola  according  to  Aboo  Haneefa,  on  whom  be  peace. 

2618.  (1718.)  And  if  the  husband  divorces  his  wife  in  con- 
sideration of  property  or  in  consideration  of  her  dower,  then  according 
to  Aboo  Yusoof  and  Mahomed,  on  whom  be  peace,  the  consequences 
involved  in  the  same  are  similar  to  those  involved  in  Khoola,  according 
to  them  (respectively).  But  from  Aboo  Haneefa,  on  whom  be  peace,  there 
are  two  traditions  in  this  matter  ^  and  according  to  one  tradition,  the 


288  THE  TAaORE  LAW  LECTURES,  1891-92. 

conseqaences  involved  in  sach  a  divorce  are  those  stated  by  as  in  regard  to 
Khoola  as  laid  down  by  him;  bat  according  to  another  tradition,  sach 
consequences  are  those  stated  by  as  as  laid  down  by  Aboo  Yasoof  and 
Maboined,  on  whom  be  peace,  (as  regards  Khoola)  and  this  (latter) 
view  is  correct ;  so  that  if  a  man  divorces  his  wife,  before  having  inter- 
coarse  with  her,  in  consideration  of  a  thousand  dirhems,  and  the  dower 
due  from  the  husband  was  three  thousand  dirhems,  then  by  reason  of  the 
divorce  before  sexual  intercourse,  one  thousand  and  five  hundred  shall 
be  extinguished,  and  there  shall  remain  one  thousand  and  five  hundred,  and 
the  husband  has  to  receive  from  the  wife  as  the  consideration  for  the  divorce, 
one  thousand  dirhems,  and  therefore  this  one  thousand  (so  due  to  the 
husband)  shall  be  set  off  in  the  thousand  (which  is  a  part  of  one  thousand 
and  five  hundred  due  to  the  wife  as  aforesaid)  and  the  net  result  to  her  is 
five  hundred  due  from  the  husband,  and  this  five  hundred  shall  not 
drop. 

2619.  (1719.)  So  also  if  a  man  marries  a  woman  for  a  thou- 
sand dirhems  and  has  no  sexual  intercourse  with  her,  and  the  wife 
does  not  realise  any  portion  of  her  dower :  so  that  the  husband  makes 
Khoola  with  the  wife  for  (a  definite  and  certain  amount,  that  is,  for  mal-i" 
moeyan  or)  a  thousand  dirhems  (without  saying  that  the  Khoola  is  in  con- 
sideration of  the  dower).  Aboo  Haneefa,  on  whom  be  peace,  says,  that  the 
wife  shall  be  bound  to  pay  a  thousand  (to  the  husband  on  account  of  the 
consideration  for  the  Khoola)  and  she  shall  not  be  entitled  to  realise  any- 
thing (from  the  husband  on  account  of  her  dower).  And  Aboo  Yusoof 
and  Mahomed,  on  whom  be  peace,  have  said  that  the  wife  shall  pay  five 
hundred  to  the  husband  (in  cash  as  a  net  result)  and  the  other  five 
hundred  dirhems  (being  part  of  the  consideration  for  the  Khoola)  shall  be 
set  off  in  the  five  hundred  due  to  the  wife  on  account  of  the  dower. 

2620.  (1720.)  And  if  the  Khoola  is  made  by  the  use  of  the  words, 
sale  and  purchase,  (the  woman  saying,  "  I  have  purchased  myself  for  so 
much*')  then  Aboo  Yusoof  and  Mahomed,  on  whom  be  peace,  say, 
the  consequences  thereof  (on  the  parties)  shall  be  what  the  use  of  the 
word  Khoola  involves;  and  the  Mashaikhs,  on  whom  be  peace, have 
differed  regarding  the  view  entertained  by  Aboo  Haneefa,  on  whom  be 
peace,  in  the  matter :  some  of  them  have  laid  down  that,  according  to 
Aboo  Haneefa,  the  consequences  of  the  use  of  the  words,  sale  and  purchase 
in  the  matter  of  Khoola^  are  those  which  the  use  of  the  word  KhooUk 
involves   (according  to  him);  whilst  others  have  held  that  Khoola  by  the 


KttOOLA^  289 

use  of  the  wordS)  sale  and  purcliase,  according  to  Aboo  Haneefa,  on  whom 
be  peace,  does  not  result  in  a  release  from  the  dower,  unless  the  release  from 
the  dower  is  (specificallj)  mentioned,  and  that  is  the  view  of  Aboo  Yusoof 
and  Mahomed  (see  paragraph  171 4),  and  the  view  so  taken  by  the  last 
mentioned  Mashaikhs  (who  constitute  the  *^  others  "  of  those  who  enter* 
tain  conflicting  views)  is  correct* 

8621.  (1721.)  And  when  the  Khoolu  is  made  with  the  word 
^^Khoolay*'  does  the  husband  get  released  from  the  other  debts  (due  to  the 
wife)  different  from  the  dower  P  According  to  Aboo  Haneefa,  on  whom  be 
peace,  such  release  does  not  take  place  according  to  the  Zahir-i-Buwayet, 
and  that  is  correct. 

S622.  (1722.)  And  in  cases  of  jOooZa,  and  of  Mooharaaty  and  of 
divorce  in  consideration  of  property,  the  husband  is  not  released  from 
maintenance  during  the  pei-iod  of  the  Iddui,  according  to  them  (that  is, 
the  three  Imams),  unless  by  (express)  stipulation,    (See  paragraph  820). 

2623.  (1723.)  So  also  the  husband  is  not  released  from  the 
maintenance  of  the  child  and  the  maintenance  due  on  account  of 
fosterage,  without  such  release  being  stipulated  for  (in  all  cases  where 
the  separation  takes  place  between  the  husband  and  wife  either  by  reason 
of  divorce,  or  of  Moobaraat  or  of  Khoola)y  and  if  the  husband  has  stipulated 
for  such  release  then,  if  such  release  has  been  agreed  upon  for  a  specified 
period,  such  stipulation  for  release  shall  be  valid,  not  otherwise. 

2624.  (1724.)  And  if  the  release  is  valid  on  account  of  there 
being  a  stipulation  in  regard  to  time  and  condition,  then  if  the 
child  dies  before  the  completion  of  the  period  (to  which  the 
release  extends)  it  shall  be  competent  to  the  husband  to  realise  from 
the  wife  the  proportionate  part  of  the  wages  (for  such  fosterage  or  main- 
tenance of  the  child)  for  the  rest  of  the  time  (because  the  act  of  the  wife 
in  releasing  the  husband  from  such  liability,  amounts  to  receipt  in  full 
in  advance ;  but  when  her  services  do  not  extend  for  the  whole  of  the 
period,  she  must  make  a  proportionate  return  of  what  was  received  by 
her  in  advance). 

And  if  the  wife  intends  that  the  husband  should  not  have  the  right 
to  realise  such  proportionate  part  as  aforesaid,  the  learned  lawyers  have 
said  that  the  device  in  such  a  matter  is,  that  the  husband  should  say  to 
the  wife,  '*  I  have  made  Khoola  with  thee  on  condition  that  I  am  released 
from  the  maintenance  of  the  child  for  two  years ;  and  if  the  child  dies 
87 


290  THE    TAGORE    LA.W    LECTURES,     1891-92. 

before  the  expiry  of  the  period  of  release,  then  it  shall  not  be  competent 
to  me  to  realise  anything  from  thee/* 

And  the  like  of  such  a  case  will  be  discussed  in  a  separate  sec* 
tion,  if  it  pleases  God.  '(See  the  untranslated  portion  of  Patawai  Kazee 
Khan,  that  is,  the  original  Arabic  work,  Vol.  Ill,  pages  490  to  503  ;  section 
on  Ibrai  or  Release  from  a  fraction  on  condition  of  prompt  payment  of 
the  rest,  and  on  the  release  of  maintenance  and  purchase  money). 

2626.  (1725.)  A  man  says  to  his  wife,  "  If  thou  sh alt  enter  the 
house,  then  verily  have  I  made  Khoola  with  thee  in  consideration  of  a 
thousand  ; "  the  woman  then  enters  the  house  :  one  divorce  shall  be 
caused  for  a  thousand,  always  supposing  that  the  woman,  at  the  time  she 
enters  the  house,  accepts  the  proposal  to  take  the  Khoola  in  lieu  of  a 
thousand  ;  because  Khoola  being  an  oath  from  the  husband's  point  of 
view,  it  is  vaUd  to  make  the  same  dependent  on  a  condition.  (See  para- 
graph 1790,  2?08<). 

2626.  (1726.)  A  woman  says  to  her  husband,  "I  have  taken 
Khoola^  {Ihhtelato)  from  thee  in  lieu  of  so  much  ; ''  the  husband  was  at 
that  time  occupied  in  weaving  coarse  cloth  {Kirbas),  with  which 
occupation  he  went  on,  while  disputing  the  matter  with  her,  and  he  then 
said  (nltiinately),  "  I  have  given  thee  Khoola"  :  the  learned  lawyers  have 
said,  that  if  the  husband  did  not  protract  the  occupation  (which  was 
engaging  him  when  the  wife  made  her  request)  then  his  last  words  shall 
constitute  an  answer  to  what  the  woman  asked  for,  because  the  meeting 
{mujlish)  did  not  change  by  the  little  work  that  the  husband  was  doing  ; 
but  if  the  husband  protracted  the  work,  the  meeting  (at  which  the  wife 
made  her  request),  came  to  an  end,  and  in  this  case  what  the  husband 
said  shall  not  constitute  an  answer. 

2627.  (1727.)  A  man  says  to  his  wife,  **  I  have  made  Khoola  with 
thee  ;  "  the  woman  says,  "  I  have  accepted  :  "  one  complete  {hatn),  divorce 
shall  be  caused  (and  the  same  shall  not  amount  to  Khoola,  because  no 
property  was  mentioned  as  the  consideration  for  the  Khoola),  So  also 
(one  complete  divorce  shall  be  caused),  if  the  woman  does  not  say,  ^*  I 
accept ;"  because  divorce  takes  place  by  the  husband,  saying,  "  I  have 
made  Khoola  with  thee."  And  if  after  this,  the  husband  says,  "  I  did 
not  intend  by  so  expressing  myself,  a  divorce,"  then  the  word  to  be 
accepted  shall  be  his,  if  the  expression  used  by  him  was  not  used,  whilst 
there  was  a  discussion  of  divorce.    (The  expression,  "  I  have  made  Khoola 


KSODLA.  291 

Witli  thee,**  wben  the  consideration  is  not  mentioned,  is  an  indirect  expres- 
sion of  divorce;  but  there  must  be  an  intention  of  divorce  :  see  also  para- 
graph 1809  post). 

2628.  (1728.)  And  if  the  busband  says,  *'  I  have  made  Khoola  with 
thee,  in  consideration  of  so  mucb,"  mentioning  some  specified  property  (e.gr., 
saj  a  thousand  dirhems):  the  divorce  (us  a  consequence  of  the  Khoola) 
shall  not  be  caused,  until  tlie  woman  accepts  (the  husband's  proposal) : 
just  as  if  the  husband  says  to  his  wife,  "  I  have  divorced  thee  in  con- 
sideration of  a  thousand  dirhems,"  the  divorce  shall  not  be  caused  until 
the  woman  accepts  it.  And  if  after  the  acceptance  by  the  woman, 
the  husband  says,  *'  I  did  not  intend  divorce  by  the  use  of  the  expression,'* 
he  shall  not  be  believed  by  the  Kazee,  because  the  mention  of  considera- 
tion apparently  denotes  intention  to  divorce, 

2629.  (1729.)  And  if  the  husband  says  to  his  wife,  "  Make  Khoola 
upon  thyself,''  (that  is,  he  uses  the  imperative  form  by  which  he  con- 
stitutes her  his  Vakeel  to  give  Khoola  from  him  to  her),  or  says,  "  ask  thy 
Khoola  ;  ''  this  case  resolves  itself  into  three  forms  :  one  of  them  is,  if  the 
husband  says,  "  Make  Khoola  upon  thyself  in  consideration  of  property," 
without  specifying  the  property,  and  the  woman  says,  '*  I  have  given 
Khoola  to  myself  for  a  thousand  dirhems:"  in  this  case,  the  divorce 
shall  not  be  caused  until  the  husband  says,  "  I  have  ratified  this," 
because  the  indefiniteness  of  the  consideration,  prevents  the  validity  of 
the  appointment  as  a  Vakeel ;  the  second  form  is  when  the  husband  says, 
"  Make  TfAooJa  with  thyself  in  consideration  of  a  thousand,*'  and  the 
woman  says,  "  I  have  made  Khoola,^'  (without  repeating  the  considera- 
tion), then  according  to  one  tradition,  the  Khoola  shall  not  be  completed, 
until  the  husband  says,  "  I  have  ratified  the  same,"  just  for  the  re«a. 
son  stated  in  the  first  case  (that  is,  the  vagueness  of  the  considera- 
tion is  felt  here  also  in  consequence  of  the  woman  having  failed  to  re- 
peat the  consideration) ;  but  according  to  another  tradition,  the  Khoola 
shall  become  complete  for  the  consideration  of  a  thousand,  although  the 
husband  might  not  say,  *'  I  have  ratified  "  (because  there  is  no  inde- 
finiteness;  and  although  the  woman  failed  expressly  to  mention  the 
thousand,  still  the  answer  incorporates  the  question,  and  she  must  be 
held  to  have  mentioned  the  thousand)  :  cand  this  view  is  correct. 

And  the  third  form  is  when  the  husband  says  to  his  wife,  "  Make 
Khoola  with  thyself,"  without  adding  anything  further,  and  the  woman 
says,  ^'  I  have  made  Khoola  :  "  it  is  stated  in  the  Moontuka  as  a  tradition 


292  THE   TAGOBE   LAW   LECTURES^    1891-92. 

from  A  boo  Yasoof^  on  whom  be  peace,  that  this  shall  not  amount  to 
Khoola, 

So  also  if  he  says  to  another,  "Mate  Khoola  with  my  wife,"  (that 
is  appointing  him  as  a  Vakeel  to  make  the  Khoola\  it  is  not  competent 
to  the  Vakeel  to  make  the  Khoola  except  in  lieu  of  property ;  becanse 
Khoola  is  mostly  accompanied  by  consideration.  (See  paragraph  1764, 
po$t.) 

And  Ibn-i-Samaa,  has  reported  from  Mahomed,  on  whom  be  peace, 
that  when  the  husband  says  to  his  wife  "  make  Khoola  with  thyself," 
and  the  woman  says,  "  I  have  made  Khoola,^^  one  complete  (or  bain) 
divorce  shall  be  caused  without  consideration,  just  as  when  the  husband 
saj  B  to  her,  **  make  thyself  bain/^  (or  give  bain  or  complete  divorce  to 
thyself),  and  thfs  view  of  Mahomed,  on  whom  be  peace,  has  been  acted 
upon  by  most  of  the  Mashaiks. 

(But  continues  Kazy  Khan,  taking  up  the  2nd  alternative  of  the 
case  from  the  beginning  of  paragraph  1729)  If  the  proposal  comes  from 
the  woman,  she  saying,  "  Give  the  Khoola  to  me,"  or  "  Release  me,"  and 
the  husband  saying,  "  I  have  done  so ; "  this  and  the  case  where  the  pro- 
posal comes  from  the  husband  (as  at  the  beginning  of  1729)  are  similar 
in  regard  to  the  three  forms  mentioned  above. 

2630.  (1730.)  A  man  makes  Khoola  with  his  wife  in  consideration 
of  the  dower  due  to  her  from  him ;  it  then  appears  that  nothing  was  due  to 
the  wife  from  the  husband  :  it  is  obligatory  on  the  wife  to  return  the 
dower ;  just  as  if  a  person  sells  something  to  the  purchaser,  the  con- 
sideration being  a  debt  due  to  the  purchaser  from  the  seller  and  sub- 
sequently both  confirm  each  other  that  no  debt  was  due  to  the  purchaser 
from  the  seller  (at  the  time  of  the  sale);  the  sale  shall  be  good  for  an 
amount  equal  to  the  debt,  such  amount  being  recoverable  from  the  pur- 
chaser :  and  just  as  if  the  husband  says,  ^^  I  have  made  Khoola  with  thee 
in  consideration  of  thy  slave  who  is  in  my  hands,"  or  **  in  consideration  of 
furniture  (Muta)  belonging  to  thee,  which  is  in  my  hands  ;"  and  it  appears 
afterwards  that  the  wife  has  nothing  in  the  hands  of  the  husband,  the 
Khoola  shall  be  effective  in  consideration  of  her  dower,  so  that  if  the 
dower  is  due  from  the  husband,  then  it  will  drop,  and  if  the  wife  has 
realised  her  dower  from  the  husband,  she  shall  be  bound  to  return  what 
she  has  realised. 

2631.  (1731.)  And  if  the  husband  makes  Khoola  with  his  wife,  iji 
consideration  of  the  dower  due  from  the  husband,  or  if  he  divorces  her  in 


KfiOOLA.  298 

consicleration  of  dower  dne  from  Lim,  and  tlie  woman  accepts  the  same, 
and  the  hasband  knows  perfectly  well  tbat  no  dower  is  due  to  the  wife 
from  him :  one  complete  (bain)  divorce  shall  be  caused  without  the  wife 
being  bound  to  pay  anything  in  the  case  of  the  Khoola;  and  in  the  case  of 
the  divorce  in  consideration  of  the  wife's  dower,  one  reversible  (or  Eujue) 
divorce  shall  be  caused ;  because  when  the  husband  knew  that  the  wife's 
dower  was  not  payable  by  him,  then  he  had  the  intention  to  cause  a  divorce, 
and,  therefore,  the  divorce  shall  be  caused  without  consideration  being 
payable  (and  therefore  a  reversible  divorce  shall  be  caused)^  just  as  if  a 
husband  makes  Khoola  with  his  wife  in  consideration  of  wine  or  pork,  or 
in  consideration  of  a  thing  which  is  of  no  value  (in  which  case  a 
divorce  shall  be  caused  and  no  consideration  shall  be  payable) ;  and  just  as 
in  the  case  of  a  man  who  makes  Khoola  with  his  wife  in  cousideration  of 
the  furniture  {Muta)  which  belongs  to  her  in  '^  this ''  house,  the  husband 
f ally  knowing  that  the  wife  has  no  furniture  in  the  house,  when  Khoola 
shall  be  caused  without  anything  being  payable  (on  account  of  the  con- 
sideration) ;  and  just  as  in  the  case  of  a  man  who  sells  a  thing  in  lieu  of 
a  debt  due  to  the  purchaser  from  the  seller,  and  the  seller  knows  that  no 
debt  is  due  to  the  purchaser  from  him,  in  which  case  Sheikh-ool  Imam 
known  as  Ehahir  Zada,  on  whom  be  peace,  says,  that  the  sale  shall  noi 
be  yalid  (see  paragraph  1798,  posi). 

2632.  (1732.)  A  man  marries  a  woman  for  a  stipulated  dower;  he 
then  divorces  her  irreversibly  {Joain — that  is,  completely)  after  having  had 
sexual  intercourse  with  her  (so  as  to  necessitate  a  fresh  marriage)  and 
then  marries  her  a  second  time  for  a  separate  dower,  and  afterwards  the 
woman  asks  for  a  Khoola  from  him  in  consideration  of  her  dower;  then  the 
hneband  shall  be  released  from  the  dower  which  was  fixed  at  the  second 
man-iage,  but  he  shall  not  be  released  from  the  dower  fixed  at  the  first 
marriage. 

So  also  if  the  wife  (so  married  a  second  time  as  aforesaid)  says  in 
Persian,  "  I  have  purchased  myself  from  thee  in  lieu  of  the  dower  and 
in  lieu  of  all  rights  which  I  have  against  thee,''  the  husband  shall  noi 
be  released  from  the  dower  fixed  at  the  first  marriage. 

2633.  (1733.)  When  the  wife  makes  a  gift  to  her  husband  of  a 
moiety  of  her  dower  or  more  or  less,  and  then  she  gets  Khoola  from  him 
in  consideration  of  some  ascertained  property  before  the  husband  has  had 
sexual  intercourse  with  her,  the  husband  shall  be  entitled  (only)  to  the 
consideration  for  the  Khoola,  neither  party  shall  be  entitled  to  claim 


294  THE    TAGORE    LAW   LECTURES^     1891-92. 

anything  according  to  Aboo  Haneefa,  on  whom  be  peace  (see  paragrapli 
1714);  but  according  to  his  two  disciples,  this  Kkoola  (in  lieu  of  ascer- 
tained property)  is  tantamount  to  divorce  (in  consideration  of  property) 
as  regards  its  eflPect  on  the  dower  (see  paragraph  1718) ;  and  (according 
to  the  two  disciples)  if  she  makes  a  gift  of  a  moiety  of  her  dower 
before  taking  possession  of  her  dower,  and  then  the  husband  divorces  her 
before  having  sexual  intercourse  with  her,  no  party  shall  be  entitled  to 
claim  anything  from  the  other ;  and  this  rule  holds  good  in  the  case  of 
a  Klioola  ;  but  if  the  woman  gets  hold  of  her  dower,  and  then  she  makes 
a  gift  of  a  moiety  of  her  dower  to  her  husband,  surrendering  such  moiety 
to  him,  and  the  husband  afterwards  divorces  her  before  having  sexual 
intercourse  with  her,  the  husband  shall  be  entitled  to  recover  a  moiety  of 
the  dower  from  her  ;  so  also  (according  to  the  two  disciples)  in  the  case 
of  Khoola  shall  the  husband  be  entitled  to  get  back  a  moiety  of  the 
dower  from  her. 

2634.  (1734.)  And  if  a  man  marries  a  woman  for  a  thousand  dir- 
hems,  and  the  wife  then  makes  a  gift  to  the  husband  of  a  moiety  of 
her  dower,  or  more  or  less,  and  gets  possession  of  the  rest,  and  then  the 
wife  gets  a  Khoola  in  consideration  of  some  indeterminate  property ;  as 
for  instance,  if  she  gets  Khoola  in  consideration  of  cloth  or  an  animal, 
for  which  she  is  to  be  liable  :  the  Khoola  is  valid,  and  the  husband  shall  be 
entitled  to  claim  from  the  wife  whatever  of  the  remaining  dower  she 
has  got  hold  of,  and  the  husband  shall  not  be  entitled  to  claim  from  the 
wife  what  she  made  a  gift  of  to  the  husband  (as  aforesaid) ;  because  when 
the  consideration  for  the  Khoola  is  an  indeterminate  thing,  then  as  a  con- 
sequence of  the  Khoola^  the  wife  is  bound  to  return  the  dower,  and, 
therefore,  what  the  husband  has  received  out  of  the  dower  as  a  gift 
shall  be  considered  as  having  been  received  by  the  husband  by  reason 
of  the  Khoola,  (and  therefore  the  husband  shall  not  be  entitled  to  claim 
from  the  wife  what  she  has  made  a  gift  of  to  the  husband)  and,  therefore, 
the  husband  shall  claim  from  the  wife  what  the  latter  took  possession  of. 
And  the  wife  shall  not  by  reason  of  the  Khoola  (in  consideration  of  an 
indeterminate  thing)  be  relieved  from  surrendering  what  she  has  got  bold 
of,  according  to  Aboo  Haneefn,  on  whom  be  peace,  because  the  considera- 
tion for  the  Khoolay  cannot  be  surrendered  to  the  husband  on  account  of 
the  vagueness  of  the  consideration,  and  therefore  it  is  obligatory  on  her 
to  return  the  profits  of  her  person  (such  profits  consisting  of  inter- 
course, &c.)   and  she  is  precluded  from   doing  so  by    the  effect  of  the 


KHOOLA.  295 

divorce,   and,    therefore,   she   shall  be  bound  to  return  the  value  of  such 
profits,  and  that  value  of  the  profits  is  (the  whole  of  the)  dower. 

2635-  (1735.)  A  man  makes  IT/ioolIa  with  his  wife  on  condition  of 
her  returning  to  him  whatever  she  (has  got  from  him  and)  obtained  posses- 
sion of  from  him,  but  the  woman  has  already  sold  what  she  got  possession 
of  from  him,  or  has  made  a  gift  thereof  to  a  person  and  surrendered  the 
same  to  that  person,  so  that  she  is  unable  to  return  the  same  to  her 
husband  :  she  shall  be  bound  to  make  good  to  the  husband  the  value  of 
what  she  got  possession  of,  if  the  same  w.as  of  a  nature  which  has  value 
{Zawat'Ool  Kyum,  that  is,  of  which  damages  are  paid  in  reference  to  its 
value)  ;  but  if  the  same  is  of  a  kind  which  has  a  similar  (that  is,  as 
regards  which  in  cases  involving  liability  to  damages,  a  similar  must 
be  returned)  then  she  shall  be  bound  to  return  that  similar. 

2636-  (1736.)  A  man  makes  Khoola  with  his  wife  in  consideration 
of  her  slave,  but  the  slave  is  found  to  belong  to  somebody  else  :  she  shall 
be  bound  to  make  good  the  value  of  the  slave  to  her  husband. 

So  also  (the  value  of  the  slave  is  payable)  if  the  husband  makes 
Khoola  with  his  wife  in  consideration  of  somebody  else's  slave,  and  the 
master  of  the  slave  does  not  permit  the  matter. 

2637.  (1737.)  And  if  the  husband  makes  iTAooJa  with  his  wife,  in 
consideration  of  whatever  furniture  (Mtt/a)  might  be  in  her  room  ;  then  if 
there  is  furniture  belonging  to  her  in  the  room,  the  husband  is  entitled  to 
the  same;  if  not,  then  the  woman  shall  be  bound  to  return  whatever  she 
has  got  possession  of  out  of  her  dower. 

2638.  (1738.)  And  if  the  husband  makes  Khoola  with  his  wife,  in 
consideration  of  whatever  thing  there  might  be  in  her  room  (whether  it 
is  furniture  or  not,  whatever  might  be  the  value  thereof);  then  if  there  is 
nothing  in  the  room,  the  Khoola,  shall  be  operative  according  to  us  with- 
out any  consideration  (that  is,  one  irreversible  divorce  shall  take  place) 
whether  the  thing  (in  the  house)  might  be  described  (with  certainty),  by 
the  use  of  alif  and  lam  (the  description  by  means  of  the  letters  alif 
and  lam  implying  definiteness  and  being  with  reference  to  some  thing  in 
the  room)  or  without  such  alif  and  lam  (that  is,  the  description 
being  **  for  anything  in  the  room.")  So  also  if  the  husband  makes 
Khoola  with  his  wife  *'  For  whatever  might  be  in  her  room/'  and  it  turns 
out  that  there  is  nothing  in  the  room. 


296  THE   TAQORB   LAW   LKCTtTRES,    1891-92. 

2839.  (1739.)  And  if  the  wife  gets  Ehoolay  in  consideration  of 
fruit  on  her  date  trees,  then  the  Khoola  is  valid,  and  he  is  entitled  to  what 
fruit  there  are  on  the  date  trees,  whether  the  fruit  be  large  or  small  in 
quantity  :  but  if  there  is  no  fruit  on  the  date  trees,  then  she  shall  be 
bound  to  return  her  dower. 

2640.  (1740.)  And  if  the  husband  makes  Khoola  with  his  wife,  "  In 
consideration  of  the  fruit  that  her  date  trees  will  produce  this  year,"  the 
Khoola  shall  be  valid,  and  Aboo  Yusoof,  on  whom  be  peace,  was  at  first  of 
opinion  that  if  the  trees  should  produce  fruit,  the  husband  shall  be  entitled 
to  such  fruit;  and  if  the  trees  should  not  produce  fruit,  the  Khoola  shall 
be  valid  without  anything  by  way  of  consideration ;  just  as  in  the  case  of 
a  man  who  makes  Khoola  with  his  wife,  in  consideration  of  what  might 
be  in  the  womb  of  the  wife's  female  slave  or  in  that  of  her  she-goat,  in 
which  case,  if  there  be  a  child  or  a  kid  in  the  womb,  the  Khoola  shall  operate 
on  the  child  or  the  kid  (i.e.y  the  consideration  would  be  the  child  or  the 
kid) ;  but  if  there  is  nothing  in  the  womb,  then  the  Khoola  shall  be 
operative  without  anything  (being  paid  by  way  of  consideration):  but 
Aboo  Yasoof  subsequently  altered  his  view  and  laid  down  that  the  woman 
shall  be  bound  to  return  the  dower  made  over  by  the  husband  to  her  (that 

•is,  in  the  case  of  the  Khoola  being  for  fruit  of  the  year)  and  the  husband 
shall  have  no  right  over  the  fruit,  because  the  thing  pointed  out  (that 
is  when  the  woman  says,  "  In  consideration  of  the  fruit  which  the  trees 
will  produce  this  year  ")  is  of  no  effect  {Lugho)  by  reason  of  the  absence  of 
the  thing  on  which  the  expression  would  operate,  and  therefore  the  case 
is  the  same  as  if  the  man  were  to  make  Khoola  with  his  wife,  ^'  Tor  pro- 
perty," (a  vague  and  indefinite  expression),  and  therefore  the  woman 
shall  be  bound  to  return  her  dower ;  and  in  the  case  of  the  "  child  "  also 
the  thing  pointed  out  (or  mentioned)  becomes  of  no  effect  in  conse- 
quence of  the  child  not  being  in  existence,  and  what  remained  is  the 
expression,  "  Whatever  there  might  be  in  the  womb ; "  and  the  expres- 
sion *'  Whatever  might  be  in  the  womb,"  includes  property  (in  case  ia 
which  there  is  real  pregnancy)  and  what  may  not  be  property  (in  case  ia 
which  the  pregnancy  is  illusory ;  and  therefore  in  such  a  case,  the  Khoola 
shall  be  in  consideration  of  the  dower). 

2641.  (1741.)  And  if  the  husband  makes  Khoola  with  his  wife  in 
consideration  of  the  dirhems  in  her  hand  :  this  Khoola  is  valid,  and  then 
it  should  be  seen  if  in  her  hand  there  are  three  or  more  dirhems,  then  the 
husband  shall  be  entitled  to  the  same ;  but  if  she  has  no  dirhems  at  all 


ItHOOLA.  297 

in  her  hand,  she  shall  be  liable  for  three  dirhems  just  as  if  the  husband 
makes  Khoola  wifch  his  wife,  *^  in  consideration  of  dirhems  ; "  but  if  she 
has  in  her  hands  one  or  two  dirhems,  then  the  husband  shall  get  the 
complete  number  three  (because  the  least  that  is  indicated  by  the  plural 
namber  is  three). 

And  this  is  contrary  to  the  case  where  a  man  marries  a  woman  for 
'^  dirhems/^  in  which  case  the  woman  shall  be  entitled  to  the  proper 
dower  (or  Meher-i-Misl  i  because  dower  cannot  be  less  than  ten  dirhems). 

9642.  (1742.)  And  if  the  husband  makes  Khoola  with  his  wife 
in  consideration  of  '^  a  slave  '*  or  ^^  cloth  ;  "  then  if  the  same  is  certain, 
the  Khoola  shall  be  valid,  and  the  husband  shall  be  entitled  to  the  same; 
bat  if  the  slave  is  not  certain,  then  the  husband  shall  be  entitled  to  a 
slave  of  medium  value;  and  in  the  case  of  '^  cloth  "  or  ^^  animal,''  the 
divorce  shall  be  caused  and  the  wife  shall  be  bound  to  return  the  dower 
(see  paragraph  1734). 

2843.  (1743.)  A  man  says  to  his  wife,  "  Thou  art  divorced  thrice, 
when  {Iza)  thou  shalt  give  me  a  thousand  "  or  ^^  at  the  time  that  {Muta) 
thou  shalt  give  me  a  thousand,"  and  the  woman  accepts  the  same :  the 
divorce  shall  not  be  caused  before  the  wife  gives  the  thousand  ;  and  if  she 
pays  the  thousand  at  the  same  meeting  or  at  another  meeting,  the  divorce 
shall  be  caused ;  but  if  he  says,  "  Thou  art  divorced  if  (cjI)  thou  pay 
me  a  thousand,''  then  the  divorce  shall  take  place  in  the  event  of  the 
payment  being  made  at  the  same  meeting. 

2044.  (1744.)  A  woman  says  to  her  husband,  who  has  already 
twice  divorced  her,  ^^  Divorce  me  thrice,  on  condition  that  thou  shalt  get 
from  me  a  thousand  dirhems,"  and  the  husband  divorces  her  once :  the 
woman  shall  be  bound  to  make  good  the  whole  of  the  thousand  dirhems. 

2646.  (1745.)  A  woman  says  to  her  husband,  ^^  Divorce  me  onoe 
in  consideration  of  a  thousand  dirhems,"  and  the  husband  says  to  her, 
''Thou  art  divorced  once  and  once  and  once  t'^  three  divorces  shall  take 
effect;  one  divorce  shall  take  place  in  consideration  of  the  thousand 
(because  that  one  is  Kmdy  or  intentional  and  of  the  same  character  as  was 
asked  for)  and  two  divorces  shall  be  caused  without  any  consideration 
according  to  all  (that  is,  Aboo  Haneefa  and  his  two  disciples). 

2846.    (1746.)     And  if  the  wife  says  to  her  husband,   "  Divorce  me 

onee  in  consideration  of  a  thousand,"   and  the  husband  says,  ^<  Thou  art 

divorced  thrice : "    the   woman  shall  become  thrice  divorced    without 

(being  liable  to  pay)  any  consideration,  according  to  Aboo  Haneefa,  on 

38 


29S  THE  TAQOBE  LAW  LECTUBBS^  1891-92. 

T?hoin  be  peace  (who  says  that  although  three  involves  one,  still  this  one  is 
Zimnee  or  one  foand  involved  in  three,  and  what  the  woman  asked  for  was 
one  KiMdy  or  an  intentional  one) ;  but  his  disciples  have  held  that  one 
divorce  shall  take  effect  in  consideration  of  the  thousand,  and  two  divorces 
shall  take  effect  without  any  consideration. 

2647.  (1747.)  And  if  the  woman  says  to  her  husband, ''  Divorce  me 
once  in  consideration  of  a  thousand,"  and  the  husband  says  to  her, 
'^  Thou  art  divorced  thrice  in  consideration  of  a  thousand :  "  the  effect  of 
this  shall  depend  on  the  acceptance  by  the  woman ;  and  if  she  accepts  the 
same,  three  divorces  shall  be  caused  in  consideration  of  the  thousand ;  and 
if  she  does  not  accept  the  same,  then  no  divorce  shall  be  caused. 

2648.  (1748.)  A  man  says  to  his  wife,  **  Take  thy  Khoola  and  make 
EJhoola  of  thy  person  from  me,  in  consideration  of  dower  and  the  main- 
tenance during  the  Iddut ;  "  the  husband  then  teaches  her  to  repeat  in  the 
Arabic  language,  and  to  say,  **  I  have  taken  Khoola  from  thee  in  lieu  of  the 
dower  and  the  maintenance  during  the  Iddut,  and  I  have  released  thee 
from  the  dower  and  the  maintenance  during  the  Iddut,**  she  not  know* 
ing  the  meaning  (or  object)  of  the  expression :  the  learned  lawyers 
have  differed  in  this  matter ;  some  of  them  have  said,  if  the  husband, 
after  the  wife  has  said  **  I  have  taken  Khoola  from  thee  in  lieu  of  the 
dower  and  the  maintenance  during  the  Iddut,  and  I  have  released  thee 
from  the  dower  and  the  maintenance  during  the  Iddut,**  says,  ^^  I  have 
permitted  (or  ratified)  this  and  accepted  the  same,''  then  the  Khoola  shall 
be  valid ;  but  if  the  husband  does  not  say  so,  then  the  Khoola  shall  not 
be  valid,  but  the  husband  shall  be  relieved  from  the  dower  and  the  past 
maintenance;  because  the  husband's  address  to  the  woman,  saying, 
<<  Take  thy  Khoola  in  consideration  of  the  dower  and  the  maintenance/' 
is  either  Tufweez  or  entrusting  her  with  power  to  make  Khoola,  or  Touked, 
that  is,  constituting  her  his  Yakeel  to  make  Khoola,  and  the  sancie  {i.e., 
Tufweez  or  Touked)  would  not  be  established  without  the  woman  knowing 
the  meaning ;  therefore  (in  the  present  case,  when  she  does  not  know  the 
meaning  of  the  expression)  when  she  says,  '^I  have  made  JTAoofa  from 
thee  of  my  person  in  consideration  of  the  dower  and  the  maintenance," 
this  shall  be  considered  as  the  beginning  of  a  sentence  for  the  first  time 
emanating  from  the  woman,  and  ignorance  does  not  prevent  this  expression 
from  amounting  to  a  new  sentence  for  the  first  time  emanating  from  the 
woman,  because  ignorance  does  not  prevent  the  operation  of  a  release^  just 
as  ignorance  does  not  prevent  the  operation  of  divorce  and  emancipation 


KHOOLA.  299 

and  making  a  slave  a  Moochihbary  when  Arabic  expressions  are  used, 
although  the  person  employing  those  expressions,  does  not  know  the 
meaning  of  the  same  ({.a.,  divorce,  emancipation,  &o.) :  and  therefore 
when,  after  the  woman  has  so  expressed  herself  (in  the  matter  of  Khoola) 
the  husband  accepts  the  same,  the  Kkoola  shall  be  valid ;  but  if  he  does 
not  accept  the  same,  no  Khoola  shall  be  caused. 

And  others  have  held  that  the  Khoola  shall  not  be  valid,  and  the  hnsband 
shall  not  be  relieved  from  the  liability  to  the  dower  and  the  maintenance, 
feblthough  there  might  be  acceptance  on  behalf  of  the  hnsband  when  the 
woman  does  not  know  the  meaning  of  the  words;  because  Khoola  is,  so  far 
as  the  woman  is  concerned,  tantamount  to  {Mowazaat  or)  making  a  return, 
and  therefore  the  Khoola  shall  not  be  valid  without  her  knowledge  (of  the 
meaning  of  the  words),  just  as  a  sale  and  the  like :  and  release  from  the 
dower  and  the  maintenance  (cannot  be  used  as  an  argument  to  justify  the 
validity  of  the  Khoola  in  such  a  case,  because  such  release)  admits  of 
being  set  aside  [FaskJC)  and  the  same  might  be  rendered  void  by 
the  refusal  (of  the  husband)  and  therefore  release  cannot  be  equivalent  to 
divorce  and  emancipation. 

9619.  (1749.)  A  man  says  to  his  wife,  *^I  have  made  Khoola  of 
thy  person  from  me  in  consideration  of  so  much;"  and  the  woman  says, 
'^  I  have  made  Khoola  "  or  says,  '^  I  have  done  so :  "  the  learned  lawyers 
have  differed  in  this  matter;  some  of  them  have  held  that  the  Khoola  shall 
be  valid ;  and  others  have  held  that  the  Khoola  shall  not  be  valid,  when 
the  husband  does  not  accept  the  same ;  and  the  reliable  view  is  that  if 
the  hnsband  intends  to  establish  {Tvhkeek)  the  Khoola^  and  not  merely  to 
give  expression  to  an  intention  (which  he  might  carry  ont  or  not—* 
Soum)f  then  the  Ehoola  shall  be  valid,  not  otherwise ;  because  the  expres- 
sion used  by  the  husband  admits  of  being  used  for  the  purpose  of 
expressing  an  intention  (to  do  a  thing  in  future)  and  it  also  admits  of 
being  used  for  the  purpose  of  establishing  aright;  and  apparently  it 
amounts  to  a  mere  expression  of  intention  (to  do  a  thing  in  future) ; 
therefore,  if  the  husband  has  the  intention  to  establish  Khoola,  then  the 
Khoola  shall  be  valid  and  not  otherwise ;  because  when  the  husband  has 
an  intention  to  establish  the  Khoola,  he,  in  effect,  says,  '^  I  have  made  Khoola 
of  thy  person  from  me  in  consideration  of  so  much,  because  I  |have 
^▼en  thee  thy  Khoola  '*  and  therefore  if  the  woman  says  (in  answer), 
*'  I  have  made  Khoola,''  the  Khoola  becomes  complete.  (See  paragraph 
1789  post). 


800  THE   TAOOBE   LAW   LKCTUBBS^   1891-92. 

2660.  (1750.)  A  woman  says  to  her  husband,  ^^Give  me  Khoola  in 
consideration  of  a  thousand  dirhems,"  and  the  husband  says,  ^*  Thou 
art  divorced :  '*  the  learned  lawyers  have  differed  in  this  matter  (whether 
the  same  amounts  to  Khoola  or  Divorce) ;  some  of  them  have  held  that 
the  expression  used  by  the  husband  amounts  to  an  answer,  and  the 
Khoola  becomes  complete  ;  whilst  others  have  held  that  divorce  shall  take 
place  and  the  expression  (^^  Thou  art  divorced '')  shall  not  constitute  Khoola  t 
but  the  preferable  view  is  that  the  husband's  expression  shall  amount  to 
an  answer  (and  therefore  there  shall  be  a  valid  Khoola) ;  because  the  same 
is  an  answer  to  all  appearance ;  and  if  after  this  the  husband  says,  *'  I  did 
not  intend  to  give  an  answer  by  that  expression/'  the  word  to  be  accepted 
shall  be  that  of  the  husband,  and  divorce  shall  take  effect  without  the  wife 
having  to  pay  anything. 

So  also  if  the  wife  says  to  her  husband,  '^  I  have  taken  Khoola 
from  thee  *'  and  the  husband  says  to  her,  ^'  I  have  divorced  thee  :"  some 
of  the  learned  lawyers  have  held  that  the  husband's  expression  is  by  way 
of  an  answer,  and  the  Khoola  shall  be  complete  between  them ;  whilst  others 
have  held  that  one  reversible  {Rujue)  divorce  shall  take  place;  whilst 
still  others  have  held  that  the  husband  shall  be  asked  as  regards  his 
intention  ;  and  if  he  says,  '^  I  intended  answer  thereby,''  then  the  expres- 
sion shall  amount  to  an  answer  (and  there  shall  be  a  valid  Khoola). 

And  in  the  first  case  (t.d.,  the  case  at  the  commencement  of  the 
paragraph)  also  it  is  fit  that  the  husband  shall  be  questioned  regarding  his 
intention  ^See  paragraph  1794  po<i). 

2651.  (1751.)  A  woman  with  whom  her  husband  has  had  sex- 
ual  intercourse,  asks  her  husband  to  divorce  her;  the  husband  says 
to  her,  *^  Release  me  from  all  thy  rights  upon  me,  so  that  I  may  divorce 
thee ; "  the  woman  says,  **  Verily  have  I  released  thee  from  every  right 
which  women  have  against  men;''  the  husband  then  says  promptly 
after  this,  '^  I  have  divorced  thee  once  :  "  the  learned  lawyers  have  said 
that  one  irreversible  (bain — that  is,  complete)  divorce  shall  take  place  { 
because  the  husband  divorced  her  apparently  in  consideration  of  the 
release  (and  when  divorce  is  for  consideration,  then  it  is  bain). 

2652.  (1752.)  A  woman  after  her  husband  has  had  intercourse 
with  her  takes  Khoola  from  him  in  consideration  of  (specific  or 
certain)  property ;  the  woman  then  increases  the  consideration  for  the 
Khoola  after  the  Khoola :  this  increase  of  the  consideration  for  the  Khoola 
is  not  valid  (although  increase  is  valid  in  the  case  of  dower). 


KHOOLA.  sol 

2663.  (1753.)  A  woman  takes  B^hoola  from  her  husband  in  con- 
sideration of  ^'all  rights  which  she  has  upon  him:''  she  shall  (still)  be  en- 
titled to  maintenance,  as  long  as  she  remains  in  the  Iddut ;  because  the 
maintenance  during  the  Iddui  is  not  her  right  at  the  time  of  the  Khoola 
(bat  on  the  contrary,  the  right  to  maintenance  arises  after  the  Khoola^  and 
what  she  gave  up  by  the  expression  used  by  her  relates  to  her  present 
right  and  not  future  right). 

9654  (1754.)  A  number  of  people  {koum)  come  to  a  man  and  tell  him 
that  his  wife  has  appointed  them  as  her  Yakeel  to  obtain  Khoola  from 
him ;  the  husband  then  makes  Khoola  with  the  wife  through  them,  in  con- 
sideration of  a  thousand  dirhems;  the  woman  then  denies  having 
appointed  those  people  as  her  Yakeel :  then  if  those  people  stand  surety 
to  the  husband  for  the  property  (given  in  consideration)  the  divorce  shall  be 
caused,  and  the  consideration  shall  be  due  from  them  ;  because  when  the 
woman  denies  the  appointment  as  her  Yakeel,  then  the  Khoola  made  by  the 
husband  remains  as  a  Khoola  with  a  volunteer  (or  Fuzoolee)^  and  when 
the  FuzooUe  makes  proposal  to  the  husband  for  obtaining  a  Khoola  and 
stands  surety  for  the  consideration,  he,  the  FuzooUe,  becomes  (on 
account  of  such  suretyship)  a  principal  party  himself,  and  therefore  the 
Khoola  shall  be  complete  in  consequence  of  the  acceptance  by  the  husband : 
bat  if  those  people  have  not  stood  surety  for  the  consideration  of  the 
Khoola,  then  the  Khoola  shall  depend  on  the  permission  of  the  wife  and 
on  her  acceptance  (because  she  alone  remains  the  principal  party)  and  that 
acceptance  is  not  found  (and  is  wanting) :  and  if  the  husband  claims  that 
the  woman  did  verily  appoint  those  people  as  her  Yakeel,  the  divorce  shall 
be  caused  by  the  admission  of  the  husband,  and  no  consideration  shall  be 
payable  (either  by  the  wife  or  by  the  people).  This  is  when  those  people 
obtain  Khoola  from  the  husband. 

But  if  the  husband  sells  to  those  people  one  divorce  (to  be  given  to 
his  wife)  in  consideration  of  a  thousand  dirhems,  the  learned  lawyers 
have  differed  in  regard  to  the  matter  (whether  the  people  shall  be  liable 
for  the  consideration).  Abool  Eassim  Suffar,  on  whom  be  peace,  says 
that  divorce  shall  be  caused,  and  those  people  shall  be  bound  to  deliver  the 
property  (offered  in  exchange  for  the  divorce),  although  those  people 
might  not  have  stood  surety ;  because  words  of  purchase  (when  those 
people  used  the  words,  **  We  have  purchased,")  are  words  of  suretyship^ 
inasmach  as  the  transaction  of  purchase  amounts  to  a  transaction  of 


802  THB  TAGOBE  LAW  LECTURES,  1891-92. 

exchange  (in  which  after  contract,  each  party  is  bound  to  perform  what 
he  has  undertaken). 

And  Aboo  Bakur  of  Balkh,  on  whom  be  peace,  has  said,  this  case  (in 
which  the  husband  expresses  himself  as  aforesaid)  is  like  the  case  of 
Khoola  (mentioned  at  the  beginning  of  this  paragraph) :  and  this  new  is 
correct  (see  Futawai  Alnmgeeree,  YoL  I.,  page  684). 

2655.  (1755.)  A  man  says  to  another,  ^'divorce  my  wife; "  then  the 
person  so  ordered  gives  Khoola  to  the  wife,  in  consideration  of  her  dower 
and  maintenance  during  the  Iddut^  or  divorces  her  for  such  consideration 
(and  the  woman  accepts  the  same):  the  lawyer  Aboo  Jaffer,  on  whom  be  peace, 
says,  the  said  Khoola  or  divorce  so  given  is  valid,  whether  the  woman  is 
one  with  whom  the  husband  has  had  sexual  intercourse  or  not.  And 
Aboo  Bakur  Iskaf,  on  whom  be  peace,  says,  that  this  shall  not  be 
valid,  and  the  divorce  (and  Kli^old)  shall  not  be  caused ;  and  he  makes  no 
distinction  between  the  case  of  one  with  whom  her  husband  has  had 
sexual  intercourse  and  between  one  with  whom  her  husband  has  not  had 
sexual  intercourse.  And  it  is  also  reported  from  him  that  he  said,  that  if 
the  woman  is  one  with  whom  her  husband  has  had  sexual  intercourse, 
then  the  Khoola  or  divorce  shall  not  be  valid,  but  if  she  is  not  one  with 
whom  her  husband  has  had  sexual  intercourse,  then  the  Khoola  or  the 
divorce  shall  take  place. 

And  this  is  also  the  view  taken  by  Abool  Eassim  Suffar,  on  whom 
be  peace,  and  this  view  is  correct ;  because  the  divorce  of  one  with  whom 
her  husband  has  not  had  sexual  intercourse,  is  irreversible  (bain — that  is, 
complete) ;  and  if  the  husband  is  inclined  to  divorce  irreversibly  (or 
bain)  without  consideration,  he  shall  be  much  more  vnlling  to  do  so 
when  he  gets  consideration  for  the  same ;  but  in  the  case  of  the  woman 
whose  husband  has  bad  sexual  intercourse  with  her,  divorce  (which  is 
not  of  the  bain,  class)  without  consideration  is  not  irreversible  (or  bain)^ 
and  does  not  cut  o£E  (before  the  expiry  of  the  IdduC)  the  relation- 
ship created  by  marriage,  and,  therefore,  the  husband  never  agreed 
to  have  the  wife  irreversibly  (Jbain)  divorced,  and  therefore  the  divorce 
pronounced  by  the  other  man  (which  in  consequence  of  its  being  accom- 
panied with  consideration  obtained  the  character  of  being  irreversible 
or  bain)  is  not  operative  as  against  the  husband  (i.6.,  it  shall  not  amount 
to  divorce  at  all). 

2656.  (1756.)  A  man  says  to  another,  ^^  Divorce  my  wife  on  con- 
dition that  she  shall  not  remove  anything  from  the  house''  the  person 


ICHOOLA.  803 

80  ordered  then  divorces  the  wife ;  the  husband  and  wife  then  come  to 
differ  from  one  another,  the  husband  saying  that  the  woman  did  (subse- 
quent to  the  pronunciation  of  the  conditional  divorce)  remove  a  thing 
from  the  house,  and  the  wife  saying  that  she  did  not :  it  is  stated  in  the 
Nuwadir  that  the  word  to  be  accepted  shall  be  that  of  the  husband,  and 
that  the  divorce  shall  not  be  caused :  the  learned  lawyers  have  held  that 
this  answer  is  correct  if  the  husband  has  said  to  the  other  person  whom  he 
has  ordered  as  above,  ^^Tell  her  Hhou  art  divorced  if  thou  shalt  not  remove 
anything  from  the  house,*  ^'  so  that  if  the  person  so  ordered  did  say  this  to 
the  woman,  and  if  the  husband  afterwards  claims  that  the  woman  took 
some  thing  out  of  the  house,  then  the  word  to  be  accepted  shall  be  that 
of  the  husband,  because  the  husband  denies  (that)  the  condition  of  the 
divorce  (has  been  fulfilled) ;  but  if  the  husband  said  to  the  person 
ordered,  ^^Tell  my  wife,  Hhou  art  divorced,  on  condition  (of  thy 
accepting  that)  thou  shalt  not  remove  any  thing  from  the  house'" 
(so  that  the  divorce  is  conditional  on  her  accepting  the  condition 
and  not  on  her  refraining  to  remove  a  thing),  and  the  person  so 
ordered  does  say  so,  and  the  woman  accepts  (the  condition),  then  if 
the  husband  afterwards  says  that  the  woman  removed  some  thing 
from  the  house,  the  husband's  word  shall  not  be  accepted,  because 
in  this  case,  the  divorce  appertains  to  the  acceptance  by  the  woman  (of 
the  condition  that  she  shall  not  remove)  and  when  she  does  accept  (the 
condition)  the  divorce  takes  place  at  once  whether  she  removes  any  thing 
from  the  house  or  not ;  just  as  if  the  husband  says  to  his  wife,  **  Thou 
art  divorced  on  condition  (of  thy  accepting)  that  thou  shalt  pay  me  a 
thousand  dirhems  "  and  the  woman  says,  ^^  I  accept,''  she  shall  become 
divorced  at  once  even  if  she  does  not  pay  the  thousand. 

So  also  if  a  man  says  to  his  wife,  '^  Thou  art  divorced  on  con- 
dition (of  thy  accepting)  that  thou  should  enter  the  house  "  and  she 
accepts  (the  condition),  she  shall  become  divorced  at  once,  although  she 
nught  not  enter  the  house  because  the  word  ala,  (which  has  been  here 
rendered  by  the  words,  *^  on  condition  of  thy  accepting  that ")  is  used 
to  make  the  proposal  dependent  on  the  acceptance  and  not  to  make  the 
proposal  dependent  on  the  existence  of  the  thing  (or  condition)  accepted. 

9667.  (1757.)  A  man  says  to  his  wife,  <'  Thou  art  divorced  after 
to-  morrow,  on  condition  of  (thy  accepting  to  pay)  a  thousand  dirhems 
and  to-morrow  on  condition  of  (thy  accepting  to  pay)  a  thousand 
dirhems  and  to-day  on  condition  of  (thy  accepting  to  pay)  a  thousand 


804  THB   TAGOBB   LAW   LCCTUB88,    1891-92. 

dirhems ;  **  the  woman  says,  ^*  I  accept ;  '^  she  shall  become  immediately 
divorced  once  in  consideration  of  a  thousand  and  the  second  and  third 
divorces  shall  be  caused  (if  the  woman  is  one  with  whom  the  husband 
has  had  intercourse),  at  their  respective  times,  without  the  consideration 
mentioned  (because  the  consideration  is  found  without  the  thing  for 
which  the  consideration  is  stipulated). 

2658.  (1768.)  A  man  says  to  a  woman  who  is  not  in  the  ownership 
bf  the  man  (that  is,  who  is  not  married  to  him),  "  Thou  art  divorced  on 
condition  of  (thy  accepting  to  pay)  a  hundred  dirhems,  if  I  shall  marry 
thee  any  day  out  of  time "  and  the  woman  says,  ^'  I  accept ; "  the 
divorce  shall  not  be  caused  (in  the  event  of  his  marrying  her)  according 
to  Aboo  Haneefa,  on  whom  be  peace,  and  the  woman  shall  not  be  obliged 
to  pay  anything  (because  her  present  acceptance  of  the  condition  before 
the  condit  ion  is  realised  goes  for  nothing)  but  Aboo  Yusoof ,  on  whom  be 
peace,  says  that  the  woman  shall  become  divorced  (after  the  marriage), 
and  the  payment  shall  be  obligatory  on  the  woman.  But  if  she,  at  the 
time  of  her  marriage  says,  ^^  I  accept  the  divorce  which  thou  did  refer 
to  me,  in  consideration  of  a  thousand  dirhems,''  then  the  divorce  shall 
be  caused,  and  the  woman  shall  be  bound  to  pay  the  dirhems  according 
to  Aboo  Haneefa,  on  whom  be  peace. 

2659.  (1759.)  A  Yakeel  who  has  been  appointed  (by  the  woman  to 
obtain  Khoola  from  the  husband)  shall  not  be  liable  to  a  demand  (at  the 
instance  of  the  husband)  to  make  good  the  consideration,  and  such 
consideration  shall  be  due  from  the  woman  (if  the  Yakeel  has  kept  the 
liability  vague  and  indefinite.     See  paragraph  1761  posf). 

2660.  (1760.)  When  a  messenger  sent  by  the  woman  says  to  the 
husband,  "  Either  divorce  her  or  keep  her  (with  propriety) ;  "  the  husband 
3ays,  ^^  I  shall  not  keep  her  and  I  shall  divorce  her ;''  the  messenger  then 
says,  ^^  I  have  released  thee  from  all  rights  which  the  woman  has  against 
thee  and  therefore  divorce  her;''  and  the  husband  divorces  her ;  the 
woman  then  says,  <^  I  did  not  appoint  the  messenger  as  a  Yakeel  to  give 
release,''  and  the  husband  claims  that  she  did  verily  direct  the  mes- 
senger to  give  release  :  the  divorce  shall  be  caused  and  the  rights  of  the 
woman  (shall  not  be  lost  to  her  as  a  consequence  of  the  release,  but  the 
same)  shall  continue  to  subsist  against  her  husband;  but  if  the  husband 
does  not  claim  that  the  woman  appointed  the  messenger  her  Yakeel,  then 
the  case  is  two-fold ;  if  the  messenger  has  said  to  the  husband,  ^'  I  have 
released  thee  from  all  rights  which  the  woman  has  against  thee,  on  con* 


KHOOLA.  806 

dition  of  thy  divorcing  her,''  and  the  hasband  diyoroes  her  for  this  release, 
then  the  divorce  shall  not  be  cansed,  and  the  rights  of  the  woman  shall 
continue  to  subsist  against  her  husband,  because  divorce  in  lieu  of  being 
released  from  the  dower  depends  on  the  permission  of  the  woman ;  and 
when  she  has  not  gi^en  the  permission,  the  divorce  shall  not  be  caused ;  but 
if  the  messenger  says  to  the  husband,  ^^  Divorce  her,  and  verily  have  I 
released  thee  from  her  dower,"  the  divorce  shall  be  caused,  and  her  rights 
shall  subsist  against  the  husband :  (in  the  latter  case  the  divorce  is  caused 
because  it  was  independent  of  the  release;  in  the  first  case  it  was  depen- 
dent on  the  release:  there  is  no  release  in  either  case,  because  the 
messenger  was  not  a  Vakeel  and  had  no  authority  from  the  wife  to  release, 
neither  was  the  release  authorised  or  ratified  by  the  wife). 

9661.  (1761.)  When  the  Vakeel  appointed  by  the  woman  to  obtain 
Khoola  accepts  the  Khoola,  the  Khoola  becomes  complete :  then  will  the 
Vakeel  be  liable  to  a  demand  in  respect  of  the  consideration  for  the 
Khoola  ?  This  case  arises  in  two  ways ;  if  the  Vakeel  has  kept  the  liability 
for  the  consideration  undefined  (that  is  to  say,  not  having  referred  it  to 
himself  or  to  the  woman)  having  said  to  the  husband,  ''  Give  Khoola  to 
thy  wife,  in  consideration  of  a  thousand  dirhems,''  or  ^^  in  consideration 
of  this  thousand''  pointing  towards  the  thousand  which  was  the  woman's 
property,  then  in  this  case,  the  consideration  shall  be  due  from  the  woman, 
and  the  Vakeel  shall  not  be  liable  to  a  demand  against  him  in  respect 
of  it;  but  if  the  Vakeel  has  referred  the  consideration  to  his  person,  as  one 
would  refer  property  to  one's  self,  or  as  one  would  refer  suretyship  to 
himself,  having  said,  ^^  Qive  Khoola  to  thy  wife,  in  consideration  of  this 
my  thousand  dirhems  "  or  '*  in  consideration  of  this  thousand,"  pointing 
to  the  thousand  which  belongs  to  him ;  or  ^'  in  consideration  of  my 
thousand,"  or  says, ''  in  consideration  of  a  thousand,  on  condition  that 
I  am  surety,"  then  in  this  case  the  consideration  shall  be  due  from  the 
Vakeel,  and  the  woman  shall  not  be  liable  to  a  demand  upon  her  in 
respect  thereof ;  and  the  Vakeel  shall  be  entitled  to  realise  the  amount 
from  the  woman  either  before  the  Vakeel  is  made  to  pay  to  the  husband  or 
afterwards,  although  the  woman  might  not  have  ordered  him  to  stand 
surety  for  her :  but  contrary  to  this  is  the  case  of  a  man  appointed 
Vakeel  on  behalf  of  a  man  to  marry  him  to  a  woman,  for  if  such  Vakeel 
stands  surety  for  the  dower  to  the  woman  and  the  suretyship  is  without 
the  authority  of  the  client,  the  Vakeel  shall  not  be  entitled  to  make  the 
client  liable. 
89 


806  TBM  TAOOU  LAW  UCVUBBS,   1891-92. 


(If  62.)  Wban  a  man  divosoea  liis  wifo  in  oonsideraiion  of 
pMferty,  whibt  she  is  IP  her  IcUM  (eonseqoent  on  and)  afier  KhooU,  the 
4ffrovce  shall  be  caused,  bat  the  eoMideration  shall  npt  be  due  (beoaoee  the 
oonsi4emtioii  is  stipulated  for  pething). 

2068.  (1763.)  ^0  also  if  the  husband  divides  his  wife's  dow«ir 
into  thre^  portions,  an4  then  divorces  h^Vt  on^e  in  consideration  o{  a 
third  part  of  h^r  d.Qwer,  and  ^Iso  gives  her  a  second  and  third  di^orqe 
(in  li^u  of  the  ren^ai^in^  two-thirds),  the  three  divorces  shall  be  oansed^ 
apd  a  third  part  of  the  dower  shall  drop  (from  the  husbai^d  and  shall  fpn^ 
consideratiojn  for  one  divorce)  and  the  woman  sha^  be  entitled  to  recover 
from  the  husbai^d  two-thirds  of  her  dower  (because  wh^n  the  first  divorce 
was  given  in  consideration  of  a  third  part  of  the  dower,  that  divorce 
became  an  irreversible  divorce  having  being  opposed  to  consideration  ^  but 
the  second  divorce,  although  operative,  shall  not  carry  with  it  the  eonsideiv 
ation ;  because  consideration  is  paid  by  the  woman  for  being  released 
from  the  marriage,  from  which  she  was  completely  released  by  the  first 
divorce,  and  so  as  regards  the  third  divorce). 

StQ94f  (l^^^O  ^  ^^^  ^^J^  ^  ^^^  wiie,  ^'  I  have  made  Ehoola  with 
thee  n ''  an4  she  acce^ti^  the  sai^e :  divorce  shall  be  caused,  and  the  hus- 
band shall  be  released  from  the  dower  which  the  woman  has  owing  to  her 
from  the  husband :  and  if  she  ha^  no  dower  da,e  from  the  hushj^nd,  then 
she  shall  be  boui^d  to  returi^  the  dower  which  the  husband  had  delivered 
to  her ;  90  has  it  beeqi  laid  down  by  Hakim-ool  Shaheed  in  the  chapter  on 
Ikr^r  in  his  wo^k  called  the  Mookbtusur  and  by  Sheikh-ool  Imam  known 
as  $!hahir  ^da,  on  whom  be  pei^ce :  and  the  same  view  has  been  adopted 
by  ^heikh-ool  Imam  Abpo  Baker  Mahomed,  son  of  Fazal,  on  whom  be 
peace,    (^ee  ^arajgra^hs  17^9  and  1809  po$t.) 

And  this  ct^e  strengthens  the  view  laid  down  by  us  from  Aboo 
Yusoof|  Qn  whom  l^e  peace,  that  ^^o^a  does  not  take  place  except  for 
consideration. 

91^9%  (17|S$.)  A  m«iQ  pl^taius  hip  dc^i^ghter'a  Kh^oola  from  her  hus- 
ba.n4 ;  if  tbp  4^^ght9r  ^  of  ^ge,  {(.nd  if  the  father  has  stood  surety 
{or  the  COI^d^raUA^  i<ff  the  Khootf^^  tl^^  the  KhoolOf  is  complete ;  beca93^ 
if  ^  ^tr^^gf^  (pr  9i  Ih^(^]^)  dp^s,  so  (tl^alb  i^,  obtftins  JS^qqIc^  fix^d  atan^s 
aurety  f9r  t^  ppx^^^deratipn ;  pee  pari^grpj^^  1754)^  th^  Khoffh  become 
(jpmpietf?,  ^fldj^  thW^fcri?!  abaiJ  the  SJj^afa,  be  ipuch  more  qopiipjet^  in  the 
case  of  the  father :  and  if  the  father  obtains  the  ^oola  in  Qpp^i4ep:%^jiafi 


SBOOLA.  807 

of  his  daiight^s  dofv^,  sxA  nbAudu  Bfxr^i  tktt  ako  shall  tiie  jEllobla 
feeoottie  complete :  and  af tei^  that  it  y^iH  be  B&euf  if  Ae  weman  mttficfs 
ihe  £%ooZa  ih  Ilea  of  dowei!^  her  ratifi^atioii  sfaikU  be  valid^  aad  the  liabili^ 
to  dower  shall  dease ;  btit  if  she  does  fiet  ratify^  then  her  dower  shall  be 
payable  by  the  hdsband,  and  the  hnaband  shall  make  the  father  liable  for 
ttie  same  as  a  ootiseqnence  of  the  scuretysliip,^  if  the  father  has  said  to 
tiie  htsband^  '^Oive  Khoola  ill  eonsideration  of  her  dower  ^  if  she 
ratifies  tiiis  (then  all  right))  if  not  I  shaU  be  responsible  to  the  extent 
thereof*'' 

But  if  Che  daughter  i^  a  itiinor,  then,  if  the  f«thef  staMs  stiMtjr 
(fot  the  eonsididratioii  ft^  the  KhoiM)  the  Khc^  dhbdl  be  boMpIete  by 
Tirtue  of  his  acceptance,  and  the  dower  shall  remain  due  fronr  the  htls* 
band ;  but  the  latter  shall  hold  the  father  liable;  but  if  Ihe  iB,tlm  does 
Hot  stand  surety,  then  the  consideration  shall  not  be  leviable  dther 
from  the  father  or  from  the  minor,  just  as  if  the  gM  had  been  of  age 
(and  the  father  had  obtained  the  Khoola  and  tiobedy  had  made  himself 
responsible  for  the  consideration,  in  which  case  neither  ike  fatht^  ner  the 
girl  is  responsible  for  the  payment  of  the  considemtion  as  shown  in  the 
preceding  piaragraph) ;  and  as  regards  the  question  whether  diyorce 
shall  be  oansed  (in  the  case  of  the  minor  daughter  when  nobody  is 
sorety)  if  the  minor  (whilst  a  minor)  accepts  (the  Khocla),  the  diycMroe 
shall  be  caused,  just  as  if  the  Khoola  had  taken  place  with  the  minor 
herself ;  but  if  (in  the  same  case)  the  father  (without  being  surety  for 
the  confltderation)  accepts  the  contract  of  the  JShoola  (instead  of  the 
minor  accepting  the  same),  the  Mashaikhs^  on  wh(nn  be  peace,  ha?e 
differed  on  the  questioa  wheUier  the  divorce  shall  be  caused^  and  the 
difference  arises  by  reason  of  the  difference  in  the  traditions  (from  Aboo 
Haneefa);  but  the  correct  tradition  is  that  the  divorce  shall  be  caused, 
because  the  father's  tongue  is  just  like  the  daughter's  tongue. 

9066.  (1766.)  And  if  the  Khoola  takes  place  faatwew  the  husband 
and  the  mother  of  the  infant  wife  (that  is,  the  mother  enters  into  the 
eontract  of  Khoola  on  behalf  of  her  infant  daughter)  then  if  the  mother 
luu  referred  the  consideraticm  to  her  own  property  (saying  that  she 
adka  £%ooIa  in  lieu  of  her  own  thousand  dirhems)  or  if  she  stands 
siur^>  the  Khoola  shall  be  complete,  just  as  if  the  Khoola  were  made 
(1^  the  husband)  with  a  stranger  (or  Fmoolee,  who  appears  on  the  side  of 
ihe  wife) ;  but  if  the  mother  does  not  refer  for  the  consideration  to  her 
own  property  and  does  not  stand  surety,  will  the  divorce  be  operative 


808  THE   TAQOBE  LAW  LECTIJBES,   1891-92. 

as  it  is  Operative  when  the  father  obtains  the  Ehoola  (see  paragraph 
1765)?  In  this  matter  there  is  no  tradition  (from  Aboo  Haneefa)  and 
the  correct  view  is  that  the  divorce  shall  not  take  place*  And  if  a  person 
who  appears  as  a  contracting  party  (on  behalf  of  the  infant  wife)  in  the 
matter  of  Ehoola  he  a  stranger,  and  does  not  stand  surety  for  the 
consideration,  will  the  Ehoola  remain  suspended  (until  the  minor  ratifies 
it)  9  Some  of  the  learned  lawyers  have  said  that  if  the  minor  wife  is  able 
to  understand  the  contract  and  is  able  to  describe  it,  then  the  Ehoola 
shall  remain  suspended  tUl  {i.e.,  dependent  on)  her  acceptance  (or  ratifica- 
tion); whilst  others. have  said  that  the  same  shall  not  remain  sus- 
pended till  her  ratification  (but  that^  a  divorce  shall  be  caused  withont 
consideration). . 

2667.  (1767.)  And  if  the  Ehoola  is  obtained  from  the  husband  by 
an  infant  wife,  who  understands  the  nature  of  the  Ehoola,  and  is  able  to 
describe  it,  in  consideration  of  her  dower,  then  one  irreversible  {hain, 
or  complete)  divorce  shall  take  place,  and  the  dower  shall  not  cease  to 
be  payable ;  (because  giving  up  dower  is  purely  detrimental  to  her  and  is 
in  no  way  to  her  benefit). 

2668.  (1768.)  And  if  the  infant  wife  appoints  a  Vakeel  to  get 
Ehoola  (from  her  husband)  and  the  Vakeel  acts  in  the  matter,  then  on  this 
question  there  are  two  traditions;  according  to  one  tradition,  the  appoint- 
ment of  the  Vakeel  is  valid  and  the  Ehoola  is  completed  by  the  acceptance 
of  the  Vakeel,  just  as  it  is  completed  by.  the  acceptance  of  the  infant 
wife;  and  according  to  another  tradition,  when  the  Vakeel  does  not 
stand  surety  for  the  consideration  (for  the  Khoola),  no  divorce  shall  be 
caused,  just  as  if  the  Ehoola  had  been  made  by  the  husband  with  a 
stranger  (for  the  wife). 

2669.  (1769.)    And  Ebussaf,  on  whom  be  peace,  has  stated  in  the 
•(book  on)  Devices,  that  if  the  father  obtains  his  infant  daughter's  Ehoola  in 

consideration  of  her  dower,  then  if  the  father  is  aware  that  the  Ehoola  ia 
for  the  good  of  the  daughter,  in  that  she  does  not  pass  her  days  in  harmon j 
with  her  husband,  and  therefore  he  obtains  her  Ehoola,  in  consideration  of 
her  dower,  then,  according  to  the  view  of  Malik,  on  whom  be  peace,  the 
husband's  liability  to  dower  shall  drop ;  and  if  the  Kazee  decrees  that  the 
dower  has  dropped  (i,e.,  has  ceased  to  be  payable),  then  his  decree  shall 
be  operative,  because  the  decree  of  the  Eazee  relates  to  a  question  which 
(has  not  been  settled  by  express  text,  but  which)  has  been  settled  by 
J^tihad. 


KHOOLA.  809 

2870.  (1770.)  And  it  is  valid  to  pledge  property  (with  the  husband) 
to  secnre  the  consideration  for  the  Khoola,  and  also  to  give  surety  (Kifalut) 
for  such  a  purpose. 

2071.  (1771.)  So  also  it  is  allowable  to  fix  a  time  for  the  pay- 
ment of  the  consideration  for  the  Khoola;  and  if  the  time  fixed  is  the 
death  of  so  and  bo,  or  until  so  and  so  arrives  from  his  journey,  the  con- 
sideration shall  become  immediately  payable,  and  the  time  fixed  shall 
become  void  (because  the  time  fixed  is  Mujhool  or  vague) :  and  if  the  time 
fixed  is  the  reaping  of  the  crops  or  the  thrashing  of  the  crops,  then  the 
time  fixed  is  valid. 

2672.  (1772.)  When  the  father  makes  Khoola  on  behalf  of  his 
infant  son,  the  Khoola  is  not  valid,  because  this  act  of  the  father  amounts 
to  making  the  divorce  dependent  on  (the  son's)  acceptance,  and,  therefore, 
it  shall  not  be  valid  just  as  the  Khoola  made  by  the  infant  husband  him- 
self is  not  valid :  and  the  Khoola  made  by  the  infant  husband  does  not 
depend  on  the  ratification  by  the  father. 

2678.  (1778.)  And  the  Khoola  made  by  a  drunken  man  is  valid ; 
so  also  all  his  acta  of  disposition  (are  valid),  except  his  apostacy  and  his 
admission  of  an  act  involving  punishment  and  his  calling  witnesses  to 
attest  his  own  testimony,  (e.gr.,  ^^  you  be  witness  that  I  have  witnessed  Zyd 
divorcing  his  wife  '0*  ^^^  Daud  of  Isfahan,  on  whom  be  peace,  says, 
that  no  act  of  disposition  by  one  who  is  drunk  is  operative^  and  such 
also  is  the  view  taken  by  Husun,  son  of  Zyad,  and  Abool  Hussun 
Kurkhy  and  Abool  Eassim  Saff ar ;  and  this  view,  is  one  of  two  views 
taken  by  Shafei,  on  whom  be  peace.  And  Aboo  Nusur,  son  of  Mahomed, 
son  of  Sulam,  on  whom  be  peace,  says,  that  if  the  man  who  is  intoxicated 
ia  helpless  in  the  matter  of  drink  in  this  way  that  (without  drink)  his 
senses  are  not  about  him,  or  if  compulsion  is  exercised  on  him,  then 
divorce  given  by  him  shall  not  be  caused,  and  his  acts  of  disposition 
shallnotbe  valid;  but  if  he  is  not  helpless  in  the  matter  of  drink  (as 
aforesaid),  then  the  divorce  given  by  him  shall  take  effect  and  his  acts  of 
disposition  shall  be  operative. 

And  according  to  another  tradition  (from  Aboo  Haneefa)  there  is 
KyoB  and  IsKhsan  (i.a.,  the  rule  in  such  a  case  is  inferred  both  from 
Kya9  and  Intiluan),  and  according  to  Istihsanj  the  Khoola  is  not  valid^ 
and  according  to  Kyaa  it  is  valid.    And  it  is  reported  from  iLboo  Yosoof> 


810  THB  TAGOBB  LAW  LSCTUBBS^  1891-92. 

on  whom  be  peace,  that  he  accepted  the  Tiew  which  waa  iilferMfd  £iom 
Kyas  (bj  Aboo  Haneefa). 

And  if  the  Eazee  adopts  the  view  set  forth  by  any  one  ol  these  here 
mentioned,  his  decree  shall  be  operative. 

2674*  (1774.)  A  man  makes  Khoola  with  his  wife,  atid  they  hare  an 
infant  child,  the  condition  for  the  Khoola  (that  is,  the  consideration) 
being  that  the  child  shall  remain  with  the  father  for  a  certain  number 
of  years :  the  Khoola  is  valid  but  the  condition  is  void ;  becanse  the  right 
to  remain  with  the  mother  appertains  to  the  child,  and  that  right  shall 
not  become  void  by  the  mother  rendering  the  same  void. 

2676.  (1 775.)  A  woman  takes  Khoola  from  her  husband  for  the  con- 
sideration of  her  dower  and  the  maintenance  for  the  period  of  her  tddui^  and 
on  the  condition  that  she  shall  maintain  her  child  with  her  own  (means  of) 
maintenance  (that  is,  that  she  shall  herself  maintain  her)  for  a  certain 
number  of  years ;  she  does  keep  and  maintain  the  child  for  a  year  or 
two  (that  is,  short  of  the  stipulated  number  of  years),  and  then  sends 
back  the  child  to  the  husband :  the  woman  shall  be  compelled  to  keep 
the  child  and  maintain  the  child  herself  with  her  own  maintenance  for 
the  remainder  of  the  stipulated  period.  And  if  the  woman  runs  away 
and  conceals  herself,  so  that  the  stiptdated  period  becomes  completed,  and 
the  woman  then  appears,  the  husband  shall  make  the  woman  liable  for 
the  value  of  the  child's  maintenance  daring  the  time  the  woman  did  not 
maintain  the  child. 

8676.  (1776.)  So  also  if  a  man  divorces  his  wife  on  condition 
that  the  woman  shall  keep  and  maintain  the  child  with  her  own  mainte- 
nance until  the  child  attains  majority,  and  on  condition  that  the  woman 
shall  give  up  her  dower  due  from  the  husband,  and  the  woman  accepts 
all  this ;  she  then  refuses  to  keep  the  child :  she  shall  be  compelled  to 
keep  and  maintain  the  child  with  her  own  maintenance ;  but  if  (not- 
withstanding that),  the  woman  fails  to  do  so,  she  shall  be  bound  to  pay 
for  the  keeping  (or  the  bringing  up)  of  the  child  and  its  maintenance,  until 
the  child  attains  majority. 

9677«  (1777.)  A  woman  gets  Khoola  on  condition  that  she  gives  up 
maintenance  and  residence :  the  Khoola  shall  become  complete  and  the 
ivoman  shall  have  no  right  to  maintenance,  but  her  right  of  zesideace 
shall  not  be  void. 


KHOOLA,  SI  I 

MT8.  (1778.)  If  the  wife  gets  her  Khoola  from  her  husband  ea 
condition  that  the  charge  for  residence  shall  be  on  hw,  she  shall  be 
bound  to  hire  a  house  from  her  husband  or  from  another  person  and 
obserre  her  Iddut  there. 

9879.  (1779.)  A  woman  takes  Khoola  from  her  husband  on  con- 
dition that  she  shall  maintain  her  child  by  him  as  long  as  the  child  lives : 
Aboo  Haneefa,  on  whom  be  peace,  says,  that  (instead  of  being  bound  by 
the  stipulation  to  maintain  the  child  on  account  of  such  stipulation  being 
vague  or  mvjhool  as  regards  period)  the  woman  is  bound  (as  a  consequence 
of  the  Khw>la  under  such  circumstances)  to  return  the  dower  which  she 
has  taken  possession  of*  (Compare  paragraph  1782  where  the  period  of 
maintenance  being  fixed,  there  is  no  vagueness  in  the  consideration). 

9680.  (1780.)  A  woman  gets  Khoola  from  her  husband  in  consider- 
ation that  '*  she  shall  suckle  the  child  in  her  womb  for  two  years  until 
the  ehild  is  weaned  and  in  consideration  that  the  maintenance  of  tbe 
child  shall  be  on  her  for  ten  years  after  the  suckling  period,  on  con- 
dition that  if  she  gives  birth  to  a  still-born  child,  then  the  husband  shall 
not  have  anytbing  to  recover  from  the  wife,  and  that  if  she  gives  birth  to 
a  live  ehild  and  suckles  it  for  one  year  and  the  child  then  dies,  then  the 
husbai^d  shall  not  have  anything  to  recover  from  her :  ''  Aboo  Yusoof, 
on  whom  be  peace,  says,  that  all  those  stipulations  are  valid,  and  that  the 
w(Hnan  shall  have  secured  to  her  whatever  is  saved  on  account  of  the  suck- 
ling and  maintenance  of  the  child  should  the  child  die  or  should  it  be  bom 
dead  (that  is,  the  husband  shall  have  no  right  to  get  back  the  propor- 
tionate costs  of  suckling  and  maintenance). 

And  Zoofnr,  on  whom  be  peace,  says,  that  all  those  stipulations  are 
faM  (or  invalid)  and  that  the  woman  shall  be  bound  to  return  the  dower 
to  her  husband  (as  a  consequence  of  the  Khoola^  regardless  of  the  con- 
sideration and  condition  stipulated  for). 

9681-  (1781.)  A  woman  gets  Khoola  from  her  husband  for  the 
cpnsideration  that  she  shall  make  over  her  dower  to  her  child,  or  for  the 
consideration  that  she  shall  make  over  her  dower  to  so  and  so,  a  stranger. 
Mahomed,  on  whom  be  peace,  says,  that  the  Khoola  is  valid,  and  that  the 
husband  shall  g^t  the  dower,  and  nothing  shall  go  to  the  child  or  to  the 
stranger. 

968S*  (1782.)  A  woman  gets  her  Khoola  from  her  husband  for  the 
consideration  of  her  suckling  her  child  without  fixing  any  time  (as  the 
period  of   suckling):     Mahomed,  on    whom  be  peace,  says,  that  the 


312  THl  TAQOU  LAW  LSOTUBiBS,   1891-92. 

Khoola  shall  be  valid  for  the  consideration  of  the  period  of  suckling 
being  for  two  years. 

8688.  (1783.)  If  the  husband  makes  Z&ooZa  with  his  wife  for 
the  consideration  that  she  shall  suckle  the  child  for  two  years  and 
for  the  consideration  of  her  maintaining  the  same  child  for  ten  years. 
Mahomed  on  whom  be  peace,  says,  that  this  Khoola  shall  be  ralid,  and 
the  (small)  amount  of  vagueness  that  might  here  exist  (o?ring  to  the 
possibility  that  the  child  might  die  before  twelve  years)  can  be  suffered 
to  exist  in  cases  of  divorce. 

2684.  (1784.)  A  woman  appoints  a  man  as  her  Vakeel  to  get  Khoola 
from  her  husband ;  she  then  resiles  from  the  appointment  (that  is,  she  then 
withdraws  the  authority  and  dismisses  him  before  the  Khoola  is  obtained) : 
the  withdrawal  of  authority  shall  not  be  effectual,  when  the  Vakeel 
does  not  know  the  fact  (that  his  power  has  been  taken  away  from  him). 

2685.  ^1785.)  If  the  woman  sends  a  messenger  to  her  husband 
to  get  Khoola  from  him,  and  she  withdraws  the  message  before  the  mes- 
senger delivers  the  message,  it  is  valid  for  her  to  do  so,  although  the 
messenger  might  not  be  aware  of  the  withdrawal  by  her  $  (because  e7en 
if  the  messenger  makes  the  proposal  and  the  husband  assents  to  it, 
still  the  contract  is  not  completed  until  she  again  herself  expresses 
her  agreement). 

2686.  (1786.)  A  man  says  to  two  men,  <<6ive  Khoola  to  my  wife 
without  any  consideration,"  and  one  of  them  makes  Khoola  with  the 
wife :  the  divorce  (involved  in  the  Khoola)  shall  not  be  caused  (because 
when  two  Vakeels  are  appointed,  one  has  no  authority  to  act  singly). 

2687.  (1787.)  If  the  husband  orders  two  men  to  give  £&ooIa  to 
his  wife  in  consideration  of  one  thousand;  then  one  of  them  says,  ^'I  have 
given  Khoola  to  her  for  a  thousand,"  and  the  other  man  says,  *<  Verily 
do  I  ratify  this :  "  Aboo  Yusoof,  on  whom  be  peace,  says,  that  the  KhocAa, 
shall  not  be  valid ;  but  if  one  of  them  says,  ^'  I  have  given  Khoola  to 
her  in  consideration  of  a  thousand"  and  the  other  man  also  says, '^ I 
have  given  Khoola  to  her  in  consideration  of  a  thousand,"  this  Khocia 
is  valid  (because  both  do  the  same  act:  and  joint  action  is  not  necessary, 
as  such  action  is  not  stipulated  for  in  the  authority). 

2688.  (1788.)  A  woman  appoints  another  man  a  Vakeel  so  that  he 
might  obtain  her  Khoola  from  her  husband  in  consideration  of  a  thousand 
dirhems ;  and  the  husband  also  appoints  the  same  man  as  his  Vakeel  to 
give  Khoola  to  her  on  behalf  of  the  husband  for  the  consideration  of  a 


IbiMiflftnd ;  the  Vakeel  thea  makes  the  Kf^ola  in  oonsideration  of'  a  thoa- 
fitand  I  it  is  laid  down  aomewliere  (by  Mahomed)  that  this  Khoold  shall 
not  be  oomplete  until  the  woman  aooepts'  the  Khoola  after  the  YbIsmI 
has  made  the  ZAoola,  or  until  the  husband  accepts  the.  same  and 
Ii^armits  it  (because  one  and  the  same  man  cannot  appear  as  Vakeel  foe 
the  purposes  of  Khoola  for  both  parties,  and,  therefore,  if  one  party  ra^iifies 
the  Vakeel's  act,  then  the  Vakeel  has,  in  effect,  acted  aa  a  volunteer  for. 
that  party,  and  the  result  of  tiie  ratification  of  one  party  is  aa  if  that  party 
had  himself  entered  into  the  transaction ;  after  this  the  Vakeel  oan  appear 
for  the  other  party)  :  Mahomed  says  that  the.  same  man  cannot  act 
as  the  Vakeel  of  both  parties  i  and  Hakim-i-Shaheed  (the  authoif  of  the' 
Moontuka)  on  whom  be  peace,  s^ys,  that  this  view  is  in  accordance  with 
what  is  stated  in  the  AsuL 


Section  II. 

ON  KHOOLA  BY  THE  USB  OF  WORDS  OF  8ALB  AND  PIJEOHASB. 

2689.  (1789,)  When  a  man  says  to  his  wife,  ''Hast  thou  purchasdcl 
frona  me''  or  ''bought  from  me, three  dirorces  in  consideration  of  thy  dower 
and  the  maintenance  during  the  period  of  thjJddut;^*  and  the  woman  says, 
"I  have  purchased : ''  the  correct  view  is,  that  the  divorce  shall  not  be  caused, 
until  the  husband,  after  the  woman  has  expressed  herself,  says,  "  I  have 
sold  to  thee ; "  because  the  man's  expression  admits  of  being  (viewed  as 
a  feeler  or)  a  (mere)  expression  of  intention  (which:  he  might  carry  out 
himself  or  uot)  and  also  admits  of  being  used  in  order  to  establish  a 
thing,  and,  therefore,  the  Khoola  shall  not  be  complete  by  her  expression, 
'^  I  hare  purchased/^  And  verily  Kke  reason  has  already  been  set  forth  (see' 
paragraph  1749)  when  considering  the  man's  expression  to  her,  "  I  have 
made  jE%oo{a  with  thee.'' 

And  if  the  husband  says  to  the  wife,  ''  Purchase  three  divorces  in 
consideration  of  thy  dower  and  the  maintenance  during  the  period 
otthj  Iddutf'  and  the  woman  saysj  "I  have  purchased:"  the  Khoola 
dudl  become  complete  between  them ;  because  the  husband's  expression 
used  in  the  imperative  amounts  to  TufvoBea  (or  entrusting)  to  her  (of  the 
power  of  sale  on  behalf  of  the  husband)  and  it  is  eompetent  to  one 
(of  tbe  two  spouses)  to  appear  as  a  contracting  party  on  behalf  of  both 
pajrties  in  the  matter  of  Khoola  in  the  event  of  the  consideration  befng 
known^  according  to  correct  traditions,  [from  Aboo  Haneef a) ;  and,  in  the 
proMBt  case,  the  consideration  ia  known. 
40 


814  :    THB  XAiQOBl  hkW  LKTOBMB,    1891*92. 

Bot  in  the  first  mentioned  case,  the  husband's  words  do  not  amount 
to  Tufujeez  (or  the  entrusting  the  wife  with  the  power  of  sale  on  behalf  of 
the  husband),  and,  therefore,  in  that  case  one  (of  the  two  spouses)  cannot 
contract  on  behalf  of  both  parties ;  and,  therefore,  it  is  necessary  for 
the  husband,  after  the  wife  has  expressed  herself,  to  say,  <<  I  have  sold." 

2690.  (1790.)  A  man  says  to  his  wife,  "Every  woman  whom 
i  shall  marry,  I  have  verily  sold  her  divorce  to  thee  in  consideration  of 
one  dirhem ; "  he  then  marries  a  woman :  it  is  necessary  that  the  (first) 
wife  should  express  her  acceptance  after  this  second  marriage  of  her 
husband,  at  the  meeting  at  which  she  becomes  aware  of  the  second 
marriage ;  and  if  she,  after  such  second  marriage,  says,  "  I  have  accepted  " 
or  says,  *^  I  have  purchased "  or  says,  "  I  have  divorced  her  (that  is, 
the  second  wife),"  the  divorce  on  the  second  wife  shall  take  place  for  what 
the  husband  stated  as  the  consideration  (that  is,  in  this  case  the  first 
wife  shall  have  to  pay  one  dirhem  to  the  husband) ;  but  if  the  first  wife 
accepts '  the  sale  before  the  (second)  marriage,  no  divorce  shall  be  caused ; 
because  the  expression  used  by  the  husband  shall  be  referred  to  a  time 
after  the  marriage  (that  is,  after  the  marriage  has  taken  place,  the  bus- 
band  must  be  held  to  say,  "  I  have  sold  her  divorce  to  thee  for  one 
dirhem/0  and,  therefore,  acceptance  to  be  valid  must  be  after  the 
marriage. 

2691.  (1791.)  A  man  says  to  his  wife,  "  I  have  sold  to  thee  three 
divorces  in  consideration  of  thy  dower  and  the  maintenance  of  the  period 
of  thy  Idduty*  and  the  woman  says,  "  I  have  soldy*'  instead  of  saying, 
"  I  have  purchased : "  Aboo  Buker  Iskaf,  on  whom  be  peace,  says,  one 
irreversible  (or  bain,  that  is,  complete)  divorce  shall  be  caused  just  as  if 
the  woman  had  said,  "  I  have  sold  my  dower  and  the  maintenance  for 
the  period  of  my  Iddut  in  consideration  of  the  divorce." 

And  the  lawyer  Abool  Leith,  on  whom  be  peace,  has  said  that  no 
divorce  shall  be  caused :  and  this  view  is  preferable ;  because  the  woman's 
expression  is  (an  independent  sentence  and)  the  commencement  of  a 
sentence,  and  is  not  by  way  of  an  answer. 

2692.  (1792.)  A  woman  says  to  her  husband,  ^^  I  have  sold  to  thee 
my  dower  and  the  maintenance  of  the  period  of  my  Iddut ;  hast  thou  p«u> 
<)hased;"  and  the  husband  says,  *'  I  have  purchased;  get  up  (and)  go  away ;" 
the  woman  then  gets  up  and  goes  away:  the  learned  lawyers  have  held  that 
apparently  the  woman  shall  not  become  divorced ;  because  the  husband 


EHOOLA  BT  WORDS  OT  SALB  AKD  FUBCHA8E.  815 

did  not  sell  to  her  the  person  of  the  woman  and  her  dirorcOj  but  he  only 
purchased  her  dower^  and  the  purchase  of  the  dower  does  not  amount  to 
divorce :  but  the  learned  lawyers  have  held  that  it  is  safe  to  renew  the 
marriage  (with  the  woman),  if  he  has  not  already  diyorced  her  twice 
before  this. 

S69&  (1793.)  A  man  says  to  his  wife,  ^'  I  have  sold  to  thee  one 
divorce  in  consideration  of  thy  dower  and  the  maintenance  of  the  period 
of  thy  Iddutj**  and  the  woman  says  (in  Persian),  ^<  With  all  my  heart  hava 
I  purchased  (the  same): "  dirorce  shall  be  caused ;  because  this  expression 
{vig,,  such  as  that  used  by  the  wife  saying,  '^  with  all  my  heart,'0  ui  ^od 
for  the  sake  of  exaggeration  (to  express  the  highest  degree  of  desire)  and 
the  expression  amounts  as  if  she  had  said,  '*  I  have  purchased  with 
pleasure/' 

96M.  (1794.)  If  the  husband  says  to  her,  <<  I  have  sold  to  thee 
the  divorce  in  consideration  of  thy  dower,  which  is  owing  to  thee  from 
me,''  and  the  woman  says,  ^'  I  have  divorced  myself : "  the  woman  shall 
become  completely  separated  {hain  or  irreversibly  divorced)  by  one 
divorce  in  consideration  of  her  dower;  because  this  expression  (that  is, 
the  one  used  by  the  woman)  admits  of  being  used  by  way  of  acceptance 
of  the  proposal  emanating  from  the  husband,  and,  therefore,  that  ex- 
pression shall  be  considered  as  an  acceptance.  And  some  have  said  that 
one  reversible  divorce  shall  be  caused. 

And  this  case  is  an  illustration  of  the  case  where,  if  the  woman  says, 
*^  Give  me  Khoola,  in  consideration  of  a  thousand  dirhems,"  and  the  hus- 
band says,  **  Thou  art  divorced,"  the  learned  lawyers  have  differed  in 
regard  to  this  case,  but  the  correct  view  is  that  the  husband's  expression 
Bhall  be  held  to  be  used  as  an  answer  to  the  woman's  proposal  (see  para- 
graph 1750).    So  also  in  the  present  case. 

And  if  the  husband  says  to  his  wife,  *^  I  have  sold  to  thee  one 
divorce,"  without  mentioning  the  consideration,  and  the  woman  says, 
'^  I  have  purchased,"  one  reversible  (or  Bujue)  divorce  shall  take  place* 
And  if  the  husband  says,  ^*  I  have  sold  thy  person  to  thyself,"  and  the 
woman  says,  ^'  1  have  purchased,"  one  irreversible  (bain,  that  is,  complete) 
divorce  shall  be  caused ;  because  to  sell  the  divorce  is  to  make  the  pur- 
chaser (i.e.y  the  wife)  the  owner  of  the  divorce,  and,  therefore,  when  the 
hasband  has  not  mentioned  the  consideration,  he  has  in  effect  said,  *'  I 
have  made  thee  owner  of  the  divorce  "  (without  qualifying  the  divorce 
or  atating  of  what  kind  it  is,  and  a  divorce  without  qualification  is  always 
xerersihle)  i  therefore  the  divorce  shall  be  reversible  (Bu/ue)  t  but  to  sell 


616  THB  TAGou  Licw  tMmna»f.  1891-92.    . 

t}i0  person  of  tha  wife  (to  the  wife)  is  to  mftke  her  the  ownet  of  her  pmfBbhf 
$aA  tbe  ownership  of  the  parson  is  not  obtained  ezeept  by  as  irteverstUe 
fMn,  that  is^  oodiplete)  divorce,  and, :  therefbre,  the  diToree  shall  be 
inrevAnible* 

2696.  (1795.)  A  man  says  to  his  wife,  ^*  I  have  sold  to  thee,  one 
div6rce  in'  consideration  of  three  thousand  dirhems$ "  he  says  this  three 
times,  the  woman,  after  each  time  the  husband  has  expressed  hi&self,  says, 
^'I  have  purchased ;  **  the  husband  then  says,  ^*  by  using  the  second  and 
fhird  expressions,  I  intended  to  repeat  myself  and  to  give .  information 
Of  the  first  expression : "  the  man  shall  not  be  believed  hf  the  Ksaee, 
and  three  divorces  shall  be  caused,  and  she  shall  be  liable  to  three  thousand 
dirhems ;  because  when  the  husband  first  said,  "  I  have  sold  to  thee  One 
divorce  in  consideration  of  three  thousand  dirhems"  and  the  womad 
accepted  the  same,  one  divorce  was  caused  in  lieu  of  three  thousand  dirhems, 
and,  therefore,  no  consideration  would  be  due  for  the  second  and  third 
divorces ;  and  the  second  and  third  divorces  remained  as  direct  divorces 
partaking  of  the  character  of  being  {hain,  that  is,  complete  or)  irreversible 
(in  consequence  of  being  associated  with  an  irreversible  or  bain  divorce). 

2696.  (1796.)  A  man  says  to  his  wife,  **  I  have  sold  to  thee  thy 
affair  (Amr — that  is,  the  authority  to  divorce  thyself)  in  consideration  of 
a  thousand  dirhems ; '*  and' the  woman  says  at  the  same  meeting,  ''1 
have  resumed  my  person  (that  is,  I  have  divorced  myself) :  **  one  divorce 
shall  be  caused  in  lieu  of  a  thousand  dirhemfl.  But  if  he  says  to  her, 
^*  1  have  sold  to  thee  this  cloth  in  consideration  of  thy  dower  and  the 
maintenance.during  the  period  of  thy  Iddut,^*  and  the  woman  says,  "  I  have 
purchased,"  and  the  husband  then  divorces  her,  one  reversible  divorce  shall 
be  caused^  and  the  sale  of  the  cloth  in  lieu  of  (dower  and)  maintenance 
shall  be  void  in  conse<]t^ence  of  the  vagueness  of  the  maintenance. 

2697.  (1797.)  A  man  sells  to  his  wife  one  divorce  in  considerieition 
of  the  whole  of  her  dower  and  of  the  whole  of  her  property,  "in  the  room,** 
except  what  she  has  on  her  person  such  as  her  shirt,  and  the  woman 
says/  "  I  have  purchased ; "  and  she  has  on  her  person  ornaments  and 
many  clothes :  one  irreversible  (Jbain,  that  is,  complete)  divorce  shall  be 
caused  in  consideration  of  what  is  in  the  room,  and  the  whole  of  what 
is  on  her  person,-  consisting  of  clothes  and  ornaments,  shall  belong  to  the 
woman ;  because  the  expression,  5^  what  is  in  the  room,"  does  not  include 
whalf  is  on  her  person  consisting  of  clothing  and  ornaments,  and,  therefore^ 
ttie  husband  shall  not  be  entitled  to  the  same. 


SEMLi  fit  WOBB0  OP  SALS  AWP  POBC^TASB.  812 

9698*  (1798.)  Amanselldto  his  wife  one  divorce  in  consideration 
of  what  is  owing  to  her  from  him  on  aeootintof  the  tlower,  and  the  husband 
knows  fall  well  that  no  dower  is  dae  to  her  from  him :  one  reversible 
divorce  shall  be  caused  without  consideration. 

8690.  (17990  A  woman  says  to  her  htisband^  '^  I  have  ptiifcbased  my 
person  from  thee  in  consideration  of  that  (divorce)  which  thou  can  (or  has 
power  to)  give  me  '*  or  says,  *^  I  am  purchasing  my  perdOn  from  thee  in 
consideration  of  that  (divorce)  which  thou  can  (or  has  power  to)  give 
me ''  intending  the  making  of  a  proposal  (by  the  use  of  the  ezpressiooi 
**  I  have  purchased  "  or  <^  I  am  purchasing '')  and  not  intending  to  makfte 
a  promise  (that  she  will  in  future  purchase  it) ;  the  husband  says^  ^^  I 
have  given  to  thee : "  one  divorce  shall  be  caused ;  because  what  the 
woman  desired  from  her  husband  was  to  get  a  divorce,  and^  therefore,  her 
expression  in  full  was  as  if  she  said,  ^^  I  have  purchased  my  person, 
and  therefore  give  me  divorce ; "  and  therefore  when  the  husband  said, 
*^  I  have  given,"  this  expression  amounted  to  an  answer  to  what  the 
woman  had  asked.    (See  paragraph  181]  post). 

2700.  (1800.)  A  tribe  (or  number  of  people)  say  to  a  woman, 
<'  Hast  thou  purchased  thy  person  by  one  divorce  in  eonsideifation  of  all 
rights  which  women  have  against  men,  such  rights  consisting  of  the  dOwer 
and  the  maintenance  during  the  period  of  the  Iddut?^^  she  says,  '^  Yes,  I  have 
purchased;"  they  then  say  to  the  husband,  '^Hast  thou  sold"  and  he  days, 
^'  Yes : "  the  learned  lawyers  have  said  that  the  Khoola  shall  be\3ome 
complete,  and  the  husband  shall  be  released  from  the  dower,  although 
the  people  did  not  say  to  her,  "  Hast  thou  purchased  thy  person  from 
hifn'y^  because  the  woman  could  not  purchase  her  person  except  from  her 
husband* 

2701.  (1801.)  A  woman  intends  to  obtain  ^B^&oo{e^;  and  a  aumber 
of  people  assemble  and  say  to  her,  *^  Hast  thou  purchi^sed  thy  person  in 
considei-ation  of  all  rights  against  the  husband;"  she  says,  ''*I  have 
purchased  "  and  they  then  say  to  the  husband,  ^*  Hast  thou  sold,"  and  the 
husband  says,  ''  I  have  sold,"  and  what  was  passing  in  his  mind  was  the 
sale  of  the  furniture  of  the  room  :  the  woman  shall  verily  become  divorced 
so  far  as  theKazee  is^ concerned ;  because  the  husband  sarid,  ^<  I  have  sold'*  in 
answer  to  the  question  put  by  the  people,  and  the  answer  incorporates 
what  is  contained  in  the  question.  . 

God  knows  best. 


818  THE  TAGOBE    LAW  LECTUBBS^   1891-92. 

SEcrnoN  III. 

ON  KHOOLA  IN  THE  PERSIAN  LANGUAGE. 

2702.  (1802.)  A  man  says  to  his  wife  (in  Persian),  **  Everything 
as  to  which  God  will  question  me  regarding  thee  on  account  of  dower, 
et  cetera,  I  have  sold  to  thee,  in  consideration  of  that  dower  whioh  is  thy 
property,"  and  the  woman  says,  ^^  I  have  purchased  ;  "the  learned  lawyers 
have  said  that  divorce  shall  not  be  caused ;  because  the  husband  sells 
to  her  what  was  her  own  right,  and,  therefore,  this  is  not  valid;  just  as  if 
a  person  says  to  another,  ^^  I  have  sold  to  thee  this  thy  slave,  in  con- 
sideration of  this  my  slave/' 

2703.  (1803.)  A  woman  asks  for  divorce,  and  the  husband  says  to 
her  (in  Persian),  ^<  Hast  thou  sold  this  gold  and  house  in  consideration 
of  that  divorce  of  thine  which  is  in  my  possession  9 ''  she  says,  '^  I  have 
sold,'*  and  then  the  husband  says,  '^  I  have  purchased :"  the  woman  shall 
become  thrice  divorced ;  because  the  divorce  of  the  wife,  which  the  husband 
has  with  him,  is  triple,  and  therefore  all  the  divorces  which  the  husband 
has  with  him  shall  be  caused ;  just  as  if  a  man  says  to  his  wife  (in 
Persian),  ^<  Hast  thou  purchased  thyself  in  consideration  of  that  which 
thou  hast  placed  with  me  in  trust  (Wudeeat),^'  all  trust  property,  which 
she  had  with  the  husband,  shall  be  included. 

2704.  (1804.)  A  man  says  (in  Persian)  to  a  woman  (who  is  another's 
wife)^  ''Hast  thou  separated  (thyself)  from  this  thy  husband,  in  considera* 
tion  of  whatever  dower  thou  hast  against  him  and  of  all  maintenance  during 
the  period  of  Iddut  that  shall  be  due  to  thee  from  him  by  reason  of  divorce," 
and  she  says, ''  I  have  separated ;  "  the  husband  is  then  asked, ''  Hast  thou 
drawn  thyself  away,"  and  he  says, ''  I  have  drawn  myself  away :  "  the 
Ehoola  shall  become  complete  between  them,  because  they  have  described 
in  detail  what  ib  Ehoola  in  Persian. 

2705'  (1805.)  A  man  divorces  his  wife  reversibly ;  He  then  intends  to 
m^ike Ehoola  with  her;  then  people  say  to  the  woman,  ''Hast  thou  drawn 
thyself  away  from  this  man  with  one  divorce,  in  consideration  of  dower  and 
the  maintenance  during  the  period  of  Iddut ; "  she  says,  "  I  have  drawn 
myself  away,"  the  people  then  say  to  the  husband,  "  Hast  thou  given  one 
divorce,"  and  he  says,  "  I  have  given : "  some  of  the  learned  lawyers  have 
said  that  one  reversible  divorce  takes  place ;  whilst  others  have  said  that 
one  irreversible  {bain^  that,  is  complete)  divorce  shall  be  caused,  and  this 
view  is  correct }  because  what  the  husband  has  said  was  by  way  of  answer 


ItHOOLA  Ur  THB  FIB8UH  LKSOUAm.  819 

to  what  the  woman  said  (and  when  dirorce  is  in  consideration  of  property, 
it  is  lain). 

8706.  (1806.)  A  tribe  (a  number  of  people)  say  (in  Persian),  to  a 
woman,  with  whom  her  husband  has  had  intercoarse  ^'Hast  thou  purchased 
thyself  with  one  divorce  in  consideration  of  every  right  which  women 
have  against  men/'  she  says,  ^'  £  have  purchased ;  "  the  husband  then 
says,  '^  I  have  given  one  divorce  according  to  the  Soonnut: "  one  reversible 
divorce  shall  take  place ;  because  an  irreversible  divorce  is  not  according 
to  the  SoonmU,  and,  therefore,  the  husband's  expression  shall  be  deemed 
to  have  been  used  by  way  of  a  beginning  (and  not  in  answer  to  what  the 
woman  said,  which  required  a  divorce  in  consideration  of  property) :  this 
answer  is  according  to  the  tradition  (from  Aboo  Haneefa),  stated  in  the 
Asul  (of  Mahomed) ;  but  according  to  the  tradition  mentioned  in  the 
Zjadut  (a  work  of  Mahomed),  an  irreversible  (or  hain)  divorce  is  accord, 
ing  to  the  Soonnut;  and,  therefore,  it  is  proper  that  the  husband's  ex- 
pression (also  in  the  case  given  in  this  paragraph)  should  not  be  considered 
in  the  light  of  a  beginning  made  by  him  (but  should  be  considered  by  way 
of  an  answer)* 

2707.  (1807.)  A  man  says  to  his  wife  (in  Persian),  <*  Hast  thou, 
for  every  right  which  women  have  against  men,  purchased  thyself  from 
me ; "  she  says,  <^  I  have  purchased ; "  then  the  husband  says,  ^  Go 
away  now :  "  the  divorce  shall  not  be  caused ;  because  such  an  expression 
(as  the  last  one)  is  sometimes  used  to  denote  refusal  (instead  of  deno- 
ting compliance)  and,  therefore,  that  expression  shall  not  be  deemed  to 
create  (or  cause  divorce)  on  account  of  doubt. 

2708.  (1808.)  A  man  says  to  his  wife  (in  Persian),  "  Has  thou  pur- 
chased thyself  from  me ; "  she  says,  ^^  I  have  purchased ; "  the  husband 
then  saySy  ^'  I  have  sold  : "  one  irreversible  (or  bain)  divorce  shall  take 
place:  bat  will  the  husband  be  released  from  the  dower?  Some  of  the 
learned  lawyers  have  said  that  if  the  dower  is  due  from  the  husband, 
then  he  shall  get  released ;  but  if  nothing  is  due  from  the  husband,  then 
the  woman  shall  not  have  to  pay  anything  to  the  husband.  Whilst 
others  have  said  that  the  husband  shall  not  be  released  from  the  dower 
which  is  due  from  him :  and  verily  have  we  stated  this  principle  (see 
paragraph  1791]  in  a  case  where  the  husband  and  wife  made  Khoola  with 
the  words  of  sale  and  purchase  in  the  Arabic  language ;  so  also  when 
the  SJhoola  takes  place  by  the  use  of  the  words  of  sale  and  purchase  in  the 
Persian  language. 


11709.  <ld09.)  A  man  says  to  his  irife^  **  I  have  made  Bwola  witb 
thee"  intending  thereby  divorce:  one  divorce  shall  be  caused  thereby,  and 
the  husband  slpiall  not  be  released  from  the  dower ;  tecatuie  his  expression, 
**  I  have  made  Khoola  with  thee ''  is  one  of  the  indirect  expressions  (of 
divorce)  and  by  the  use  of  indirect  expressions  other  than  the  word 
Khoqldf  one  irreversible  (or  hain)  divorce  is  caased  and  the  husband 
is  not  released  from  the  dower ;  so  also  in  this  place  (that  is>  here  also  one 
irreversible  divorce  takes  place^  and  the  husband  shall  not  be  released  from 
the  dower.  Compare  paragraph  U^i,  where  EMola^  was  intended,  and  it 
was,  therefore,  neoeiMary  for  the  wife  to  accept  it  and  not  a  mere 
divorce  was  intended,  an4»  th^efore,  the  husbfmd  was  relesaed  from  the 
dower;    See  also  1727). 

8710.  (1810.)  And  if  a  maa  says  to  his  wife  (ii^  Persian),. ''  Purchase 
thyself  from  me/'  she  says,  '"I  have  purchased ; ''  but  the  husband  does 
not  say  (afterwards),  "  £  have  sold :  "  no  divorce  shall  be  caused ;  so  also 
if  lie  says  in  Arabic,  ^^  Purchase  thyself  from  me.''  And  if  he  says  to 
her,  ^^  Take  Khoola  "  and  she  saysi  '*  I  have  taken  Khoola,*'  one  divorce 
shall  be  caused  on  her  according  to  most  of  the  Mashaikhs,  on  whom 
be  peace.  And  the  difference  is  this  that  the  husband's  expression,  <<  Take 
Khoola  "  is  an  imperative  order  (by  the  husband  to  the  wife)  to  cause  the 
divorce  on  herself  by  using  the  wcnrd  Khoola:  Q'Qd  when  the  husband  does 
not  mention  the  consideration,  he,  in  effect,  says  to  her,  '<  Divorce  thyself 
irreversibly  (or  make  thyself  6am) ; "  and  if  he  says,  "  Divorce  thy- 
self irreversibly  (or  make  thyself  lain),'*  and  she  says,  <^  I  have  caused 
irreversible  divorce  on  myself  (or  I  have  made  myself  hain),*'  one  divorce 
shall  be  caused. 

But  the  husband's  expression,  *^  Purchase  thy  person  from  me"  and 
his  expression  in  the  Persian  language,  '^  Purchase  thyself,  from  me " 
is  an  imperative  order  on  her  to  pay  consideration ;  and,  therefore,  when 
the  husband  does  not  mention  the  (specific)  consideration,  then  the  order 
to  pay  consideration  is  not  valid  (on  account  of  the  consideration  not 
being  specifically  mentioned}  and  there  remains  (only)  the  expression 
of  tlie  woman  (''  I  have  purchased,")  and  therefore  the  divorce  shall 
not  be  caused  (because  there  is  proposal  by  the  woman  and  no  ac- 
ceptance thereof  by  the  husband).  But  if  the  husband  has  specified 
the  consideration,  saying  to  the  wife  (in  Persian),  "Purchase  thy- 
self in  consideration  of  dower  and  maintenance  during  the  period 
of    the    Iddut"     or    says    to    her    in    Arabic,     "Purchase    thyself 


XHOOLA  IS  VBE  PBBBIAir  UiKQUAaS.  32l 

from  me,  in  consideration  of  tbj  dower  and  the  maintenance  of  thy 
IdM/*  and  the  woman  sajs  in  Arabic,  **  I  have  purchased,"  or  says  in 
Persian,  ^*  t  have  purchased,"  the  Khoola  shall  become  complete, 
(becanse  the  proposal  by  the  husband,  who  specified  the  consideration  ia 
the  proposal,  is  correct  and  valid). 

2711.  (1811.)  A  woman  says  to  her  husband  in  Persian,  ^'  I  have 
purchased  myself ,  in  consideration  of  that  (divorce)  which  you  can  (or  has 
power  to)  give;  '*  the  husband  then  says,  "  I  have  given  r "  divorce  shall 
be  caused,  and  it  is  not  necessary  for  the  woman  to  have  the  intention 
to  make  the  proposal  when  she  says  so.  (Compare  paragraph  1799).  But 
if  she  says  (in  Persian),  ^'  I  will  purchase  myself,  in  consideration  of  that 
(divorce)  which  you  can  give  me,''  and  the  husband  says,^^  I  have  given,** 
the  Khoola  shall  not  be  correct,  and  the  woman's  intention  shall  have  no 
effect  (in  this  case  even  if  she  has  the  intention  of  Khoola)^  Because  the 
woman's  expression  in  Persian,  **  I  have  purchased  myself,"  is  proposal 
(with  a  view  to  the  ultimate  perfection  of  the  contract  of  Khoola)  and  does 
not  admit  of  being  looked  at  merely  as  a  promise  (or  declaration  of  inten- 
tion to  do  something  in  future),  and  her  expression  (in  Persian),  ^^I  will 
purchase  myself^"  is  a  mere  promise  (or  declaration  of  an  intention  to  do 
something  in  future),  and  does  not  admit  of  being  regarded  as  a  pro- 
posal :  and  what  is  necessary  to  state  in  a  proposal  (in  Persian)  is,  **  I 
am  purchasing  myself,"  just  as  it  is  necessary  in  giving  evidence  to  state, 
''I  am  giving  evidence,"  and  it  is  not  sufficient  for  the  witness  to  say, 
"  I  will  give  evidence." 

But  the  woman's  expression  in  Arabic,  ^'  I  am  purchasing  myself," 
(is  ambiguous  and)  admits  of  being  regarded  as  a  proposal  and  also  as  a. 
promise,  and  the  woman  shall  (therefore,  in  consequence  of  the  ambiguity 
of  the  expression  used  in  Arabic)  make  (form)  an  intention  (agreeably  to  her 
wish  in  the  matter). 

2712.  (1812.)  ,  And  if  the  woman  says  to  her  husband  (in  Pe»ian), 
^'I  have  purchased  myself  from  thee,  in  consideration  of  my  dower  and  the^, 
maintenance  during  my  Iddut,  hast  thou  given,"  and  the  husband  says, 
^<Yes;"  separation  shall  take  place  between  them  (and  a  batn  divorce 
shall  be  caused);  because  her  expression,  *^I  have  purchased  myself,"  is  a 
proposal  just  as  if  she  had  said,  '^  I  have  purchased  "  and  the  husband's 
eipression,  **  Yes,"  is  in  answer  to  that  proposal,  just  as  if  he  had  said, 
"I  have  given."  But  if  the  husband  says,  "Yes,  I  will  see,"  then  no 
divorce  shall  be  caused,  because  this  does  not  amount  to  an  acceptance*  ^ 
41 


9iS  rev  MaMi«  hkw  uorens^  ie9U9i. 

S718.  (1613i)  A  mah  makes  Khoola  with  his  wife^  and  sbe  than  lajB 
(in  Persian),  '« Qire  another/'  and  the  hnsb^d  saji,  ^<  I  hatre  givdn  t " 
another  divovee  shall  take  plaee^  because  her  expresrion,  ^'Give  another/* 
is  a  demand  for  dirdreo^  and  the  husband's  expression^  ^'  I  ha^e  gl^en/^ 
admits  of  being  (used  as)  an  answer ;  and  some  of  the  learned  lavvjers 
have  said,  tl^at  in  such  a  page  three  diyorees  shall  be  caused,  just  iis  jif  she 
had  said^  "  Cause  (or  give)  the  remaining  4i7ori^es  i "  but  the  eorreot  view 
is  that  set  fi^rth  fixst 

8714  (1814.)  ▲  man  sells  to  his  wife  one  diyorce,  in  eonsidemtioa 
of  her  ^&Wet  and  the  maintemanoe  during  her  Iddui^  and  the  woman  ^^ptiiv 
ofaases  it  $ ''  thl9  husband  then  sajs  imniediately,  **  all  three,  all  three  t  ** 
the  learned  lawyers  have  said  that  it  is  feared  that  three  divorces  shall  be 
oaased;  beotase  the  husbaud's  expression,  *' all  three,"  is  referable  to 
divoroe^  jast  as  if  he  had  said,  ^*  I  have  caused  three.'' 

8715.  (181S.)  A  man  makes  Khoola  with  his  wife,  with  one  divorce 
(t«0,,  by  giving  one  divorce) ;  and  then  his  friends  tell  him,  '<  Why  hasfc 
thou  done  so ;"  he  says  in  Persian,  '^  Go,  the  woman  shall  be  with  three ;  '* 
no  other  divorce  shall  be  caused  by  this  expression.  And  this  point  has 
(dreddy  been  discussed  in  connection  with  the  question  when  the  husband 
saySi  "  Be  it  that  I  have  given  the  divorce,"  (or  "  Be  thou  one  to  whom 
divorce  has  been  given."    See  paragraph  965). 

3716.  (181$.)  A  man  mf^kes  Khoola  with  his  wife ;  people  ask  hin, 
<^  How  many  did  you  intend/'  and  he  says,  '^^  As  many  as  she  wishes; "  then 
if  the  hqsb?tnd  had  no  (pt^rticular)  intention  (at  the  time  of  making  the 
Khoola)  the  womf^n  shall  be  once  divorced  (by  virtue  of  the  Khoola) 
because  the  li^usband  did  not  (hy  tbe  last  expression)  qause  any  divorce, 
he  only  entrusted  to  her  {Tufweez),  her  wish  (as  regards  the  number 
of  divorces)  and  therefore  by  such  an  expression,  no  other  divorce  shall 
take  place  (because  the  expression  is  not  a  formula  of  divorce,  and  the 
woman  has  received  ho  authority  to  divorce  herself,  neither  has  she 
divorced  herself). 

8717,  (1§17.).  A  woman  ^ayi^  to  her  husband  (in  Arabic),  «  Give  me 
KhooW'  adciing  in  Persian,  <'  I  want  tibreei "  the  husband  says  (in  Persian), 
<^Be  it  three  "  aqd  he  ttue^  makes  Khoola  with  her  with  one  divorce|  (%«6.,  he 
says«  *^  I  have  mt^e  Khoola  with  thee,"  or  <<  I  have  made  Khoola  with  thee 
w^th  one  divorce  t '')  one  divorce  shall  be  caused;  because  the  husband's  firft 
expressioii  (before  b^  ux^de  the  Khoola  and  b^oire  he  used  the  words  ol 


MHOOtik  IH  TSE  PCB8IAN  LAJr«irA«K*  ^29 

Kh$olm)t  ^^Bfi  ifc  tluree/'  I0  sot  the  creation  of  dirotc^  {EehMy  i.e.f  it  k  not 
a  fcurmalifc  by  Which  diToroe  is  caused  or  eveated ;  bat  if  be  had  sai^^ 
'^  1  have  giren  three/ -  then  three  diyorces  wonld  have  been  eaitsed)* 

illB.  (1818.)  A  woman  says  to  her  husband, "  I  have  porebilflod  my« 
self  from  thee,  in  consideration  of  dower  and  the  maintenance  daring  the 
Iddut^^  and  the  hnsband  saj's,  '^  I  have  made  my  hand[  short :  **  some  of 
the  learned  lawyers  have  said,  that  no  divorce  shall  l)e  caused.  And  if  the 
woman  says, ''  1  have  purchased  myself  from  thee,  in  consideration  of  all 
mf  rights ;  ^'  (or  if  she  expresses  herself  as  in  the  previous  case)  and  the 
husband  says,  ''  1  have  withheld  my  hand ; "  then  it  is  reported  from 
Sheikh-ool  Imam  Aboo  Baker  Mahomed,  son  of  Fazal,  on  whom  be  peace^ 
ihat  his  view  is  that  the  Khoola  shall  become  complete,  because  people 
intend  an  answer  by  this  and  the  like  expression. 

8719.  (1819.)  A  woman  says  to  ber  husband  (in  Perrian),  <^  I  have 
made  a  gift  to  thee  of  my  right,  withhold  thy  claws  from  me; "  he  says, 
<<  I  have  withheld  my  claws  from  thee,"  and  says  so  three  times  r  some  of 
the  learned  lawyers  have  said  that  it  is  feared  that  the  woman  shall 
become  thrice  divorced;  and  the  lawyer  Aboo  Leitb,  on  whom  be  peace^ 
says,  that  one  divorce  shall  be  caused,  because  this  exptression  is  tba 
explanation  (in  Persian)  of  the  man's  (Arabic)  elpression  (t.6.,  it  is 
another  form  of  the  Arabic  expression),  <'I  have  cleared  thypath,'^ 
(see  paragraphs  1110  and  1131);  and  the  divorce  caused  by  the  last 
mentioned  expression  is  an  irreversible  (or  bain)  divorce  (if  there  is  in- 
tention) ;  and  a  woman  who  has  become  bain  (by  meaus  of  the  ^t  ez;- 
pression),  is  not  susceptible  of  another  bain  divorce  (by  the  repetition  qf 
the  first  expression). 

2720.  (1820.)  A  womttn  says  to  her  hnsbaoid,  -  ^  E  have-  ctoM  my 
divorce  "  or  "  I  have  made  gift  (of  my  divorce  to  thee  ^)  or  iays,  "  I 
have  made  thee  owner  (of  my  divorce ;  '0  ^^^  the  husband  sa^s^  **  I  hmn 
accepted,'^  intending  by  those  words  a  divorce ;  no  divotfce  shall  be  cauised;' 
because  the  woman  is  not  the  owner  of  the  divcnrce,  and,  tiierefore,  she 
has  na  poorer  to  sell  the  same  or  make  a  gift  of  it» 

2721.  (1821.)  A  man  says  to  his  son-in-law,  "  Hast  thou  sold  to  me  one 
divorce  of  my  daughter,  in  consideration  of  that  dower  whicli  slie  has 
owing  from  thee;"  the  husband  says,  <<I  have  sold"  and*  the  father 
does  not  say  after  that,  "  I  have  accepted : "  no  divof c^  8ha]!r  be  caused* 


S24  THB   TAOOBB  LAW  LEOTTTBSS^    1891-92. 

'  2722.  ,(1822.)  A  woman  says  to  her  husband,  "  I  have  made  a  gift 
of  thtf  dower  to  thee,  remove  thy  claws  from  me :  ^'  the  learned  lawyers 
have  said  that  if  the  husband  divorces  her  (after  this),  then,  the  woman's 
right  to  dower  ceases ;  but  if  he  does  not  divorce  her,  then  her  right  to 
dower  sliaJl  not  cease. 

2723^,  (1823.).  j1  man  says  to  his  wife,  "  I  have  sold  to  thee  one  di- 
vorce, in  cofisideration  of  thy  dower  and  the  maintenance  during  thy  Iddu,t, 
(such  divorcid  being)  lij^e  the  one  which  (the  angel)  Gabriel,  on  whom  bQ 
mercy,'  brought  to  the  prophet,  on  whom  be  God's  pleasure  and  mercy; " 
ihe  woman  says,  '^  I  have  accepted : "  the  learned  lawyers  have  said 
1)hat  if  the  woman  was.  at  that  time  pure  (that  is,  free  from  her  menses) 
dnd  if  the  husband  has  not  had  sexual  intercourse  with  her  in  this  period 
of  purity,  she  shall  become  divorced  (because  Soonnee  talak  possesses 
such  qualities), 

'  2724*  (1824.)  A  woman  releases  her  husband  of  whatever  rigbt 
she  has  against  him,  on  condition  of  his  divorcing  her;  the  has- 
band  then  divorces  her:  the  release  given  by  her  shall  be  valid;  but' 
if  ther  husband  does  not  divorce  her,  then  tbe  release  shall  not  be  valid. 
Aud  if  the  woman  releases  him  of  whatever  right  she  may  have  against 
fadm,  on  condition  that  he  shall  not  marry  any  other  woman  upon  her, 
Idien  the  release  shall  be  valid,  but  the  condition  shall  be  void. 

Hakim  Abool  Fuzul,  on  whom  be  peace,  says,  that  where  a  thing  is 
such  that  consideration  is  allowed  in  reference  to  it,  there  release  regard- 
ing it  is  permissible  when  the  release  is  made  to  depend  on  that  thing 
which  is  expressed  in  the  form  pf  a  condition,  provided  the  condition  is 
fulfilled:  and  where  a  thing  is  such  that  consideration  is  not  allowed 
in  reference  to  it,  there  release  regarding  it  is  permissible  and  the  con- 
ditio^  is  void.     (See  Eud-ool-Moohtar,  Volume  11,  page  982).; 

'  2726.  (1825.)  A  man  says  to  his  wife  (in  Persian),  *^  I  have  given 
divjorce  to  thee;  hast  thou  purchased  thy  person ?''  the  woman  says, 
<f  I.  have  purchased  my  person  three  times,  I  have  become  released  from 
being  thy  wife ; "  the  husband  says,  "Thou  hast  been  released:"  if 
the  husband  means  by  his  expression,  <*  Thou  hast  been  released,"  per- 
mission of  what  the  woman  has  said,  then  three  divorces  shall  be  caosed ; 
but.if  hedoes  not  intend  by  this  permission,  then  only  one  reversible 
divorce  shall  be  caused. 
God  knows  best* 


2IHAB.  825 

CHAPTEE  IV. 
Ok  Zihab. 
[Notb:— ^Aar  is  derived  from  ZnhiMTf  which  in  Arabic  means  bad. 
Zihar  means  to  oppose  back  to  back :  when  there  is  discord  between  husband 
and  wife,  they,  instead  of  remaining  face  to  face  towards  each  other,  torn 
their  backs  one  against  the  other.  See  Cholnpy  on  Shareh  Vikaya, 
VoL  n,  page  83]. 

2726.  (1826.)  ZiKar  is  to  assimilate  (or  compare)  one's  wife  to  a 
woman,  who  is  permanently  nnlawfal  to  him,  such  unlawfulness  arising 
from  J/tww6  (i.e.,  consanguinity)  or  Eeza  (i.e.,  fosterage)  or  8uhreetil  (i.e., 
af&nity  or  carnal  connection  whether  legal  or  not). 

2727.  (1827.)  And  the  consequence  (or  effect)  of  Zihar  is  the 
unlawfulness  (or  prohibition)  of  sexual  intercourse  and  of  those  thingd 
which  are  preliminaries  to  such  intercourse,  and  which  raise  desire  for  it 
{Duwai),  such  unlawfulness  lasting  up  to  the  termination  of  the  period  of 
expiation  (or  Kuffara), 

8728.  (1828.)  A  man  says  to  his  wife,  '^  Thou  art  to  me  like  th^' 
back  of  my  mother,'^  and  does  not  intend  anything,  or  intends  thereby 
divorce,  or  the  rendering  of  the  wife  unlawful  to  him,  or  intends  to 
make  Zihar  i  this  expression  shall  amount  to  Zihar. 

And  Aboo  Yusoof  and  Mahomed,  on  whom  be  peace,  say,  that  if  the* 
husband  thereby  intends  to  render  the  wife  unlawful  to  him  us  upon  a 
(6ain)  divorce,  then  the  expression  shall  amount  to  (bain)  divorce.  If 
the  husband  says,  '^I  intend  thereby  a  falsehood,'^  then,  so  far  as  the  Kazee 
is  concerned,  the  woman  shall  not  be  competent  to  confirm  him,  and  shall 
not  give  him  an  opportunity  to  have  sexual  intercourse  .with  her,  but  she 
is  competent  morally  as  between  her  and  her  God,  to  confirm  him  and* 
give  him  such  opportunity. 

And  there  are  rules  which  relate  to  Ziha/r,  one  of  which  is  what  is  just 
stated. 

2729.  (1829.)  Secondly. ^When  the  husband  says  to  his  wife, 
"Thou  art  like  my  mother,'*  without  saying,  "to  me,"  and  in- 
tends nothing  (in  particular) :  then  according  to  them  (i.e.,  Aboo  Haneefa, 
and  Aboo  Yusoof  and  Mahomed)  nothing  is  obligatory  on  the  husband 
(that  is,  the  effect  of  this  is  nil,  and  the  consequences  of  Divorce,  or  Zihar 
or  Eela  do  not  accrue). 

2780«  (1830.)  And  if  the  husband  says,  '<  Thou  art  to  me,  like  my 
mother/'  or^  */  aimilar  to  my  mother^"'  and  intendB  thereby  excellence 


THB  TAOOBS  LAW  UlCRrUSBS^  1891-92. 

Q>irr)  and  dignity  (KuratmUj.  iliot  is^  tbe  likeness  to  the  mother  is  in 
these  respects)^  nothing  shall .  be  obligatory  on  the  husband ;  but  if  he 
intends  Zihar  thereby,  then  the  expression  shall  amount  to  Zihar  -,  I^ut  if 
he  does  not  intend  anything,  then  nothing  is  obligatory  on  bimi  aceord- 
ing  to  Aboo  Haneefa,  on  whom  be  peace ;  but  Mahomed,  on  whom  be 
peace,  says,  that  the  same  shall  amount  to  Eihar  (because  the  formula  is 
that  of  ZihoTy  except  that  the  likeness  is  not  confined  to  a  member  o( 
the  body);  and  according  to  one  tradition  from  Aboo  Yusoof,  vn  whom 
be  peace,  nothing  shall  be  obligatory  on  tbe  husband,  just  as  Aboo 
Baneefay  on  whom  be  peace  says,  but  according  to  another  tradition 
(from  Aboo  Yusoof)  the  expression  shall  amount  to  an  oath  (that  is,  it 
shall  amount  to  Eela),  so  that  if  the  husband  abstains  from  her  fov  four 
months  and  does  not  approach  her,  she  shall  become  completely  separate 
(botn)  with  one  divorce.  But  if  the  husband  intends  a  diyorce  or  a 
^ihar,  then  the  expression  used  by  him  shall  have  effect  according  to  his 
intention,  ^but  if  he  does  not  intend  anything,  then  nothing  is  obligatofj 
on  him  according  to  the  view  of  Aboo  Haneefa,  on  whom  be  peace ;  but 
Mahomed,  on  whom  be  peace,  says,  and  that  is  a  tradition  from  Aboo 
Yusoof,  on  whom  be  peace,  that  this  shall  amount  to  a  Zihar ;  and 
according  to  another  tradition  from  Aboo  Yusocrf,  on  whom  be  peace,  the 
same  shall  amount  to  Eela.^ 

And  if  the  husband  intends  thereby  to  make  the  wife  unlawful  to 
him,  the  traditions  (from  Aboo  Haneefa)  in  this  matter  have  differed ; 
but  the  correct  view  is  that,  according  to  all  (that  is  according^  to  Aboo 
Haneefa,  Aboo  Yusoof  and  Maliomed)  the  same  shall  amount  to  Zihar. 

S7S1.  (1881.)  And  the  third  case  is  when  the  husband  says, ''  Thou 
art  unlawful  like  my  mother,'^  intending  thereby  divorce,  or  Zthar^  or 
Eela :  the  effect  shall  be  according  to  the  man'a  intention ;  bat  if  he  does 
i^ot  intend  anything,  then  the  same  shall  amount  to  Zihar,  according  to 
the  view  of  Mahomed,  on  whom  be  peace,  and  this  view  is  contained  in 
one  of  the  traditions  from  Aboo  Haneefa,  on  whom  be  peace,  (because  the 
word  fimlauifui  is  to  be  found  here  which  was  wanting  in  the  prerioos 
case) ;  and  as  held  by  Aboo  Yusoof,  on  whom  be  peace,  according  to 
Idie  tradition  of  Aboo  Haneefa,  on  whom  be  peace,  the  same  shall 
Wiount  to  EeU  ;  but  Ehussaf,  on  whom  bepeaee,  says,  that  the  correct 
view  taken  by  Aboo  Haneefa,  on  whom  be  peace,  in  this  matter  ib  that 
which  Mahomed,  on  whom  be  peace,  says* 

*  The  pofliMigss  between  ihs  sstflgiskfrseeia'to  fto  a'lepetftim. 


ZIHAR.  827 

2732.  (1832.)  The  fourth  case  is  whea  the  husband  says  to  his  wife, 
"Thou  art  to  me  unhiwful  like  the  back  of  mj  mother:"  this  amounts 
to  Zihar  (whatever  might  be  the  intention.  In  paragraph  1828,  the 
word  ^'  unlawful "  is  to  be  read  by  implication,  and,  therefore,  the  effect 
ia  the  present  case  and  in  that  to  be  found  in  paragraph  1828  is  the 
same.  See  Chulupy  on  Shareh  Yikaya,  Vol.  II,  page  83).  And  Aboo 
Yusoof  and  Mahomed,  on  whom  be  peace,  say,  that  if  the  husband 
intends  divorce  or  Eela,  then  the  effect  of  the  expression  shall  be  according 
to  the  intention,  except  that,  according  to  Mahomed,  on  whom  be  peace, 
if  the  husband  intends  divorce,  then  the  expression  shall  amount  to 
divorce  and  nothing  else,  but  according  to  Aboo  Yusoof,  it  shall 
amount  to  divorce  and  Zihar  (because  the  form  of  expression  is  that  of 
Zihar  and  the  divorce  is  caused  by  the  intention)  ;  just  as  if  the  husband 
divorces  his  wife  and  then  makes  Zihar ^  or  makes  ZtAarand  then  divorces, 
in  which  case  the  act  shall  amount  to  both  divorce  and  Zihar. 

2733.  (1833.)  And  if  a  man  says  to  his  wife,  ^'  Thou  art  to  me, 
like  a  corpse,  or  blood,  or  the  flesh  of  a  hog,"  the  traditions  have 
differed  in  regard  to  this  matter ;  but  the  correct  view  is  that  when  the 
husband  does  not  intend  anything,  the  expression  shall  amount  to  Eela^  and 
if  he  intends  divorce,  it  shall  amount  to  divorce;  but  if  he  intends 
Zihar^  it  shall  not  amount  to  Ziliar  (because  the  expression  is  neither  a  for- 
mula of  Zihar  nor  an  indirect  expression  of  Zihar^  because  the  comparison 
is  not  with  a  Maharim  or  prohibited  woman.     See  paragraph  1059). 

2734.  (1834,)  And  if  the  husband  says  to  his  wife,  <<Thou  art  to 
me  like  the  thigh  of  my  mother,  or  her  belly  or  *  *  *,"  this 
shall  amount  to  Zihar. 

2736.  (1835.)  And  the  principle  in  the  matter  of  Ziliar  is,  that  when 
the  husband  compares  his  wife  to  such  of  the  member  (or  limb)  of  his 
mother's  (or  any  other  Maharim^s)  body  as  it  is  unlawful  for  him  to  look 
at,  then  the  expression  shall  amount  to  Zihar;  but  if  he  compares  her 
with  such  a  member  (of  the  body  of  his  mother  or  of  any  other  pro- 
hibited woman)  as  it  is  lawful  for  him  to  look  at,  as  her  hair,  face,  her 
head,  her  hand  and  foot,  then  the  same  shall  not  amount  to  Ziliar. 

2736.  (1836.)  And  if  the  husband  says  to  his  wife,  ''Thou  art  to 
me  like  the  knee  of  my  mother,  then  according  to  analogy  [Kyas],  the 
husband  shall  be 'held  to  have  made  Zihar. 

And  if  he  says  to  her,  <'  Thy  thigh  to  me  is  like  the  thigh  of  my 


328  THE  TAOOBB  LAW  LECTUBES,  1891-92. 

mother,"  or  "  Thy  head  to  me  is  like  the  head  of  mjr  mother,"  this  shall 
not  amount  to  Zihar. 

2737.  (1837.)  And  if  the  husband  says  to  his  wife,  "Thou,  to  me, 
art  like  the  back  of  thy  mother,"  this  amounts  to  Zihar. 

2738.  (1838.)  And  if  the  husbandi  says  to  his  wife,  "Thou  art  to 
me  like  the  back  of  thy  daughter  (that  is,  by  a  different  husband),"  then 
if  the  husband  has  had  intercourse  with  his  wife,  this  expression  sliall 
amount  to  Zihar  (because  it  is  only  by  sexual  intercourse  with  a  woman, 
that  her  daughter  becomes  unlawful) ;  not  otherwise. 

2739.  (1839.)  And  if  the  husband  has  compared  his  wife  with  bis 
father's  wife  or  that  of  his  son,  this  shall  amount  to  Zihar,  just  as  if  he 
compares  her  with  his  mother.    (See  paragraph  1830.) 

2740.  (1840.)  And  if  the  husband  compares  his  wife  with  a  woman 
with  whom  his  father  has  committed  {Zina  or)  adultery,  or  with  whom  his 
son  hss  committed  adultery,  then  Mahomed,  on  whom  be  peace,  says,  that 
this  shall  not  amount  to  Zihar ;  but  Aboo  Yusoof,  on  whom  be  peace,  says, 
that  this  shall  amount  to  Zihar ;  and  this  view  is  correct  (because  the 
woman,  with  whom  comparison  is  made,  is  permanently  unlawful  and  Zina 
can  be  a  cause  of  Hoormuir-i'Moosahrui) . 

And  if  he  compares  her  with  the  mother  of  a  woman  or  with  the 
daughter  of  a  woman,  with  which  woman  the  man  has  committed  adultery, 
this  shall  amount  to  Zihar  (according  to  Aboo  Yusoof  and  Aboo  Haneefa). 

2741*  (1841.)  At}d  if  a  man  kisses  a  strange  (or  unknown)  woman 
with  desire,  or  *  *  *  ^  *  *  and  he  then  com- 
pares his  wife  with  the  mother  of  that  woman  or  with  her  (that  is,  that 
woman's)  daughter,  this  shall  not  amount  to  Zihar,  according  to  Aboo 
Haneefa,  on  whom  be  peace,  who  says  that  this  act  (that  is,  the  kiss  and 
look)  does  not  amount  to  sexual  intercourse.  (See  paragraphs  28S  and 
288.) 

[Note  to  paragraphs  1840  and  184U  On  reading  Fath-ool  Eadeer, 
Vol.  II,  pages  22  and  295  ;  Tafseer-Ahmedy,  page  196 ;  Budd-ool  Moohtar, 
Vol.  II,  page  946 ;  Buhr-ool  Raik,  Vol.  IV,  page  103  j  and  Tawzeeh  page 
271  and  page  272;  the  following  considerations  bear  on  the  question  : — I, 
Hoormut-i'Moosahrut  is  unlawfulness,  arising  from  carnal  intercourse 
whether  that  intercourse  is  lawful,  that  is,  Hulal  or  not;  see  Vol.  II,  of 
these  Lectures,  page  100,  paragraph  1177,  and  277  within  brackets,  and 


ZIHAB.  329 

paragraph  1180,  and  280  within  brackets.  IE  there  is  a  legal  mar« 
riage,  then  the  marriage  itself  is  constructive  intercourse :  if  there 
is  no  legal  marriage,  then  there  must  be  actual  sexual  intercourse  for  such 
unlawfulness  and  prohibition  to  arise.  Bj  Moosahrut,  the  man  becomes 
unlawful  to  the  woman's  branches,  i.e.,  daughters  how  low  so  ever,  and 
to  the  w6man^i  roots  or  mothers  how  high  so  ever :  so  also  the  man's 
branches  or  sons  how  low  so  ever,  and  his  roots  or  fathers  how  high 
80  ever,  become  unlawful  to  the  woman.  Moosahrut  signifies  Hoormut  of 
these  four  classes,  and  does  not  extend  further^  This  is  generally  the  rule, 
although  there  are  other  rules  in  the  matter,  Buch  for  instance,  as  that  by 
mere  marriage  with  a  woman  without  actual  intercourse,  her  mother  becomes 
unlawful,  but  marriage  followed  by  actual  intercourse  is  necessary  to 
render  her  daughter  unlawful.  U.^^Hoarmut-i'Moosahrut  is  also  established 
by  what  are  preliminaries  to  carnal  intercourse  or  Duwai-i-Wuty ;  as  to 
this — see  Volume  II.  of  these  Lectures,  page  105,  paragraph  1186  and  286 
within  brackets.  III. — That  Hoormut-i-Mooaahnd  should  be  established 
as  the  result  of  Zina  or  unlawful  intercourse  is  a  proposition  in  regard 
to  which  there  is  a  difference  of  opinion  amongst  the  Hanifitea  and  8ha^ 
feiites,  the  latter  maintaining  that  Zina,  which  is  sinful,  cannot  lead  to  a 
proposition,  which  is  to  have  a  legal  existence,  such  as  a  rule  regarding 
prohibition  or  unlawfulness  of  marriage.  The  Hanifitesj  on  the  other 
hand,  maintain  that  Zina  does  lead  to  a  legal  rule,  and  tbey  base  them- 
selves on  a  text  of  the  Koran — see  Volume  I.  of  these  Lectures,  page  18, 
Text  No.  118  and  114  within  brackets,— which  text  has  not  been  very  pro- 
perly rendered  by  Rev.  Wherry,  and  which  will  be  explained  in  a  future 
Volume — which  forbids  intercoui'se  with  a  woman  with  whom  the  man's 
father  has  had  intercourse,  in  other  words,  it  lays  down  the  rule  of  prohi- 
bition with  the  Mootooa-i-Abby  or  the  woman  with  whom  the  father  has  had 
sexual  intercourse  :  the  reason  for  the  unlawfulness  is  sexual  intercourse, 
because  the  word  N^ah  used  in  that  text  of  the  Koran  must  not  lose  its 
primary  meaning,  such  primary  meaning  being  sexual  intercourse.  IV.— 
The  lUut  or  reason  of  a  Text  may  be  used  for  the  purpose  of  laying 
down  rales  in  other  analogous  cases  ;  as  for  instance,  •><•*** 
is  not  dealt  with  in  the  Koran,  but  the  Koran  contains  a  Text — see 
Volume  I.  of  these  Lectures,  page  8,  Text  No.  50  and  46  within  brackets 
— which  lays  down  that  the  lUut  or  reason  for  enjoining  abstinence  with 
women  in  their  courses  is  pollution,  and  this  reason  or  J2Zu^  can  be  used  by 
Kya8  or  analogy  to  lay  down  a  rule  against  *  *  *  *  iu  which 
42 


830  THB  TAGOBB  LAW  LECTURES,  1891-92. 

the  same  reason  exists.  Y. — ^To  reason  bj  analogy  with  reference  to  an 
lllut  or  cause  established  for  some  other  rule  is  called  Kyas  or  analogy, 
and  the  case  in  which  the  rule  is  laid  down  by  Kyas  is  called  a  Mttsula-ir 
Kyasee.  The  person  who  should  make  the  Kyas  is  the  Moojtahid,  and  whea 
the  Moojtahids  or  learned  Doctors  and  Divines  who  make  the  Ijtihad  and 
lay  down  the  rule  from  Kyas,  differ  from  each  other,  then  the  case  is 
called  a  Musulari'Moojtuhid-fee.  VI. — The  case  of  Hoormut'i-Moosahrut 
arising  from  carnal  intercourse  without  marriage  is  therefore  one  of 
Moqjtuhid'fee  class,  on  account  of  the  difference  betcveen  the  Hanijites  and 
Shafeiites  mentioned  above :  and  the  case  of  Hoormut-i-Moosahrut  aris- 
ing not  from  carnal  intercourse,  but  from  preliminaries  is  also  Moojtuhid' 
/<36 ;  there  is  this  difference  between  the  two,  that  whereas  in  the  former 
the  rule  is  deduced  with  reference  to  reason  or  lllut  to  be  found  in  a  Nuss  or 
Text  of  the  Koran,  in  the  latter  the  rule  is  not  based  upon  such  a  compara- 
tively sure  basis ;  but  is  based  upon  a  reason  borrowed  from  the  former 
case  by  analogy  :  if  intercourse  should  lead  to  Hoormut-i-Moosahrut,  then 
the  preliminaries  which  lead  to  intercourse  and  are  the  cause  of  intercourse 
must  also  lead  to  Hoormut-i-MoosahruL  The  Towzeeh  lays  down  that  a  per- 
son cannot  use  the  essence  of  his  own  limb  for  his  own  Istimta  or  benefit; 
therefore  the  child  who  has  portions  of  the  parents  in  him  is  unlawful : 
intercourse  is  the  cause  of  the  child;  and  when  it  is  stated  that  intercourse 
establishes  unlawfulness,  the  meaning  is,  that  it  establishes  unlawfulness 
because  it  is  the  cause  of  the  child  :  that  intercourse  is  the  cause  of  Hoormut' 
i'Moosahrut  is  laid  down  in  the  Nvss-i-Koran  :  but  that  the  preliminaries 
are  also  the  cause  is  not  so  laid  down,  but  is  inferred  by  Kyas  drawn  from 
intercourse,  VII.— In  a  Moojtuhid-fee  case  the  rule  which  is  binding 
on  the  conscience  of  the  Kazee  is  the  rule  which  will  govern  the 
parties,  although  they  might  be  the  followers  of  a  different  sect.  As 
to  this — see  Volume  II.  of  these  Lectures,  page  295,  paragraph  1642  and 
742  within  brackets,  and  Volume  III.,  paragraphs  1614,  1769, 1773  within 
brackets ;  see  also  Arabic  Hedaya,  Volume  III.,  page  322.  But  there  is 
this  difference  that  if  the  Kazee  is  of  the  Shafei  sect,  his  decree  shall  not 
be  binding  on  the  Hanifite  parties  in  the  case  of  Hoormut-i-Moosahrul 
arising  from  Zina,  in  which  the  rule  of  the  Hanijites  is  based  on  an  lllut 
to  be  found  in  a  text  of  the  Koran,  although  it  shall  be  binding  on  them 
in  the  case  of  Hoarmut-i'Moosahrut  arising  from  preliminaries  in  which 
the  rule  of  the  Hanijites  is  not  based  on  an  lUut  to  be  found  in  a  text 
of  the  Koran.    VIII. — In  the  case  in  paragraph  1840,  Mahomed  says. 


ZIHAB.  331 

that  tfae  same  does  not  amount  to  ^lAar^  because  it  is  a  rule  for  the 
validity  of  Zihar  that  the  comparison  should  be  made  with  the  limb  of 
a  woman  who  is  perpetue^rUy  unlawful,  but  that  in  the  case  in  1840,  the 
Shafei  Kiazee  might  declare  absence  of  Saormut^Uoosahrut  and  declare.in 
favor  of  the  lawfulness  of  the  woman  with  whose  limb  the  comparison  has 
been  made ;  and  iheA,  theref  ore,  on  the  supposition  of  such  a  declaration 
by  the  Shafei  Eazee  here  the  comparison  would  not  be  found  with  the  limb 
of  awoman  who  is  perpetually  unlawful,  and,  therefore,  that  there  is  no 
Zihar.  But  at  the  same  time  Mahomed  does  hold  that,  according  to  Aboo 
Haneefa,  with  whose  views  he  concurs,  there  is  perpetual  prohibition 
with  the  woman  with  whose  limb  the  husband  has  compared  his  wife* 
But  Aboo  Yusoof  says  that  there  shall  be  Zihar,  because  this  is  not 
a  case  in  which  the  effect  of  a  decree  of  the  Eazee  of  the  Shafei 
sect  is  to  render  the  decree  binding :  because  the  Illut  or  reason  is  to  be 
tound  ia  the  NiLS€*i-Koran»  IX. — In  the  case  in  paragraph  1841,  there 
is  no  Zihaty  because  the  case  is  that  of  SoormuUi-Moosahrut  arising 
from  preliminaries  and  not  from  ISina,  and  this  is  a  case  in  which  the 
decree  of  a  Eazee  of  the  Shafei  sect  is  capable  of  being  given  effect  to, 
the  reason  or  IWui  not  being  stated  in  the  Nuss-i^Koran ;  so  that  the 
perpetual  unlawfulness  of  the  woman  With  whom  the  comparison  has  been 
made  can  be  done  away  with :  and  Zihar  requires  such  a  perpetual 
prohibition  in  the  woman  with  whom  the  wife  has  beencompp^red  that  the 
oalawfulheBs  cannot  be  done  away  with]. 

8745.  (1842.)  And  if  the  husband  compares  his  wife  with  the  back 
of  a  woman  who  is,  to  a  certain  extent,  not  lawful  to  him,  as  for  instance  ^ 
a  woman  who  is  a  {Mujame  or)  fire- worshipper,  and  a  woman  who  has  be- 
come an  apostate  from  Islam  (or  MoartiAdda)B,Tid  the  wife  of  another  man, 
this  dball  not  amount  to  Z%har,  (because  these  women  are  not  perpetually 
pr^iiUted). 

274S.  (1843.)  So  also  comparison  by  the  husband  of  his  wife 
with  a  man,  whoever  he  might  be  (does  not  amount  to  Zihar). 

2741  (1844.)  And  if  the  husband  says  to  his  wife,  *'  Thou,  art,  to  me, 
like  the  back  of  my  mother,  if  it  pleaseth  God/'  this  shall  not  amount  to 
ZHb^tf  just  as  divorce  is  not  effective  owing  to  the  addition  of  such  words. 

8746.  (1845.)  And  if  he  says  to  his  wife,  '^  Thou  art  to  niie  like  the 
book  of  my  mother,  if  so  and  so  wishes ; "  or  says,  '^  thou  art  to  me  lil^e 
tlie  iMMdc  of  my  mother,  if  it  pleaseth  thee/'  these  shall, be  referable 


332  THE   TAQOEB   LAW   LKCTUEBS,   1891-92. 

to  the  desire  at  the  same  meeting  (that  is,  for  the  Zihar  to  be  effeotire, 
the  desire  must  be  expressed  at  the  same  meeting). 

2746«  (1846.)  And  if  a  man  makes  Zihar  with  his  female  slave,  or 
with  his  Oommri'toulud,  then  this  Zihar  is  void,  and  it  shall  not  be  nnlaw- 
f al  for  him  to  hare  sexual  intercourse  with  her  (because  Zihar  is  confined 
to  wife  according  to  the  Eoran.  See  pages  60  and  61,  Volume  I.  of  these 
Tagore  Lectures,  Texts  436-89). 

2747.  (1847.)  And  if  a  woman  makes  Zihar  with  her  husband,  this 
shall  be  Toid,  and  she  shall  not  be  obliged  to  expiate  for  it^  just  as  if  the 
wife  should  refer  the  divorce  to  her  husband  (saying,  ''Thou  art 
divorced  **).  But  Aboo  Yusoof,  on  whom  be  peace,  says,  that  the  woman 
shall  have  to  expiate  (in  the  case  of  her  making  the  Zihar). 

2748.  (1848.)  If  a  man  repeats  Zihar  with  a  woman,  then  each  Zihar 
shall  involve  the  obligation  to  expiation  (that  is  to  say,  if  the  man  repents 
of  his  rashness  and  wants  to  take  back  his  wife^  he  must  make  Kuffara  for 
his  rashness  for  each  act  of  Zihar ;  see  Volume  I.,  Futawai  Alumgeeri, 
page  692  ;  except  when  the  intention  by  the  repetition  is  to  re-affirm  and 
repeat  the  first  and  then  only  one  Kuffara  is  obligatory). 

2749.  (1849.)  So  also  if  a  man  makes  Zihar  with  four  wives, 
it  is  obligatory  on  him,  in  respect  of  each  wife,  to  observe  expiation 
(or  make  Kuffara). 

2760.  (1850.)  And  the  Zihar  made  by  one  who  is  dumb,  in  vmtiog 
and  by  known  signs,  is  binding  (or  lazim). 

2751.  (1851.)  And  if  the  husband  makes  Zihar  for  a  time  fixed, 
saying,  **  Thou  art  to  me,  like  the  back  of  my  mother,  this  day,  or  this 
month,  or  this  year,^^  then  the  husband  shall  be  considered  to  have  made 
Zihar  at  that  very  instant  and  when  that  period  (that  is,  the  day,  or  the 
month,  or  the  year)  expires,  the  Zihar  shall  become  void.  (See  Futawai 
Alumgeeri,  Volume  I.,  page  691,  for  further  details  in  this  matter). 

2752.  (1852.)  And  if  a  man  says  to  a  strange  woman, ''  When  I  shall 
marry  thee,  then  thou  art  to  me  like  the  back  of  my  mother,''  and  he 
then  marries  her,  he  shall  be  considered  to  make  Zihar  (at  the  time  of  the 
marriage). 

2763.  (1853.)  And  if  a  man  says  to  a  strange  woman,  **  When 
I  shall  marry  thee,  then  thou  art  divorced"  and  then  says,  "When  I  shall 
marry  thee,  then  thou  art  to  me  like  the  back  of  my  mother,''  and  he  then 
marries  her,  both  divorce  and  Zihar  shall  be  binding  on  the  husbaad^ 


ZIHAB.  338 

because  both  of  them  conld  take  place  (or  be  caused)  at  one  and  the  same 
time  (and  therefore  both  could  be  made  dependent  on  the  same  condition). 

So  also  if  he  says,  "  When  I  shall  marry  thee,  then  thou  art  to 
me  like  the  back  of  my  mother,  and  thou  art  divorced^'  (where  two  events 
are  made  dependent  on  one  condition  and  Zihar  is  mentioned  first)  and 
then  marries  her,  both  of  them  shall  be  binding  on  the  man. 

And  if  he  says,  ^*  When  I  shall  marry  thee,  then  thou  art  divorced, 
and  thou  art  to  me,  like  the  back  of  my  mother,  ^'  and  then  marries  her, 
the  divorce  shall  be  caused,  but  the  Zihar  shall  not  be  binding  on  him, 
according  to  Aboo  Haneefa,  on  whom  be  peace  (because  when  the  condition 
takes  precedence,  and  there  are  two  effects  which  are  coupled  by 
"  and,''  then  in  the  event  of  the  condition  being  realised,  the  effects  shall 
spring  up  in  their  order)  but  his  two  disciples  have  said,  both  the 
divorce  and  the  Zihar  shall  be  binding  on  the  man  (because  both  the 
effects  spring  up  at  once,  on  the  condition  being  realised). 

And  this  is  based  on  the  principle  that  the  order  in  the  expression  of 
dependent  sequences  necessitates  the  occurrence  of  those  dependent 
sequences  in  the  same  order  in  which  they  are  expressed,  according  to  Aboo 
Haneefa,  on  whom  be  peace ;  but  his  two  disciples  have  said  that  such 
order  does  not  necessitate  order  in  the  occurrence  of  the  sequences :  there- 
fore when,  according  to  Aboo  Haneefa,  on  whom  be  peace,  the  divorce 
occurred  first  (by  which  the  woman  became  completely  separated)  and 
when  a  woman  who  has  become  completely  separated  is  not  a  fit  subject 
of  Zihar,  then  the  Zihar  shall  not  be  binding  on  the  man ;  but  when 
.  the  Zihar  occurs  first,  then  the  fact  of  a  Zihar  having  taken  place  first  not 
having  the  effect  of  disabling  the  woman  from  becoming  a  subject  on 
whom  divorce  could  be  pronounced,  a  divorce  could  also  occur. 

2764.  (1854.)  When  a  man  makes  Zihar  with  his  wife  and  then 
divorces  her  thrice,  and  then  marries  her,  after  the  woman  has  married 
another  husband,  then  the  Zihar  shall  continue  to  subsist  (in  spite  of  the 
three  divorces  ajid  the  fresh  marriage ;  because  Zihar  does  not  put  an  end 
to  the  relationsh1j|>  of  husband  and  wife,  and  is  not  a  divorce,  and  is  not 
removable  except  by  iTu^cpra)  and  it  shall  not  be  lawful  in  him  to  have 
sexnal  intercourse  with  her  before  observing  expiation  ;  because  the  fact 
of  A  separation  having  taken  place  (as  was  done  here  on  account  of  the 
three  divorces)  does  not  render  the  Zihar  void. 

2765.  (1865.)  So  also  (the  Zihar  shall  not  become  void)  if  the 
womaxi  becomes  an  apo8tate-*may  God  save  us  from  such  a  calamitj— (and 


884  THE   TAGORE   L4W  Ii&CTUBES,   1891-92. 

apoBtaoy  makes  the  Nikah  Fu$kh)  and  then  the  woman  becomes  a  moslem 
.^d  the  husband  marries  her. 

And  if  both  o£  them  become  apostate  at  once «- may  God  saTO  us 
from  such  a  calamity— (and  the  Nikah  in  this  case  continaes  to  eabsist) 
and  then  both  of  them  become  moslem^  then  both  are  in  statu  quo  as 
regards  the  Zihwr  according  to  Aboo  Haneefa>  on  whom  be  peaee  {that  is, 
if  the  husband  makes  Zihar  with  his  wife  whilst  both  are  Moslem,  then  the 
&ct  tlmt  they  subsequently  become  apostate,  does  not  render  the  Zihwr 
.nugatory). 

9766.  (1856.)  So  also  if  a  man  makes  Zihar  with  his  wife,  she 
being  the  female  slave  (of  somebody  else)  and  the  husband  subsequently 
purchases  her  (by  which  the  marriage  becomes  void),  it  is  not  lawful  in 
the  husband  to  have  sexual  intercourse  with  her,  before  the  expiation  of 
the  Zihar. 

So  also  if  the  husband  emancipates  his  wife  (he  having  married  the 
slave  of  another  and  then  purchases  her,  and  then  gives  her  her  free- 
dom) and  then  marries  her  (then  the  Zihar  previously  made  is  not  ren- 
dered nugatory). 

2767.  (1857.)  And  if  the  husband  says  to  his  wife,  '<  If  thou  shalt 
enter  the  house,  then  thou  art  to  me  like  the  back  of  my  mother,"  and 
then  he  divorces  her  so  that  she  becomes  completely  separated  from  him 
(th^t  is  to  say,  the  husband  gives  her  an  irreversible  divorce)  and  then  the 
woman  (^ven)  during  her  Iddui,  enters  the  house,  the  Zthar  shall  not  be 
binding  on  him,  because  if  the  husband  were  to  give  2{^r  for  the  first 
time  (in  the  form  of  a  Tanjeez  or  directly  letting  fall  or  giving  the  Zthar 
instead  of  Talik  or  making  the  Zihar  conditional)  in  such  a  state  (i.e.,  after 
an  irreversible  or  bain  divorce),  the  Zihar  would  not  be  valid,  so  also  (the 
^tiar  shall  not  be  valid)  if,  having  been  made  dependent  on  a  nondition, 
it  is  made  operative  on  account  of  the  realisation  of  the  condition. 

2768.  (1858.)  And  the  expiation  or  Kafara  of  Zihar  is  mentioned 
in  the  Book  of  God  (that  is,  the  Koran,  see  text  of  the  Koran,  Nos.  4S6, 
437,  438  and  489,  pages  60  and  61  of  Volume  I.  Tagore  Lectures  «nd 
page  292,  Volume  II.  of  the  Fath*ool  Eadeer). 

.2769.  (1859.)  And  if  the  man  who  makes  Zihar^  does  not  observe 
expiation,  and  the  matter  is  submitted  to  the  Eazee,  the  latter  shall  im- 
prison the  man  until  the  man  expiates  (and  makes  the  Kaffixra)  or  dirorcea 
his  wife. 

God  knows  best. 


wOsA^  985 

OHAPTBBV. 
Sbction  I. 

ON  ESLA. 

2760.    (1860.)    Eela  (which  according  to  Dictionary  means  a  vow  or 
Tumeeu-^  see  Inaja,  Volame  II.,  page  211),  is  to  abstain  from  having  sex- 
ual intercourse  with  one's  wife,  such  abstinence  having  been  strengthened 
by  a  vow  (or  oath)  on  God,  or  by  a  vow  in  reference  to  something  else,  such 
as  divorce,  emancipation,  fast  or  pilgrimage,  and  such  like  things ;  such 
abstinence  being  self-imposed  by  the  vow  in  an  absolute  way  {i.e:,  the  absti- 
nence being  without  reference  to  time)  or  confined  to  four  months  in  the 
case  of  free  women  and  two  months  in  the  cade  of  female  slaves,  such 
abstinence  being  of  a  nature  so  that  there  is  no  interruption  of  (the  con- 
tinoity  of)  time  (of  abstinence),  and  it  is  not  possible  (to  imagine  a  point 
of  time  in  which)  there  could  be  sexual  intercourse  with  her  without  the 
hxisband  being  guilty  of  a  breach  of  the  oath  (or,  in  other  words,  the  formula 
must  not  contain  an  interruption  of  time  as  in  the  instance  given  below) ; 
and  when  such  time  intervenes,  then  the  man  cannot  be  held  to  have  made 
Eela;  and  the  way  in  which  such  intervention  could  be  oaoBed  (and  in 
which  there  is  no  valid  Eela)  is  when  the  husband  says  to  his  wife^  who  is 
a  free  woman,  ^^  By  God^  I  will  not  have  sexual  intercourse  with  thee  for 
four  months,  but  one  day,'^  or  says,  ^'for  one  year,  but  one  day;"  in  these 
cases,  the  man  shall  not  be  considered  to  have  made  the  Eela  until  the 
excepted  day  is  found  (that  is  to  say,  if  the  man  has  made  the  Eela  with 
reference  to  the  period  of  four  months,  then  this  form  of  asseveration, 
shall  not  amount  to  Eela,  because,  taking  out  the  excepted  day,  there 
remains  leas  than  four  months ;  and  there  shall  be  no  Eela^  for  which 
a  period  of  four  months  is  necessary ;  but  if  the  Eela  is  made  with  reference 
to  one  year  excepting  one  day,  then  the  Eela  is  not  formed  and  will  not 
commence  until  the  man  has  had  intercourse,  because  it  is  possible  that  he 
might  have  intercourse  every  day,  and  if  after  the  oath,  the  man  has  con- 
nection with  his  wife  on  a  day  so  that  four  months  or  more  still  remain 
to  expire,  then  the  Eela  shall  commence;  and  if  four  months  are  allowed  to 
expire  without  intercourse,  then  the  Eela  shall  become  complete,  and  one 
divorce  shall  be  caused;  but  if  the  man  does  not  allow  the  four  months  to 
be  eompleted,  knd  has  sexual  intercourse  within  that  period,  then  he  com- 
mits a  breach  of  his  oath,  and  if  the  oath  relates  to  God,  he  shall  have  to 
make  Kafura^  and  if  the  oath  relates  to  some  other  condition  such  as  the 


3SG  THB  TAOOBI  LAW  LKCTUBKS^    1891 -92. 

emanoipation  of  a    slaFe^  then  the  slave  must  be  emanoipated^  and  the 
particular  effect  of  the  condition  shall  follow). 

So  also  if  the  husband  says,  ''By  God,  I  will  not  have  sexual 
intercourse  with  thee,  until  so  and  so  arrives  (from  the  journey)  '^  he  shall 
not  be  held  to  have  made  the  Uela  (in  the  same  way  as  there  is  no  Eela 
when  one  day  is  excepted),  because  it  is  possible  for  the  traveller  to 
return  within  the  period  (of  four  months,  which  is  the  period  during 
which  abstinence  must  be  secured  iot  certain ;  here  the  traveller  might 
come  the  next  day  or  might  not  come  for  a  year). 

2761.  (1861.)  So  also  if  the  husband  says  (to  his  wife),  ''By 
God,  I  will  not  have  sexual  intercourse  with  thee,  until  thou  or  so  and  so 
dies,^'  the  man  shall  not  be  held  to  have  made  Eela,  on  account  of  the 
possibility  of  so  and  so  dying  within  the  period  (of  four  months 
which  is  the  period  of  Eela :  be  it  noted  that  if  the  man  says,  "  until 
thou  die ''  this  is  good  Eela  because  here  the  meaning  of  Tabeed  or 
perpetuality  is  found,  although  she  might  die  the  next  day ;  the  expres 
sion  means,  "  I  will  never  have  intercourse  with  thee.'*) 

2762.  (1862.)  And  if  a  man  swears  that  he  will  not  have  sexual  inter- 
course with  her,  "  until  the  appearance  of  Dujjal  *'  or  "  until  the  rising  of 
the  sun  from  the  west,"  the  man  shall  be  held  to  have  made  the  Eela,  by 
IsJiUsan  (or  weak  analogy ;  Kyaa  or  analogy  requires  that  there  should 
be  no  Eelaj  because  it  is  possible  for  Dujjal  to  appear  and  for  the  sun  to 
rise  in  the  west  in  less  than  four  months ;  but  bearing  in  mind  that  these 
events,  it  is  believed,  will  happen  near  the  Doom's  day,  and  that  in 
consequence  of  such  belief  people  use  these  expressions  to  denote  a  long 
distance  of  time,  the  Eela  shall  according  to  Ishtisan  or  weak  analogy,  take 
place  on  account  of  the  expression  being  ordinarily  used  to  denote  a  long 
distance  of  time). 

2768.  (1863.)  And  if  a  man  says,  "  By  God,  I  will  not  have  sexual 
intercourse  with  thee,  until  I  emancipate  this  my  slave  **  or  "  until  I 
divorce  such  and  such  a  woman/'  the  man  shall  be  held  to  have  made  Eela, 
according  to  Aboo  Haneefa  and  Mahomed,  on  whom  be  peace  (because  the 
expression  means,  ^'  I  will  never  have  intercourse"  because  as  a  rule  the 
wife  is  not  divorced,  and  the  slave  not  emancipated). 

2764.  (1864.)  And  if  the  husband  says,  "By  God,  I  will  not  have 
sexual  intercourse  with  thee,  until  thou  die  or  untU  I  die  '^  or  "  ontil 
thou  art  killed''  or  "  until  I  am  killed"  the  man  shall  be  held  to  have  made 


ISELA.  337 

tlie  Eela  (because  the  oxprpssion  denotes  Tabeed  or  perpetuality,  and  the 
man  in  effect  says,  "I  will  never  have  intercourse)." 

2766.  (1865.)  And  tlie  husband  is  not  to  be  held  to  have  made  Eela 
except  when  he  takes  an  oath  against  having  sexual  intercourse        ^ 

*  *        *    :  and  if  his  oa.th  refers  to  something  besides         *        *^ 

*  *        *        *        then  he  shall  not  be  held  to  have  made  Eela, 

2766.  (1866.)  A  man  says  to  his  wife,  "By  God,  my  skin  shall 
not  touch  thy  skin,"  he  shall  not  be  held  to  have  made  Eela ;  because 
(the  result  of  the  oath  is  that)  the  man  shall  commit  a  breach  of  his  oath 
by  mere  touch,  without  intercourse  *****  ^t 
*******, 

2767.  (1867.)    And  if  the  man  says,  "*        *        *        *        *        * 

*  *        *        ,'Mie  shall  beheld  to  have  made  Eela'^   because  this 
expression  is  intended  to  mean  sexual  intercourse. 

2768.  (1868.)  And  if  the  man  says,  <<If  I  sleep  with  thee,  then 
thou  art  divorced"  and  does  not  intend  anything,  he  shall  be  held  to 
have  made  Eela ;  because  people  do  intend  to  mean  sexual  intercourse  by 
such  an  expression  ;  and  if  he  intends  (merely)  sleeping  together,  he  shall 
not  be  held  to  have  made  Eela ;  and  if  he  sleeps  with  her  and  does  not  have 
sexual  intercourse  with  her,  he  shall  commit  a  breach  of  his  oath  (on 
account  of  the  breach  of  a  simple  vow  without  involving  Eela). 

2769.  (1869.)  And  if  he  ^ajs,  '^  If  I  extend  my  hand  to  my  wife 
for  one  year^  then  to  me  such  and  such  a  thing,"  and  he  has  no  sexual 
intercourse  with  her  for  four  months,  the  woman  shall  become  completely 
separated  (or  hain)  with  one  divorce ;  because  such  expression,  according 
to  usage,  is  intended  to  mean  sexual  intercourse ;  and  for  this  reason  if 
the  man  has  intercourse  with  her,  within  the  year,         *         *         *         * 

*  *        *        *        the  man  shall  not  commit  a  breach  of  his  oath. 

•    (1870.)    And  if  a  man  says  to  his  wife,  "If         *        *        * 

*  *  *  *  or  invite  thee  to  my  bed  (Firash)^  then  thou  art 
diForced  ;"  he  shall  not  be  held  to  have  made  Eehiy  because  it  is  possible 
for  him  to  have  sexual  intercourse  with  her  without  the  divorce  being 
caused  (as  the  result  of  this  Eela)  in  this  way  that  he  might  invite  her  to 
the  bed  or  Firash,  by  which  act  he  will  commit  a  breach  of  his  oath  and 
lie  might  afterwards  have  sexual  intercourse  with  her,  without  committing 
a  breach  of  the  oath  by  such  intercourse  (that  is,  the  breach  of  the  oath 
being  constituted  by  one  of  two  acts,  it  was  constituted  by  the  invitation  to 

43 


338  THE  TAGOEE  LAW  LECTURES,  1891-92. 

tbe  Firash,  and  this  breach  of  oath  resulted  in  the  divorce  being  caused ;  the 
oath  thus  spent  itself,  and  there  was  no  result  of  the  subsequent  sexual 
intercourse ;  therefore  there  was  no  Eela  ;  because  when  Eela  is  made  by 
means  of  a  conditional  expression,  then  the  condition  should  refer  to  sexual 
intercourse,  and  it  should  be  such  that  the  particular  result  or  sequence, 
e.g.,  divorce  or  emancipation,  &c«,  should  follow  with  certainty  from  the 
realisation  of  the  condition :  here  the  particular  result  is  divorce,  and  that 
result  was  avoided  in  the  way  pointed  out). 

2771.  (1871.)  And  if  the  man  says  to  his  wife,  "If  I  bathe  from 
(after)  my  impurity  (an  indirect  expression  for  sexual  intercourse) 
as  long  as  thou  continue  to  be  my  wife,  then  thou  art  divorced 
thrice,''  and  he  repeats  this  expression,  and  the  woman  is  pregnant 
(at  the  time  the  husband  uses  this  expression),  and  the  husband  has  no 
sexual  intercourse  with  her  after  so  expressing  himself^  and  she  is  delivered 
after  four  months  or  more  (from  the  time  the  husband  so  expresses 
himself) ,  then  the  woman  shall  verily  become  completely  separated  (bain) 
with  one  divorce,  at  the  expiry  of  four  months  (from  the  time  the  husbfind 
80  expressed  himself);  because  the  husband  did  make  Eda  (by  what  he  said) 
and  her  Iddut  shall  expire  with  delivery,  and  if  he  marries  her  (again) 
after  the  expiry  of  the  Idduty  he  shall  not  continue  in  his  Eela  (notwith- 
standing his  words  "as  long  as  thou  continue  to  be  my  wife" 
and  notwithstanding  the  repetition  of  words  of  Eela) ;  and  if  he  has  sexual 
intercourse  with  his  wife  (after  the  second  marriage),  he  shall  not  commit 
a  breach  of  his  oath  (that  is,  the  three  divorces  which  were  the  result  of 
the  condition  shall  not  be  caused);  because  his  oath  was  confined,  as  to  its 
duration,  to  the  subsistence  of  the  particular  marriage  (in  which  the  Eela 
was  made).  And  after  one  divorce  has  taken  place  as  the  result  of  the 
Eela,  no  other  divorce  shall  be  caused  on  her,  although  the  period  sufficient 
to  cause  another  Eela  should  expire  before  her  delivery  (and  although  the 
connection  of  husband  and  wife  subsists  to  a  certain  extent  and  for  certain 
purposes  until  delivery,  and  the  Iddut  of  a  pregnant  woman,  who  has  been 
divorced,  extends  till  her  delivery) ;  because  a  woman,  who  has  been  com- 
pletely separated  {bain)  by  means  of  Eela  shall  not  have  another  divorce 
caused  on  her  as  the  consequence  of  one  (and  the  same)  Eela,  although 
the  woman  miglit  be  in  the  Iddut  (from  the  divorce  as  a  result  of  tlie 
Eela)  until  he  marries  her  (again  in  her  Iddut,  when  the  period 
of  another  Eela,  as  the  result  of  one  and  the  same  oath,  would  begin ; 
because  in  the  oath  the  husband  had  said,  "  As  long  as  thou  continue  to 


EBLA.  339 

be  mj  wife ; ''  and  although  he  has  married  her  afresh,  still  the  second 
marriage  was  daring  the  Iddut  of  the  first  marriage;  and  before  the 
expiry  of  the  Iddut,  the  connection  of  the  first  marriage  subsisted  for 
certain  purposes  although  the  divorce  was  bain,  and,  therefore,  the  first 
oath  also  subsisted).  And  in  this  case,  although  the  husband  repeated 
his  expression,  still  the  period  embraced  by  each  of  the  expressions  i& 
one  and  the  same,  and  in  one  period  only  one  divorce  takes  place  (and, 
therefore,  no  other  divorce  shall  be  caused  on  her,  although  the 'period 
sufiicient  to  cause  another  Eela  expires  before  her  delivery). 

2772.  (1872.)  And  if  the  husband  says  to  his  wife,  "If  I  have 
sexual  intercourse  with  thee  for  a  year  then  thou  art  divorced  thrice," 
and  he  then  seeks  for  a  device  that  the  three  divorces  might  not  be  caused 
on  her;  the  device  for  the  husband  is,  (to  abstain  from  sexual  intercourse 
for  a  year  in  this  way)  that  he  should  leave  her  for  four  months,  so  that 
she  should  become  completely  separated  {bain)  with  one  divorce,  and  he 
should  then  (not  marry  her  but)  stop  for  eight  months  so  as  to  complete 
the  year  (in  which  year,  by  reason  of  there  being  only  one  marriage,  viz., 
that  which  existed  before  the  Eelay  that  Eela  shall  cause  no  fresh  divorce, 
compare  paragraph  1874);  and  should  then  marry  her  afresh ;  and  if  he 
(after  such  marriage)  has  sexual  intercourse  with  her,  the  woman 
shall  not  become  divorced,  and,  therefore,  three  divorces  shall  not  be 
caused  on  her,  because  by  the  expiry  of  the  year  three  divorces  would  not 
be  caused  on  her  by  reason  of  absence  of  sexual  intercourse,  and  after 
the  expiry  of  the  year,  the  oath  would  not  continue  to  subsist. 

2778.  (1873.)  And  if  the  husband  says  to  his  wife,  "If  I  ever 
have  sexual  intercourse  with  thee,  then  thou  art  divorced  thrice,''  there 
is  no  device  to  get  over  this  oath ;  because  if  he  has  sexual  intercourse 
with  her,  she  shall  become  thrice  divorced  (as  the  result  of  the  condi- 
tional expression) ;  and  if  he  abstains  from  having  sexual  intercourse  with 
her,  one  divorce  shall  be  caused  on  her  (as  the  result  of  the  Eela)  by 
the  expiry  of  four  months,  and  if  he  marries  her  afterwards,  the  Eela 
shall  begin  again  (on  account  of  his  expression,  "  If  I  ever  have  sexual 
intercourse.") 

8774.  (1874.)  A  man  says  to  his  wife,  "  By  Qod  I  will  not  have 
sexual  intercourse  with  thee  for  one  year,"  and  four  months  expire,  and 
the  woman  becomes  completely  separated  (or  bain)  with  one  divorce ;  he 
then  marries  her  again,  and  another  period  of  four  months  expires  from 
the  time  of  the  (second)  marriage,  another  divorce  shall  be  caused  on 


S40  THE   TAOOBE    LAW   LBCTTJBB8/   1891-92. 

her,  faeoaase  the  oath  still  subflssfes  (the  year  not  havings  expired) ;  and  if 
he  marriee  her  a  third  time  and  another  period  of  four  months  expires, 
no  other  divorce  efaall  be  caused  on  her,  beoanse  the  oath  was  confined 
to  one  year,  and  after  this  (last)  marriage  four  (full)  months  do  not 
xemain  for  the  year  (because  the  ceremony  of  the  marriages  most  take  some 
tiine^  howev^  small,  and  that  time  would,  therefore,  make  the  whole  of 
the  period  exceed  one  year)  and,  therefore,  no  oth^  divorce  shall  be  caused 
Oa  her« 

2776.  (187&.)  A  man  says  to  his  wife,  ^  If  I  have  sexual  inter- 
course with  thee,  then  this,  my^  slave  shall  be  free ; ''  and  four  months 
expire,  and  the  woman  sues  him  before  the  Eazee  (claiming  to  have 
become  divorced)  and  the  Kazee  effects  separation  between  them,  and 
then  the  slave  establishes  proof  by  witnesses  that  he  has  always  been  a 
free  man :  the  Eazee  shall  make  a  decree  that  the  (alleged)  slave  has 
always  been  a  free  man,  and  the  Eela  shall  then  become  void,  and  tlie 
woman  shall  be  returned  to  her  husband,  because  it  has  became  clear  that 
his  Eela  was  not  valid. 

2776.  (1876.)  A  man  says  to  his  wife,  "  By  God  I  will  not  have 
sexual  intercourse  with  thee  ia  this  room : "  he  shall  not  be  held  to  have 
made  an  Eela  (because  his  oath  does  not  absolutely  prevent  him  from 
having  sexual  intercourse  at  all). 

2777*  (1877.)  A  man  says  to  his  wife  (in  Persian),  "If  thou  shalt 
not  come  within  me,  then  thou  art  divorced,^'  intending  thereby  to  prevent 
his  own  self  from  having  sexual  intercourse,  he  shall  have  made  Eela; 
but  if  he  does  not  intend  thereby  prevention  of  sexual  intercourse,  but  only 
intends  that  he  has  no  necessity  for  sexual  intercourse  with  her,  then 
he  shall  not  have  made  an  Eela :  so  also  shall  there  be  no  Eda  if  he 
does  not  intend  anything. 

2778.  (1878.)  A  man  makes  Eela  with  his  wife  and  then  says, 
"  I  have  made  this  wife  partner  with  thee  in  thy  Eela/*  pointing  to  his 
other  wife :  the  man  shall  not  be  considered  to  have  made  Eela  with  the 
other  wife.  But  if  he  makes  another  wife  partner  with  her  in  Zihar,  his 
act  in  making  her  partner  shall  be  valid ;  because  the  first  expresaioa  (viff.,. 
where  he  made  Eela  with  one  wife)  verily  came  to  an  end,  and,  thecefore, 
he  has  .  no  right  to  alter  it;  but  in  the  case  of  Zihar,  the  effect  of  the 
first  expression  (that  is,  the  expression  by  which  he  made  Zihar  with  one 
wife)  is  not  altered  (by  his  making  another  to  participate  in  the  Zihar)  but 
in  the  case  of  Eela,  the  effect  of  the  first  expressionisaltered>  because  i£  it 


VILA.  341 

is  eorrect  to  make  another  woman  partner  in  the  Eela,  then  the  breach  of 
oath  shall  appertain  to  sezaal  intercourse  with  both  (jointly)  and,  there- 
forei  it  is  not  valid  to  make  another  woman  participate  in  the  Eela. 
(That  is  to  say,  if  in  making  the  ^eZa  the  husband  says,  "If  I  have 
intercourse  with  thee  then  my  slave  shall  be  free,'^  then  the  emancipa- 
tion depends  on  the  intercourse  with  the  particular  wife ;  therefore  the 
effect  of  the  Eela  is  that  emancipation  shall  take  place  by  intercourse  with 
her  alone;  bat  if  he  makes  another  wife  partner  in  the  Eela,  then  the  Eela 
would  mean  that  the  emancipation  would  take  place  by  intercourse  with 
both  and  not  by  intercourse  only  with  the  first-mentioned  wife;  therefore 
the  effect  of  the  Eela  would  be  altered  by  making  another  wife  partner  in 
the  Eela  with  the  first-mentioned  wife.  But  in  the  case  of  Zihar,  the 
effect  is  to  make  the  wife,  with  whom  Zihar  is  made,  unlawful  to  the 
husband ;  and  if  another  wife  is  made  partner  with  the  first-mentioned 
wife  in  her  Zihar^  then  the  effect  is  not  altered,  because  the  unlawfulness 
of  the  first-mentioned  wife  remains  the  same  notwithstanding  that  another 
wife  is  made  partner  with  her  in  the  Zihar). 

2779.  (1879.)  A  man  says  to  the  two  wives  he  has,  "  By  God  I 
will  not  have  sexual  intercourse  with  you  both  : "  he  shall  be  held  to 
have  made  Eela  with  both ;  so  that  if  four  months  expire,  and  the  man 
has  no  sexual  intercourse  with  them,  one  divorce  shall  be  caused  on  each 
of  them. 

And  if  he  says,  "  By  God  I  will  not  have  sexual  intercourse  with 
one  of  you  two,"  he  shall  be  held  to  have  made  Eela  with  one  of  them, 
so  that  if  four  months  expire,  one  divorce  shall  be  caused  on  one  of  them 
(and  the  husband  must  fix  the  identity). 

2780.  (1880.)  A  man  makes  Eela  with  his  wife  (without  perpetuity 
of  vow  to  abstain  as  in  paragraph  1873)  and  then  divorces  her 
thrice,  and  then  marries  her  again,  after  she  had  been  married  to  a 
different  husband  (and  divorced  by  that  husband) :  he  shall  not  be  held 
to  have  made  Eela. 

And  Eela  is  not  like  Zihar,  because  to  make  Eela  is  to  make  divorce 
dependent  on  absence  of  sexual  intercourse,  and,  therefore,  Eela  must  be 
confined  to  the  exsisting  ovmership  (or  state  of  marriage),  and  by  three 
divorces  the  ownership  comes  to  an  end :  contrary  to  the  case  of  Zihar, 
(if  ihe  Zihar  is  followed  by  three  divorces,  and  the  woman  then  marries 
another  husband,  and  then  the  first  husband  marries  her,  the  effect  of  the 
Zihar  sball  atill  continue)  because  Zihar  ia  to  make  the  wife  unlawful  iat^e 


342  THB  TAGOBB  LAW  LBCTUBES^  1891-92. 

husband  until  the  happening  of  a  certain  contingency  (i.e.,  the  payment 
of  expiation)  and  Zihar  is  not  equivalent  to  divorce ;  and,  according  to 
Zoofar,  on  whom  be  peace,  the  Eela  is  not  rendered  void  by  three  divorces. 

2781.  (1881.)  A  man  makes  Eela  with  his  wife  ;  he  then  divorces 
her  (even)  with  one  irreversible  {bain)  divorce ;  then  if  four  months 
expire  from  the  time  of  the  Eela,  whilst  the  woman  is  in  her  Iddut  (from 
the  bain  taldk),  she  shall  become  divorced  a  second  time  as  a  consequence 
of  the  Eela  ;  but  if  her  Iddut  expires,  and  then  the  period  of  Eela  {viz., 
four  months)  expires,  the  divorce  shall  not  be  caused  by  virtue  of  the  Eela. 

Thus  the  Iddut  of  divorce  and  the  period  of  Eela,  are  like  two  racing 
horses;  whichever  of  the  two  arrives  first  has  its  effect  enforced  (that  is, 
if  the  period  of  the  Eela  expires  before  the  period  of  the  Iddut,  then  the 
effect  of  the  Eela  shall  be  established,  that  is,  one  divorce  shall  be  caused; 
but  if  the  period  of  the  Iddut  expires  before  the  period  of  the  Eela,  then 
the  effect  of  the  expiry  of  the  Iddut  shall  be  established,  and  that  effect  is 
that  the  divorce  as  a  consequence  of  the  Eela  shall  not  be  caused). 

2782.  (1882.)  A  man  makes  Eela  with  his  wife  (the  Eela  not  being 
confined  and  restricted  as  to  time)  and  he  then  divorces  her,  and  then  marries 
her  again :  if  he  marries  her  before  the  expiry  of  the  Iddut  (of  the  divorce) 
then  the  Eela  shall  remain  as  it  is  (because  before  the  expiry  of  the  Iddut, 
the  relationship  to  a  certain  extent  subsists)  so  that  if  four  months  expire 
from  the  time  of  the  Eela,  another  divorce  shall  be  caused,  as  a  con- 
sequence of  the  Eela  ;  and  if  he  marries  her  after  the  expiry  of  the  Iddut 
consequent  on  the  divorce  to  her,  he  shall  remain  in  his  Eela,  but  the 
period  of  the  Eela  shall  be  regarded  from  the  time  of  the  (second) 
marriage. 

2783.  (1888.)  A  man  makes  Eela  with  his  wife  after  giving  her  an 
irreversible  divorce,  he  shall  not  be  considered  as  having  made  the  Eela 
(although  he  might  have  made  the  Eela  within  the  period  of  the  Iddut). 

2784.  (1884.)  A  man  makes  Eela  with  his  wife  and  there  intervenes 
between  him  and  her,  a  journey  of  four  months  or  more,  or  the  man  is  sick, 
not  having  the  ability  to  have  sexual  intercourse,  then  his  (^e  or)  retract- 
ation from  the  oath  (see  Volume  11,  page  78,  Chulupy  on  Shureh  Yikaya) 
shall  be  with  his  tongue  (in  order  that  he  might  avoid  the  divorce  which 
would  be  the  consequence  of  this  enforced  abstinence  from  intercourse) 
according  to  us  (Aboo  Haneefa,  Aboo  Yusoof  and  Mahomed)  and  he  must 
say,  **  I  have  {Fye)  retracted  from  the  oath  in  her  favor/'  so  that  if  he 


SKPABATtON   BY  REASON   OF    0WNEB8HIP  OB  APOBTAOT.  843 

retracts  from  his  oath  bj  means  of  his  speech,  and  then  recovers  from  his 
sickness  within  foar  months  (from  the  date  of  the  E6la)y  this  retractation 
from  the  oath  by  means  of  speech  shall  becoipie  void;  and  he  cannot  retract 
from  his  oath  (and  avoid  the  divorce  consequent  on  the  Eeld)  except 
bj  having  sexual  intercourse  with  her. 

2785.  (1885.)  And  if  the  person  who  has  made  the  Hela  is  in  im- 
prisonment on  account  of  another's  right,  then  his  {Fye  or)  retractation 
from  oath  by  means  of  speech  is  not  proper ;  but  if  he  is  in  imprisonment 
oat  of  oppression,  without  the  right  of  another  being  involved,  then  his 
{Fjfe  or)  retractation  from  oath  by  means  of  speech  shall  be  permissible, 
and  he  shall  be  considered  as  absent  or  sick. 

2786.  (1886.)  And  if  the  sick  man  makes  {Fye  or)  retractation  from 
oath  by  a  mental  act,  and  does  not  express  it  in  words,  this  shall  not  be 
considered  as  a  retractation. 

2787.  (1887.)  When  one  who  has  made  Eela  has  intercourse  with 
his  wife  •  ^f-  *  *  this  shall  not  amount  to 
a  {Fye  or)  retractation  from  the  oath. 

God  knows  best. 


Section  II. 


ON  THE  SEPARATION  BETWEEN  THE  SPOUSES,  BY  REASON  OF  ONE  BECOMING 
THE  OWNER  OF  THE  OTHER,  AND  BY  REASON  OF  ONE  BECOMING  AN 

INFIDEL. 

2788.     (1888.)     A  man  purchases  his  wife    (she   having  been  the 

slave  girl  of  another  person)  or  a  fractional  share  of  her:  the  marriage 

shall  become  void  (batil) ;  and  if  he  divorces  her  before  the  expiry  of  the 

time  sufficient  for  the  expiry  of  the   period  of  Iddut,  the  divorce  shall 

not  be  operative;  because  divorce  does  not  take  place   except  in  a  case 

of  marriage  or  in  a  case  of  Iddut  arising  from  marriage  (that  is,  Avorce 

takes   place   only  when,  at    the  time  of    the   divorce,   the  woman  is 

the  wife   or  when   at  such  time  she  is  observing  her  IddtU).      And 

after  the  purchase  (by  her  husband)  the  woman   so  purchased  becomes 

lawful  to  her  master  (who  was  her  husband  before  the  purchase)  by  right 

of  ownership  of  person  (otherwise  called  ownership   of   the  right  hand) 

and  (having  become  lawful  by  purchase)  she  has  to  observe  no  Iddut  either 

on  account  of  tlie  right  of  the  master  (to  whom   she  belonged   before 

she  was  purchased  by  her  husband)  or  on  account  of  the  right  of  the 


344  THE  TA60BE  LAW  LECTUBES,  1891-92. 

Shera  (because  the  Shera  does  nofc  ordain  that  there  should  be  Iddut 
when  the  cause  of  the  right  of  enjoyment  changes  from  ownership  of 
Nikah  to  ownership  of  person.     See  paragraph  1094). 

And  if  the  husband  emancipates  her  after  purchasing  her  (the  effect 
of  such  emancipation  being  that  the  woman,  who  is  now  free,  becomes 
unlawful  to  the  man)  and  the  husband  divorces  her  before  the  expiry  of 
the  time  sufficient  for  the  expiry  of  the  period  of  Iddutj  then  the  divorce 
shall  operate  upon  her  according  to  Mahomed,  on  whom  be  peace,  (who  lias 
held  that  the  Iddut  which  the  woman  shall  have  to  observe  is  that  of  the 
Nikah,  and  not  that  of  the  emancipation),  and  according  to  the  first 
view  taken  by  Aboo  Yusoof ,  on  whom  be  peace ;  then  Aboo  Yusoof,  on 
whom  be  peace,  changed  his  opinion  and  held  that  the  divorce  shall  not 
be  operative ;  and  this  view  is  taken  by  Zoof ar,  on  whom  be  peace ;  and 
he  Fatwa  is  given  accordingly* 

8789.     (1889.)   A  man  says  to  his  wife,  who  is  the  slave  girl  (of  another) , 
<<  Thou  art  divorced  according  to  the  Soonnuf  and   he   then  purchases 
her,  and  then  the  time  for  the  occurrence  of  the  Boonnut  divorce  arrives, 
the  divorce  shttll  not  come  into  operation,  (because,  at  the  time  when  the 
Talak  is  to  be  caused,  she  ceases  to  be  his  wife,  and  becomes  an  amtd 
or  slave). 

2790.  (1890.)  So  also  if  the  husband  makes  Eela  with  his  wife, 
(who  is  the  slave  girl  of  another)  and  then  purchases  her,  and  tlien  (after 
the  purchase)  the  period  of  the  Eela  expires,  (the  divorce  as  a  conse- 
quence of  the  Eela  shall  not  be  caused.    See  paragraph  1094). 

2791.  (1891.)  So  also  if  the  husband  makes  the  divorce  (of  such  wife 
as  aforesaid)  dependent  on  some  condition,  and  the  condition  comes  to  be 
realised  after  the  husband  becomes  her  owner  (and  after  she  has  ceased  to 
be  his  wife),  the  divorce  shall  not  be  caused. 

2792.  (1892.)  And  if  the  husband  emancipates  his  wife  (wlio  is  the 
slave  girl  of  another,  and  with  whom  the  husband  has  dealt  as  in  para- 
graphs 1889,  1890,  and  1891)  after  purchasing  her,  and  then  (before  the 
expiry  of  the  period  of  Iddut)  the  time  of  the  Soonnut  divorce  arrives,  or 
the  period  of  the  Eela  expires,  or  the  condition  is  fulfilled,  the  divorce 
shall  be  caused  according  to  the  view  of  Mahomed,  on  whom  be  peace 
but,  according  to  analogy  from  the  view  of  Aboo  Yusoof,  on  whom  be 
peace,  the  divorce  shall  not  be  caused;  and  the  Fatwa  is  given  accordingly. 
(See  paragraph  1095)* 


SIPARATIOir  BT  ILKABON  OF  OWKKBSHIP  OR  AFOSTACT.  345 

2798.  (1893.)  A  free  woman  purchases  her  husband  (who  is  the 
slave  of  another)  or  a  fraction  of  him,  the  marriage  shall  become  void  (and 
the  woman  shall  not  be  lawful  to  the  man ;  becanse,  nnder  the  Mahomedan 
Law,  the  woman  has  the  right  of  ownership,  bat  such  right  of  ownership 
does  not  lead  to  a  right  of  enjoyment) ;  and  if  she  emancipates  her  husband, 
and  the  husband  then  divorces  her  whilst  she  is  in  the  Iddut,  (which  here 
is  obligatory  on  the  woman ;  because  the  man  is  no  longer  lawful  to 
her,  contrary  to  paragraph  1888)  the  divorce  shall  not  be  operative  on 
the  woman,  according  to  the  second  view  taken  in  the  matter  by  Aboo 
Tusoof ,  on  whom  be  peace,  (because  the  Nikah  having  been  rendered  void, 
the  parties  become  total  strangers,  and  the  husband  loses  the  power  of 
divorce) ;  but  she  shall  become  divorced  according  to  the  first  view  taken 
by  him,  and  this  view  is  also  taken  by  Mahomed,  on  whom  be  peace, 
(because  the  general  rule  is,  that  divorce  can  be  given  during  the  Iddut, 
but  this  rule  is  not  applicable  in  this  case;  because  the  foundation  of  the 
general  rale  is  the  principle  that  daring  the  period  of  the  Iddut  the  hus- 
band does  not  become  an  absolute  stranger,  but  the  relationship  of 
husband  and  wife  subsists  to  a  certain  extent :  but  in  the  present  case, 
although  there  is  the  obligation  of  Iddut  on  the  woman,  still  the 
parties  have  become  absolute  strangers,  because  the  woman  becomes 
totally  and  perpetually  prohibited  to  the  man,  there  being  no  Nikah 
between  a  woman  and  her  emancipated  slave,  or  between  a  Syuda  and  her 
Ghoolam.  See  Futh-ool  Eadeer,  Volume  II,  page  26.  See  also  para- 
graph 1095). 

S794.  (1894.)  And  if  the  slave  husband  (i.e.,  a  husband,  who  is  the 
slave  of  another),  says  to  his  wife,  who  is  a  free  woman, "  Thou  art 
divorced  according  to  the  Soonnut,^'  and  the  wife  then  comes  to  be  the 
owner  of  her  husband  (whether  she  afterwards  emancipates  him  or  not), 
and  then  the  time  for  the  operation  of  the  Soonnut  divorce  arrives, 
the  divorce  shall  be  operative  on  her ;  because  a  free  woman  is  not  law- 
ful to  her  own  slave,  and  therefore  the  obligation  of  the  Iddut  on  the 
woman  becomes  apparent  (because  they  can  no  longer  enjoy  each  other) 
and  therefore  she  becomes  a  fit  subject  for  the  divorce  (pronounced  by 
the  man  whilst  he  was  her  husband)  contrary  to  the  first  case  (in  para- 
graph 1893,  where  the  divorce  did  not,  correctly  speaking,  take  place, 
becanse  the  divorce  was  pronounced  at  a  time  when  the  husband  had  no 
authority  to  pronounce  it.    See  also  paragraph  1095). 

2796.    (1895.)    The  wife  becomes  an  apostate— May  God  save  ns 
44 


346  T3S  vAQomm  uw  hucrums,  1891-92. 

from  this  ealamity :  it  is  reported  from  Aboo  Nusttr  and  Abool  Kaseim 
Snffar,  on  whom  be  peace,  that  the  view  taken  by  them  is  that  no  sepaia- 
tion  shall  be  caused  between  them^  so  that  the  woman  may  not  attain 
her  end,  assuming  the  end  she  has  in  view  (by  becoming  an  apostate) 
is  to  get  separated  from  her  husband.  But  according  to  Zahir*i- 
Buwayet,  separation  shall  be  caused,  and  the  woman  shall  be  imprisouied 
until  she  (again)  becomes  a  Moslem,  and  the  marriage  shall  then  be  re- 
newed (with  the  same  husband)  in  order  to  put  a  stop  to  her  aposiaqr, 
(that  is,  the  woman  shall  again  be  married  to  the  same  husband  on  her 
re-accepting  Islam  ;  because  if  allowed  the  choice  of  another  husband, 
the  result  would  be  that  a  wide  door  would  be  opened  to  apostacy,  and 
women,  who  are  tired  of  their  husbands,  would  have  only  to  renoun^ce  their 
faith  and  re-accept  Islam  in  order  to  get  rid  of  their  old  husbands  and 
still  get  all  the  benefits  of  Islam). 

2796.  (1896.)  A  man  makes  the  divorce  of  his  wife  dependent  on 
entry  in  the  house,  and  he  then  becomes  an  apostate — God  save  us  from 
such  a  calamity — and  joins  {LeAak)  the  Dar-ool  Hurub;  the  woman 
then  enters  the  house :  the  divorce  shall  not  be  caused  on  her  according 
to  Aboo  Haneefa,  on  whom  be  peace,  (because  the  effect  of  the  husband's 
Lehak  or  joining  the  Dar-ool  Hurub  is  similar  to  death,  and  after  the  death 
of  the  husband,  tbe  conditional  divorce  is  not  caused,  when  the  condition  is 
realised  after  his  death,  because  a  conditional  divorce  is  viewed  in  the  light 
that  on  the  condition  being  realised,  the  husband  says,  **  thou  art  divorced ; " 
but  if  the  husband  is  dead,  there  is  nobody  to  say,  "  Thou  art  divorced," 
when  the  condition  is  realised). 

2797.  (1897.)  So  also  if  the  husband  makes  Eela  with  bis  vnfe, 
and  then  joins  the  Dar-ool  Hurub,  and  then  the  period  of  the  Eela  expires, 
the  divorce  shall  not  be  caused  (because  the  Nikah  comes  to  an  end,  ajid 
becomes  cancelled  and  void  at  the  period  of  the  Eela,  and  there  is  no 
wife  on  whom  divorce  could  be  caused). 

2798.  (1898.)  And  if  the  husband  divorces  hia  wife  after  he  has 
joined  the  Dar-ool  Hurub>  the  divorce  shall  not  be  caused  (because  by  his 
becoming  an  apostate,  the  marriage  has  become  dissolved) ;  and 
if  he  again  returns  to  the  Dar-ool  Islam  as  a  Moslem,  whilst  the  womaa 
is  in  her  IddMt  (on  account  of  the  apostacy  of  the  man)  and  divorces 
her  after  getting  out  of  the  Dar-ool  Hurub,  the  divorce  shall  not  be  caused 
according  to  the  second  view  taken  by  Aboo  Yusoof,  on  whpm  be  peace. 


SEPARATION   BY   REASON   OP  OWNERSHIP  OR  AP08TACT.  847 

(beoaase  the  Nikah  has  become  cancelled) ;  bnt  according  to  his  first  view, 
the  divorce  shall  be  caused,  and  this  is  also  the  view  of  Mahomed,  on 
whom  be  peace ;  (because  the  woman  is  observing  her  Iddut.  See  also 
paragraph  1097). 

fiTM.  (1899.)  And  when  a  woman  becomes  an  apostate— Mj  Qod 
save  us  from  such  a  calamity — and  joins  the  Dar-ool  Hurub,  and  then  her 
husband  divorces  her^  and  the  woman  then  returns  to  the  Dar-ool  Islam 
as  a  Moslem^  the  divorce  shall  not  be  caused  according  to  Aboo  Haneefa, 
on  whom  be  peace,  by  reason  of  the  extinguishment  of  the  obligation  of  the 
Iddut  from  her  because  of  her  having  entered  the  Dar-ool  Hurub  (which 
entry  amounts  to  civil  death) :  but  according  to  the  view  taken  by  his 
two  disciples,  on  whom  be  peace,  the  divorce  shall  be  caused,  by  reason 
of  the  obligation  of  the  Iddut  continuing  on  the  woman  (as  a  result  of 
the  dissolution  of  the  marriage) ;  and  the  divorce  shall  only  be  caused 
after  her  return  to  the  Dar-ool  Islam,  (and  shall  not  be  caused  as  long 
as  she  continues  to  remain  in  the  Dar-ool  Hurub)  by  reason  of  the 
difference  in  the  two  Dars  (that  is,  by  reason  of  the  husband  and  wife 
being  in  two  different  places  as  regards  the  governing  laws ;  one  place 
being  the  Dar-ool  Islam  and  the  other  the  Dar-ool  Hurub.  See  para- 
graph 1098). 

S800.  (1900.)  When  a  Moslem  female  minor  has  a  husband,  and  the 
minor^B  parents  forsake  Islam,^may  Qod  protect  us  from  such  a  calamity, 
-—the  minor  does  not  become  separate  (or  lain)  from  her  husband ;  and 
if  the  parents  join  the  Dar-ool  Hurub  taking  her  along  with  them,  then 
the  female  minor  becomes  separate  (or  hain)  from  her  husband  (because 
the  general  rule  is  that,  if  one  of  the  parents  is  a  Moslem,  the  child  follows 
the  religion  of  the  Moslem  parent ;  and  if  both  parents  became  infidels, 
then^  as  long  as  they  are  in  the  Dar-ool  Islam,  the  children  are  Moslems, 
following  the  religion  of  the  country— I\*6aaH  Lildar;  but  when,  in 
addition  to  being  infidels,  the  parents  leave  the  Mahomedan  country,  and 
go  to  the  Dar-ool  Hurub  with  the  children,  then  the  children  cease  to  be 
MoslettiB  altogether :  this  rule  applies  to  infants  when  they  do  not  under- 
stand lelam). 

And  if  the  father  becomes  an  apostate — may  God  prevent  such  a 
calamity— and  joins  the  Dar-ool  Hurub  with  his  minor  daughter,  the 
mother  of  the  minor  daughter  dying  in  the  Dar-ool  Islam,  either  as  a 
Moslem  or  an  infidel,  then  the  minor  daughter  shall  not  become  separate 
ir^m  lier  husband  (because  she  shall  be  in  the  religion  of  her  mother^  if 


848  TH£   TAOOBI   LAW   LECTUBKS^    1891-92. 

the  latter  was  Moslem,  and  in  the  religion  of  the  Dar-ool  Islam  i£  the  latter 
was  an  apostate). 

2801.  (1901.)  A  female  Christian  minor  is  married  to  a  Moslem  ; 
her  father  becomes  a  Mujoosee  (or  fire-worshipper),  her  Christian  mother 
being  either  dead  or  aliye :  the  female  minor  shall  not  become  separate 
(or  ham)  from  her  husband  (because  the  child  follows  the  better  of 
the  two  religions  which  its  parents  profess).  But  if  both  of  her  parents 
become  fire-worshippers,  then  the  female  minor  shall  become  separate 
from  her  husband,  even  if  the  parents  do  not  take  her  away  to  the  Dar- 
ool  Hurub. 

2802.  (1902.)  An  adult  female  Moslem  is  married  to  a  Moslem ;  she 
becomes  an  idiot  (and  therefore  comes  under  the  guardianship  of  her 
parents) ;  and  then  both  of  her  parents  become  apostate  and  join  the 
Dar-ool  Hurub  with  her ;  she  shall  not  become  separate  from  her  husband. 
(The  adult  though  an  idiot  does  not  follow  her  parents'  religion). 

2803.  (1903.)  A  Moslem  marries  a  Christian  female  minor,  who 
has  parents,  both  of  whom  are  Christians ;  the  minor  then  attains  her 
majority  and  does  not  understand  Christianity  or  any  other  religion,  and 
cannot  state  the  tenets  of  any  religion :  she  shall  become  separate  from 
her  husband. 

2804.  (1904.)  So  also  in  the  case  of  a  female  minor,  who  is  a 
Moslem  on  account  of  her  parents  being  Moslems ;  if  she  attains  her 
puberty  and  does  not  understand  Islam,  and  cannot  state  the  tenets  of 
Islam,  she  shall  become  separate  from  her  husband  just  as  if  she  had 
become  an  apostate  (that  is,  whilst  her  parents  are  alive  a  female 
minor  foUows  Islam  which  is  the  religion  of  her  parents ;  but  after 
attaining  her  majority  she  must  know  her  religion ;  and  not  knowing 
what  Islam  is,  she  must  be  considered  to  have  become  an  apostate  after 
her  majority).  And  for  this  reason  the  pious  and  the  virtuous  have 
considered  it  proper  that  the  girl  should  be  asked  the  tenets  of  Islam, 
and  this  is  a  laudable  course ;  but  it  is  proper  that  the  question  in  regard 
to  the  tenets  of  Islam  should  be  asked  in  a  way  (and  in  the  form  of 
leading  questions)  so  that  she  might  have  no  difficulty  in  stating  those 
tenets  (for  instance,  she  should  be  asked,*^^^  Do  you  know  that  there  is  one 
God?"  '*Do  you  know  that  Mahomed  is  the  true  Prophet?"  and  she  shall 
not  be  asked  as  if  she  were  being  cross-examined  thus — ^'What  is  religion,'* 
&c.),  and  if  she  says^  <<I  understand  Islam  and  I  am  able  to  state  ifai 


SEPARATION  BY  REASON  OF  OWNERSHIP  OR  AP08TACY.  349 

tenets  bat  I  will  not  state : ''  the  learned  lawyers  haTe  said  that  she  shall 
become  separate  from  her  husband ;  because  she  has  forsaken  one  of  the 
pillars  of  Islam,  and  that  pillar  is  to  make  profession  (of  Islam)  bj  word 
of  mouth  when  necessary^  provided  there  is  no  (reasonable)  objection ; 
therefore  she  shall  become  an  apostate.    And  if  she  says,  '^  I  understand 
what  Islam  is,  but  I  am  not  able  to  state  its  tenets  : "  the  learned  lawyers 
have  differed  in  this  matter ;  some   of  them  have  said  that  she  shall 
become  separate  from  her  husband,  because  ignorance  is  no  excuse  (and 
her  inability  to  state  the  tenets  shews  she  is  ignorant  of  the  tenets) ; 
bat  others  have  said  that  she  shall  not  become  separate,  because  in  the 
case  of  one  intoxicated,  his  becoming  an  apostate  (by  giving  utterance  to 
blasphemous  expressions  in  a  state  of  drunkenness)  is  not  correct,  reason- 
ing from  weak  analogy  {IsHhsan)^  although  the  cause  of  the  man's  having 
become  an  apostate  is  a  sinful  act  (that  is,  the  act  of  drinking ;  because 
it  is  only  when  he  is  drunk  that  he  has  used  blasphemous  expressions 
which  have  induced  apostacy)  which  he  has    committed  of    his    own 
will   {Ikhtear)  and,    therefore,    it    is   proper,   in  a  higher  degree,  that 
what    this  girl  says  should  not  be  considered    as    rendering    her  an 
apostate. 

2805.  (1905.)  When  a  boy  has  understanding,  his  apostacy  cannot 
be  disregarded  (just  as  the  apostacy  of  a  grown-up  man  cannot  be  disre- 
garded :  but  the  acts  of  a  mere  child  amounting  to  apostacy  count  for 
nothing) ;  and  the  same  establishes  separation  (between  him  and  his  wife) 
according  to  Aboo  Haneefa  and  Mahomed,  on  whom  be  peace.  So  also 
the  apostacy  of  a  girl,  who  has  understanding. 

2806.  (1906.)  When  a  boy  attains  his  majority  whilst  possessed  of 
understanding  and  is  unable  to  state  the  tenets  of  Islam,  he  becomes  an 
apostate,  except  this  that  he  shall  not  be  put  to  death,  just  as  in  the  case  of 
a  person,  who  has  been  compelled  to  accept  Islam,  if  he  accepts  Islam 
(under  compulsion)  and  then  becomes  an  apostate,  hoi  shall  be  regarded 
as  an  apostate,  but  he  shall  not  be  put  to  death. 

2807.  (1907.)  A  Christian  boy  is  given  in  marriage  by  his  father 
to  a  Christian  woman ;  the  woman  then  becomes  a  Moslem  ;  the  Eazee 
shall  not  effect  a  separation  between  the  husband  and  wife  until  the  boy 
understands  Islam  ;  and  when  the  boy  is  able  to  understand  Islam,  he 
shall  be  offered  to  accept  Islam;  and  if  he  refuses  to  accept  Islam,  the 
Kazee  shall  effect  separation  between  them  ;  just  as  if  he  had  been  an  adult 
(and  his  wife  had  become  a  Moslem)  then  Idam  would  have  been  offeied 


S50  THK   TAIQK>BB  LAW   LCCTtrBSS,   1891-92. 

to  him,  and  if  he  had  refused  to  acoept  the  same,  separatiofft  WOtild  haye 
been  effected  between  the  hasband  and  the  wife. 

2808.  (1908.)  A  hnsband  and  his  wife,  who  are  Moslems,  both  become 
apostate  at  once :  separation  shall  not  be  caused  between  them,  reasoning 
from  weak  analogy  (latihsan) ;  so  that  if  they  again  become  Moslems^  the 
marriage  between  them  shall  continue  to  subsist. 

2809.  (1909.)  When  a  Zimmee  (an  infidel,  who  is  Ahl-i-Kitab  and  is 
in  the  Dar-ool  Islam)  changes  his  religion  for  another  (non-Moslem)  reli- 
gion, no  objection  shall  be  made  to  his  doing  so.  And  Shafei,  on  whom 
be  peace,  says,  that  the  Zimmee  (forsaking  his  own  religion  in  prefer- 
ence to  another  infidel  religion)  shall  be  ordered  to  accept  Islam  or  to  go 
back  to  his  old  religion  ;  and  that  if  he  does  not  do  so,  and  three  menses 
of  his  wife  expire,  she  shall  become  separate  from  him. 

2810.  (1910.)  An  infidel  woman,  residing  in  the  Dar-ool  Hurab 
(and  she  is  called  a  Hurubee  whether  she  is  Ahl-i-Eitab  or  not)  comes  out 
towards  us  (that  is,  towards  the  Dar-ool  Islam)  as  a  Moslem,  having  left 
behind  in  the  Dar-ool  Harub :  her  Hurubee  (or  infidel)  husband:  separation 
shall  be  caused  between  them. 

2811*  (1911.)  So  also  if  the  Hurubee  husband  comes  towards  us 
as  a  Moslem,  leaving  behind  him  his  wife  as  an  infidel  in  the  Dar-ool 
Hurub,  the  woman  (shall  become  separated  from  the  husband  and  she) 
shall  be  obliged  to  observe  the  Iddut  (her  marriage  having  been  dis« 
solved;,  except  when  she  (after  the  husband  has  left  the  Dar-ool  Hurub) 
also  comes  out  of  the  Dar-ool  Hurub  as  a  Moslem  (even)  without 
(much)  inclination  (on  her  part,  for  Islam)  in  which  case  (the  Nikdh 
shall  not  be  dissolved  or  made  Fuskk,  and)  the  Iddut  shall  not  be  ol>ligatory 
on  her,  according  to  Aboo  Haneef  a,  on  whom  be  peace,  but  his  two  dis- 
ciples have  laid  down  that  Iddut  shall  be  obligatory  on  her  (her  marriage 
having  been  dissolved). 

2812*  (1912.)  So  also  if  either  the  husband  or  the  wife  comes  oat  of 
the  Dar-ool  Hurub  as  a  Zimmee,  separation  shall  be  caused  between  them* 

2813*  (1913.)  But  if  one  of  the  spouses  comes  out  of  the  Dar-ool 
Hurub  (without  actually  becoming  a  Zimmee,  but)  under  an  assarance 
of  toleration  (or  peace,  that  is,  Moo8tamin\  then  separation  shall  not  be 
caused  between  them  (because  he  remains  Hurubee  all  the  same). 

8314.  (1914.)  But  if  both  the  spouses  come  out  of  the  Dar-ool 
Hurab,  under  the  assurance  of    toleration,  and  the  wife  beoomea  a 


8KPARATfO0r  BT  BVA80K  OF  OWmCESHIP  OB  AFOSTACT.  351 

Moslem,  then,  according  to  one  tradition,  she  shall  continue  to  be  hia  wife 
until  she  has  three  menses  (after  she  has  accepted  Islam ;  and  after  that 
tke  Nikah  eihall  be.  dissolved) ;  and  according  to  another  tradition,  Islam 
shall  be  offered  to  the  husband,  and  if  he  refuses  to  accept  Islam,  separa* 
tion  shall  be  caused  between  the  husband  and  wife ;  but  if  the  Imam 
(that  is,  the  sovereign)  does  not  offer  Islam  to  him  for  his  acceptance, 
then  separation  shall  not  be  caused  between  them  until  she  gets  three 
menses* 

21815.  (1915.)  When  one  of  the  spouses  accepts  Islam  in  the  Dar-K)ol 
Horub,  (and  neither  of  them  comes  into  the  Dar^ool  Islam,  and,  therefore, 
there  could  be  no  offer  of  Islam  to  the  one  who  is  still  an  unbeliever),  the 
separation  between  them  shall  be  suspended  until  the  expiry  of  three 
menses  (and  then  the  marriage  shall  become*  dissolved). 

2816.  (1916.)  A  Zimmee  woman  becomes  a  Moslem  in  the  Dar-ool 
Islam;  Islam  shall  be  offered  for  the  acceptance  of  the  husband; 
and  if  he  accepts  it,  so  far  so  good  (and  their  maiTiage  relation  shall 
continue  to  subsist) ;  otherwise  the  Kazee  shall  cause  separation  between 
them,  and  this  separation  (which  is  caused  by  the  husband's  act  of  re- 
fusal) shall  amount  to  a  divorce,  according  to  Aboo  Haneefa  and  Mahomed 
oil  whom  be  peace  ;  but  Aboo  Yusoof,  on  whom  be  peace,  sajs,  that  this 
shall  not  amount  to  a  divorce  (but  it  shall  be  a  dissolution  or  Fushh). 

2817*  (1917.)  And  if  the  husband  becomes  a  Moslem  (in  the  Dar-ool 
Islam)  but  his  wife  remains  a  Hurubee  (or  infidel)  or  a  Mujoosee  (or  fire- 
worshipper)  ;  then  Islam  shall  be  offered  to  the  woman  ;  and  if  she  accepts 
the  same,  so  far  so  good,  otherwise  separation  (which  is  not  the  result 
of  the  husband's  act  of  refusal  but  of  the  wife's  act  of  refusal)  shall  be 
caused  between  the  husband  and  wife ;  and  this  separation  shall  not 
amount  to  a  divorce :  but  if  the  woman  is  a  Eitabya  (ie.,  a  Christian  or 
a  Jewess)  then  the  ipftrriage  shall  continue  between  them  in  its  original 
state. 

aais*  (19 18.)  And  the  ^[KMBtacy  of  one  of  the  spouses  does  not  amount 
to  divorce  (although  the  marriage  is  dissolved  by  the  apostacy) ;  but 
Mahonaedy  on  whom  be  peace,  says,  that  if  the  husband  becomes  an  in- 
fidely  this  sball  amount  to  a  divorce,  drawing  an  inference,  by  way  of 
analogy  from  the  case  where  the  (wife  hoiving  become  a  Moslem)  the 
husband  refuses  to  accept  Islam,  (on  the  some  being  offered  to  him). 
God  knowa  beet. 


352  THB  TAQOBB  LAW  LTCCTUBBS,     1891-92. 

CHAPTER  VT. 

ON  LIAN. 

[Note. — See  Radd-ool  Moohtar,   Volume  II,  page  963 :    Door-ool 
Mookhtar  cited  there,  lays  dowa  as  follows  :— Lian,  according  to  the  Dic- 
tionary, is  the  infinitive  of  the  past  tense  Laana.    It  is  derived  from  Loan 
and  that  means  to  drive  away.    According  to  Sbera  it  means  the  giving  of 
evidence  or  testimony  by  the  husband   and   wife,  each  in  person,  four 
times  in   the  presence  of  the  Kazee,  such  evidence  or  testimony  having 
been  strengthened  hy  oath  or  AymaUy  that  is  adjuration ;  the  husband's 
evidence  or  testimony  being  further  accompanied  by  the  nse  of  the  word 
Laan  or  curse  of  God,  and  the  evidence  or  testimony  of  the  woman  being 
further  accompanied  by  the  use  of  the  word  Ohuzab  or  wrath  of  God ;  the 
evidence  or  testimony  of  the  husband  standing  in  the  place  of  Uadd-i- 
Euzuf,  so  far  as  the  husband  is  concerned-— that  is,  the  husband  having 
accused  the  wife  of  Zina,  he  would  have  been  liable  to  the  punishment  of 
Euzuf  or  slander  but  for  this  procedure,  and,  therefore,  the  punishment 
for  slander  is  extinguished  and  Lian  takes  its  place — and  so  far  as  the 
woman  is  concerned,  her  evidence  or  testimony  standing  in  the  place  of 
Hudd-i-^ma,  that  is,   the  punishment    for  Zina    having    become  ex- 
tinguished, Lian  takes  the  place  of  the  punishment  for  Zina  so  far  as  the 
woman  is  concerned — because  to  invoke  God,  when  giving  evidence,  is 
more  destructive  in  its  effect  than  punishments ;  the  condition  for  the 
validity  of  the  Lian  being  the  subsistence  or  continuance  of  the  relationship 
of  husband  and  wife,  and  that  the  Nikah  is  Saheeh  that  is  good,  and  not 
Fasid  or  invalid;  the  cause  or  Suhub  of  Lian  is  the  husband  accusing  his 
wife  of  Zina  under  circumstance  that,  if  such  accusation  bad  been  made 
against  a  strange  woman,  it  would  make  him  liable  to  Hudd-i-Kuzuf, 
— that  is  to  say,  the  wife  should  be  Moohsina  and  Afeefa,  that  is,  one  not 
having  the  reputation  of  committing  Zina.    The  pillars  or  Bookn  of  Liat^ 
are  the  evidence  or  testimony  four  in  number,  which  is  strengthened  by 
the  use  of  the  oath  on  God  and  by  the  word  Laan;  the  Hookm  or  con- 
sequence and  effect  of  Lian  is  that,  after  the  Lian  is  made,  it  is  unla^wful 
to  the  husband  to  have  sexual  intercourse  with  and  enjoy  the  wife  s   the 
ahl  or  person  fit  to  make  Lian  is  a  man  who  is  qualified  to  give  testimony 
to  the  detriment  of  and  against  a  Moslem — and  this  condition  excludes 
a  Kafir  and  a  slave  &c.,  who  cannot  give  such  testimony]. 

2819.    (1919.)    Lian  does  not  take  place  except  between  spouses 
who  are  both  free,  and  both  Moslems,  and  both  possessed  of  understand- 


ON  LIAN.  3$S 

ingy  and  both  of  age,  and  neither  of  whom  has  been  pnnished  for  falsely 
accusing  anybody  else,  of  adultery ;  because  according  to  ua  ({.e.^^  Aboa 
Haneefa,  ATahomed  and  Aboo  Yasoof),  Lian  consists  of  acts  of  testi- 
mony (that  is»  consists  of  depositions)  strengthened  by  oaths^  and 
therefore  Lian  shall  not  take  place»  if  the  hasband  and  wife  are  both  not 
capable  of  giving  testimony,  or  if  one  of  them  is  not  capable  of  giving 
testimony ;  and  along  with  the  capacity  (or  fitness)  to  give  testimony  ^^ 
it  is  necessary  to  consider  {Iffut  or)  chastity  and  {Ihsan  or)  virtue  (by 
reputation  and  appearance)   on  the  part  of  the  woman. 

S820.  (1920.)  And  Lian  takes  place  between  two  sinful  (Fasih) 
persons  and  between  two  blind  persons,  because  they  have  the  capacity 
to  give  evidence,  so  that  a  marriage  can  be  contracted  in  their  presence  t 
{Fasih  means  one  who  is  guilty  of  Qoanah-i-'Kubeera,  or  grave  sinful 
acts  I  here  it  excludes  Iffut  and  Ihsan). 

882L  (1921.)  And  the  cause  of  Lian  is  the  accusation,  made  (by 
the  husband)  against  the  wife,  of  adultery,  the  accusation  bang  such 
that  if  made  in  reference  to  a  stranger,  it  would  have  involved  liability  to 
punishment  (that  is  to  say,  the  rule  is,  that  when  a  man  accuses  a  strange 
woman  of  adultery,  and  proves  the  same  by  four  witnesses,  he  discharges 
the  burden ;  but  when  he  makes  the  accusation  and  is  unable  to  produce 
the  required  number  of  witnesses,  he  makes  himself  liable  to  Hudd; 
therefore,  if  the  husband  makes  such  accusation  against  his  wife,  and  can- 
not produce  the  required  number  of  witnesses,  he  brings  an  accusation  by 
which  he  makes  himself  liable  to  Hudd  if  the  woman  accused  bad  not  been 
his  wife;  he  must,  therefore,  in  the  case  in  question,  make  the  Lian). 

2832.  (1922.)  When,  therefore,  the  cause  of  the  Lian  is  established 
(that  is,  when  the  husband  has  made  such  an  accusation  against  his  wife) 
and  the  Lian  is  forbidden  by  reason  of  something  (by  way  of  disqualifica- 
tion) relating  to  the  woman ;  such  for  instance  as  where,  although  the 
husband  is  free,  and  is  possessed  of  understanding,  and  is  a  Moslem,  and 
is  of  age,  and  has  never  been  punished  for  bringing  a  false  lacousation  of 
adultery  against  any  person,  but  the  woman  is  a  slave,  or  an  infidel,  or 
a  minor,  or  is  insane,  or  dumb,  or  is  not  chaste,  or  if  she  is  one  whose 
husband  has  had  intercourse  with  her  on  account  of  doubt,  then  the 
Lian  does  not  take  place,  and  the  husband  does  not  make  himself  liable 
to  the  punishment  prescribed  for  making  a  false  accusation  of  adultery 
(agaisBt  such  a  woman). 
45 


354  THB  TAQOBR  LAW  LECTURES,  1891-92. 

But  if  the  Lian  is  forbidden  on  account  of  something  ^y  way  of  dis- 
qualification) which  relates  to  the  husband ;  then  if  the  husband  is  one 
who  is  a  fit  subject  of  punishment,  (e.g,^  if  he  is  not  a  minor,  &c.),  then 
the  punishment  of  false  accusation  of  adultery  shall  be  meted  out  to  him ; 
because  LiaUf  so  far  as  he  is  concerned  (that  is,  so  far  as  his  part  in  the 
Lian  is  concerned)  takes  the  place  of  Hifdd  for  false  accusation  of 
adultery  (that  is  to  say,  the  false  accusation  involves  liability  to  punish- 
ment; but  Lian  comes  to  be  substituted  for  it  because  the  accusation  is 
against  the  wife ;  and  when  the  Lian  cannot  take  place,  the  liability  to 
punishpent  is  revived) ;  and  it  takes  the  place  of  Hudd  or  punishment 
for  adultery  so  far  as  the  woman's  part  in  the  Lian  is  concerned  (that 
is,  the  accusation  against  the  woman,  if  true  would  make  her  liable  to 
Hudd  J  but  Lian  by  her  takes  the  place  of  such  liability  to  punishment). 

But  if  (the  reason  for  the  Lian  being  forbidden  is,  that)  both  of  them 
have  been  punished  for  falsely  accusing  (some  other  person)  of  adultery, 
tben  (in  the  event  of  the  husband  accusing  his  wife  of  adultery)  he  shall 
be  liable  to  punishment  for  false  accusation  of  adultery. 

2823.  (1923.)  And  if  the  husband  is  not  (as  shown  in  the  previous 
paragraph)  a  fit  subject  {ahl)  for  punishment  or  Httdd,  then  in  the  same 
way  as  Lian  is  not  obligatory  on  him,  so  also  he  is  not  liable  to  Hudd. 

2824.  (1924.)  And  if  the  conditions  of  Lian  are  found  to  exist  in 
the  spouses  (e.g.y  freedom,  or  age,  &c.),  and  the  husband  then  (that  is, 
after  the  husband  has  accused  the  wife  of  adultery)  divorces  the  woman 
irreversibly,  or  divorces  her  thrice,  the  Lian  shall  be  extinguished,  and  he 
shall  not  be  liable  to  punishment.  So  also  if  he  marries  her  after  this 
(divorce).  But  if  he  gives  her  a  reversible  divorce,  then  the  Lian  shall 
not  be  extinguished. 

2826.  (1925.)  And  the  mode  of  making  Lian  is  that  declared 
(in  the  form  of  a  Nxms)  by  God  in  the  Koran.  (See  Volume  I,  Tagore 
Lectures,  page  46,  Texts  314,  316,  316  and  317). 

2826.  (1926.)  A  man  accuses  his  wife  of  adultery,  and  both  of 
tliem  are  fit  subjects  to  make  Lian,  and  the  woman  does  not  refer  the 
matter  (of  the  accusation)  to  the  Kazee ;  she  shall  continue  to  be  his  wife ; 
and  if  she  refers  the  matter  (of  the  accusation)  to  the  Kazee,  then  the 
Kazee  shall  begin  with  the  man,  and  make  him  take  the  oath  as  God  has 
laid  down  in  His  Book.    And  Husun,  on  whom  be  peace,  has  reported  a 


ON  LIAK.  855 

tradition  from  Aboo  Haneefa,  on  whom  be  peace,  that  he  ( Aboo  Haneefa) 
held  as  a  condition  that  words  of  direct  address  (by  the  hasband  to  the 
wife)  shall  be  used,  and  that  the  husband  shall  say,  '^  In  what  I  have 
accused  ihee  of  Zina  (I  am  truthful)."  And  Eurkhj,  on  whom  be  peace, 
has  laid  down  that  when  the  husband  uses  the  words  of  an  indirect  ex- 
pression (speaking  of  the  woman  as  if  she  were  absent,  although  both 
parties  are  present  before  the  Eazee)  but  points  towards  the  woman,  this 
is  sufficient. 

The  woman  shall  then  (that  is,  after  the  oath  has  been  administered 
to  the  husband  and  he  has  made  his  statement)  be  put  on  her  oath. 

S827.  (1927.)  And  whichever  of  the  two  persons  refuses  to  make 
Lian,  the  Kazee  shall  imprison  that  person,  until  that  person  makes  the 
Lian  as  that  person's  companion  has  done.  And  Shafei,  on  whom  be 
peace,  has  laid  down  that,  when  the  woman  refuses  (to  make  Lian)  after  the 
husband  has  made  the  Lian,  then  the  punishment  or  Hudd  of  Zina  shall 
be  meted  out  to  her. 

2828.  (1928.)  And  if  the  woman  makes  a  claim  that  her  husband 
has  falsely  accused  her  of  adultery,  and  the  husband  denies  having  made 
such  an  accusation ;  and  the  woman  establishes  proof  by  witnesses  to  sub- 
stantiate her  claim  that  the  husband  has  made  the  accusation  of  adultery, 
then  the  Kazee  shall  order  them  both  to  make  Lian  between  them  accord- 
ing to  us  (the  followers  of  the  three  Imams) ;  because  what  is  proved  by 
{Byyuna  or)  proof  by  witnesses  is  similar  to  what  is  proved  by  eyesight : 
(here  the  witnesses  having  proved  that  the  husband  had  made  the  false 
accusation,  this  proof  is  just  as  good  as  if  he  had  admitted  the  accusation, 
and  as  if  he,  the  Eazee,  had  been  himself  an  eye-witness  of  the  accusation). 

2829.  (1929.)  And  if  both  the  husband  and  wife  have  made  Lian, 
and  have  each  performed  their  respective  part  in  the  Lian,  the  Kazee 
shall  effect  separation  between  them ;  and  this  separation  (by  the  Kazee) 
shall  amount  to  (a  bain)  divorce ;  and  the  woman  shall  be  entitled  to 
maintenance  and  residence  as  long  as  she  remains  in  her  Iddut  And 
until  the  Kazee  shall  have  effected  a  separation  between  them,  the  woman 
shall  continue  to  be  his  wife,  according  to  us. 

S830.  (1930.)  And  if  the  husband  repudiates  the  pregnancy  of  his 
wife,  saying  that  the  pregnancy  is  due  to  adultery  (instead  of  saying  <<  Thou 
hast  committed  Zina  "  or  of  saying  after  delivery,  **  The  child  born  is  not 
mine,")  then  according  to  us  (the  rule  is  that)  the  husband  shall  not  at  pre- 


868  tHi  TAaoRi:  law  uectvres,  1891-92. 

Beat  (or  immediatelj)  be  liable  to  panishment  (for  Kuzuf  (Mr  f  abelj  aectniog 
hia  wife  of  adultery)  and  shall  not  (be  obliged)  to  (make)  lAan  (beoause  it 
cannot  be  said  with  certainty  that  there  is  pregnancy  at  all  at  the  time 
the  husband  denies  the  pregnancy  as  being  due  to  him) ;  and  if 
she  gives  birth  to  a  child,  at  (or  after)  six  months  (from  the  time  of 
the  repudiation  of  the  pregnancy)  then  the  same  rule  shall  hold  good,  on 
account  of  the  possibiliirir  that  the  child  has  been  conceived  after  the 
repudiation  ;  but  if  she  gives  birth  to  a  child  in  less  than  six  months 
(from  tha  date  of  the  repudiation)  then  the  same  rule  holds  good  according 
to  Aboo  Haneefa,  on  whom  be  peaoe ;  but  according  to  the  view  taken  by 
his  two  disciples  the  Kazee  shall  (in  this  last  case)  order  the  parties  to 
make  Lian  (after  the  birth  of  the  child,  which  has  taken  place  less  than  six 
months  after  the  repudiation  of  the  pregnancy  as  aforesaid) ;  and  the  Eazee 
shall  make  the  child  obligatory  on  the  woman  (that  is  to  say,  he  shall 
assign  the  child  to  the  woman,  and  the  child's  nuefinh  shall  not  be  established 
in  the  husband,  but  the  child  shall  only  be  the  mother's  child). 

[See  Hidaya,  Volume  II,  page  823,  and  Shureh  Yikaya^  Volume  II, 
page  90.    There  is  a  great  deal  of  difference  between  the  husband  attri- 
buting Zina  to  his  wife  and  denying  the  paternity  of  the  child  actually 
born,  and  between  his  denying  the  pregnancy  as  being  due  to  him»    By 
attributing  Zina  and  denying  the  paternity  of  the  child  actually  bom,  the 
husband  makes  Kuvuf  to  a  certainty ;  but  by  denying  the  pregnancy,  the 
husband  does  not  necessarily  make  Kuzuf\  because  there  is  no  certainty 
that  what  is  apparently  a  pregnancy  is  really  a  pregnancy.    But  Aboo 
Yusoof  and  Mahomed  say,  that  although  at  present  there  is  no  certainty 
regarding  the  pregnancy,  still  if  the  child  is  bom  within  six  months  from 
the  date  of  the  denial  of  the  authorship  of  the  pregnancy  by  the  husband, 
then  it  is  certain  that  at  the  time  of  such  denial  there  was  real  pregnancy  ; 
therefore  such  birth  within  six  months  shews  that  there  was  no  doubt 
that  the  accusation  or  statement  made  at  the  time  did  amount  to  Kwsuf; 
that  is  to  say,  that  the  husband  in  denying  the  authorship  of  the  pregnancy 
really  made  Kuzuf;  the  Kazee,  therefore,  when  this  certainty  is  attained, 
that  is,  after  delivery,  shall  order  a  Idan  to  be  made  between  the  parties. 
But  Aboo  Haneefa  says,  that  although  actual  delivery  within  six  months 
from  the  date  of  the  denial  shows  that  at  the  time  of  the  denial  th^^  was 
pregnancy,  but  this  certainty  is  only  attained  after  delivery  and  not  before 
delivery,  and,  therefore,  the  denial  of  pregnancy  does  not,  at  the  time  of 
the  denial,  amount  to  Kuxufi  and  that  if  the  denial  should  amoont  to 


Ewuf  lifter  delirety,  then  it  would  amoQiit  to  xEkaking  Kuzuf  de^ndent 
on  a  condition,  just  as  if  the  husband  were  to  say  to  his  wife,  <*  If  thou 
hast  pregnancy  it  is  not  from  me/'  and  it  is  not  permissible  to  make 
Kuzuf  dependent  on  a  condition,  for  reasons  explained  in  the  Inaya, 
Yolume  IJ,  page  259]. 

2831.  (1981.)  A  woman  gives  birth  to  two  children  of  one  womb  (or 
6iiitin;  that  is  to  say,  she  gives  birth  to  twin  children;  twin  children 
are  defined  to  be  children  between  whose  births  from  the  same 
mother  there  is  an  interval  of  less  than  six  montbs) ;  and  the  hus- 
band admits  the  first  child  and  denies  the  second:  the  Eazee  shall 
make  the  (second)  child  obligatory  on  the  father  (that  is,  the  nusuh  of 
both  shall  be  established  in  the  father ;  because  when  he  has  admitted 
the  first  child  to  be  his,  then  the  second  child  born  in  less  than  six  months 
must  also  be  his)  and  shall  order  him  to  make  Zian  with  the  woman  (for 
the  purpose  of  completing  the  Lian  for  the  attainment  of  its  pri- 
mary object  as  laid  down  in  paragraph  1929);  and  if  he  denies  the 
first  child  and  admits  the  second,  both  children  shall  be  obligatory 
on  the  father,  and  he  shall  (in  this  case)  be  liable  to  the  punish- 
ment for  making  a  false  accusation  of  adultery  (because  by  admitting 
the  second  child  he  himself  falsifies  his  statement  regarding  the  first). 
And  if  he  denies  both  the  children,  and  one  of  the  children  dies  before 
Lian,  then  the  husband  shall  make  Lian  as  regards  the  child  who  is 
alive  (that  is,  the  living  child  shall  be  referred  to  in  the  oath  which 
constitutes  litan,  the  husband  saying,  '^  It  is  not  my  child '^  and  both  shall 
be  considered  to  be  his  children. 

So  also  if  she  gives  birth  to  two  children,  ono  of  them  having 
been  born  dead  (or  still-born),  and  the  husband  denies  both  the  children  : 
both  the  children  shall  become  obligatory  on  him,  and  the  Kazee  shall  order 
both  the  husband  and  the  wife  to  make  Lian  as  regards  the  living  oixilA. 

And  if  the  wife  gives  birth  to  one  child,  and  the  husband  denies  the 
child,  and  the  Eazee  directs  the  husband  and  wife  to  make  Idan  as 
between  them,  and  then  the  woman  on  the  next  day  (after  the  Xrion)  gives 
birth  to  another  child,  both  the  children  shall  become  obligatory  on  the 
husband,  and  tiie  (previous)  Lian  shall  (continue  to)  be  in  force.  And  if 
the  hnaband  after  this  says,  <'  Both  of  them  are  my  children/'  he  shall 
be  believed,  and  he  shall  incur  no  liability  to  punishment 


^58  THE  TAOOBB  LAW  LECTDBBS,   1891-92. 

[Note. — I— Until  the  master  makes  a  claim,  the  first  child  of  a  slave 
girl  hj  the  master  does  not  belong  to  him,  the  master,  i.e.,  the  child's 
ntufub  is  not  established   in  the  master  until  he   makes  a  Daitout,  or 
claims  the  child  to  be  his :  and  his  silence  does  not  amount  to  a  Daiwut 
On  this  point,  see  Volume  II,  Tagore  Lectures,  page  43,  paragraph  101. 
But  the  child  born  in  a  marriage  state  belongs  to  the  husband  without 
a  Daiwut :  and  he  must  expressly  repudiate  the  child  if  his  object  is  to  cnt 
off  the  child's  numb  from  him  :  his  silence,  therefore,   extinguishes    his 
right  to  repudiate  the  child ;  for  this  proposition,  see  Futh-ool  Kadeer, 
Volume  II,    page    817,    line  14,  Ac.    II — The  repudiation  of    a  child 
born  in  wedlock  must,  in  order  to  be  effective,  be  made  at  the  time  of  the 
birth  of  the  child  or  within  the  time  of  congratulation^  which  time  is  either 
three  or  seven  days :  there  are  other  details  in  this  matter.    For  this,  see 
Puth-ool  Kadeer,  Volume  II,  page  317,  line  16,  &c.    Ill — After  the  repu- 
diation, the  husband  must  make  Liariy  in  order  that  the  nusiih  of  the  child 
repudiated  should  be  cut  off  from  him.    For  this  proposition,  see  Volume  I, 
Futawai  Alumgeeri,  page  703,  lines  9  to   13.    IV — If  a  child  is  bom^ 
and  the  husband  repudiates  it,  and  the  child  then  dies,  the  numb  of  that 
child  cannot  be  extinguished  from  the  husband,  because — and  for  this  pro- 
position, see  Futh-ool  Kadeer,  Volume  I,  page  318,  line  1 1  — the  child  by  its 
death  has  ceased  to  exist,  and  has  become  Moosiughni  or  relieved  from  every 
want  or  need  for  which  the  child  could  look  up  to  the  father,  such  as  main- 
tenance, &c.,  the  reason  for  extinguishing  the  nvsub  being  to  extinguish 
the  father's  liability  to  maintenance,  &c. ;  and  therefore  the  child's  nusub 
from  the  father  shall  not  be  extinguished  in  such  a  case.    V — If,  there- 
fore, twins  are  born,  and  both  are  repudiated  after  their  birth,  and  one  child 
dies  before  Lian  ;  or  if,  of  the  two  children  born  as  twins,  one  is  still-born, 
the  womb  of  the  living  child  shall  not  be  extinguished  after  the  Liany  because 
the  dead  child's  immb  not  being  extinguished  as  stated  above,  the  numb 
of  the  living  child  cannot  be  extinguished,  both  having  been  born  of  one 
bvbim  or  womb.      See  paragraph  365,  Volume    II,    page    138    of    the 
Tagore  Lectures.    VI — If  the  husband  denies  the  paternity  of  a  child, 
and  a    Lian   also   is    made  in  reference  to  that  child, — which   Lian 
requires   the    extinguishment    of    the  womb  of  the    child, — and  if    on 
the    second  day  from    the   Lian^    another    child    is  bom,  within    six 
months  from    the    birth    of    the    first  child,  thus   shewing    that    the 
children  are,  in  reality,  twins,  then,  whether  the  second  child  is  repudiated 
by  the  husband  or  not,  the  nusub  of  both  the  children  shall  be  e^tab* 


ON  LIAN.  859 

lished ;  becanse— see  Fath-ool  Kadeer,  Volume  11,  page  318,  line  13 — 
the  extinguisher  or  Katai  of  nvsvh  being  Lian^  and  no  Lian  having  been 
found  in  reference  to  the  second  child,  the  second  child's  numb  becomes 
established  in  the  father, —  and  no  fresh  Lian  in  reference  to  the  second 
child  can  take  place,  because  the  woman  has  ceased  to  be  his  wife  hj  reason 
of  the  first  Lian,  the  Iddut  even  having  expired  with  the  birth  of  the  second 
child — therefore  the  9itMt«&  of  the  first  child  shall  also  be  established  in 
spite  of  the  Liany  because  both  the  children  were  conceived  in  the  same 
womb:  the  first  Lian  is  not  extinguished  but  continues  to  subsist; 
what  becomes  extinguished  is  the  consequence  or  the  result  of  the  first 
Lian  on  the  first  child.] 

2832.  (1932.)  And  as  long  as  both  the  parties  making  the  Lian  con- 
tinue (after  the  decree  of  the  Eazee)  in  their  Lian  (that  is,  as  long  as 
fchey  persist  in  the  truth  of  their  Lian^  and  do  not  withdraw  their 
statements,  and  as  long  as  their  capacity  and  fitness  for  Lian  subsist), 
i6  is  not  competent  to  the  husband  to  marry  the  wife.  And  if  the  hus- 
band, who  has  made  the  Lian,  falsifies  himself  after  making  the  Lian, 
it  is  competent  to  him  to  marry  her  according  to  Aboo  Haneefa  and 
Mahomed,  on  whom  be  peace.  [Note.  There  is  a  tradition  of  the 
prophet  to  the  effect  that  the  Mootlainan,  or  those  who  have  made  Lian, 
cannot  be  joined  together  for  ever :  Aboo  Haneefa  and  Mahomed  say, 
that  the  parties  are  forbidden  to  come  together  as  long  as  they  come 
under  the  description  of  ^'  Mootlainan  or  those  who  have  made  Lian ;  " 
but  as  soon  as  that  description  ceases  to  be  correct  and  apposite 
in  regard  to  them  and  becomes  inapplicable  to  them,  they  can  marry 
each  other.  But  Aboo  Yusoof  holds  that  they  cannot  for  ever  many 
each  other;  and  the  unlawfulness  or  Hoormut  which  comes  to  be 
established  between  them  by  reason  of  the  Lian  is  like  that  of  fosterage, 
viz.,  perpetual  unlawfulness.  See  Puth-ool  Kadeer,  Volume  II,  page  812, 
line  11]. 

2833*  (1983.)  And  so  if  the  woman  after  having  made  the  Zian  (be- 
comes incapacitated,  and)  gets  into  a  state  so  that  if  that  state  had  existed 
before,  the  Lian  could  not  have  been  made  between  them  (see  para- 
graph 1919);  as  for  instance,  if  she  commits  adultery  or  what  is  similar 
to  this,  it  shall  be  competent  to  him  to  marry  her. 

2884.  (1934.)  And  if  the  woman  confirms  her  husband,  before  he 
makes  the  Lian,  the  Lian  shall  drop  {i.e.,  the  Eazee  shall  not  direct  the 


360  THB   TAOORB    LAW   LICTOBKS,   1891-92. 

pftrties  to  make  Lian  between  tbem),  and  the  woman  shall  not  be  liaUe  to 
punishment. 

8835.  (1935.)  And  when  the  husband  has  made  the  Zian  (onlj) 
thrice  (instead  of  five  times)  and  the  woman  has  done  the  same,  and  the 
BTazee  has  effected  a  separation  between  them,  the  separation  so  effected 
by  him  shall  be  valid,  and  the  majority  of  the  number  (that  is,  three) 
shall  be  held  to  take  the  place  of  the  full  number  (that  is,  five) ;  but  the 
Eazee's  action  shall  amount  to  a  departure  (and  a  dereliction)  from  the 
mode  prescribed  by  the  SoannuU 

2886.  (1986.)  And  if  the  Eazee  effects  a  separation  before  the 
greater  number  of  the  Lian  has  been  made  between  them,  the  separation, 
effected  by  the  Eazee,  shall  be  void. 

Qod  knows  best. 


CHAPTER  VII. 

Section  I. 
On  Iddut. 

[Note. — (I).  See  Door-ool  Mookhtar  as  in  Budd-ool  Moohtar, 
Volume  II,  page  984,  &c.  According  to  the  Dictionary  TddtUf  means  to 
count,  and  Ooddut  means  to  prepare  and  make  arrangement  for  something. 
Idduty  according  to  the  Sheray  means  waiting  such  as  becomes  obligatory  on 
a  woman  (page  985)  or  on  a  man,  when  the  cause  of  waiting  is  found:  and 
the  occasions  for  a  man  to  wait  are  (A)  twentj/y  and  they  are  mentioned 
in  the  Ebuzana :  and  the  sum  and  substance  of  what  is  stated  in  the 
Ehuzana  points  to  this  that,  whenever  it  is  unlawful  that  a  woman  should 
be  married  to  a  man  (page  986)  on  account  {B)  of  some  prohibition^  it  becomes 
necessary  that  the  prohibition  should  be  removed  (in  order  that  the  mar- 
riage when  it  takes  place  should  be  valid) ;  as  for  instance,  the  marriage 
of  the  wife's  sister  or  of  four  women  in  addition  to  the  wife. 

(II).  And  according  to  its  technical  meaning,  Iddut  means  waiting, 
which  becomes  obligatory  on  a  woman  or  on  the  guardian  of  a  female  minor 
at  the  time  when  the  marriage  becomes  {Zail  or)  broken ;  and,  therefore, 
there  is  no  Iddut  for  Zina :  or  when  the  Shoohha  or  doubt  of  marriage  be- 
comes {Zail  or)  removed ;  as  for  instance,  a  Fasid  or  invalid  marriage  and 
(for  instance)  a  woman,  who  has  been  sent  to  a  man  different  from  her 


OH  IDDUT.  .861 

husband (page  999).  And  (C)  the  Iddut  of  a  woman  who  has  been 

married  by  a  FaM  (or  invalid)  marriage  (is  reckoned  hj  menses)  ;•—  (D) 
and  therefore  there  is  no  Iddut  in,  a  hatil  or  void  marriage;  and  so  also 
there  is  no  Iddut  in  a  marriage  which  is  dependent  before  {i,e.  on)  per- 
mission ;  (E)  Ikhtear  j^U  (page  1,000)  although  safety  (or  Suwab)  lies 
in  holding  that  there  should  be  Iddut  and  wusvb  (in  a  dependent  marriage), 
see  Bnhnr— andthe  Ie2(Zi«^  of  (F)  a  woman  with  whom  sexual  intercourse 
was  h(^d  from  dovht  (is  reckoned  by  menses),— (G)  and  to  that  dass  belongs 
the  marriage  of  a  woman  who  is  the  wife  of  another  when  the  (new)  husband 
does  not  know  the  condition  of  that  woman  (that  she  is  the  married  wife 

of  another) •  — are  reckoned  by  menses. 

(III).    Budd-ool  Moohtar,  Yolume  II,  page  985  (comments  as  follows) : 
the    expression    (A)    "twenty J'     And    these    are— (1)     the    marriage 
with  the  wife's  sister;  or  (2)  with  her  father's  sister;  or  (3)  with  her 
mother's  sister ;  or  (4)  with  her  brother's  daughter ;   or    (5)    with  her 
sister's  daughter ;    or   (6)    with  a  fifth  wife ;  or  (7)  to  bring  a  slave  girl 
over  a  free  woman ;  or  (8)  to  marry  the  sister  of   a  woman  with  which 
woman  intercourse  was  had  in  a  fasid  or  invalid  marriage,  or  in  a  doubt 
of  marriage ;  or  (9)  to  marry  a  fourth  woman  in  a  like  way ;  that  is,  if  a 
man  has  three  wives,   and  he  has  intercourse  with  another  woman  in  a 
fasid  marriage  or  in  doubt  of  marriage^  then  it  is  not  competent  to  him  to 
marry  a  fourth  wife  until  the  expiry  of  the  Iddut  of  the  woman  with  whom 
he  has  had  such  intercourse ;  or  (10)  the  marriage  with  a  woman  who  is  ob- 
serving her  Iddut  with  reference  to  a  stranger  ({.e.,  with  reference  to 
another  man);   but  a  man   can  marry  his  own  wife  who  is  observing  her 
Iddui  on  account  of  (divorce  from)  him ;  or  (11)  the  marriage  with  one's 
own  wife  who  has  been  thrice  divorced,  that  is  to  say,  before  the  Moo- 
huUil^s  aid  has  b^en  brought  into  requisition ;  or  (12)  to  have  sexuid 
intercourse  with  a  slave  girl  whom  a  man  purchases,  before  her  period 
of    parity   {istibrai);  or  (13)  to  have  sexual  intercourse  with  a  woman 
who  is  pregnant  from  zina,  if  a  man  marries  her,  that  is  marries  her  before 
delivexy;  or  (14)  to  have  sexual  intercourse  with  a  Huruby  woman  when  she 
becomes  a  Moslem  in  the  Dar-ool  Hurub  and  makes  Hyrut  towards  us,  and 
she  ia  in  a  state  of  pregnancy  and  a  man  marries  her;  that  is,  to  have 
sexual  intercourse  before  delivery  (is  prohibited) ;  or  (15),  a  Musbeea 
or  a  woman  who  has  been  taken  a  prisoner  (in  the  Dar-ool  Hurub,  on  the 
occasion  of  a  Jehad)^  cannot  be  had  sexual  intercourse  with,  until  she  gets 
her  menses,  or  until  the  expiry  of  one  month  if  she  gets  no  courses  by 
46 


802  THB   TAGOBV   L4W  IffCfriTRRS,    1891*92. 

reason  of  being  too  young  or  too  old ;  or  (16)  the  marriage  of  a  M<H)kch 
twba  -mih  her  Monla  antO  she  gets  her  freedom;  or  (17)  sexual  intereonrse 
with  a  Mookaialha  bj  her  Honla  until  she  becomes  ineapable  of  eamisffg  W 
freedom  2  or  (18)  the  marriage— with  an  infidel;  or  (19)  wiHi  a  Motfrtndf 
or  an  apostate  from  Zslam ;  or  (20)  with  a  Mn^oosee  — is  not  Tslid  vniil 
tbe  infidel,  or  the  Moartml  or  the  MujooMs  becomes  a  Moslem. — ^Bahur. 

(IV).  Rudd-ool  Moohtar,  Volume  II,  page  986.  The  expression  (B), 
**  on  account  of  some  prohibition;  "  such  for  instance  as  the  right  of  another 
arising  from  marriage  or  from  Iddut;  and  such  for  instance  as  the  bringing 
of  a  sTaTo  girl  over  a  free  woman ;  and  such  for  instance  as  exceeding  the 
number  four,  and  the  joining  together  of  the  Maharlm ;  or  when  the 
aid  of  the  Moohullil  is  necessary,  or  when  it  is  necessary  to  wait  for 
the  purification  of  the  womb  (in  the  case  of  the  purchased  slaTe  girl). 

(V).  Rudd-ool  Moohtar,  Volume  II,  page  999.  The  expression  (C), 
^*and  the  Iddut  of  a  woman  who  has  been  married  by  a  JPhsid  marriage i**  This 
is  a  woman  who  has  been  married  without  witnesses.  Also  the  marriage 
with  tbe  wife  of  another  without  a  knowledge  of  the  fact  that  she  is 
(already  somebody  else's)  wife  ;  and  the  marriage  with  a  Maharim  with 
the  knowledge  of  her  being  unlawful,  is  Fasid  according  to  Aboo  Haneefa, 
but  his  disciples  have  differed  from  him  (holding  that  the  marriage  is 
ftaMI)— Futuh. 

(VI).    Eudd-ool  Moohtar,  Volume  II,  page  999.    The  expression  (D) 
"  and  therefore  (here  is  no  Iddut  in  a  batil  or  void  marriage.**    As  regard, 
this,  it  is  to  be  stated  that  there  is  no  difference  between  Fasid  and  BaiU 
in  the  matter  of  marriage,  contrary  to  the  case  of  a  sale,  as  mentioned 
in  (the  Book  on)  marriage  by  Fatuh  and  by  the  Manzooma  which  will  be 
noticed  later  on.  But  it  is  stated  in  the  Bahur  (ool  Baik)  from  the  Moojtnba 
that  every  marriage  where  the  Ooleemas  have  differed  in*regard  to  its  vali- 
dity, as  for  instance,  a  marriage  without  witnesses,  sexual  intercourse   in 
such  a  marriage  renders  Iddut  obligatory ;  but  that  with  regard  to  marri- 
age with  the  married  wife  of    another    and   with  the  wife  of   another 
who  is  observing  her  Iddut^   sexual    intercourse  in  such  a   marriage 
does  not  render  Iddut  obligatory,  if   tbe  husband  knows  (at  the  time 
of  the  marriage)  that  the  woman  is  the  married  wife  of  another  or  is 
observing  her  Iddut  from  another ;  because  no  person  admits  the  validity  of 
such  a  marriage,  and,  therefore,  the  marriage  shall  be  held  as  not  hanng^  at 
all  taken  place;  and  that,  therefore,  it  is  necessary  that  a  distinction  sTionId 
be  made  between  a  Fasid  and  a  Batil  marriage  in  regard  to  (the  necessity 


ON   IDDUT.  863 

for  the  observance  of)  the  Iddut;  and  that  for  this  reason  punishment 
is  obligatory  (when  the  man  marries)  with  the  knowledge  of  its  unlaw- 
fulness, by  reason  of  the  intercourse  in  such  a  case  being  a  mere  Zina, 
as  stated  in  the  Einya  and  other  books  I  say  that  a  difficulty  (or 
objection)  arises  against  the  Buhur-ool  Baik,  that  the  marriage  with  a 
Maharim,  with  the  knowledge  that  the  woman  is  not  lawf  ul,  is  Fasidy  as 
yon  know,  although  no  Mussulman  admits  of  the  validity  of  a  marriage 
with  a  Maharim.  And  it  is  already  laid  down  in  the  Chapter  on  Dower 
that  sexual  intercourse  in  a  Fatid  marriage  renders  Iddut  obligatory,  iHid 
establishes  the  nu8uh.  And  the  Buhur-ool  Saik  (itself)  has*  given  as 
instances  of  a  FaM  marriage,  a  marriage  which  takes  place  without 
witnesses  and  a  marriage  with  two  sisters  at  once,  and  a  marriage 
with  one  sister  in  the  Iddut  of  another  sister,  and  a  marriage  with  a 
woman  who  is  observing  her  Iddut  from  another  man,  and  a  marriage  with 
a  fifth  during  the  Iddut  of  the  fourth  wife,  and  a  marriage  with  a  slave 
girl  upon  a  free  woman. 

(VII).  Eudd-ool  Moohtar,  Volume  II,  page  1,000.  And  his  expres- 
sion, (E)  Ikhtear.  And  similar  to  it  is  to  be  found  in  the  Mooheet  in 
which  the  argument  is,  that  nusuh  is  not  established  by  it  {i.e.y  by  the 
Nikah-i-Mauhoof)  because  the  Nikah  is  Moukoof  (or  dependent);  and 
therefore  the  NikakhM  not  been  contracted  in  regard  to  the  results  {Hookm) 
which  arise  from  the  Nikah ;  therefore  the  Nikah  shall  not  have  the  effect 
of  producing  Shoohha-irwUk. 

(VTII).  Rudd-ool  Moohtar,  Volume  II,  page  1,000.  And  his  expression, 
(F)  <'a  woman  with  toJiam  sexual  intercourse  was  had  from  doubt"  As  for 
instance,  a  woman  who  has  been  sent  to  a  man  different  from  her  husband ; 
and  for  instance,  a  woman  who  was  found  in  the  night  in  the  firash  or 
bed  of  the  man  when  he  (the  man  in  the  latter  case)  claims  a  doubt  (that 
is,  the  man  says  I  found  her  in  my  bed,  and  I  thought  she  was  my  wife :  if 
he  believed  she  was  not  his  wife,  the  connexion  was  that  of  zina  ;  if  he 
olaims  doubt,  and  says  I  thought  perhaps  she  may  be  my  wife,,  this  is  doabt 
of  ownership).    So  is  it  laid  down  in  the  Futuh. 

(IX).  And  in  the  Nuhur  it  is  stated  in  a  discussion  that  to  this  class 
belongs  a  woman  as  regards  whom  Futwa  was  asked  from  the  Ooleemas, 
the  case  stated  being  that  of  a  man  who  purchases  a  slave  girl,  and  has 
sexual  intercourse  with  her,  and  the  woman  afterwards  proves  that  'she 
had  been  initially  a  free  woman — •    And  this  is  clear. 


364  THE   TAGOBB  I.AW   I/SCTUSES^   1891-92. 

(X).  And  to  tbis  clast  belongi»  tli«  eas^  where  a  man  has  seMual  iiiier- 
course  with  bis  own  Motudda  from  doubt ;  and  the  case  of  a  Motuddid,  will 
presently  be  discuesed. 

(XI).  And  to  tbis  class  belongs  what  is  related  in  the  books  of  Shafei 
when  a  woman  ********** 
whether  she  considers  ********* 
*  ;  she  is  obliged  to  observe  IddMy  as  a  Mouiooa  from  doubt  i«  obliged 
to  observe  Iddut,  It  is  said  in  the  Bahur,  "  I  have  not  found  #hait  our 
As'habs  ( Abdo  Haneefa,  Mahomed-  and  Aboo  Yusoof)  have  laid  down  in 
this  matter ;  although  the  rules  of  the  Shera  are  not  inconsistent  with 
what  is  held  by  Shafei ;  because  Iddut  is  obligatory  for  the  purpose  of 
ascertaining  whether  the  womb  is  pure.'' 

(XII).  BuddK>ol  Moohtar,  Volume  IT>  ^ag^  1,000.  And  iThe  ezpres- 
sion,  (Q-)  ^^  to  that  cUbs^  heUmgs  tii^emarHdgeof  a  woman  toho  is  ffim  wife  of 
anotiier"  That  is,  to  the  clas»  whet^  sexulil  int^odurte  is  had  from 
doubt. 

(XIII).  It  is  stated  in  the  Nuhur,  '^  And  the  author  of  theShuruh-i- 
"  Sumurkundy  (a  Commentary  on  the  l?unweer-ool  Absar)  has  brought  the 
<<  Munkooha  of  another  under  the  ifoutooa  from  doubt ;  because,  says 
*^  the  author,  ^Moutooa  from  doubt  means  either  from  doubt  of  ownership 
" '  i.e.,  milky  or  doubt  of  contract,  i.e.,  marriage ;  in  this  way  that  a 
^^ '  woman  different  from  the  wife  is  sent  to  the  husband,  and  he  has 
^^  ^  intercourse  with  her ;  or  when  a  man  marries  the  Munkooha  of  another 
^^^man  without  knowing  her  position:'  and  thou  knowest  that 
<*  to  include  the  MufihiDoHa  of'  abothef  man  under  the'  elafe(B  of  Mouiooa 
«*  from  doubt,  shews  the  redundancy  of  the  olasr  of  Munkooha- fawiduii  ; 
<' because  there  is  nodoubC  in  thiathat^tiie  .MuyiAooAetby  a  Fcundmwvmge 
<^is  a  woman  with  yn\lom  sexuial  interdouree  tras  had  from  doubt  of 
<* marriage;  nay  rather  the  Mimkooha^  by  a-  Fa9id  marriage  can  be 
^^betteif'  said  to  involve  dbiibt  of  mairiage  than  the  Munkooha  of 
<<  another  man ;  because' the  condition  that  thet«  should  be  witnessMto  a 
<<  marriage  is  one  in  regard: to  which  tfaer^  is  a  diffei^nce  amorigat  tiie 
"  Oole&mas ;  but,  on  the  contrary,  there  is  na  difference  that  Uie  womiai{ta 
"be  married)  should  be  free  from  the  marriage  of  another." 

(XIV).  When  thou  hast  known  this,  then  thou  must  also  know  that 
the  commentator  (  i.e.,  Door-ool  Mookhtar)  is  the  follower  of  that  which  is 
in  the  Shuruh-i-Sumurkundy,  and  not  an  opposer  of  the  same ;  because  if 
he  intended   to  oppose  it,  he  would  have  mentioned    his    expression 


ON   IDDUT.  365 


(6)  ''Minho*'  (or  to  that  class  belongs,)  np  to  the  end^  after  his  expres* 
sioD,  (C)  *^  MimkoolM,  from  Fasid  marriage/'  and  not  after  the  expression 
(P)  "  and  Moutooa  from  doabt."    Take  note  of  this. 

(XY).  And  it  is  possible  to  answer  on  behalf  of  the  Sumarkandy  in 
this  way  that  the  Door-ool  Mookhtar  has  placed  the  Munkooha  hj  way  of 
a  Fluid  marriage  in  a  class  where  a  condition  of  validity  is  wanting  after 
the  existence  of  the  MuhuUeeat  (or  fitness  of  the  subject  matter) ;  as  for 
instance,  the  Nikah^i- Mowukkut,  and  the  Nikah  without  witnesses.  But  as 
regards  the  Munkooha  of  another,  she  is  not  at  all  a  Muhul  (or  fit  subject) 
of  NikaJh ;  because  it  is  not  possible  that  there  should  be  a  union  of 
the  ownership  of  two  persons  at  one  and  the  same  time  as  regards 
one  and  the  same  person,  and,  therefore,  marriage  with  the  Munkooha  of 
another  does  not  create  even  fand  ownership ;  although  that  marriage 
does  create  doubt  (and,  therefore,  she  comes  under  Moutooa  bit  Shoobha). 

(XYI).  And  the  Door-ool  Mookhtar  is  a  great  follower  of  the  Nuhur, 
and  he  might  have  disagreed  from  the  Nuhur  for  the  reason  mentioned  by 
me  (that  in  a  Fasid  marriage,  the  Muhul  has  the  capacity  of  marriage,  but 
a  condition  of  validity  is  wanting:  but  the  Munkooha  of  another  is  not 
the  Muhul  with  the  capacity  of  marriage:  but  Iddut  is  obligatory  from 
Shoobha  of  marriage)]. 

8887«  (1937.)  Women,  who  must  observe  the  Iddui  (or  Motudda 
women)  are  of  three  classes :— I  Those  who  have  been  divorced, — II  Those 
with  whom  sexual  intercourse  was  had  from  doubt, — III  And  those  whose 
husbands  have  died. 

288&  (1938.)  And  the  observance  of  Iddut  is  sometimes  with  refer- 
ence to  menses,  and  sometimes  with  reference  to  months,  and  sometimes 
with  reference  to  the  delivery  or  the  miscarriage  of  a  child,  entirely  or 
partially  formed. 

2889.  (1939.)  As  regards  the  divorced  women  :  A  man  marries  a 
woman  by  a  valid  (or  Jai»)  marriage,  and  divorces  her  after  having  sexual 
intercourse  with  her,  or  after  a  valid  retirement :  the  woman  is  bound  to 
observe  the  Iddut. 

2840.  (1940.)  And  the  explanation  of  what  constitutes  a  valid 
retirement  has  been  given  in  the  book  on  Marriage  (see  paragraph  487, 
Volume  III  page  193  of  the  Tagore  Lectures). 


866  THl  TAGOBB  LAtV  UCTUBMB,    1891-92. 

S8il«  (1941*)  And  if  the  retirement  is  inyalid,  then,  if  the  inyali- 
dity  (of  the  retirement)  arises  on  account  of  something  relating  to  the 
Shera,  although  the  husband  is  really  able  to  have  sexual  intercourse,  as 
for  instance,  fasting  of  the  Furz  class  and  the  prayers  likewise  of  the  Furz 
class,  and  Ihram,  then  the  woman  is  obliged  to  observe  the  Iddid^  But 
if  the  invalidity  of  the  retirement  arises  from  the  hosband's  inahiiity  to 
have  actual  sexual  intercourse,  then  the  woman  is  not  obl%ed  to  observe 
the  IddnL  And  so  (shall  the  Iddui  not  be  obligatory)  if  ike  husband 
divorces  her  before  retirement* 

2842.  (1942.)  And  the  Iddut  of  divorce  is  aemetimes  regolated 
with  reference  to  menses,  and  sometimes  with  referenoa  to  moattM,  and 
sometimes  it  is  regulated  (that  is^  determined)  by  delivery. 

2848.  (1943.)  And  if  the  husband  divorces  his  wife  whiht  she  is 
in  her  menses,  it  shall  be  obligatory  on  her  to  observe  her  Iddttt  for  three 
full  menses,  and  this  particular  one  shall  not  be  counted  as  constituting 
part  of  the  Iddui  (not  being  a  full  and  entire  one),  just  as  it  is  not 
counted  in  {leUbrm  or)  considering  whether  the  woman's  womb  is  pare 
or  not  $  (that  is,  if  a  man  purchases  a  slave  girl,  it  is  necessary  for  him  to 
wait  until  she  gets  her  menses,  in  order  to  see  whether  her  womb  is  pure 
and  free  from  foetus ;  and  if  the  purchase  is  made  whilst  she  is  in  her 
menses,  the  particular  menses  counts  for  nothing). 

2844.  (1944.)  And  if  the  marriage  was  invalid  (or  Fasid),  and  the 
Eazee  has  efEected  a  separation  between  the  spouses,  then,  if  the  Eazee 
has  effected  a  separation  before  the  husband  has  had  intercourse  with  the 
wife,  it  is  not  obligatory  on  her  to  observe  the  Iddtd.  And  so  (is  the  TddtU 
not  obligatory)  if  the  Eazee  has  effected  separation  after  the  (mdlwxU  or) 
retirement  (if  the  marriage  was  invalid).  And  if  the  Easiee  has  effected 
separation  after  the  husband  has  had  intercourse  (in  a  case  of  invalid 
marriage)  it  is  obligatory  on  the  woman  to  observe  the  Iddut  from  the 
time  of  the  separation,  and  not  from  the  time  of  the  intercourse. 

So  also  if  the  separation  has  taken  place  without  an  order  of  the 
Kazee  (that  is,  in  a  case  of  invalid  marriage,  in  which  the  husband 
has  of  his  own  accord,  without  the  intervention  of  the  Eazee,  effected 
the  separation,  if  the  separation  has  taken  place  before  intercourse, 
Iddut  is  not  obligatory ;  if  the  separation  has  taken  place  after  retire- 
ment, it  ia  also  not  obligatory ;  but  if  it  has  taken  place  afibev  inter- 
oourse,  it  is  obligatory  from  the  time  of  the  separation,  and  not  from  that 
of  intercourse). 


OW  IDDTO.  867 

5W6.  <W45.)  Aiid  if  the  flivorced  woman  in  a  minor  {who  gets  no 
menseB)  or  is  an  Ayasa,  (that  is  to  say,  a  woman  who  has  attained  an  age 
when  she  is  past  having  meoMs)  and  is  a  free  woman,  then  her  Iddut  is 
three  months. 

2846.  (1046.)  The  learned  lawyers  have  differed,  as  to  what  consti- 
tutes the  limit  of  AyaM  (or  age  when  the  woman  is  past  having  menses) : 
some  of  them  have  said  that  if  the  woman  is  fifty-five  years  of  age  and 
gets  no  menses,  then  she  is  an  Ayasa,  whether  she  is  a  Tnrkish  woman 
(who  has  a  strong  constitution)  or  other  than  a  Turkish  woman :  and  the 
Fatwa  is  given  accordingly. 

2847.  (1947.)  And  a  woman,  who  does  not  get  her  menses,  is  similar 
to  a  minor,  and  she  shall  observe  her  Iddut  reckoned  by  months. 

2848«  (194&)  And  if  she  (that  is,  a  minor,  or  an  Ayasa,  that  is, 
one  who  never  gets  her  menses)  is  divorced  on  the  first  day  of  the  month, 
she  shall  observe  her  Iddut  for  three  Innar  months.  And  if  she  is  divorced 
in  the  midst  of  the  month  (that  is,  after  the  commencement  of  the  month) 
then  Aboo  Haneefa,  on  whom  be  peace,  says,  that  she  shall  observe  her 
Iddul  for  three  months,  counting  the  number  of  days,  each  month  being 
taken  to  consist  of  thirty  days;  and  his  two  disciples  have  said  that  she 
shall  observe  her  Iddut,  after  the  expiry  of  the  remainder  of  the  month  in 
which  she  has  been  divorced,  for  two  months  according  to  the  moon,  and 
shall  complete  the  first  month  taking  it  to  consist  of  thirty  days,  and 
maldng  np  the  number  of  deficient  days  in  the  last  month.  And  cases  of 
this  kind  are  numerous. 

2848.  (1949.)  And  if  the  woman,  observing  her  Iddut  on  account  of 
divorce,  or  on  account  of  sexual  intercourse  from  doubt>  or  on  account  of 
death,  be  pregnant,  then  her  Iddut  shall  be  the  delivery,  whether  she 
was  pregnant  at  the  time  the  Iddut  became  obligatory,  or  she  became 
pregnant  after  such  obligation  arose  {e.g.,  when  she  becomes  pregnant  by 
Zina  or  in  any  other  way). 

8860*  (1950.)  And  if  the  pregnant  woman  (referred  to  in  the  pre- 
ceding paragraph)  is  delivered;,  then  at  the  time  when  the  major  portion  of 
the  body  of  the  child  is  out  of  the  womb,  the  learned  lawyers  have  held  that, 
ia  case  the  dimrce  was  revenible,  the  right  to  make  Bujaat  (or  to  take  back 
the  wi£e>  caoeMs  to  an  end  (oa  acoount  of  the  expiry  of  the  Iddut)  but  it  is  net 
lawfttl  £cMr  her  to  marry  (at  that  time,  that  is,  whilst  the  major  portion  of 


868  THIB  TAOOBB  LAW  LBCTUBVS^   1891-92. 

the  body  of  the  child  is  out  of  the  womb)  oat  of  precaation  (to  allow  the 
IdchU  to  expire  fally  bj  the  entire  body  of  the  child  being  brought  forth). 

2851.  (1951.) .  And  if  the  woman  (referred  to  above)  gives  birth  to 
two  children  out  of  one  womb,  so  that  the  space  of  time  between  their 
births  is  less  than  six  months,  her  Iddut  shall  expire  with  the  birth  of  the 
second  child,  and  not  with  that  of  the  first  child. 

2852*  (1952.)  And  if  the  woman  who  is  observing  her  Iddut  (on 
account  of  divorce  or  intercourse  from  doubt)  is  owned  by  somebody  else, 
whether  she  be  a  slave  (pure  and  simple)  or  a  Moodubbura  or  a  Mookatuba  or 
an  Oamm-i-wtdud,  and  if  she  belongs  to  the  class  of  women  who  get 
menses,  then  her  Iddut  in  the  case  of  divorce  (from  her  husband)  or  in 
the  case  of  sexual  intercourse  (by  somebody  else,  arising  from  doubt),  shall 
consist  of  two  menses :  but  if  she  belongs  to  the  class  of  women  who 
(do  not  get  menses  but  who)  calculate  (their  Iddut)  by  reference  to  months, 
then  her  Iddut  shall  consist  of  one  and  a  half  months ;  and  if  she  is  preg- 
nant, then  her  Iddut  shall  be  her  delivery  from  pregnancy. 

2853.  (1953.)  And  an  Oomm-irwuludy  who  has  been  emancipated 
by  her  Moula  (or  master),  or  whose  Moula  is  dead,  shall  observe  Iddui  for 
three  menses  (like  free  women). 

2854.  (1954.)  And  if  an  Oomm^wultid  has  become  unlawful  to  her 
Moula  for  any  cause  (e.g.,  kissing  with  desire  his  son)  it  is  not  obliga- 
tory on  her  to  observe  Iddut,  until  she  is  emancipated  by  her  master,  but 
the  Moula  shall  lose  the  right  to  call  her  to  his  bed  (Firash)  on  account 
of  the  unlawfulness  (or  Hoormut) ;  so  that  if  she  gives  birth  to  a  child  at 
(or  after)  six  months  from  the  time  of  the  unlawfulness,  the  nutvb  of 
the  child  shall  not  be  established  in  the  Moula,  as  long  as  the  Moula  does 
not  (make  Daiwut  or)  claim  the  child. 

2855*  (1955.)  A  male  slave  of  the  Mookatub  class,  purchases  his 
wife  (that  is,  purchases  the  woman,  who  is  his  wife,  but  who  had  been  a 
slave  before,  from  her  master),  his  marriage  shall  not  become  invalid 
(because  the  purchase  enures  to  the  benefit  of  his  own  master) ;  and  if 
the  Mookatub  is  unable  to  earn  his  own  freedom,  then  the  slave  (the  said 
Mookatub)  and  his  wife  shall  continue  in  their  marriage  state,  becanse 
both  of  them  become  the  property  of  the  Moula ;  but  if  the  MoohcUub 
earns  his  freedom  {i.e.,  earns  money  sufficient  to  get  his  freedom 
according  to  the  stipulation  with  his  master ),  and  becomes  free,  liia 
marriage  shall  become  invalid  (because  now  the  slave  has  become  a  free 


OK  IDDDT*  869 

man,  and  the  woman  becomeB  hia  property)  but  Idiut  shall  not  be 
obligatory  on  the  wife^  because  the  woman  becomes  lawf al  to  her  hus- 
band by  right  of  ownership  (and,  therefore,  the  husband  shall  continue  to 
liye  with  her,  and  there  shall  be  no  occasion  for  the  Idduf). 

And  if  the  Mookatvb  dies  after  purchasing  his  wife;  then  if  he  dies 
whilst  he  is  incapable  of  earning  his  freedom,  his  freedom  becomes  roid 
(that  is,  during  the  last  flickering  of  life,  it  is  to  be  held  that  on  account  of 
incapacity  to  earn  his  freedom,  he  has  reverted  to  his  original  state  of  bond- 
age), and  both  the  slave  and  his  wife  shall  become  the  property  of  the  MouIm 
therefore,  the  slave  so  dying  is  a  man  who  dies  leaving  him  surviving  hia 
wife  who  is  a  slave  of  her  deceased  husband's  master),  and,  therefore,  she 
shall  observe  Iddut  for  two  months  and  Ave  days  (that  is,  half  the  time 
in  regard  to  a  free  woman),  whether  her  husband  has  had  sexual  inter- 
coarse  or  not.  But  if  the  Mookatub  dies  after  satisfying  what  was  stipur 
lated  for  as  the  return  for  bis  freedom,  then  his  marriage  with  his  wife 
shall  become  invalid  (or  fasid),  because  he  became  free  at  the  very  last 
moment  out  of  the  moments  of  his  life,  and  at  that  moment  became  the 
owner  of  his  wife's  person  (and  the  Nikah  became  cancelled);  and  there- 
fore if  he  had  no  sezaal  intercourse  with  his  wife,  then  no  Iddut  is  obli- 
gatory on  her  (because  there  is  no  Iddut  when  the  marriage  is  cancelled 
without  having  been  consummated ;  and  there  is  no  Iddut  on  account  of 
death,  because  the  Nikah  became  cancelled  before  his  death) :  but  if  the 
husband  has  had  sexual  intercourse  with  her,  then,  if  she  has  given  birth 
to  a  child  by  him,  she  shall  observe  her  Iddut  for  three  menses,  because 
sh^  is,  in  such  a  case,  an  Oomm-i-tcniZted,  and  becomes  a  free  woman  by  the 
death  of  her  master ;  but  if  she  has  not  given  birth  to  a  child  from  him, 
then  she  must  observe  Iddut  for  two  menses,  because  the  marriage 
between  them  became  (Fanid  or)  invalid  before  (her  husband  and  master's) 
death. 

2866.  (1956.)  And  the  Iddut  consequent  on  the  death  of  the  husband, 
as  regards  a  free  woman,  is  four  months  and  ten  days.  And  it  is  reported 
from  the  Sheikh-ool  Imam,  the  most  respectable  Aboo  Baker  Mahomed, 
son  of  Fuzul,  on  whom  be  peace,  that  his  view  was  that  the  woman  shall, 
observe  her  Iddut  for  four  months  and  ten  nights,  because  God  the  Most 
High  has  made  use  of  the  word  ten  in  the  male  gender;  and  it  is  the  plural 
of  nights  which  is  spoken  of  by  the  use  of  the  male  gender  (in  the  numbers 
such  as,  three,  four,  Sdo.),  and  the  plural  of  days  is  spoken  of  by  the  use  of 
the  female  gender  (in  the  numbers  such  as  three,  four,  &e.).  Therefore^ 
47 


370  THE  TAQOOT  LAW  LECTlTEBfl,   1891-92. 

according  to  the  view  taken  bj  the  said  Sheikh-ool  Imam,  the  woman's 
iddut  gets  increased  by  one  night,  and  this  view  is  more  consistent  with 
precaution.    (See  Volume  I,  page  10,  Text  62  and  58  within  brackets). 

2867.  (1957.)  And  if  the  woman  is  a  slave  girl  (belonging  to  some- 
body else)  then  her  Iddut  (after  her  husband's  death)  consists  of  two 
months  and  five  days. 

2858.  (1958.)  And  if  a  woman  is  pregnant,  then  her  Iddut  (in  the 
case  of  the  death  of  the  husband  or  of  divorce,  or  in  any  other  case)  is  up 
to  delivery,  whether  she  be  a  free  woman  or  a  slave  girl. 

2859.  (19^9.)  A  boy  (that  is,  an  infant)  dies,  and  his  wife  is  preg- 
nant, and  the  pregnancy  is  visible  (so  that  it  is  quite  clear  that  she  could 
not  have  conceived  from  her^  husband)  her  Iddut  shall  last  up  to  her 
delivery  reasoning  from  weak  analogy  {Istihsan) :  and  Shafei,  on  whom  be 
peace,  says,  that  such  a  woman  shall  observe  her  Iddut  with  reference  to 
months  (calculated  from  the  husband's  death ;  that  is,  she  shall  observe 
the  iddwHn  regard  to  the  husband's  death — the  pregnancy  being  disre- 
garded. See  Fatawai  Alumgeeri,  Volume  I,  page  715,  last  line  citing  from 
the  Hedaya,  nusub  shall  not  be  established  in  the  husband) ;  and  that  is  also 
a  tradition  from  Aboo  Yusoof ,  on  whom  be  peace ;  but  if  such  a  woman  con- 
ceives after  the  death  of  her  (infant)  husband,  then  she  shall  observe  her 
Idduty  according  to  months,  according  to  the  view  taken  by  them  {ue., 
Aboo  Haneefa,  Mahomed  and  Aboo  Yusoof). 

2860*    (I960.)    And  a  woman,  whose  husband  is  dead,  and  who  has 
been  divorced  by  her  husband  (that  is,  where  the  husband,  before  his  death, 
divorces  his  wife),  if  she  inherits  to  her  husband,  who  has  divorced  her 
(that  is,  if  the  divorce  was  given  while  the  husband  was  in  the  last  extre- 
mity of  sickness,  and  the  divorce  was  prompted  by  the  desire  to  disinherit 
the  wife,  and  this  case  is  called  the  case  of  Farr-bU-Talak,  or,  in  other 
words,  the  husband  runs  away  to  avoid  his  wife  getting  the  inheritance)— 
shall  observe  her  Iddut  for  the  longer  of  the  periods  prescribed  on  account 
of  the  iddut  arising  from  divorce  and  death  respectively;  {e,g.,  if  the  woman 
is  in  the  habit  of  getting  her  menses,  and  gets  the  same  regularly  every 
month,  then  her  iddttt  arising  from  her  husband's  death  is  four  months  and 
ten  days;  but  her  iddiU  arising  from  the  divorce  by  her  husband  is, 
under  the  circumstances,  three  menses;  therefore  the  longer  period  is  four 
months  and  ten  days;  and  that  shall  be  the  iddut  in  the  present  case). 


ON  iDDirr.  371 

And  the  explanation  of  this  matter  is,  that  the  woman  shall  obserre 
the  iddtU  for  four  months  and  ten  days  (which  is  the  iddut  for  death)  so 
that  there  should  be  three  menses  in  the  said  period;  so  that  if  she  has  ob* 
serFed  her  iddut  for  four  months  and  ten  days,  and  does  not  get  her  menses 
(that  is,  does  not,  within  the  said  period  of  four  months  and  ten  days,  get 
menses  at  all,  or  does  not  get  three  menses)  then  she  shall  observe  her 
iddut  as  long  as  she  does  not  get  three  menses  (this  is  an  instance  where 
the  iddut  of  divorce  is  the  longer  of  the  two  iddtUs) :  but  if  she  gets 
three  menses  before  the  completion  of  four  months  and  ten  days,  then  her 
iddut  shall  not  expire  until  the  period  of  four  months  and  ten  days  shall 
have  expired. 

And  Aboo  Yusoof,  on  whom  be  peace,  says,  that  the  iddtU  of  the  wife 
of  a  Farr  (or  running  away)  husband,  expires  with  three  menses. 

And  we  shall  presently  discuss  the  cases,  of  Farr  in  a  separate  sec- 
tion.   (See  paragraph  2017,  &c.). 

2861.  (1961.)  So  also  when  a  man  divorces  one  of  his  two  wives 
particularising  the  one  divorced,  after  having  had  intercourse  with  them, 
and  both  of  them  belong  to  that  class  of  women  who  get  menses ;  and 
the  husband  then  dies,  and  it  cannot  be  found  out  which  wife  was 
divorced  as  aforesaid  (there  being  a  dispute  as  to  which  of  them  was 
named  or  pointed  out  and  particularised  at  the  time  of  the  divorce),  it  is 
obligatory  on  each  of  them  to  observe  the  Iddut  for  the  period  prescribed 
for  the  death  of  the  husband,  such  that  three  menses  must  also  be  com- 
pleted  within  that  period. 

2862.  (1962.)  So  also  if  the  husband,  whilst  in  health,  divorces 
thrice  one  of  his  two  wives,  without  particularising  the  one  divorced,  and 
then  dies  before  he  could  explain  himself  (to  which  wife  the  divorce 
applied),  it  is  obligatory  on  each  of  them  to  observe  the  Iddut  of  death, 
so  that  three  menses  must  also  be  completed  within  that  Iddut. 

2863.  (1963.)  So  also  if  the  hasband  says  to  his  two  wives, 
<<  One  of  jou  two  is  divorced  thrice,"  and  afterwards,  when  he  is  in  a 
state  of  sickness  (mtirs;),  he  explains  which  of  the  two  he  had  divorced, 
and  dies  before  the  expiry  of  the  Iddut  of  the  wife  divorced ;  it  is  obliga- 
tory on  her  to  observe  her  Iddut  for  a  period  of  four  months  and  ten  days, 
so  that  three  menses  must  also  be  completed.    (See  paragraph  1960.) 

2804.  (1964.)  Two  Idduts  can  conjointly  expire  within  one  and 
the  same  period,  according  to  us  (t.e.,  Aboo  Haneefa,  Mahomed  and 
Aboo  Yasoof),  whether  the  two  Idduts  are  of  the  same  kind  {e.g.,  when, 


372  TBtB   TAGOEB   LAW  MCTUEEfl,   1891-92. 

for  instance  both  are  to  be  reckoned  with  reference  to  menses)  ^  or  are  of 
different  kinds  {e.g.,  when  one  Iddut  is  to  be  reckoned  with  reference  to 
menses,  and  the  other  with  reference  to  months)  :  an  example  of  the  first 
{i.e.y  where  both  IddtUa  are  of  the  same  kind)  is  this  :<*-When  a  diTorced 
woman  (whose  Idchit  is  three  menses)  has  got  one  menses  (and  two  more 
remain  for  her  to  complete)  and  she  then  marries  another  husband 
(which  she  oaght  not  to  do^  because  she  should  wait  for  the  ezpir; 
of  the  full  term  of  her  Iddui,  and  the  marriage  on  account  of  this  defect  is 
invalid  or  Fasid)  who  has  sexual  intercourse  with  her,  and  then  separation 
is  effected  between  them  (and  the  Iddut  consequent  on  separation  in  a  Fasid 
marriage  is  three  menses)  and  then  after  such  separation  she  gets  two 
menses ;  it  is  competent  to  the  second  husband  now  to  marry  her  (law- 
fully), in  consequence  ot  the  expiry  of  the  Iddut  regarding  the  first 
husband  (here  there  is  Tudakhool  or  merger  in  regard  to  two  menses) ; 
but  it  is  not  competent  to  a  different  man  (or  stranger)  to  marry 
her  until  she  gets  three  menses  from  the  time  of  separation,  on 
account  of  the  Iddut  for  the  second  husband  being  still  due  in 
regard  to  a  different  man.  (Here  both  Idd/ats  are  of  the  same  class, 
being  with  reference  to  menses;  the  IddAit  from  the  first  husband  is 
three  menses,  and  that  from  the  second  husband  is  also  three  menses ; 
one  of  the  menses  due  on  account  of  the  Iddut  of  the  first  husband  had 
already  expired  when  the  second  marriage  took  place ;  and  after  the 
separation  by  reason  of  the  inyalidity  of  the  second  marriage,  two  more 
menses  remained  to  complete  the  first  Iddut,  and  after  those  two  menses  the 
first  Iddui  became  complete :  but  by  this  time  two  menses  due  to  the  Iddut  of 
the  second  marriage  have  also  elapsed  and  have  become  merged  or  made 
Tudakhool  in  those  two  menses;  and  these  two  menses  shall  be  considered 
as  part  of  both  the  Idduts  ;  so  that  the  result  is,  that  after  one  more 
menses,  the  •  woman  becomes  absolutely  free  to  marry  any  man :  and 
after  the  expiry  of  three  menses  from  the  divorce  by  the  first  husband, 
the  whole  of  the  Iddut  from  that  husband  expired  and  two  menses  out  d 
the  three  due  to  the  second  husband  also  expired,  and  at  this  time,  the 
second  husband  could  marry  her,  because  she  had  completed  the  Iddut 
due  to  the  first  husband  and  was  within  that  due  to  the  second  husband  $ 
but  the  man  on  whose  account  a  woman  is  observing  the  Iddut  can  always 
marry  her  within  that  Iddut,  and  therefore  he,  the  second  husband,  could 
marry  the  woman  before  the  expiry  of  one  more  menses,  but  a  stranger 
coal4  not  marry  her  unless  one  more  menses  expires). 


ALTJEBATION   OF  IDDUT.  87? 

Bat  if  the  divorce  given  by  the  first  hasband  was  reversible  (in  the 
case  mentioned  above),  it  is  competent  to  the  first  hasband  to  make 
Eojaaty  or  to  revoke  the  divorce,  before  she  gets  the  two  menses  after  the 
second  husband  separates  from  her,  because  at  such  time,  the  woman  is  still 
in  her  Iddut  (from  the  first  husband),  but  he  shall  not  have  sexual  inter- 
course with  her  until  the  expiry  of  the  Iddut  due  to  the  second  husband. 
(Here  also  there  is  a  merger  or  Tudakhool  in  regard  to  two  menses). 

But  if  the  wife  gets  all  three  menses  after  the  separation  from  the 
second  husband  (that  is,  if  the  woman  immediately  after  being  divorced 
by  the  first  husband  marries  a  second  husband  before  she  has  menses,  and 
he  also  separates  from  her,  and  the  woman  then  gets  three  menses)  then 
both  the  Idduts  shall  expire  at  one  and  the  same  time. 

And  the  illustration  of  the  second  class  (that  is,  where  two  Idduts  of 
different  kinds  expire  at  the  same  time)  is  this  : — a  woman's  husband  dies  ; 
then  another  man  has  sexual  intercourse  with  her  from  doubt,  both  the 
Idduis  shall  expire  (as  follows,  viz,)y  the  first  Jc^u^  shall  expire  after  four 
months  and  ten  days,  and  the  second  Iddut  shall  expire  with  three  menses 
which  the  woman  has  (if  at  all)  seen  (ov  gets)  in  those  months  (that  is,  if 
she  gets  three  menses  within  that  period,  the  second  Iddut  shall  also 
expire}. 


ALTEEATION  OP  IDDUT- 
Section  II. 

ON    THE   TBANSFBR  OP   IDDUT,    (THA.T   IS,   THE   ALTERATION  OF    IDDUT   OF 

ONE  KIND  TO  ANOTHER). 

2866.  (1965.)  When  an  infant  wife,  divorced  by  her  husband,  is 
observing  her  Iddut  (which  is  to  be  reckoned  by  months),  and  she  attains 
her  paberty  (that  is,  she  gets  her  menses)  in  the  midst  of  her  Idduty  she 
shall  recommence  her  Idduty  and  observe  the  same  for  three  menses, 
whether  she  was  irreversibly  or  reversibly  divorced. 

2866.  (1966.)  So  also  in  the  case  of  an  Ayasa  (who  has  attained 
the  age  when  the  menses  cease)  if  she  is  observing  her  Idduty  (which  is 
to  be  reckoned  by  months,  and  which  consists  of  three  months),  and  if 
some  of  the  months  have  expired,  and  if  she  then  gets  her  menses  or 
becomes  pregnant  {e.g.y  where  the  Talah  is  6am,  and  she  being  a 
Mubioota,  the  hnsband  has  intercourse  with  her  from  doabt),  she  shall 
recommence  her  Iddut  for  the  future,  so  that  in  the  case  of  the  menses 


874  TfiE   TAQOBK   LaW   tBCTUBES,   1891-92. 

she  sball  observe  Iddut  for  three  menses;  and  in  the  case  of  the  preg- 
nancy, she  shall  be  in  her  Iddut  until  she  is  delivered. 

2867.  (1967.)  And  if  a  divorced  woman  is  observing  her  Idduty  and 
has  finished  one  or  two  menses^  and  then  her  menses  cease,  she  shall  not  be 
relieved  of  her  Iddut  until  she  becomes  an  Ayasa  (or  reaches  the  age 
when  there  is  no  further  hope  or  likelihood  of  menses) ;  and  when  she  be- 
comes an  Ayasa,  she  shall  recommence  her  Iddut  for  the  future,  reckoning 
the  Iddut  bjr  months.    See  paragraph  1545. 

2868.  (1968.)  And  if  an  Ayasa  observes  her  Iddut,  reckoning  tbe 
same  with  reference  to  months,  and  completes  the  Iddut,  and  marries  a 
second  husband,  and  then  gets  her  menses,  or  gives  birth  to  a  child,  then, 
according  to  those  who  take  the  view  that  a  certain  age  is  fixed  for  an 
Ayasa,  and  that  the  blood,  which  is  seen  after  that  age  is  not  menses,  the 
woman's  marriage  with  the  second  husband  shall  not  be  {Fasid  or)  invalid ; 
(because  the  Iddut  had  expired  before  the  second  marriage,  according  to 
the  rule  laid  down  for  the  Iddut  of  an  Ayasa  woman) :  but  according  to  those 
who  take  the  view  that  no  age  is  fixed  for  an  Ayasa,  *  *  *  * 
*****^*^***^  the  marriage 
of  the  woman  with  the  second  husband  shall  be  invalid  (because  it  tarns 
out  that  it  was  wrong  on  her  part  to  reckon  her  Iddut  hj  reference  to 
months,  and  that  she  ought  to  have  observed  her  Iddut  according  to 
menses). 

2869*  (1969.)  A  man  divorces  his  wife,  who  was  the  slave  girl  (of 
another) ;  the  wife  then,  whilst  in  her  Iddut,  is  emancipated  by  her 
master  :  then  if  the  divorce  was  reversible,  she  must  complete  the  Iddut 
prescribed  for  free  women,  according  to  us  (that  is,  Aboo  flaneefa, 
Mahomed  and  Aboo  Yusoof) ;  because  her  circumstances  have  improved, 
that  is,  (her  status  has  improved  in  degree)  whilst  the  marriage  with  her 
husband  was  still  continuing  (in  consequence  of  the  Talah  having  been 
Eajue) :  and  in  the  case  of  an  irreversible  (or  lain)  divorce,  her  IdduJt  shall 
not  be  increased  by  reasoa  of  her  emancipation.  But  according  to  Shafei, 
on  whom  be  peace,  her  Iddut  is  not  altered  in  either  of  the  two  cases 
mentioned  above. 

2870.  (1970.)  And  if  the  husband  of  a  female  slare  dies,  and  she  is 
emancipated  during  the  Iddut  prescribed  on  account  of  husband's  death, 
(which  Iddut  is  half  of  four  months  and  ten  days)  then  her  Iddvi, 
which  consists  of  two  months  and  five  days,  shall  not  be  altered,  just 


ALTERATION   OF   iDDtJT.  375 

ns  the  Iddut  is  not  altered  by  reason  of  emancipation  in  the  case  of  an 
irreTersible  divorce.    See  paragraph  1969. 

287L  (1971.)  And  in  the  case  of  a  free  woman,  who  has  been  divor- 
ced, and  whose  husband  dies  during  her  Iddut:  if  the  divorce  was  reversible, 
then  her  Iddut  shall  be  altered  (from  one  of  divorce)  to  one  of  death ;  but 
if  she  was  irreversibly  divorced,  then,  if  she  does  not  inherit  from  her 
husband  (that  is,  if  her  husband  had,  iu  health,  divorced  her,  and  the 
relationship  of  husband  and  wife  had  been  completely  cutoff),  then  her 
IddtU  shall  not  be  altered  into  one  of  death ;  and  if  she  inherits  from 
her  husband  (thus  shewing  that  she  was  still  his  wife  at  his  death)  then 
she  shall  combine  together  the  months  and  the  menses  (that  is,  she  shall 
observe  the  Iddut  both  by  reference  to  months  and  by  reference  to 
menses^  and  shall  observe  the  longer  of  the  two  periods.  See  para- 
graph I960), 

2872*  (1972.)  When  a  woman,  whose  husband  is  dead,  is  delivered 
of  a  child  more  than  two  years  from  the  date  of  lier  husband's  death, 
(thus  shewing  that  the  husband  could  not  hare  procreated  the  child), 
then  her  Iddut  shall  be  held  to  have  expired  at  a  time  six  mouths  and  a 
little  more  before  delivery  (so  as  to  make  the  pregnancy  referable  to 
another  man),  and  she  shall  be  considered  as  if  she  had  married  another 
husband  after  the  expiry  of  the  Iddut,  and  had  become  pregnant  by  the 
second  husband. 

[Note.— This    case  is  cited  in  the  Bahur-ool  Saik,  Volume  IV, 
page    148,  in   the    very   words   of    the  text  here    given,  without  any 
reason    having  been   assigned    for  the    rule.     The  peculiarities  of  the 
ease   are   obvious :   but  the  ease  is  possible  in  the  following  ways : — 
Suppose    the  husband  dies,  and  the  wife  discovers  no  signs  of  preg- 
nancy;  then  her  lidui  is  four  months  and  ten    days;   suppose  within 
the  four  months  and  ten  days  she  discovers  signs  of  pregnancy,  then  that 
discoyery  shews  that  the  Iddut  from  the  beginning  ought  to  have  been 
the  Iddui  of  delivery,  and  the  Iddut  shall  be  considered  to  be  the  period  of 
delivery  ;  and  if  the  delivery  takes  place  within  or  at  two  years  from  the 
husband's  death,  the  period  of  delivery  shall  be  the  Iddut ;  but  if  the  delivery 
takes  place  more  than  two  years  after  the  husband's  death,  then,  inasmuch 
as  the  period  of  gestation  does  not  extend  beyond  two  years,  and  is  not 
less  than  six  months,  it  must  be  held  that  this  delivery  was  not  the  period  of 
the  IddtU  of  the  husband's  death,  and  it  must  also  be  held  that  the 


376  THE  TAaORE  LAW  LECTURES,  1891-92. 

pregnancy,  wLicb  she  declared  within  the  four  months  and  ten  days,  came 
to  an  end  at  some  time  afterwards,  and  that  there  was  a  fresh  pregnancy 
referable,  no  doubt,  only  by  a  charitable  construction,  to  a  lawful  origin;  the 
time  when  the  first  pregnancy  came  to  an  end  not  being  known  of  a  certainty, 
you  must  allow  the  lowest  time  for  the  conception,  and  make  the  Iddui  of 
the  death  of  the  husband  expire  just  before  that ;  the  lowest  time  is  a 
trifle  more  than  six  months  calculated  back  from  delivery.  Other  possible 
ways  for  the  case  are  also  imaginable.  The  above  reasons  may  be 
assigned  in  support  of  the  view  taken  by  Eazee  Khan.  But  it  is  laid  down 
in  the  Futh-ool  Eadeer  in  Volume  II.,  page  336, — That  the  pregnant 
widow's  Iddut  is  the  delivery,  if  the  delivery  takes  place  within  two  years  of 
the  death  of  the  husband ;  but  if  the  delivery  takes  place  more  than  two 
years  after  the  husband's  death,  then  it  is  certain  that  there  was  no  concep- 
tion at  the  death  of  the  husband,  and,  therefore,  her  Iddut  should  be 
counted  with  reference  to  months,  and  not  with  reference  to  the  time  of 
delivery.  This  is  the  rule  when  the  husband  is  an  adult  on  his  death ;  but 
if  he  is  a  minor  and  an  infant,  and  the  delivery  takes  place  within  two  years, 
then  Aboo  Haneefa  and  Mahomed  hold  that  delivery  shall  be  her  IddfU, 
because  she  comes  within  the  rules  laid  down  in  the  Koran  regarding  the 
/cidtt^  of  the  wives,  whose  husbands  die  whilst  they  are  pregnant;  but 
Aboo  Yusoof  says  that  her  Iddut  shall  be  taken  to  be  regulated  with 
reference  to  months.  But  all  the  three  Imams  hold  that  the  child's 
nusub  shall  not  be  established  in  the  infant  husband,  because  «  *  * 
*  *  *  *  -^in  the  infant,  and,  therefore,  it  is  not  conceiv- 
able that  the  conception  could  be  from  him."  In  the  Moosullum-ool 
Suboot,  page  586,  Nuwul  Kishore's  edition,  the  following  reasoning  is  set 
forth  j/i  the  matter  of  nusuh.  In  the  portion  of  the  work  devoted  to 
Eyas  or  analogy,  Eyas  of  the  class  called  Moorsul  is  defined,  and  that  is 
where  the  reason  for  the  command  appears  in  the  command  itself,  but  you 
cannot  take  the  reason  for  the  purpose  of  varying  the  command  ;  as  for  in- 
stance,  Kuffara  or  penitence  for  making  Zihary  or  comparing  one's  wife  with 
his  mother's  back  is,  according  to  the  Koran,  either  to  emancipate  a  slave 
or,  if  he  is  unable  to  do  that,  then  to  observe  continuous  fast  for  two  months 
or,  if  he  is  unable  to  do  that,  then  the  KufEara  is  to  feed  sixty  poor  persons. 
The  reason  of  the  rule  is  that  the  command  is  Zajir  or  preventive  in  its 
effect  by  causing  privations  or  mushuhkut  to  the  individual  who  would  be 
deterred,  in  future,  by  these  very  privations  from  acting  similarly :  bat  the 
mushukhut  or  privations  must  not  be  taken  to  justify  an  individual^  who  lias 


ALtERAlriON   OP   iDDtT.  877 

the  ability  to  emancipate  a  slave^  instead  of  emancipating  a  slave,  to  prefer 
to  fast  for  two  months:  therefore  although  Kyaa  requires  that  mu- 
thukkut  being  found  in  both  the  courses  of  action  pointed  out,  either  of 
them  could  be  adopted  at  the  will  of  the  individual,  but  the  Nuss-i-Koran 
avoids  and  prevents  that  analogical  reasoning.  So  also  the  reason  or 
iUtU  for  the  establishment  of  nusvb  of  a  child  in  a  man  is  that  the  child 
is  really  or  Hukeekutun  born  of      *  *  *  ^        the 

man  :  this  reason  requires  that  the  man,  who  causes  the   conception  of  a 
child   in  a  woman,  although   she   might  be  in  the  Jirash  of  another, 
should  have  the  wmub  of  the  child   established  in   him,  but  Nuss  or 
express  text  have  avoided  this  reason ;  because  the  prophet  of  God  has  said 
^^a^tyfcUU  J  jai^  jj^i,  that  is,  "  the  child  is  for  the  Firash  *^  or,  in  other 
words,  follows  the  bed,  ^*  and  that  for  the  Zanee,  or  adulterer,  there  is  pre- 
vention of  ntMub  I "  Aboo  Haneefa  has,  therefore,  held  that  the  child  born  of 
a  woman  in  the  east,  the  husband  being  in  the  west,  shall  belong  to  the 
husband,  and  shall  not  belong  to  the  man  under  whom  the  woman  is ;  be- 
cause the  woman  is  not  his  firash  ;  on  the  other  hand,  he  is   the  Ahir  or 
Zanee.    Then — See  Futh-ool  Eadeer,  Volume  II,  page  335,  and  page 
336,  line  14, — in  the  case  of  an  infant  husband,  the  ntMub  of  the  child  shall 
not  be  established  in  such  a  husband  whether  the  woman  gives  birth  within 
or  beyond  two  years  of  her  husband's  death ;  because  an  infant  has  *     * 

*  *  and,  therefore,  it  is  impossible  to  imagine  that  he  could  cause 
conception ;  and  when  you  assume  that  by  Kuramut  or  otherwise  the 
infant  could  cause  conception,  then  you  admit  that  the  infant  is  not  an 
infant,  and  Euramut  cannot  be  nssumed  for  the  purpose  of  nullifying 
the  ordinances  of  the  8hera,  which  declare,  for  instance,  that  a  boy 
before  twelve  years  is  an  infant,  not  having  the  capacity        *        *        * 

*  *        whereas  in  the  case  of  a  Mujboob  it  is  possible  to  conceive  that 
•»«■  *  *  #        ], 

2873.  (1973.)  An  Oomm-i-wulvd's  master  dies  whilst  she  is  in 
the  marriage  of  another  man :  it  is  not  obligatory  on  her  to  observe 
the  Iddui  for  the  master^s  death ;  and  if  her  husband  divorces  her  after 
Iter  master's  death  (when  she  becomes  free  by  reason  of  her  status  as  an 
Oovnm-i-wvlud),  she  shall  be  obliged  to  observe  the  Iddui  (of  divorce) 
prescribed  for  free  women. 

2874*     (1974.)    And  if  the  master,  who  has  given  his  Oomm-i-wvlud 
in  marriage  to  a  man,  emancipates  her   whilst   she  is  in   her  Iddut  on 
48 


8^8  THE   TAC^ORG   LAW   LKCTUBB8,   1891-92. 

account  of  a  reversible  divorce,  tben  the  woman's  Iddut  (on  account 
of  the  said  divorce)  shall  be  altered  (into  one  prescribed  for  a  free  womnn^ 
because  she  gets  her  freedom  before  the  marriage  relation  is  completely 
at  an  end) ;  but  if  the  divorce  was  irreversible  (or  bain),  then  the  IddiU 
sliall  not  be  altered  (because  she  receives  her  freedom  after  the  relation- 
ship completely  comes  to  an  end). 

2876.  (1975.)  But  if  the  Iddut  consequent  on  her  (the  said  Oamm^i- 
UDulud^s)  divorce  (whether  Rujue  or  Bain)  expires  (and  by  reason  of  the 
expiry  of  the  Iddui,  she  becomes  lawful  to  her  master),  and  then  her  master 
dies,  (and  his  death  makes  her  free,  she  being  his  Oomm-i-wulud),  it  is 
obligatory  on  her  to  observe  the  Iddut  of  iier  master  for  three  menses 
(because  after  the  divorce,  she  again  became  lawful  to  her  master,  who 
might  have  had  connexion  with  her,  and  she  must,  therefore,  observe  the 
IddtU).  And  Shafei,  on  whom  be  peace,  says,  that  such  Iddut  consists  of 
one  nienses  (because  a  single  menses  is  sufi&cient  to  show  absence  of  preg- 
nancy). But  if  she  does  not  get  her  menses,  then  her  Iddut  for  ber 
master's  death  is  three  months  (without  any  difference  of  opinion). 
And  if  she  is  pregnant,  then  the  Iddut  for  her  master's  death  is  tbe 
time  of  her  delivery. 

2876*  (1976.)  And  if  the  said  Oomm-i-wulud  (as  in  1975)  kisses 
with  desibe  her  master's  son  (by  which  she  becomes  unlawful  to  her 
master,  and  this  unlawfulness  renders  it  necessary  for  her  to  observe  Iddui, 
and  such  Iddut  would,  if  the  master  continues  to  live^  be  that  of  a 
female  slave),  then  in  case  the  master  dies  (after  the  unlawfulness  has 
arisen)  the  same  rule  holds  good  (as  regards  her  Iddut  as  in  1975). 

2877.  (1977.)  And  if  the  Oomm-i-wulud^s  husband  and  master  both 
die,  so  that  the  space  of  time  between  their  deaths  is  less  than  two  months 
and  five  days,  and  it  cannot  be  ascertained  which  of  the  two  died  first,  she 
shall  observe  her  Iddut  (as  a  matter  of  precaution)  for  four  months  and 
ten  days  (because  if  the  master  died  first,  the  woman  would  become  free, 
and  her  Iddut  would  be  four  months  and  ten  days  on  account  of  her 
husband's  death) ;  and  if  between  their  deaths  the  intervening  space  of 
time  is  two  months  and  five  days,  or  more  (and  it  does  not  appear  who  died 
first),  then  she  shall  observe  her  Iddut  for  four  months  and  ten  days  and 
three  pnenses  (because  if  the  husband  dies  first,  the  wife's  Iddut  would 
be  that  of  a  female  slave,  viz.,  two  months  and  five  days,  and  the  master 
having  died   more   than   two   months  and   five  days  after  her  hnsbaiid's 


ALTEBATION   Olf  IDDUT.  379 

deaths  she  had  become  lawful  to  her  mafiter  after  the  expiry  of  her 
/ddut  of  two  months  and  five  days ;  and  having  become  lawful  to  the 
master,  she  must  observe  the  Iddut  after  her  master's  death ;  and  sh^  having 
become  a  free  woman  by  her  master's^  death,  the  JcZdu^ is  three  mens^ea. 
If  the  master  dies  first,  then  the  Oomin''i'rvuh£d  4)ecomes  a  free,  womab::' 
and  the  husband's  subsequent  death  would  bring  on  the  wife  tlie  liability  to 
observe  Iddvi  for  four  months  and  ten  days.;  If  it  ctonot  be  ascertain^ 
who  died  earlier,  the  longer  of  the  two  IdduU  shall  be  taken,- and  that 
is  four  months  and  ten  days  plus  three  menses). 

And  if  the  time  that  intervened  between  their  deaths  cannot  at  all 
be  ascertained,  then  the  Iddut  of  death  and  three  menses  shall  :^  be  added 
together  according  to  the  view  taken  by  Aboo  Yusoof  and  MahOmed; 
on  whom  be  peace  i  but  Aboo  Haneef  a,  on  whom  be  peace,  says,  that  she 
shall  observe  her  Iddut  for  four  months  and  ten  days,  and  there  is  no 
condition  of  menses  in  this  Iddut  (that  is,  in  addition  to  four  months 
and  ten  days, ;  it  is  not  necessary  for  her  to  observe  Iddut  for  three 
menses  also). 

And  if  there  has  been  a  reversible  divorce,  and  the  master  then  dies, 
then  also  the  above  rule  holds  good,  and  the  woman  shall  not  inherit  to  her 
husband   (because  the  case  is  that  the  husband  of  em  0<mm''i^umlud  htts 
divorced  her  reversibly,  and  then  after  the  divorce  the  master  4i^;r^e 
husband  also  dies  after  the  divorce,  but  who  died  first  cannot  be.  ascer- 
tained: what  shall  be  the  rule  in  this  case  as  regards  inheritance?  If 
the  husband  had  died  first,  the  wife  would  have  still  been  a  slave,  aud  the 
Iddui  for  the  husband's  death  would  have  been  two  months  and  five  days, 
and  she  would  have  been  bound  to  observe  this  Iddut,  the  divorce  being 
Utgue,  and  she  would  have  certainly  not  inherited  to  the  husband,  she 
being  a  slave  girl :  if  the  master  bad  died  first,  then  his  death  would 
have   made  her  free,  and  her  Iddut  on  her  husband's  death  after  a  Eujue 
divorce  would  have  been  the  Iddut  obligatory  On  a  free  woman  for  her 
husband's  death,  and  that  Iddut  is  four  months  and  ten  days,  and  she  would 
have  inherited  to  her  husband  to  a  certainty  having  been  a  free  woman; 
at  her   husband's  death.    Therefore,  when  it  cannot  be  known  whether 
the  master  or  the  husband  died  first,  then  there  arises  a  doubt  as  to  what 
sort  of  Iddut  she  shall  have^tb  observe— whether  that  oiE  a  Eoora  (m.,  a 
free  woman)  or  that  of  a  female  slave ;  and  therefore  the  Iddui  shall  be  the 
longer  period  so  as  to  make  it  certain  that  ihe  Iddut  has'ezpired?  and  then 
arises  a  doubt  whether  she  shall  inherit  to  her  husband  or  not;  but 


880  THE  TAOOBB  LAW  LSCTUBES^  1891-92. 

ingBmach  as  inheritance  is  not  established  when  there  is  a  doubt,  the 
woman  shall  not  inherit). 

8878.  (1978.)  And  sometimes  four  IddtiU  become  obligatory  on  a 
woman ;  that  is,  when  the  husband  pronounces  a  reversible  divorce  on  his 
infant  wife,  who  is  the  female  slave  of  somebody  else :  she  must  (I) 
observe  her  Iddut  for  a  month  and  a  half  (because  she  not  being  capable  of 
menses  and  being  a  slave,  her  Iddut  is  half  of  that  of  a  free  woman  who  does 
not  get  menses,  and  whose  Iddut  is  three  months ;  if  the  female  slave  gets 
her  menses  her  Iddvi  would  be  two  menses) ;  and  if  she  attains  her  puberty 
(and  gets  her  menses),  during  the  Iddut,  then  her  Iddut  (arising  from 
the  same  cause,  vu.,  the  reversible  divorce)  shall  be  altered  (from  one 
month  and  a  half)  to  two  menses  (this  is  Iddut  No.  II) ;  then  if  her 
master  emancipates  her  during  the  Iddut,  then  her  Iddut  (arising  from 
the  same  cause,  viz.,  the  aforesaid  reversible  divorce)  shall  become  three 
menses  (this  is,  Iddut  No.  Ill) ;  and  if  the  husband,  who  has  divorced 
her,  dies  during  the  Iddut,  then  her  Iddut  shall  be  altered  into  a  period  of 
four  months  and  ten  days  (this  is  Iddut  No.  lY). 

2879.  (1979.)  When  a  Kitabya  woman  is  the  wife  of  a  Moslem,  her 
Iddut  is  like  the  Iddut  of  a  Moslem  woman  in  case  of  divorce  by  the  husband 
or  his  death ;  that  is  to  say,  the  free  Kitabya  woman  is  like  the  free 
Moslem  woman;  and  the  Kitabya  slave  woman  is  like  the  Moslem  slave 
woman. 

But  if  the  Kitahya  woman  is  the  wife  of  a  Zimmee,  then  there  is  no 
Iddut  obligatory  on  her  in  the  event  of  the  death  of  her  husband  or  Firak 
(that  is,  separation)  from  him,  according  to  the  view  of  Aboo  Haneefa 
on  whom  be  peace,  except  when  she  is  pregnant,  in  which  case  she  shall  be 
prevented  (or  kept  back)  from  her  (new)  husband  (if  she  has  married  any- 
body) until  she  is  delivered;  and  Aboo  Yusoof  and  Mahomed,  on  whom  be 
peace,  say,  that  she  is  obliged  to  observed  Iddut. 

2880.  (1980.)  And  a  woman  (originally  an  infidel)  who  leaves  (or 
makes  Hijvut  from)  the  Do/r^ool  HwnA  (as  a  Moslem,  leaving  her  husband 
behind  as  an  infidel — that  is,  the  woman  is  a,  MooJuyera),  shall  not  be 
obliged  to  observe  Iddut. 

2881.  (1981.)  A  man  admits  that  he  divorced  his  wife  fi?e  years 
ago;  then  if  the  woman  falsifies  him  as  regards  the  time  stated  by  the 
husband)  or  says,  ^*  I  do  not  know  (when  he  divorced  me) ;  "  she  shall 
be  obliged  to  observe  the  Iddut  from  the  time  of  the  husband's  admission 


ALTBEATION  OP   IDDUT.  381 

(becaase  the  divorce  shall  be  consicierecl  as  having  been  given  on  the  date 
of  the  admission) ;  and  the  woman  shall  be  entitled  to  maintenance  and 
residence;  bat  if  the  woman  confirms  the  hosband^s  statement  regarding 
the  time,  then  it  is  stated  in  the  Asul,  that  it  is  obligatory  on  her  to  observe 
the  IddiU  from  the  time  of  the  divorce  (that  is,  she  shall  reckon  the  JddtU 
from  the  time  the  divorce  is  alleged  to  hav«  been  given;  and  if  the 
Iddut  has  expired,  she  can  marry  at  once ;  if  not,  she  must  complete  what 
remains  to  be  completed) ;  and  in  the  Fatwa  it  is  laid  down  that  she  must 
observe  the  Iddut  from  the  time  of  the  admission  (by  the  hnsband) ;  and 
(therefore  according  to  the  Fatwa)  the  effect  of  confirmation  by  the  woman 
of  her  husband's  statement  does  not  appear  except  in  avoiding  the  right  of 
maintenance  (that  is,  when  the  woman  confirms  the  husband's  statement 
regarding  the  time  of  the  divorce,  then  she  shall  observe  Iddut  from  the 
time  of  the  husband's  admission,  but  she  shall  not  get  maintenance;  but  if 
she  falsifies  him,  she  shaU  observe  Iddut  from  the  time  of  the  admission, 
and  she  shall  get  maintenance). 

8882.  (1982.)  When  a  free  woman,  who  has  been  divorced,  admits 
that  her  Iddut,  reckoned  with  reference  to  menses,  has  expired,  she 
shall  not  be  confirmed  in  her  statement,  unless  two  months  have  expired 
from  the  date  of  divorce  (because  it  is  possible  for  three  menses  to  expire 
in  two  months) :  and  this  view  is  correct. 

2883.  (1983.)  When  a  woman  receives  intelligence  of  tlie  fact  that 
her  absent  husband  has  divorced  her,  or  of  the  fact  of  the  absent  husband's 
death,  her  Iddut  shall  be  considered  from  the  time  of  the  death  and 
the  divorce  according  to  us  (that  is,  Aboo  Haneefa,  Mahomed  and  Aboo 
Tnsoof),  and  not  from  the  time  of  the  intelligence. 

2884.  (1984)  A  man  says  to  his  wife,  with  whom  he  has  had  inter- 
course, ^'  KooUuma,  or  as  often  as  thou  shalt  get  menses  and  become  pure, 
thou  art  divorced ; "  and  she  gets  three  menses  (and  the  effect  is  that 
three  divorces  shall  be  caused) :  her  Iddut  shall  commence  from  the  first 

divorce. 

Iddut  of  2nd  Divorce. 


Igt  Divorce      2nd  Divorce    3rd  Divorce 


IV V VI 


^  ^. 


^'v J 


Iddut  of  Ist  Divorce.       Iddut  of  8rd  Divorce. 
288S*    (1985.)     When  the  wife  of  an  absent  husband  receives  intelli- 
gence of  his  death  from  one  man,  and  intelligence  of  his  being  alive  from 


382  THE  TAGOBE  LAW  LSCTUBBS,  1891*92. 

two  men,  then,  if  the  man  who  informs  her  of  his  death,  gives  testi- 
mony that  he  saw  the  husband's  death  or  his  funeral,  and  if  he  is  a  just 
man,  it  is  competent  to  the  woman  to  observe  Iddui,  and  to  marry;  this  is 
when  the  two  men  (who  bring  intelligence  of  the  husband  being 
alive)  do  not  state  the  date  (when  they  last  saw  him  alive) ;  but  if  they 
state  the  date,  and  the  date  when  they  saw  the  husband  alive  is  after  (the 
date  when  the  other  man  says  he  saw  his  death  or  funeral),  then  their 
testimony  is  preferable. 

2886.  (1986.)    A  man  marries  a  woman  and  has  sexual  intercourse 
with  her ;  he  then  says,  ^'  I  made  an  oath  in  the  past  that,  <if  I  ever  marry 
a  Syeeba,  she  is  thrice  divorced,'  but  I  did  not  know  that  the  woman  was 
a  Syeeba : "  divorce  shall  be  caused  by  his  admission ;  then  if  the  woman 
confirms  him  (in  the  fact  that  she  is  a  Syeeba),  she  shall  be  entitled  to  half 
of  the  dower  by  reason  of  the  divorce  (which  occurred  as  a  consequence  of 
the  condition)  before  sexual  intercourse,  and  she  shall  also  be  entitled  to 
her  proper  dower  on  account  of  sexual  intercourse  (from  doubt  arising 
from  the  circumstance  that  he  believed  her  to  be  his  wife  whereas  she  was 
not  on  account  of  the  divorce  having  taken  place),  and  she  shall  be  obliged 
to  observe  Iddut  on  account  of  such  sexual  intercourse,  but  she  shall  not  be 
entitled  to  maintenance,  because  the  woman  has  (by  her  statement  in  ^eet) 
confirmed  the  husband  as  regards  the  occurrence  of  the  divorce  before  sexual 
intercourse  (because  there  is  no  Idd^t  here  from  divorce,  inasmuch  as  the 
woman  was  ghyr  mudkhool  biha,  that  is  to  say,  one  with  whom  there  was  no 
sexual  intercourse  before  the  time  of  the  divorce,  and,  therefore,  there  is  no 
right  to  maintenance) ;  but  if  the  woman  falsifies  the  husband  in  his  oath 
(that  is,  she  says,  "  your  oath  has  not  resulted  in  my  divorce,  because  I 
was  not  a  Syeeba''),  then  she  is  entitled  to  one  dower,  and  she  shall  be  en- 
titled to  maintenance ;  because  the  woman  says  that  the  divorce   was 
(only)  caused  upon  her  by  the  admission  (or  allegation)  of  the  husband 
after  sexual  intercourse  (that  is,  she  says,  ^*  there  is  no  valid  divorce  be- 
cause I  was  not  a  Syeeba,  but  the  divorce  has  only  been  caused  hj  the 
husband's  admission  or  declaration  made  after  intercourse,"  and,  therefore, 
the  divorce  takes  effect  after  sexual  intercourse,  in  which  case  the  dower 
becomes  payable,  and  there  is  a  right  to  maintenance). 

2887.  (1987.)  A  man  divorces  his  wife  thrice,  and  when  she  has 
observed  her  Iddut  for  two  menses,  he  has  sexual  intercourse  with  her  by 
compulsion  ;  then  if  the  husband  has  sexual  intercourse  whilst  denying 
having  divorced  her,  it  is  obligatory  on  her  to  observe  a  full  Iddut  to  be 


AtTEBATION  09  IDDUT.  883 

oommenced  afresH  (because  she  knew  for  certain  that  he  had  divorced  her 
thrice,  and  therefore  there  is  one  Iddut  of  divorce ;  and  the  hasband 
having  forgotten  the  divorce,  has  intercourse  with  her,  and  this  intercourse 
is  from  doubt,. and,  therefore,  there  is  another  Iddut  obligatory  by  reason 
of  intercourse  from  doubt ;  there  was  Ttidakhool  in  one  menses) ;  and  if  he 
admits  the  divorce  and  (still)  has  sexual  intercourse  with  her  by  way  of 
Zina,  then  she  shall  not  observe  an  Iddut  in  full  in  the  future  (that  is,  a 
fresh  Iddut  shall  not  be  observed;  because  there  is  no  Iddut  for  Zina). 

2888.  (1988.)  So  also  if  a  man  gives  his  wife  an  irreversible 
(bain)  divorce,  or  gives  her  three  divorces,  and  then  remains  with  her  for 
a  time ;  then  if  he  so  remains,  whilst  denying  the  divorce  (and  the  woman 
has  no  proof  of  divorce),  her  Iddut  shall  not  expire  (whilst  he  remains 
with  her) ;  but  if  he  so  remains  with  her^  whilst  admitting  the  divorce, 
then  her  Iddut  shall  expire  (with  the  expiry  of  three  menses). 

2889. '  (1989.)  A  man  divorces  his  wife  thrice,  and  conceals  the  fact 
from  the  people,  and  when  the  woman  has  had  two  menses,  he  has  sexual 
intercourse  with  her,  and  sha  becomes  pregnant,  and  he  then  admits  having 
divorced  her,  she  shall  be  entitled  to  maintenance  until  she  is  delivered ; 
(because  after  the  divorce,  although  it  was  concealed,  three  menses 
would  hayeput  an  end  to  her  Iddut,  but  the  intercourse  took  place  within 
that  time,  and,  therefore,  the  intercourse  was  from  doubt  which  created 
the  obligation  of  Iddut,  and  the  conception  extends  that  Iddut  up  to  the 
time  of  the  delivery). 

2890.  (1990.)  A  man  divorces  his  wife  thrice,  and  then  she  marries 
another  man  at  once,  and  the  second  husband  has  sexual  intercourse  with 
her,  and  then  separation  is  effected  between  the  woman  and  the  second 
husband  (the  marriage  being  invalid  as  having  taken  place  within  the 
Iddut) :  the  woman  shall  be  bound  to  Observe  her  Iddut  for  three  menses 
on  aoconnt  of  both  the  husbands  (and  there  shall  be  Tudakhool  or  merger 
in  all  the  three  menses)  but  her  maintenance  and  residence  shall  be  on  the 
first  hnsband. 

Contrary  to  the  case  of  a  woman  (who  is)  in  a  subsisting  marriage 
(that  is,  who  is  not  divorced  by  her  husband),  who  marries  another  man, 
and  the  second  husband  has  sexual  intercourse  with  her,  and  then 
separation  is  caused  between  her  and  the  second  husband ;  in  this  case 
the  ^t  husbt^nd  shall  not  be  boc^nd  to  n^aintain  her  as  long  as  she  is  in 


884  THE  TAQOBS  LAW  LKCTUBC8,  1891-92. 

her  Iddui  (from  the  second  hasbandy  whose  marriage  with  her  was  Toid 
bat  there  is  liability  to  Jddut  on  accoimt  of  8hoobah4*Akdy  which  rendered 
the  intercourse  as  one  from  doubt) ;  becanse  when  she  gare  herself  in 
marriage  to  the  second  hasband,  and  the  liability  to  Iddut  from  the 
second  husband  became  obligatory  on  her,  she  became  (as  regards  the 
first  husband)  rebellious  {Noihiza) ;  and,  therefore,  she  is  not  entitled 
to  maintenance  (from  the  first  husband). 

But  as  regards  the  woman  (as  in  the  first  case)  who  became  cdm- 
pletelj  separated  {mubtooia),  it  is  not  her  act  in  giving  herself  in  marriage 
during  the  IddiU  that  prevented  the  husband  from  having  access  to  her, 
but  the  triple  divorce  already  given  by  the  husband  prevented  such  access 
before  she  married  the  second  husband ;  (so  that,  even  if  she  had  not  married, 
she  would  not  have  been  in  a  position  to  receive  him). 

2891*  (1991.)  A  man  inarries  a  woman  by  way  of  an  invalid 
(Fasid)  marriage,  and  has  sexual  intercourse  with  her,  and  separation  is 
caused  between  them :  she  shall  be  obliged  to  observe  Iddut  for  three 
menses  from  the  time  of  the  separation. 


(1992.)  A  female  minor  attains  her  puberty;  (the  rule  for 
a  girl  attaining  puberty  is  when  she  gets  menses  or  when  she  has  emission 
or  Ihiilam  or  when  she  conceives) :  she  then  sees  blood  for  one  day,  and 
the  blood  then  ceases,  so  that  one  year  expires  (the  rule  being  fhat  blood, 
to  constitute  menses,  must  appear  or  be  seen  for  three  days,  but  if  less,  then 
it  is  not  the  blood  of  the  menses,  but  is  due  to  sickness) ;  her  husband  then 
divorces  her :  she  shall  observe  IdduU  for  three  months;  because  if  blood 
does  not  continue  for  three  days,  it  does  not  amount  to  menses,  and  the 
woman,  therefore,  continues  to  belong  to  that  class  of  women  who  reckon 
their  Iddvi  by  reference  to  months. 

[Note.— See  Fath-ool  Kudeer,  Volume  II,  page  849,  and  Budd-ool 
Moohtar,  Volume  II,  page  1026.  If  a  man  gives  a  Bujue  or  reversible 
divorce  to  his  wife,  and  she  gives  birth  to  a  child  within  two  years 
from  divorce,  not  having,  in  the  interval,  made  any  admission  that  her 
Iddut  had  expired;  then  the  nusvb  of  the  child  shall  be  established  in  the  hus- 
band, and  he  shall  not  be  held  to  have  made  Rujaat  or  revoked  the  divorce; 
because  the  conception  is  referable  to  a  time  before  divorce.  If  she  gireB 
birth  to  a  child  in  more  than  two  years  or  in  twenty  years  from  the  time  of 


ALTBBATION    OF   IDDUT.  885 

tlie  divorce,  withonb  having  made  any  admission  in  the  meanwhile  that  her 

Iddut  had  expired,  even  then  the  nustii  of  the  child  shall  be  established  in 

the  husband,  and  it  shall  be  held  that  she  is  ti,  Moomtvddut-ool-Toohur  (or  a 

vroinan,  who  bas  long  intervals  of  menstraation) ;  because  the  lowest  period 

of  purity  or  freedom  from  menses  is  fifteen  days,  and  there  is  no  limit 

to  the  longest  period  of  such  purity,  so  that  the  longest  period  might  be 

t^n  years  or  more :  and  it  shall  be  held  that  she  gets  her  menses  at  very 

long  intervals,  and  that  her  Idduty  which  consisted  of  three  menses,  was 

very  long  in  duration,  and  that  her  husband  had  intercourse  with  her  in 

one  of  such  intervals  during  the  Idduty  and  that  the  child  was  conceived  at 

a  time  which  was  between  six  months  and  two  years,  calculated  back  from 

the  date  of  the  birth ;  and  that  the  husband  having  had  intercourse  after  a 

reversible  divorce  during  the  period  of  Idduty  he  has  revoked  the  divorce. 

This   shews  that  when  the  period  of  Iddut  is  counted  with  reference  to 

menses,  there  is  no  limit  to  that  period,  and  the  period  might  expire  in 

two  or  three  months,  or  more:  it  may  take  ten  or  twenty  years  to  expire* 

If  she  were  to  get  her  menses  once,  and  were  not  to  get  it  afterwards  for 

some  time,  it  does  not  follow  that  she  would  have  to  reckon  her  period  of 

Iddut  with  reference  to  months,  and  not  with  reference  to  menses  ;  on  the 

other  hand,  her  Iddut  must  be   with  reference  to  menses  as  long  as  she 

does  not  reach  the  age  of  Ayas,  which  is  fifty-five  years]. 

2893.  (1993.)  A  man  divorces  his  wife,  and  then  compromises  with 
lier  for  something  on  account  of  her  maintenance  during  the  period  of  the 
Iddut ;  then  if  her  Iddut  is  to  be  reckoned  with  reference  to  months,  the 
compromise  shall  be  valid  ;  because  (in  that  case)  the  time  of  the  IdduJt  ia 
known.  But  if  her  Iddut  is  with  reference  to  menses,  then  the  compro- 
inise  shall  not  be  valid  ;  because  the  period  is  not  known:  and  it  is  not 
possible  to  render  (or  to  construe)  the  compromise  as  a  release  on  behalf 
of  the  woman  in  regard  to  some  portion  of  her  maintenance ;  because 
release  from  (even  the  whole  of  the)  maintenance  after  divorce  is  not  valid, 
jaat  as  it  is  not  valid  whilst  the  marriage  lasts. 

2894.  (1994.)  And  if  a  (divorced)  woman  compromises,  after  having 
become  {bain  or)  completely  separated  from  her  husband,  for  something  in 
lieu  of  the  hire  for  suckling  the  child,  then  the  compromise  is  valid. 

3895.      (1995.)     And  if  a  (divorced)  woman  compromises  with  her 
hasbnncly  in  lieu  of  her  residence,  for  dirhems  (or  for  anything  else),  the 
49 


386  THK  TAGOBE  LAW  LICTURIS,  1891-92. 

compromise  shall  not  be  valid  (that  is,  sucfa  a  compromise  is  not  at  all 
Talid,  residence  being  the  right  of  God). 
God  knows  best. 


Section  III. 

ON   WHAT    IS  FORBIDDEN  {OE   UNLAWFUL)   TO   THE   (MOTUDDA  OR)  WOMAK. 
WHO  IS  OBSEBVING  H£B  IDDUT. 

2896.  (1996.)  A  free  Moslem  woman,  observing  her  Iddut  of  divorce 
or  of  separation,  bat  not  of  death,  shall  not  go  oat  of  her  hoase  in  the 
night  or  day,  except,  when  necessary,  on  account  of  fear  of  the  hoase 
tumbling  down  or  catching  fire,  or  of  danger  to  property. 

2897*  (1997.)  And  a  woman,  who  is  observing  her  Iddut  on  acconnt 
of  her  husband^B  death,  shall  go  out  of  the  house  at  day  time  for  her 
necessities  connected  with  maintenance  (because  she  must  earn  her  own 
maintenance  in  this  case,  but  in  the  case  in  1996,  the  maintenance  is 
generally  obligatory  on  the  husband). 

2898.  (1998.)  And  she  (that  is,  the  woman  who  is  observing  her 
Iddut  on  account  of  her  husband's  deaih),  shall  not  pass  her  night  except 
in  the  room  of  her  husband  (that  is,  in  the  room  assigned  to  her  by  her 
husband).  And  it  is  reported  from  Mahomed,  on  whom  be  peace,  that  it 
is  competent  to  her  to  pass  her  night  (or  time)  in  a  room  different  from 
that  of  her  husband  for  less  than  half  the  night  (that  is,  in  an  adjoining 
room  or  a  room  close  by,  for  the  sake  of  company).  And  what  is  con- 
sidered proper  in  this  matter  (that  is,  in  the  matter  of  the  room  where 
she  must  pass  her  night  and  complete  her  Iddut)  is  the  place  where  she 
used  to  reside  before  separation. 

2899.  (1999.)  But  as  regards  a  woman,  whose  husband  is  dead, 
if  the  share  she  receives  by  inheritance  in  her  husband's  house,  is 
sufficient  for  her,  then  she  shall  reside  in  that  share ;  and  if  amongst  the 
husband's  heirs,  there  is  one  who  is  not  {Maharim  or)  unlawful  to  her 
(as  regards  marriage),  then,  if  it  is  possible  for  her  to  seclude  herself 
from  him,  or  to  put  up  a  screen  between  her  and  that  heir,  then  she  shall 
reside  in  her  share  ;  but  if  her  share  is  not  sufficient,  then  it  shall  be  com- 
petent to  her  to  go  out  of  the  house  for  such  necessity  (that  is  to  say,  to  go 
out  and  seek  for  another  residence) :   so  also  if  she  entertains  fear  about 


TfllNGS  TOLAWFITL  TO  THE   MOTUDDA,  887 

ber  {Muta  or)  farnitare  (and  property)  in  her  husband's  house,  which  she 
bas  received  as  her  share.  Bat  she  shall  not  afterwards  go  out  of  the 
house  to  which  she  may  have  removed r 

2900.  (2000.)  And  if  the  husband  divorces  his  wife  whilst  she  is 
living  with  him  in  a  tent,  and  the  husband  goes  about  from  place  to  place 
for  grass  and  water,  then,  if  there  is  no  clear  harm  to  himself  or  to  his 
property,  he  shall  leave  her  (during  his  temporary  absence)  in  that  place 
that  is,  in  that  tent) ;  and  it  shall  not  be  competent  to  him  (in  that  case)  to- 
take  her  along  with  him,  and  it  shall  not  be  competent  to  her  to  remove 
from  that  place  (that  is,  from  that  tent).  But  if  he  apprehends  clear 
(positive)  harm  to  himself  or  to  bis  property  by  his  leaving  her  in  that 
place  (or  tent),  then  it  shall  be  competent  to  him  to  remove  her  (and 
take  her  with  him)  on  account  of  such  necessity. 

2901.  (2001.)  When  a  woman  is  observing  her  Iddut  (on  account 
of  her  husband's  death)  in  a  house  in  which  there  is  nobody  with  her, 
and  she  has  no  fear  of  thieves  or  neighbours,  but  she  is  afraid  on  account 
of  death  having  taken  place  (that  is,  superstitious  fear) ;  then,  if  the  fear 
is  not  very  intense,it  shall  not  be  competent  to  her  to  remove  from  that  place ; 
becauee  (only)  slight  fear  is  equivalent  to  a  feeling  of  loneliness  (tvuhshui)  ; 
but  if  the  fear  is  intense,  it  shall  be  competent  to  her  to  remove  from  that 
place ;  because  if  she  were  not  to  remove  (notwithstanding  this),  there 
might  be  danger  of  her  losing  her  understanding  or  the  like. 

2902.  (2002.)  A  woman  obtains  Ehoota  from  her  husband  in  consider- 
ation of  the  maintenance  for  the  period  of  her  Iddut,  and  she  is  under  the 
necessity  of  earning  her  maintenance  :  the  learned  lawyers  have  entered 
into  a  discussion  in  this  matter ;  some  of  them  have  held  that  it  shall  be 
competent  to  her  to  go  out  of  the  house  like  a  woman  whose  husband  is 
dead  (and  who  must  earn  her  own  maintenance) ;  whilst  others  have  held 
that  it  shall  not  be  competent  to  her  to  do  so ;  and  this  view  is  the 
approved  one,  because  she  has,  of  her  own  accord,  rendered  her  right  void 
(bj  giving  up  her  right  to  maintenance  for  the  purpose  of  obtaining  the 
Khoola)  ;  and  it  shall  not,  therefore,  be  competent  to  her  to  advance  the 
same  (that  is,  the  necessity  for  earning  her  maintenance)  as  an  excuse. 

2903.  (200&.)  A  woman,  who  is  observing  her  Iddut  shall  not 
undertake  a  journey  for  the  purpose  of  making  a  pilgrimage,  or  for  any 
other  parpose  ;  and  her  husband  shall  not  take  her  on  his  journey  accor- 
ding to  us  (that  is,  Aboo  Haneefa,  Mahomed  and  Aboo   Yusoof) ;   but 


S88  THl  TAOOBI  LAW  LKCTUSES^  1891-92. 

Zoofur,  on   whom  be  peace,  says,  tbafc  in  case  of  a  reversible  divorce,  it 
ihali  be  competent  to  the  husband  to  take  her  with  him  on  his  joarney. 

2904.  (2004.)  Bat  if  the  husband  takes  her  (t.^.,  a  wife  divorced 
reversibi  j)  along  with  him  on  his  journey,  without  intending  revocation  of 
the  divorce,  then  the  husband  shall  not  be  held  to  have  revoked  the  divorce 
(bj  the  mere  fact  of  his  having  taken  her  along  with  him  on  his  journey), 
fiut  if  he  takes  her  along  with  him  on  his  journey,  having  cited 
witnesses  to  his  revocation  of  the  divorce,  it  shall  be  competent  to  him 
to  take  her  along  with  him  on  his  joarney  (because  he  has  revoked  the 
divorce ;  and  a  man  intending  to  revoke  the  divorce  should  conform  to 
this  course;  because  otherwise  there  is  no  presumption  of  revocation 
from  the  mere  fact  of  his  having  taken  the  wife  with  him  on  his  journey). 

2906.     (2005.)     And  if  the  husband  takes  his  wife  along  with  him  on 
his  journey  before  divorcing  her,  and  then  (whilst  in  the  journey)  he  divor- 
ces her  irreversibly  {bain),  or  dies  leaving  her  surviving,  then,  if  the  distance 
between   the   house   where  she  lived  (and  from  where  she  started  on  the 
journey)  and  the  place  in  the  journey  where  the  death   or  divorce  took 
place,  is  less  than  the  time  (technically)  prescribed  as  the  period  of  jour- 
ney   (that   is,   three   days),   she   shall   return   to  her  house  :  and  if  the 
distance  to  the  house  where  she  lived  is  equal  to  the  time  of  the  (technical) 
journey,  but  the  distance  to  the  destination  is  less  than  the  distance 
prescribed    (technically)    for   a   journey,  then   she  shall   proceed  on  her 
journey ;  but  if  towards  each  of  them  (that  is,  towards  her  house  as  well 
as  towards  the  destination),  the  distance  is  that  of  a  journey  (technically 
known  as  such),  and  the  event  (that  is,  the  death  or  divorce)  has  taken 
place  in  the  open  plain  (Mufazat,  i.e.,  where  there  is  no  habitation),  then 
she  shall  proceed  to  the  nearest  house  of  protection ;  but  if  (at  the  time 
of  the  event)  she  is  in  a  protected  place  (instead  of  being  in  a  plain)  she 
shall   stay   at  that  place  according  to  Aboo  Haneefa,  on  whom  be  peace; 
but  the  two  disciples  of  Aboo  Haneefa  have  said  that  if  the  woman  finds 
a   man   who   is   (her  Maharim  or)   unlawful  to  her  (for  marriage),   she 
shall  go  out  witli  him,  to  whichever  of  the  two  places  she  likes  (wlietlier 
to  her  own  house  or  to  the  destination,  both  being  equally  distant). 

But  if  the  divorce  was  reversible,  she  shall  not  separate  from  her 
husband  in  any  case  (whether  the  divorce  has  taken  place  in  theopea  plain 
or  in  an  inhabited  place,  and  whatever  be  the  distance  to  her  own  house  or 
to  the  destination.) 


THINGS  UNLAWFUL  TO   THE  MOTUDDA.  889 

2906.  (2006.)  And  it  is  allowable  to  a  woman,  who  is  observing  ber 
Jdduty  to  go  out  as  far  as  the  coart-jard  {sahan)  of  the  bouse ;  and  if 
the  house  consists  of  seve)*al  rooms,  each  of  which  is  occupied  by  persons 
(who  are  not  unlawful  to  the  woman  for  the  purpose  of  marriage)  theii 
she  shall  not  go  out  as  far  as. the  court-yard» 

2907.  (2007.)  And  if  the  room,  in  which  the  woman,  who  is  observ- 
ing her  Iddttt  lives,  is  taken  by  her  on  hire,  the  hire  shall  be  pay- 
able by  the  husband.  And  if  the  husband  is  absent,  and  the  owner  of 
the  house  demands  the  rent  from  her,  she  is  bound  to  pay  the  rent  and 
live  there  ;  and  if  she  is  not  able  to  pay  the  rent,  it  shall  be  competent  to 
her  to  remove  to  another  house :  so  also  shall  it  be  competent  to  her  to 
remove  if  the  owner  of  the  house  ejects  her. 

2908.  (2008.)  And  if  the  woman,  who  is  observing  her  Idduty  is  a 
minor,  it  is  lawful  for  her  to  go  out  of  the  house,  unless  the  divorce  iff 
reversible,  when  she  cannot  go  out  of  the  house  ejEcept  with  her  hus- 
band's permission. 

2909.  (2009.)  And  a  Kitabya  woman  is  in  the  same  position  as  a^ 
female  minor  in  this  matter  (t.e.,  in  the  matter  of  going  out  of  the 
house). 

2910.  (2010.)  And  if  the  woman,  who  is  observing  her  Iddut,  is 
(a  Mumlooka  or)  owned-property,  being  a  kin  (i.6.,  a  mere  slave  without 
any  right  whatever),  or  a  Mookatvha  or  an  Oommri-vmhid,  it  shall  be  com- 
petent to  her  to  go  out  of  the  house  if  her  master  has  not  assigned  her  a 
fixed  room  {Tvhweeah).  And  if  the  master  has  assigned  her  a  fixed  room^ 
she  shall  not  go  out  of  the  house,  except  when  the  master  turns  her  out. 

2911-  (2011.)  And  a  woman,  who  is  observing  her  Iddat  (after  hain 
divorce,  or  after  her  husband's  death),  shall  (if  she  is  grown  up,  and  of  age) 
avoid  all  ornamentation  (to  set  off  the  charms  of  her  person) ;  such  for 
instance  as  the  use  of  antimony  (or  collyrium),  the  use  of  henna  and  (the 
practice  of)  illuminating  the  face  {Khizah)^  the  use  of  oil  or  the  putting  on 
of  ornaments,  using  scent,  wearing  scented  cloth,  and  cloth  colored 
with  saffron,  and  cloth  colored  red,  except  when  the  cloth  is  so  colored 
that  if  washed  the  color  suffers  no  deterioration,  and  the  wearing  of  Eusb 
cloth  (a  fine  linen  cloth  made  in  Egypt) .  Audit  is  reported  from  Aboo 
Tusoof y  on  whom  be  peace,  that  there  is  no  fear  if  she  wears  silk  and 
£usb. 

And  if  the  woman  is  observing  her  Iddut  on  account  of  reversible 


890  THE  TAGOBK  LAW  LECTURES,  1891-92. 

divorce,  it  shall  not  be  obligatory  on  her  to  go  into  monrning  (or  observe 
Hidad). 

The  prohibition  against  the  use  of  antimony  is  when  the  antimony 
is  used  for  the  parpose  of  ornamentation ;  bat  when  she  uses  antimony 
not  for  the  parpose  of  ornamentation  (but  for  its  medicinal  yirtae), 
it  is  allowable  to  her  to  do  so.  So  also  if  she  wears  silks  or  ases  oil  on 
accoant  of  pain,  and  not  with  the  object  of  ornamentation,  it  is  allowable 
to  her  to  do  so. 

2912.  (2012.)  And  if  she  (that  is,  the  woman,  who  is  observing  her 
Iddut)  combs  her  hair,  then  the  learned  lawyers  bave  held  that  if  she  ases 
that  part  of  the  comb  where  the  teeth  of  the  comb  are  more  wide  apart, 
there  is  no  harm  in  her  asing  the  comb ;  bat  what  is  abominable  for  her 
is  to  nse  the  other  side  of  the  comb,  becaase  sach  side  of  the  comb  is  ased 
with  the  object  of  adornment. 

2913-  (2013.)  And  so  if  she  (that  is,  the  woman,  who  is  observing 
her  Iddut)y  has  only  one  salt  of  clothes,  it  is  lawful  for  her  to  ase  the  same, 
although  the  same  may  be  colored. 

2914.     (2014.)     And  if  a  man  marries  a  female  slave  (belonging  to 
another)  and  if  after  having  intercourse  with  her,  he  becomes  her  owner,  and 
she  gives   birth  (to  a  child)  from  him,  the  marriage  between  them  shall 
become  (cancelled  or)  invalid  (Fasid),  it  is  not  obligatory  on  her  to  (abstain 
from  decorating   her  person  or)  observe  moarning  (Hidad).    And  if  the 
husband   (now  her   master)  is   desirous   of  giving  her  in   marriage    to 
another  person,   it  shall  not  be  lawful  for  him  to  do  so,  until  she  geta 
two  menses  (from  the  time  of  purchase  when  the  marriage  became  unlaw- 
ful).    And  if  he  emancipates  her  (after  purchasing  her),  it  is   obligatory 
on  her  to  observe  two  Idduts,  one  Iddut  resulting  from  the  (cancella- 
tion or)  invalidity  (or  Fasad)  of  the   marriage,  (in  which  the   Iddut  con- 
sists of  two  menses,  see  paragraph  1955),  which  carries  with  it  the  liability 
(to  abstain  from  decorating   her  person  or)   observe   mourning  {HicUid)  ; 
and  the  other  Iddut  is  the  Iddut  of  emancipation,  which  does  hot  involve 
(the  necessity  for)  Hidad  (and  the  period  of  this  Iddut  is  three  menses,  see 
paragraph    1953)  ;    she  will   thus  observe   mourning   {Hidad)  for    two 
menses  (in  which  both  sorts  of  Iddut  combine  and  ran  on,  so  that  there  is 
Tudakhool  or  merger  between  them  in  regard  to  the  two  menses  relating^  to 
the  two  Idduta)  and  not  in  the  third  menses.     And  if  the  husband  (qow 
master)  emancipates  her  after  the  woman  has  had  two  menses  (by  vrhich 


THE   HOTUBDA.  WHO    INHERITS.  391 

the  Iddut  of  tbe  cancellation  of  the  marriage  becomes  completed)  after 
the  marriage  had  (been  dissolved  or)  become  {Fasid  or)  invalid  (on 
account  of  the  purchase  as  aforesaid),  it  is  obligatory  on  her  to  observe 
her  Iddut  for  three  menses  (because  her  status  now  becomes  changed 
and  she  becomes  a  free  woman,  and  a  slave  when  she  becomes  a  free 
woman  shall  observe  Iddui  for  three  menses)  and  there  is  no  obligation 
to  observe  Eidad  in  this  case. 

2915.  (2015.)  And  a  woman,  who  is  observing  her  Iddut  from  tin 
invalid  (or  Fasid)  marriage^  is  entitled  to  go  out  of  the  house,  and  there  is 
no  liability  of  mourning  on  her  (because  there  was  no  naimut-i-nikah 
or  blessings  of  marriage  which  she  could  have  lost,  and  for  which  she 
might  express  mourning)  just  as  it  is  not  obligatory  on  her  to  observe  the 
Iddut  of  death  (because  she  is  really  no  wife). 

2916-  (2016.)  And  a  Kitabya  woman  is  not  obliged  to  observe 
mourning. 

God  knows  best. 


Section  IV. 
ON  THE  MOTUDDA  (OE  A  WOMAN  OBSBRYING  HER  IDDUT)  WHO  INHERITS. 

2917*  (2017.)  A  man  gives  reversible  divorce  to  his  wife,  and  then 
dies  whilst  the  woman  is  observing  her  Iddtit  (from  such  divorce)  :  she  shall 
inherit,  whether  the  divorce  was  given  whilst  the  husband  was  in  health  or 
in  sickness :  so  also  if  the  woman  dies  whilst  she  is  observing  her  Iddui 
(in  a  reversible  divorce),  the  husband  shall  inherit  to  her. 

2918.     (2018.)    And  if  the  husband  irreversibly  divorces  his  wife  whilst 
he  is  in  health,  and  then  becomes  sick  and  dies  whilst  the  woman  is  observing 
her  Iddut  (from  such  divorce),  the  woman  shall  not  inherit  to  her  husband 
(because  having  divorced  her  whilst  he  was  in  health,  his  divorce  was  bond 
fide^  and  he  was  not  actuated  by  any  motive  to  deprive  her  of  her  right  of 
inheritance);  but  if  he  divorces  her  irreversibly  whilst  he  is  sick  ({.e.,  in 
Murz)  ;  then,  if  the  divorce  was  given  by  him  at  the  woman's  request,  she 
shall  also  not  inherit  (because  the  woman  herself  acted  to  the  detriment  of 
her  future  right  of  inheritance);  but  if  he  divorces  her  irreversibly  with- 
out a  request  from  her  (and  this  is  the  case  in  which  the  husband  is  Fatr* 
bil-Tulak)   and  after  the  divorce  the  husband  dies  whilst  the  woman  is 
observing  her  Iddut  from  such  divorce,  then  the  woman  shall  inherit  to 
her  husband  according  to  us  (Aboo  Haneefa,  Mahomed  and  Aboo  Yusoof) ; 


392  THE    TAOORB   LAW   LECTUEKB,    1891>92. 

bnt  if  the  busbaod  dies  (not  wbilst  the  woman  is  observing  her  Iddut^ 
but)  after  the  expiry  of  the  IdAui,  then  the  woman  is  not  entitled  to 
inherit  to  her  husband :  but  Malik  and  Ibn*i-Aboo  Lajla,  on  whom  be 
peace,  say,  that  the  woman  shall  be  entitled  to  the  inheritance  (even  if 
the  husband  dies  after  the  expiry  of  the  Iddut). 

2919.  (2019.)  And  the  principle  in  tliis  matter  is  that  when  one  of 
the  spouses  chooses  to  get  separated  after  the  accrual  of  the  right  of  the 
other  to  his  (or  her)  property  (and  such  right  of  the  heir  arises  at  the  time 
of  the  Murz-ool-mout  of  the  owner),  then  the  other  person  shall  inherit 
to  the  first-mentioned.  And  the  right  of  the  other  to  the  property 
of  the  first-mentioned  person,  accrues  only  when  one  of  the  spouses  (i.e., 
the  owner  of  the  property)  is  reduced  to  a  condition  when  destruction 
(i.e.,  death)  is  (more)  probable  from  his  condition  (than  his  survival)  by 
reason  of  sickness  or  other  cause,  {e.g.,  when  a  man  is  being  taken  for 
Kisas) :  and  the  right  of  the  other  person  does,  not  appertain  when  the 
first  person  is  only  sick  (without  being  reduced  to  such  a  condition 
as  aforesaid),  because  no  man  is  free  from  sickness,  and  every  disease 
does  not  lead  to  destruction. 

2920.  (2020.)  And  it  is  necessary  to  lay  down  a  rule  (for  Murs- 
ool-mout)  which  shall  be  universal.  The  learned  lawyers  have  held  that  if 
the  sick  man  is  a  man  who  has  become  thin  from  sickness,  so  that  he 
becomes  bed-ridden  and  is  rendered  incapable  of  maintaining  organization 
in  (or  managing)  outside  affairs,  and  his  sickness  is  every  day  increasing, 
then  the  right  of  the  other  party  (that  is,  the  wife)  accrues  to  (or  comes 
to  be  connected  with)  his  property;  because  the  probability  from  his 
condition  is  dissolution  ;  and  then  if  such  a  man,  in  such  a  condition, 
divorces  his  wife,  he  is  said  to  be  a  Farr  (i.e.,  literally  one  who  is  run- 
ning away,  that  is,  a  run-away  with  his  estate,  or  one  who  is  trying  to 
prevent  his  wife  from  inheriting  to  him). 

And  if  a  woman  is  sick,  then  some  of  the  learned  lawyers  have  said 
that  if  she  is  not  able  to  say  her  prayers  standing,  and  is  unable  to  go  to 
the  privy  (or  mukhruj)  without  assistance,  she  is  held  to  be  bed-ridden 
{Saheb-i'Firash).  And  regard  is  to  be  had  in  her  case  to  inability  to 
manage  inside  (or  internal  domestic)  affairs ;  and  in  the  case  of  a  man, 
regard  is  to  be  had  to  incapacity  to  manage  outside  affairs. 

But  a  person  who  is  able  to  go  about  to  meet  his  wants,  bnt  gets  f  e^er 
every  day,  is  like  a  man  in  health.  But  a  person  who  is  decrepid  {l£ook^ad 
or  cripple)  and  one  who  is  suffering  from  paralysis,  whose  complaint  does 


THE   H0TT7DDA  WHO   INHIBBITS.  898 

not  go  on  increasing  every  day,  is  like  one  in  health.  So  also  one  who  is 
woanded  or  is  suffering  from  pain,  bnfc  who  is  not  by  sach  wound  or  pain 
rendered  bed-ridden,  is  like  one  in  health. 

2921.  (2021.)  And  if  a  man,  who  is  bed-ridden,  divorces  his  wife, 
and  is  afterwards  killed,  or  dies  daring  that  sickness  from  a  cans6 
other  than  that  sickness  from  which  he  was  suffering,  that  man  shall  be 
held  to  be  a  Farr. 

2922.  (2022.)  And  if  one,  who  is  arrayed  in  rank  against  an  enemy 
for  battle,  divorces  his  wife,  he  is  not  to  be  held  a  Farr ;  but  if  he 
advances  from  his  rank  to  {hiraz  or)  engage  with  the  enemy  in  an  actual 
fight,  and  divorces  his  wife,  he  is  held  to  be  a  Farr;  but  it  is  reported 
from  Aboo  Haneefa,  on  whom  be  peace,  in  the  Nawadir,  that  such  a 
taian  shall  not  be  held  to  be  a  Farr. 

2923.  (2023.)  And  if  he  who  is  imprisoned  under  a  sentence  of 
{Kisas)  death,  or  of  being  stoned  to  death,  divorces  his  wife,  he 
shall  not  be  considered  a  Farr  (because  his  death  is  not  imminent— 7 
mercj  might  be  extended  to  him);  but  if  he  is  taken  out  for  the 
purpose  of  being  put  to  death,  and  then  divorces  his  wife,  he  is  h  Id 
to  be  a  Farr. 

2924.  (2024.)  And  when  a  man  is  riding  the  ocean,  and  the  ship 
goes  to  pieces^  and  he  remains  on  a  plank,  and  divorces  his  wife^  he  is  held 
to  he  a  Farr  ;  but  if  he  gives  the  divorce  after  the  commotion  in  the  ship 
{caused  by  a  storm)  has  begun,  but  before  the  ship  goes  to  pieces,  he  is 
not  held  to  be  a  Farr. 

2925*  (2025.)  And  if  a  man  becomes  bed-ridden,  and  divorces  his 
wife,  and  then  recovers,  and  then  again  becomes  sick  and  dies,  (even) 
whilst  his  wife  is  still  observing- her  li^ti^,  he  shall  not  be  held  to  be  a 
Farr. 

2926.  (2026.)  And  if  a  sick  man  says  to  his  wife,  ''I  divorced  thee 
thrice  whilst  I  was  in  health/'  and  the  woman  falsifies  him  (saying,  <<  You 
did  not  divorce  me  whilst  in  health,")  and  the  husband  then  dies  whilst 
the  tvoman  is  still  observing  her  Iddut  (that  is,  Idd^t  of  what  is  to  be 
considered  as  divorce  resulting  from  the  man's  own  admission  of  divorce) 
the  woman  shall  inherit  to  her  husband. 

2927.  (2027.)  Aiid  if  a  sick  man  gives  his  wife  a  complete  (bain) 
divorce  after  he  has  had  sexual  intercourse  with  her,  and  afterwards 
8aj8   to  her,   ^*  When  I  shall  marry  thee,  then  thou  art  thrice  divorced," 

50 


394  THB  TAOOBl   LAW  LBC?TnRE8^    1 8^1 -92. 

and  then  marries  her  during  the  IddtU^  the  woman  shall  become  thrice 
divorced.  And  if  the  husband  dies  (after  the  fresh  marriage  which  pro- 
duced fresh  divorces)  whilst  the  wife  is  still  observing  her  Iddut,  then  the 
husband's  death  is  held  to  have  taken  place  in  the  Iddut,  which  has  become 
obligatory  by  the  operation  of  the  divorces  consequent  on  the  second  mar* 
riage  according  to  Aboo  Haneefa  and  Aboo  Yusoof,  on  whom  be  peace, 
(and  he  shall  not  be  considered  a  Fartf  and,  therefore,  she  shall  not 
inherit  to  her  husband),  and  therefore,  the  consequence  of  Firar  (or 
intention  to  deprive  the  wife  of  her  inheritance  by  the  bain  divorce 
pronounced  in  sickness)  involved  in  the  first  divorce  is  rendered  void  by 
reason  of  the  subsequent  marriage,  (which  nullified  or  removed  what 
apparently  was  his  intention  in  giving  a  divorce  in  sickneps,  viz,,  to 
deprive  her  of  her  inheritance  by  thus  giving  her  a  divorce  in  sickness,  the 
subsequent  marriage  shewed  that  he  had  no  intention  to  be  a  Farr  ;  and 
this  marriage  removed  from  him  the  vmsf  or  quality  or  character  of  being 
a  Farr :  the  divorces  consequent  on  the  second  marriage  took  place  after 
that  marriage,  and  that  marriage  negatived  the  intention  of  Firar) ; 
although  this  marriage  is  such  that  divorce  was  caused  after  it  (that  is, 
as  a  consequence  of  the  marriage)  ;  but  the  marriage  took  place  by  her 
own  act,  and,  therefore,  the  husband  shall  not  be  deemed  to  be  a  Farr, 
(That  is,  the  sick  man  having  divorced  his  wife  irreversibly,  that  divorce 
involved  liability  to  Iddut;  and  if  the  husband  had  died  during  the 
Idduty  he  would  have  been  a  Farr,  and  the  wife  would  have  inherited 
to  him :  but  he  marries  her  again  during  the  Iddut,  and  the  effect  of 
that  was  that  the  existing  Iddut  came  to  an  end  by  reason  of  that  Tery 
marriage,  so  that  the  husband  no  longer  remained  a  Farr;  and  if  the 
marriage  itself  had  not  resulted  in  divorce,  and  if  the  husband  Lad 
died,  the  wife  would  have  inherited;  but  the  marriage  was  such  that  by 
the  husband's  previous  oath,  the  marriage  itself  resulted  in  three  divorces; 
and  the  effect  of  the  divorces  was  that  a  new  Iddut  commenced  as  soon 
as  the  three  divorces  were  caused— the  previous  Iddut  having  come  to  an 
end  by  the  marriage;  then  the  husband  dies,  after  the  first  Iddut  had  tlius 
come  to  an  end  as  aforesaid,  although  the  period  embraced  by  it  had  not 
expired,  and  after  the  second  Iddut  had  commenced;  therefore,  the  divorce 
of  the  Firar  kind  was  rendered  nugatory). 

But,  according  to  the  view  taken  by  Mahomed,  on  whom  be  peace,  it 
is  obligatory  on  her  to  finish  the  first  Iddut  (and  the  marriage  does .  not 
put  an  end  to  the  first  Iddut,  because  the  marriage  brings  divorces  in 


TH8  HOTUDDA   WHO   INHERITS.  395 

Hs  train),  and  therefore  if  the  first  divorce  was  given  whilst  the  has* 
baud  was  sick,  then  the  woman  shall  iuberit  (and  the  hnsband  shall 
coutinne  to  be  a  Farr)  ;  and  if  the  fir»t  divorce  was  given  in  heatth,  she^ 
shall  uot  inherit. 

[See  Voluaie  II,  Sharuh  Vikaya,  pages  68  and  69,  and  Eudd-ool  Mooh-* 

tar,  page  862.    Taleek  or  condition  in  regard  to  divolrce  denotes  that  when 

Hie  condition  is  realised,  then  the  husband  is  supposed  to  say, — *'  Thou 

art  divorced/'     If  the  husband  is  in  health  when  he  pronounces  the' 

formula  of  conditional  divorce,   and  if  the  condition  is  realised  whilst  he 

is  sick,  then  the  case  stands  as  follows  : — If  the  condition  is  an  act  of  the 

husband,  whether  it  is  a  necessary  act,  e.g.,  eating  or  drinking,  or  not,  the 

woman  shall  be  heir;  if  it  is  the  act  of  the  woman,  then  if  the  act 

is  a  necessary  act,  she   shall  be  heir,  except  according  to  the  view  of 

JfaLomed  and  Zoofur ;  if  the  act  is  the  act  of  the  woman,,  but  not  a* 

necessary  act,  then  she  shall  not  be  heir;  if  the  condition  is  not  the  act 

of  the  husband  or  of    the  wife,  then  the  woman    shall  not    be  heir* 

When  the  husband  has  pronounced  the  formula  of  divorce  in  a  state  of 

sickness,  and  the  condition  is  realised  in  sickness,   then   the  case  stands- 

as  follows  : — If  the  condition  is  the  act  of  the  husband  whether  the  act 

is  necessary  or  not,  the    woman  shall  inl^rit ;  if  the  condition  is  the^ 

act  of  the  wife,  and  it  is  a  necessary  act,  then  she  shall  be  heir;  if  the* 

condition  is  the  act  of  the  wife  but  the  act  is  not  necessary,  then  she  shall 

not  be  heir ;  if  the  condition  is  not  the  act  of  the  husband  or  the  wife, 

then  she  shall  be  heir.     It  must  be  noted  that  the  divorce  in  all -these 

cases  shall  be  caused,  and  Firar  does  not  interfere  with  the  divorce  beings 

cansed ;  it  only,  in  certain  cases,  defeats  the  intention  of  the  husband  to» 

deprive  the  wife  of  her  right  of  inheritance]* 

2928,     (2028.)     When  a  man  becomes  an  apostate -<-may  God  prevent 

snch  a  calamity—  (and  his  wife  remains  a  Moslem)  and  he  is  ptit  to  death 

(as  a  coBsequence  of  his  apostacy),  or  he  goes  into  the  Dar-ool  Huruhy  or  dies- 

(a  nataral  death)  in  the  Dar^ool  Islam  whilst  an  apostate,  his  wife  shall' 

inherit   to  bim  (the  ease  is  so  put  because  a  doubt  might  arise  whether 

she   shall    so  inherit;   for  four    causes    prevent  inheritance, — Biik  or 

being  a    slave;  difference    in   religion;  difiBerence  in    country,   that  is, 

whea  tUe  deceased  lived  in  ihe  Dar-ool  Islam  and   the  heir  lives  in  the 

Dar-^ocl    Hurvb  or  vice'Versd ;  and    murder   of  the  late  owner  by  the 

heir)  :  and  if  the  wife  becomes  an  apostate,  and  .  then  dies  or  goes  to  th^ 

Dar-ool  Hurub,  then  if.  her.  apostasy  was   whilst  she  was  in-  healthy  her 


8^  TH£   TAGORE   LAW  LECT0XB6,   1891-92. 

l)iisbaiid  sball  not  inherit  to  ber,  bat  if  she  was  at  tbat  time  sick  (and 
dies  of  that  sickness) .  then  her  basband  shall  inherit  to  her^  reasoning 
from  weak  analogy  {IsHhaan):  and  if  both  of  tbem  at  once  become 
apostate,  and  then  either  of  them  becomes  a  Moslem,  and  then  one 
of  them  dies,  then^  if  of  the  two  the  Moslem  dies,  the  aposti^te  shall 
not  be  an  heir ;  bat  if  the  apostate  dies,  then,  if  the  deceased  apostate 
i^as  the  basband,  the  Moslem  woman  shall  inherit  to  him,  bat  if  the 
deceased  was  the  wife  then,  if  her  apostasy  was  whilst  she  was  sick, 
the  Moslem  hasband  sball  inherit  to  her  (becanse  then  her  object  in 
becoming  an  apostate  was  to  deprive  her  hasband  of  his  right),  but  if 
her  said  act  was  whilst  she  was  in  health,  then  be  shall  not  inherit. 

[Note.— See  Radd-ool  Moohtar,  Volume  II,  page  869.    If  the  wife 
becomes  an  apostate,  and,  before  the  expiry  of  the  Iddut,  dies,  or  goes  to 
the  Dar-ool  Huruby  then,  if  the  apostasy  was  in  sickness,  the  hasband  shall 
be  heir  by  Istihsan  ;  becsase  it  is  clear  that  the  reason  of  her  haying  be« 
come  an  apostate  was  to  deprive  the  hasband  of  his  right  as  her  heir,  and 
sbe,  therefore,  became  a  Farry  althongh  Kyas  would  lead  to  the  conclusion 
that  the  hasband  should  not  inherit  on  account  of  the  rule  by  which  dif- 
ference of  religion  prohibits  rights  of  mutual  inheritance :  if  the  woman 
becomes  an  apostate  whilst  in  health,  then  the  husband  shall  not  be  an 
heir;  because  by  the  apostasy  she  became  bain  from  her  husband,  and  the 
consequence  of    a  woman's  apostasy  not  being  death  but  imprisonment, 
her  apostasy  is  not  regarded  in  the  light  of  sickness.    But  if  the  hasband 
becomes  an  apostate,  the  consequence  of  the  apostasy  is  that  he  shall  be 
put  to  death,  and,  therefore,  the   period  between   his  apostasy   and   his 
execution  is  regarded  like  Murz'OoIr^nout ;  therefore  the  wife  shall  inherit 
to  the  husband  whether  his  apostasy  was  in  health  or  in  sickness  ;  because 
apostasy  is  like  Murz-odL-moui^  and  the   apostasy  having  resulted  in  the 
cancellation  or  Faskh  of  the  Nikah,  it  is  clear  that  this  dissolution  of   the 
marriage  and  the  subsequent  separation  between  the  parties  took  place 
whilst  the  husband   was  in  Murz-ool-mout ;  and,  therefore,  the  husband 
became  a  Farr.    If  both  the  liusband  and  the  wife  become  apostate  at  one 
and  the  same  time,  their  Sikah  does  not   become  dissolved ;    if,  tbere- 
fore,  the  woman  returns  to  Islami   and  the  husband  dies  an  apostate^  she 
^hall  be    heir    to  her  husband;    because^   when  the  woman  became  a 
]^Ioslem,  the  Nikah  was  dissolved,  and  the  reason  of  the  dissolution  was  the 
apostasy  of  the  husband,  and  his  apostasy  is  equivalent  to  Murz-oot^mout ; 
and,  therefore^  the  huslw^d  became  a^arr;  if  the  husband  rettiras  to 


THE   UOTUDDA   WHO   INHESITB.  397 

Islam,  then  if  the.  woman  dies,  the  husband  shall  not  be  heir  if  the  woman 
bad  become  an  apostate  whilst  in  health,  because  a  woman's  apostasy  is 
not  regarded  as  Mwrz-ool-niout,  and,  therefore,  the  wife  does  not  become  a 
Farr,  and  the  dissolution  of  marriage  had  cut  off  all  relationship  of 
husband  and  wife,  and  the  parties  had  become  strangers :  if  the  woman's 
apostasy  wns  whilst  she  was  in  sickness,  then  she  becomes  aJParr^and  the 
husband  shall  be  her  heir]. 

2929.  (2029.)  When  the  wife  whilst  she  is  sick,  has  sexual  inter- 
course {Taawut)  with  her  husband's  son,  and  then  dies  during  her  Iddut, 
(resulting  from  the  dissolution  of  marriage  consequent  on  such  inter- 
course), her  husband  shall  inherit  to  her,  reasoning  from  {latihsan  or) 
weak  analogy  (because — see  Rudd-ool  Moohtar,  Volume  IIj  page  868 — the 
woman's  act  was  the  cause  of  the  separation ;  and  her  intention  must  have 
been  to  deprive  the  husband  of  the  inheritance :  she  was,  therefore,  a 
Farra). 

2930.  (2030.)  A  woman,  whose  husband  had  divorced  her  thrice 
and  then  died,  says,  that  the  divorce  was  whilst  he  was  sick  (she,  there- 
fore, claims  that  the  man  was  a  Farr,  and  that  she  is  entitled  to  inherit) ; 
but  the  heirs  say  that  the  divorce  was  in  health,  then  (in  the  absence  of 
any  evidence  to  the  contrary,  the  divorce  shall  be  regarded  as  having  been 
given  in  sickness,  and)  the  woman's  word  shall  be  believed. 

2931.  (2031.)    And  if  the  wife,   who  is  the  slave  (of  another),  is 
emancipated,  and  the  husband  dies,  and  the  woman  claims  to  have  been 
emancipated  whilst  her  husband  was  alive  (she  saying  that  the  emancipa- 
tion took  place  first  and  the  death  afterwards,  because,  in  the  event  of  the 
emancipation  taking  place  before  the  death,  she  would  have  the  position 
of    a  free  woman  and  would  inherit  to  her  husband),  and  the  heirs  claim 
that  the  emancipation  took  place  after  the  husband's  death,  the  word  to  be 
believed  is  that  of  the  heirs.    And  if  the  master  says,  **  I  had  emancipated 
her  during  the  life  of  her  husband,"  the  word  of  the  master  shall  not  be 
accepted  (because  he  is  interested  in  the  question;  because  if  she  gets  the 
inheritance,  the  master  would  be  entitled  by  Willa  to  inherit  to  the  woman 
who  is  now  free  and  whose  property,  in  the  event  of   her  leaving  no  heir, 
-wonld  go,  at  her  death,  to  the  person,  who  was  her  late  master :  as  a  slave 
she  had  no  capacity  of  inheritance^  it  is  only  after  her  freedom  that  she 
gets  a  title  to  inherit). 

2932.     (2032.)    So  also  if  the  woman  is  a  Kiiahya  under  a  Moslem 
hasband^  and  she  becomes  a  Moslem,  and  her  husband  dies,  and  she  says 


898  THE  TAOOBS  LAW  LECTUKES^  189t-92. 

^'  I  became  a  Moslem  during  the  lifetime  of  my  huRband/'  and  tbe  heiiY 
eajy  **  No,  on  the  otber  band,  sbe  became  a  Moslem  after  tbe  bnsband's 
deatli,"  tbe  word  to  be  accepted  is  tbat  of  tbe  heirs  (in  tbe  absence  of 
hyyuna  or  evidence), 

2933.  (2038.)  A  sick  man  divorces  bis  wife  (whilst  be  is  sick,  which 
would  not  deprive  tbe  wife  of  her  right  of  inheritance  as  the  husband 
would  be  a  Farr)  tbe  wife  then  kills  her  husband :  she  shall  not  be 
Entitled  to  inherit. 

2934.  (2034.)  And  if  tbe  sick  man  says  to  bis  wife,  who  is  (the)' 
slave  girl  (of  another),  ^*  When  thou  shalt  be  emancipated,  then  thoa  art 
divorced  thrice ;  "  and  if  her  Moula  then  emancipates  her  (and  the  divorce 
comes  into  operation,  and  her  Iddut  commences) ;  and  if  the  husband  then 
dies  whilst  the  woman  is  still  in  her  Iddut :  she  shall  be  entitled  to  inherit 
(see  note  to  paragraph  2027). 

2935.  (2085.)  And  if  the  husband  (who  is  sick)  says  to  his  wife, 
who  is  the  slave  (of  another), — "  Thou  art  diyorced  thrice  to-morrow ; " 
and  afterwards  her  master  (or  Moula)  says  to  her,  '^  Thon  art  a  free  woman 
to-morrow; "  or  the  Movla  makes  the  commencement  first,  and  the  husband 
makes  the  statement  afterwards;  and  the  morrow  arrives :  both  the  divorce 
and  the  emancipation  shall  take  place,  and  the  woman  shall  not  inberit 
(because  slavery  is  a  cause  of  deprivation  of  heirship,  and  here  both  the 
divorce  and  tbe  emancipation  take  place  at  once  wben  the  morrow  arrives: 
ihe  husband  is  not  a  Farr,  because  tbe  wife  was  a  slave  and  not  entitled  to 
inheritance). 

2936-  (2036.)  And  if  the  Moula  says  to  his  female  slave,  '<  Tbou  art 
free  to-moirow; "  and  her  husband  says  to  her,  ^'Tbou  art  thrice  divorced 
fkfter  to-morrow  ;  "  then  if  tbe  husband  knows,  at  tbe  time  he  says  so,  that 
tbe  woman's  master  has  made  the  declaration,  be  shall  be  held  to  be  a  Farr 
(provided  tbe  husband's  statement  was  made  whilst  he  was  sick :  obviously 
it  was  made  to  deprive  bis  wife  of  her  right  of  inheritance :  if  he  says 
so  whilst  in  health,  be  is  not  a  Farr  in  any  case) :  not  otherwise,  (that  is,  if 
the  husband  did  not  know  of  the  master's  declaration,  he  is  not  a  Farr, 
filtbougU  he.  might  be  sick  at  tbe  time  of  making  the  statement;  beeaase 
this  is  a  case  in  which  the  woman,  on  account  of  her  slavery,  could  liave 
no  right  of  inheritance). 

2937.    (2037.)     A  man.  emancipates  bis  female  slave  whilst  she  is 
the  wife  of  another ;  her  husband  then  divorces  her  thrice  whilst  he  is  sick. 


THE   MOTUDDA  WHO   INHERITS.  399 

he  previously  knowing  {%.  a.,  knowing  before  giving  the  divorce),  that  the 
master  has  emancipated  her:  he  shall  be  considered  to  be  a  Farr  (and  his 
irife  fiball  not  be  depriyed  of  her  right  of  inheritance,  which  he  knew  was 
secured  to  her  by  her  emancipation). 

8938.  (2038.)  When  a  Moslem,  who  is  sick,  says  to  his  Kitahya  wife, 
"  When  thoa  shalt  become  a  Moslem,  then  thou  art  divorced  thrice," 
(apprehending  that  if  she  were  to  become  a  Moslem  before  his  death,  she 
would  inherit  to  him);  she  then  becomes  a  Moslem,  and  the  husband  then 
dies :  the  husband  shall  be  held  to  be  a  Farr. 

2939.  (2089.)  A  woman  lays  claim  against  her  sick  husband  that 
he  divorced  her  thrice,  and  the  husband  denies  the  allegation,  and  the 
Kazee  administers  oath  to  the  husband,  who  takes  the  oath  (in  support  of 
Lis  statement  that  he  has  not  given  the  divorce) ;  the  woman  then  confirms 
the  husband  (saying  he  did  not  divorce  me  and  my  claim  is  false) ; 
the  husband  dies ;  then  if  she  reverts  to  the  confirmation  before  the 
husband's  death  (that  is,  if  before  her  husband's  death,  she  confirms  his 
statement  of  there  having  been  no  divorce),  she  shall  be  entitled  to  her 
inheritance;  but  if  she  reverts  to  the  confirmation  of  the  husband's 
statement  after  his  death,  then  her  confirmation  is  not  valid  (and  she  shall 
be  bound  by  her  statement  that  there  was  a  divorce,  and  she  shall  not 
inherit). 

2940.  (2040.)  A  sick  man  says  to  his  two  wives,  ^<  If  you  two  shall 
enter  the  house,  then  you  two  are  divorced  thrice ; "  then  both  of  them 
enter  the  house  at  once ;  the  husband  then  dies,  whilst  they  both  are  in 
tbeir  Iddut :  both  shall  inherit  to  the  husband  (because  the  man  became  a 
Farr)»  Bat  if  one  of  the  wives  enters  the  house  before  the  other,  then 
she,  who  enters  first  shall  inherit  to  the  husband,  but  the  second  wife 
shall  not  inherit. 

2941.  (2041.)  A  man,  whilst  in  health,  says  to  his  wife  :  *^  When  I 
and  so  and  so  desire,  then  thou  art  divorced  thrice ; "  and  he  then  be- 
comes sick ;  and  the  husband  and  the  stranger  both  at  once  desire 
the  di Force,  or  the  husband  desires  the  divorce,  and  afterwards  the 
stranger  desires  the  divorce ;  and  then  the  husband  dies  :  the  wife  shall 
not  be  entitled  to  inherit.  But  if  the  stranger  first  desires  the  divorce  and 
afterwards  the  husband  desires  it,  then  the  wife  shall  inherit  (because  here 
the  stranger's  wish  is  not  effective,  and  it  is  not  until  the  husband  desired 
the  divorce  that  the  divorce,  came  to  be  caused,  and,  therefore,  the  husband 
is  considered  to  be  a  Farr). 


400  THE  TAOOBI  LAW  LICTURBB,  1891-92. 

[Note  to  paragraphs  2040  and  2041.    See  Bahiir-oor  Baik/ Volame 
lYy  page   52,  where  the  case  in  paragraph  2041  is  exactly  set  forth  and 
explained.    The  same  reason  applies  to  paragraph  2040.    The  reason  for 
the  rule  in  2041  is  this :  the  divorce  depends  on  the  wish  both  of   the 
husband  and  the  stranger ;  therefore  the  wish  of  only  one  of  the  two  can* 
not  be  the  cause  of  the  divorce ;  but  the  wish  of  both,  whether  found 
at  once  or  one  after  the  other,  is  the  cause  of  the  divorce ;  so  that  the 
divorce  is  caused  in  all  three  cases;  viz.,  (I)  when  both  the  husband  and 
stranger  wish  the  divorce  at  one  and  the  same  time ;  or  (2)  when  the 
husband  .  declares   his  wish  first  and    the  stranger  afterwards ;   or   (3) 
vice  versd.     But  (I)  when  both  of  them  wish  the  divorce,  the  wife  shall  not 
be  the  heir;  because  the  divorce  does  not  take  place  simply  by  the  act  of  the 
husband  ;  in  other  words,  the  husband's  wish  is  not  the  full  cause  or  lUut-i- 
iaam  for  the  happening  of  the  divorce:   so  also  (II)  if  the  husband  makes 
the  commencement  and  wishes  the  divorce,  there  can  by  his  wish  alone  be 
no  divorce,  but  when  the  stranger  afterwards  wishes  the  divorce,  then 
the  wish  of  both  of  tbem  is  now  found,  and  the  woman  shall  become 
divorced,  but  she  shall  not  inherit;     because    the    divorce    was    com- 
pleted by  the   subsequent  wish  of  the  stranger :  in  both  these  cases  (I) 
and  (II)  although  the  divorce  has  become  effective,  still  the  husband 
is    not   a    JParr;    but    if    the    stranger  makes  the  commencement  and 
wishes    the    divorce,  and  the  husband  afterwards  wishes   it,    then   the 
divorce  is   effective  as  in  the  two  aforesaid  cases  (I  and  II)  but  the 
husband  shall  be  aJParr;  because  the  stranger's  wish  does  not  cause 
the  divorce,  and  the  divorce  would  not  have  been  caused  if  the  husband 
had  not  desired  it,  and,  therefore,  here  the  divorce  depends  on  the  act  of 
the  husband  within  the  rule  set  forth  in  the  note  to  paragraph  2027.     As 
regards  the  case  in  paragraph  2040,  the  act  of  both  the  wives  is  the  cause 
of  the  divorce,  and  each  is  a  stranger  as  regards   the  other ;  therefore, 
when  both  of  them  entered  the  hoiise  at  once,  the  divorce  was  caused 
on  each  by  the  joint  act  emanating  from  her  and  from   the   other    wife, 
and  the  act  of  the  latter  is  that  of  a  stranger  so  far  as  the  former  is 
concerned ;  therefore  the  cause  of  the  divorce  on  each  is  the  act   of  a 
stranger  within  the  rule  set  out  in  the  note  to  paragraph  2027  ;    and, 
therefore,  the  husband  would  be  a  Farr  ;  and  if  one  wife  enters  the  house 
first,  then  by  her  entry  alone  there  is  no  divorce  at  all,  and  when  the  second 
wife  enters  the  house,  then  divorce  is  caused  on  both,  whereas  if  she   had 
not  entered  the  house,  there  would  have  been  no  divorce  at  all  on  either  ; 


THB   UOTUDDA   WHO    INHERITS.  401 

therefore  the  act  of  the  second  was  the  cause  of  the  divorce ;  the  first 
wife  shall,  therefore,  inherit,  and  the  hnsband  shall  be  a  Farr  to  the  extent 
to  which  she  is  concerned,  because  her  divorce  was  caused  by  the  act  t)f  a 
stranger,  who  is  the  second  wife ;  and  the  second  wife  shall  not  inherit 
because  her  divorce  took  place  by  her  own  act,  and  the  husband  shall 
not  be  a  Farr  to  the  extent  to  which  she  is  concerned,  because  she  herself 
did  an  act  to  her  own  detriment]. 

2942.     (2042.)     And  when  separation  takes  place  between  the  spouses 
by  an  act  (that  is,  at  the  initiation)  of  the  wife,  whilst  the  wife  is  sick,  and 
then  the  wife  dies  during  her  Iddui  (consequent  on  the  separation)  ;  then 
if  the  separation  amounts  to  divorce,  such  for  example,  as  the  separation 
which  takes  place,  at  her  instance,  on  account  of  the  husband's  Joob 
*        *****        *        (before    marriage)    or    impotency,    or 
Lian,  then,  according  to  Aboo  Haneefa^  on  whom  be  peace,  the  husband 
shall  not  inherit  to  the  wife  (because  the  separation  being  tantamount 
to  divorce,  and  divorce  being  the  act  of  the  husband,  he  must  be  con- 
sidered to  have  himself  put  an  end  to  the  relationship  of  husband  and 
wife,  and  given  up  his  right,--«the  divorce  in  the   cases  supposed  being  a 
bain  divorce) ;  but  if  the  separation  does  not  amount  to  divorce,  such 
for  instance,  as  the  separation  which  takes  place  by  reason  of  an  infant 
female  exercising  her  option  of  puberty,  or  by  reason  of  the  woman 
exercising  her  option  of  freedom,  or  by  reason  of  the  wife  becoming  an 
apostate,  then  the  husband  shall  inherit  to  her.    (Because,  in  the  case  of 
divorce^  the  divorce  is  the  act  of  the  husband  done  in  health,  and,  there- 
fore, there  is  nothing  to  prevent  his   act  done  in  health  from  being 
operative  as  regards  inheritance ;  but  if  the  separation  partakes  of  an 
act  as  emanating  from  the  wife,  who  is  sick,  then  the  act  shall  not  have 
its  natural  effect  so  far  as  inheritance  is  concerned). 

2943.     (2043.)     A    mau  says    to  his  wife,    ^^When  I  shall  become 

sick  then  thou  art  divorced  thrice  ;^'  he  then  becomes  sick  and  dies  of 

that  sickness,  whilst  the  wife  is  still  observing  her  Iddut :  the  wife  shall 

inherit  to  liim  (because  his  intention  was  to  deprive  his  wife  of  her  right 

of  inheritance,  and  he  shall  be  considered  to  be  a  Farr :  and  although  he 

was  in  health  at  the  time  he  made  the  oath,  still  the  effect  of  the  oath . 

was  that  when  he  became  sick,  then,  by  a  fiction  of  law,  he  must  be  held 

to  have  uttered  the  words,— *'^  thou  art  divorced  '') ;  but   Abool  Kassim 

SafFar,  on    whom  be    peace,  says,    that   the   woman    shall  not    inherit 

(because  the  conditional  oath  was  expressed  while  he  was  in  health,  and 

51 


402  THB   TAaOAB   LiiW   LBOTUBBS^    1891-92* 

the  fulfil  meat  of  the  conditioa  is  not  the  act  of  the  hosband,  and^  there- 
fore, the  man  may  not  be  considered  to  be  a  Fa/rr)*  Bat  the  correct  view 
is  that  laid  down  first. 

2944.  (2044.)  A  woman  says  to  her  sick  hnsband^  '<  Divorce  me," 
and  he  divorces  her  thrice,  and  dies  afterwards  whilst  the  wonan  is 
observing  her  Iddut :  she  shall  be  entitled  to  inherit ;  becanse  the  hnsband 
(in  effect)  made  a  commencement  (by  giving  three  divorces,  instead  of 
responding  to  her  reqaest  by  giving  her  only  one  divorce),  and,  therefore, 
her  right  to  the  inheritaace  shall  not  become  void ;  jast  as  if  she  were  to 
say,  '<  Give  me  a  revokable  {BujtAe)  divorce  "  and  the  husband  were  to 
divorce  her  irreversibly.     (Compare  this  with  paragraph  2018). 

2946.  (2045.)  When  a  consumptive  husband  divorces  his  wife,  and 
the  consumption  becomes  chronic,  and  does  not  make  the  man  thin,  then 
he  must  be  regarded  as  in  health  (so  that  if  he  dies  afterwards,  his  acts 
are  not  to  be  impugned  on  the  ground  of  his  sickness). 

2946.  (2046.)  But  as  to  the  cripple  (Mookaad)  and  the  paralytic, 
it  is  laid  down  in  the  Kitab  (or  the  Book  of  Mahomed)  that  if  the  cripple 
condition  and  the  condition  of  paralysis  are  not  of  long  duration,  then 
the  man  is  just  like  a  sick  man^  and  he  shall  be  held  to  be  a  Farr  (if  he 
divorces  his  wife,  and  then  dies  before  the  expiry  of  the  Iddut) ;  but  if 
the  cripple  condition  and  the  condition  of  paralysis  are  of  long  duration, 
then  the  man  is  just  like  a  man  in  health  ;  because,  in  such  a  case, 
the  disease  is  (or  becomes)  old  (or  chronic),  and  is  not  a  killing  disease. 
And  the  Mashaikhs  have  entered  into  a  discussion  regarding  the  same ; 
and  Mahomed,  son  of  Sulma,  on  whom  be  peace,  has  said  that  if  there 
is  hope  that  the  disease  will  be  got  over  (or  cured)  by  medication, 
then  the  man  is  just  like  a  sick  man,  but  if  such  hope  is  not  enter- 
tained, then  the  man  is  to  be  regarded  as  in  health ;  and  Aboo  Jaffer 
Hindwany,  on  whom  be  peace,  has  said  that  if  the  disease  increases  daily, 
then  the  man  is  to  be  regarded  as  a  sick  man;  but  if  the  disease 
increases  at  onetime  and  decreases  at  another,  then  it  will  have  to  be  seen 
if  after  the  disease  the  man  dies  in  one  year  (that  is,  not  before  one  year 
from  the  attack),  and  in  this  case  the  man  is  just  like  one  in  health  ;  but 
if  he  dies  before  one  year,  then  he  is  just  like  a  sick  man.  And  Aboo 
Nusur  Iraky,  on  whom  be  peace,  has  reported  from  our  As'habs  (i.e., 
the  three  Imams,  viz.,  Aboo  Haneefa,  Aboo  Yusoof  and  Mahonied— 
see  Budd-ool  Moohtar,  Volume  III,  page  701 :  and  Mashaikhs  meim  those 
learned  lawyers  who  were  not  contemporaneous  with  Aboo  Haneefa)  that  it 


.:    .THIS   MOTODPA   WHO    INHERITS.  40^ 

18.  to  be  seen  if  the  man  says  liis  prayers  sitting,  and  in  this  case  he  ia  like  a 
sick  man;  but  if  he  says  hia  prayers  lying  dowa  on  his  side,  then  he  ia 
like  a  healthy  man  (becaase  in  the  former  ease,  there  is  an  apprehension 
of  his  getting  worse  and  becoming  disabled  from  saying  his. prayers  in.  a 
sitting  posture,  but  if  he  has,  for  a  time^  been  saying  his  prayers  lying  on 
hiaside,  then  he  cannot  get  worse,  and  that  mode  has  become  habitual  to 
khn). 

2947.  (2047.)  And  the  learned  haye  also  entered  into  a  discussion 
as  regards  a  man  who  is  incapacitated  personally  from  managing  his 
affairs  outside  the  house,  but  is  capable' of  managing  his  affairs  inside 
the  house  (whether  such  a  man  is  to  be  regarded  as  one  in  health  or  as  d 
sick  man) :  the  Mashaikhs  of  Balkh,  on  whom  be  peace,  have  laid  dowii 
that  when  the  man  is  capable  of  managing  his  own  necessities  (e.g., 
obeying  the  calls  of  nature,  Ac),  whether  such  necessities  are  (discharged 
and  met  with)  inside  the  house  (as  when  the  privy  is  inside  the  house)  or 
ontside  the  house,  then  he  is  just  like  one  in  health  ;  and  our  Mashaikhs, 
on  whom  be  peace,  have  held  that  when  the  man  is  incapable  of  manag- 
ing his  affairs  outside  the  house,  he  shall  be  regarded  as  sick:  and 
▼erily  have  we  already  referred  to  this  matter.     (See  paragraph  2020). 

2948.  (2048.)    A  sick  man  divorces  his  wife   (i.e.,  his  intention  is 
to   become  a  Farr)  and  then  dies  after  a  time ;  and  the  wife  says,  '^  My 
Iddut  has  not  yet  expired  '^  (the  object  being  to  get  inheritance,  because 
if  after  divorce  by  the  sick  husband  the  latter  dies  within  the  Idduty  then 
the  relationship  of  husband  and  wife  is  not  cut  off) :  then  the  word  to  be 
accepted  is  her  word  with  her  oath,  (because  as  regards  menses  and  like 
matters,  within  the  special  knowledge  of  the   wife,   her  word   is  to  be 
accepted);   but  if   she  refuses  to  take   the  oath,  then   she  shall  not 
inherit;  and  if  she  takes  the  oath,  she  shall  inherit.     And   if   the   wife 
says  nothing  (whether  her  Iddut  has  expired  or  not)  and  marries  another 
man    before  the  death  of  the  sick  man,  after  a  time  (from  the  date  of  the 
divorce),  so  that  it  is  possible  for  her  Iddut  to  have  expired  (within  that 
time,   if    the  Iddut  were  to  be  reckoned  from  the  divorce),  but  she  after- 
wards (whether  during  her  first  husband's  lifetime  or  after  his  death)  says 
(for  tlie  purpose  of  establishing  her  rightof  inheritance),    **  my  Iddut  has 
not  expired: "  her  word  is  not  to  be   accepted.     And    if  she,  instead  of 
majn-ying    again,    says,    after    divorce    "I    have    reached  the    age   of 
an    AyoM,^^  (when  the  menses  are  cut  off  and  when  her  Iddut  becomes 
three  months)  and  then  her  husband  dies  after  the  expiry  of  three  months 


404  THE   TAGOBB   LJLW  LICTDBBS^     1891-92. 

from  tlie  time  of  Ler  admission  (or  statement  relating  to  her  being  an 
Ayasa)  then  there  is  no  inheritance  (becaase  the  period  of  three  montlig 
is  the  time  of  Iddut  for  an  Ayasa^  and  the  hnsband  dies  after  the  Iddvi}*^ 
and  if  she  marries  a  second  husband  (after  the  death  of  the  first  Iiuiband 
within  the  three  months  of  her  statement  as  aforesaid)  and  gi?es  birtli  to 
a  child  by  the  second  husband,  then  she  shall  be  entitled  to  inherit  to 
the  first  husband,  and  the  second  maiTiage  shall  be  invalid;  (because tbe 
ease  shews  that  her  statement  that  she  had  become  an  Ayasa  was  i?rong; 
and  therefore  her  Iddut  from  divorce  was  not  three  mouths  but  tliree 
menses  ;  the  case  also  shews  thUt  her  Iddut  from  divorce  which  consisted 
of  three  menses  did  not  expire  before  her  husband's  death ;  therefore  the 
death  of  the  husband  took  place  before  her  Iddut  from  divorce  had 
expired,  and  therefore  she  shall  inherit  from  her  husband  who  thus  became 
a  Farr;  and  the  husband  having  died  before  the  expiry  of  her  Iddut  from  the 
divorce,  this  death  rendered  it  necessary  for  her  to  observe  a  second  Iddvi^ 
viz.y  that  for  the  death  of  her  husband — see  paragraphs  1965  to  1995— 
and  the  second  marriage  having  taken  place  before  the  expiry  of  tbe 
Zddut  of  her  first  husband's  death,  her  marriage  with  the  second  husband 
became  Fasid  or  invalid — See  Volume  I,  Fatawai  Alumgiree,  pages  641 
aud  642} :  but  if  she  does  not  give  birth  (in  the  same  case)  to  a  child 
after  the  second  marriage,  but  says,  **  I  have  got  my  menses,*'  it  is  per- 
missible to  the  second  husband  to  refuse  to  confirm  her,  and  the  second 
marriage  shall  not  be  valid,  and  she  shall  be  regarded  like  a  {Motudda  or) 
woman  observing  her  Iddut  who  has  admited  that  the  Iddut  has  expired, 
and  who,  therefore,  married  a  second  husband,  and  then  denies  the  expirj 
of  the  Iddut,  in  which  case  it  is  not  proper  to  accept  her  denial. 
God  knows  best. 


Section  V. 

ON  NUBUB  OR  DESCENT  (AND  PAEENTAQE). 

2940*  (2049.)  [Note. — Nusub  means  relationship  to  forefathers  or 
KurahfU-i-Abai.  See  Mooutuhul-Arab,  a  well  recognized  and  an  authorita* 
tive  Arabic  Lexicon  in  general]  •  A  woman  gives  birth  (to  a  child)  after  tbe 
death  of  her  husband  within  two  years  of  his  death ;  then,  if  the  woman 
is  confirmed  by  (some  or  all  of)  the  heirs  in  the  fact  that  the  birth  did  lake 
place  within  two  years,  then  the  nusub  (or  descent)  of  the  child  shall 
be    established   in  the   deceased   as  against  him  (the  particular  heir) 


ON   HUSUB  OB  DESCENT.  403 

wLo  80  confirmed  the  woman.  Will  the  parentage  be  establitibed  as 
against  other  than  those  who  so  confirm  her  P  If  those  who  so  eoufirm 
her  make  up  the  number  necessary  for  the  admissibility  of  the  evidence 
(for  the  proof  of  a  fact  according  to  Mohamedan  Law),  then  the  descent 
shall  be  established  {e.g.,  a  fact  must  be  proved  by  two  sane  and  adult 
men,  or  by  one  man  and  two  women  :  therefore,  if  those  who  so  confirm 
the  woman  are  two  men,  or  one  man  and  two  women,  then  the  fact  of 
the  birth  within  two  years  of  the  husband's  death  must  be  held  to  be 
proved,  and  the  descent  must  be  held  to  be  established  geneiullj). 

Is  it  necessary  for  those,  wlio  so  eoufirm  her,  to  ase  the  word  *' evidence  ** 
(and  say,  we  give  evidence  or  testimony)  in  order  that  the  descent  should  be 
established  (in  the  deceased)  as  against  heirs  other  than  those  who  po 
confirm  the  woman  as  aforesaid  P  The  learned  lawyers  have  differed  in 
this  matter ;  some  of  them  have  said  that  the  use  of  the  word  ^^  evidence  " 
is  not  necessary;  whilst  others  have  said  that  the  use  of  the  word 
*< evidence"  is  necessary,  just  as  the  full  number  of  witnesses  is  neces- 
sary. 

And  if  the  heirs  deny  the  birth  {i.e.,  either  deny  the  fact  of  the  birth 
altogether,  or  that  it  took  place  within  two  years  of  the  husband's  deatii), 
then  the  fact  of  the  birth  shall  not  be  held  to  be  proved,  nor  the  descent, 
except  when  there  is  available  the  testimony  of  two  men  or  one  man  and 
two  women  according  to  Aboo  Haneefa,  on  whom  be  peace ;  but  his  two 
disciples  have  said,  that  the  same  shall  be  held  to  be  proved  by  the 
teetimony  of  the  midwife  (instead  of  it  being  necessary  to  produce  two 
meu  or  one  man  and  two  women). 

2960*  r^OSO.)  So  also  as  regards  a  woman,  who  has  been 
irreversibly  divorced  {Muhtoota)  or  who  has  been  reversibly  divorced, 
when  she  claims  to  have  given  birth  to  a  child,  according  to  Aboo 
Haueefa,  on  whom  be  peace,  the  fact  of  the  birth  shall  not  be  held  to  be 
proved  by  the  testimony  of  the  midwife,  except  when  the  pregnancy  was 
apparent  (during  the  period  of  her  Iddut)  or  when  the  husband  had 
admitted  the  pregnancy. 

2951*  (2051.)  And  the  learned  lawyers  have  agreed  (made  ijma) 
on  tbis  that  when  the  wife  says  to  the  husband,  '<  I  have  given  birth 
from  tbee  *'  and  the  husband  makes  a  denial  (that  is,  denies  the  fact  of  the 
birth  of  the  child  by  the  woman  at  all,  or  that  he  was  the  father),  then  the 
fact  of  the  woman  having  given  birth  to  the  child  shall  be  proved  by  the 
midwife  and  (in  the  case  of  his  denial  of  the  paternity)  it  shall  be  ordered 


406  THE   T4.CI0BE   LAW  LECTUBB6,   1891-92. 

that  the  two  shall  make  Imhi  as  between  tbem  ;  and  if  the  Lian  becomes 
prevented  by  a  caase  proceeding  from  the  basband^  then  be  shall  be  liable 
to  t)ie  {Evdd'i^Kuzuf  or)  punishment  prescribed  for  making  a  false  accu- 
sation of  adultery  (Against  his  wife. 

2952.  (2052.)  All  this  (that  is,  what  has  been  laid  down  as  rales  in 
paragraphs  2049  and  2050)  is  trae  when  the  woman  has  made  no  admis- 
sion  that  the  Iddui  has  expired;  bat  if  she  makes  an  admission  of  the 
expiry  of  the  Iddui  after  a  time  within  which  it  is  possible  for  the  Iddui 
to  expire,  and  then  gives  birth  at  (or  after)  six  months  from  the  time  of 
the  admission  (of  the  expiry  of  her  Iddui),  then  the  nusvh  of  the  child  so 
born  shall  not  be  established  in  the  husband  (because  it  is  possible  that 
she  mny  have  conceived  after  her  admission) ;  and  if  she  giyes  birth  within 
six  months  from  the  date  of  such  admission,  then  the  nu9uh  of  the  child 
so  born  shall  be  established  in  the  husband ;  and  the  admission  made 
by  the  woman  (regarding  the  expiry  of  the  Iddui)  shall  become  Toid. 

2953.  (20530  When  an  Ayasa,  who  is  6bserving  her  Iddut  with 
reference  to  months,  gives  birth  to  a  child,  then  the  descent  of  her  child 
shall  be  established,  in  the  case  of  divorce  by  the  husband,  up  to  two  years 
from  the  divorce,  whether  the  woman  makes  an  admission  regarding 
the  expiry  of  the  Iddui  or  does  not  make  such  an  admission. 

2954.  (2054.)  And  if  the  husband  divorces  his  minor  wife  after 
having  had  sexual  intercourse  with  her,  and  she  then  gives  birth  to  a 
child;  then,  if  she  makes  an  admission  after  three  months  (from  the 
divorce)  of  the  fact  that  her  Iddut  had  expired  (her  IddtU  being  three 
months  and  not  three  menses)  and  then  gives  birth  to  a  child  within  six 
months  (from  the  time  of  hel*  admission  of  the  expiry  of  her  Iddut\ 
the  nusuh  of  her  child  shall  be  established  in  him  (because  then  her 
admission  was  incorrect) ;  but  if  she  gives  birth  more  than  six  months 
(after  her  admission  regarding  the  expiry  of  such  Idduf)  then  the  descent 
shall  not  be  established. 

And  in  this  matter  (i.e.,  in  regard  to  a  minor  wife)  a  reversible 
{Uujue)  divorce  and  an  irreversible  (or  hain)  divorce  are  both  equal ;  (that 
is,  if  the  birth  takes  place  within  six  months  from  the  admission  regard- 
ing the  expiry  of  her  Iddui,  then  the  nu8uh  shall  be  established,  but  not  if 
it  takes  place  after  six  months). 

And  if  the  minor  wife  (as  aforesaid)  does  not  admit  that  the  Iddui 
has  expired,  but  claims,  that,  she  is  pregnant ;  then  if  the  divorce  was 
Q)a%n  or)  irreversible,  the  descent  (of  the  child  born  of  the  pregnancy)  shall 


ON  NUSUB  OE  DKSCMT,  407 

be  establiBfaed  np  to  two  years  (that  is,  within  two  years)  from  thie  time 
of  the  divorce  (and  it  shall  be  held  that  the  husband  has  had  intercourse 
before  giving  her  the  bain  divorce);  and  if  the  divorce  was  reversible,  then 
the  descent  shall  be  established  up  to  (that  is,  within)  seven  and  twenty 
months  (from  the  time  of  the  divorce,  that  is,  three  months  of  the  Idchit 
and  twenty-four  months,  the  longest  period  of  gestation).  And  if  she  does 
not  claim  to  be  pregnant,  and  does  not  make  an  admission  of  the  expiry  of 
the  Idchitf  then  Aboo  Haneefa  and  Mahomed,  on  whom  be  peace,  have 
4iaid,  that  this  case  and  the  case  where  she  admits  that  her  Iddut,  reckoned 
as  three  months,  has  expired,  are  equal  (viz.;  if  the  birth  takes  place 
within  six  months  from  the  admission,  then  the  ntisub  Qhallhe  established  ; 
but  not  if  the  birth  takes  place  at  or  after  six  months  from  such  admis- 
sion) ;  but  Aboo  Yusoof,  on  whom  be  peace^  says,  that  this  case  and  the 
case  where  she  claims  to  be  pregnant  are  equal  (that  is,  if  the  divorce 
is  baiuy  nusrib  shall  be  established  if*  the  birth  takes  place  within  two 
years ;  and  if  the  dirorce  is  reversible,  then  the  ntisvib  shall  be  established 
even  if  the  birth  takes  place  within  twenty-seven  months). 

2955.     (2055.)    When  a  woman,  who  is  observing  her  IddiJ^t  from  an 
irreversible  {bdin  or  complete)  divorce,  marries  another  husband  dming 
the  Iddut^  and  gives  birth  to  a  child  after  the  second  marriage;  then,  if 
she  gives  birth  in  less  than  two  years  from  the  divorce  by  the  first  hus- 
band, and  in  less  than  six  months  from  the  time  of  her  marriage  with  the 
second  husband,  the  child  shall  belong  to  the  first  husband;  but  if  she 
gives  birth  in  more  than  two  years  from  the  time  of  the  divorce  given  by 
the  first  husband,  the  child  shall  not  be  obligatory  (or  lazim)  on  the  first 
husband ;  arid  then  it  should  be  seen  if  she  gives  birth  in  six  months 
{%.  e.,  at  or  more  than  six  months)  from  the  time  of  the  marriage  with  the 
second  husband,   (if  so)  the  child  shall  belong  to  the  second  husband, 
but  not  otherwise  (that  is,  if  she  gives  birth  within  six  months  of  the 
second  marriage,  then  the  parentage  in  the  second  husband  shall  not  be 
established,  and  the  child  shall  be  a  Wultid^ool  Zina). 

2956.  (2056.)  A  man  marries  a  woman  and  she  gives  birth  to  a 
child  ;  and  the  husband  says,  "  I  have  married  thee  four  months  ago ;  " 
the  woman  says,  "  Thou  married  me  six  months  ago :  "  the  word  to  be 
accepted  shall  be  that  of  the  wife  (on  oath  in  the  absence  of  witnesses) 
and  the  child  shall  be  the  child  of  the  husband. 

2957-  (2057.)  A  man  marries  a  female  slave  (belonging  to  another), 
and  then  divorces  her,  and  then  purchases  her ;  and  she  gives  birth  to 


408  THE   TAOOIl*   LAW  LBCTITBK8,    1891-92. 

a  child  in  less  than  six  months  from  the  time  of  the  purchase,  the  child 
shall  be  obligatory  on  the  man  (becaase — see  Shnreh  Yekaya,  Yolame  II, 
pages  104  and  105 — it  appears  qnite  clearly  that  the  conception  tool 
place  before  the  purchase,  and  the  child  born  is  the  child  of  a  MunJsooha 
or  wife,  and  not  that  of  an  Araut  or  slave  girl,  and,  therefore,  DaiwtU 
or  claim  by  the  father  in  regard  to  the  ntuub  of  the  child  is  not  neces- 
sary) ;  but  if  she  gives  birth  to  the  child  in  six  months  (that  is,  at  or 
more  than  six  months)  from  the  time  of  the  purchase,  then  the  child 
shall  not  be  obligatory  on  him  (i.e.,  mere  birth  shall  not  lead  to  muvb^ 
but  there  must  be  a  Daiwut)^ 

This  rule  holds  good  (that  is,  the  establishment  of  parentage  without  a 
Daiwut  in  the  case  of  the  birth  within  six  months,  and  not  without  a  DaiwiU 
in  the  case  of  the  birth  at  or  after  six  months)  when  only  one  divorce 
(whether  bain  or  Bujue)  was  pronounced  by  the  husband;  but  if  the  hus- 
band has  given  two  divorces  to  the  woman,  then  the  descent  shall  be 
established  in  that  husband,  in  the  case  of  the  birth  up  to  two  years  (that 
is,  in  less  than  two  years)  from  the  time  of  the  divorce  (because  by  two 
divorces  the  slave  wife  becomes  absolutely  Earam  or  unlawful,  in  the 
same  way  as  a  free  wife  becomes  absolutely  Haram  by  three  divorces: 
and  after  two  divorces,  the  slave  wife  must  marry  a  new  husband  before 
she  can  be  lawful  to  the  first  husband  either  by  marriage  or  by  ownership 
of  purchase ;  therefore,  if,  after  two  divorces,  the  slave  wife  gives  birth 
within  two  years,  then  it  must  be  held  that  the  conception  was  before 
such  divorce,  and  it  shall  not  be  held  that  the  conception  was  after  the 
divorce  and  at  the  time  he  had  already  purchased  her,  because  the  slave 
wife  became  absolutely  prohibited  to  him,  and  he  could  have  no  inter- 
course after  purchase  with  her  unless  she  were  to  marry  another  husband. 
See  Chulupy  on  Shureh  Yikaya,  Yolume  II,  page  105.) 

God  knows  best. 


APPENDIX  I 

TO 

VOLUME  III  OP  THE  TAGOEE  LECTURES  OP  1891-1892.^^ 

JoiNINa   TWO   8ISTSR8   IN   CONSECUTIYB   MARRIAGES. 

The  questioa  in  this  case  is  tbis  : — A  Soonnee  Mahomedan,  having 
married  two  sisters,  likewise  Soonnee  Mabomedans,  one  after  tbe  otber, 
and  baring  cbildren  by  botb  wives,  dies, — ^are  tbe  children  by  tbe  second 
wife  legitimate ;  and  are  tbey  entitled  to  participate  in  tbe  inheritance 
left  by  tbe  deceased  as  bis  legitimate  children  9  I  appear  for  the  first 
wife  and  her  children,  and  I  maintain  the  negative  of  these  questions. 
These  questions  depend  upon  tbe  following  considerations, — Was  there  a 
valid  marriage  between  tbe  deceased  and  the  second  wife;  if  not,  can  the 
Nusub  or  parentage  of  tbe  children  by  tbe  second  wife  be  established  iu 
the  deceased  by  some  other  rule  of  the  Mohamedan  Law  P 

2.  As  regards  the  marriage  itself,  I  will  show  that,  according  to  the 
rules  of  Jurisprudence  or  Oosool-i-Pikah,  and  also  according  to  express 
authorities,  tbe  so-called  marriage  was  not  a  valid  marriage  at  all ;  and 
that  the  same  was  Baiil  or  void,  by  which  admittedly  Nusvb  is  not  estab- 
lished, and  not  Fasid  or  invalid,  that  is  to  say,  defective,  informal  or 
vicious,  by  which  it  is  supposed  that  Nusvh  is  established.  I  will  also  be 
able  to  show  that  if  the  question  is  capable  of  being  regarded  in  the  light 
of  what  is  called  a  Mocjiahid-fee  matter,  (see  paragraph  69)  even  then  the 
weight  of  authority  and  reason  is  on  my  side  of  the  question. 

S.     According  to  the  Mohamedan  Law,  the  notion  of  a  marriage  is  a 
legal  notion  or,  as  it  is  called  by  the  OosooUeen  or  Jurists,  Amr-i-Shurayee, 

*  This  appendix  coutainB  a  sammary  of  the  argaments  of  the  Hon'ble  Moulvee  Mahomed 
ToBOof,  Khan  Bahadoor,  on  behalf  of  the  appellant,  in  Appeal  from  Original  Decree  No.  231 
of  1892,  decided  on  the  28rd  July,  1895,  by  a  Bench  of  the  High  Court,  consisting  of  the 
Hon'ble  Sir  William  Comer  Petheram,  Et.,  Chief  Jnstice,  and  the  Hon'ble  Mr.  Jastice 
Beverley,  whose  decision,  to  the  effect  that,  nnder  the  Mahomedan  Law,  marriage  with  the 
Bister  of  a  wife,  who  is  alive  and  who  is  legally  married,  is  void,  is  reported  in  I.  L.  B.,  XXIII 
Cal.  Series,  page  180.  The  appendix  to  thafc  decision  contains  translations  of  varioas  passages 
from  the  original  anthorities  bearing  on  the  question  raised :  and  these  translations,  having 
already  appeared  in  print  al.)ng  with  that  decision  in  the  Indian  Law  Beports,  are  not 
reprodaced  in  this  Tolaroe,  although  they  relate  to  the  subject  of  these  Lectures. 


il  LEGAL   AND  PHYSICAL  NOTIONS. 

that  is  to  say,  it  is  a  legal  idea  as  contradistinguished  from  what  may 
be  termed  a  physical  or  actual  idea, — an  idea  or  notion  which  depends 
for  its  completion  and  realisation  only  on  the  senses— or  as  it  is  called 
Amr4-Hissee,  that  is,  a  thing  which  is  realized  through  or  by  means 
of  the  organs  of  the  senses,  and  completed  by  visual  facts  and  by  thiDj^s 
cognizable  by  the  senses,  and  which  has  only  a  physical  existence; 
but  a  legal  idea  is  that  which  has  a  legal  existence ;  to  laugh  hns  a 
physical  existence ;  to  kill  has  a  physical  existence,  but  murder  baa 
a  legal  existence,  although,  no  doubt,  it  has  partially  a  physical  existence. 
The  Tawzeeh,  a  work  on  Jurisprudence,  gives,  amongst  other  instances  of  a 
legal  idea,  a  case  of  sale.  The  case  of  a  sale  and  the  case  of  a  marriage 
are  parallel  to  each  other  in  most  essential  elements  (I).  Both  sale  and 
marriage  partake  of  the  physical  and  sensual  or  the  Hissee  element  and 
of  the  legal  or  Shurayee  element;  the  sensual  or  physical  element  con- 
sists of  Ijah  and  Kuhooly  that  is  to  say,  proposal  and  acceptance,  which 
consist  of  words  uttered  and  spoken,  and  which  are  brought  into  physical 
existence  by  means  of  the  external  organs,  and  the  senses  take  cogni- 
sance of  them;  but  they  also,  at  the  same  time,  partake  of  the  legal 
element  by  which  the  proposal  and  the  acceptance  come  to  be  connected 
with  and  related  to  each  other,  so  as  to  be  productive  of  a  legal  reaalt; 
and  that  legal  result,  in  the  case  of  a  sale,  consists  in  the  creation  of 
ownership  and  title  to  possession  in  the  purchaser ;  and  in  the  case  of 
marriage,  consists  in  the  creation  of  ownership  of  enjoyment  by  the  hus- 
band as  regards  the  person  of  the  wife,  and  it  also  creates  corresponding 
rights  in  the  wife. 

4.  As  instances  of  Amr-i-Hissee  are  cited  zina  or  whoredom,  and  the 
drinking  of  wine,  and  these  are  made  up  of  acts  which  depend  only  on  the 
organs  and  the  senses. 

5.  Generally  speaking,  ideas  which  existed  before  the  advent  of  oar 
Prophet,  and  in  which  no  changes  have  been  made  by  our  Shera^  are  what 
are  called  Amr-i-Hissee  or  Afaal-i-Hissee ;  but  things  in  which  rules  and 
conditions  relating  to  their  legal  existence  came  to  be  laid  down  by  the 
Mohamedan  Law,  either  for  the  first  time,  or  so  as  to  involve  a  change  as 
compared  with  the  law  previously  existing,  are  called  Afaal-i- Shurayee. 

6.  There  is  much  which  is  in  common  to  marriage  and  sale,  and  other 
creatures  of  the  Shera.    Their  nature,  according  to  the  Mohamedan  Lav, 

(I}.— See  Tawzeeh,  pa^  259,  Calcutta  Editionf  printed  in  the  year  1245  Ilijree. 


J 


LT8GAL  ENTITY   HOW   BROUGHT   INTO   BXTSTENCE.  lU 

tnaj  be  learnt  from  tbe  disquisition  of  the  Jurists  oh  the  subject.     The 

Tawzeeh  (II),  while  discassing  the  question  of  Nuhee  or  negative  commands, 

goes  into  the  question  whether  it  is  in  human  power  to  create  or  bring 

into  existence  a  legal  idea,  such  as  a  sale  for  instance,  seeing  that  it  is  an 

axiom  of    faith  that  God  is  the  creator  of   everything,  and  man    is 

powerless   to  bring  a  thing  into  existence  ;  and  the  author  deals  with  the 

matter  in  this  way  :  God  has  ordained  certain  words  to  be  used  for  certain 

purposes :     He  has  laid  down  that  if  the  words  of  sale,  for  instance, 

are   used    by  a  person  competent  and  duly  qualified,  in  favor  of  another 

person,  in  reference  to  a  fit  subject,  then  the  result  shall  necessarily  be 

a  sale;    it  is,  therefore,  within  human  power  to  create  a  sale  in  the  sense 

that   it    is    in   the  power  of  an  individual    to  use  those  words  with 

reference  to  a  fit  subject;    and  such  words  having  been  used,  the  result 

provided  for  by  law  must  necessarily  follow.   Conversely,  therefore,  it  would 

appear  that  the  result  would  not  be  achieved  unless  the  prescribed  words 

are  used  in  the  way  prescribed  by  God,  and  under  the  conditions  laid  down 

in  that  behalf,  that  is,  by  a  competent  person  in  reference  to  a  fit  subject ; 

because  it  is  only  in  reference  to  a  fit  subject  that  God  has  ordained  that 

the  particular  result  should  be  accomplished  and  achieved. 

7.     Bearing  in  mind  this  principle,  sale  and  marriage   are  divisible 
into  three  classes.     The  first  class  is  that  which  is  perfect  in  all  respects, 
ri9.,  in  which  there  is  no  sort  of  defect  whatever :  this  class  is  called  a 
Suheeh  or  valid  sale  or  a  Suheeh  or  valid  marriage.     A  valid  marriage  is 
one  which  satisfies  all  the  essentials  of  validity,  e,g.^  existence  of  proposal 
and  acceptance;  presence  of  witnesses ;  competency  to  contract ;  fitness  of 
the  subject  of  marriage,  and  so  forth.    The  third  class  is  that  which  is  no 
marriage  at  all,  and  in  which  words  of  proposal  and  acceptance  are 
uttered   in   vain :   the  defect  is  of  such  a  radical  and  vital  nature  that 
the  legal  result,  which  is  ownership  or  lawfulness  of  enjoyment,  does  not 
flow,  and  is  not  produced :    such  a  marriage  is  called  a  Batil  or  void 
marriage,  that  is  to  say,  it  is  a  thing  which,  it  is  a  misnomer  to  call 
marriage,  because  it  is  not  productive  of  the  result  of  lawfulness  of  enjoy- 
ment;   it  is  just  as  if  the  marriage  had  not  taken  place  at  all,  though 
it  may  be    called  a  marriage  in  a  metaphorical  and    popular^  but  not 
in    a    real   and  legal  sense ;    and  this   is    the  case  where,  for  instance, 
the  subject    of  the  marriage  is  not  a  fit  object  of  marriage, — God  having 

(ll).— See  Tawzeeh,  pages  252-268. 


iv    Meaning  of  suhbbh  ratil  and  fasid.  is  fasid  applicablb  to  mabbiaqe. 

ordained  such  subject  to  be  tmlawfal  or  Huram  to  the  particular  indiFi- 
dual.  Within  these  two  classes,  it  is  supposed  that  there  is  a  class  which, 
though  not  absolutely  valid,  is  not,  at  the  same  time,  absolutely  void; 
this  is  supposed  to  be  the  second  class,  and  it  is  called  a  FclM  or  invalid, 
defective  or  vicious  mamage :  this  is  the  case  where  the  subject  is  a  fit  one 
for  marriage,  and  the  woman  is  lawful  to  the  particular  man  for  enjoy- 
ment after  and  by  reason  of  the  marriage,  but  where  a  condition  essential 
to  a  valid  marriage  is  wanting,  e^g.,  the  presence  of  witnesses  (III). 

8.  Some  of  the  Jurists  and  Commentators  assign  very  sound  reasons 
for  their  opinion  that  there  is  no  second  class  in  marriage;  and  that 
there  could  be  no  such  thing  as  a  Fasid  marriage.  A  marriage  is  either 
good  or  it  is  void,  that  is,  it  is  either  Suheeh  or  it  is  BatU;  in  other  words, 
a  mandage  is  either  a  legal  and  valid  marriage,  or  no  marriage  at  all, 
although  in  cases  of  sales  it  is  possible  to  imagine  such  a  thing  as  a  Fasid 
sale ;  because  the  object  of  marriage  is  legality  of  enjoyment  or  HiU-i- 
Istimtay  but  the  object  of  sale  is  ownership  or  ntiZft,  though  such  owner- 
ship sometimes  leads  to  legality  of  enjoyment  ttom  a  sexual  point  of  view, 
as  in  the  case  of  the  purchase  of  a  slave  girl :  the  object  of  sale  is  to  create 
ownersliip  and  not  necessarily  legality  of  enjoyment,  because  sale  is  some- 
times valid  in  cases  which  are  not  legally  susceptible  of  enjoyment  from  a 
sexual  point  of  view,  as  in  the  case  of  the  purchase  of  a  male  slave,  or  where 
there  is  Hoormut  or  illegality  of  enjoyment,  as  in  the  case  of  the  purchase  of 
a  slave  girl  who  is  a  Mujoosee  woman  (IV).  In  the  so-called  Fasid  mar- 
riage, the  marriage  is  not  valid,  and  union  of  the  parties  is  not  legal 
either  in  its  inception  or  continuance;  because  if  it  were  legal,  why 
ishould  the  Kazee  be  enjoined  to  separate  the  parties  on  the  fact  coming 
to  his  knowledge.  The  distinction  between  Batil  and  Fasid  marriages  is 
only  important  in  so  far  as  that  distinction  sometimes  regulates  the  rule 
regarding  the  obligation  to  Iddut   (V).     But  some  of  the  authors  Lave 


(III).— See  these  Tagore  Leotaree,  Volume  III,  page  365,  paragraph  majrked  (XV).  See 
^Ibo  I.  L.  R.,  23  Calcutta  Series,  page  166,  3rd  para. 

(IV).— See  Tawzeeh,  pages  270-271.  See  also  the  Tulweeh,  which  is  a  CommenUry 
on  the  Tawzeeh,  Nawal  Kishore's  Edition  of  Lnoknow,  page  £97,  where,  in  the 
annotation  in  Note  2  taken  from  the  Chulapy,  there  is  a  discussion  in  con- 
nection with  the  question  relating  to  a  Nikah  without  witnessea  whether  the 
term  Fasid  when  applied  to  Nikah  does  not  always  mean  Batil, 

(V).— Sec  passages  translated  from  the  Rudd-ool-Mohtar  in  I.  L.  R.,  23  CalcatU 
Series,  page  166,  line  20,  &o. 


BOORHAK-I-LIMMEB   AND  BOOBHAN-I-INNEE.  V 

given  the  name  of  Fasid  marriage  to  a  marriage  which  they  coald  not 
consistentljr  refer  to  either  the  Suheeh  or  the  Batil  class.  In  this  con- 
nection it  will  be  useful  to  know  what  the  author  of  the  Budd-ooI« 
Mohtar  has  to  say  in  a  portion  of  the  work  which  is  translated  in  these 
Tagore  Lectures,  and,  in  fact,  the  whole  of  the  chapter  from  the  Budd- 
ool-Mohtar  so  translated  will  well  repay  perusal  (VI). 

9.     The  distinction  relating  to  the  class  of  Fasid  marriages   is  sus- 
ceptible of  further  illnstration  by  reference  to  arguments  called  Boorhan- 
i  Limmee,  or  arguments  from  Limmy  {.6.,  from  cause  or  lllut  to  effect  or 
Malooly   and  Boorhan-i-Innee  or  argument  which  is  In,  ue.y  apparent  or 
Zahiry  that  is,  argument  from  effect  to  cause.     Smoke  being  the  effect  of 
fire,  if  you  argue  that  because  there  is  fire,  there  must  be  smoke,  this  is 
called  Boarhan-^Limmee;  you  argue  from  lllut  or  cause  towards  Malool  or 
effect ;  so  also  if  you  say,  because   there  is   sunshine  it   must  be  day. 
On  the  other  hand,  if  you  argue   and  say  because  there  is  smoke  there 
mast   be  fire,  or  because  there  is  sunshine  therefore  there   must  be 
the    sun,   this   is    called  Boorhan-i'Innee.       Referring    to    Nikahy    the 
lawyers  look  upon   it   in  two  ways :  one  is  this, — Nikah  is   an  institu- 
tion,   the    object    of    which   is  HilUi-Istimiay  or    lawfulness   of  enjoy- 
ment; where,   therefore,  there  is   no  lawfulness  of  enjoyment,  there   is 
DO  Nikah.    If  there  is  lawfulness  of  enjoyment,  there  is  Nikahy  and  the 
Nikah  is  Suheeh.    If  there  is  no  lawfulness  of  enjoyment,  there  is-no  Nikahy 
and  therefore  the   Nikah  is  BatU;  because  BatU  is  a  thing  which  has  no 
existence  in  the  Shera.  Viewed  in  this  light,  there  is  no  intermediate  class 
sach  as  Fasid  in  an  institution  such  as  Nikah,    But  it  must  be  conceded 
that   even  when  viewed  in  this  light,  Batil  marriages  come  to  be  divided 
into  two  classes,  viz.y  a  Batil  marriage  in  which  there  is   Shoobha-i-Muhul 
and    in   which  there  is  an  obligation  to  Idduty  and  right  of  Nusvh;   e,g,y  a 
marriag^e  in  the  absence  of  witnesses  (VII) ;  and  the  second  class  of  Batil 
marriage  is  a  marriage  in  which  there  is  merely  Shoohha-i-fail,  and  which 
does  not  result  in  the  establishment  of  Nusiih  or  the  obligation  of  observing 
the  Iddui.     Other  lawyers  classify  Nikah  according  to  Ahkam  and  AsaVy  or 
result  and  effect.     Nikah-i- Suheeh  is  where  there  is  Hill-i-Istimta  or  lawful- 
ness  of  enjoyment,  and  the  result  and  effect  of  Nikah-i-Suheeh  is  the 
obligration  to  Iddut,  and  the  establishment  of  Nusuhy  and  other  matters.    As 


(VI). — See  these  Tagore  Lectures,  Yolame  III,  page  868,  paragraph  marked  (VI). 
(Yll), — See  I.  L.  R.,  23  Calcutla  Series,  page  166. 


VI  EFFECT  OP  NTKA  I-SUHEEH   ONLY   FOLLOWS   WHERE   MUHUL   IS   FIT. 

opposed  to  Nikah'irSuheehf  there  is  the  Nikahr-i-Ghyr-Suheehy  in  which 
there  is  no  Hill-i-Istimta,  or  lawfulness  of  enjoyment ;  this  class  is  sab- 
divided  into  two  other  classes, — one  in  which  none  of  the  effects  of 
Nikah'i-Suheeh  is  to  be  found,  and  this  chiss  is  called  Battle  and  the 
other  class  is  where  some  of  the  effects  of  Nikah-i-Suheeh  are  found ;  as  for 
instance,  the  obligation  to  Idchit  and  the  establishment  of  Ntisub ;  this 
class  may  not  and  need  not  be  called  Batil,  and,  therefore,  it  is  called 
Fasid  by  analogy.  But  the  result  and  effect  of  a  valid  marriage  or 
Nikah'i'Suheeh  will  only  be  found  where  the  Muhvi  is  Saleh  or  fit,  but 
some  condition  of  validity  of  marriage  is  wanting;  such  for  instance,  as 
the  condition  of  the  presence  of  witnesses :  but  where  the  Muhvl  is  not 
Salehy  there  the  result  and  effect  of  a  Nikah-i-Suheeh  will  not  be  found. 

10.  There  is  one  point  in  connection  with  the  nse  of  the  terms 
Batil  and  Fdsid,  which  must  not  be  lost  sight  of  in  construing  the  original 
texts,  with  a  view  of  correctly  appreciating  the   meaning  of   the   Arabic 
Authors.    These  terms  are  sometimes   used  as  convertible  terms,  that  is 
to  say,  the  word  Batil  is  sometimes  used  in  connection  with  marriage,  so  as 
to  denote  a  marriage,  which  deviates  from  the  true  and  strict  rule;  and  the 
word  Fasid  is  also  sometimes  used  in  the  sense  thus  indicated:  again,  Batil  is 
sometimes  used  to  denote  that  which  is  strictly  speaking  Fcisid  and  mce 
versi.    It  is,  therefore,  very  necessary  to  know  the  real  and  precise  signi- 
fication of  these  terms  and  the  difference  that  exists  between  them,  quite 
apai*t  fi*om  their  use  in  relation  to  marriage  ;  it  is  also  necessary  to  ascer- 
tain the  intention  of  a  particular  Author  using  those  terms  in  relation  to 
marriage,  in  order  to  find  out  his  meaning  in  the  use  of  those  terms.     No 
doubt,  there  are  some  Authors  who  have,  in  their  work  throughout,  used  the 
terms  in  accordance  with  their  precise  or  exact  signification.     I  will  be 
able  to  point  out  in  what  sense   those   terms  are  used  by   a  particular 
Author,  and  I  think  there  will  be  no  difficulty  in  conveying  my  meaning.* 

11.  It  must  not,  however,  be  supposed,  from  the  difficulty  involved  in 
the  classification  of  marriages  as  pointed  out  above,  that  all  mai'riages  in 
fact  are  marriages  in  law;  and  it  must  not  also,  at  the  same  time,  be  supposed 
that  every  marriage,  in  which  there  has  been  even  the  slightest  deviation 
from  the  strictly  prescribed  rule,  is  no  mari'iage  at  all :  in  other  words, 
it  must  not  be  supposed,  on  the  one  hand,  that  Nusiib  is  established  in  every 
marriage,  however  gross  the  deviation  might  be,  or,  on  the  other  hantl, 
that  Nusub  is  not  established  in  a  marriage  in  which  there  has  been  even 


•  Subject  to  what  has  been  set  forth  in  the  nbove  paragraphs,  I  will  continae  to  use  th« 
term  Fasid  in  reference  to  marriage  in  this  Appendix. 


TRUE   RULE   FOR  NUSTJB :    DEFINITION   OP   MARRIAGE.  Vll 

tbe  slightest  deviation.  Later  on  I  will  attempt  to  propound  generally  the 
true  rule  where,  the  form  of  marriage  having  been  gone  through,  Ntimb  is 
established,  and  where  it  is  not.  (See  paragraphs  44,  49,  53  and  59  of 
this  Appendix.) 

12.  It  is  unnecessary  to  discuss  the  Suheeh  or  the  first  class  of  mar- 
riage in  detail.  This  class  of  marriage  is,  in  every  sense,  perfect;  und  if  a 
child  is  born  of  such  a  marriage  at  or  after  six  months  from  the  date  of  the 
marriage,  the  child  is  legitimate,  without  any  regard  as  to  the  time  of 
intercourse,  and  without  any  regard  as  to  the  question  of  access ;  and 
it  is  to  this  class  that  the  principle,  referred  to  in  Mr.  Justice  Ameer 
Ally's  work,  (VIII)  applies,  that  if  the  husband  be  living  in  the  east  and 
the  wife  in  the  west,  legitimacy  shall  be  established,  and  the  interven- 
tion of  the  Jinn  may  be  presumed.  The  reason  is  this,  that  the  contract 
being  perfect  in  all  respects,  the  quality  of  goodness  or  beauty,  that  is, 
Hoosn  or  excellence  as  ordained  by  the  law,  is  found  in  it,  so  that  the 
essence  of  the  contract  is  good  and  beautiful  in  all  respects. 

13.  Accordingly,  where  the  Hedaya  (IX)  opens  the  chapter  with  the 

words  '^  Book  on  Marriage,"  the  Kefaya,  which  is  a  Commentary  on  the 

Hedaya,  in  defining  Nikah  or  Marriage,  says,  ^^  Nikah  cannot  be  created 

'<  except  by  its  pillar  (or  Bookn)  emanating  from  (an  Ahul  or)  one  who  is 

•'  competent   (to    contract),  in  reference  to  one  who  is  the  (Muhul  or) 

*'  sabject  of  it,  as  in  the  case  of  other  legal  contracts ;  that  the  pillar  (or 

**  Rookn)  consists  of  proposal  and  acceptance ;  that  the  {Ahul  or)  person 

**  competent  (to  contract)  is  one  who  is  {Ahul  or)  competent  for  all  con- 

'*  tracts;  that   the  {Muhul  or)  subject  of  the  marriage  is  she  who  is  a  fit 

*•  subject  of  the  effect  {or  Hookm)  of  it ;  that  the  {Hookm  or)  effect  of  it  is 

*'  o^wnership  and  lawfulness  (of  enjoyment)."  The  same  rule  is  laid  down  in 

tbe  Inaya  (X),  that  work  being  another  Commentary  on  the  Hedaya, 

where  the  Muhul  is  defined  to  be  ^^  a  woman,  to  whose  marriage  there  is 

no  legal  bar." 

14.  The  Shuruli-Vikaya,  a  work  written  by  the  author  of  the 
Tawzeeh,  (XI),  shews  that  marriage  is  created  for  ownership  of  enjoy- 
ment; that  it  is  a  legal  notion,  and  does  not  mean  only  proposal  and 
acceptance,  but  the  connection  and  admixture    (or  irtibat)  that  is,  the 

fVIII}.— See  Mr.  Jastice  Ameer  Ali's  Mohamedan  Law,  Volume  II,  page  191« 
(IX).— See  Hamilton's  Hedaya,  Volume  I,  page  71. 

(Xj.-^See  Inaya,  Volume  IT,  page  1. 
(XI).— See  Shnruh  Vikaya,  Volume  11,  page  1. 


VUl  TEXTS   OP   THE    KOKAK. 

legal  result,  of  proposal  and  acceptance,  and  this  connection  and  admixtnre 
creates  ownership,  and  this  legal  result  can  only  follow  when  the  subject 
is  fit  for  enjoyment. 

15.  The  next  question  is, — Is  the  wife's  sister,  during  the  life- 
time of  the  wife,  a  fit  subject  or  MuhtU  of  marriage ;  if  not,  is  the 
marriage  Fasid  or  is  it  BatiL 

16.  The  Koran  ordains  (XII) : — "  Marry  not  women  who  are  idola- 
ters until  they  believe;  and  give  not  women  who  believe,  in  marriage  to 
the  idolaters  until  they  believe.*' 

17.  The  Koran  also  ordains:  "Ye  are  forbidden  to  marry  your 
mothers,  your  daughters,  your  sisters,  your  father's  mother,  your  father's 
sister,  your  wives'  mothers,  your  daughters-in-law  (XIII);  your  sons' 
wives  ;  and  ye  are  forbidden  to  take  to  wife  two  sisters  (XIV)  ;  ye  are  for- 
bidden to  take  to  wife  free  women  who  are  (the)  married  (wives  of  others) 
except  those  women  whom  your  right  hand  shall  possess  as  slaves." 
(XV). 

18.  It  will  appear  from  the  above  enumeration  of  females  that 
amongst  those  women  who  are  thus  prohibited,  there  are  some  who  are 
permanently  unlawful  {Huram-i-Moabbud)  whilst  others  are  temporarily 
prohibited  (Huram-i'Mowahkut) ;  but  both  the  classes  are  spoken  of  in  the 
same  terms,  and  the  prohibition  in  regard  to  both  classes  is  expressed  by 
one  and  the  same  term,  viz.,  unlawfulness  or  Hoormut;  thus  shewing  that 
in  regard  to  unlawfulness  both  classes  are  equal  and  alike,  and  stand  on 
the  same  footing.  The  Hoormut  or  unlawfulness  being  equal  in  both 
classes,  it  would,  prima  facie,  follow  that  neither  class  is  a  fit  subject  or 
muhul  of  marriage,  and  the  marriage  of  each  of  those,  whose  prohibition 
has  been  ordained  in  similar  terms,  is  contrary  to  the  Koran,  and  is  null 
and  void. 

19.  "Now  what  is  generally  speaking  the  distinction  between  Fasid 
and  Batil.  In  dealing  with  these  and  like  terms  and  technical  matters, 
it  will  suffice  my  present  object  to  indicate  generally  the  meaning  and 
distinction  therein  involved.  It  is  not  my  intention  here  to  go  into  niceties 
and  refinements,  and  details  of   explanation,  which  would  necessitate  the 

(XIT).— See  these  Tagore  Lectures,  Volnme  I,  page  8,  para.  48  (44). 
(XIII).—  Do.  Volume  I,  page  18,  para.  119  (116). 

(XIV). —  Do.  Volume  I,  page  19,  para.  120  (116). 

(XV).—  Do.  Volume  I,  page  19,  para.  121  (117). 


SUUfcEH,    BATIL,    FASID    AND    MUKROOU,  IX 

eJcposiiion  of  various  portions  of  Jurisprudence  in  a  more  connoctocl  and 
amplified  form  than  space  will  permit,  or  convenience  of  dealing  with  the 
subject  in  a  fragmentary  form  instead  of  as  a  whole  would  admit  of;  for 
like  reasons  I  refrain  for  the  present  from  the  discussion  regarding  the 
difference  between  Amr  or  affirmative  command,  and  Nuhee  or  negative 
command,  and  nufee  or  prohibition  of  essence,  and  nuskh  or  abrogation, 
referred  to  in  paragraph  6  and  elsewhere  of  this  Appendix.* 

20.  A  thing  or  a  contract  is  good  and  perfect,  that  is  to  say,  valid 
or  Suheehy  where  conformity  in  all  respects  to  the  rules  laid  down,  shews 
that  the  quality  of  goodness  (or  Hoosn)  or  excellence  exists  in  it,  and 
that  not  only  the  essence  {Ayn)  is  good,  but  its  quality  {Wusf)  and 
concomitant  [Moojamr)  are  also  good. 

21.  A  thing  or  a  contract  is  void  or  Batil  where  the  essence  (or 
Ayn)  is  bad,  and  as  a  consequence  its  quality  (or  Wusf)  is  bad,  and  its 
concomitant  (or  Moojawir),  if  any,  is  bad. 

22.  Between  these  two  classes,  that  is,  Suheeh  and  Batil,  there  are  two 
other  classes,  m.,  where  the  essence  (or  Ayn)  is  good,  but  the  quality  (or 
Wusf)  is  bad;  and  this  is  termed  Fasid  or  defective  or  vicious  :  and  where 
the  essence  (or  Ayn)  is  good,  but  the  concomitant  (or  Moojawir)  is  bad;  and 
this  is  termed  Mukrooh  or  abominable« 

23.  In  sales  all  four  classes  are  found.  A  valid  sale  is  where  the 
contracting  parties  are  ahuly  or  competent  to  contract,  and  the  contract  is 
with  reference  to  a  fit  subject,  or  muhul,  and  the  words  prescribed  by  the 
law  to  effect  a  sale  are  found,  and  the  other  essentials  are  complied  with. 
But  where  the  subject  is  not  a  fit  one ;  as  for  instance,  where  a  person 
sells  a  free  man,  there  the  sale  is  void  or  Batil.  A  sale  is  Fasid  or 
invalid  where,  for  instance,  the  consideration  is  liquor  or  wine, — con- 
sideration being  regarded  as  a  quality  or  Wusf  yvhich,  although  it  cannot 
be  separated  from  the  sale,  is  still  not  the  Ayn  or  essence  of  the  contract ; 
or  where,  for  instance,  the  sale  is  coupled  with  a  condition  which  is  itself 
invalid  as  not  arising  from  the  sale,  but  which  is  calculated  to  confer 
additional  benefit  to  either  of  the  contracting  parties ;  or  where,  for 
instance,  one  dirhem  is  sold  for  two  dirhems,  and  this  is  usury,  which 


*  It  is  my  intention  to  devote  a  fatare  volume  entirely  to  the  Science  of  Jurisprudence, 
80  as  to  present  the  subject  in  its  entirety  according  to  the  view  taken  by  Arabic  Aethers 
of  acknowledged  repute  and  authority. 

2 


Z  HtrSUN-LAI-ATNHEB  AKt)  ^BSKH-LAt-AmfiBS. 

defeats  a  necessary  quality,  that  is,  the  equality  of  consideration.  A  sale 
is  abominable  or  Mukrooh  where  a  Moojawir,  or  a  concomitant  adjanct, 
which  could  be  separated  from  the  sale,  is  bad ;  as  for  instance^  where  a 
person  sells  during  the  call  for  Friday  prayers,  such  call  rendering  it 
necessary  for  a  true  belieyer  to  leave  his  work  and  proceed  to  the  mosque; 
but  this  defect  may  be  cured,  as  for  instance,  where  the  seller  obeys  the 
call  and  starts  from  his  house  to  attend  the  prayers,  followed  by  the 
purchaser,  and  they  conclude  the  sale  on  their  way  to  the  mosque  (XYI). 

24.  Instances  of  other  things,  bad  on  account  of  Moojawir,  might  be 
giren  to  illustrate  the  meaning.  God  prohibits  and  interdicts  (XYII) 
intercourse  with  the  wife  during  her  courses,  "  because  the  courses  are 
pollution  ;  **  but  pollution  is  neither  the  essence  of  the  intercourse  nor  its 
necessary  quality  ;  it  is  an  adjunct  or  state,  which  sometimes  exists  and 
sometimes  does  not:  here  the  prohibition  is  on  account  of  badness  of 
the  adjunct  or  Moojatoir  ;  so  that  if  the  husband  has  intercourse  during 
the  wife's  courses,  and  there  is  pregnancy,  the  child  would  be  legitimate, 
and  the  husband's  act,  though  sinful,  is  lawful  and  legal  (XYIII). 

25.  But  in  Nikah  or  marriage  there  are,  at  best,  only  three  classes, 
the  abominable  or  Mukrooh  Nikah  not  being  ordinarily  conceivable. 

26.  If  rules  had  not  been  laid  down  specifically  in  the  matter,  then 
to  lay  down  a  rule  of  universal  application  to  distinguish  precisely  be* 
tween  what  is  Fasid  and  what  is  Baiil  in  all  cases  would  be  a  matter  of 
some  little  difficulty  banking  extreme  instances ;  for  what  to  some  minds 
might  appear  as  a  necessary  and  inseparable  Wusf  or  quality,  might 
appear  to  other  minds  as  a  part  of  the  essence  or  Ayn.  This  difficulty  is 
enhanced  when  it  is  borne  in  mind  that  there  is  such  a  thing  as  a  conflict 
between  Booen  or  goodness  and  Koohuh  or  badness,  where  it  is  necessary 
to  discriminate,  no  doubt,  according  to  rules  scientifically  laid  down  with 
great  precision,  which  element  should  have  a  preponderating  effect  so  as 
to  lead  to  a  Eookm  or  general  rule  in  practice.  A  thing  is  bad  on 
account  of  its  essence  (Kubeeh-lai-Ayn)  when  all  the  parts  and  fractions 
of  the  essence  are  bad,  or  even  where  one  part  is  bad;  and  that  is  what 
is  meant  by  the  class  called  Batil.  A  thing  is  bad  on  account  of  its  quality 
or  Wusf,  where  no  part  of  the  essence  of  the  thing  is  bad,  but  where  a 

(XVI).— See  Tawzeeh,  pages  269-270. 

(XVII).-^See  these  Tagore  Lectures,  Volume  I,  page  8,  para.  50  (46). 
(XVIII).— See  Tawzeeh,  page  260. 


HOORMUT-I-MOOABBUD  AND   HOOBMUT-I-MOWnKEUT,  Zl 

Wwf  or  quality  of  it  is  bad.    The  quality  of  a  thing  is  not  its  essence 
or  part  of  its  essence,  but  it  may,  all  the  same,  be  inseparable  from 
it ;  and  it  is  the  inseparable  quality  of  the  Wusf   which  causes  difficulty 
in  discriminating  it  from  the  Ayn  or  essence,   though  it  may  not  be 
difficult  to  distinguish  between   a  separable  quality  and  an  inseparable 
quality,  that  is,  between  a   Wusf  which  is  ghyr-lazim  and  a  Wusf  which 
is  laeim.     In  order  to  constitute  a  thing  good  for  its  essence  (or  Hussun* 
lauAyn)  all  its  parts  must  be  good  or  Hussunf  and   no  part  of  it  must 
be  Kubeeh  or  bad;  but  in  order  to  constitute  a  thing  bad  for  its  essence, 
it  is  sufficient  that  any  one  part   of  the  essence  is  bad  (XIX).     The 
parts  of  a  marriage  consist  amongst  others  of  proposal  and   acceptance 
and  a  fit  subject.      And  so  far  as  marriage  is  concerned,  it  can  be  laid 
down  broadly  as  beyond  the  possibility  of  a  doubt  that,  otiier  conditions 
being  fulfilled,  where  the  muhul  or  subject  is  not  fit,  there  the  marriage 
is  Toid  or  Batil ;  but  where  the  muhtd  is  fit,  and  the  defect  lies  in  the 
want  of  some  formality,  which  relates  to  the  quality  of  the  notion  called 
marriage,  there  the  marriage  is  Fasid;  as  for  instance,  the  absence  of 
witnesses,  the  presence  of  witnesses  being  regarded  by  some  as  a  quality 
although  a  necessary  quality  which,  according  to  us,  cannot  be  separated 
from  Nikah;    but  according   to   Shafee    and  Malik   presence    of  wit- 
nesses  is  not  necessary,  and,  therefore,  according  to  them,  a  marriage 
without  witnesses  is  a  valid  or  Saheeh  marriage*    Another  instance  of  a 
Fasid  marriage  is,  where  the  marriage  is  temporary  (XX) ;  here  the  muhul 
is  good,  but  a  quality  of  validity  is  wanting—that  quality  being  the 
absence  of  limit  as  to  time. 

27.  Of  the  instances  cited  above  from  the  Koran,  there  are  some 
females  whose  unlawfulness  or  Hoormut  is  permanent  or  Mooahbud,  and  some 
whose  unlawfulness  is  temporary  or  Mowukkui,  Is  there  any  ground  fof 
the'distinction  that  the  marriage  of  a  woman  permanently  or  perpetually 
unlawful  is  Batil  or  void,  because  the  unlawfulness  is  permanent  and  cannot 
possiblj  be  removed;  and  that  the  marriage  of  a  woman  temporarily  unlaw- 
ful is  Fasid  or  defective,  because  the  unlawfulness  is  temporary  and  might 
be  removed  9  Whether  permanently  or  temporarily  unlawful,  it  will  be 
observed  that  both  are  prohibited  for  marriage,  and  this  prohibition  has 
reference  to  the  time  of  the  marriage;  but  if  there  is  a  distinction  between 


(XIX).— See  Tawzeeh,  poge  264. 

(XX).— See  Rttdd-ool-Mohfcar,  Volume  IT,  pp.  1000-1001,  translated   in   these   Tagore 
licotures  in,  Vol.  Ill,  page  365,  paragraph  marked  (XV;. 


Xll  CAUSES    OF   LAWFULNESS    OF   ENJOYMENT. 

permanent  and  temporary  unlawfulness,  how  stands  the  right  of  enjoyment 
in  the  interval  whilst  the  temporary  disability  lasts  7  Is  the  woman  a  fit 
subject  of  enjoyment  whilst  such  disability  lasts ;  if  not,  does  she  become 
a  iit  subject  of  enjoyment  after  such  disability  has  ceased  under  the  same 
initial  contract  of  marriage  9 

28.     According  to  the  Mahomedan  Law,  lawfulness  of  enjoyment  arises 
from  two  causes: — (Firstly)  ownership  of  possession  or  Milk-i-Rukhd^Min 
the  case  of  a  slave  girl  lawfully  captured  in  a  lawful  Jehad ;  and  (secondly) 
ownership   arising    from   a   legal   marriage.     I  have  shewn  above  (see 
paragraph  6)  that  where  certain  given  things  are  found,  there  the  result 
is  produced  by  the  ordinance  of  God,  and  no  human  power  can  prevent 
that  result;  where  the  subject  is  fit  and  other  matters  are  as  they  ought 
to  be,   the  pronouncing  of  the  formula  of   marriage  must  produce  the 
legal  result  as  certainly   as   results  are  produced  in  physical  matters: 
the  legal  result  of  marriage  is  present  lawfulness  of  enjoyment  and  not 
future  or  prospective  lawfulness  of  enjoyment  after  the  disability  in  the 
woman  shall  have  ceased.     If,  therefore,  a  woman,  temporarily  unlawful, 
is  lawful  to  cohabit  with,  because  her  unlawfulness  is  capable  of  being 
removed,  then  that  is  lawful  which  the  Koran  has  laid  down  to  be  unlaw- 
ful.    This  result  must  necessarily  follow  when  a  marriage,  with  a  mu/iul 
or  subject,  which  is  not  fit  at  the  time  of  the  marriage,  is  said  to  be 
Fasid ;  because  the  term  Fasid  implies  lawfulness  with  defect  or  vice ; 
the  term  means  that  there  is   the  quality  of  goodness  of  the  essence  or 
Hu88un4ai'Ayny  but  there  is  also  the  quality  of  badness  or  Koohuh  by 
reason  of  the  badness  of  a  Wuaf  or  quality. 

29.  It  must  be  remarked  here  that  to  base  the  distinction  of  mar- 
riage between  Batil  and  Fasid  upon  the  permanent  and  temporary  character 
of  the  unlawfulness  of  the  woman  involves  a. confusion  of  ideas.  Such 
unlawfulness  might  be  of  a  temporary  character  and  still  the  Nikah  might 
be  Batil.  Batil  and  Fasid^  when  applied  to  marriage,  are  the  classes  of 
the  notion  expressed  by  the  word  *'  marriage,"  and  they  do  not  constitute 
a  classification  of  the  subject  or  muhtil  of  marriage,  which  subject  ormnhtU 
is  the  particular  woman  concerned,  and  do  not  depend  on  the  degree  of  the 
unlawfulness  of  that  woman,  and  cannot  be  determined  by  a  reference 
to  the  question  whether  the  unlawfulness  of  the  muhul  or  subject  is 
permanent  or  temporary,  but  must  be  determined  by  the  vice  or 
defect  which  applies  directly  and  specially  to  the  marriage  itself, 
though  that  vice  or  defect  might  be  partially  constituted  by  a  reflection 
of    the    delect    of    the    su])jcct   or    muhul    of    the   marriage.       If    the 


MARRIAGE    WITH    AN    INFIDEL   WOMAN    AND    WITH   A    MtTNKOOHA-I-GHYR.       xHI 

muhul  is  not  hulal,  then  there  is  no  ownership  at  all.  Connexion  with 
a  woman  without  ownership  of  marriage  or  ownership  of  possession 
is  unlawful  in  its  very  essence,  whether  the  woman  is  permanently  un- 
lawful or  temporarily  unlawf  al.  To  argue  that  because  a  woman  is  not 
unlawful  in  her  essence  hut  is  unlawful  for  something  else,  therefore  her 
marriage  also  does  not  involve  unlawfulness  of  the  essence  of  the  marriage, 
but  involves  unlawfulness  of  the  marriage  on  account  of  a  quality  of  the 
marriage,  is  to  take  two  false  steps  in  logic:  this  argument  first  assumes 
one  question,  and  then  mixes  up  that  question  with  another:  it  assumes  that 
marriage  is  susceptible  of  the  division  of  being  unlawful  in  its  essence  and 
of  being  unlawful  for  something  else,  for  which  there  is  no  authority;  and 
it  also  assumes  without  any  authority  that  the  division  of  marriage  follows 
the  classification  of  unlawfulness  regarding  the  subject  of  marriage.  (See 
paragraphs  23,  26  and  74  of  this  Appendix).  It  must  also  be  noted  that 
the  Ohyr  or  something  else  does  not  always  prevent  the  Koohuh  from  being 
fastened  to  and  induced  on  the  essence.  As  will  be  shown  in  paragraph  81 
where  the  Qhyr  is  Wasta-fiUsoobooif  there  the  Koobuh  or  badness  is  induced 
in  the  essence,  as  in  the  case  of  usurpation  or  ghusuby  which  is  bad  on 
account  of  the  right  of  others ;  but  the  wasta  or  intermediary  is  dis- 
regarded, and  the  Koobuh  or  badness  comes  to  be  attached  to  the  essence 
of  the  act  of  usurpation.  And  besides  this,  even  if  the  Ohyr  is  of  the 
nature  of  Wastorfil-oorooZy  or  bad  on  account  of  a  quality,  still  the  Koobuh 
might  be  of  such  a  strong  character  as  to  have  a  preponderating  efEect, 
and  to  overpower  the  Eoosn  or  excellence,  so  that  the  result  is  bootlan  or 
avoidance. 

30.  The  Koran,  in  declaring  unlawfulness,  treats  of  permanent  and 
temporary  unlawfulness  in  like  terms ;  that  is,  the  same  terms  are  used 
in  reference  to  both.  As  regards  temporary  unlawfulness,  three  instances 
are  given  ; — the  first  instance  is  the  case  of  an  idolator ;  the  second  is 
that  of  two  sisters ;  the  third  is  that  of  another  man's  wife,  or  Munkooha-* 
i-ghyr.    (See  paragraphs  16  and  17  of  this  Appendix).    As  regards  an  infidel 

woman  she  is  absolutely  not  a  fit  subject   or  muhul ;  and,  therefore,  the 

- — — ■  -^ 

(XXI).— See  Rudd-ool-Mohtar,  Vol.11,   page   574.     Translated  in  I.  L.  R.,    23  Calcutta 
Series,  page  166.     See  also  Bailie's  Digest,  page  399. 
See  Contra,  Mr.  Justice  Ameer  Ali's  Mohamedan  Law,  Yol.  II,  pages  202  and 
317-18. 
{XXII). — See  Bailie's  Digest,  page  399,  and  Budd-ool-Mohtar,  Vol.  II,  pages  574-75. 
Translated  in  I.  L.  R.,  23  Calcutta  Series,  pnges  166,  3rd  parngraph. 
See  also  these  Tagore  Lectures,  Vol,  III,  page  365,  paragraph  marked  (XV). 


XI 7  POSITION   OF   THE   THRICE   DIVOBCBD   WIFE. 

author  of  the  Budd-ool  Moohtar,  reviewing  all  authorities,  lays  down  that 
such  a  marriage  is  Batilf  and  Nusub  is  not  established  by  it  (XXI.)  As 
regards  another's  wife,  she  is  likewise  no  muhul  of  marriage  (XXI J.) 

31.  The  fitness  of  a  particular  woman  to  be  a  muhvl  is  a  relative 
fitness  and  not  an  absolute  fitness ;  and  the  same  woman  may  be  a  fit  sub- 
ject in  respect  to  one  individual  and  not  be  so  in  respect  to  another;  and  the 
question  of  fitness  must  be  determined  by  authority,  and  the  chief  authority 
is  the  Koran.  Take  the  case  of  a  woman,  who  has  been  divorced  by  a  hain 
or  irreversible  divorce  by  her  husband  once,  twice  or  thrice ;  in  the  first 
two  cases,  that  is,  where  the  third  divorce  is  not  pronounced,  she  does  not 
cease  to  be  a  fit  subject  of  marriage  by  the  same  husband ;  on  the  other 
hand,  be  is  at  liberty  to  marry  her  before  the  expiry  of  the  Iddui  and 
also  after  the  expiry  of  the  Iddnit :  but  when  the  husband  has  pronounced 
three  divorces,  the  aid  of  the  MohullU  must  be  invoked  and  the  woman 
must  be  married  to  another  man,  and  the  new  husband  must  have 
intercourse  with  her,  before  she  can  become  qualified  and  fit  for  re- 
marriage by  her  first  husband.  The  Koran  says  (XXIII)  **  but  if  the 
husband  divorce  her  a  third  time,  she  shall  not  be  lawful  for  him 
again  until  she  marry  another  husband."  She  is,  accordingly,  classed 
(XXIV)  in  ShoobhorirfaU  which,  as  will  be  hereafter  explained,  is  a 
class  where  the  intercourse  is  Batily  and  where  Nusub  is  not  estab- 
lished. But  the  same  thrice  divorced  wife  is  a  perfectly  fit  subject  of 
marringe  by  a  stranger,  whose  marriage  with  her  whilst  she  is  within 
her  Iddut  is  merely  Fasid,  she  being,  to  all  purposes^  a  fit  subject  with 
reference  to  him. 

82.  The  position  of  the  thrice  divorced  wife  is  also  illustrated  by  a  rule 
of  Jurisprudence  or  OosooUi-Fikah,  God  lays  down  in  the  Koran  (XXV), 
<<  The  women  who  are  divorced  shall  wait  concerning  themselves  until  they 
have  their  courses  ihricey  Ac."  The  original  word  for  **  courses*'  is  ^'Kooroo/^ 
a  word  which  has  a  double  signification,  and  which  is  Mooshturuk  or  common 
to  both  purity  or  Toohur^  and  poUutionor  Hyz.  The  Shafei  school,  for 
reasons  which  it  is  not  at  present  necessaiy  to  go  into,  affirm  that  Kooroo 
here  is  used  in  the  sense  of  Toohur  or  purity:  the  school  of  Aboo  Haneefa 
maintain  that  Kooroo  here  means  pollution  or  Hyz;  because  say  thej,  if  it 
means  period  of  purity,  then  the  word  '* thrice*'  or  "three,"  which  is  a  JJuu 

(XXIII). — See  these  Tagore  Leoturea,  Vol.  I,  page  9,  paragraph  58  (64). 

(XXIY).— See  Hamilton's  Hedaya,  Vol.  II,  page  20:  and  Badd-ool-Mohtar,  Vol.  Ill,   page 

284,  translated  in  I.  L.  R.,  23  Calcatta  Series,  page  168. 
(XXV).— See  these  Tagore  Lectures,  Vol.  I,  page  9,  paragraph  56  (52). 


MARBTAGE   WITH   THR    FIFTH   WIFU.  XT 

or  particular  word  as  contradistinguished  from  a  general  or  aam  word^  and 
which  governs  the  word  Kooroo  in  the  text  of  the  Koran,  and  which  mast 
be  conclusive  or  kutaie  in  its  meaning,  does  not  remain  conclusive^  because 
the  divorce  having  been  given  in  a  period  of  purity,  what  remains  of  that 
period  of  purity  is  not  an  entire  period;  and,  therefore,  if  that  period  is  to 
be  counted,  the  result  would  be,  that  there  would  be  only  two  periods  of 
purity  and  a  fraction  of  one  period  of  purity ;  on  the  other  hand,  if  the 
period  of  purity  in  which  the  divorce  is  given  is  not  counted,  then  the 
result  would  be  that  there  would  be  three  periods  of  purity  and  a  fraction 
of  one  period  of  purity.  But  if  the  word  Kooroo  be  taken  to  mean  pollution, 
then  the  divorce  having  been  given  in  a  period  of  purity,  the  wife  has 
simply  to  count  three  periods  of  pollution  in  future,  and  her  Iddut  expires 
with  the  expiry  of  the  third  period  of  actual  impurity  (XXVI).  Upon 
this  subject  there  are  several  riders  or  rules  deduced,  which  are  noticed 
in  the  Fusool,  a  commentary  on  the  Oosool-i-Shashy  (XXVII),  but  it  is 
only  necessary  here  to  notice  one  rule,  viz.y  "  It  is  Saheeh  or  valid  for  her  to 
contract  Nikah  with  a  man  different  from  her  husband  in  the  third  Eyz 
(that  is,  while  the  third  menses  is  actually  on  her  and  before  she  has  com- 
pleted that  menses)  according  to  Shafei;  (because  her  Idduty  according  to 
him,  expired  with  the  third  period  of  purity,  that  is  to  say,  immediately 
before  the  third  menses  commenced)  but  such  a  Nikah  is  Batil  or  void 
according  to  us.  (Here  Batil  is  used  for  Fasid,  and  the  Nikah  is  Fasid  be- 
cause the  Iddut  has  not  expired)." 

38.  Again,  the  Koran  (XXVIII)  lays  down  that  four  women  are  lawful 
as  wives  at  one  and  the  same  time ;  the  fifth  wife  is,,  therefore,  not  the 
muhid  of  Nikah,  and  her  marriage  must  be  Batil;  but  if  the  husband 
has  divorced  one  of  the  four  by  a  hain  or  irreversible  divorce,  and  she  is 
observing  her  Iddut,  then  his  marriage  with  a  fifth  wife  before  the  expiry 
of  the  Iddut  of  the  fourth  wife,  would  only  be  Fasid ;  because,  on  account 
of  the  divorce  of  one  of  the  four,  the  relationship  of  husband  and  wife 
has^  for  all  practical  purposes,  come  to  an  end,  so  that  he  can  have  no 
intercourse  with  her,  but  the  non-expiry  of  the  Iddut  of  the  fourth  wife, 
which  is  the  period  of  waiting  or  probation,  raises  a  defect  not  of  a 
character  to  render  the  fifth  wife  wanting  in  fitness,  but  the  defect  is  of  a 
mere  formal  character. 

(XXVI).— See  Tawzeeh,  pages  36-37. 
(XXVII).— See  FoobooI,  page  23,  Delhi  edition  of  1302  H. 
(XXVIII)  — See  these  Tagore  Lectures,  Volume  I,  page  16,  paragraph  101  (97). 


XVL  INSTANCES    OF   FASID    MARKIAGR6* 

34.  So  also  as  regards  the  Motudda  of  another,  that  is,  a  woman 
wlio  is  observing  her  Iddut  having  been  divorced  by  her  husband :  she 
becomes  a  stranger  to  her  husband  as  shewn  above;  she,  therefore, 
acquires  the  capacity  of  being  a  fit  subject  of  marriage  by  another  man, 
but  the  marriage  shall  be  Fasid  and  not  BatiL 

85.  The  author  of  the  Rudd-ool-Moohtar,  (XXIX),  gives  the  follow- 
ing  instances  of  a  Fasid  marriage : — marriage  with  a  woman  in  the  Iddut 
of  a  previous  husband  ;  marriage  with  a  fifth  wife  in  the  Iddut  of  the 
fourth;  marriage  with  a  female  slave  upon  a  free  woman.  The  prohibi- 
tion in  the  last  case  is  not  based  upon  a  rule  of  the  Koran  declaring  its 
unlawfulness,  but  is  based  on  a  tradition  of  the  Prophet,  reported  in  the 
Dar  Eootni  to  the  eflEect  ( l;*^f  v>  ^^^  J^  ^  )  that  "  a  slave  girl  ought 
not  to  be  married  upon  a  free  woman  :"  here  the  Hanifites  maintain  that 
the  marringe  is  not  jaiz  or  permissible  5  but  the  followers  of  Malik  say, 
the  marriage  is  good  if  the  free  woman  agrees ;  and  Shafei  says  if  the 
husband  is  himself  a  slave  and  has  married  a  free  woman  with  his  master's 
consent,  then  he  can  marry  a  slave  girl  upon  tliat  free  woman,  who  has 
tolerated  the  disgrace  of  being  married  to  a  shive,  and  may,  therefore, 
submit  to  a  little  further  degradation.  The  marriage  of  the  slave  upon  a 
free  woman  is,  therefore,  Fasid^  which  is  defined  by  some  of  the  Doctor^ 
(XXX)  to  be  a  marriage  where  the  muhul  or  subject  is  fit,  but  where 
there  is  a  difEerence  of  opinion  among  the  Ooleemas  as  regards  the  mar- 
riage being  permissible  or  not,  e.  jr.,  marriage  without  witnesses.  There- 
fore, here,  that  is,  in  the  case  of  a  slave  girl  man*ied  upon  a  free  woman, 
the  prohibition  arises  out  of  respect  for  the  wife  who  is  a  free  woman, 
and  not  because  the  slave  girl  is  not  a  fit  subject. 

86.  The  instances  given  above  shew  that  permanency  of  unlaw- 
fulness or  the  temporary  character  of  it,  as  respects  the  woman,  is  no 
ground  of  distinction  to  mark  the  character  of  the  marriage ;  and  that 
marriages  in  which  the  woman  is  only  temporarily  unlawful  may  be  equally 
void  with  marriages  in  which  the  woman  is  permanently  unlawful. 

37.  As  regards  the  marriage  of  two  sisters,  there  are  two  points 
of  view  from  which  the  case  might  be  considered;  first,  when  they  have 
been  married  together,  that  is,  by  one  contract;  and  secondly,  when  they 
have  been  married  one  after  the  other  by  separate  contracts. 

(XXIX).— See   Badd-ool-Mohtar,   Yolnme    II,  page  574,    translated  in    I.   L.    R.,   23 

Calcatta  Series,  page  165. 
(XXX). — See  Rudd-ool-Mohtar,  Volume  II,  page  1000,  translated  in  tbese  Ta^ore  Lec- 
tures, Vol.  Ill,  page  365,  paragraph  marked  (XY), 


TWO  SISTERS   UABRIED   BT   OKE   CONTBACT.  XVII 

38.  When  thej  are  married  together,  their  marriage  has  been  re- 
garded bj  a  small  minority  as  Fasid,  but  generally  such  a  marriage  has 
been  held  to  be  Batil ;  and  probably  the  correct  view  is  that  it  is  Batil 
(XXXI).  The  author  of  the  Buhur-ool  Raik  (XXXII)  holds  the  mar- 
riage  of  two  sisters  by  one  contract  to  be  Fasid;  as  also  the  marriage  of 
one  sister  during  the  Iddut  of  another. 

89.  Those  who  hold  that  the  marriage  of  two  sisters  by  one  contract 
is  void  or  Batil  rely  upon  the  words  of  the  Koran  which,  by  prohibiting  the 
joining  together  of  two  sisters  in  marriage,  lays  down  the  absence  of  fitness 
in  the  subject  or  muhuL  Those  who  hold  such  a  marriage  to  be  Fasid 
probably  argue  thus ;  each  of  the  sisters  taken  by  herself  without  regard 
to  the  other,  is  a  fit  subject,  and  it  cannot  be  said,  with  reference  to 
either,  that  she  was  posterior  and  not  prior ;  therefore  each  taken  by 
herself  alone  does  not  fall  within  the  prohibition  against  joining  two 
sisters,  but  falls  under  the  general  class  of  women  not  declared  unlawful 
by  the  Koran ;  but  each  taken  along  with  the  other  comes  within  the 
prohibition  against  joioiDg  two  sisters  in  marriage  as  laid  down  in  the 
Koran :  therefore  the  case  has  a  double  aspect,  and  both  aspects  might  be 
given  effect  to  :  each  being  a  fit  subject  by  one  process  of  reasoning,  the 
marriage  is  not  void,  and,  therefore,  Nutsub  would  be  established,  and  Iddut 
would  be  obligatory  ;  but  each  being  regarded  along  with  the  other,  the 
marriage  is  bad,  and,  therefore,  there  should  be  separation  between  them 
and  the  husband.  I  have  not  seen  this  process  of  reasoning  laid  down 
distinctly  in  reference  to  the  case  in  question,  but  I  infer  as  much  from  the 
discussion  in  Jurisprudence  regarding  the  effect  of  an  exception  or  istisnay 
and  abrogation  or  Nushhi  and  particularisation  or  TukhseeSy  as  relating  to 
a  case  of  sale,  where  two  things  are  sold  by  one  contract  with  the  option  in 
the  seller  as  to  one  of  those  things,  in  which  case  one  analogy  requires  that 
the  sale  should  be  good  in  all  cases,  and  another  analogy  requires  that 
the  sale  should  be  bad  in  all  cases ;  but  giving  effect  to  both  the  ana- 
lo^es,  the  sale  is  held  good  only  if  the  subject  of  option  is  known  and 
its  price  is  also  known,  and  it  is  held  bad  in  three  other  cases,  the  alter- 
natives being  four  (XXXIII). 

(XXXI;. — See  Aynee,  Volame  II,  page  31. 

Inaya,  Volume  II,  page  10. 

Foth-ool-Kudeer,  Yolnme  II,  page  19. 

(XXXI  r).— See  Bndd-ool-Mohtar,  Volume  II,  page  999,  tranalated  in  these  Tagore  Lee 

tures,  Vol.  Ill,  pages  362-63,  paragraph  marked   (VI),  where  the  quotation 

from  the  Bahur-ool-Baik  is  given. 
(XXXIII).— See  Towzee,  pages  51-53. 

3 


XVni  TWO   8ISTEB8   MAHBIGD    0KB   AFTBR   THE    OTHER. 

40.  But  wliere  two  sisters  are  married  one  after  the  other,  there,  by 
no  possibility,  can  the  sister  married  subsequently  be  deemed  to  be  a  fit 
subject,  and  nobody  has  discovered  any  process  of  reasoning  consistent 
with  the  rules  of  Jurisprudence  to  take  the  second  marriage  out  of  the 
category  of  a  void  or  Baiil  marriage ;  accordingly.  Text-writers  aud 
Commentators  have  held  such  a  marriage  to  be  BatU  (XXXIY). 

41.  If  the  woman  is  a  fit  subject,  and  the  marriage  is,  in  all  respects, 
Saheeh  or  valid,  then  the  marriage  itself  amounts  to  intercourse  by  fiction 
(or  Wuty  i-Hookmy)  ;  so  that  if  birth  takes  place  at  six  months  from  the 
marriage,  the  Nusuh  is  established,  although  actual  intercourse  might 
have  taken  place  later,  or  might  be  impossible  to  human  comprehension 
and  perception  ;  as  where  the  husband  is  Mujboob  (one  whose  male  organ 
has  been  cut  ofE)  or  where  the  husband  is  in  the  east  and  the  wife  is  in 
the  west.  In  a  Saheeh  Nikah  two  things  are  found  at  once ;  fiirst,  the 
subject  or  muhrd  is  fit  or  Saleh ;  and  second,  by  the  Nikah  that  muhul 
becomes  Hulal  by  reason  of  the  fulfilment  of  all  essentials. 

42.  In  a  Fasid  marriage  the  muh^l  is  Saleh  or  fit;  that  is,  the 
woman  has  the  capacity  or  fitness  to  become  a  wife,  but  the  muhul  does 
not  become  Hulal  or  lawful  on  account  of  some  defect;  and  by  reason  of  this 
defect,  tlie  marriage  does  not  amount  to  a  constiuctive  intercourse  or 
Wuty  i'Hookmyy  and  separation  w,  therefore,  necessary  to  prevent  sinfidnessy 
[as  shown  in  the  Rudd-ool-Mohtar,  Vol.  II,  page  468,  referred  to  in  the 
citation  to  paragraph  40  of  this  Appendix,  and  translated  in  I.  L.  B.,  23 
Calcutta  Series,  page  163,  paragraph  marked  (c)]  ;  but  the  muhul  being 
Sahh,  or  fit,  Nusub  would  be  established  if  birth  takes  place  at  six  months 
from  actual  intercourse. 

(XXXIV).— See  Hamilton's  Hedaya,  Volamo  I,  pages  78  and  79. 

Ay  nee,  Yolanie  II,  page  81. 

Inaya,  Volume  II,  page  10. 

Fnth-ool-Kudeer,  Volume  II,  page  19. 

Budd-ool-Moohtar,  Volume  II,  phages  674  and  575,  translated  in  I.  L.  ft.| 
23,  Calcutta  Series,  pages  165,  1G6  and  167,  also  referred  to  shortly  in 
Mr.  Justice  Ameer  AU*8  Mohamedan  Law,  Volume  II,  page  319,  bat  the 
full  and  correct  translation  of  the  whole  of  the  passage  is  giyen  in  tbe 
Beport. 

Bndd-ool-Moohtar,  Volume  II,  pages  465,  468,  469  and  471,  translated  in 
X.  L.  B.,  28,  Calcutta  Series,  pRges  162,  163,  164  and  165;  that  is  to  say, 
page  465  is  translated  at  page  162,  paragraph  (a) ;  page  468  is  translated 
atpnge  162,  pan  graph  (b)  and  at  pnge  163,  paragraphs  (c),  (d)  and  {<•); 
page  469  is  translated  at  page  16  ^,  paragraph  (/)  j  page  471  is  translated 
at  page  164  paragraphs  {g)  and  (h). 


THV  SUBJECT  T8  FIT  IN  A  FA  SID  BUT  NOT  IN  A  BATIL  MABRIAGE.  ZIX 

CONNECTION  BETWEEN  MUHAL  AND  NU8UB. 

43.  But  in  a  BaUi  marriage,  the  muhul  or  subject  is  not  fit ;  there  is, 
therefore,  no  marriage  at  all;  and  because  there  is  no  marriage,  the  parties 
must  be  separated ;  and  because  the  muhul  is  not  fit,  there  is  no  Numb ; 
whereas  in  a  Saheeh  marriage,  the  muhul  is  fit,  and  the  woman  becomes 
lawful  to  be  enjoyed;  because  she  is  lawful  to  be  enjoyed,  she  cannot  be 
separated  ;  and  because  the  muhul  is  fit,  therefore  Nvsub  is  established. 

44.  It  thus  appears  that  the  establishment  of  Nustvh  depends  on  the 
fitness  of  the  subject  or  muhul ;  and  that  the  fitness  of  the  muhul  gives 
to  the  marriage  the  character  of  being /SaA^eA  or ^f  being  Fasid;  and  that, 
among  other  things,  absence  of  fitness  gives  to  it  the  character  of  BooiUin 
or  being  void. 

46.  In  the  annotations  on  the  Poosool,  which  is  a  Commentary  on  the 
OosooI-i-Shashee,  a  passage  is  cited  at  page  185  in  note  I  from  the  Madun, 
which  is  also  a  Commentary  of  great  authority  on  the  Oosool-i-Shashee, 
the  effect  of  which  is  as  follows: — Where  there  has  been  E^ah  and  Eabool 
without  witnesses,  there  is  no  Nikah  according  to  the  Shera:  and  the  estab- 
lishment of  Nusub^  and  the  absence  or  Sakoot  of  Buddy  and  the  obligation 
of  Iddut  do  not  indicate  the  lawfulness  of  the  Nikah  ;  because  these  things 
are  established  as  based  on  Shoohha-i-Akd  or  doubt  arising  from  marriage, 
on  account  of  the  existence  of  the  pillar  of  the  contract,  (which  is  Eejah  and 
Kaboot)  emanating  from  an  Ahul  or  fit  subject,  towards  a  muhul  or  fit  object. 

46.  Thus,  as  shown  above,  in  a  Batil  marriage  the  subject  or  muhul 
is  not  fit.  Accordingly  the  Tulweeh,  a  Commentary  on  the  Tawzeeh, 
fXXXV)  whilst  distinguishing  between  nuhee  or  negative  commands  and 
Nuskh  or  abrogation,  lays  down  that  the  latter  "  declares  that  the  act 
can  no  longer  possibly  exist  according  to  the  Shera,  e.g.,  to  face  towards 
Jerusalem  in  prayers,  and  the  lawfulness  of  two  sisters''  (literally  ^^  sisters/') 
Here  "sisters,"  evidently  means  "two  or  more  sisters"  that  is  sisters 
of  the  wife,  although  the  word  might  also  include  one's  own  sisters.  The 
lawfulness  of  a  man's  own  sister  was  allowed  in  the  religion  of  Adam,  but 
it  was  abrogated  long  before  the  advent  of  our  Prophet.  The  lawfulness 
of  the  wife's  sister  existed  before  the  time  of  our  Prophet.  It  existed  in 
the  law  of  Moses,  who  himself  married  two  sisters,  who  were  the  daughters 
of  Sboaib.  Before  the  time  of  Moses,  instances  of  lawful  marriage  of  two 
sisters  existed.  Yakoob  or  Jacob  had  married  two  sisters,  and  Yusoof 
or  Joseph  was  born  of  one  of   them.     But   all    this   was   made   nuskh   or 

(XXXV). — See  the  Tulweeb,  Newal  Kisbore^B  Edition  of  LTicknoTT,  page  291. 


ZZ  A    NEGATIVE   COMMAND    LEGALIZES   THE    E6SENCB. 

abrogaf.ed  bj  the  law  promulgated  by  our  Prophet.  The  practice 
of  facing  Jerusalem  whilst  saying  prayers  was  abrogated  by  the  Koran 
(XXXVI),  which  laid  down  that  the  face  must  be  turned  towards  Mecca 
whilst  saying  prayers,  and,  therefore,  the  practice  of  facing  Jerusalem  whilst 
saying  prayers  is  absolutely  prohibited  by  the  abrogation  in  question,  and 
therefore,  to  say  one's  prayers  facing  Jerusalem  is  not  to  bring  the  prayers 
into  existence,  and  such  prayers  amount  to  no  prayers  at  all.  So  the  prac- 
tice of  joining  two  sisters,  which  existed  before,  was  abrogated  by  the  text 
of  the  Koran  already  cited,  and,  therefore,  according  to  the  8hera,  the 
joining  of  two  sisters  together  in  marriage  cannot  be  recognised,  and  a 
marriage,  in  which  two  sisters  are  joined,  has  no  existence  according  to 
the  Shera,  just  as  if  no  outward  form  of  man*iage  had  at  all  been  gone 
through;  and  although  there  might  be  proposal  and  acceptance  in  appear- 
ance, still  such  marriage  is  not  thereby  brought  into  existence  according 
to  the  Shera^  and,  therefore,  the  eflPect  of  a  valid  marriage  prescribed  by  the 
Shera  does  not  attach  itself  to  such  a  marriage;  because  the  effect  would 
come  into  existence  after  the  existence  of  the  cause,  which  is  marriage; 
and  inasmuch  as  there  is  no  existence  of  marriage,  there  can  be  no 
Iddut  and  no  Nusvb^  which  are,  generally  speaking,  some  of  the  results 
of  a  marriage,  which  comes  into  existence  according  to  the  Shera :  the 
marriage  in  question  is,  therefore,  absolutely  void. 

47.  But  a  Fasid  marriage,  strictly  speaking,  would  be  one  in  reference 
to  which  there  is  no  text,  which  abrogates  and  renders  void  the  very 
essence  of  the  thing,  but  it  must  be  one  in  which  there  is  a  negative  com- 
mand or  nuheef  which  legalises  the  essence,  and  renders  the  act  as  possible 
of  existence  under  the  Shera,  but  prohibits  it  on  account  of  some  flaw  or 
defect. 

48.  From  what  I  have  submitted  above,  it  will  appear  that  intention 
has  no  effect  or  relevancy  in  a  question  of  marriage ;  and  it  will  also 
appear  why  a  marriage,  even  by  way  of  a  joke  or  huzul,  becomes  a  binding 
marriage,  provided  the  subject  is  fit  and  the  other  essentials  are  not 
wanting. 

49.  A  just  and  proper  appreciation  of  the  question  as  to  the  fitness 
of  the  subject  or  muhul  affords,  generally  speaking  for  all  practical  pur- 
poses, a  key  for  the  solution  of  most  of  the  rules  relating  to  the  law  of 
marriage  in  connection  with  the  question  raised,  and  negatives  the  sup- 
position that  the  portion  of  the  law,  relating  to  crimes  and  to  punishments 

(XXXYI).— See  these  Tagore  Lectures,  Volume  1,  page  3,  paragraph  14  (10), 


SHOOBHA-I-MUH(TL    AND    SHOOBHA-I-FArlL.  XXl 

for  9ina  or  wlioredom,  and  for  hizuf  or  slander,  supports  the  position  that 
where  the  subject  is  permanently  unlawful,  there  the  marriage  amounts  to 
no  marriage,  and  does  not  conduce  to  Numb,  but  where  it  is  temporarily 
unlawful,  there  the  marriage  is  a  good  marriage  and^establishes  Nvsvh, 

50.     The  general  principle  which  underlies  the  law  of  punishments 
for   crimes   is  the   tradition   of   the  Prophet — "Drop  punishment;  from 
doubt,"  the  punishment  for  zina  being  exceptionally  severe.     Doubt  is  of 
two  kinds:  doubt  or  error  in  the  act,  and  doubt  or  error  in  the  subject ; 
(XXXYII).     Both  these  doubts  are  sufficient  to  do  away  with  punish- 
ment.    In  both  these  classes  of  doubts  there  is  express  authority  for 
unlawfulness.     In   Shoobha-i-faily  or   doubt   or   error   in   the  act,   there 
is  no    sort  of  authority   for   the   lawfulness   of  the   muhul   or   subject, 
e,g.y  the  son  having  intercourse  with  the  father's  slave  girl ;  but  still 
when  the   man   claims   doubt,  that  claim  has  been  considered  sufficient 
to  remove  liability  to  punishment ;  but  in  this  class  Nusuh  is  not  estab- 
lished on  account  of  the  absence  of  all  authority  for  the  lawfulness  of  the 
subject.     But  in  Shoobha-i-muAul,  or  doubt  or  error  in  the  subject,  there 
is  some  sort  of  authority  for  the  lawfulness  of  the  subject,  e.gr.,  the  father 
having  intercourse  with  the  son's  slave  girl ;  here  the  authority  for  un- 
lawfulness is  the  authority  that  a  man  cannot  enjoy  any  but  his  own  slave 
girl,  and  cannot  appropriate  another's  property;  but  there  is  another  autho- 
rity which  the  father  has  or  might  have  misapplied,  and  that  authority 
consists  in  the  tradition  that  the  son  and  all  that  belongs  to  the  son  belong 
to  the  father;  the  latter,  therefore,  has  misapplied  this  authority  in  refer- 
ence to  the  son's  slave  girl.     (See  paragraph  60).     Here  also,  on  account 
of    doubt,  the    punishment  ceases   or  drops,   and    on    account  of   the 
authority  for  the  lawfulness  of  the  subject,  Nusvb  is   established.     See 
the  instances  cited  in  the  Hedaya  under  the  respective  heads  of  Shoobha-i- 
fail   and  Shoobha-i-muhul^   which  instances  are  amplified  but  under  the 
same  underlying  principle  in  the  Budd-ool  Mohtar  (XXXYIII). 

51.    In  common  with  other  matters  relating  to  the  Shera  in  which 
there  is  misconception,  Hudd  is  a  word  regarding  the  meaning  of  which 


(XXXVII) See  Hamilton's  Hedaya,  Volume  II,  pages  19,  20  and  21. 

(XXXVllI).— See  Rudd-ool-Mohtar  Volume  III,  pages  231  and  234,  translated  in  T.  L.  B., 
23,  Calcutta  Series,  pages  167  and  168. 
See  also  Baillie's  Digest  of  the  Mohamedan  Law,  pages  397  and  398. 


XXii  DOES   CONSUMMATION   CURE    FLAW  P 

there  is  some  misconception.  Correctly  speakinor,  Hvdd  is  punishment 
prescribed  unalterably  by  the  Koran  for  unlawful  connexion  falling  under 
the  definition  of  zina:  and  the  Tazeer  or  penalty  which,  according  to  Aboo 
Haneefa,  is  to  be  substituted  for  Hudd^  where  the  case  does  not  fall  within 
the  technical  definition  of  zina^  is  a  discretionary  punishment,  the  nature 
of  which  is  not  unalterably  fixed.  The  Hudd  for  zina  is  fixed  by  the 
Eoran  itself.  In  a  case  of  zina,  the  Kazee  has  no  alternative  :  he  mnst 
carry  out  the  sentence  to  the  fullest  extent,  and  the  fixed  number  of 
stripes  or  doorras  must  be  laid  on  even  if  the  culprit  were  to  succumb 
to  death  during  the  infliction.  It  is  related  of  fluzrut  Oomur  (see 
Tareekh-i-Khumees,  Volume  II,  page  252)  that  having  convicted  his  onlj 
son  Aboo  Shah  ma  of  zinay  he  had  the  strength  of  mind  to  do  stern  justice 
by  passing  a  sentence  that  the  culprit  should  receive  the  fixed  number  of 
doorrasy  and  although  life  was  nearly  extinct  even  before  the  last  few 
stripes  had  been  inflicted,  still  the  Shera  must  have  its  strict  course  flnd 
the  full  number  was  ordered  to  be  completed,  so  that  with  the  last  stripe 
life  became  wholly  extinct.  No  ordinary  man  or  woman  is  believed  to 
survive  the  punishment  for  zina^  although,  no  doubt,  to  suffer  the  pumsh- 
ment  is  to  make  full  atonement  for  the  transgression.  For  cases  which 
did  not  amount  to  zina  but  which  were  withal  illegal  connexions,  Aboo 
Haneefa  substituted  Tazeer^  whicli,  though  not  so  severe  as  the  Eudd 
fixed  by  the  Eoran,  was  severe  enough  in  all  conscience,  and  was  not  and 
could  not  be  said  to  consist  of  a  mild  chastisement. 

52.  The  following  proposition  is  true  :  the  ShoohhUy  which  is  suffi- 
cient to  establish  Nuauh  is  also  sufficient  to  remove  the  liability  to  Eudd : 
but  the  Shoobhay  which  is  sufficient  to  remove  the  liability  to  Huddy  is,  by 
no  means,  necessarily  sufficient  to  establish  Nusvh. 

53.  In  every  case  where,  although  a  form  of  marriage  has  been  gone 
through,  still  there  is  some  kind  of  flaw  in  it,  it  must  be  seen  whether 
the  case  is  that  of  Skoobha-i-fail  or  Shoobha-i-muhul :  in  the  latter  case, 
generally  speaking,  Nusub  is  established,  but  not  in  the  former:  in 
both  cases  the  mere  form  of  marriage  being  gone  through  does  not 
render  the  muhuly  at  the  time  of  the  marriage,  hulaly  and  it  is  a  different 
question  whether  or  not  it  is  capable  of  becoming  hulal  in  future  bj  a 
future  marriage.     Nothing  can  be  more  repugnant  to  the  instincts  of  the 

^  Mohamedan  Law  than  the  proposition  that  consummation  cures  a  flaw  or 
deflect ;  that  consummation  should  have  the  effect  of  curing  or  removing  a 


LEGAL   EFFECTS   OF   k    SUHBRH   AND    OF   A    FASID    MARRIAGE.  XXIU 

flaw  is  a  non-Mohamedaa  idea  i^  tbe  coDsammation  itself,  that  is,  a  legal 
consummatioD,  is  tbe  e£Eect  of  a  cause ;  that  cause  is  the  establishment 
and  existence  of  ownership ;  if  the  cause  is  absent,  the  effect  must  be 
absent ;  therefore  consummation  itself  must,  in  order  to  be  legal,  take 
place  in  a  valid  marriage.  (See  paragraphs  13  and  68  of  this  Appendix) : 
and  besides  this,  if  in  Fasid  marriages  consummation  had  that  effect,  then 
why  should  it  be  the  duty  of  the  Kazee  to  separate  the  parties  on  the  fact 
coming  to  his  knowledge.     (See  paragraph  42  of  this  Appendix.) 

54.     In  a  Suheek  or  valid   Nikah,  (firstly),  the  Nikah  itself  creates 
liability  to  dower ;  (secondly),  the  Nikah  is  Wuty-i-TIookmyy  or  sexual  in- 
tercourse by  fiction  ;  so  that  if  birth  takes  place  within  six  months  from 
the  marriage,  the  Nusub  is  established,  although  tbe  birth  might  not  be 
within  six  months  of  actual  Wuty;  ("thirdly),  the  Nikah  is  susceptible  of 
divorce  or  the  breaking  or  dissolution  of  the  link  or  vinculum  brought  into 
existence  by  the  marriage ;  (fourthly),  as  soon  as  there  is  a  KhUwut-i- 
Suheeh,  the  Iddut  becomes  obligatory;  (fifthly),  dower  becomes  lazim  or 
obligatory  by  mere  marriage,  but  becomes  payable  by  Z^Aiiwu^i-SwAaefc;  in 
other  words,  Nufs-i-  Wujooh  or  mere  liability  to  dower  becomes  established  by 
Nikah,  but  Wujoob-i-Aday  or  obligation  to  payment,  is  established  by  Khil' 
ivui'i-Suheehy  or  by  death  ;  (sixthly),  in  a  Suheeh  marriage  Lian  may  take 
place.     But  in  a  Faaid  Nikah,  (firstly),  it  is  sexual  intercourse  and  not  the 
j^TtXraA  itself  which  creates  liability  to  dower;  (secondly),  the  nikaA  is  not 
Wuty-i-Hookmyy  but  there  must  be  actual  sexual  intercourse;  so  that  if  a 
child  is  born  within  six  months  of  actual  sexual  intercouse,  then  the  Nusub 
of  that  child  is  established;  (thirdly),  the  Kazee  must  separate  the  parties, 
and  the  separation  is  Fuskh  or  cancellation,  and  not  Talak  or  dissolution  ; 
(fourthly),  the  Khilwut-i- Suheeh  does  not  give  rise  to  Idduty  but  the  Iddut 
arises  from  actual  Wuty y  or  sexual  intercourse,  as  a  matter  of  precaution; 
(fifthly),  the  dower  does  not  become  obligatory  and  payable  except  by  actual 
sexaal  intercourse,  and  not  even  by  death ;  and  it  is  correct  to  say  that 
Khilwut'i'Fasid  in   Nihah-i- Suheeh  is  like  Khilwiit  i-Suheeh   in   Nikah-i- 

*  Sven  in  matters  of  Koofawut  or  'EqvMXity^  where  the  muhvl  or  sabjeot  cannot  be  said  to 
be  not  fit  ia  the  sense  in  which  the  word  is  used  in  the  case  under  discussion,  consummation 
does  not  care  the  flaw  of  want  of  Equality,  See  these  Tagore  Lectures,  Yolume,  IT,  page  76, 
para^^mpb  HOI  (201)  and  page  78,  paragraph- 1105  (205).  The  birth  of  a  child,  however,  in 
the  case  of  absence  of  JSbo/atcmt,  destroys  the  right  of  objection.  See  these  Tagore  Lectures, 
page  77,  paragraph  1102  (202),  and  page  86,  paragraph  1126  (226) ;  and  as  regards  i^usub  in  the 
case  of  absence  of  'Equality^  where  intercourse  has  taken  place  and  a  child  is  bom,  there 
is  no  difficulty  in  the  JVi^^ub  being  established  in  the  father,  becanse  there  the  woman  or  the 
muhvly  that  is,  the  subjeoty  is  fit.  This  matter  has  an  important  bearing  on  the  question  under 
discasai  on. 


XXiV  KtrSUB   DEPENDS   OK   LEGAL   OWNERSHIP. 

Fasid ;  (sixthly),  in  a  Fasid  marriage  Lian  does  not  take  place:  and  this 
should  be  sufficient  to  bring  the  error  home  to  those  who  hold  that,  in  a 
Fasid  or  an  invalid  marriage  after  consummation,  the  flaw  is  removed ;  on 
the  contrary,  the  flaw  sticks  to  it  throughout,  because  one  of  the  forms  of 
Lian  is  applicable  only  after  consummation  and  pregnancy;  but  it  is  an 
established  rule  that  no  Lian  can  ever  apply  to  an  invalid  marriage ; 
whereas,  if  the  adverse  argument  had  been  correct,  and  if  after  consum- 
mation, the  Fasid  marriage  was  capable  of  being  converted  into  and 
treated  as  a  Suheeh  marriage,  then  it  would  follow  that  Lian  would  apply 
after  pregnancy  to  an  invalid  or  Fojfid  marriage  (XXXIX). 

55.  The  reason  why  in  Shoobha-i-fail  or  "  doubt  in  the  act "  the 
Nusub  is  absent  is  thus  stated  in  Note  3  to  the  annotations  on  the  Foosool 
(XL).  As  a  consequence  of  the  doubt,  the  Htidd  is  dropped  or  be- 
comes sakity  but  this  doubt  is  not  sufficient  to  establish  Nttsiib  ;  <^  because 
the  establishment  of  Nusub  depends  on  the  existence,  however  small,  of 
ownership  (as  in  the  case  of  a  slave  girl)  in  the  muhul,  or  on  the  existence 
of  lawfulness  (as  in  the  case  of  a  marriage)  in  that  muhiU^  and  neither 
of  these  is  found  "* 

56.  There  is  another  quotation  from  note  10  of  the  annotations  on 
the  Foosool,  which  may  be  cited  here  with  advantage.  At  page  189  of 
that  work  a  question  is  raised  regarding  the  meaning  of  the  word 
"  daughter "  in  the  Eoran,  where  there  is  an  enumeration  of  women 
whom  it  is  prohibited  to  marry  (XLI).  Does  the  word  "daughter"  in- 
clude a  daughter  hj^ina  ?  If  she  is  included,  then  does  not  this  amount 
to  an  authority  for  the  establishment  of  her  Nusvh  in  the  Zanee?  The 
answer  is,  that  the  word  "  daughter  '*  in  the  Koran  includes  both  a 
daughter  by  lawful  intercourse  and  a  daughter  by  unlawful  or  illicit  inter- 
course ;  but  that,  in  the  latter  case,  the  Nusub  is  not  established  in  the 
father:  because  the  establishment  of  Nusvh,  according  to  the  Skera, 
requires  that  there  should  be  an  antecedent  cause  or  suhvb  such  as  Nikah 
or  marriage,  and  milk  or  ownership ;  and  the  fact  of  her  being,  in  reality, 
his  daughter  is  a  different  question,  and  depends  upon  Joozeeui  and 
Bazeeut  in  fact ;  that  is,  it  requires  that  there  should  exist  in  the  daughter 

(XXXIX).— See  these  Thkofb  LectnroB,  Volame  III,  page  852. 
(XL).— See  Foosool,  page  288. 

(XLI).— See  these  Tagore  Leotares,  Volume  I,  page  18,  paragraph  119  (115.) 


*^your  daughters"  ih  thb  koban  doss  not  lead  to  nusub.    xxv 

particles  and  fractions  of  the  father ;  therefore,  the  negativing  of  the  one 
(i.e.,  the  NuBuh)  does  not  involve  the  negativing  of  the  other  (i.e.,  the  fact 
of  her  being  the  daughter) ;  that  is  to  saj,  if  you  negative  hevNusuh  from 
him,  yon  do  not  negative  the  fact  of  her  being  his  daughter  naturally. 
Kyas  requires  that  her  Nusub  should  be  established  from  the  Zanee^  but  the 
Nuaub  is  not  established  in  the  Zanee  on  account  of  a  tradition  of  the 
Prophet^  to  the  effect  **  that  the  wulud^  or  child,  is  for  the  Firashy  (that 
is,  for  the  owner  of  the  Firash)^  and  for  the  adulterer  there  is  prohibition : " 
thus  the  Prophet  himself  negatived  the  Nusuh  from  the  Zanee.    Then,  if  it 
be  objected  that  this  tradition  is  of  the  class  called  Ahad  or  traditions 
reported  scantily,  that  is,  by  a  small  number  of  persons  both  in  the  begin-^ 
ning  and  afterwards  (as  contradistinguished  from  traditions  called  the 
Mutwatir,  that  is,  those  traditions  which  are  numerously  reported,  and  are 
therefore  of  sufficient  authority  and  weight  to  act  on,  even  when  opposed 
to  the  Koran  itself)  and,  therefore,  cannot  be  acted  on  in  opposition  to 
the  text  of  the  Koran  relating  to  '^  daughters,  "  (that  is  to  say,  if  it  be  ob- 
jected to  that  this  very  teztof  the  Koran,  which  prohibits  one  from  marrying 
**yourdaughters,"  is  sufficient  to  establish  her  Nusuh  from  the  father,  with-^ 
oat  the  text  being  outweighed  by  a  tradition  of  the  Ahad  class),  the  answer 
to  this  argument  is  that   {Izafut-i-MootVuh  or)  a  general  reference  (such  as 
is   involved  in   the  expression  "your  daughters")  does  not  necessarily 
involve  the  establishment  of  Numib ;  dost  thou  not  see  that  a  child   is 
referred  to  the  mother  when   God  says,   "  the  mothers  or  walidat  shall 
give  suck  to  their  children  or  aulad  "  (XLII) ;  and  there  is  a  concurrence 
of  authority  or  yma,  that  this  expression  does  not  establish  the  Nusub 
(of  the  children  in  the  mothers — Nusulb  being  referable  to  males  only; 
andy   therefore,  a  wulud-ool  zina  being  a  child,  whose  mother  might  be 
known,  but  whose  father  is  not  known,  is  a  Mujhool'Ool'nustub).    It  is, 
therefore,  clear  that  there   is  no  conflict  between  the  text  of  the  Koran 
(in  the  matter  of    the   Nusub  by  the  force  of    the  expression    **  Tour 
daag^hters,"    and  between  the  tradition  of  the  Prophet  cited  above).   This 
is  laid  down  in  the  work  called  the  Madan.    It  can  also  be  assigned  by 
-way  of  an  answer  that  Nusub  is  not  established  from  the  Zanee  both  so 
far  as  the  Kazee  is  concerned  and  also  morally  speaking ;  because  the 
reality  of  Nusub  is  known  only  to  God ;  and  for  this  reason  all  mankind 
shall,   on  the  day  of  judgment,  be  referred  to  their  mothers ;  because  if 

(XLII).— See  these  Tagore  Lectareis,  Volume  I,  page  10,  paragraph  61  (o7.) 
4 


XZVl  SHOOBHl-I-FAIL   BKING    PUBB    ZINA    NUSUB   18   NOT  ESTABLI8H8D 

EXCKPT    IN   GEBTAIN   CASES. 

they  were  to  be  referred  to  their  fathers,  then  the  shame  of  a  large 
number  wonld  transpire,  and  it  would  be  impossible  that  Adam  and 
Christ  could  be  called  out  at  the  day  of  judgment  if  the  description  would 
require  reference  to  the  fathers. 

57.  The  Bahur-ool  Baik  (XLIII),  lays  down  that  Niuvh  is  estab- 
lished in  Shoobha-i-muhul  if  there  has  been  a  Daiwat  or  claim  on  the 
part  of  the  man,  and  that  Ntuub  is  not  established  in  Shoobha-i-fail  even  if 
there  has  been  a  Daiwat ;  *'  because  in  the  second  case  the  act  amounts  to 
pure  zina  (without  any  doubt  in  favor  of  lawfulness),  although  the  Hudd 
drops  on  account  of  something  which  has  reference  to  the  Zanee,  and 
that  thing  consists  of  its  being  doubtful  to  him  whether  the  intercourse 
was  unlawful ;  but  it  does  not  amount  to  pure  eina  in  the  first  case  by 
reason  of  doubt  in  the  muhaU*  * 

The  author  then  goes  on  to  shew  that  in  regard  to  cases  of 
Shoobha-i-fail,  where  the  Nvsub  is  not  established  even  when  there  has 
beeu  a  Daiwat y  there  are  two  exceptions  ;  one  is,  where  a  man  divorces 
hia  wife  thrice,  and  she  then,  at  or  more  than  two  years  after  the  three 
divorces,  gives  birth  to  a  child,  the  Nvsub  of  that  child  shall  be  established 
in  the  man,  if  he  makes  Daiwat ;  and  if  she  gives  birth  within  two 
years,  then  ^Tm^u^  shall  be  established  in  the  man  without  a  Daiwat; 
the  second  exception  is  where  a  man  marries  a  woman,  but  a  wrong 
woman  is  sent  to  the  bridegroom,  who  has  intercourse  with  her  relying 
on  the  words  and  assurances  of  others ;  in  this  case,  according  to  Zailye, 
Numb  shall  be  established  in  the  bridegroom  if  there  be  a  Daiwai.  The 
first  exception,  however,  deals  with  the  case  of  Nusub  arising  out  of  the 
marriage  which  had  been  contracted  before  the  three  divorces  were 
given  ;  it  is  not  to  be  taken  as  justifying  by  implication  a  marriage  with 
the  thrice  divorced  wife,  before  the  assistance  of  the  legaliser  or 
fnohullU  has  been  invoked. 

58.  But  the  class  of  cases  enumerated  under  the  head  of  Shaohha'-i' 
muhul  is  very  far  removed  from  the  case  under  consideration,  and  bears 
no  resemblance  to  the  case  of  a  sister  married  subsequently  to  her  sister's 
marriage  :  in  the  latter  case  the  authority  for  the  unlawfulness  is  express 
and  conclusive. 

(XLIII).— See  Bahur-ool  Eaik,  Volume  V,  page  15. 
AjJU^x)l||  »lM^|yfc  J  aJ^  ^\j  y>'ji  ^\  kft-*  y,t  J  AJiyf  ^J  lij  ^J^  tUiJf  JH  • 


8H00BHA-I-Ain>   APPLIES    ONLY   TO   OBIMIITAL   LAW  AND   IS   NO        XXvil 
INDEPENDENT   0LA8B   OF   DOUBT  IN   CIYIL   LAW. 

59.    To  the  two  classes  of  doubts  mentioDed  above^  Aboo  Haneefa 
adds  a  third,  vie.,  doubt  arising  from  marriage;  and,  according  to  him,  on 
acconnt  of  this  doubt  also,  punishment  ceases ;  but  this  is  not  the  view  of 
his  two  disciples,  according  to  whose  views  Futwa  is  given.    According 
to  Aboo  Haneefa  all   daughters  of   Eve  are   generally  fit  subjects  of 
procreation,  and,  therefore,  marriage  even  with  a  Maharim  is  sufficient  to 
give  the  prisoner  the  benefit  of  the  doubt.    But  even  according  to  Aboo 
Haneefa,  when  the  matter  relates  to  one  of  Nusvbj  it  is,  by  no  means,  the 
concurrent  opinion  of  all,  and  it  is,  by  no  means,  universally  accepted 
that  Aboo  Haneefa's  view  was  that  Nasvh  is  established  by  mere  marriage 
without  any  regard  to  the  fitness  of  the  subject  or  muhul  in  an  indivi- 
dual case  (XLIY).     But  supposing  it  were    to  be  admitted  for  the  sake 
of  argument  that,  for  some  reason  or  other,  Aboo  Haneefa  did   so  hold, 
still  that  is  not  the  law  (XLY).     As  regards  the  question  of  Nasub  there 
is  no  third  class  of  doubt,  that  is  to  say,  the  error  or  doubt  arising  from 
marriage  is  no  substantive  and  independent  class  of  doubt  at  all ;  and  ac- 
cordingly the  Hedaya  in  dividing  doubts  uses  language  from  which  only  two 
classes  of  doubt  result,  via.^  one  where  Niunib  is  established,  and  the  other 
where  Ntuub  is  not  established ;  because  the  Hedaya  (XL VI)  says,  ^^  Error 
is  of  two  kinds,  &c.,^'  (XLYII)  and  ^'according  to  Aboo  Haneefa,  a  contract 
of  marriage  is  a  sufficient  ground  of  error,  &c.''     Such  is  also  the  view 
taken  by  the  author  of  the  Budd-ool  Mohtar  who  (XLYIII),  comments 
on  the  following  words  of  the   Doorr-ool   Mooktar— **It  thus  appears 
that  the  classification  of  doubt  int-o  three  divisions  is  according  to  the 
view  of  Aboo  Haneefa."    The  author  of   the   Budd-ool  Mohtar,  after 
citing  the  above  passage,  says  that  the  classification  of  doubt  accord- 
ing to  Hookmy  that  is,  effect — and  Iddut  and  Nuauh   are  some  of  the 
effects  — is  into  two,  according  to  all ;  at  most,  the  effect  of  Shoohlha-i^ 
akdy   according  to   Aboo  Haneefa,  is  the  same  as  that    of   Shoobha-i" 


(XLIY).— See  Jamai-ool-Rnmooz,  otherwise  called  '  the  Kohistany/  Yolnme  lY,  page 

644,  translated  in  I.  L.  B.,  23,  Calcutta  Series,  page  169. 
(XLY).— See  Hamilton's  Hedaya,  Yolnme  II,  pages  21  and  25. 

See  Mr.  Jnstioe  Ameer  Ali's  Mohamedan  Law,  Yolnme  II,  page  818. 
(XLYI).— See  Hamilton's  Hedaya,  Yolnme  II,  page  19. 

(XLYII). See  Ditto  Yolnme  II,  page  21.    Also  see  Baillie*s  Digest  of  tho 

Mohamedan  Law,  page  399. 
(XLYIII),— See  Rndd-ool  Moohtar,  Yolnme  III,  page  238,  translated  in  I.  L.  R.,  23,  Cal- 
cutta Series,  page  173. 


XXVlll        ALL   CASES    OF    SHOOBITA-I-AKD    PALL   INTO  THE   OTHER   TWO 

CLAHSiSd    Rli;8P£CTiyi£LT. 

muhul ;  but,  accordiug  to  bis  two  disciples^  it  bas  the  effect  of  Shoobha-i- 
fail:  if  the  classification  is  according  to  mufhoom  or  meaning  of  the 
word  dottbty  then  also  there  are  two  classes ;  because  some  of  the  cases, 
which  fall  within  Shoobha-i-akdy  are  ShoobhcL-i-fail,  whilst  others,  which 
fall  within  Shoobha-uakdf  are  Shoobha-^'muhul ;  that  is,  those  cases  of 
Shoobha-i-akdy  in  which  as  regards  the  lawfulness  of  the  subject  or  muh'ul 
there  is  some  authority,  will  fall  within  Shoc^ha-ir-muhvl^  and  those  in 
which  there  is  no  such  authority  will  fall  within  Shoobha-i-fail. 

60.  Turning  to  the  Futh-ool  Kudeer  the  same  result  follows.  The 
division  of  doubt  or  Shoobha  (XLIX),  according  to  the  Hanifee  and 
the  Shafei  schools,  is  set  forth,  and  it  is  laid  down  that  in  Shoobha-i-fail 
NtMub  is  not  established.  It  is  laid  down  (L)  that  Shoohha^-i-akd  is 
recognised  only  by  the  Imam-i-Azum,  that  is,  Aboo  Haneefa.  It  is 
further  laid  down  (LI)  that  by  intercourse  with  the  slave  girl  of  a  son's 
son,  JVti«u&  is  not  established  :  so  also  is  it  not  established  (LII)  by  inter- 
course with  the  wife's  slave  girl.  The  last  two  instances  should  receive 
special  attention  for  the  purpose  of  being  compared  with  tlve  case  where  the 
father  has  intercourse  with  the  son's  slave  girl,  and  where  Nusuh  is  established 
(see  paragraph  50).  It  is  also  laid  down  (LIII)  that  Futwa  is  given 
according  to  the  view  of  the  Sahibain^  i.e.,  Aboo  Yusoof  and  Mahomed 
in  the  matter  of  non-establishment  of  Nusvib  by  the  Nikah  with  a  Ifa/iarim. 

61.  It  now  remains  to  deal  with  one  or  two  passages  from  Baillie's 
Mohamedan  Law,  which  is  a  translation  of  passages  from  the  Fatawai 
Alumgiree,  the  latter  being  a  work  extending  over  six  volumes  in  Arabic. 
The  Fatawai  Alumgiree  is  not  a  collection  of  actual  decisions  by  the  Kazees, 
as  some  people  erroneously  suppose.  There  are  two  methods  of  writing 
books  on  Mohamedan  Law;  one  is  to  write  the  work  in  the  form  of  Juris- 
prudence laying  down  general  rules  without  the  detail  or  concrete  cases 
being  the  primary  object  of  the  work,  and  without  writing  the  work  in 
the  form  of  supposed  cases ;  such  as  the  Tunkeeh  and  its  Commentary  (or 
Shuruh)  the  Tawzeeh,  on  which  there  is  a  further  commentary  in  the  form 
of  annotations  or  Hasheeah  called  the  Tulweeh,  which  again  has  several 

(XLIX).— See  Futh-ool  Kndeer,  Volnme  II,  page  588. 

(L).— See  Ditto  Volume  II,  page  589. 

(LI).— See  Ditto  Volnme  II,  page  591. 

(LII).-  See  Ditto  Volume  II,  page  592. 

(LIII).— See  Ditto  Volume  11,  page  595. 


LAW   AND   JURISPBUDENCB  :    FIKAR  AND   OOSOOL.  XXIX 

Hasheeahs  one  of  them  being  the  Chalnpy;  and  such  as  the  Manar,  the 
Noorool  Anwar,  the  Dair-ool-Oosool,  the  Oosool-i-Shashee,  the  Hoossamee, 
the  Namee,  the  MoossulIum-oos-Saboot  bj  Moulvie  MoohibooUa  of  Bihar, 
and  its  Commentaries  written  by  Mawlana  Abdool  Ali  Bahur-ool  Ooloom 
and  by  his  father  Moolla  Nizamaddin  and  by  Moolla  Moobeen  and  by 
Moolla  Hassan  and  by  MoaMe   BarkatooUa  of   Allahabad;  and    sach 
as  the  Moohkam-ool-Oosool  by  Hafiz  Aman-ooIIa  of  Benares  ;  and  sach  as 
the  Bazdawee,  the  Kashshaf  and  the  Mahsool.     These  are  works  on  Jaris- 
pradence  or  Oosool,  i.e.,  root.     In  these  works  the  foar  sources  of  Fikah  or 
principles  of  law  are  treated  in  their  order,  and  the  aathor  descends  from 
the  general  to  the  particular,  and  illastrates  the  roots  or  principles  by  a 
reference  to  the  branches  or  particulars  and  details,  and  enunciates  the 
law   in  the    form    of     principles    rather    than  in    the  form   of    rules 
haying  for  its  object  practical    cases,  which    ordinarily  occur  in  life. 
Another  method  of  writing  on  Mohamedan  Law  is  to  go  into  details  and 
to  provide  for  supposed  cases,  which  occur  or  are  likely  to  occur  in  real 
life,  without  treating  directly  of  the  sources  or  roots  as  a  whole,  and 
without  dealing  primarily  with  those  sources ;   in  other  words,  the  object 
is  to  write  in  the  form  of  a  digest  to  provide  for  supposed  cases  instead  of 
writing  in  the  form  of  Jurisprudence  and  laying  down  general  principles 
and  instead  of  dealing  primarily  with  the  origin  of  the  rules  applicable 
to  those  cases,  although,  no  doubt,  such  rules  might,  by  way  of  elucida- 
tion and  explanation,  be  traced  to  their  origin  not  as  the  primary  object 
in  view  but  as  a  matter  secondary  and  subordinate  thereto.     As  instances 
of  sach  works  may  be  cited  the  Fatawai  Kazee  Khan,  the  Fatawai  Imadea, 
the  Fatawa  Buruhna,  the  Fatawai  Alumgiree,  &c.,  &c.    Such  writings  are 
called  the  Foaroo  or  branches,  and  they  deal  with  details,  and  constitute 
collections  of  the  views  of  various  authors  with  such  light  as  the  compiler 
or  aathor  can  throw  on  the  subject  by  fortifying  the  rules  laid  down  by  a 
reference  to  the  principles  on  which  the  rules  are  founded.    In   books  on 
Jarisprudence  the  main  or  direct  object  is  to  treat  of  the  Oosool  or  roots, 
that  iSy  the  principles  of  law;  and  in  works  on  Fooroo  or  branches,   the 
main  object  is  to  deal  with  details  and  cases. 

62.  As  regards  what  appears  in  Baillie's  Digest  at  page  32,  a  reference 
to  the  original  Arabic  of  the  Futawai  Alumgiree  (LIV),  shows  that  the 
authority  for  the  position  regarding  Iddut  and  Nxisub,  when  two  sisters  are 


(LIV).— See  original  Fatawai  Aluragiree,  Volume  I,  pages  891  and  892, 


XXX      AUTHORITY    OF   MOOHBET-T   SURUKHST   CITED   IN   BAILLIE    AS   DEALT 
WITH    IN    KUDD-OOL    IfOOHTAB. 

married  one  after  tbe  other^  is  the  work  called  the  Mooheet-i  Surukhsj,  and 
the  quotation  from  that  work  begins  with  the  words  '^should  the  sisters 
be  married  bj  separate  contracts,  the  marriage  of  the  last  married  is  in- 
valid,  and  it  is  incumbent  on  the  husband,  &c.,"  and  ends  at  the  same 
page  in  Baillie  with  the  words  ^^  the  husband  being  bound  to  refrain  from 
matrimonial  intercourse  with  his  wife,  until  the  expiration  of  the  sister's 
Iddut"  The  authority  for  what  follows  in  that  paragraph  at  the  same 
page  in  Bailiie  commencing  with  the  words  **  if  he  had  married  the  two 
sisters  by  separate  contracts,  &c.,"  up  to  the  words  ^^  but  if  he  fail  to 
explain,  he  has  no  choice  and  must  separate  from  both"  is  the  Shnruh-i- 
Tuhavee.  The  authority  of  the  Mooheet-i  Surukhsy  has  been  considered 
by  later  writers,  such  as  the  Budd-ool  Moohtar,  the  author  of  which,  in 
the  course  of  his  work,  makes  frequent  allusions  to  the  Fatawai  Alum- 
giree  under  the  designation  of  Fatawai  Hind,  and  to  the  Mooheet  as  cited 
in  the  Fatawai  Hind. 

63.  The  author  of  the  Budd-ool  Moohtar,  (LY)  has  before  it  that 
portion  of  the  Fatawai  Alumgiree  whicli,  in  the  original,  corresponds  with 
page  32  of  Baillie's  Digest ;  therefore  haying  before  him  the  whole  of 
the  page  of  the  Fatawai  Alumgiree,  which  corresponds  with  page  32 
of  Baillie's  Digest,  he  knows  and  has  before  him  what  the  Mooheet-i 
Surukhsy  holds  and  what  the  Shuruh-i-Tahavee  also  holds  as  regards 
the  cases  discussed  by  each  respectively;  and  referring  to  Shnruh-i- 
Tahavee  he  quotes  the  Shuruh-i-Tahavee  from  the  Fatawai  Alumgiree, 
and  approves  of  it,  saying  ^'  it  is  laid  down  in  the  Fatawai-i-Hindia  from 
the  Shuruh-i-Tahavee  that,  if  the  husband  married  the  two  sisters  by  two 
contracts,  &c.,  &c."  As  regards  the  authority  of  the  Mooheet-i  Surukhsy, 
that  authority  is  questioned  and  dissented  from  expressly  in  an  analogous 
case,  viz.f  that  of  a  Moslem  maiTying  an  idolatress ;  in  this  latter  case, 
the  Mooheet's  view  was  that  the  marriage  is  Fasid,  and  that  there  is 
Nvsub  and  Iddut:  but  the  author  of  the  Budd-ool  Moohtar  (LVl)  citing 
the  Mooheet-i  Surukhsy  upon  that  question,  dissents  from  it,  and  distinctly 
lays  down  that  the  marriage  is  Batil,  and  that  tiiere  is  no  Nttsxib  or  IddvJt; 


(LV).— See  Radd-ool  Moohtar,  Yolnme  IT,  page  468,  translated  in  I.  L.  B.  23,  Calcatta 
Series,  page  168. 

(LVI).— See  Rudd-ool  Moohtar,  Volume  II,  page  674,  translated  in  I.  L.  R.  28,  Cal- 
cutta Series,  page  165,  referred  to  shortly  in  Mr.  Justice  Ameer  Ali'i 
Mohamedan  Law,  Vol.  II,  page  319. 


CONSTRUCTION   OF  THE    PA88AGB   IN   THE    INAYA.  XXxi 

and  he  then  says,  *'  This  thou  should  understand '' — a  form  of  expression 
explained  in  the  introduction  to  the  Budd-ool  Moohtar  (LVII)  to  denote 
that  the  author  quoted  from  and  referred  to  is  wrong,  although  out  of  respect 
to  the  memory  of  the  deceased  author,  a  harsh  expression  is  not  used.  And 
as  regards  the  rule  laid  down  by  the  Mooheet-i  Surukhsy  regarding  the 
marriages  of  two  sisters  married  one  after  the  other,  as  in  Baillie's 
Digest,  page  82,  the  Budd-ool  Moobtar,  in  spite  of  the  Moobeet-i  Surukhsy, 
and  with  the  knowledge  of  Mooheet's  view  on  the  subject,  has  laid  down 
a  different  rule,  without  taking  the  trouble  of  noticing  the  Mooheet;  the 
rule  laid  down  by  the  Budd-ool  Moohtar  being  that  tbe  marriage  of  the 
first  sister  is  valid  or  Suheeh,  and  the  subsequent  marriage  of  the  second 
sister  is  void  (LYIII).  The  authority  of  the  Mooheet,  therefore,  goes  for 
very  little  or  nothing.  It  cannot  have  weight  superior  to  that  of  Aboo 
Haneefa,  and  even  his  view  is  not  the  law  as  correctly  understood  and 
actually  declared  and  applied. 

64.    There  is  a  passage  in  the  Inaya  (LIX)  which  is  supposed  to  favor 

(LyiI).^See  Bndd*ool  Moohtftr,  Yolame  I,  page  S,  lines  6  to  8. 
(LYIII).— See  Rudd-ool  Moohtar,  Yolame  IT,  pages  465,  468, 469,  471  and  674.  The  first 
four  references,  are  translated  in  I.  L.  B.  23,  Calcutta  Series,  pages  162,  168, 
164  and  166.  The  last  reference  is  translated  in  I.  L.  B.  23,  Galcntta  Series, 
page  167,  3rd  line  from  the  top,  and  is  summarily  referred  to  with  difiPerent 
eifect  and  meaning  in  Mr.  Justice  Ameer  Ali's  Mohamedan  Law,  Vol.  II, 
page  819. 
(L1X)«— See  Inaya,  Yolume  II,  page  406,  translated  in  I.  L.  B.  23,  Calcutta  Series,  page 
166,  where  the  whole  of  the  passage  from  the  Inaya  is  translated  without 
a  break.  See  Baillie's  Digest,  pages  162-163,  where  mere  portions  of  the 
Inaya  are  translated,  and  the  translations  are  so  interspersed  and  mixed  up 
with  quotations  from  and  references  to  the  Hedaya  and  with  Mr.  Baillie's 
own  views  and  inferences  on  the  subject,  that  the  effect  of  tbe  passage  from 
the  Inaya  is  altogether  lost  sight  of,  so  that  Mr.  Baillie's  own  views  and  infer- 
ences are  apt  to  be  mistaken  for  translations  from  the  Inaya.  For  instance, — 
the  passage  at  page  168  of  Baillie's  Digest,  eighth  line,  beginning  with  the 
words,  "  With  regard  to  women  who  cannot  be  lawfully  joined  together  "  and 
ending  with  the  words, "  and,  therefore,  the  connexion  is  not  zina,"  is  not  to  be 
found  in  the  Inaya  at  all — and  the  reference  given  by  Baillie  at  foot  marked 
No.  3  **  Inaya,  Yolume  II,  page  496  "  must  be  taken  to  be  a  reference  to  the 
authority  for  the  justification  of  an  inference  drawn  by  Mr.  Baillie  himself 
from  some  language  used  in  the  authority  referred  to.  It  is,  however,  conclu- 
sively shown  here  in  this  appendix  and  in  the  full  translation  given  in  the 
Beports  that  Mr.  Baillie's  inference  has  absolutely  no  foundation  in  the 
authority.  See  also  Mr.  Justice  Ameer  All's  Mohamedan  Law,  Yolume  II, 
chapter  7,  page  317,  where  the  matter  has  been  left  in  the  same  state  as  in 
Baillie's  Digest. 


xxxu 


IMATA    SUPPORTS   THB   VIBW    DERIVED    FROM    OWNERSHIP. 


the  adverse  view.  That  passage  is  a  commentary  ou  the  Hedaya  (LX) 
relating  to  the  Chapter  on  Punishment  for  Kuzuf  or  slander.  The  Hedaya 
says,  ^^  If  a  man  have  unlawful  commerce  with  a  woman  in  whom  he  has 
no  right  of  co-habitation,  Ac.:"  then  follows  the  commentary.  The  Com- 
mentary has  nothing  to  do  with  the  present  question ;  and^  if  at  all^  it 
favors  the  view  that  the  subject  or  %nuhvX  should  be  fit. 

65.    The  Inaya  in  the  passage  above  quoted  classifies  unlawful  (or 
Huram)  intercourse  as  follows : — 

Intercourse  is  unlawful. 


Either  when  ownership 
is  absent, 

I 


or  when  ownership 
is  present, 

I 


either  wholly 
absent,    e.g.^ 
a  strange 
woman. 

(1) 


or  partially 
absent,  e.g.j 
a  slave  girl 
held  in 

partnership. 
(2) 


but  unlaw- 
fulness is 
perpetual, 
e.g.j  a  slave 
girl,  who  is 
foster-sister. 

(3) 


or  unlaw- 
fulness is 
not    per- 
petual,  e.  jr., 
intercourse 
with  one's 
wife  in  her 
courses,  or 
with  a  slave 
girl,  who  is 
a  Mujoogee^ 
or  with  two 
slave  girls, 
who     are 
sisters. 
(4) 
66.     In   cases  (1),  (2)  and  (3),  the  intercourse  is  unlawful  in  its  very 
essence,  and,  therefore,  such  intercourse   amounts  to  Ztna,  and  the  slan- 
derer is  subjected  to  no  Hmld,  inasmuch   as  he  spoke  the  truth :  in  case 
(4)  the  intercourse  is  unlawful  not  for  its  essence  but  for  something  else, 
that  is,  for  something  different  from  the  essence,  that  is,  for  a  Moojawir 
or  attendant  or  concomitant  circumstance,  which  does  not  permanently 
subsist,  and  such  intercourse  therefore  is  not  Zina,  and,  therefore,  Ute 
slanderer  spoke   falsely  in  this  case,  and,  consequently,  he  must  be  sub- 
jected to  Uxidd. 


(LX). — See  Hamilton's  Hedaya,  Tolume  II,  page  69. 


PtJRCHASIOD    8LAVB    QIRL   WHO    PROVES    HERSELF   TO    BE  XXXlll 

INITIALLY  FREE. 

67.     But  there  is  a  wide  gulf  and  a  long  and  big  jump  between  tbe  pro- 
position that  class  (4)  is  not  Zina  and  the  proposition  that  the   subsequent 
niai-riage  of  a  second  sister  is  Fasid,  and  that  intercourse  with  such  second 
sister  after  such  marriage  is  not  Zina,  Class  (4)  does  not  amount  to  Zina^  not 
merely  becavse  the  unlawfulness  is  for  something  else^  but  becaiMe  there  is  un- 
doubted  legal  ownership  present^  and  you  cannot  imagine  a  case  in    which 
intercourse  is   unlawful  for  something  else  unless  there  is  ownership  eitlier 
arising  from   marriage   or  from  what  tbe  law  deems  slavery ;  because  if 
there  is   no  ownership,  the  intercourse  is   unlawful  in  its  essence ;  and 
if   there  is   ownership,  and  if  the  subject    is  not  perpetually  unlawful, 
then  the  intercourse  cannot  be  unlawful   in   its  essence,   but  must   be 
unlawful  for  something  else  :   in  cases   in  which   the  subject  is  not   per- 
petually unlawful,  the  ownership  makes  the  essence  of  the  subject  lawful, 
and   unlawfulness,  if   at   all,   must   arise  from   some   accidental   or  con- 
comitant  circumstance   or   Moojawir ;    and,    therefore,    it    can    be   laid 
down  broadly  that  where  there  is  ownership    of  marriage,   there  is  no 
Zina  ;  and  where  there  is  ownership  of  possession,  there  the  intercourse 
is  not  Zinay  provided  there  is  no  perpetual  prohibition,  the  ownership  plus 
absence  of  perpetual   unlawfulness  having  the  effect  of  preventing  the 
intercourse  from  amounting  to  Zina  ;  but  there  must  be  ownership  such  as 
the  law  recognizes,  and  there  must  not  be  only  an  illusory  ownership  or  a 
mere  seeming  or  apparent  but  unreal  ownership  ;    where,  for  instance,  the 
sale  is  of  a  woman,  who  is  not  a  fit  subject  of  sale,  being  either  the  seller's 
Mookatuba  or  his   Moodubbara^  or  not  being  the  property  of  the  seller  at 
all,  but  of    somebody  else,  or  not  being  property  at  all,  being  a  free 
woman,  there  the  sale  is  Batily  and  does  not  create  ownership  in  the 
pnrcliaser :  in  such  a  case,  the  intercourse  would  be  unlawful  for  its  very 
essence,  and  would  amount  to  Zina  pure  and  simple  for  all   purposes 
including  nusuby   although  when  the  question  of    Hudd  or  punishment 
arises,  the  matter  is  capable  of  being  looked  at  from  other  points  of  view ; 
and  although,  even  when  the  question   of  Iddut  arises,  there   are  other 
considerations  which  must  not  be  lost  sight  of.     In  this  connection  see 
these  Tagore  Lectures  (LXI),  regarding  the  case  of  a  slave  girl  purchased 
bj  a  man  who  has  sexual  intercourse  with  her,  and  the  woman  afterwards 
proves  tbat  she  had  been  initially  a  free  woman.     So  also  in  the  case  of 
a  Suheeh  marriage,  intercourse  if  unlawful  at  all  cannot  be  unlawful  in  its 

(LXI).— See  these  Tagore  Lecturer,  Vol.  Ill,  page  863,  para,  marked  (IX). 
5 


XXXir  QUESTION  OF   NU6UB  IS  MOOJTUHID-FEB. 

essence,  bnfc  might  be  unlawful  on  account  of  a  Mocjaunr  or  a  concomitant 
circumstance,  and  such  intercourse  does  not  amount  to  Zvna,  But  there 
must  be  a  marriage  such  as  the  law  contemplates  and  recognizes,  in  order 
that  such  result  should  follow :  there  must  not  be  only  a  seeming  and 
apparent  but  unreal  marriage ;  on  the  other  hand,  there  must  be  a  legal 
and  real  marringe.  In  a  legal  marriage  as  in  a  legal  sale  there  must  be  a 
fit  subject;  when  the  subject  is  not  fit,  the  marriage  or  sale  is  each 
Toid ;  and  in  void  sales  there  is  no  property  as  the  result  of  the  sale,  and 
in  Toid  marriages  the  connexion  is  Zina.  Therefore,  in  assuming  that  in 
the  marriage  of  the  second  sister,  the  connexion  is  not  Zina  but  is  unlawful 
for  something  else,  you  assume  the  very  question  which  is  under  discussion, 
viz.y  you  assume  that  the  ceremony  of  marriage  has  had  a  result,  and  that 
the  marriage  has  had  a  legal  existence.  It  is  laid  down  also  in  the  Foosool 
(LXII),  that  in  the  case  of  a  sale  of  Hoorr  or  free  person,  there  is 
Adum-i-Muhul,  or  absence  of  a  fit  subject. 

68.  The  analogy  between  the  case  of  a  sale  of  a  Hoorry  or  free  person, 
and  that  of  the  Nikah  of  the  Maharim  is  thus  stated  in  note  7  of  the  anno- 
tations to  the  Foosool  (LXIII),  which  is  a  Commentary  on  the  Oosool-i- 
Shashee  :  Eoorr  is  a  muhul  or  subject  in  which  the  Hookm  or  effect  of 
sale,  which  is  ownership  or  milk,  is  not  possible :  the  cause  or  Ulut  of 
ownership  which  is  sale,  is,  therefore,  not  possible  in  this  muhul:  a  MaJiarifn 
is  a  muhul  or  subject  in  which  the  Hookm  of  marriage  which  is  HilUi-Wuty 
or  lawfulness  of  enjoyment  is  not  possible :  the  cause  or  iUui  of 
Hill'i-Wuty,  which  is  Nikah,  is,  therefore,  not  possible  in  this  muhul, 

69.  It  now  remains  (as  foreshadowed  in  paragraph  2  of  this  Appendix) 
to  discuss  the  question  from  the  point  of  yiew  of  a  Moojiuhid-fee  matter. 
What  is  generally  speaking  such  a  matter  may  be  gathered  by  a  reference 
to  certain  portions  of  the  Fatawai  Eazee  Ehan,  translated  in  these  lectures, 
and  the  notes  if  any  annexed  to  such  portions  (LXIY).    It  is  supposed  that 

(LXII).— See  Foosool,  page  326. 

(LXIII).— See  Foosool,  page  85. 

(  LXIV).— See  these  Tagore  Lectures,  Vol.    II,  p.    76,  paragraph  1101  (201). 

„  II,  p.  295  „  1642(742). 

„  III,  p.  242  „  2514  (1614). 

n  ni,  p.  246  „  2619  (1619). 

„  HI,  p.  808  „  2669  (1769). 

„  III,  p.  809  „  2673  (1778). 

„  III,  p.  828  „  2740(1840). 

„  III,  p.  828  „  2741  (1841). 

See  also  Arahic  Hedaja,  Vol.  Ill,  page  823,  and  Hamilton's  Hedaja,  Yolamell, 

page  685. 
Bee  also  Futhool  Endeer,  Vol.  Ill,  p.  270. 


THE    KE80LT   OF   SOUND   KTAS.      DULT  CONSTITUTED    FIRASH.         XXZV' 

the  question  of  nustub  is  a  Moojinkid-fee  matter;  so  that  in  spite  of  the  posi- 
tire  texts  of  the  Koran  directly  on  the  question  of  marriage,  vis.^  on  the 
question  what  women  it  is  lawful  and  what  women  it  is  unlawful  to  marry, 
it  is  contended  that  there  is  still  no  such  text  directly  on  the  question 
of  nusuh  ;  and  that  when  a  positive  text  bearing  directly  on  the  question  of 
marriage,  m'is.,  on  the  question  what  women  it  is  unlawful  to  marry,  has  been 
contravened,  still  the  question  oinusvh  relating  to  the  children  born  of  such 
marriage,  which  has  taken  place  in  contravention  of  the  positive  text,  is 
not  taken  to  be  decided  by  that  positive  text,  but  must  depend  on  the 
£y(M  or  reasoning  or  ratiocination  of  j  the  Moojtuhid  or  yxLViAi^  who  has  to 
deal  with  the  question  of  the  nusuh.  If  this  contention  be  correct,  then 
what  is  the  basis  on  which  the  Kyas  in  question  is  to  be  founded.  I  am 
glad  to  say  that  the  Kyas  which  I  am  able  to  place  before  the  Court  is  in 
the  same  line  as  the  positive  texts  of  the  Koran,  and  that  such  Kyas  does 
not  militate  against  those  texts. 

70.  The  MoosuUum-ool  Suboot  (LXV)  looks  at  the  question  from  a 
sound  rational  and  sensible  point  of  view,  and  shows  that,  although  the  per- 
son who  causes  the  conception,  should  have  the  nusvb  attributed  to  him,  still 
the  tradition  of  the  Prophet  intervenes  and  points  out  the  true  rule  which 
is  that  there  must  be  a  duly  constituted  Firaah.  This  reasoning  is  also  to 
be  found  in  the  Foosool  as  set  forth  above  (LXVI).  The  Poosool  also 
shows  (LXYII)  that  the  establishment  of  nusuh  depends  on  the  existence  of 
ownership  in  the  muhuly  whether  such  ownership  arises  from  marriage  or 
from  possession.  The  distinction  between  Shoohha-i-fail  and  Shoohha-imu^ 
iul  also  supports  my  view.  The  Futwa  is  also  given  according  to  the  view 
advocated  by  me.  Aboo  Baneefa^s  view  does  not  afford  the  governing 
rule  in  a  case  of  nusvihy  and  Shoohha-i-akd  is  not  a  separate  and  independent 
class  of  Shooha  so  far  as  nusuh  is  concerned  (LXYIII)  although  it  may  be 
sufficient  to  make  the  Uudd  drop.  The  result  of  a  sound  and  healthy 
Kyas  therefore  points  to  the  conclusion  that  the  nusuh  in  the  case  in 
question  is  wanting. 

71.  Mr.  Baillie  seems  to  argue  thus : — nusuh  cannot  be  negatived  un- 
less the  marriage  is  void.  Marriage  cannot  be  void  unless  the  connexion 
amounts  to  Zina^  for  which  the  law  prescribes  a  Hudd.     A  connexion 

(LXV). — See  these  Tagore  Leotnrefl,  Vol.  Ill,  p.  876,  note  to  para.  2872  (1972). 
(LXVI). — See  para.  56,  p.  XXIV,  of  this  Appendix. 
(LXVII). — See  para.  55,  page  XXIV,  of  this  Appendix. 
(LXVIII). — See  para.  59  page  XXVII,  of  this  Appendix. 


XXXVi  BAILLIIC'S    CHAIN   OF   BEASONIKG. 

cannot  amount  to  Zina  unless  there  is  perpetual  prohibition.  There  can- 
not be  perpetual  prohibition  unless  the  case  amounts  to  one  of  con« 
sanguinity,  affinity  or  fosterage.  The  case  of  two  sisters  is  not  a  case 
of  consanguinity,  affinity  or  fosterage ;  therefore,  the  case  of  two  sisters 
is  not  that  of  perpetual  prohibition.  I!4ot  being  a  case  of  perpetual  prohi- 
bition,  the  case  of  two  sisters  does  not  amount  to  Zina :  not  being  a  case 
of  Zina,  the  case  of  two  sisters  does  not  amount  to  a  void  marriage.  The 
marriage  not  being  void,  the  nusub  is  not  negatived. 

72.  Baillie  says,  (LXIX),  *^If  connexion  under  the  contract  ex- 
poses the  parties  to  Buddy  the  connexion  itself  must  be  ZinQf  and  the 
fruit  of  it  illegitimate ;  and  consequently  it  would  seem  that  the 
marriage  itself  must  be  void."  Again  (LXX),  "When  a  Moslem 
marries  a  woman  whom  it  is  not  lawful  for  him  to  marry,  he  is 
liable  to  Hudd  according  to  the  author  of  the  Hedaya.  The  connexion 
therefore  must  be  Zinm  ;  and  if  it  can  be  shewn  that  it  is  only  to  inter- 
course with  Maharim  or  women  who  are  perpetually  prohibited  to  a  man 
that  the  term  Zina  is  applicable,  even  according  to  Aboo  Tusoof  and 
Mahomed,  when  the  intercourse  has  taken  place  under  the  sanction  of 
marriage  or  slavery,  then  it  will  equally  follow  that  it  was  only  of  such 
women  that  the  author  of  the  Hedaya  was  speaking  when  he  said  that 
the  intercourse  would  expose  the  parties  to  Hudd,'*  Again  (LXXI), 
"  Leaving  this  class  as  doubtful,  it  is  only  of  the  three  first  classes  of 
women,  or  those  who  are  prohibited  by  reason  of  consanguinity,  affinity 
or  fosterage,  that  it  can  be  said  that  they  are  Maharim  or  perpetually 
prohibited,  or  that  intercourse  with  them,  when  under  the  sanction  of 
marriage,  would  expose  the  parties  to  Hudd.  Of  them  only,  therefore, 
can  it  be  averred  that  marriage  contracted  with  them  would  be  void 
according  to  Aboo  Yusoof  and  Mahomed." 

73.  In  other  words,  Baillie  seems  to  have  been  under  the  impression 
that  if  the  connexion  does  not  amount  to  Zina,  then  it  is  neither  illegal 
nor  invalid,  but  that,  on  the  other  hand,  it  is  legal  and  valid.  In  answer  to 
this  view  I  have  only  to  point  to  the  cases  of  Slioobhori-faU  where  the 
connexion  does  not  amount  to  what  is  technically  known  as  Zina,  but  still 
the  connexion  is  not  valid,  and  misub  is  not  established.  It  must  not  be 
forgotten  that  Zina  has  two  acceptations:  firstly,^ it  means  illegtil    or 

(LXIX).— See  Baillie's  Digest  of  the  Mahomedan  Law,  page  151. 

(LXX)  —See        „        „        page  152. 
(LXXT).— See         „         „         page  154. 


TWO   ACCEPTI0N8   OP  ZINA.      CASE   OF   THRICE    REPUDIATED   WIFE      XXXVU 
8UBVEBTS    THE   ADVERSE   THEORY. 

unauthorised  connexion,  for  which  the  Koran  prescribes  a  fixed  punish- 
ment, which  is  severe  in  the  extreme ;  and  secondly, — it  means  illeg^al 
or  unauthorised  connexion,  which  does  not  fall  within  the  meaning  of  the 
term  as  contemplated  by  the  Koran,  but  which  is  withal  unjustifiable  and 
invalid  being  illegal  and  unauthorised,  and  for  which  the  Mahomedan  law 
prescribes  a  punishment,  though  the  punishment  is  not  laid  down  by  the 
Koran  (LXXII).   Mr.  Baillie  seems  to  have  overlooked  this  distinction. 

74.  Mr.  Baillie  seems  also  to  have  been  influenced  by  the  distinction 
between  perpetual  illegality  or  HoormuUi-Mowahhudy  and  temporary  illega- 
lity or  Hoormut-i'Mowuklcut  (LXXIII) ;  between  unlawfulness  in  itself  and 
unlawfulness  for  something  else  (LXXIY).  But  the  question  under  con- 
sideration cannot  be  affected  by  this  distinction.  No  doubt,  a  Mujoosee 
woman  is  rendered  lawful  by  Islam  or  by  conversion  to  the  Christian 
or  Jewish  religion,  but  she  must  betaken  as  she  stands  at  the  time  of  the 
marriage,  not  what  she  would  be  after  a  certain  event,  that  is,  after  her 
conversion;  and  it  is  not  true  that  because  she  is  temporarily  unlawful, 
therefore  connection  with  her  does  not  also  come  within  what  is  unlawful  in 
itself,  but  falls  within  that  class  which  is  unlawful  for  something  else  (See 
paragraph  29  of  this  Appendix).  If  the  Mujoosee  woman  is  a  slave  girl,  then, 
inasmuch  as  servitude  gives  the  owner  a  right  of  enjoyment,  connexion 
with  her  would  be  unlawful  for  something  else:  but  if  there  is  no  ownership 
of  her  person,  and  if  connexion  takes  place  with  her  without  such  ownership, 
then  that  connexion  is  unlawful  in  itself.  But  although  a  man  might  own 
her  as  a  slave,  stiU  it  is  not  possible  to  contract  a  marriage  with  hei* :  the 
instance  of  a  case  where  in  spite  of  a  valid  marriage,  that  is,  in  spite  of 
ownership  by  marriage,  connexion  is  unlawful  for  something  else,  is  where 
a  man  has  connexion  with  his  wife  in  her  menses.  As  already  pointed  out 
(see  paragraphs  65,  66  and  67  of  this  Appendix)  there  must  be  legal  owner- 
ship present  at  the  time  of  the  connexion — because  without  existing  owner- 
ship the  connexion  is  unauthorized  and  illegal. 

75.  As  regards  another  instance   cited  in  Baillie's  Digest  (LXXY), 

(LXXIJ). — Bee  Hamilton's  Hedaya,  Volame  II,  pages  1  and  2,  and  page  26,  line  7,&c.  See 
also  this  matter  disoossed  in  paragrapb  51  of  this  Appendix. 
(LXXTII).— See  Baillie's  Digest  of  the  Mohamedan  Law,  page  151. 
(LXXIV).— See  Do.  Do.  pages  152  and  153. 

(LXXV).— See  Do.  Do.  page  151. 

•  The  right  of  ownership  prevents  a  marriage  from  being  contracted  between  the  slave 
girl  and  her  master.     See  these  Tagore  Lectures,  Volame  II,  page  126,  paragraph  1237  (337). 


ZXXVlll      THB   TRADITION    OF   THE    PROPHKT   LAYS   DOWN    THK   TRUR   RITLB 

FOB  niMub* 

namely,  the  case  of  a  man's  thrice  repudiated  wife,  the  Koran  itself 
declares  that  the  husband  cannot  marry  her  unless  the  aid  of  the  legaliser 
as  provided  by  law  has  already  been  obtained  :  that  instance  alone  should 
be  suflicient  to  subvert  the  general  rule  laid  down  by  Baillie  (see  para- 
graph 31  of  this  Appendix).  Mr,  Baillie  cites  an  instance  (LXXYI)  of  a 
woman  having  two  husbands,  that  is  to  say,  where  the  forms  of  marriage 
Lave  been  gone  through  twice  with  two  diflEerent  men.  This  case  is  dealt 
with  in  the  Fatawai  Kazee  Ehan  (LXXVII),  But  the  result  is,  as  Zaheer- 
ooddin  points  out  and  as  shown  by  Baillie,  that  the  offspring  belong  to  the 
first  husband.  This  shews  that  a  married  woman  cannot  be  the  muhfd  or  fit 
subject  of  marriage  to  another  man,  and  that  the  legality  of  the  marriage 
is  not  to  be  determined  by  mere  forms  being  gone  through,  but  must  be  de- 
termined with  reference  to  the  question  whether  the  woman  is,  at  the  time 
of  the  marriage,  a  fit  subject  of  the  particular  marriage.  In  reference  to 
Zaheerooddin's  view  referred  to  at  the  bottom  of  p«ge  168  of  Baillie's 
Digest,  I  have  reproduced  the  reasoning  in  favor  of  Zaheerooddin's  view 
from  the  MoosuUum-ool-Suboot,  based  on  the  tradition  referred  to  by 
Zaheerooddin  (LXXVIII.) 

76.  Mr.  Baillie  (LXXIX),  seems  to  have  thought  that  it  was  the 
opinion  of  Aboo  Haneefa  that  the  compilers  of  that  work  {vie.,  the 
Fatawai  Alumgiree),  had  adopted  in  the  present  instance,  ^' for  though 
they  have  given  this  chapter  the  heading  ^  Of  Fasid  Marriages  and 
their  Effects,'  they  have  omitted  to  give  any  description  of  the  marriages 
to  which  that  title  is  applicable,  as  if  with  Aboo  Haneefa  they  bad 
rejected  the  distinction  of  BatU  or  void  marriages  altogether.  Their 
evident  inclination  to  the  opinion  of  Aboo  Haneefa  gives  great  addi* 
tional  weight  to  it,  and  ought  perhaps  to  be  decisive  of  the  question  in 
India."  Here  Mr.  Baillie  is  wrong  both  in  his  premises  and  in  his 
conclusions.  Mr.  Baillie  draws  the  inference  that  the  compilers  of  the 
Fatawai  Alumgiree  are  of  opinion  that  there  is  no  such  thing  as  a  void  or 


(LXXYI). — See  Baillie's  Digest  of  tbe  Mobamedan  Law,  page  158. 
(LXXVII). — See  the  Fatawai  Eazi  Khan  on  the  same  subject,  translated  in  these  Tagore 

Lectures,  Volume  II,  page  181,  paragraph  1247  (347). 
(LXXYIII).— See  these  Tagore  Lectures,  Volume  III,  page   875,  note   to  paragraph   2872 
(1972)  also  referred  to  in  paragraph  70  of  this  Appendix, 
(LXXIX).— See  Baillie's  Digest  of  the  Mohamedan  Law,  page  155. 


DISTINCTION   BETWEEN   BATIL   AND    FA8ID   MARRIAGE   18   NOT   DONB      XXXlX 
AWAT    WITH    IN    THE    FATAWAI    ALUMGIBI. 

BatU  marriage;  in  other  words,  that  it  is  the  Mahomedan  Law  in  India 
that  the  marriage  of  a  man  with  his  mother  or  full  sister  is  a  good  mar- 
riage in  the  face  of  the  Koran.     There  is   no  foundation  or  justification 
for  such   an   egregious   conclusion.      If   the  distinction  between    Batil 
and   Faaid   marriages   is  to  be  done  away  with,  then  the  result  would 
be    not    that    the    objectionable  marriages  should  be  Fasid  marriages 
but  tliat  they  should  be  Batil  marriages  (LXXX).    As  regards  the  omission 
to  define  a  Fasid  marriage,    that    omission    should    not    lead    to    such 
a  sweeping  conclusion  as  that    deduced  by    Mr.    Baillie ;  because    the 
compilers  of    the  Fatawai  Alumgiree    were    learned  Moulvies  having  a 
thorough  acquaintance  with  the  science  of  Jurisprudence,  where  the  defi- 
nition of  the  terms  Saheehy  Fasid  and  Batil  as   they  are  properly  used 
in  Mohamedan  Law,  or  as  they  may  be  applicable  to  cases  of  marriage,  is 
to  be  found  in  great  detail  and  fulness.     Then  again,  it  does  not  appear, 
on  reading  the  Fatawai  Alumgiree,  that  Toid  marriages  have  been  done 
away  with^  and  not  noticed  in  that  work.    In  the  Arabic  Fatawai  Alumgiree, 
(LXXXI)  there  is  an  instance  of  a  marriage  by  one  man  with  two  women 
one  of  whom  is  unlawful  to  him  either  by  reason  of  prohibited  degrees 
or  because  the  woman  is  the  wife  of  another  husband,  or  is  an  idolatress, 
and  the  other  woman  is  lawful  to  him;  and  in  this  case  the  nikah  with  the 
latter  is  held  to  be  Saheeh  or  valid,  and  the  nikah  with  the  other  woman  is 
held  to  be  Batil  or  void,  and  the  passage  in  question  is  translated  by  Baillie 
in  his  Digest  at  page  35.     Again,  in  the  same  work  (LXXXII),  a  nikah-i^ 
mootut  or  usufructuary  marriage  and  a  nikah-i-mooumkkut  or  temporary 
marriage  are  both  laid  down  to  be  Batil  or  void,  and  this  is  translated  by 
Baillie  at  page   18  of  his  Digest  except  that  in  regard  to  the  former 
marriage  a  passage  in  the  original  has  been   omitted,  viz.,  ( cWl  o^  If) 
*^  thsit  the  moota  marriage   does  not  result    in    lawfulness  of  etijoymenL** 
(See    paragraph    26    of    this  Appendix,   where  the  Budd-ool-Moohtar 
however  puts  a  temporary  marriage  under  the   class   of  Fasid  marriages). 
Then,    at  page  466   of  the  Arabic  Fatawai  Alumgiree,  Yolume  I,  comes 
**  Chapter  the  eighth — "  On  Fasid  Nikah  and  its  consequences."    It  is  laid 
down  in  the  same  work  as  follows  (LXXXIII) : — "  A  man  who  is  a  Moslem 


(LiXXX).~See  this  matter  disoasBed  in  this  Appendix,  paragraphs  8  and  9,  pages  lY  &  Y. 
(LXXX I). -See Fatawai  Alumgiree,  Volume  I,  page  894. 
(LXXXII).— See  Do.  Yolume  I,  page  308. 

(LXXXIII).— See  Do.  Yolume  I,  page  727. 


Xl       AUTHORITY   OF    FATAWAI    KAZBK    KHAN    IS    CONCLUSIVE    IN   THE    MATTES. 

marries  bis  Maharim,  and  she  produces  a  child  :  the  nusub  of  the  child 
shall  be  established  from  him  according  to  Aboo  Haneefa;  but  his  two 
disciples  have  taken  a  different  view  :  and  this  conflict  arises  because  the 
nikah  is  Fasid  according  to  Aboo  Haneefa  but  Batil  according  to  them.** 

77.  The  Fatawai  Kazee  Khan  (LXXXIV)  is  a  positive  authority 
for  the  position  that  the  subsequent  marriage  with  the  second  sister 
during  the  lifetime  of  the  first  wife,  her  sister,  is  Batil  or  void. 

78.  As  regards  the  law  of  acknowledgment,  there  can  be  no  ac* 
knowledgmeut  of  the  product  of  a  void  marriage  (LXXXV).  The 
Privy  Council  has  held  that  there  must  be  no  insurmountable  obstacle 
to  the  marriage*  The  paternity  of  the  child  must  not  be  known, 
and  the  child  must  admit  the  acknowledgment.  Ntisub  is  established 
by  acknowledgment  by  a  presumption  arising  under  certain  circumstances — 
and  those  circumstances  must  be  such  as  to  be  consistent  with  the  supposi- 
tion of  there  having  been  a  Suheeh  or  valid  marriage  between  the  parents; 
but  when  the  marriage  is  void  and  is  known  to  be  void,  there  nusub 
cannot  be  established  by  acknowledgment  and  treatment,  which  operate 
on  account  of  a  presumption  which  cannot  be  raised  here. 

79.  It  is  necessary  here  to  show  what  the  commentators  on  the  Koran 
have  to  say  on  the  text  of  the  Koran  under  consideration.  That  text  is 
produced  in  these  Lectures  (LXXXVI)  according  to  the  translation  given 
in  Rev.  WheiTy's  work.  A  closer  translation  is  given  in  the  Law  Reports 
/LXXXVII).  A  still  closer  translation  is  this  '*  unlawful  upon  you  are 
your  mothers,  &c.,  &c.,  and  the  Halail  or  lawful  spouses  of  your  sons,  etc., 
etc.,  and  that  you  should  make  junction  between  two  listers  except  what  has 
verily  passed.^*  Palmer's  translation  is  as  follows  (LXXXVIII)  "  Unlaw- 
ful for  you  are  your  mothers,  etc.,  etc.,  and  the  lawful  spouses  of  your 
sous  from  your  own  loins  and  that  ye  form  a  connection  between  two  meters 
except  bygones.^'  I  will  translate  the  comments  of  the  Tufseer-i-Kubeer, 
(LXXXIX)  on  this  text,  as  that  work  possesses  the  very  highest  authority 
as  a  commentary  on  the  Koran. 

(LXXXIV).— See  these  Tagore  Leofcnrea,  Volume  II,  page  111,  para.  1206  (306). 
(LXXXV).— See  I.  L.  B.  10,  Allahabad  Series,  page  289;   see  also   Moore's  I.  Al.»  Volume 
III,  page  317. 
(LXXXVI).— See  these  Tagore  Lectures,  Volume  I,  page  19,  paragraph  120  (116). 
(LXXXVII).— See  I.  L.  R.  23,  Calcutta  Series,  page  147. 
(LXXXVIII).— See  Sacred  Books  of  the  East,  Volume  Vf,  page  75. 
(LXXXIX). — See  Arabic  Tuf seer-i- Kubeer,   Volume  III,  page  192,  Egyptian  Edition    of 
1308  Hijreo. 


OOMlCBNTABIiBS   OF  TfiB   TUFSEBB-I- KUBBRB   OK   THB   TEXT  OF   THB         xU 
KOBAN   IN   QUESTION. 

80.     ^*  And  that  yon  should  make  junction  between  two  sisters  except 
what  has  verilj  passed/'  The  Tnf seer-i-Kubeer  on  the  text  says  as  follows  :— 
In  this  text  tliere  are  several  rales  (or  masaiX).    The  first  rule  (or  masala)  is 
this,  that  the  expression,  ^^and  that  you  should  make  junction  between  two 
sisters ''  is  in  the  position  of  the  nominative,  because  the  (Tuhdeer  or)  im^- 
plication  is  this, — '*  unlawful  upon  you  are  your  mothers  and  your  daughters 
and  ^Q  junction  (or  juma)  between  two  sisters/'  The  second  rule  {or  rndsalof) 
is  this, — ^the  junction  between  two  sisters  can  take  place  in  three  ways :  (1) 
eitber  when  a  man  marries  both  of  them  together  (that  is,  joins  both  of 
them  in  marriage,  whether  he  marries  both  of  them  at  once,  or  marries 
them  one  after  the  other) ;  or  (2)  becomes  the  owner  of  both  of  them 
together;  or  (S)  marries  one  of  them  and  becomes  the  owner  of  the  other. 
Now  as    regards    (1),  the  joining  of  both  the  sisters  in  marriage,  this 
can  take  place  in  two  ways :  one  is  (A),  when  he  makes  the  contract   (of 
marriage),  with  both  of  them  together  (that  is,  marries  them  by  one  con- 
tract) ;  in  this  case  the  rule  can  only  be  either  (a)  that  both  should  become 
validly  married  {Juma)  ;  or  {b)  that  a  particular  one  should  become  validly 
married  {Tcuiyeen) ;  or  (c)  that  the  husband  should  be  left  the  choice  to 
select  one  of  the  two  as  the  one  validly  married  {Tukhy&er) ;  or  (d)  that 
the  marriage  should  be  '{Batil  or)  void  altogether  (as  regards  both) :  the 
first  alternative  (a),  that  both  should  beconie  validly  married  is  {Batil  or) 
void  by  the  force  of  this  veiy  text,  so  has  it  been  laid  down  by  lawyers ; 
except  that  this  result  is  difficult  according  to  tbe  principle  of  Aboo 
Haneefa,  on  whom  be  peace,  because  (Eoormut  or)  unlawfulness  does  not 
necessitate  avoidance  according  to  the  view  of  Aboo  Haneefa;  dost  thou 
not  see  that  joining  together  divorces  (that  is,  pronouncing  more  than  one 
divorce  in  one  period  of  purity)  is  unlawful  (or  Hwram)  according  to  him, 
but  the  divorces  (when  pronounced  in  the  plural  at  one  and  the  same  time) 
do  take  place ;  so  also  a  negative  command  (or  nahee)  against  the  sale  of 
one  dirhem  for  several  dirhems  (or  usury),  does  not  prevent  the  contract 
from  being  effectual ;  and  such  is  also  the  case  in  all  sales  which  are 
Fcund  ;  it  is,  therefore,  dear  that  to  rely  on  the  rule  regarding  negative 
commands  (or  nahee)  for  the  purpose  of  holding  the  marriage  to  be  Batil 
{Pasid  is  here  xtBed  ;  but  it  is  evident  that  Fasid  is  used  in  the  sense  of 
BatiT)  is  not  compatible  with  the  view  of  Aboo  Haneefa  (because  a  thing  may 
be  unlawful  but  it  is  not  necessarily  void,  just  as  in  the  aforesaid  illustration 
of  plural  divorces  pronounced  at  one  and  the  same  time): — and  if  it  be 
6 


xUi  TUFBBEB-I-KUBBBB   HOLDS   TUB   HARBIAGB   IH   QUBSTIOir 

BATIL   ABD    NOT   OONTBAGTIfiD    AT   ALL. 

argued  that  this  result  follows  according  to  your  view,  also  because  divorce 
during  the  period  of  impurity  (or  whilst  the  courses  are  on),  or  during  the 
period  of  purity  in  which  the  husband  has  had  intercourse  with  the  wife,  is  a 
thing  against  which  there  is  a  negative  command  (that  is,  such  divorce  is 
munhee  anho),  but  still  such  divorce  does  take  effect;  then  (in  answer  to 
this  argument)  I  say  that  in  those  cases  the  distinction  is  fine  and  rare, 
which  I  have  pointed  out  in  the  Ehilafeeut;  and  whoever  feels  inclined  to 
know  the  distinction  should  refer  to  that  work.  Therefore,  it  is  proved 
(as  regards  a)  (fche  proposition)  that  both  should  become  validly  married  is 
void  (or  Batil).  That  a  particular  one  should  become  validly  married  (6)  is 
also  (Baiil)  or  void  hecBXiQe{Turjeeh  or)  to  give  preference  without  there  being 
any  {Moamjjih  or)  circumstance  leading  to  the  preference,  is  void  (or  BatUj. 
That  the  husband  should  be  left  the  choice  (or  Tukhyeer)  to  select  one  of  the 
two  as  the  one  validly  married  (c),  is  also  void  (or  Batitj,  because  to  hold  that 
there  is  a  choice,  necessarily  implies  that  the  contract  has  become  operative, 
and  that  the  same  subsists  up  to  the  time  of  election  (just  as  in  a  case  of 
a  marriage  dependent  on  election),  and  verily  have  we  laid  down  that  it  is 
void  (as  laid  down  in  a).  Therefore  the  only  alternative  left  is  {d.  that 
the  marriage  is  Batil  or  void  as  regards  both,  that  is  to  say)  to  hold  that 
the  contracts  with  regard  to  both  {ue.f  that  the  joint  contract  entered  into 
in  regard  to  both)  are  Fasid  (in  other  words,  BatUy  that  being  the 
expression  used  in  the  proposition  d,  thus  shewing  that  Fatid  is  here  used 
for  BatU).  The  second  way  (6),  of  the  vaye  (pointed  out  in  1)  where  ihere 
may  be  junction  (of  two  sisters  in  marriage),  m,  that  the  man  marries  one 
of  the  two  eistere  at  one  time  and  then  m^an^ies  the  other  eieter  afterwards. 
Here  the  decision  (or  rule,  i.e.,  Hoohn)  is,  that  the  second  marriage  is  {BatU 
or)  void,  because  {Ihvfa  or  prevention  is  easier  than  Bufa  or  dissolution, 
that  is  to  say),  to  hold  that  the  mai-riage  was  not  at  aU  contracted  is  more  in 
consonance  mthprinciph  than  to  hold  that  the  marria^ewoA  contrctctedfOnd  then 
dissolved  (or,  in  other  words,  the  undoubted  rule  being,  that  the  marriage 
is  not  recognised  as  a  marriage,  and  the  Kazee  must  effect  a  separation, 
there  are  two  ways  of  looking  at  that  rule ;  that  is  either  that  there  was 
no  marriage  at  aU,  or  that  there  was  a  marriage  but  it  has  been  dissolved. 
Tbe  correct  way  to  look  at  such  a  marriage  is,  that  there  was  no  marriage 
at  all,  not  that  the  marriage  was  done  and  that  it  came  into  being,  but 
was  subsequently  undone  and  destroyed),  Ac,  Ac. 

81.    Lastly,  it  will  be  useful  to  know  as  a  whole  how  Hoosn  or  good 


DIYISIOir  07   BOOSir   ACCOBDIHa   TO  THE   ARABIAN  JURISTS.  xllii 

ness  or  excellence,  and  Koobuh  or  badness  have  been  divided  by  the 
Mahomedan  Jurists.  The  Fowatih-ool-Buhmoot,  which  is  a  commentary 
by  Mowlana  Abdool  Ally  Bahrool  Ooloom  on  the  MoosuUam-ool  Saboot 
(XC)  thns  discnsses  the  subject.  The  followers  of  Aboo  Haneefa  have 
divided  Hoosn  into  two  classes, — Hoosn-lai-Ainhee  (A)  or  goodness  in 
itself,  and  Hoosn-lai*Ghyrhee  (6)  or  goodness  for  something  else.  Hoosn* 
lai-Ainhee  (A)  is  subdivided  into  two  classes ;  that  (Al)  which  does  not 
admit  of  cessation  (or  Sakoot) ;  as  for  example  (Eman  or)  faith  (in  the 
Unity  of  Ood  and  in  Islam),  by  which  is  meant  belief  entertained  in  the 
mind  (or  Tusdeek-bil-Kulb)  which  does  not  admit  of  cessation  even  under 
circumstances  of  compulsion ;  and  that  (A  2)  which  admits  of  cessation 
(or  Sakoot) ;  as  for  instance  expression  or  declaration  of  faith  which  admits 
of  cessation  (or  Sakoot)  under  circumstances  of  compulsion;  and  also 
for  instance  prayer  when  the  appointed  time  has  passed  away :  in  the 
case  of  prayer  of  the  Asir  class,  that  is,  those  which  are  obligatory  in  the 
afternoon,  it  might,  however,  be  said  that  if  that  prayer  is  neglected  until 
the  setting  of  the  sun,  there  the  Koohuh  or  badness  preponderates,  and  the 
Eoo9n  or  excellence  subsists,  because  the  Nufil  prayers  are  allowable  even 
when  the  strict  time  for  afternoon  prayer  has  passed  away  :  the  correct  ex- 
ample of  this  class  is  however  the  prayers  of  a  woman  in  her  courses, 
whose  prayers  are  Kubeeh-lai-Ainhee,  or  bad  in  their  essence,  so  that  no 
Kuza  or  compensatory  prayers  in  her  case  are  obligatory. 

Hoosn-lai-Ghyrhee  (B)  is  subdivided  into  two  classes,  m9.,  that  (Bl) 
which  is  {Moolhik  or)  related  to  Hoosn-lai-Ainhee,  and  that  (B2)  which 
is  not  so  related.  In  this  class  (Bl)  the  excellence  exists  in  the  thing 
itself  though  it  is  induced  by  (ghyr  or)  something  else,  which  some- 
thing else  is  in  the  nature  of  an  intermediary  (or  Wasta-fil-Suboot), 
which  of  itself  possesses  no  {Hooen  or)  excellence,  being  beyond  the  power 
and  control  of  the  individual ;  e.g.,  Zukat  or  poor  rate ;  and  Soum  or 
fast ;  and  Huj  or  pilgrimage  to  Mecca.  Zukat  is  depriving  one's  self  of 
property,  and  has  no  excellence  in  itself;  but  the  (TFa«to  or)  interme- 
diary is  the  want  or  poverty  of  another  person  over  which  the  individual 
has  no  control ;  this  want  therefore  possesses  no  Hoosn  or  excellence 
but  such  want  requires  that  the  same  should  be  met  by  the  gift  of 
a  small  portion  of  the  property  of  one  who  is  in  afiSuent  circumstances 
and   this    constitutes  Zukat:  Zukat  therefore  derives  excellence  of  its 

rXC).— See  Fowatih-ool-Rahmoot,  p.  27,  Newal  Kiahore'a  Edition  of  Lnoknow,  of  January 
1878. 


Xlly  WASTir-VIL-BUBOOT  AND   WABTA-FIL-OOBOOZ. 

esBence  from  poverty  which  is  an  intermediary  or  Wasta*  So  also  Soum 
or  fast  has  no  excellence  in  itself 5  being  a  denial  to  one's  self  of  ordinary 
tiecessaries ;  but  the  Wasta  or  intermediary  is  Nufs  or  self,  which  re* 
quires  that  when  it  becomes  turbulent  it  must  be  brought  and  kept  ande? 
control  by  abstinence  from  three  things,  v£«.,  eating,  drinking  and  sexual 
connexion,  and  this  denial  or  privation  is  what  constitutes  fast, which  derives 
Hooanttom  the  intermediary  or  Wasta,  which  possesses  no  excellence  in 
itself,  but  induces  excellence  in  the  essence  of  fast.  So  also  Hnj,  which  of 
itself  does  not  possess  excellence;  but  the  intermediary  is  Bait  or  Mecca, 
which  has  no  excellence  in  its  essence  in  the  sense  here  in  question.  Bait 
requires  that  fespect  should  be  shewn  to  it  in  a  particular  manner,  and 
this  is  what  constitutes  Huj,  which  thus  derives  excellence  from  the 
Wasta  or  intermediary,  which  induces  in  the  Huj  excellence  in  itself. 

The  class  (B2)  is  a  class  in  which  the  excellence  does  not  exist  in 
its  essence  either  in  its  own  right  or  derived  from  and  induced  by 
tneans  of  an  intermediary  or  Wasta ;  on  the  other  hand,  it  is  a  class 
in  which  the  excellence  exists  only  in  the  Wasta  or  intermediary,  which 
is  called  wa6ta-fil-oorooz ;  but  there  being  a  connection  between  that 
class  and  the  Wasta  or  intermediary,  tbe  excellence  in  the  latter  is 
referred  to  and  gets  reflected  in  that  class. 

This  class  (B2)  is  subdivided  into  two  classes,^— vw.,  (0)  where  the 
intermediary  or  Wasta  is  discharged  as  an  obligation  by  the  doing  of 
the  act  itself,  9.nd  (D)  where  the  intermediary  or  Wasta  is  not  so 
discharged.  As  instances  of  sub-division  C  are  cited  Jehad  or  holy 
war,  Sudd  or  punishment,  and  Sulat*i-jQua2a,  or  funeral  service,  that 
is,  prayers  for  the  dead.  Jehad  is  a  thing  in  which  there  is  no 
excellence  in  itself,  because  it  consists  of  killing  and  other  acts,  which 
cause  pain  and  suffering;  but  the  excellence  is  in  the  promulgation 
of  the  true  religion  and  the  subversion  of  Koofr  or  infidelism,  and  Jehad 
results  in  such  excellence ;  and  thtjit  excellence  becomes  connected  with 
Jehad  which  thus  derives  excellence  from  something  else ;  the  promulga- 
tion and  subversion  also  get  accomplished  by  the  Jebad,  and  Jehad 
therefore  comes  to  be  classified  in  subdivision  C.  It  cannot  be  ai^ued 
that  as  in  class  (Bl)  so  in  this  class  C,  the  act  of  Jehad  for  instcuice 
amounts  to  excellence  in  itself,  although  the  excellence  might  be 
derived  from  an  intermediary ;  it  cannot  be  argued  so,  because  if  Jehad 
had  been  excellent  in  itself,  the  obligation  would  not  cease  by  reaeoo 
of  doubt,  as  Jehad  does  cease  by  reason  of  doubt.    So  also  Hudd  or 


DIVISION   OP   KOOBITH   ACCORDING   TO   ABABIAN   JUfilSTB.  xIt 

punishment  has  no  excellence  in  itself,  being  the  infliction  of  pain; 
but  the  excellence  consists  in  what  is  a  deterrent  to  others,  and  Sudd 
results  in  acting  as  a  deterrent;  there  being  thus  a  connection  between 
Hudd  and  the  deterrence,  the  excellence  of  the  latter  gets  connected  with 
the  former  :  it  cannot  be  argued  in  this  case  likewise  that  the  deterrence 
might  be  regarded  as  an  intermediary  or  Wasta,  and  therefore  it  makes 
Etidd  excellent  in  itself ;  because  if  Rudd  had  been  excellent  in  itself 
why  should  it  drop  from  doubt.  Rtidd  falls  in  subdivision  C  because  by 
the  act  the  obligation  gets  discharged  also.  So  also  Sulat-i-Junaza  or 
the  pi*ayer  for  the  dead  has  no  excellence  in  itself :  but  respect  for  the 
Islam  of  the  deceased  does  possess  excellence,  and  there  being  connection 
between  such  prayer  and  such  respect,  the  excellence  of  the  latter  gets 
connected  with  the  former :  the  same  act  also  satisfies  the  obligation, 
and  therefore  the  prayer  falls  in  sub-division  C.  It  cannot  be  argued  that 
the  prayer  for  the  deceased  acquires  excellence  in  itself  through  an 
intermediary  or  Wasta,  which  reflects  excellence  on  the  prayer  so  as  to 
make  it  excellent  in  itself ;  because  if  the  prayer  had  excellence  in  itself, 
it  would  have  been  obligatory  on  everybody,  whereas  it  is  obligatory 
only  on  some  of  the  party. 

As  instances  of  sub-division  D  are  cited  the  obligation  to  proceed  to  the 
mosque  when  there  is  a  call  for  Friday  prayers  :  to  proceed  to  tbe  mosque 
on  such  an  occasion  possesses  no  excellence  in  itself ;  but  the  excellence 
is  in  the  prayers  ;  and  inasmuch  as  there  is  connection  between  going  to 
the  mosque  and  the  prayers,  the  act  of  going  to  the  mosque  acquires 
excellence  from  something  else,  which  is  the  prayer  ;  but  the  obligation  of 
the  prayer  does  not  get  discharged  and  fulfilled  by  the  mere  act  of 
proceeding  towards  the  mosque.  So  also  Wazoo,  or  purification,  has 
excellence  for  something  else,  which  is  the  prayer,  but  the  prayer  itself 
does  not  become  discharged  by  the  purification. 

Similarly  Koobuh  or  badness  is  divided  in  the  same  way  as  Soosn 
into  Koobuh-lai-Anihee  (E)  and  Koobuh-lai-Ghyrhee  (F). 

E  is  sub-divided  into  (Q)  where  the  Koohuk  is  not  possible  of 
cessation  or  Sakoot,  e.g. 9  Shirk  or  idolatry,  the  badness  of  which  is 
inherent  in  it,  and  is  of  the  essence  of  it ;  and  into  (H)  where  the 
badness  can  cease  and  drop  ;  as  for  instance  tbe  lawfulness  to  eat  carcase 
(or  maita)  in  a  state  of  (Mukhmusa  or)  starvation. 

F  is  sub-divided  into  two  classes  (I)  where  tlie  Koobuh  accompanies 
and  becomes  realised  and  accomplished  by  the  act,   as  for  instance,  fast 


xUi  EXPLANATION   OF   THE   TEKMS   WASTA-FIL-OOBOOZ   AMD 

WASTA-  FIL-  SUBOOT, 

on  the  day  of  the  Eed;  such  fast  is  prohibited  for  somethiDg  else 
which  consists  in  repudiating  the  {Zyafut  or)  feast  provided  by  God 
-on  the  day  of  the  Eed,  and  by  the  fast  the  repudiation  is  accomplished. 
The  other  clftss  of  (F)  is  where  the  ghyr  or  something  else,  which  is  the 
cause  of  badness  does  not  get  accomplished  by  the  act;  as  for  instance, 
to  sell  at  the  .time  of  the  call  to  prayers;  the  badness  of  such  sale  is 
derived  from  the  circumstance  that  it  prevents  attendance  to  Friday 
prayers. 

As  regards  F  or  badness  for  something  else  there  is  no  sub-division 
aimilar  to  that  in  6,  which  is  the  class  comprising  Hussun-lai-Ghyrhee, 
or  goodness  for  some  thing  else  :  that  is  to  say,  it  cannot  be  said  that 
there  is  a  class  where  the  badness  is  in  the  essence  though  induced  bj 
waBta-fil'Suihoot  or  intermediary^  inasmuch  as  the  intermediary  becomes 
negatived,  e.g.y  usurpation,  where  the  badness  arises  in  consequence 
of  the  right  of  the  real  owner  being  concerned,  but  the  wasta  or 
intermediary  becomes  negatived,  and  the  badness  consequently  comes 
to  be  attached  to  the  very  essence,  and  usurpation  (or  Gbusub)  is 
therefore  bad  on  account  its  very  essence, 

*  The  terms  Wasta-fil-Oorooz  and  Wasta-fil-Snboofc  require  explanation.  A  Wasta  is 
an  intermediary.  In  the  former  it  is  the  Wasta  or  intermediary  that  really  possesses  the 
quality  in  question,  e.^.,  a  person  riding  a  carriage;  here  the  carriage  is  the  Wasta  or 
intermediary;  when  t!ie  carriage  is  in  motion,  the  quality  of  motion  really  belongs  and 
is  attached  to  the  Wasta,  but  as  the  changfe  of  place  consequent  on  the  motion  is  found 
in  the  rider  also,  therefore  the  quality  of  motion  is  referred  and  comes  to  be  assigned 
to  the  rider  also,  but  in  reality  the  motion  is  a  quality  which  actually  belongs  only  to  the 
carriage.  In  Wasta-fil-Suboot,  the  quality  comes  to  appertain  to  the  thing  itself  although 
through  an  intermediary,  e.g.j  if  a  piece  of  cloth  is  colored,  the  intermediary  is  the  person 
through  whose  agency  the  colour  becomes  the  quality  of  the  cloth,  but  the  color  attaches  to 
the  cloth  itself,  and  the  person  is  only  an  intermediary. 


[  1**^  1 

2066  i, jt^Vinyi  JL. «JS»^ ^jl^iP*  •*'>{ «»'^* ?l;^i  g>y  J^;  r«»i 

8067  jiAi  «M  ^  J2>  <»iy  »»^M  UlyJU  fi  l^sOu  i.)  ^^-  J^^  r*»v 
^tjfiJI  vaJ/^  ^I  *i-J  iJ   «»>U  ^1^  -  A/»)L  >)ySJI  oS,  ^ 
»,5^l  c:^  ^*  VU.  ,s,U  .  Ij^i^  jlWI  Ji  1^1  IJA  -  A^^  » 


^^  ^UUI  ^1   \cM  .  (v»  tt/cVj  ^  AbUUI   Sjlf^  S^yi  e:^ 

•  «_»asi)  d^  *sU  ^<f  ^^yi  J*;  ^ 
2062  sjjJi  ^usiu  c»;ii)u,u  •  s<u)i  >i— Asto  sfyiyby  i3i  li*  r^^r 


•  Ufl;;ijl«.^ 


2063  o^t  ^  U.vJj  1.^  u&^  c»jJj  131  ^lU  jJLm  ^I  iJi]  r*»r 

2064)  iUSiu  ui»yi  J  oojj  fi  j^dji  j«{  ^^yi  t^sib  i3i  s^xMifi  J  r*«f 

UjJj  t.1,^^  tji^  jtiA  Urn  ^  ^yii  istiiJj  J  j^\  ijiS  dtfu  tfJdc 

^^yi o«*»ii  J  - U--JLI)  ^«Si  J^i  *L.^yi>  «»dJj  «,i  >  -  **^ 

^^  ^«»yj  ^  J^  J  *  '!r**./«^'  ^^    ^'^'   'l-^^W  tS^I  y  I*  J     lift 

•  *)y»  Jas'I  ij;^dl  y  U  J  iiU 


•  y«l  aUI  ^  «  U;kj|  ^y  tOiJ)  >U2i)  layUI  ^*  u;^j,y  ^ 


■  J»  ^  -  V**^  v/*  (^^  ^^Hk*'l  er*  «^^l  ^^^  ^i^  ««»VI  wj* 

- .   ^  •  4^2n  8j(«^  \A^  ^ 


js«j)  ;iji.  ^  «;4i-iJi  ^  yji  ;t4A<  LJiyi  *?>!(?  u»t  ja  ^J 

2044  ^^3'^  f  ^  Mi^  ^^  vA^  ^;.y  lii^ «t^  r«i^ 

2046  ^ti  u^ds  «j:»j ^  fj  J  i^iixii^ju;  ^yuuii^  d*2jiM^  ri»i 

2047  sa4*fl  c;^   ^l^  f^'  «/*>**  '*'  *W  CJ»  ^'  VW^  •^•'•^ 
1^  ^;  ^  ^'U-  JU  v-sH^J)  iU.1^  ^^^.  f¥^'  ^;«»%^> 

[•r  ] 


2034  Micu  01?  ^yus  wuiii  c^sifii  131  JU)i  *Jl^J  i^yi  juy  _,  r»n^ 

2036  w:^)  U>y  V  J'*  j  l«»«  <5i;  ^jJlfc  ^^^1  JUJI  ajI^j  juy  ^  fr«> 

2037  yb  ^  4uA^  ^  a*  ^^yi  Mlt  fi  ^jy-  '^^^^  i  *3L*)  j«)  J».; .  r  TV 

2038  Uli*  jj/lt  v£^U  wa^JLl  UM   Xj^l  «Jt^J  jkij»i)  jJUJI  JU  Ij)  f.^A 

2039  ^Uil  aaU.  j  .»«**  Ub*  l^aUb  *i|  ^^jJ]  \^j)  ^  ctxj)  5f;^l  TTl 

2040  UUji   OU^UJlt  UwU  ;|jJ|UiU.j  J   *J  e;4Jt;-J  J5  lA^  f*!** 
Ja*  U^o^I   c^U.o  ttji  j  *  ^;!>  8t)jJ|  ^  U*  ^  ts>U  v   U^  ^)  jJi 

2041  ilW  t>JU»  c^Jii  «,M  i  ui  «:J:a  )j|  *i**  ^  ajI^J  ji;  ja^  fr»i 

2042  «;^t«  f**  l«»*ft<  «1;JI  o^  ^  ,ji^j>y)  ^  a>Jlu^^  IJI  ^  rvf 


2028  ^  «»u  ^j  v^l  M  t>*'  j'  J"^  *"^  *M  ^  J^yi  «i-:;ndi  r  T  A 

jl  c:JU  ^*    8lyi    C»JJ;I  Jl  J   -   *Jt^l  Aw;^   Say  I  ^    fUJ|;l4 
4^«f  «,)  i  '  ^i)  ^jif  i*-^!  ^  ».*;fl  «:-5Kil  h;;«'I  ;!«>«  u-S*' 

^bjl  *iSjJ)  «a»U  tt)l  J  •  <)^l  ^i^    UfA^  XmJI  «c»U  ^)I  t»A«X*.l  oU 
cJU  jj  S<)J,J|  c^l^  J  i  -  2JUJI  Aii;j  ^^y  ^  l*^  «^^  U^' 

2030  *Jis  J  otr^  ^*  o>^l  ^  «aJW»  «»u  ^  lib*  (4^^;  I^SIL  l\jA  fr* 

2031  ji*/!  5l;4j|  c:^aU  l,*^;  ia>U  ^  ws-JULcj  ^  3U|  «tyi  u:,^!^ y  ^  r  Tl 

2033  •  «4y>  i»«.^;  ufcJi*  fi  *4;/»i  ju»  fc>i^  f  -rr 


y,f^^  ^jJI  W    -   Ijyli'l  ^LaJ)  ^^  ^1  J^yi  ^u  ^  , 
C^l   V-*-^  '"i^  J    -   ^i*^*^  ^    (W  Ji    «^    •Sl'^i'  i^JJI 

•  l/»  «j^J  Ail  >i»yJI 

2023  Jiiii  ^>.l  «>>  J  -  »/*  «!><i'  JJI^  fi>  (^^j*  0*l^  u'tr***''  ^  f  'tr 

2024  I/i  ^  jjlti    ^  jjle  ^  ,  Xiii-JI  e»;-^)  IJI^I  v-^»;  j  f  •fl* 

2026  ia— iJi  ^*  gt»u^  c^  fi^  fifpkj  ^]ji  ««,^u,j,if y ,  r»ro 

2026  «t;JI  «Iiia  ^i«-»  ^  UL*  tJtUlfc  c:JU  ajI^J  ^^jJ]  JS ^  j  r^n 

2027  »JS-3>»  lil  W  JS  (^  IS^'W  t»t  tj^dJ»  <uj  i^jA  ^jJ\  ^^,  r-rv 
JUA.^  t_A«^  ^ril  ^  li4^aAi\  jy^  «L5i-«.  8a*  ,^  wy*  li(»  !<MI 

>i  «Ji j  j*i  o«*»"  c*>  J  ^  •  ©>»^W  ;1>W  ^*  ^  J^y^i-J  Ail) 


[i-r  ] 
2015  t^  u^usj  s  u  -  i«iic  Jij«.y^  ^^*  <x»ui)  ^bjji  ^  SdLu/i  i  r*\» 

2016  #  ,Ji*l  idij^  •  Sj^UX/I  ^  jldaJj  r ♦  II 


»  •A»l^l  IV  C;  05^  s^' e/^'j  "-^  J^ 
2019.  >.>!  t>3.  ^jJUJ  U  .»»<  lSjJ\jjiL  )il  jj^^^l  ^A.!  ^)  «if  J*l|  ^  r  •  1 1 

*JU.  ^  wJUil  «,lf  J«^  >^  lil  J**!  ^jUi^  Lil^  -jU)  tjjj  *JU> 
2020  ^  u^jJ)  »IUI  !».;  v>iyi  y,lf  Ji  y\S   '  kilh^^dji  f  fr« 

XU.WI  ^UJI  ^y*^\  \^\a,^j^  -  ^\ji  Ik^U  ic^ir  ,^,4«^ 


2007  Uli  ^_,yi  ^Kili .  ^^yi  JU  ^yJI  ttjif  >I/JU  uu4?^  ^^"^  «;!  ^  ''♦*v 

2008:  1*1^;  oi^)  ^If  I  Jl  >l    ^^  J  l«J  e,(f  5^^  5JL.JI  uuilf  «,!  j  r»*  A 

2009  •  kJH  ^  iji^]  iJjUi  JurtOjO)  j  r**% 

2010  ^^'  J   UJ  ^If  JJ^  fl  jl  l^  i\  a?  Xi/.^  SjiiuJI  uuilf  J  J  fl  • 
bl  >l  ^j—^'i  U-H<  ^^1  Ut^  B,U  .  l__jJo  j^^l  Ui»^  ^  I3» 

s^^).  j5*^  «;*  5<*i«JI  ci^lf  ^5,U  •  WjirfiSII  ^  ^|  ^_^«^  ,^L  >  A>| 
•  2LyU  )  {a.yi  Ja.y  sJlioJUk*))  }jij^^  \J>^  I  jl  lii  ^  -  tj^3 

2012  l^Jij»  *>U-I   ^JJI  u^^L  vjJtt&L.)   J  lyi*  uJtAju.|  ,j,l  J  fir 

2013  ♦  li^x^ ^ir ^i J ^j^ J V «,(f  j^ij vy'i W tt/i ,»»y ijJi,  r» I r 

2014  u^  ^1  j«.#*i^  ojj^  djj  Jr^**'!  •»«<  U4/»j.J  Jwi  ^^yy ^  r^ii* 

jLJl  «<)«  J  ol<>«'l  l4^  J  ^bjJI  dl.i  8j«  ^,0*j<  I4J1U  ^,1^  1^1  ^Ij 
l;^U  \>.  ^  t<«p)y  J  .  juJUJI  ^0  tt;4i44*^^»  0^  - 1^  jIj*.*, 


2001  ^  ^^^i  y^i^i^^  V"*  cr**  J>*  ^  va-iir  IJ)  tiiiu/l  fl 
^jxJ)  tJjUi  ^ja^  ^y  V  f^^  Jl*   -  *4*  1^  *aii/|  J*.l 

2004  j«Ai  J  t^jyu  ^1  ^  -  i*».r^^^j^!i  <MyJt  Aijti yb  ^  ^yu  ^ ^  f**f 

2005  Jil  v>J^  ^\  J^  Ji^  ouy  Ujgi  ^  Jlkll  fcMyt.  «,!  >  f» 

^iJI  'tjJ\  .^\  ^A\  ^\   «»;U  lpui\  ^   ijji  Ji  y  jL.%^ 
^jjKil  J  -  «s*>U  L|jl  ^1  «»/•  \j:i,^j*.  Uy*^  c»a^j  IJI  ^^  sUa.U 


1995  •  jJUl  aUI  J  •jyaii  ^\;j  ^  ^J^LJ]  ^^  aWU  ^3   Ml© 


1996  l;l«i>  yt^  ^j^i  eyJI  ^^  *Jy  j,    ^Vi  5ae  ^  iJL-JI  iyJ)   n^l 

1998  ct^'  J  IV  e,l  ^;  .u.^  ^  J  -  »t?-^;  CHW  ^  >l  c:h>w  *^  m  A 

1999  «ft»l;i*il^  ^^yi uHH  e;-  lt*i^  V^  «;U^I  ^jj  ^  ^y^f\  '^1   nil 

2000  j^t  tv  tt/^  U2**<  ©>"  ^  ****'•  vj*  *^  v^ J  *'V  t>"'^  ^  ''••* 

*JU  ^  j)   ju^  ^i  jj^  ;^-i  iuU  J^ JoJ  ^(Kil  ^Ul  ^  >»XJ|  ^^ 


•  SdiJi  j^«ij )  ay]  sa.^  ^ 

1988  (•«!  ^1   liU;   [^  f\j]  ff  UU  jl  liA?  *5l^l  ^  lil  Jo.yi  IJi  ^  I  <|  AA 

1989  Uifcj  ^;4i-^i4^  v.::^U.  Ulf  ^UJI  ^^  (Si  ^  \Mi  aJI^I  ^  J^;  MM 

1990  fi  ^liJI  It^  jA.i>  J   t^j  slcL.  ^  ^A^S^i  liU  st^l  ^  J^;   HS^ 
UUXiii  J   t|IlAi  ^  •  U«L«  (^/ax^  u^^   i3)(XIc)}  L|jJLc  Ji  L|Ju^  ^y 

Aij .  SdiJi  ^-  l:u^)jU  ivaii  j^Ji  g^yi  jic  L-.^  J  ^jLu  jy 
1991  SdiJi  i^  ji  u^  iy  ^  Wi  J^**  ^  ^^^  i*Ki  5ft^i  ^^y  J..;  n  <i  I 

1992  lyflUs  |»j   aL.  ls^«4L«  ^^^    (kJUl  ^  Uj  U^  c^l^  c^jJb  C^j^  n^f 

1993  w:Jif  e,l  vfi*-*  j[^  SiXiJI  i— *ii  ^^    <u^U  ^J  *j1;^I  jlt  J*j   IS  ir 
l^Tju5  u>iff  c;'  ^    '    f^*^    **^'  c;W  el'  "  f'^'  y'V  ^*W  U*«>* 

[   •!    ] 


(  ru  ] 

1984  a,J^^  4^/0.  uwU  c»^^  u^A^  UK  aJ>.aJ|  «^J  Jl?  J^^  |  ^  a|» 
•  J>*'  JttJ'  *.s^^^  W*  8j*/f  ws-ilf  cAj*.  VA^* 

^lU  5^1  .>HA^l?>tf;l  Ji-U.;fSi^ril  hifc.^y^AiiJ 
1986  W>9.^-^l  c:^AW  u;^  Ji;  ^*   l«  JA..)^   8|^)   ^^y  J^^  ,<)ai 

f;  .  »jt^-Vj  o«Wl  ca<  ^^  UU  jJUl  ^^  UUjj/U,^  t;  tj4>* 

^j   a^^jJI    J+J   o>^t4  jtJl  wMi   l«^^(f    If^l    iJSj^J 
^  tt/*^  ,^   S^l   *£<ai  ^^  -  Jifiofl  JaJ  olW  ^yj,  ^ 


1976  •  ^yJi  oU  li)  UJJJS  UV«  e;*'  tAJLwy  J  n  VI 

1977  *-**^  i  ,i;ij*i-  ^  J5l  U^iy.  ^  J  UV^  aJ,  fl  ^i)  oU  ,j,l  ^  mv 

c/i4*  *i*^*  J  *V  '•*«  u/«  e?^  Vy  tt/i^^  •-»«  (^  o' J  -  *>4^ 

1978  te-j»;  WsU»  '>^  ***'  V>*  •  •»•»*  c;'  *!;*"  J^  V^  «*?  j  M  va 
W^  I4JJ*  ^^   5j^I  ^   ^^\  VXel  ^U  •  ,s;4S-i4*  ^  t^Jj* 

1979  SUyi^  o^)  ^  JuU*/)  ?<xe  V*^  |>L-»*  c:^  u:^il^  1^1  «&{Ui:n   n  V4 

J  t^  5de  JU  ^&  u:^  uuJif  tt,I  ^  -  Wi%  JL.JI  ^  f^if  i^\ 

^;  0**^  J  w-i->i^l  JU  i  •  I— 4L*.  ^  j^   g.^1  ^j^  jiji 

1980  •  I^Je  Sj«  )  S^a^lfJI    |$A* 

1981  y  oUu,5l  ^  JuLiJi  ^,1   ,j^  ,_>-**.  JA«  «;t^)  ^yj.  Ail^l  Jj.;  i^Af 


[  n»  ] 

1968  fSjL\  ^jy,  Ut.ft.jy  J  5a«Jl  ^^  t£*i;i»^JO  ImJ]  B»J«I  y  J  Ml  A 
itf^  iiSJ*^i  ^«1A*  J*-  j^liW  ^ jJ)  J^l    ,^jUi  tt»aJj  y  vjt~«U. 
,^  ^dJI  4^11  ^_^^  -  ^llll  C^  l«JC  J-J4  J  Uft,.  ^  J  f.*JI 

1969  ij-e-j  o»*»"  o*^ «>i*  *«»*"  w^  w*'^  (^  *^"  ***>^  J"»  4^;  'I*" 

SJjJI   0l4;ti  ^lOll  >Ub  JU  («IW  cUdJ]  iii-\i,iUJ)jaf\  Sju:  J4XW* 

>^.  *  c;  s#**^'  ****■» "  t^^  ^*'**  '*''^  *  «^'^'  ^'  ^^ 
•  ,y^n  o«^i  ^  ^yjw^y  ju^l*  3>  ^y 

1971  «--lSii  <4iw  o'*»'l  Ji  J  «^l  v^  l«».>;  «»t.  lil  isUufl  5^1  J  M  V I 

1972  ^  «yJi  v-a-Jjtt/*  ,,^^y;i»  «»jjj  IJI  l^^;  l^  05*/*^'  •'•vr 

1973  B,ii  -^,Ji  «»,/•  »«>«  W^.*  J^;  c"^  v_j*  ^  ^  w^  is»u  dj,  fi  ( 9vr 

1974  «,«f  J  3-  WJd*^*  ^«ft;  o«i>  ^  Sj*J|^   ^^  J  1^1  ^1  J  M  vf 


1964  ^  jt    <XA.i^  ^^H^  ^^  ULiir  UjJb  Sjo.{j  ir<v  ^^UHaSS?  JUJ«A   Mil* 
^  ^U/l  fofi  ^IjSJ  f^ifii]  u:^^  y^  ^>i^  wiJL*  ^^  ^J^ 


UL.tfUkj 


cj-i^L- ^OJ)  ^yu* v.;;^^^  v>4*e^* ctUW^  ^  'w/^  ^ 


1965  Jmj:«;  v^  SoiJi  jiu.  ^  v^;^^  <s><)j:«i  iji  s^xa^i  xsim  mi» 

•  t^Jt^^j  y  \£j(f  A^yH^  u&i»>  v&^  S<)^) 

1966  JaS«;aj:JI^  j)  \j:^jU.  fi  Jj^)  i>u{  ojI^I  131  tJf]  ]Ji  j  1 4ii 

•  J.yi  ^   J^l  ^_y  ,   4>4^  «A^   c^jW*  4^    S-**" 

1967  y;/*  c^*  '  ^-^  evi  jij  ,j;4i-aiA.  y  *-i4«<  iSikJI  odieiy  j    Mly 


1957  •  pbl  Im^  i  Jj^  ^^^  M  i\jJ\  Ks^  Ji  no V 

1968  •  &*1  y  ^J>i\£  ijt.  cWl  (^^  («i*d«J  t^  tiSJ<^(^  J    MOA 

1959  J^)  (^  V<)'  «^l^  V^y^  J/*U.A}1^)j  ot«_A^  1^0^ 

1960  jjlfcJI  iif^jj  ^ji  wa^<f  «,l  t^.^;  MUb  Ji  J  l«^^;  l^  ^^yJI  ^  n  i . 
y^    1^  ^  ^^   ««^l    «t£iJ   VI  ^^^iji-ii  p  -  lyi^'l  <)«{W  <)^ 

^i*;  Jaj  i>jL».  u^  \j>^u.y  f  "  jki^  ijiM  (jkt^  fi  u  Sjjji 

«    8A4.  ^  J^i  ^  Id* 

1961  U*>  U^  Jam)  U  4w  l(iMu  «i;1;^l  ^Jtt.1  ^  \'A  cVyi  lii^i  Mil 
i^i  Ji  J^  4^^  i»W»^I  ^y^J  i  «^  ^*  tA»«'«  c»),J  ^ 

1962  j^  ie»u  ^*  *i«-  ^*  ttA4«>^  ^*  «4sV^  j*.i  ju.y  ijj  J  ni r 

1963  Uiij^l  ^  JJIWI  ^  f  ^  (3!^  ^^\  *i  tt^V  J^  y  IJ^  J  1 1  ir 


[rn  ] 

1951  uiSiJ  y^l   *^  Vw  u-V   «>«'l^  «>!  ^  e/i'i'j  «''*'j  tti"  J  M»» 

1952  tt/^^s*  J'*^^  f'j'  ***^  j'  !;<'**  j'  *^'  *f^^  '''*^  ctJlf  g,I  J  I1»r 
t^tW    lUt*.    y.;^^^  c)l  J    -  ^;««^    (-JbAt  j  jii>    ^litJ  j^iJ]   «s»l^ 

1963         •  u&i«.  u^  <)LJ  i<ifi  is>u  y  U'^  VJ^i  b)  jjyi  (],  nar 

1964  JXM*,^   |J*J)   t4jsleti5,^J   t^.,v><  U>^  ^  e:^/y»>  B,»  J  I1»|» 
1955  ^  (^  wi*b:j|^„,U  •  ^lail  <v«jij  y  a^^  ,.5^) l^^jIC*  i^os 

>  J  ^lOf)  j-uu  j5*i  A^uxji  ^ji  ^1 J .  ^^^  ia.>*  w>  -  ^ 

t*    Jlm  u-JCJI  oU  ^I  J  -  ^j^l  (J3U;  lt».j,y  Ja:*  l«i9  •  l«jle  Sj£ 

Ja.^  fbl     l»*A.  J  „;i^;«Aj  OJJJUSJI  (^^  *-J|  aJI;^!  y;*  «S»U  Ja.^ 

1966  fUJI  ^  y^  ^  J  -  1^  ^^  Lu;)  5^1  JU  nyi  f^^  HOI 

jU  i  j^\  **j;1  -.xXaJ  J<5    Ail    ^;  J^Afl  ^   «>««^>i  v*>»  J^H 


1943  J  ^  J/.!^  ^M^  u^  j.ij;*»i  144b  ^if  i^^jA.  ^i  usfc  ^j,u  iii»r 

1944  J^jJI  Jm  oy  B,Jf  J  L«i4<  ^UUI  j^  lA-Ai  ^Kill  ^if  y  j  mi^ 

•  >u;;;i«{  2;yi;i 

1945  •  j^\  li^  y^Ati  'ij*'s^3  t^}  jl  i^  *2lhJI  u:^l^y  J  1 41*0 

1947  •  ^ig  dLJ  5;4i^I  xjyu.  ^  U  i>«J  jj  ^  ^  ni»v 

1948  Jii.  ^  UUt  e,l  J  -  iWU^I  «:«  ji^J^sJl  ijk  \^jj  l«alb  ^U  1  ii»a 

1949  t.U  evfljl    2«*A^   S?V'^'    o"*»"tt;*  8Jj:*Jlu:^^f^tfIJ   M|*^ 

<j,.A*a  y    SiWI    y^j   VJ>.<^    lUU.  «,£,JI^    ^y*  J>*s^l  g^  tfiJiMJ 

•  s*^*y)  j>»w 

1950  Ja.   t^Sii   »4«^;  0«W   ttj'f «,'  yiS   Jjy'^iil    Wi'-c^cU   M** 


t  n-  ] 

1933  «,uui  ^jmi  J  i«jju  v^iry  ii^  ^uu)  j-u  Jlyj  «»>*y  u  ,  ivf 

1934  «  d«^l  v^  y  >  JUtll  luU  JUiri  JiS  (f^^-  ily)  u:^<wy  ^  MH* 

1935  lv«   i,^'    0>*    '-^'i^  5f;J|  J  oy  u>*  ©>"  «/*^'  '^  J  '^''® 

1936  *f)^)Mi»}ik{i«SjiS]^£^L^JM^J^^^J^\^n 

1937  •  Vjv  V*  ^J^)  ^  *t^  «;«  5^A»"  J  *2J*»^)  u>*  olJiiJI  nrv 

1938  Ojyi  ^   ^i/j  •»!  ^  jfl^L;  «t{^  <)^  J  t^i*'!^  tt9^  <l«  •>IaL;S)  j,  I  Hf*^ 

«  A2U.  ^^  jt  aSU.  ^1^1  b24.  itl&Jj  y 

1939  jl  cJr^^JI  J*i  t«*ll.  ^  l>iU  U.Ki  Sl^J  ^y  J^;  -  *2lkJ)  W  1 1ri 

1941  ^  j^  tr  s^rj^  •**-*"  ^^ ^  '^^^  *>**'•  ^^^  J*  « V 

•  f^tJJt«sU> 


J^yU  ^VSil  1^  ^UJi  ^ji^Ji  «u*V«,'>  -aJ];^!^ 

1927  «-.u\^i  u  ^ ^ ^\ii\  *.a^  ^uui  ^  jxi mV  ^nv 

1928  i-i«fl  ua^U-U  ^.yiyil  ^  vJaSjj  t^^^  ^  sly,  ,^j,^  ^i  ^  m  r a 

1929  ^3-^^  ^i  WiAy^^o/J^^^j3\^\]i\3  MM 

1930  w?il  U^    4>"  «/^  >»  J15  ^  »iV  cV  J^yi  Jii  lilj  I V 

1981  ^ttJI  ^  ^  Jjiu  ^fjH  jiu  ^)j  j»  ^  ^jj,  oa;^  sl^i  I  ,H 
*sb  ^  -  »uy  ^ittib  yi  J  jjJi  ^  ^:^  J  - 1^1,  j^  djyi  «^;^     - 

V*^'  ^  tt/*'    «»**^'  ^  ***'»^'  «»^  f'*  ^l*»  «>'  3  •  t-»J^t  J* 


1919 yi^  tt»ft^  tt/4'^«;4***^   itfO^  <:^5;^JV^»„Mn   MM 
**  '  «)^'^   oldi>^  <a»l«M«l  Ujac  ^tnUI  ^  -  wJj;  ^  ^d,iis« 
Sol<AJJ  Ja)  ^  Uj«J  ^  jj  ^1  iot^AJf  J*l  ^^  Uy^  ^  lit  ^ypi 

1920  ?jt«AII  J»l^  W-4M»*«"^  ,^WI^  ^1  ^^,  Mr* 

1921  •  v^i^J'  ^  J*^!  V-?-y.  li'iS  2^Jyl  v-iJi  JUW  4-*-  ^   M  f  I 

1922  «,«f,«,ti  «i*«  J^^  ^^  tfUUI  {iW  J  v,.^?  j2«J  I3U  I9rr 

*,f&j    ^^Vj)   *^  ^j'    'S^y   *»>i«^y    S;4i^/    5;ilf 

1923  ^  v*« » cWJi warf J  UijL  d«^is«^i*f  Jf^i^.^ «,!  ^  n rr 

1924  J  ,  >UJ  i:i5«  Ub*  y  UA<  V»lfc  jj  U4S*  ^U/l  Ul^  jjl^iy  ,   i ,  ff 
1926  ^ISJI  ^I^JI  ^  fl^  «,UUI  J*l  ^  U  J  4-1  cJiJ  Jey   Mn 


frAv] 

1910  v^i  yj  ^  ^^^1  ^^^•  u>*  ^  iJU/.  U4/1  va-yi.  Aj^  Ml* 

*  U«Aj^  iSjiJ)  *^:>My 

1911  yyi;ra^  5,ilf  i]^) ^ ^ ULm.  1*^/1  ^^l  ^^.y  lij ^  H il 
i^'^^llilLc  S.MX*  <^y  aJL^  VA^^  J  t^i)  J^  SjJI  ye  u,.s«l 

1912  •syJicSjViUaa.i^^yjiJ^  nir 

1913  •  liyi/l  ^  J  UUti-^  Ujui^I  ^^  ^  ^  iqir» 

1914 \>ft^^  *^j^\ ^h^3}^i)jj\^.s.^\i  jiAi,{^j^  ji ^  nil* 

1916  ^  j^  IvK  M^iil^i^  V;-''^ V  e^»"  **^^  ^  lil  n  f  • 

1916  II  ^-  ^1  Jii\f.^^  fijn  (jijtit  ftJ]JlA^  sj;^JlJ  Sj^3  Mil 

,  •  Cll»  jjj^  i  ^  ;  ,«i«jj  ^  JU  J  .  ,^ 

1917  ^ - W«  /»-*•  o&jH  h^9^ y  %*  A'Vl i^jj^  fMJif  Ml V 
^lOJi  ,jSAi  i«aj  ctaif  ^ , .  uib  ^1^  u^  4^  ;ri  J .  v.tt,jui 

i,        -    •  (.w*bi/.^,yi,y^ui^ 


trAi  ] 

1906  X«4i*^1  J:?,^  3^1  S^*5i  J  •  ^  »«»1«1J;»  J2*i  ^iJI  ^_ff-aJI   1 1  •• 

1906  jx»y  Ai)  91  i<^y  ttt^  fMI  ^J^  *  ^3  ^^\^  ei>  t>l  MM 

«  JI2j  9  ^  iJ,);  ^  JJ;|  ^*  fL»)  13)  f  Uli  ^  lyUlir 

1907  ^^Uil  cM  V'  *-^=-^^  3^!ra^  V' *^Jb'' ^Jlr^  i^  H-v 

•  *Jl;^'  tt/**'*  c»*i**  U*»l* 


1898  fhJ)J{d  ^)  ^jii .  jikJ I  fit  9  K^jJ)  j)Ai  jU^i  SMji^^j  t  Au 

1889  («^J^  Usiki  i^l ;(.»« u^Jt*'^  «in>^|^  is»SSji  ]i]  %]jj\  j  \^^^ 
•  tt;i;)<)^l  i-iti^)  f &.II  p  ^  d^l  Ja;  (Sjl  Uil  ^  •  S.WI  /UV 

1901  v.sJt«  jj  Sj^l;^  (f/*!  ^  U^l  yj>^  |J^•  tj:«^  (;i«^  auI;^  |  vi 

1902  Ifj  ^^>  ijy*^^   oJ/i  )uyA/«  ts>;U   |JL«/*  u:^  akJU  aJLu*  n«r 

1904  fUV  ^j>J  »  ^  J  vA^  )ol  ^^yi  fl^li  aJLmJI  S;j^|  ]Sij  I VI* 


1889  uuij   V   \ii)jL!i\  fS  ixJi  f^^AJIi  h»9\  t:AjAi  JSj^j  tAAl 

1890  «  »lj1l  iA^  <:>JJii{i  Ut^l  |P*  (fL*  ^T  y  )ii  ^  I  A1* 

1891  •  o>^l (iu>  1^4  U  j«{  ^1  j«.^  ^* l>y^  t^lb  ^y  li(^  f  All 
1893  i<v«  ks^.a£il  ^  aLJI  <.£^j  ^U  ^.j*  Uyjtl  U  d«{V«Sbt  J  j  I  Air 

1893  ^  Vj>'  ^^t'^l  J»  -  c^^l  JIu  aI«  Ua  jl  t«^V  "^J^  b^  I  A^l* 

1894  V^  id^jJU  ^*    UJJ    jfU>    vS^)    ija^\    t3\jj>i  ^IJUy^    |A1|» 

•  J^l  J-«JI  wJ«**  oXtU  l«^  yj^^  «A.fl  i,^^ 

1895  ;(iuflJI  fJin^\  jj^  ^1  ^  ^^  aOU  iU^I  ^  odJ;!  **yCU    I  A1  a 
J    Uj,-i2^  ^]   JLaJJ   j^   lv«   »>H  ^J    i\5   MC>' 

1896  *W*  a— 4*11  J  AJjl  ^  jiall  J^A,  iJl^F  Jtl»<>-Jb  J-s,  f  Ain 


[rAr  ] 

1882  Sjyi  iUSil  J*5  V^y  J  W|>»V*  V^  r**  **V  tt/^  ds*^  J*-j  •  ^'^•^ 
^  ^  /ijlj  c:^j  «tf*  j**!  *"^  is^y  j/«i.  -  iJU.  j^  /fell  J£ 

1888  ttKilyA^JiiSU  a2jlUu*  VU>  U  d*{  »Aja\  ^  Jl  J^j   I  AAr 

1884  yk  y  >Sfl  y  >tl  i«;I  J;4-i^  ^^.yi^.j  **Vl  e;^  jij'T  cV;  I  AA,» 

^U  .144/1  ^s-^  tJr2<  ^i*!^  e^ilUitJlfci  ^K  ^tVl^>>3>Si  I  i>i^ 

1886  ^    •^j  Aiui^i  Aii&^yt^y^  UA1 


1888  J  J_aS  tyJlfc  ^U  .  ^KJJI  Jtu  I4L.    UxAy  *j!^|  ^/Jt)  Jj.;   ,  AAA 

'«/4  f»*  ttiw;'  "-^  i*v  w^*  ">-J'  ^  c"^'  ****  s^  ■»'  ci^' 


[  rAf  ] 

1877  >iL    iJ  ol;lj    '^^^J>j\i  y^U^iy/lAJl^l  jSj^j   I  AVV 
ij  il;!  Uil  yjU*'!^  *<  <i;e  f*  el'  >  -  Vy  «&^-  «*"  ^  e^' 
iJj^^— L(J  yU^   .   tjJ^jjj^JI    UeUe-^l    *Jto.U>*a 

u^o^l  ^jUL  ,lbill^  cJ-yJl  ^y  AiJ.^^   ,IJ1  ^-j  J[,ll 

•  t«$ytt  ^V  Ui*«.  L,ib;2{ 

1879  «J:--S^y^l/*.-^i^yy•^J/Jl^^**WJ«J^;«1^^  UvS 

1880  Wy  «!^ '>T^J5;  .u.  l^^^y*  Of  t^  ^*  *j1^I ^^T  J-.^  i  aa» 
,JU\j  .xxSiji  ^b;SJ|  fJ*<  0"*^!  i^  flif\Jt.J^S^  ,ij?I  ^^^^ 

1881  ^^—4^1   X»yl  s£.^  J  SIS^  iSitt"'  V"*  r**  *'V'  er^  Js'T  J«y  «  **! 
iL}\  ^M}  C*»"  '•»**  •  '"i'^  O"*^'  C?i*  '***'  ^"^  ^^=-***  r**  V*** 

•  «^!ri  ( «y  r )  •  ^r-^  V  J"*  (^*  ( B»  1 ) 


[rM  1 

S*  J  •  ^3;^  ^  *«**"  ^  ^^^  J'  J  '«i"  *-^^  r^^  j»^'  ^ 
(tji  tj^iyt  sj.-^!^  ^  i<t».i^  ja)  s<L*  J  91  fix})  jja^\^ 

1872  «,!  ail*.  Jl;lj   ISU^yflkoiU  IL.  ^]   %jLJi  J   VJ^V^  Uvr 

^  juuiikj;.  ^  j^  ^1  *^i  V Je  ^1  li  iij^u  ^-^i  52.31 

•  V^  e»^  «-^^  •'-H  lt*jy 

1874  v^b  J  ^)  A«{;l  u:...^  iL.  ^.^I  iMj  *Jl\j^f  J^  J^;  <  AVf 

^  iWyi  *JK  ,^1  ^,1  'jdJfiik  l^^i  ^ji.]^]S^j] 
fiiti  jfS.]  h>*j\  UuJI  fUJ  ^^1  ^^1  )J*  a*;  ^  jj  J  IL. 

1875  ^1  i«<>l   vx^vAJ  ^  lift  ^<um   i.£u^  Jl  ajI^)  JU  J^^  |  avo 
*i>  -  ^jJ  J5»I  Sl-JI  -*;  ^  'V"  Jl»«  J    *^  s^>  ^^^  J* 

1876  •  ^y  ^»  cHrtJI  IJJt  ^  u%i»  I  aUT^  aiJ^^J  Js  J*;  1  avI 


1366  *i»  -Uy>^J   vIJjV  ^aV  ^r**'  *"'  J   *^!r^'  J*    tV;  « *11 
3867  •  ^LVI  fixfl  IJ«  jl^j  *iJ  Vy.  «j^  Ul/  ^y  ,^r^  J«  ^j  >  *1  v 

1868  «,» -  uf^  ej^.  VAfrftye  fi  ^  jw.  »j;^u  ft-^y  0/1  juy  ^  Ui A 

1869  ^A^  J  Idi^JL^U    fiiJtJi^}{^:^^^J^/\  J«y,   IA11 

*  *****  k/  «^^a*iJ  g^l  a,y  Ui  ii-JI^ 

1870  ^.1  jjllt  u:^0  ^^y  ^1  lSSjC^  y  w%S  «;  «3t^J  JUy  ^  I AV 

Jtl;iJ|    ^1    V^    «,W      0»^)    e^J    >    tt/-      VV*^*^'    -Vr* 

•  ttiW^V  VA*«iarf  Ji^e  ^  cX'J  «l«J  W»^  fi  tft^i*^ 

1871  utJti     J|;-|  u>^A  L.  ^^  e/^  v-i-XJil  ^1    «S\jAf  J*jii    •  AV I 
»Jjb   J«{  V«^  ^  ^  t*U  Sf;JI  u:^!^^   JyiS]  lift  dU)  ^   Oil;  jiU, 
><^^  u/H^   W^^  )<Xe(.<Ai  j^]  am;)  <Xm   l^L*.  vj:.vik^^  ^t^  2AS«J| 

yj:^^  e;i*i"  «>'  -e,.»iaBSl  l«j;»  y  ^  -  Uf^  jjj^J  tJJo  <»m  l^,^ 
•  tU«ri  e*j  Ji*  ^  j^i  j;j;»>i  ^1  ««{)i  o-i*  y,t  J  ( jj,  r  ) 


[  rvi  ] 

1868  ♦  ^UJ  *l/l  V^  ^J   5;yJl*jl«feJI    S/iJj   lAOA 

1859  ^^  ^UUI  A...^  ^^^1  ^\  y»i\^3  y^.^  IJI  yklkJI   I AO^ 


1860  j^'  aiU^iJl,  )ji^  UJy  *A.yaj|  ^b;J  ^  ^^^1  ^  ^Ul  I A1* 

1862  ^  ^^r*^i  jifcj  j5^» y  jUdJi^^^i«^ybJ,»ftUy^  lAir 
186a  Siii  jJUbi  j^  ji  )j*  ^^  ^\  ^  iSi^] » iiui  J  juyj  i Air 

1864  ^-  j/*  jl  «»^)  j^  y  ^^*  ^  i-C^I  »  *UI  ^  JUy  ^   I  Ai|» 


[rvA] 

1350  •  fp  U^  SM>I  ^  vU^W  uy^^  j^)   i  Ao* 

1851  XJuJI  jl  ^1  j)  f^l  ^t^  J^  caJI  JS  «,l<  UV^k'^y  J   Ue  I 

Z)  *V*  V-**'  •***  J^^'  ^y  H-*y^  V^^   tJi***^'  s^  V-ii;*'' 

1854  ^^fctfe*  JijiJ  ^V  .Jis  U^^  (P  in;  l«sit  jj  *;1,>.|  ^ ^  1 31   I  A»i» 
1857  V^jP*   ^)^^   v.a^li  ^lj;ic:JU.j  J   ajI^J  JUy^  lAov 


C  rw  ] 

1836  y  J  ■•  I^Atfe/.  ^  ^J>A^]  ^  ^\hSji^  cuil  ^i-«y  j  I  An 

1837  #  l^gi  ^,<j  ij:^)^  ^b  u:^!  Wi  juy  ^  1  Arv 

1838  •M>fj!/t^„^l*<  jA.4^(fe,IiJUi/l^  JUy^  lArA 

1839  •f*WW4yUi1)l^«^^J|jli#JI8t^Ul««f4«,l^  urs 

1840  JJ^-l^li  «j^l  ^;a*-^J«   ^Jl^l  vlliiiynWAy^  I  Af 

1841  <.ti  i3]jA\    ut&fS  5y^l^e.yj^)^y5y^*«it.|  J*5yj  |A|»I 

1842  soyij  *4-y*^if  iu*'!^  *j  j***j  sl^i  yi>  w^y^  iA|»r 

1843  •  Ji  J^j  ^1  tVy^  «4AAiJ|  idJ  J  I  Aft* 

1844  •  li&^i  UJ  \j^^J  *lJliU^I  ^I^J^vaJ)  Jisy^  \Kff 
J845  ^  ^  oil  JIS  y  •  «pu  iUt  J  ^i^l^i  ^^  «.s-il  JUy  J  I  A|»e 

1846  •  l^^  *4U  j.^  J  Itb  ^/j  «^j  f I  jl  *L.|  ^^Uiy  J  lAfi 

1847  tJUiUI  y  U  8;liuCII  l4/.yi  i  IfcL  ^If  t^^y  ^  o^  |j)  Sl^l  ^  i  A|»v 

1848  •5;UJI;Ufc  JiC^JuyiSl^l  J^;l^|^)j|  |A|»A 

1849  •  5;^  Slr^l  J^  *^yi  *y»i  gyl  ^/^^k^y  l<iJ  j  lAfl 


[  rvi  ] 

^;  uJU^I  JiA)  •  fSi)   ^yii   ^UI  ail  L^^j   AA^  ^1  ^ 
•  ^J  a*«^  JIS  U    ^^^  «1JI  UA.J  Aftj^  ^1  v--~»«J-»  ^  -i*^> 

1832  J    -  l;Vb  «j,^i  *>U  ^1^  fl;-^  ^  cs-il  M  JlS  lil  hJJi  j   I  Art 
•-*-y.  ^'  "JJ^*^  v4^  '  ^»^  B)y^  O"**^'  d»*  'ii  c>'  •***^  •*" «»'  " 

1834     »i;^J6^.i^yyi*y»i^^i  JA^^jifivjtJii<;  ji;y^  Mn* 

1835  «j^  f»l  >U«l  ^  *ii  ^1   J*i  J  U<  ^♦fil  MA  ti\  «4*  fcU>l  ^  I  hft 


1825  fd^  e:JU»  1;  ,^^  tsTHr^  H**  M  <3^  '^Ir^'  J^  J?5/   •  '^f* 
^'^  C-i>"  '*'>''  «^  s^^  C?>"  J^  f^^  4*^'' ''''''<  *** '"'  e/^^ 


1826  ^U;^   v»^w«L   ojjUJI  Jjo-,  ^Ic  jU^W  a*./**/)  *4*AJ;l^l   i  Afl 

1827  •  f/*Xl|  X>\i  ^\  v^)j«»J»  J  tjV'  *1A  **^  J   '  *''V 

1828  *J  ^li-y  ^1    ^;vi^  i   ^A  j^  ^   y£^\    djA^  JU  J?.;  1  AfA 

C  J  dM^  ^  wJu^^I  J«  ^  -  )/^  ^  /«^l  ^1  ^e^fv'  c5»WI 

1829  tJ*4yj  (»'  i  J^  JSj  (»'i  ^'•»  J^  w:^'  M  Jy^i  «»i  *4i^i  >  f  *rs 
1330  L.j/ii^^i«<  ^jij  ^iji^^i  v/*'^s/*  v.s^i  j«y^  iAr* 

>^lyk  Cj  j-«^  JU- ;,  -  j^W  *UI  «^;  iifei*.  ^1  J^  ^  t^^ 

*.i^^  UiA  f ^  ^  ^'  **<;'  ^>  J  ^  «!;^  *iV  fcjs* }  •  i^/*^  *^'' 


1819  JUi  jlo/,  ^Jl  ^Si^  ^  UX.  v.s.^^   l^^  u:JlS  Jj^^l    lAM 
VI  •-J'^  jt-ttw  JS   "wy  «^>*  iJii  JlS   ^l*>  yV1    *^ 

1820  J2i  uJixU  u:^l:  ^t  or^j  y   ^U»  %.s^j>4   lt».;>>  «^JU  S|;^l    |  Af* 

1821  «i  ^«,lJ-  ^aritt/'^tt/^^^'iol^*-^  *SJ^  J5  J?-;  lAri 
•  ^  cN»   *£-l*S  V»l  J^  f*  ^  f^i^  ©>»l  Jl5i  vji^ly^  1;  J 

1822  ^1    lyU  yj;U  uXi^.  ];^    ^j^AAiy^   t^^y  gfcJU    8l;>»1    Uff 

1823  JjU^  «J^*<^  Um  j  cJ;«H  <«iUu'  «-^   u:^N  ^V  J^  <-^^  *  ^ri* 

1824  J>yi  -vV    l«Slk»»   V^liii  J  ^   Ajle  V  U*  l^j^-  «»];<l  ft;*!   I  Afi* 

Ajj  ;^«i  J  j*^  Ji^  -  t;Aii  ctUi  >uyj  ^  lyi^ «««  f^i^u 


[  rff  ] 

•  ijii^  sSjiS  J  i^\  J  ^[jfdi)  JJ^i  ^^  ,_^I 
1812  ^jlJ  ^jii  iSii  i  ^j^,  ^^j^yji  tj^^  it^j>)t  u>JlS  ^  j:\s\r 

vM  ^j^  ,j;JA!^  Vy  Ji-L^iSjin^^  ^jl  ^^yi  jUi 

•  cl^  ^  1^  «,» 3^]  c«i»  fii**  u-/  ^jj;i 
1813  jSi  fjb  ^^yi  jui  »j.^j  *4«;IaJw  vjtJU  (^  Aij^)  jU.  j^^  urr 
^  fOb  ^^yi  J^  ^  o»»^  wU,  »d<^j  i<jy5  ^j .  ^^1  xiLttj 

1814  ^^y]  JIS  ^*  cyLiU  V«»*  i^j  ^j%^i  iSilt;  4^1  e/^  ^W  J-:;  I  Alf 
*^j^  «*-,*  *iy  ^  -  u-^l  cfi  ^1  wJbfei  1^13  ««^  iu^  *i«t-  y;^ 

1815  Xj-jUJU  J5»  lift  u:JU»  ^  if\iij  ti  JUi  iS^lLL  *jf^)  jfU.  Ja,^  |  a  |  d 
•  ol<  Wb  o«l»  iJy^^  Ijjk^  Jli  ^  *^T  ^^  fUJ]  IJ^  ^J  Ob  ««^^ 

1816  gj^lyi  ^  «,1   >UJ  U   JlSi  ci^y  fSiSj^  *J1^)  c/U.  J^;  I  A|  1 

#  ^T  o«l»  *<  {Si  «« 

1817  JUi    ^1^*-.   «ju.>rt<   v^Uj.^^^l    lte-^yc:Jl*    Sl^l   uiv 

1818  (Siji.  Ode  iL)*^  «;«'^y;i  ^yi^.  it-.^y  v^u  sj^^i  iaia 


^1  UmI{  UlLLI  1^1  L^'  l«i*  U;^  itJ^  -  «ftl<  U  ^^  1^1   py^Me 

1809  \j^  ij  Jl^l  A{  ^  o>Ul  «<  ^  ,  wOJU.  tJ^j^i  Ji  J^j  I  A*1 

1810  ^^yi   JSifij  (>^   sj^iiiyki^Ji   JA^   WJtty>   lAf 
JUy  i  -  ^^  •-i^  ucr"!  *4lr*"<  J«y  »«»^  ^  0»W  C^'  j^j;* 

^Jj^  Jii  JdAfl ;jiy  i-  JIM  ^ti  fpj  fU  ^  -  JUjUJU 
^*iJ;^  ,JL*  ijLii  ,^^yL4|  *jj^  I4J  J^ 

1811  ^y»  Ja  CUo^l  ^  ^^^  tt^»^  *i-;liJU  i^^y  v-^  ll^l   I  Al  I 
f>  ,^yL  Vy  J  5  J*J|  J*£«iJ  voUil  ^^  ,^,ii^  *4«/iJl^ 

s%j^  Wy  ui  -  ^j  ^ly  jub  1^  j,jw(b.  ^jfciy  soi|A/i  ^Jii 


[rv«  ] 
1806  ^;l  I;  ,j;U^  Slyu  lyiai  ^  a»p  ^J  l*.^^  4^1  ^  J^j  \  a*o 

Jj^  jxl^i^T  s^U*  ^i>M^^  O"'^  ^"^  '^'^  ^/'^  J  it^j^i^  i*;^ 
Sif>».j  il^^    l»^«ai>>jU   (N»T.»JU*   ,^^  Jl]»  «Juy  £j|)ll 

1806  4^  J«yj<  ';  «»^^  *i  ^5**-^  ^jjj  V  J^**  »W  y^  f>*  '*•'• 

1807  tt/SLi^  y  'iy.  J<i/»  ,^/ f.  \)  «>IV  «i  ^^  ^  A'V  J*^  wVj  I  a*  V 

»  (JjUO  UUbl   J*«i  li  J;lf  yij   dJ   fVXfl  Id*  ^,9 

1808  JUU  ^6ijk,  c:JUi  ,^,«»^  ^;»  ,^;XA<^  ul^J  J«  J*.;  IA«A 


[rv.  ] 

1799  or/il  *^^  y  «a^l  ^ *-^  ^^  •s^y^'  W-^^  ^^:-'lJ  'V'    I  VS 1 

1800  /UiU  ^2^  J*.    JiCi   isJiax)    iSmii   u>^l    il;^)    'V^  (y    I  A** 

!r!^ ^  J  j-^i  ^ ^jji)]^,j^]  ^  lyu  ^  jui cuii  u^ 
1801  tjLai  c>(;L&i   st^JU  lyu  )  (yi  (— «V^  ej^>  *^'>!;i  ^]/*^  f  **  i 

JU»  us-siu  ^_j)U   lyiS  ^   c:-^)  u:-Jl5i  **U   ,_^l  J^^]  ^^ 


1802  w.— *->^  tiV  u;^  dj"**"  *"'  ^^  ^  ^  *'V'  «>"  J*-;  I  A  •  r 
c^yLtl  5|;JI  cJUU  yj:^\  y  J  tS  ^U.  JL  fi^jji  \Ji  l^**  j  ^I 

1803  J^.  crlr  ^  ^'*  tt^'   S^^^  1^  ©>"  *J^  0*»"  ^^^  ^V'  « AT 

^-jjifc  f a*;^  ^^yj  jui  ^^y  \£^m  ci»«^  ^^y.  y  «i  jit 
j^  »  Jl«  u  e4»*  e*»  ^^^*  c^y  «***  ^<^  «s^'*"  i^'  «>'  •  '^* 


[  ns  ] 

CW  «>'  -  J^  {3^  Cfi  c:*^yitl  vj:Jia  UX«  iJi^Jki  e>jw  Ji*  y  J 
jikf)  «^j:xl«  JU  Aiir^^i^  J<^iy<ij  ,J  1^1^  J^\  <^^  (3>J^( 
^^^,»i3J)  (JjJUJ  J  i\jJ\  ^  ,j«ii/|  j-XfcUJ  t^ii  ^  Ul  .  U**.^  ,jj^' 

1705  «Jio  Jt5   j»fc;'>  *-»'^  «^  *24lLl  ^i*  c:^  *j|^J   J5  J^j  |  v1» 
O0;l    ^^yi  JU;  ^    ui^J  f»i  Ji  ^J  S|;JI  yjiJ\5  ^   oy  uJL»* 

w^  U    ^;j    ujy?  Zjlljlj  22^*  u:^  saA*S  i  |A;J   •^^T  aIIL 

1796  ,^rJ«*'l  ^  «aJI*»  f»;J  '«-*'^  H^'  «-^  '-s-^  *^Ir^'  J*J^;  I  VS1 

•  iSiuJI    Silks'  JJsb  XSaa/I;  «,>^I  (jU  j  •  Ai^v> 

1797  uHtV>  cJ*   ^^  C*^  J   ^  C**^  *^4^*  ^'V'  e/*  ^-  ^^J  •  V^V 

H»l4*n  e;^  W«  cjy^  l^  ^*?'  ^  -  vj:-**"  (^  c>/i  ^   (i;^  O*^  C?i 


uJ*  -  1^4^  CN'   C^y'  •-^  ^■'^  w*' J  "  tJ***"  •:/•  .is***  ^  '3'^ 

•  ^j>y'  •**<  w^»  j*i^  s^y  «**<  ^  ^5"  "-ii-a^  c^y  f*^ 

1791  tJj^  Ua  )\  *^j^  twUUllJ  (.^^  vlIjL*  us,^  A>t^  JU  Jl».^   t  V9  I 
mSiJ]  Ji  J  '   XS^lkL  ^<)«  an  j   iSji*  *^^^  UbJU    \^^  2I>U 

1792  Jisi  Jw/»i  ,_^j*  isa>  ^  ^^  vjX.  «t^  V^)^  •^^  5|^»  1  vir 
^^yi  ^J  -  i,fcU»  ^- J  yu  cuf»i  J  vi-.Ui^^^  u>,/4i  ^,yi 

•  «Jii  J*x  ^  ^¥>^^.(ij  ^KiH  a^ja;  fc^ll  ^  lyu  -  lafc 

1793  U^Ui  i^l'Jfi  Z£iu  ^  «.J^  ASjilk:  v£lL«  i£^  a>1^«)  Js  J«^^  i  v^r 
Lif^j  LJUJI  **^  ^  yJi  ^  la*  ^J  .  jikJl  ^  fAiji.  Ji^ 

1794  ^aJUU^  *Ji  ^Ic-^  v^SIt  cXSL.  vj^o^  l«J  Jtjy  ^   iv^f 

^if^\^  -  *fti  IjAlii.!  jKfcva^l  ^^yi  JSi  j^;auJJI  ^  ^>JU.I 
u:^  Alt;/*}   jSjJj  .  U«*  (j:i<kJ  Sl^JI  fta  Ll^  J^  «U 


[  nv  ] 

1786  U^f  V«**  J^>  ^  ^V  Wi.1  ^j  js  j^j  „Ai 

1787  u^  l,Lai.L»a^|  JUicJjgiJt^l   UAi^l   .^^^ly,   ,vAv 

1788Uil^,yi*iJ^j^;j^Ut^^-^|^,JL«^  V;«:J[j^8f^,   lYAA 

pI^a3|^  gJl  iilj  ^J  ^  J^ 

1789  cUjlkJ  w^*  ^  cu^^Lil  ji  ^  a^\  *j|^J  J^y|  ju  |j|  |  va$ 
jju  o»W  58^1  «5l  ^fc«^|  c:^|  u:Jt«  uOa*  Xaii  ^  u^ 
J — J«j  J  (yJl  J-Jarf  fta  Id,*  ^1  -  «t>»j  t^K  d«  ^^yi  JSj 

^^^  ^  uy*..  Ja^I  c^f  lit  ^J  ^  ^>l  ^j;-  laJb  ^ 

»  c*i>i*  u^  J^»i  ^1  ui  -  fy*/i  u^  jdxji  ^  x^iyi  ^ 
•  *-*<  cXii  A^  g^y)  ^y  j/  ^u«4*  jj^yji  ^  idju  j*.iy  i^,j-fl^     . 


(  rii  ] 

1779  JS   vjtUU   gu.   *}  ji^   **»>^l5^   ^^J^V   <^'^'-^'    '1;^    'VVI 

1780  ^i*.  „;iSi-.  l^iJtu  ^  U  tV  J  ^  l^^-  ^   c;^*lii.|  Sl^I    I VA- 
IjaU  ,^  ij  «a»U  ^*  2L.  tA»^/i   t^  c#jJ,  ^1  ^  •  l^ji*  gj^  »^ 

1781  «,!  ^t/*  J  ^Jjy    U»tj^  CS-U*.  J  ^  le-^;  ^  yj^^SiJ^]  l]jM     I V  A| 

1782  J3   USj    f-i  r*  J    ^"^l*  t^J^  ^    Wj^"  ttT*    VJU'U^t    »f;-l    I  VAr 

1783  Jji]  lift  *_aii  ^^  ,j^   djyi  ^Ufi  j^  V^«,l^  ivAr 

ill^l  <<i*  Jit  J — *«*i  ^  -y]^  ^;  •> — *«^  JU»  jj^  J — &e 

1784  jJUj  ft  IJI  V^;.  J— *i4  I  u:,s«^;  fi   jWW**;  «.sJiJj  if^l   I  VA|» 

1785  aV'  ^*  «^'  ^^^^^^  f'*  W>'  d*"  V-;  cf*''^  ^^:^-;'  J  J  I  VA» 


1778  3  o^Wlv;ljS«^  5J^  II  iAij^jU  UUlf^-^U  ^I/-J1  jU^  I  vVf 

ail  *^^  ,^j*9i  ^^1  ^  ^-^  ^^l^SJi ^j  -  ^ »  ^L.**-!!^ 

1774  ^  vJN-  JJU>  .kyi  ^  js,l  \^jif^  <ii,  IVW  J  *Jl;/.|  {U.  J*;   I V  V|» 

tj«».  fH  .x«  jjWJ  «iVf  ttj^ttPi  -t;An.  jtig^  cf*'''*^  W*^ 

1775  J,^y  Vjip  feoi^  i»r^^  We/*   c:,^aji.l   Sf;^    ivv» 

f^  \s>j^ ^ sjj)  1,:^  ,j/*-  ^>>^ *^'i ^  *>^**  vy ^ '  *'^ 

•  .iiyi  iS^  fi  ^JJI  8J-JI^    Jjyt  iiii  2Li5>  Ijji*  ^^yi 

1776  Vaiii  jy)  5l;JI  vJUj  >^  All;/.)  Jo.yi  jAfcy  iJi^  iwi 

^Ayi  VI'  ^*  iiJUSi  *4i*.  U;4^  s1^  ui^yr «,!  ^  J  o/y I:  ^y,  ^1 

^1  «ib  ^if  j«Aiy  ^  -  Uij  j^  >^*  V^  jjyi  liJUj  ^ 

•  *£/.  ^  jjyi  i«ru..i 

1777  1^*>^lY'js!^-fl  J  *««*»•«/*  %Wla5»*  uu*liXl  f|;*.|  ivyy 


•1766  JU^I  J,uJI  r"  ^^l-*'  c'  *>*"  f'  ^  iz.ij'^  ^.f^\J^Ji  •  VII 

1767  ^  VlJ>-  ^  U^i;  ^ /*^ i  J5*J  ^^1  S;*^^  u:-au.iy  j  i  viv 

1768  *ilj;  ^  •  „,UiI;t;  *4*  JftV'  J*^  cf*''<  "ft^^^^-a"  ^^^^  y  J  I VI A 

5— 1*^1  «,«f  y  u  oj— tji  js^i  joji  jjjyi  ,j^  j^  iji  Li;^ 

^^  Hi  •  .juj  i-ii  cXfi.  ^uji.^_^-  ^u  .  ^^yi.^ 

1770  #21*^1  Jji*<  UUUJi^  tt/V^ir^i  tvv 

1771  s-^  tt^w  fjJ5  ^y  ^ti  c^y.  ^1  j^i  ^u  .  Ji^ujj  lii^  ivvi 

1772  ^XiJ,xsaujikJijjUJ.Ai»-^J^;4i^l/a.i^v')c!i^ia  ivvr 


[  rir  ] 

1762  o>W  ei  cli*!  J-u  5d*ll  ^  J*?>  ^  fS^jA]  Joyfl  jU,  IJI  ivir 

1763  tjLiij  J  ijb;4.«  uJiL  JU^  i^  ai;i  U;4^  ^j,yi  j«^y  ]Sij  i  vir 

1764  j^]  ^   g,yi  1^  ^  o»kII  5?li  «j:JUSi  tjLJlL  *j1^I  JlS  J^;   |  V1|» 

1766  Jdf  v*l  er*^  ^  »/^  ^.^^-H"  ».s^I^  J  W^*'  u;^  «***'  jf*-  J^J  I  Vio 
^  slyi  o;U  »5,l>iijP* -  Uil  ^\^\^3  t^sij^ ^  v»l  efU. . 

U5)j^  ^   jJU.  *J  JU  v'l  «>lf  «,!  e)U^»  f^^  v-XfJ^  »^»)  ^'* 
8^  v-^  c>Jif  «,l  J  -  «-^A;I^  ^U  ^*  ^  J  j  o,VI  J 

^\  ^(fy  U  5Jb  lj^\  cUtI  J  -  o«l»^l  {2i  J*j- 5^  c:Jify 

t.^3  yJ   ZJ  ^'^'^'  •-''J^'  c!^'  *^  ^"  "J^  «>"   Ifi^^  t* 
•  i^Ui  v*l  ^UJ  ^J   jSi  Ail    ^i«^'l  J  .  Liy I  tJ«Li.JI   ^5«kJ|  " 


Cnr  ] 

1759  ♦  «1y  ^  JJ^JI  cjr^  J  JjAlOwtUtfl  jlA^U  J491  ivai 

1760  J  i^)  I  ^^yi  jui  vu«.i  y  ^aifc  ^^^  ju ) j)  5l;ji  jy«,  I  vv 

lou  flyi  8;ur  ^  wis^^  ^  ^i;<ig  j"**"  «i»  -  **«*  M* 

1761  JsJyi  uJtt»i  J»^  .  jl*'!  ^  jfif)  Jw  IJI  jf*^L  ilyi  Jjf,  I VI I 
.        «A.  JU;»  J.HII  J-.;l  Jtyi  y,lf  «^  -..^fe,*.^  j^  lU-iU  cf*^l  J^ 

cXi^l  ^U.!  J«  e^  „,U^  y  uXU  iiU)  i-il  ^  Jhii  Jjjyf 

VJll4»  Jiv'Jl'  M^J^  i^^^^  ^\^Ji^ 

J,  -  %^3   ASi\d4   SlyJ^   epyie,'   Ji^^j  -Slyi** 

5»y4  J   AiU   Ji^l  ^W  «|l-^  tt/^  fl  ^  Styj  ^  ^    \iA 

.  aJuJ  s^  (  „,  ,•  )  ♦V  (  tti  r  )  •  •t^'  Vj  l,C-»Uf  (  c  r  ) 


L  rii  ] 

t»i  (^  ^  C?>"  c^  J^l  «,'  i  y>fl  ^>i  ^^1  ^  llyi  c:J«  ^ 

Jl*W   Oikll  ^  «JUJ  iJfU  Jlyf  J^  jjUSi   ^3Xy|   «^yj  lift 
JJU.  uwl  Al1^»  jUfy  U  .  ^j^(}/   lifr*  J>UI  ^  u:^>.f 

iAJ^ii/J]  cXf^j  ^  ^u>  vj:^i  «!!;..y  jury  U  J .  iftfl  iwuy 

J^Lj  vtsiJI  JiJUa  ^ijifi  Wi  u,»  '   Ji«Uj»J^I,  ^  ^ 

•  tlr*^'  '''^r?  tH^**'^  * 

j«tf  jUj  ^iu  tsjuf  ^aju*  j^;j  *-yi  ^  fj^n  ^  ,»»;•>  «-i^ 

•  J«a.^l4vLSj^^iyaJI>JUil5JI  ^^  cJJU   la*.!^ 
175ft  U^  «J3:*,y  J  jjb>>  SaU  ^  (jrtt  w:^)  W<UiJ  tl^jr  JU  J^;  I VOA 
«*..;  Mj^  ^I  Jy  ^  oIlJI  cSjJ  u:JU5  fty»  vi^JU5iy»afl  ^ 

^  uU-*.  ^JJI  o^yi  u::JUS  t^^y  ^^  c:^U  ^1  y  j  -  v-^»^ 


1754  ^  f^  Ml** ^Ki'^t'  rt^i  ''V  «>'  W^  J^-'  ^1  'jU.  (y   I  v»|» 

c?i  C4>^  J^'  'y^  c^'  tt)"^ei^  tM*^'  •'y^'  ^''  f**  r*-''*  "-^ 

(^  M  «»<«   J***"  ^j  ^^  ^  c^>"  u-J»U.  IJI  ^j-ii/I^ 
'^M^  (^  ^j>l7  ^l^  Jj  '  ^y^^  1^^  '<>*.-  J^  «r^  '  J  Vl;'^  ^'^ 

1755  13m  j  ^j%^  U^  jI  ^UJI  V^l**  ^^V  t^'^  «;if  J^  fcV>^ ,  t  v»» 
jl  l^  Jyi.j*  Slyi   wa^lf  J^  ^;  >«-.^»   *6SAfl  JU  Vd* 


[rM  ] 

.^    fyj]  J  j4S«iJ|  ^^yi  j^y   J  Ail  ;U:A*f|  J   .   ^j,^]  J^  ^ 
Ait  ^1^1  J    ^«^l  JJ:aJ  J    (y^\  J*X^.  ^1  iJjt  ^  •  Hi    1>I  J 

Ailf  ^,ju>i  ji2*^l  ,i5y  lil  *iJ  -  «i  J)  ^  ^  jjiS.i'l  ^  IJU  j.^ 

1750  tjJil.  uJI  ^^yi  Ji«  jA/  »-iJ'  ^  4,^i*l^1  ^^>>'  wt-rtJ  sl^l  I  VIC 

.  ji!  ^i  Lin  ^  ^^yi  jt-o  ,t^  J^  J  -  *4«^;  »«*a'b  ei  t*^ 

1751  Jie  cXf  j^  Jj  ^  ^1^1  5^y)  jia  v»t  vaX.  Xi^ju.  i  v*i 
Ail .  UAj  iAa^]j  ^  yu  !<»«.ij  (Jj:2U»  iJiiijji  _i  ^^yi  jui 

1752  ^  Jjtfl  ^  ^o)j  fi  J^JJi  j-4  «>  ^  ^a,>»u:^)  i\jA)  I  v»r 

1753  iaiiJI  t«J  v^lf   AjU  l«I  j^  JX<  It^^/ti;^   uu*UA.I   St^l  IV»r 


1746 ^  IHJ  w;,sSlfc  IIU  ji^ti^  isJI  Jii  iJJW  »J«,»i  (JtSlb  euMjy  ^  lvi»l 

1747  til**  jWscv^l  c^?"V«i^^  •-***  ^'^'^^  s^  '•^=«J^/>  «^* 

1748  Sj-JI  iiii  )jf^  ^  iJLii^^\j)  ^^^^]  4\ja)  Ji  J^j  I  yi»A 

ya^)  fta,j^  f^t^h^  »u«fl2sii, ^^  lSj^j 

^i).  ^  ^^:JJ^  ^  ij:f3  is>)^l  SjoJI'  X2a>  ^  ^]  J>  ^Ji\jJi  ^  lj«i| 

•  i3^\j  o*»'i  *i>is  ^/iti  jyg  jkj  J  ^-»«^  J«**^  ifittii^^ 

174Q  kfiJU  jl  v^^^^JU.  *riisi  )J^  ^  uX-A*  ua-*U.*V*  J^  «^  '^* 

[••I] 


•  JUl^^  JU)  j,u»i  ^»  ^  u  ^ 

1741  ^I  ^  fJ  •  Jj»i  fnAj-yi)  ^  Ua»  ^  U  ^   w::.-U^iy  J  I  Vi»l 

1742  ^^^   ^j  vVl*4*^  ttj'^ttj"   '^yj'   jAfij^t^U.  J^  ivi»r 

1748  ,^^iJJbii«l  ^jt  li/1  ^Jk>>^)  131  UL*  ^jllt  euil  *j!^J  jut  J*.;  iv,»r 
0«1»JI  Jl«i4   ^1  ^/*4*»*'  «»'  jAis  c:^i)  JUT  y  ^  -  o»lJI  (*i  »>  jl 

1744  .JO  ^,1  ^  UW  ^tJb  ^yiiL.  t^jUfc  ^(f  dS  ^  l«*.^y  c:^-  Sf^i .  |vi»|» 

»  uJJJH  Ji  l^  ^If  ?j^|j  l^SlLi   -*;JUJI  JU 
l745^^yiV  J^j   j*;.>wyW   i<^^j  v,^   l<?.4>^v^Ui   Sl^l  ivi»a 


]^-  J  ^   .  ut^iiS  U^    {^  ja.^  jUJ|  X^     U)^  J*«i     U;^/.  ^ 

^»  -  ^^UJ  aUI  l^j  li^  ^»  Jy*  v_^  vi>^  Ue  {lA^L  Sl^JI 
f^]  hMj»  j;  UiU  ^IG  SJ[^]  ^  ^^yj  ^  ^  ^1  Jj^ 
•^lyi  ^  i^i*i?  A)  t^  JO  JUKJI  jrf«?  iJi3  ^  ««»^  «U  ^ 

1735  a-  «>-a*Ju  ^j^  ©>n  J"*  V«j'v«5^  *^!r*'  c'^  Jw  ivr* 

Cie^l  /UJ)*    IfiU  4,1^   ^^yt  ^    cXf^   !>;    t^  ^JdJ  ,j^   «^l 

•  <Jkf3  JuL*  ifjJU 

1736  jAiJI  Lji  ^Ji  <H»n  (yt^  Ua**  ^  a;I^I  (U.  J?.;  |vn 

1737  ^^>ai  gu:^  *4i  W  ei«5: ^li  ^uji  ^  1^x4,  ^^  u ^  tt*«^y ^  Jvr* 

1788  ^  vj>a^io*e/«  (^  «>^«i,4A^Vjy^U^  t^U^I  ^   IVfA 
U^  -  t4>jj>j  jl  fWI  ^  c-i/Jl^  ^lyi  J'V^S  1>«JJ^*  t*5'j  cf*''  tf*^ 

1739  H^,3   '  f^\/^J^^  ^  ^lk*^  ^^*1^  c:^*U*.|  f}j   \sn 


[  re»  ] 
*>r  ^;  tti;y»i^  wV^l  fU«  ^1^3  «4b  *j  ^^  I  Ail  ^ 

*  5UII  iJjb  ^  » 

1732  Y*  J^aJI  j-M  «.%  U3^  (i  ,,j^j*^  ^  5^  C4>3'J?-;  ivrr 
«;*  S4>"  «a!:;<  V*  »l5^  **^  «A.*U^I  jM  >.T^  bJW  t^^y 

1733  ^£^»IU]  fS  JS)  jl  JJI  })  old-flJI  cJuu    W?-^'  ttK*  ^w*>  '^'  «vrr 
5j.^»j  jLfeJlJii  ^j,;^Ji    \^  J^'^JIJV'    f>.  JL.  *)U 

«-*»>  y  i  -  o»i»^»  ^jJ^  ^  f^  1^  c!^'  c^*  ****''-*  Jy* 

^ji  fXafi  ^  c^ixi  jtJ]  fcjuxS^  t^  ^j,yi  ^j  V  J^«»^' 

1734  yifl  ji  jsi  ji  ^1  Uuaj  iA«*4,  ^  ^;j  ujJ!  ^  8[^»  ^,y  y  ^  I  vn» 
^  c^-fto  Ui  i^iic  ^^yi  joyj  J  -  ji*^/9-  L.i«  ^  ,j;i^  y 
S^ll  str-^.  ^>yi  ^1  Ju»,  U  ^  j;  {f*^l  ^  lfU«  u^iyi 


'=»>^'  ©y  cMi  fj  J  ^  f*>>  •-ijw  ji^i  ^.  Jib;  v/  ->  -  J^'  *^y' 

^yii  I  Ail  ^;  cJi-^  ^1  ^^  ,^/sjJ]  ^Ji  CS..i»IU.I  iaJIm  *sle 

t;  «*»*^  e;*   *«'*».  ^\  ^))  J  -  c^>4  e9^  ^Jl«   jf*''  ei*  "  J^ 
>^  (^  i3<^  e*  v£<«^  bsJUi  (JLaI  ^^]  («f  JU  131  Ait 

1730  «4le  Uf  ^  ^  Ail  ^  jj  ^  ^    Ajb  VW   A^;/.!  5U.  J*.^   I  Vr» 

e,)  ujLdf  fi  t^cij ^ijH  tJji  ^oy u  ^^ ^^  i^ ^,1^ (^ 

JSjfLSj-  ^jlAJ]  Jj^i  ^   ^JJl  ijii  JS^.   ^)Ji*i  ^J» 

1731  «4le    u'*i''^.;«*<    '^-SiUw*   V^  ^I   ^H^,i^     <     »«'^y^   ivri 
»^^^   iJ^U    A«jJlk!  £2j  Ajklc  ^jf^  I  «i)  ^  ^^  ^  vfJUSi 

y  u  Jjj^  jikii  ^'  o)M  ^1%)  icwu  u,ii'  A^  v^>«^ '  «>i 
^^  ^IL.  i</  ^  Ail  j^  ^^yi ;  ^UJi  ^  w:^)  I J*  ^  VV» 


1725  *j:JU.ji  cJJI  ^  ufi^JU  jii ^IjJI  vrJl^J  «,!  t3]yi\}\}  J».j  |  v r » 

1726  Jits*  LXjJ  ^iJb  >  ^  IdXj  iJX«  ui^«lLi.I  ^a.;,y  vj:^l$  St;^)  I  vn 

1727  i«Jl  tii  ^  •  u;^  o"^  ei  "^^^  ^^=^^  clLtii.  *s]/»i  js  J*-;  1  vr  V 

1728  u  ottJ)^»  -i.^*- JU  j^j  lii^  'iJ'  »»<i^  jsy^  ivrA 

JaS>Y  U  o«W  cSj  (.J  ,.A;J  u-WI  ^5!*  «JSJ^  I4J  JU  y  Li  -  jAsy 

1729  *siJ»^j  j^fiJiLJu  ^^^.ju:^.)  jUjiULii^^lVJ^       ivri 

J  jjr  iiit?.  V  -  oja^ij-jyi  Jib  ^  oJtkii  ^.J  L,jj)  fjjb^  ^^^ 


[rcr  ] 

^UJil/lA*^;   *i^^\  J5   f^jd   UJ]  Jic  I41JU.   ^U&l 

1720  c;  A— *-^^  i-i-rt^  js  ii^i  J  jjji fciii  ^]^^jij  ivf 

1721>>T  ^j^  wyi^jA  ^i^{lVl«,(f  iJiUi*,  ivn 

1722  ju.  jibJi,  8i;Mi  cf*'»  ^  5j*iiiau^  5,)^  j|b>^  ivrr 

1723  i>ytjii- tyt^ ^  ^uyi J Aiy» xsa5 ^ i,]j^ A^^^j  « vrr 

1724  fUj  J*j  djyi  «>u  ^u  t;Aj»^  ws-jyi  Ja  Jic  i^i^tfl  c»;V  IJ»  ^  I  vrf 


JXkJI  die    U^   Jl    -  u)^««**-    iJ^^  J  ^>   t-««ai  yU^   t«j^ 

^jA.;  «Uf  *^;  «j>iA.  fc^l  <V  «^  ^;i^  C4*f  «/*   ej>y'  U  M?*^ 
J^Jll  JuS  JlUl  ^y«4ri»i  <*t«i ■>«!*.  ^1^  ^^  k&M  ^j  *ii^l*  die  ^ 

1717  *lll  ***v  Suui*.  ^1   die  v!^W    SIjM  ^   cfA*!  «,lf   J  j   >  VIZ 
Uojl    «^    vi^l    c;  d.-*^  die  J  -  «die  ^f^'l  ^   t>;id  U  ^Ui 
5l;M  ^  Vl^'  zJ  •-Hi  ^>  die  J  -  idie    jfAfl  ^   U^d  U 

»  ^^UJ  «UI  A»ay  XijiA.  ^1  die  jl«I|  ^  U^$d  t. 

1718  Aj»  i<#lyF^»  ^;  d*«^  J  cJu.^  ^1  die    U;4♦^  ^1  JU^  t^aUk  ^U    (VIA 

U   *4J  vlyp'l  LI;,;  ^  J  .  .die  jyJ|  ^  b^d  U  *ji  vl/y'l  h)^) 

iw«  ^^d  »»y»T  *SL*  ^j^r  j^  u^-  J  f»>»  i-iJi  ^1^  it<  J>^«*" 
V  Of^  i  •-<>''i^  ^^  <-*">^  ^;'>  vJJi  JdJi  ^  ^jju 

•  t'*'l  4>yi  '•(or) 


[  r»-  ] 

17l4i  ^^  ,y5 J  f]j:in J  ^)  hiL ^,  ,i5  J  ^]  hiL  ^  As  flaf]  ^  ivlf 

jSi  ^^  frjLy.  JU  J^  l^U.  ^li  jfA*!  &AL  jl»f|  ^If  ^li  -  ii^JliSit 

Slyi  c:^lf  «,U  jtJ]  ^  Uy  -  JdJI   V^i    Slyi  vj;JUa*^I 

l^;*-   e:,^a*S  ^  i  XJ^ju.    Sty  I  ^  fJ  «,!  ^  -   (Vy  i_s*  tiji^ 
^  J  jaJb  («il«  ^^yi  5»^   ^UJ  aUI  *— ^;  Xftji*.  ^1   a_»c 

*lrJI  tt/*V  «>'  ^  ■  *is^'  ***'^  U*.kA.)  jjJjl  _,  ^1   5i**.  5;jyi 
^  ^    .    yU«.*sW   l<4lc    j^ji^l    ^ji    ^U2JI  ^i    U;^   vjt.sAji 

1716  ^je*  3  ^jv*y^  ^  V^  cjW  V  i>^  »J^  ^^  c'  J  '^''' 
X;'U»  t^jjlc  ^^yi  ^)  uij^  j^JS}  tij^^'*  i]j»i)  v.aJI^  B^  uJJI 

[  ft>  ] 


Cn*n 

1711  J^  iM»  cK^^  *^ii ^  u-^i  *a«i  ft>)  yi  ijj  jiwb  jjjy)  I VI I 

1712  ^]]Sij  .  ^^y]  ^u  ^  ,^1  y^u.  JW  oikJi ^  cLfc^i  1  vi r 
\iXi]!i]j- i^\i  Jlyi cuiif «,) ^ A*K ^^ -  V^  ^ 8ly)  j^ 

1713  otoXfiy  j^  j^i  ^  sty  I  u^v  ^  «.Uji*ji  (.K*.i  ^i^  ^  I  vir 

(r ) 
V^^  C4>"  (^  V^;  e*  ©>"  Jr*5  J*5  u:^^;  fj*  cf^^b  Styi 

^jjUij)  JV4J  j^ij  Jtyifiij  .  .»^)  j^^  \i)  ^^y)i«4c 


oJ*H  ¥y  ^a^.  cj!>n  6*^  J*s  ^^  l^l  Ji^^J  J  •  JiV'  o"»  «;^ 
U(i  i^b  liaji  jiv  1^;  jf,  I  j)  U)  ■  ipj^  j^yi  j^  juii 

^  ^  tM>*"  J^  J*^'  '■^J    ^>*^  ^;<i  jj  1 31  Ail  -  **u«  ioi 

1707  ^tiJI  tjUai^T  v;  JiVl  J9  Ji^-^l  ^'  o>*»«<  v*^  JJj  J-.;  i  vv 

1708  JiVi  vV^  ^j^l  t— ^sJki  jiLJ)  y  ji_kJb  u.;  jj^y  u  ^  i  v*a 

1709  jyi  8>«<  s^OJI  J-Ai  «>  JiVIJJ^IJI  ^Ij^l^j  iv.^ 

•;u  Jjjyi^uti  ^_^i  j»«  y 

1710  0^1^  Ji  JV    .^e    U^A^Ij  JXJ  ^J^   C''***^^/*^    fVl» 

J*jyi  oU  j^  UkJo.1  c:JUcI  Jijyi  JSi  IJa«  jI*4J  U.;  ^y I  ^ 

^r>*^'  ^  ^  •  u^  «>>i^  t>Mj  >  J  crtyJl  ^  J?  e)M  Jy 


Cn»v  1 

1700  ^  jJ  )iA  ,^J  iv^d*/,   Jxf^  i3^k^jjij\i)  IV— 

1702  V  tjiiJi  v^  mJi  ^  -  u^»  Aj  dyiij  ju<  jikjL  mf,  y  J  I  vr 

•  slyi  jj  ^  ji  ^,yi  j^  ^  ^^  uif 

1703  V"»  fi*  5.»*l,  Ud*.l  VU»i  UU*  Lu^  UUlfc^y  JUy^  ivr 

1704  JiyJi  l«JU»  JVI  oJ^  Jj^J  Jh  «;ir  fJ  lil  o»^0.  J4y^  ,v(» 
Usit^**aifcd-uji^lt^^yy^^^y  J$^l  ^liu  J^jyi 

•  Ji^l  c*^.  Jj»i)  iJi  -  ^s^  fii  i  KoJi^  cJJO  iaJttiJ  J^yi 

1706  liSlke  jjii  iJJb  i«aub  «^  ju  ^j  usi,  is^ikj  *jt^»  ^yfc  J-.^  1  vi 
cui*si  wiJW  JiSyi  l«sit  ^*  5a*ft^  ^^yi  i^^y  ^  j^yi 
jftjyi i^aiki  JiSyi  o«t  J*5 ©>"  U^^y^  (tjj:^\i va^ib 


^if  idi  t>nt  c>ii  Jjiyi  w  J^  i«»i  ^jJt^i  j>u.  »>»»  jjy  U  J 

w:;JU.j  li)  jW.  o^l  J49I  l«J  JU*  ^-1^1  tjU,  JU  y  U  ^  -  IbO 

1698  y»^  Jjjyi  wi  jua  ii-ij  tsu^-1^1  jifc  »^juy^  im 

^^ i^y>  ji^  iAcJ^^  li]  ^S]j  .^^  ^ I  iA^in^ji  131 

^  i  iiijLs  JiSjf]  guki  i£^  wJuoi  ^1^1  jU»  <;s»)  juy 

1699  ^  J4iyi  V  JUi  wiJU  mj  UU  ^-f^l  jlt  .^  Ji;  J^^  I  m 

v^JGi^  fid^l,  (2j  s2Jl«U  t.iJW  JuJU  ttU  jlU>  1^1  MuJI  i£^j 
v:;JU2i  UJ)I  u^  *i^  ^{M\j^^  J^jJi  ^2lk  JU  .  uJJ'l 

y  ^ .  u^JUJiyji  ^  xiJUJi  i^by  u  J  -  ^^^  ^>i  5?* 
jj^yi  i^  fi  ^^yi  i|«,y  ^*  i^ni  u^  a&jUu  i^  JjL$yi  («sib 
ujoii  i.ii  J  •  •-«/:ii  u^  «ft>tAii  (2j  k^ii  uJi:u  ,1^1  ihikt 

•  «*yi  lift  ^i£ 


•  tfSikjUiix^u^i  j(sy  tjij- j«Kf) 

1695  •Jy*iji»i,j^JiJJ^i)^i}^5^^\i^j^\o^<J'yJ^j  111* 

1696  >um^  J5  jlt^  hJI  tW**!  ^/^  J--)  •»«  a^V  0«>»  J^Vj  <  "111 

1697  tjAtvj:^!  J49I  V  Jl«  *i-JLI  iSjIk;  ^'l^l  jlt  »>J  JU  J?.^  1 11 V 

•  tstfi  ^  (  u;  r )  •  fr^ij*^  »**  ^  ( o  r ) 


1689  *iU}  j^.u.1  J49I  f^^j^\  ^^  tjiSJ  Jii  iy^  gyl  «I  J^j  I IM 

©>"  J^  «»^  vV  ViN  *^^  d?-**-'  Jftyi  jity  U ^ .  Jijyi 
ii»^  u/a*.  u^i  ^  ^t^i  jit  yiJ  Jb.y)  juy  liJ  J  -  vAyiii 

1691  V"^  *«sUu  XSxlkLy  iSjJftJ^/  Ui**  ^}f)j^\  tjiH  juy  ^1111 

«J^I  vaJU-.  Jisy  IJJ  >  -  *i*?.;  SJ^lj  {Jb  crVl  ^  wsu»  Ii» 

1692  ^^uiiJ  JftJy  ^  t«Slki  I^JL)  JUy  t^^vl^'  (^  •>*  *J^  ^-^   •'•^'^ 

(l*> 


[  ffr  ] 

•  yi^  byJW  J^M  J4l«J  «,J 

1684  *J«i«  mjki  fL«  ^i  J«s  Jj^jyi  i(2ihj  *j|^j  jiiw  vu  jj^y  J  i«iAi» 

1685  ^1 J  -  «;u>  ^1  t^sUi  ^  j^yi  ^  i^ja]  jiiu  u.;  jf,  j^^  1 1  a& 
•  uu«s-i  ASik  ^  Jjjyi  jifc  ^  j;i  ^j  JaSj  ^^  jjfyi  v-^ 

1686  ji  y^^  ji  o^U  J  ^\jA  oth^  ^l^j  «:^l  .^  JU"  J^;  ( ^  A1 
JiJyj)  jU.  *il   .  Ma^^  Slyi  *UJ  j^  Ijf,  e/^i  fJ   oj);! 

tjUJI  ^1   .    Jk*J  J    ^;  ,ULJI  v>«  JU  J   .    *JUy)  JkJ  jlbJ 
HJIW)  v!^  j4*^l  y«  -  cr^'^)  J^  r*"i  «  WJ«t  ^  ^Ijf^ 

1687  ^  AjU  ^^JL4  «,!  ^t^)  o»i.  ^  ^^  ^aJI  »;iAf  Jliy  ^  1 1| av 

1688  *Jb*/4*'0  ^1  ^  ^]^]  JW,  ^  ^j  vaJI  «>/  JU  J-.;  haa 

•  v5»tJt  o^  ( tt»  r  )  •  ^t^^jy  ( «;  r ) 


[nr  ] 
1679  J^jyi  JM  .><^  c"^  V^i;*!  jiM  i»*.^^-  viju;^  i^i*-  II VI 

^;/*-afl  jMJUUlyl  Ji^OiJ  i/U*  *;/A  I;  A»«i  .»;«Afl  e/^^r-"*** 

1680  ^1  Ai'  •  u:JUb   U«iJ^I  ^  Ajt^V  O"**^  *^^  «^J<^;  II** 

1681  i-i-JI  ^i^^  ^  ^  l^alki  UJJ  aJJ;/.!   jttiJ  I*.;  J$j  J?.^  MM 

1682  VUfc  jj  IjLi*-.;  y   UiL  J(^|  l^  ^*  AJt^»  jl^  l^j  Jij  J^j  1 1  Af 

jj^i  i^^y  j^*  j4$yi  vuLi  ^  ^u  .  ju<  JxJyi  o»»»  ^  y  iji 

^ij  J4jyi  jiki  J*jyi  i^  ^  idjg  ii4«ji  J  sjyi  ji  ^^yi  dj;i 

(^*  ^*.j5>jj  UU/.  .»iey  ^  ifuyi  t-sJttw  A^***  ^«-»»in 
ju,^if*ui<oi4*n^j4jyi  ^yyj-j49)»5"»eb»j4iyn«5U. 
,us  ^  .  *ji«^  ^uj)  ^^  „»• "  H^'  ;i«»^  tH  «»» J  JJiyi 


[iri  ] 

1676  JaS»  I;JJ  ^I  iJjb    ^lUc  J«|  y  u*  ^1^1  jlfc  »;4*J  J;  Ja.;   1 1V1 
^1  V*^  J   O^l  J    o>i»JI  Jifi    J*9I  ^A*^  »    tMl  ^  3  JiVI 

^J|  ^jle    ,_^  ^  jAi\    uSL*  ^   *.J^l>   %ja\  Uil  »Jj J  ^  J 

1677  y;-  ^^As^  ^  *y  jP*  iJl^l  oltu  t^;  Jfy  ^1  al;)  J*.;  i  iw 
wUw  elf  «,!  J  -  *(>«  ^  8tyi  wUv  Jfti^l   tt/^i  ^  «,!   »V 

€>>"  s^  S-^  »  O"***!  wP'  -  Sty  I  UrJ^  Ji  «,!  j  JlklU  Jjjyi 

1678  ji*^  J5  ^^^^^  «-%•  uuju;^  ^^ikju  la^^jj^y^  invA 

jyi  *ja*i  Ail    ^4«^l  ^;  ^r^'  *^''  cr*^  f  ^*'  ^  tP  J 


1672  ij^J,  \^j^  l^  fS  *LJI  J*  ^  uTj*^  UfjA)  tS)jAi  JG  Jj.;  HTf 

1673  Jis  -  *4i  i>U^i  y:-  ^^  Jjjyi  V^  *'V  o«^  ■?-;  t^^  J^;  <  '"<' 

1674  lyiii.*  «iV  Jjiyi  jit*  uf>?r*'  ti^  c^  *-^^  X"^  JIS  J^;  1 1  vi» 

ZJiryli  «>j,^'«   lcUL«  a/  c>^  UlL*'*  JayJI  ^1  ^1^  Q,U   •  L«l« 

yifyi  vaJI?  Jii^i  ^,j,^.^]  ^;y.i  gL*^  ^i  fc-Caij  juy^ 
J  ci^tiVi  ^  Wj  «,if  Ai-JL*  yu  ^2^  j$  ^  ^uf,  ^  juy 

1676  i,»;-ill   XiUfc^   Jb^l  J^  *j1;^I  ott»>  *lJjy  «,1U-J)  **;il  Ji*.;  I1V» 
fJ   *iV   ^y'  o"**   «-&i^   ^(^j  v^^u^lu***''^ 

jiyi  gs,  ^  cXfj  *i^  cM-4  J  lyu  ^1^1  jttu  *iiji  ^  jir«J?  J5 


[m  ) 

Aj^;   ij^  jitk  bsJ)  Ji^yi  l«l  JUi   ii^b  «iSiiu*   (^  Ji(^ 
1667  ^r^«^><  V^  «>«*  ^^'  cf'Ns  tt/W  ^V  d"*  Vi^  J^  Jft;  MIV 

Cff^   i\    t>»^  i    cPy  ^    <»<Htj    •  ^U.    a^4«*  jtfu    eUi    t^^Aj 

1668 y^-  Vy  «Jii ^  ff  ^_^V o*^ to»*  *iV*  V*^  J^  J^J  nt* 
^^  I  *^  ^  *iVl  jlki  ui^l  jf Vy  J  •  ^jl  IV  8;t-^»  ^ 

^  .  1^1   JlWl  ^Jki^  J^  flXJI  iJjb  ^  .  jlkJI  ^a^   j,,^  Jtt 
V'  *>?-  «>^  -  ^*"   0«1»"  v^*i>***  *i5y  '^*'  f*«  ^'  *«»'>^'  'J* 

•  *^  C^;i  0' 
1671  •  o»i»''<  ^'*^'  •»>**  *  u;*^;  **«  «s1;/«l^l  J«?.  tV;  I IV  J 

•  ^«>«  ^'  ( jtf  r )  •  (b!ji  I V  ( «» r ) 


fiii  IIU  ^^  ».a.JU.  c:,JU»  JJ*JI  yli  jj  ^  ULii   ^jatt^JU 

1662  yj>ii3^  clJlai  ,>-Jk  Jl«  /-^y  J^i  ^  \fi^^  vj;-Jii  S];^!    If  ir 

AjL  la-.  1;  u  ^^  fi;«.  ^^y  i4*;Un<  ^^yi  jua  uu  ^^ 
***;  **i*»-  v^  Jy  os^  '^i  J  •  c-'  *^**^  ->  •-**»<  i^'  «V  j/« 

1663  c^JUl.  taJUU  ^  JUi  ^_^  jU»l  ^)  «i^1  t^j,y  «;Jl#  5|^)  i  "mr 

•  ^IkJ  II  vj:><j>ttLi>l  ^  (_51ma*  ^«SU>  «J^ti;  jJie 

1664  JU»  j^^^yi  jSi  UL*cXl|;/.l  tjU»)^I   Ai^  «;xi»Jl5  J^;  I  111* 

t«  >  I JA «,'  *4«-*'j  J  -  isw  t>u»**  yij  lil?  *-^V  ^^-*^  J^^ 

•  «yr  oVUI  ,>:>y^'  J»yt  at;)  )3I  v3Vl>l)  cf^  U>i   ')>«  f<vS? 

1665  J«v^w  s^y  ©>"  tf'f  «»•  ^*  Ji(?n  M"»*  o«^  'i;ii  Jij  J?v  « ii» 

di^^r^^J  «A^ly<  fJ  «,!  ^  -  OU  c:^Sll,  u^iSR<  Ji$yJ| 

1666  Xifl*  Uiait  tMyi   l«J  ja   Xxi.*.;  ^t;-!  jlfc   iJ^jiJ  JU  Jj.;  fill 

•  £>jJ»  C  u  r  )  •  sAV'f  ( u»  r  ) 


[  rn  ] 

1658  w»J  ^^yi  JUi   f^Kjk»  l^Ifcj^j  SUl^UJ^cJ^^iy^  IISA 

siii\  vJi  jjiki  ^^yi  ^^  J  6ijs  L.  j«)  ^  j^y  u  ilyr 

•  uX&Jb  loiyJ  ^ti  tjifi  JJ^  J   aJI 

1659  ^^  ^^  c-rJi  ^  l>  «,•?«,»  L.j-i*'!^  t^jy  fc-JU  Sl^l  I1M 
»aJIS»  «li<lj  ^    ^c»j  ^    ,^1   ^_j)fl    jUi   ,*.uu     ts>JiIL»l 

ay  ,_^5  ca.sih  *6»tui  ly I  ^  ilyi  jyb  01*  jikj  t^u ^iJsi 

Sit  J  j  ,UU  Afy  J^l  Ji  ^^1  5^  ^y  ^3)^^  W  J^  (>  ji  ^ 

1660  UJJ  Slyi  J5J  ^  L.  JlkJI  fSi  31    jftt  Ul  ^^  A>1^J  JS  J^j  Ml* 
JU«  ^jlkJ  l^U  jIU,  V)  ^I^J  JJ  Jy^I  JI5y  U  uJlL« 

1661  *i^  ^^  f^J   5fyi  vsJUi    f«  *i1^I  ^j   *i«cf^   J^;   nil 
^^  l«*l«  5^  J   oys*    r-jJI  JUi  on;  ^^i  siJUfc  c^JUi   jOjJI 


IdBS  (j:JUi  ul^J^   iiti  ^]y\  j^\j   \^AKiUf^1   i3]jaS  JJj^j   |«|»r 

I6&5  '^  «|^— «»  u:^Ui  W^  bXl^tk;  t^Jb*^l  Ail^l  J«  J?';  tt«* 

1656  jwsJU.di  \£)^  »-/^U   ^  ;bcsJU.j^  «Jt^l  Ji  J^j  net 

iJii  ^  v-,JS^  J^  -  w^Jlfc   «,k:jl  vilJS  Jil^-   ^^  ^Ijfl  ^ 

I^U  ij:„.Mf^>^  LJU.  u:^iry   lJi$  ^  •  UjO^  Jk;  ij>a$^  iSjM 


[  rf  ] 

164.7  ^  «»U  US  UJfti^ll  „!;  ssJJl\Ji*J!^.  Uy»)  UJ  Jlsy  ^   I IfV 

*tM  iftt.^  «i  (iS«^  J  Sd^ij  s^  i=»u  y  J  •  Ujiftj  ^1)  „2^  1 

1648  l,«.^y  1^  V«»  ijrJOki  iJuJI  <Ja  ^  Wa^  il)^|  (<}  JO"  y  ^  |<ti»A 

1649  Ja;  sji^i^t^jP*  iLj|«dJb^i  t-/jLJw»iJ^)  wjisy,  s'tf^ 

1650    jyjJI  ^  «S»J;*  Ji  JJU  ^   Id*  J     f^I  «JjJk>  wSJ^I  AJI^J  JU  Ja.^    1<|0« 

I4I  c»UJiy)  ^/ij-  «-X»J  J-«  lt«ii;ti«'"j5,l  V  u-if  J  -  *1J  JJ»< 

vj:JU;y   IJJ  J  .  j/*;  «U1  *.*.;  iii*^  ^1  Jy  ^  ac  aiw  ^Ua;f 
•  ^l4*'l  Ij)  JUS  *Jil|  «^j  Sa^  ^1  J^J  y.f*J  ^^ 


[  rtr  ] 

1640  kjJLa  ^Ui  h\  ^^  V  Jij]  Wjxi  ^LJ^I  All^J  JB  J».;  I  ii»» 

164.1  i-^  y;«  ^l;^!  «,!  *1^J4<  tf»«*ltJ  »A-li^»  *JV*  JW  J*-;  Ml*  I 

•  M^l  fcy^  USU.  ^If  JjJyJI  «;».  -  jttw  > 

164.2  t*J4>^3>l   ej^    (.y  5r>c  »i5»  "-/^   H^l   A'V*    <J^    *^^  •'•l*'^ 

164.3  ua«^ji>-»i  J  d»i  ^  fU  «>^  J5"  '^•*jw  HJ^i  V  J*'y ^ . « ••ir 

•  >U'*  J*)^  IJ>k(&)  i-ilt^  Ail  91  «^  aUIs! 
164.4.  j^l  »^  ^Jl  c"^  J^  ,15"  •-^'^  s/V^'  *>*  «>V  '-^•»^  ^  '  11^ 

1646  ,1  ^)j  ttyli^l  j'  ^"  *»•»/  "-  j'  •>*  **«*«  V  «-^  ->*  ■»   '**•*• 

1646  U^  ^»l  J^  ^^^  ^  >^  ^'^^  '^'  *r^*^  "-{<•'  V  J«y  ^   « irM 

[IT] 


[  rrr  ] 
jiLj ^ lyu . 43Jufl4 w  o»t s^}j^i **-^ *i^J  -tin  jA^  » 


1637  Ji  uXaJt  Vt^-jy  v.sJta  o^l^  Ua**  **V^'  J^  «^;  •  irv 

y  ^  .  SllkJt  2^)  J  UlkJI  ZyiiVI  •-*>^  c3>^  ««  ^  z^ 

1638  ^1  v^  ^^s-*!*  '^'^  (^  '^J^  <^^  •/'Ml  V  J5y  >  lirA 

1639  ^  jJUJ^U    UJ4i^JI^;i^l    U.»«*Jt;^f  ^1    J*^   J*.;    |«(rs 


[irr  J 

1632  U44  V? «sr>*i  f'*  f!/*-  v^  (*>>»"  »j» cM*  f*lp *^^JJ^j  tirr 

1633  J  ii^yi)  «4»  .-iUi.1  It^y^  f*  r!;*  4^  -^'  '***  '^'^^  '""^ 

1634  f^*.s— J;  «.:^«»*  if^  J  J5  fJ  rl/^.^^  «»fl  JU.  4^  Jftj  iirr 

•  „^(^^ 

1635  fl^  ^   vj>JI    U^  jl    WMiifl  iiU.  ^  $31^9   JS  J^;   lir» 

1636  jlW  «<  «».>;l  U  J5j  ^]^^j».  iSJUk  liAj^  *7t^l  juy ,  mh 
•  iJ—iOt  ««yli  (  o  |e )  •!»<»*  iJ— JU4  t4>jX  f!  .aj;^  1  Jt»  («  ^>^i 


1626  yi  ^  *»l  JI  oM»  fWl  »^  ^  ft;*  ^  w-JI  *iV*  iP  Jft;  «tri 

y  ^  .  jtftii «{ (jjU  jr  loJic  usk  ^ir  u  Ai»  •  iS]^]  «^,jau»  jUJt 

(;«4    fl;..  ^      U>il     *I^    ^   fl^l  ^      ,^    UfcJI    Aii^jr     JJ5 

•  mI^I  Axle 

1628  va*-.iyif  ^^  sa^]  f]j^  *^J^i  vjt—i  fi;*  ^  ^  Ji  J^j  I ir  A 

1629  XftiCJW  ^  o>*JI  JA  ,15^  J  ^-v"^  ^A-JI  ^y  AiV  J^'  J^^  M  M 

1630  I  ^>.w>i  ^1  vA^isn  ^y  ^  fly.  ^  uij)  «j  «;s>V*  juy .,  nr* 

Ji  -^yiJJ  «jl*  J  -  j^  U  ^^  j^rt*;  «UI  *»A.;  *i^yl  JU  J 
1631  ^  ^  5d^yi  ^   e^«  ciy  J  fb*  ^  e/^'  ^■A'-AS/  J5y  ^  |  vi 


[  rr* ) 

»-»y\  fl  iP  Ji  i    '   iAMi  (aU  fisji  tt)1  )  >  ii^j  IS&lki:^  tj\y»)  aU 

1623  i>Uj  iy\  »SjJ*iJi^i]6iJ»i  JiJ  &aUI  ]Se  ^iJU^  ^^  I  irr 

J«  y  ii«J  ^  -  ,^  Ji^i  fif?  J .  ,^1  «>i  4*1*  is^if  51^1  *J 
vsju  ^j^ws'i  c^Jfj  »Vi  *»  ^ii-»»f  ^  ^ .  ui»  fW  I  *ui  ^  JB  y  u 

^  .  8>UI|  «^yj  J  \>ji4\jJ^  fS  8d*  ^1  J  ws^U  ^1  fcysJI  J*J 

^^1  Ajsii)  ju  .  *4i  i>u^t  t^iyit^  jj  51^1  ^^yii  ,^^ 
i625yj^j^  jiyOjj^^  f^ lA-i;  «>-w»j  A^.^  jiyy,  iir* 

cs..««tj  <^  a(^  )•>*  lyii  fl^  t:/'ji  (^  *^/  ws-^l;  utr«.«»;  «^ 


£rn  ] 
1619  tJj\J]  «Ja  ^  u^  f-i^  V;  u^  j^yi  f  51^1 «,» y  ^  1 1  n 

«*<^  «Ulj  All  «!iar^l^«,l£^|  SJ^AaX^uP'  •  A*X*k  SiX^'i  m-am 

V^  fiJ)  fii».  jj^.  ^  j^  j^  i^iw  jrf.'i  fi:**  *4fl  u-i^i 

^1  ^Jl  UJ;  fJ  J^l  c^yi  fl*  >  ^  >T  ^,^  sly  I  c^,y 
otWI  ^y^  f  ^  >  u;*^)  «,«!»« v^l  ,^  *ftfl  U-^Ji-l  ^  ^m 
^  ,  .  J^W  jUSJ)  ^  AlUUj  ^^1  ^^yi   ^K>  ^J  -  <*X».  iaij  i 

1622  ,j;iJWi  J5U  JJ  ^1  aui  jiu.  Jj  j«  j)  f)j^^  tK  Ji  Jts  J-^;  1 1  r  r 

( f ) 

^^  |. ;  de^  ^j^y)  i  i-JlCII  ^j^^I  ^^;i*^  ^)  *i2*J)j  uUiJI 


1616  ^*ht  '^]  f^   )<He  iJ^^^  AiX*)  J^   Ji  JL«J»:;    MM 

1617  ^*  aU  gut  J  \^,yi  jJlfc  oJli   ija-.^-  lot   Ajf^J  JIS  J*;  I  «f  I  V 

AiJ .  ^. »  ^uji  ^u  ^j/i  ^  ^uyi  ^)^:n  v-^;  yi 
•  ^  M  ^lo/i  j«^^i«^'u  uu  jiiu*  v.*y 


J-.I  ^^  SdV  ii.)  J  JUW)^)  ,^^.Auyi  ii^i  ^1 J  -  »>u;  M^j 

^'^  ^iill    k^iiU)  ^I    .-iWl  'V   131 3-^^Jj   J^h 

cji*  v^  «V*'  ^-^^^jyj  ^t*-"^  J*j  w>*i*  ufcjij^Mi 

(M.  1^  «&U)  ^jt^  J^jj)  Jxs  ^1  i^  ^jj  ^h-jj^ 

v_^^'  JA  c'^'  '^  f^l  ,^^^'  e/-   5!yi  v£^*U,  ^  U^K 

wu;  .uuij  Uxn  ^1  /U*<  ^  vy  3  ^1  (o^^  J^.  ^s-*x*., 

^  J  ^uii  >U/.i  ^1  «*-^  ^u«i  3»  ^ .  »jji«y  sty)  ja;  J 

1616  «,!   I;y  V  JU  ^g  UUil  Styi  li*  j/*   AS*  *-iJl«J|  ^If  ^1  ^  im  |  o 

«Jjk  ^  f t_iS*  j^  lili  by  vjii  J*  JJU»  ^  i)/*)  ^.s^jyS 
c:JW  tjj*y>»*  I Jl  5!;^>  J5.«,lfy  i-(^yi^  ^  Jh^\  ^  Styi 
id».lj   ^j^i  jilj»  cs-JU  iJi*.^^  1  jl  ^^1   5};^JJU^*  jJU, 


1610  ijjy  iJsJi^  yu  ^  ^yii  AS*  ^  ^i;<;i  jf.y  juy ,  mi* 

1611  9jr*  0r^  tjirfi  J»»iV ^r^  d5«>ft^  J  "-y^'  '>i;'  e>» ^  «•••• 

1612  y  A&**  ^ >  ^  ^^>*  y  ^/\  S4*V>  y  xx^  Jisy >  Mir 

1613  ^>^  *?.^>*  Ji^s^  s^^^  ^"^  ^j^yjiipjfj  iiir 

•  fi]  j^iL  ]ji^]  ij!i 

1614.  ci>-.jy  I  Jl   JS   wJb***"s^  '•''■^   efi**"^  <5i>  W  11 'I* 

ifr  ] 


iff} 

u  ^4«-i'i  ^ .  oU*»  >  o«i^i  J>ii  i  'UiiJH  ^ » J  jj»i  tan 

1607  jJkXJ;lf  ^w  *J  j«iwA4Lj  ^^j  jjbl^*$  ^;yk  Jisy^  l«|.V 

^  ^jO  -  jxfi  «u«  i«u^;i^  ^  -  v^  «s9^  ^^^1  ^^1  <*^i  ^  y^ 

1608  ^  Ji.AJ«>l  -sljiy  6?>i'W  J»W  t34i«'  ^  ^iJI  jjj^l  ^  ,  I i*A 
fiM^  dJj[^  «/-  J«  ^  f^  45"  'i^  sjr^  *^}y'  u»'  ^^^'  •>!;' 

i\jA\  jJUl  «*.jy  y  w:^!  ct^U.  ^^  ^.KL  ^  *^^.v  tt^ji 
/^l  ^  81;^   icUVl  «/*  J*lj   «»-jt>»   O-l  «-^U.  ^yJu  ^!a< 

1609  ^t  i  jyp'-  «**l>^  >^J  }/*  *^  •ki'-K?*  ^^  **l*V  Jt*y  '•i^  i  I1»1 


•  *«^  UJl^  juy  ( ^  r )  •»!;»«,<'(  tt,  r ) 


[rrf  1 
1603  oJi  jUu  ^y^  y^jji  ijik^\  issji^y,i  ji  uiu  ja.;  M«»r 

1604  ^;d«(Jl«  IfJik  u><u<tJU  l^a^yi  il^l  Ji  A!l^9  JU  J»,j  |i*i> 

-^  i  oAj  jy^'i  ^^y  „,!  J*»  »•»*«  u-j<f  ,^  (.s-Jis  45,1  J 

•   H^JI  J**    J^    uJii  «,»    .  t4l^ 

1905  U  ^j^j  0«lw^j;l   JL.^»U  a^);^  «f  ^y>k  Ji5  J»;  n»» 

JU  .  ^^1  J«j  .iAaL.^  U  U)/J\  i^  I JA  tt/^  •>i^l  «>*  -  u/WJI 
Sl;-I  J$  *J,5  J  ^  ej^  Sl;^I  Ji  *y  c;  e^^I  *— iSiJI 
«>*<  ^4>»i  «/*  J   **''^  ^s*   '^^'^  ««/*  «i«^  «i'  J  -    '!>•   *t^?>^ 

aftii-^  U^  «jJl*^l  uy  J  ^  *2^  ttfi*i'l  ».=-^'f  «i'  V^  ^^ 
a*j   l^^^  ^  ^   Sjil)  j,<aiJ  *ij^  ^  XilUl  v-JU.^    jj^  J«« 

•  vj:^^  |J  j  j^  I;  y  «i  ^Jj^iPjf  )'»i  J  -  •»4«*-«i  U*  ,jt^\  ^j* 
1606  c;  ^  ^lA-  J  OA^'tA/.  JU  dAlij  Ayi  I;  ^1  A$  ^;>fc  JUy  ^  I  fi 
J^l  ^aUI  SoW>    J^U-  A4W  ^  AJr*  e>'  -  'l^  V^yi  ,J   J^^l  ^  IJ* 
^^1  <Jjb  <xLJj  J   ^;  JiS;*-.  JLU  JU  i  -  J^l  ^  **  ^^xiv*  t* 
^liULI)  jL,  "Uiji^,  i  yiX>?  J^JI    oUI  U  JI  jjuo  J  ^liJI  ^aUI  ^ 


[  fff  ] 

1598  JutU  c^JU  jllb  ^  U»U  ^^y)  ^  U  l^j^I  fl^J  JJ  JS  ^  ^  I  »U 
\j»\  -  o^I  ^  jlkJ  t  J  .  luiiJI  ^   <A>8lb  U;4*  ^^^  uhI«  j' 

^*  *U|  U^^  d*«^  J  XixU  ^)  cP  ^j*  W-^  *  •V  ij*^ 
•  iSJi  <i*i  tA^lig?  li  «syJlj  Jk^  AAJL^i  Ujt<XU  ^,1 

1599  j^  ^yii  *L»  l^:,yi  jW.  ^    XiW  yj^^^yi  J  JU  J-.;  I  oil 

1602  f^b  ]jj  [i  ^yj  fkd  ^j-^  )j  ,jfcj^  ^j  ttf^  y  JJ  J?-/  1 1»r 

#  Ajjii  (  ^  r  ) 


[rrr  1 
1690 y^  - «1h ^i» e^^ %^*  e>^  ^j^y^jyt^J  wiuj*.;  i»^* 

1592  •»/U|  ^  «>LJ  ttiie,»  *f  «,tf  J^^  ^Ifc,  8l;/.l  l^>  J  U^y  l«»0  « »^r 

1693  «;»-  ir  uo^  e/***^  «**^  ^!;^^  e^>"  !r  ttr^jjyHi  »ju  j*;  I  ©ir 
<«»V**  ©>^y  c;^>  -  In*-  '«**«***  **  tt/<«»*^  cw***  "^^^^  ^ 

1595  *il   ^jAi  >  ^  l^^y^  8f^l  Ji  Jtt^  wiU.  «,!?*»   j*^  J--i  «»^» 
«4^^  cs.J»*>  8V€4>^   ttf^p'^'  e/4^  c^Sj  <^W  «,if 


C  rr\  ] 

1684  «JJ>  S^jU.  ^^>ii   ij^\  Jjbl   /LJ  ^   ^j[S;<  I  ^1  wJJU.y  J  J  8Aj» 

1585  «Ji<  a^^;^  j»^  ^ttf--t::>'*''«»^  ^W^  ^^  «J^-^  '•'^® 

1586  JB  ,.5^  ^.s^  ^^  JU  ksJLi  Jjfcl  ^.  ^  I  ^j,»  UJU.y  ^  I  0A1 

fb U  «£Sy-  uJtf  ,^1  ^  -  jIL;  I  5];^|  ^j^j^^  dl*  j; X^l 
*a^  ^^  4UJU(  XiyJI  o/^  e>'  J  -  «!-t^l  *»r^  d/*  '^^  *yi< 

1588  ^:,>U  jJU»  ^  ,j;i6«.  UL.d  U   8t;/.|  vx^j^  ^»  *«^»  J?  J*;   I  »AA 
^^  liJ  ^  -  ^  U  ^^  U.Xft.1  8^^^^  0)J4*c>'a«>»  ei^^O^ 


[rr-  ] 

•W*^  J**   C>*!H  *»'!>^'  '«**  e>'  *'  «;ft*4"  «S^^  cW  ^i^i  V^  ^ 

j^uj  ail  U4*A.^  uj-^  ^i  J  sitU  ^_^i  ^  ^us  ^  w  -  ^; 

1583  «;- 81^1   ^,yi  li,,^]  Jti  ^   Sl^l   ^,jJ)  J  *UI^  JUy^  l»*r 


trn  ] 

1575  ^  u^j  jsj  ^!^  1;  ^;^  ju  ji  ja)^  I;  *i»i/i  juy  J  I  »ve 

1576  «.;|yy;l>/)  Ji5^I(J^«i>'V;'>y  h"^.  J«  J^;  l»V1 

jy^l  ^^y  ^  U;4fi  8t;/i|  ^j^  «b  J«t^)>»  JJ  jl  t>nt  ^  A4U 

1577  Ji  -  tf-slb  si;/.!  ^j,yi  j»t  *-^  jy  ^-  (^  ^di  y/i  juy J  i  evv 

1678  j>«t  ctJli  JayH  JUU  iili^  ^^  iji^jj  ^^J  u:^  8!;/.)   |»VA 
l^KV  >l)a.  V»t  Jj^  ;^jl)  ilLiJI  ^  U) .  jt^I  fUS]  IJ*  ^J 

1579  ^>l  fi  jJlt  ^  iJ^i  V  ^  1^1  !»?•;>'''   »lr-'  J^  JJ  Ji-;  « ovl 

•  ^'j***  tf<  iV  ( tt> '  > 


[riA] 

1568  ^tt^XL,^*  ^1  JlSjl   »j-l  l^j^l  i}^)  Ji   Jijf,  1»1A 
Ji  vcJUls  tjjui  I];/*!  ^^y  f   fW]  Jy  Sl^l  ^  Jljli   UU  uuJi  ^,1 

i]^]  ^  fW)  J^  i]y.]  ^:,yi  UM  lA-tf  «,)  ^jJlfc  ^  l^^l  Sl^l- 

^i  ^li .  isSjA  ji  ialk.  ,^1  «^lf  fW)  J*s  i»^^y  ^  JU 
jj:«i  fixn  ^  - *ixi.v£.-^  fus\  j*s  ^4)?^)  Jic  oJ**"  gA 

•  Uua.  U^  0^1  Ci^  &aft^A(E^  ^  <X<y  1,0.^  _£n 

•  /Uofl  ^^  ,^  ^  S\ 

1672  ei^e,!    ^^^    •»4T  ^  ^Ki  ;j  *J  ^- f l.»J^   «4-,/iJU  Jli  y  ^    «©vr 

1573  j^o'^l;/ii^8!;^lJi JjUii  fii^y.M>)*^Mj>^  J«y^  «»vr 

Cfi  ] 


[riv  ] 


•  JJUJ)  ^Jl  «JJj 


1561  y J  -  ^j^i ^ ^  jJoJi  ^ii  wj^  ^  ^Ki  y/i  ji;y  iJi J  idi i 

1662  JJ^I  ^  wi;^   ^i  ^^  l;i"yi   Uj*.;  Ulfc  iiOkJJ  JU  y  ^  |  8f  r 

1564  Jjiyi  i^jj^  ^3^,  "i  J  cil*.  ^  i'SjA  *^}jij^.  U.;  JJj  y  ^  I  »il» 

1565  ^ji;  \^>Slmi  l^J,  l^.*.^  tf«»«  ^jj)ii  t  J  v.s,>iU.  |^  ^j,l  y ^   |  oi|0 
♦  Uia.  Jj^O  vV-^'  J*^^  "  ^♦*4*i  uJ*  '«4^**'  J**  *^^  Z.i  '**'*^«:/* 

1566  v^^_s»  yi  l***^  1*^1^  ''l;^'  C->y^  *V*'  S^  *  «»'  *-il*- J?-^  1 0M1 
Jy  jj*  w ^ . ^;  A.*^ i  UkmytJ  jyj  iJjk  lyu  -K*A^.i  &i) 


jpJb  i^yl^.  ti    .    ^iOfl  J^  iijl;]U  u^Lij  Ail  -  aSI;/*!  4>Uai*  9 

1555  «JJk  ^  J  lyU   o'lt  I;  y  JJUbJ^  ^^  y;*^  1;  *il»  J]  JU  J*;  I  oo© 

1556  tyL  i]y]  t\^jyi  jJU»^_jyi  i\jA\  ^Uif^j,)  Jl  AijJiy  juy  liJ  J    loctf 

•  jitj  j^^  txiAjk}  '/•y  ji 

1558  UV  J^    -   f-aS  *  yi*"  "V^  »•>'•>   ^>?  jj;*^  I;  *SM  yi  JUy  _,    I  ©fiA 

y?  ^<»  f^'»  ^'  Jy  ds**  ^  o'  ^/+*i  3  *«  j$'^'  *"'  ur»; 

1559  •  (3**""  ^^>^*  o^  '>>  j'  r*^  s5!>^  b  **»*/'  J*  i^  ^  •  'SI 

(or)    •  /^  v^iy  (  c  r  ) 


[rio] 

1549  *l  JSjJj   .  ^UL*  jib  ^iuoi  Jl  IIU  jMU»  «^:-iI  *'VJ  JU  J?-;  I  »l»9 

1550  jsy  <j:— iji.!  V  J^"  y  "^^l  V  (^^  ^^1  *'V^  t)^  ^J  •••* 

1551  ,4^UL»JI  ^  .j^iAL^JI  «X))j  u,)  UjLa.)  -  im^A.  >UutJLJtf  Jkui)   |  00 1 
e^OJI^  -  5a».I_,  u-JSUs  ^iUi  J|  ^Usc:^)  J^  J^  o>*»"  •>»* 

oi;  Ji  ^^  J  ^  ^\h  uw)  jiji  u  t>uji  jti^i  ^  ,usL.ji 


1552  fi  i]y\  ^)yi  Si;/')  *J  ,^  J  J/IJ9  AJt^U  liJ  ciJUi  J  JU  J^;  I  oof 

1553  ^   fV"!   ^^^yxJULJI  0^1  jl   if^l  tj:^iy  J  JS  j!  J  loar 
.^bsfl  Sf^l  ^'J^UJI  Jiui  Sl^I  *f  ^j^i  J  «;4c^)  ^*  ^yii, 

»  tt  oJli  oil  4^  J/  Jl*V  U  (  tt,  r  ) 


1538  •  y;i>jiib  ^*  vj^iit  5aa.ij  >i  ^ly  isu  t^nt  oil  juy  iji  ^  i»rA 

1539  Sd*.lj  Jl   isjJ]  ISL*  JU  ^  Sj».Ij  J)  iJJbaL*  ^jjlt  u^J)  jj  y  ^  I  ori 
1640  cfi  A_L  5.i»l^^  *iA{  Sj^J^JI   ISL*   ^yU»  «u»|  juy  luJ^   [t>f 

1541  •Ju*y)  Ulu  y;siL*  aJifc  sj^Ij  Ji  t.r^  OL*  ^yitcji  juy,  i©i»i 

1542  iJ^tf  y;»2i  J   UJL;  jJlt  u>JU  ;ljjl  u:-Uj  1^1  *Jt^J>  J«  J^.;   I  ©|*r 

•  i>W  Jti  (•!$  J  Ui;  l::,^U>  ;)  jJI  usJU^di  JU  ^1$  .Xiu  II 

1543  •  UW  f^l  jJU.  ^  iJi  viiiU  ^  Ob*  f^l  ^jjlt  cs^l  jay  J  I  »ir 

1544  iJLUI   >U  u,l  y  jjjltxAJ)  >U  y,l   f^)   e:^)   ^yUs  JU  y  j  t  »|*|* 

1546  u:^l  JlSy  l^j-tji^eiJ'e,«^*l'l  iU  I.  jflt  u:^l  JUy  ^  I  tf  o 
1646  JUy  J  -  15U  (j-Slt  Sj.».Ij  Jj  i  ^^  ^yUs  cJ)  <j"f;-l  JIS  lil  I •1*1 

sj^Ij  jjUs  *^i  Jjy  lii^  -  ^  iAJ5ii»  ^yib  j^  I  ^u»  usji 

•  i^]j  o^b  Jj  ^   5J«.1^  <>IUs  u>>)   JUy  I3J  ^  -  5j^Ij  Ji  I 

1547  ^;   Ul  JU  „,U  -  XtW  u,i^  ,2^  *  j<  (^^  uiJl  *j1;/.I  JU  J*j  I  »|«v 

u:,jUil9   iS]j^\  ^Ifi  **Jjl    ^jJI    „,W  o»t  jJj)  Ul  ^T  J*.^  JUi 
1648  i^h  tM  ^^=-211.  |j*  J.  >  So^Jj  jJU»  v^l    *j1;^>  JU  J^;   (0|»A 


1531  iJJLi^j^y,]  J  n   fU  sysx  ^  uAlLi   tjxSJ  JU  J^;  1  on 

1532  jyliii*   jSi    Sd^lj  Jl  5j^1^  j  ,^*   ^j/lb  c:^|  *Jt^J    JU  jj.;  I  oft 

1533  ^;  a*«^  JU  ^*  ^  ctJU*^  UU  jlUb ^sJ)  *J|^J  jsy  ^  |  err 
J .  ^uj;  ^su  Sj^Ij  ji  u-j  ji  i^  tjjit  c-^i  ju  y  ,  -  j^  ^a^ 

^OJI  (P*  *i444<  JjJI  J.W)  j.i.1  J  J/UJI  «JA  ^^*  ^  J^m 
1534.  AiJ    -  (^JUJI  j5,  !j^Ij  wiuflj  jl  5j^I,  JI  UU  ^yit  c:^)  JU  y  ^   I  iff 

1535  *>1  -  lA^I  {iu  ^^  3»  jl   5j».Ij  JI    01?  jJlL  ^;:^l  Jl5  y   liJ  ^   |  o^o 

1536  v.iJafc  £j;l  Jl    ,j^*  J  ^^  i  ^  ^  vi^l   *iyj  J15*)5|*  I  on 

•  Ob*  cuJilt  5j«.Ij  ^   Sj^Ij  j  Sa^I^  n  OU  ^U»  e:^l  JU  y  lii^ 

1537  vajat  s^i^  Ji  (sc  «j:/Jj  ^y^  J  ,j;A>  v^i  *Jt;^3>  j^H^j  lo^v 

•  Jt*  lili  (  c>  i«  )    •  *5f;— ^Jf  J'^  y  J  ( ty  r )  •  •-^*^»  If  ( (M  r  ) 


(rir  ] 

1524i  Ji^\  i^U  AUbU  J  tj^l  ^  J,*}  ^I  ^)j\  J  o«l»'W  t-iU  J*.^  !  »rf 

Ui  •  ^UILJI  ^^  'j-^  '^  u;'   t<>j  ^^  U  ()m  iUuLJiy^  y/i  «*i 

1525  aJ  iW^   ^iWl  ^/iUi  »j,1   ^lA»  JU.;  UO^i  «;!  Jl;I   J-.^  I  »r» 
JiiLM]  j]  «i})  ^Ub*-  *^y«  ,jx^]  v-H^  JyJe  ji,**'  «-yUB^I^^  J 

1526  ,ji^  ^  lyui  *i/i  *u  ji  mjjsj  lai  j^i  J  «ui  J  js  J^;  i  ©ri 

1527  ^  -  c!fi^  e?i  '  **  *i  *i*«-;li  ^  V  til'*  cJ'^  ws-JI  «!;-*  J«  iV^  •  'fv 

.y>  ^  *j:4-;li  ^  *i  ^  tjJit  ctJi  juy  U 

1528  J«  y  liJ  ^  -  j>^/i  tix^P  i  J^  J  lib*  jju»  vj>J)  J«y  lif  J  I  or  A 

j^jOU  jJltcr^l  JUy  Jifj.yi  Aii-.;^  J  ^1  aU  ^j/lt  waJI 
t^j^.  il^U  J^'l  I jl  k^)  ^  l>;;iJI  liUJI  l&U-'ll  tJjk  ^  .  ifj*i 

1629  j;JIJ  Ui  ^*  U«U  Uti  li--U  JI  U«  ^J>,j,l  tJ]^]  j5liw  wiU  J».;    I  ©r 9 

1630  l4«U  iuU^  ^1  J   iWiti  ^J:^Ji  jj,)  ^yUs  v.;^!  tj\jAl  JSji  j   |  or* 


irw  ] 

J^  ^   f\SiiM.i]  JJi  >lilL-JI  ^  iJjJJI  ^j  131   H]   Ui^ji]  ^ 

5-J  */•>— L    *ll     ^;  t/Ato.  ^1    X^lj;  ^^  yi  ^   -  ^y — «*a.  ^ 

1618         •  jUJ  ,s;4ii;  c:.^U»  lixA  Jl  UU  jJU»   e:^l  *J1^J  JU  J?-^  «  «I  '^ 

1519  ^1  Jo^lj  Jl   Jl^  jl  loc  So^Ij  Jl   Ob*  jJU»  e:^!  aJI^J  JU   Ij)   |  o  |  <) 
,^«^  J   ^KXfl  djtf  J  -  fJUJ)  J    J*J1  ^^a^  J^  ^flji^  C*i*  ^"^  ^-^-^ 

USluo  *JU  ,j^iii«JI  ^5,1?  Jill  ^1  UU^  jl  UJU^  ,ijJliX«MJ|  ^(f  I jU 

•  JiJI  ^  UU^  jl 

1520  ^i^  «AJI  iUA.;  Jwii"-^!  J^'  ^  *i>V  k  (^^  ^-^I  *'V  J^  '^'  '  ^f* 

JUU^^jL^i  o>^I  ^*  ^^  dAI  uJJUl  ^  ^31  .  d**!  «jJU  ^  5j«.)^ 

1521  •  5j«^Ij  JI   ei  '   UU  ^jJlL  jJlis  e:^!   ^j  J^dJI^  J»y  j  I »r  1 

1622  •  »uiL.Ji  --  *ui  >a  ^j,i  ^^u  oii  jjit  c:^!  ajI^j  ju  j^;  I  or  r 

1523  ^M  JIJ  jl  iiAJULJj  ,,^— *^'    ^  (^^  ^^^  J-i^j  i»rr 

•  /UlL-Jll  Jkj  ^  .  lit?  c:^JUfc  aUI  ,Lft  ^1 


1510  •  5^1^  (ii  liU  Jl  Uj;1  jplfc  y^>S]  i^jx^i  JU  )i)    I  »l  • 

1611        «  Sj^Ij  iajJkJ  elLIf  t*-j  Jl  \yu  ^  y^:^\  Ji5  y  iJi  ^  i  di  i 

1512  ^UJ*U|<u*.;«i4Urtl  JIS    l«;|  Jl  IHJ  ^  lib*  jJlt  c;^!  Jl5  y  ^   leif 
j^^  >USi«J|  ^  t*U  /^  lyJ  ^j^liJIe^I  «;» -  e^l  c*i 

^isii  J  jyi  u^i  ^  5^  Aij  -  ^lijj  t^i  c;  •***^  J^  J  ■  J^" 

•  ^tii?  5|ui  Uu;|   Jl   IL«  ^jJU,  Li^il  JU  tX  ;UJ   5*»^l   uJ;«rf 

1513  i^)  ASjJi*  ^1  ^   ^j^iiL'l  i  SJcwIj  J>I  OJ  ^U,  euJI  juy  J   I  » !r 
JU  J  -  lit?  Jl  UU  jJO.  ..i^l  JU  Ailf  vA^OJI  jlLj  JU  *il  ^jJW  iiJI 

•  ^u)i  JJ»^  ^  s<).».yi  ^UuL.1  ^^  ^(UoLj  (fj  ^  ^  wju^^i 

1614  iX  UU  ui^jaj*  liU  Jl   %^  J  5j>*.Ij  J  5aA.I^  jJUd  kAJl  juy  ^   I  •  If 

»  UL*  Jl  a*  jJU,  v.s^»  J15 

1515  i J^l^  ^  id^l^  Jl    !<3tt>l^  J  SiWl^  J  iJ^lj  jpU*  vj:^I  JU  y  IJ^  ^  I  o  I « 

1516  Ob*  ei^^U*   5j*.lj  J  Sa».Ij  ^  Sj^I^  J|   IjUb*  jJUs  u:^!  JU  y  ^   I » 11 
Jl  Ob*  ^yik  e>i|  JU   wif  ;Ui  {•^'l  uJ;arf   >aiL.J|  ^   g»^  *»J 
SjJtUI  ^  ScXA.iyi  ^UuilLwl  ^^  j  Saa.1^  e^  tl  >'  •-'^^  ^1  J^  ^  -  ^ 

•  JjCJI  >liSi«l  j^l  ^Jjj  t^  ^Ul  /UuLil  ^  J  J  -  t>«VI  >^l  *** 

1517  «,l«JIJ*J   «»l^j  J^^3^   5a*.ljJ|   a*   tjRkui-JI   JUy^  101 V 
^  J   -    Sdu».l^    ^Si  Ail    ^;  uJ«^  ^1  ^^    «»y^l  t>*;  v_y  ^O 
iliiL«J|^   ^^  i-i-^  ^1  Jy  ^l,^  ^  -  ^  J  «Ux^  J;*  ^  u^ 


[  r»i  ] 

J^  3  liS)  ^]  ^]  li^  jip  \jj^  iL»  f^  ft  Ul  II  I  ^1  <j:f^ 
,jy:j  I^Lm.  ,  .  U;je  l«iw.  JS^  ^  Ail  Ij4#4  ,j^  f^A^^X  ^-WJI 
^  »JA  ^  ;  ^^_^^l  Ull  ^j„jJk  JS  .  «j:iiJ  jliJI^  iUSLJl 

^  iUU-Ji  ^^y  ^  -  ^1^  SjWiJi  W  J*2<  ^1  Ji^i 

1606  ^   aUI  iU^I    jIOi  j   jJUb^   jftk   c;^l    aTI^)  Jli  J^;   |  •*« 

1506  ^lyu  *ubujjiifcj  jntj  jjik,  j«t«uii  juy^  i».i 
^Ji*?*}!  -e^ijSe  j;u;*iJiA*oy  iiji^^ijy  ^(4? 

yU  -  AiSLJ)  ^  1*  yV  Al  ^  '  l>*  >Ul^'t  tt^  ^  VA^I 
<ua^  J  %.Jumfi  ^1  J^  ^  J  •  >UaLwSI  Ja*  v*«^  A»i  u:,j:m 

1507  ^  i  ^  0^^  «^>  «V  Jjy  J  *ie  ^l-J  *"l  ^;  JJ  I  e*v 

•  uUuuaU)  SjA.i^>i 

1608  •«,ui;jSi  ,^*ii  ^*^  ^*  J^J^.«^>»l  juy^  it.A 

1609  1-.J  I  *»>  ■  UU  vaJOfc  Ob* II  ^o;,  ,^*  jW»  «wl  juy ,  I  •♦^ 

i  i  «^^»l  tt/iiii')  ^  I  „^l  ^  u^l  ,USLJ  li»  J*^  ^ 
„^  Uj^  U«L.  e-JUl  iUIL.1  lift  Jiu^  J  *-->  1^  ^jiJ\  ^ 


[r-A] 

1602  y»  ,i  9y»y  u^jiJgJ  wJal  u,1lj»  «<mc  4»«^  tttftll^^l  jlk  J*.^  ie*r 

•  W  il  ^  -  U^fy  ^  JiJm  «»»•*' ;^  ,,t>«i  U-fci«i-»  ^  J^^U 
1503  J  jfUi.c;^I.W  c^  sftJii  ^.^t  JUi  ;3]dk}|  ij^l  aj>«j|  |^    |  ••r 

'•  ^jMi\  iUi  \Jii  JU;  ^  ^ jill 

ISO*  hi*  *iV»>«fev^  {f^'u**  'i*Ji-«^j»rf*^*Ve!^yj  '••«• 

yn  UsA  iUi-f  JL  *"'  «i<»  ft-"  4^  u— vui  .j^  fi^ 


1497  tS^lj, jUiV  U^«Ui  jiVbcJI  aUI  «U  ^  a*  ^U»  v.;:^!  juy  J  l|»n 

1498  fi  J   y^*  j/,lfc  cwl  ^  *UI  >li.  J   S-wV^yit  «uil  JJyo.  fl^lA 

"-^  «^  iJb^J^j  ■•  J/^l  <>At*   >USL.I  ^L*  .u.1^  Ji  aUI  bj 

uis.;u  aSfcAJi  f4*..  jiui  ^juxi  ,^  fixiu,  „,i  ^  -  juji  ^^^ 

1499.  lAi.^  J  J  *"'  '"^  itfl  '•»*'j.  f/ri'  t^U.  cUI  4^J.  JW  ji  ^  If  ^1 

1600  «^;  *i4i*.^l  Jxf -^  *UI  'U- J  UL* ^  ISii  jAk uuJ)  J?y  j .  | »♦• 

1601  die    Wl  jM^  <4JI  ^U^l.  ^^;^   u;^  »Jm)    jgiy.  Ii(.j  |o*| 

ii«u  ^,4^  \^.^y  ^isji  siUiJi  ^..  j^-  m  L^)  ii^  ^ . 

t>W»  ^J^'  jyjy  J  •  U.^  Cf<  ,^*  *^^  ***•;  *»4**  ^^  die  aUJ 


1498  «U^  jl  tii^.  jl  *£i«^  jl  ^*  *U)  8^I;U  ^  v-JI   JU  y  ^  ifSr 

^  ^jiu.  Jiii  juu  ^  UJ  iUJi  ^^  JC  ^jy  u^ .  jiij  I 

i^^i  ttT^  ^  y  «^t^^  y  «H*^  y  ai^i  a^^^  ^il  va^i  juu  ^ 

AjUi  ji  a;uu  y  aui  ^  y  <ui  ,,1^  jAk  «^i  jsy  ^  -  j}hs 

1496  ^j*^  >\ijLJ\  ^,  Jl  ^;  (Iii*UU  jic  «USL.>I  2*-«  l>yt  ^^  ||»$» 
^  ,  .  ^1  #USL.I  ^  J  •  (^  Ai«  ^  liill  Jmi]  *^y  u,,x«» 

jisy  lii  J  -  AiSimi)  ^  *ui  ,UJi  s^  ij  ^yo.  cft-»i  Jisy  ^ 
uu  jitb^A^i  jiiy  liij-^tLULSi  ^  aui  >Uii  M/t^  j^b  ,^ji 

•  iUSLJit  ^  I  ^  v3>^  ^  >^  «t^  ari  ^li  J  ij:a;  1,,^  ^ 
1496  «-ir^  ^•^  j'^  <^l  t^  *^  J  (jf^  «^l  A'V  J^  «^^  11*^1 


1488  *U)  #u  ^,1  j/U)  <^i  «^u*  ^u;  «ui  21^^  jiyi  jiuy  ^  ir»AA 

J489  lj$  J  •  AM^^  SaA.)^o>^l  ^  «UI  >U  ^i^  jit^  ws»il  JUy  J  li*A4 

1490  •  ^y  ^  ^jlk;  J  jAt  ^aJU  aUI  ,U  ^1  jtsy  ^  ||»i» 

1491  c;  "-i-ji  v"  J;*  v^  (^1"*  '  (^^  w:^'  *WI  '^  J   Jljy  J  ll*^' 

1492  ^  iUlULJIU  ^^yjl  olUI  ^j,l  ^;  0-*^  ^  ^i^.f}  uJlif  ^  »r»U 

jju»  «^«ji  V  ju  (^*  ^  «/<H^  «J^>^  u:*^^  J  »^/*'>  juy 

»Ju^  1^1  tP  o*  VA^'^J^  Uma«  iUUJ)!  ^  ,1^  tii]  >U  J 


«4il  ^O/^^^  jy^ y  ^  •  t**<^  jlUI  (^  Jttif^  ftitK  M^ 
uftrji«ru:JU/uJLftv.;;«JUU   u:^!  ud  ^  .c;JLt.K^  - jAk  ^:;Jl  JU» 

J  Uy^  fAt  «.jiiM  <ii4c«  %Jfj»i  Jiia  i  i^^Jfi^  •  >Mi  ^^j 
.  jfiti]  fOSji  u  ii^  y^-ui^j }  jw.  cs^u  oJLi  J  jAi 

«e^l  Jtt>jl  ,J^  ^.i\  *A^jf^  tf»il  JU  Alir;>a»  ^\  ^ 
U««    (  tt^  r  )  •  JiMJl  ^^y  oJUi>  .sJJ^  dJU  l3<i  «a^  J^  tSrJft  ^4 


1485  ^  ^uOi  4,1  J  .Udlj.sA^iA  J   jM'iAii)  <A>Vy  JU  ^;  ipA* 

jt-^J^JV  ^  aibwJ^)  jAJBHa^i.jUi  jttJI  ^nJ^j)  jAfe  c^JU 

«A^  ^^fijj  chX&  4,1  ■  JUU.UJxJl  t.J^^^.^  <^>(>'t»Lj'^ 
^ii^i  2Ui  ^  ^  ^U  .  UlyJ)^  /IfYI^  21^1  2:0;  MUi]^.  ^ 

S^  {^Liij  (|)^  c:^^^  ^A»ij^  J  »  <^^l  J  Ji  fi  Ui  t«i«a> 


Cr-r) 

1478  Ki^JUhi  (^JLft  J  h^jt]  <JX*I  lj«.l^  «jL*i  ^^  V  JUy  ^  I|*VA 
i^U-^SrJ*   »ftfr4eSi»^- J»^l  J-»I   XiiA^  iiiUrt  Kj*^   ^ 

v^  tftft^  e^ '  ^*  ^r^  u;.JUki  fij^),  «X.«i  _ttk  v  j;y  u 

1479  s^V*J|l4akiw:JL4^^*«WI,UU^1^ljjt«^JU  J^;  ll»vl 
•  ^j^  jSjJ  w;JL*  ^  ailiU  J  jJlfc  «tJ)  i3\ja9  J.i^  U  ^  .  jJi  > 

1480  v2^Ui  sj^ilj  c;JL»^  sfJLft  J  jilb  u^l  Ail^l  JU  J^^  IfA* 

•  u;JJt  «s»t^  i^^  JyU  ^j^  ,^xl  ^1  vA*a1 

1481  y  ^yb^l  ^  «;-iU»  uaJLi  ^  jJU.  ^a^l  aJI^^  J«  y  ^  ifAi 

^  ^tk  c>ii  juy  u  ^  -  UJi  ^^»i  ^jM »  ,ui  >  toM 

1482  •^e2jl(>faiUtu:Ji2i4fiJLi  JOUwCAi^^VJ^y^  If  AC 

1483  jU>l  J  c;JLi  .xi  uJUU  c±JL&  ^1  cXJu  ^^  («/  Ji;y  ^  if  at 

1484  jiJ  u^  uy^  j^yi  ^  jj  saJa  161 4jLii  ^  «j|^j  ju  j^;  f  i»Ai» 


1471  ^^^£«JtU>  «^JU'  i^JJt  Jl  ]jXt  tjLJu  ^SU>  iJl^l  J5  J^j  IfV  I 

1472  ^>l  *J  f1;^i  Xiw  ^j  «uU  J  »JL**  ^  i»i  juy  J  ifvr 

J473  ^*  cf^  uaJ)^  uJL4  J  f  j*.ij  jju.  uiJi  *j1;->  ju  y  lii  J  ii»vr 

•  ULVjJlfc 
1474  isJL*  J  j^fOAc  ^^1  J  v£-i4  J  «^-uu  ^^  juy  U  ^  ii»vi» 
JUJ)  J   J«k;|  ^ir  I jl  JIS  .  ^  «<Ue  JImI  ^I  l4«au  jUi^  •s»1«)Ai 

^»  >.T  J^;  V  JS  ^  vaI»  J  «-^-ii  ^Slt  t^^;  V  JIS  y , 

•  oJttJI^  J-*  v^  ^^  VI  Jvi  «/-  JIJ  -  Udi 
1476  ^  Jiifyif\  «Ji«l»    JH^ff  J    0^  kS^'  *V  J^  J?-;   U*V» 

1476  »-*-*»  U-i»  sj;Jl— «  ci-il  J    iJ^lj  jiU.  u:^!  «j1^J  JU   ||»v«| 

1477  v..««M  «>^i-->l^  uJL&j  AlJW  i^h  «-^*»  ^^jul;/*)  j;  ifvv 


1464  J*ll  JU.  te»»VsSi  ^  ^  W"«l»  -wcJLl  ,^  M  JUy  ^  Iplf 

^ib  ^  c'*^^  «»Mi  ^'uj  *iT  ju  y  ^  -  8^1^  «  jttJ  > 

1466  ^  l«fcJI  J^S«**JI  vj:^  %£fi±  J   lAi  ^jJib  u>J)  i3}yi  Ji  Ji.;  Ifl* 
J^  J  Jl±tf  Si^AJI  vi^  »ji  jJlfc  «:-iU  ^.s-^  «,!  J«y  ^  -  JA»I 
„;*Uiil  ^  JA»I  ^j«  W^fl  JM"^  t-"-**^>^'  J^  J  - 1  ->  •»**^ 

1467  y^^^Ji^J^^  iJi  uiUi  ^^  c:»JL»  J  Jtty  liJ,  ii»i¥ 

1468  »Ju.^  ><)  JIS  vJ>^  J  ;'«*«  w^'JLl.j  'il  ^  ^oJI  Jjy  W^  ||»1A 

1469  V  ft.  ^Jl  \AiX  %4yL»  ^  ^1  crl  tj/lt  u:^!  4>5  y  ^  IM1 

1470  JW>^  t^  W  .^JU*  ,jJL»  J  Ub*  jJU.  u^t  Alt^J  J15  J^;  ifv 


1469  UL>  l^  i]jA\  j\  ««i^l  fijUj  U«  f^]  HP  ja^  w-iU  J^;  \f»^ 

1460  Jl<l  j)U»s;^Uj|j;i  c:^j  «,!  ;IjJI  e:JU^.>e,l  ai!;^J  J«  J*-;  m» 
J  -  UUf«F*^J  ufeiiV  5M^  «>•  .jW)  *i^a*  8^l>/4  ^-s^J 

1461  Ifrfi  ^jUp-W  u*i'  «5^  s^  ^•'  ^  *^5r**  J^'  *^J  "M « 
y  \^y.\^^j  WtiJ^-^sJi  ^i''^ij^j>i^^ 


cm] 

^1 1  iii^]  sa^  U^Uu*  U«L*  is».\j  Ji  J*  io^j  slyi  ^j,y 

•  t«fl  ^Ci/)  o>^l  uJ^  iJlLj  hJ^tt  !<k« 
1450  ;)4l|  «j*  cJLLd  1^1   ^  ^  il^l   Ji  JIS   iy^^   iij»^j  l|*»* 
S*Wt  ^   ^  ^  ^J\  J^  ^*  Slfl^  U^  t^  ljtt.tj  ^^Ib  ^ 

1461  *JC  ^   k-^lf  ^  u:/i  .^yij  ,  4>;il»  ^  fl^l  Ji  Jt5  J*.;  Ifoi 

•  U«>iiax<«»f  ^  j|l«  (fi  4  <J^d  tUj  Ui>yuu»j  ^  ^ 
14.52  ^j^fS  f^\iliy^^J   ^^\^  ^)^  8V«J^  J*'"iV;  •••^r 

1453  (f  fis  fi  ^3yi  UM  «^  J  t>w»  v^  ^^^>Jl  sViJi  J«y  >  ii»*r 

1454  8l;-l  ^i^i  UJU  a-JlJ  Utf  ^  ^  l^^yi  ff^-l  J$  JUy  ^  i|>»|» 

1466  .»l^is»V  aUjW..u>iU  lUU^^ySjJ  J  is]y»t  JS \hj  if 
«»,U.  ^U  .^]^^i  ^]  s£^y^  (fn  ,j^  ^  JSf 

1456  «ii  JUJ  j)U>u;.JU  ^uuii  «JruJi;^i  ajI^y  Ju;  j^;  ii>»<i 

•  «>^^y»^i(«,r) 


( riv  J 

14A5  t>W»^  jl)>  ^/^^  ;UlvjJU.j^;,  ,j>i\jSjij  \ffo 

1446  s-^t*J|  jw  ^a«e  ^;I.UI  J^J  tt/-^^  v-:^'  ««***'  JIJ^  j  »h»1 

1447  jjW*  ^  *-4*  ^s^aU  i^^yi  Il;*»  JJ  ti\j*i  Jtf  J-.;  ii»i»v 

1448  i«9.j,>j  fi  »i»  t>ik#  jjtti  ^  «j:m.u  v^?"  '^I;-'  J^  J«y  j  W* 

*iy  ^ .  *u  ivii  ^1  i^j^  ^j&.\  WxikJ  {ii  /  aSk  i^i,  ji 

yA^^^\  i\jA  ^jy  \iM\^j^,tSL^^  i^l^  0«»H  «/4^  ^UJI 

♦  &»iu  ( «, r )  •  ««*  t>»W(«, f  ) 


1436  ^1  j^.^   t>IU»^  jjJlfcvaJU  jIjJI  ^^JLLo  ^  ajI^I  J«5y,  li^ 

I4i37  o«-^'«j'^  Ifli^a^^  ,^^^  -^•»J'vfi^.»^l  J«y^  Irt^ 

1438  sa-2lfc  j^  yJL^  ^ )\^  LSJl^O  ^  3  sA^\  *>V»  J15  J?-;  II^A 

1439  XiM,  ^ .^^  ;IJJI  JU.ji  ,^«^  SJ^I  J^J«y  >«»«^  ll^l 
•  ^j^l  uaJOfc  8J4JI  ^s^i  ;l.kJI  c;JU.j,s,U ;-  Jl«W  £>U  ^^JUt 

1440  *Jil^  jf>I  *»  St^J  XiWj  t>/^*^t*  W^y  «!;^' J^  *^y  '"i^^  ll^- 

•  ^jL.\  isjik  «j:j3  d«{  i^;,y  «jU  -  g^yjiyiUj » ,  -  ji«V  iiu 

1441  ^  4j^\  jikj  n  i^]j  ^1  'iiu  ,  jju.  v^i  *jUj  ^uy y  \ft\ 

1442  \^\i^  o^^J'  «?4r^   V^^/Je>»  t^flyJ^""^  sH'J^yA  '«^'' 

1443  o«— w  {Si »  ;ijJi  *»«.  vj|JU.j  J  j/iy.  iiv ;  wf-ii  4^y J  ii»ir 


ot^  (.s^u  V^  V^  ''^^  V^V  e/"  ^  ^ '  *^^^  (^  v-.>'*.y 
j»  ^  j^j  U;ji  ^  ui  -  tu;  ^  4>Uii*  u-^  ^u-.  u>*;i , 

it|ti^ij^<su  «£^(^  sty)  ijT  j^uj:.  ^shJa  j  styi^^iiiL^ 

•  ^^yi  w?i^  MjiiXi  li  u  jw  sj;Ji  lift  jjU£,  I 
i4dd  jt^i  ^\jLiyii  pm  tftju^j  131  )<»2  ^  .ftJt  a;!^!  jt; J^;  ii»i»» 


Crv] 

1429  J  J4UI  ^^  WJii  W  H^y  w>^^^  Wj;  e  w^*^  *1;^'  •I'f' 

1430  u.JUly/1  *4..^l<  *>•!;-»  JU  Jft;>un  ^.i."  ^*  ^^^  ifr* 

J  • 

Ail    .    li\jA  yjiA^j^  ^  JiS\  vl«  ft    *Jii  tl^^ji^  3  ^A^«* 

•  aJJ^I  jlki*  JI^JI^   U  8jU|  ,j^*^  vI^I  j^I  ftf  H»LJ 

1432  ^?u»  *J^>^  o«i»^i>^^i  cf<  U*Jft;  tt/w  4^iV;  ifrr 


C  nrl 

1424  ^  o/AU  iJJtb  uaJU  ^U^b  cH/AJ  J  *j1^|  jSj^j  \frf 

•  /l^  ^J»JLI  ^;l«t^)  lift  ^  '  AJULw  ^ 

1425  *Jii<)  ^^V  «»'  *>*'  V?-V  Jl^  lt*«  us*  c/*'  '^'^  'V  '••''* 

^/i  fj  ^1  ^  .  i-XJi  J?.»  >KJI  ^  V^  Li)  *iJ  -  uuJC;  lil  <^:.JU1. 

1426  Z*'  «>***  5;*  ^jl**  Jil-  ^  ^y^  Ji  i^j,)i  eJU  Sf^l  ||*ri 


•    L± 


J>  aU) 


J' 


^  I3U 


•  v^a-rt  v.::JU.i)  ^^U  •  ^j^U  ,_^  jj^^    IJa 
1428  l^iSlty  ^1  lv>»  0>^  **^  ^.s^t-  ^*  *iJ|^I  j^J«.*  JU  J^;  t|»r  A 
^   ^j^\  «a«J  JS  ^    V^  ^jilU  c:^j-S;  ctJUi   .j^iSlkJ    UjU 

joyj  ^i  «»ji;i  Ji  -  *— */.  fUuj)  styi  «i,j  5-^ » lyu  j«yiyii 


inn 

1421  c:^U  ^1  ^0^-  fl  «,!  J«  v'-J  o*^  '^^^j^  *«V'  Vr»r*  «>!/-  '•*''  • 

1422  d5  J  j«l.  vi>-.)  *»l*f  yi  Ai  ^;  ^1  U  cuU  c:Jli  ^1  JU  JL.;  I|»rr 
4*4^  v_,»    vs^i*  tt/i^  e>^j  «*«  ^  u/'  fJ  *'V  «»'  *'  *^  «»'^ 

1423  v_««-»  J*  J  "^r"  c>^^^  ^jy  *!;^'  «J^'  "^^  o'  J^  fc/*^  •'•'''' 
jUj  .  f)^}  *Jt^l  f^*»  i^^b  *i^  ;I^I  1  Jjk  lyiS  ^-y  uS-«*Iy». 


1415  ^1  J  J  ^i;^\  JUi  vj:/.r  *s-J  v.aJlSi  ^^)  tJil  ^>«*' J;  J*.;   1 1*  1 9 

» ^i  I  *iub 

1416  e:^t«  Ajyt  ,j,l  V  Jl5i  >t.  *ji  ^d5    ^<ii^j    tS^j^f  J5  J^J   l|»ri 

i-s-^  J  ^;4ii'  tyU»  v:>J^  W  J^   ^'^^y.  ^Jt  »  c:-JU»   8a».|j 

1418  J  «,«i  vli  ^  ISA;  jJtt  ^\i  *it,-|  ^M   ^  J  Ajl^j  j(j  J^;  |,*|  A 

JU.  ^^  U  ^JLW  IA»  J  -  u^'Li/l  *,;^   Uii  l^  t,4  j^ 
l»;^j^Ic  c:^U  XijLj  »ib  ^K  S^UJl  J]ilw  ^^^^  ^  JfcSj  i^u^U) 

1419  ^  *4U.r  J  lii  «i^  ^d;i-l  ^  «,]«  ^1  ^JI  *J|^>  ju;  J^^  ,,»,, 


[rv] 

1408  ,jH   tit*  M;A*   jJUs  *Jl^li  cs^l  »J*  ^  «»j**  «>I  J5  fcV^  H*"* 
iJLc  3  /^\  ij^ij  S;U£  Aj   iX<a$  ^   t^   jJ  ^«U.  ^^  ^    >iiS.~juH  ) Ja 

<A^A*j )  lyu  ^tofct*.  ^  c/B^Hoin  |ffti*.u  (^^1  (^.oK^  ^  t-..jMi 
f^i^yji  lit  ^  ^jji  /Ui  y^^  cji*  iji  *ii— Ji  Jm^i  -  j/«* 

1411  ^»iXJb  Uj  «-{;*V'  t)*  «J^  t?*^  s/>*^  '^•^  «>'  *J^  ^^  "*' ' 

1412  %/^]  jxki  ^j  iL*  ^^  jnt  ^il^^u  ctJsy «,!  ju  *V;  ii»ir 

1413  u/i  v!/'  ^1^  «,»^  V"  cJJ^  sj\r*^  '^^ii^  J  iP  i)^j  ifn' 

•  Uil  ^iJJ^)  f^  JJ*«  i«jl  Jy4  J,  .  aJI^I  jllJJ  J  *i4*i 


[rAi  ] 

1403  cA^  «x.^^U  (>JU>  u:^U   Ja«JI  |«i*  u^jm^  ^,1  xjI^)  JU  J..^  if*!" 

l><)iJI  (^y   jLJ  (.A^JbE^I  „,'  •  v.:>iU>  c;-NMyi  •s»;iJJ  4^*  JUII  ^b 

1404i  ^^\  tV   t3^^  '^V^  «>**  ;'•»  ci*   v/*'*'  ^^:-*^j  Ji!P^J  •!*♦«* 
jU  ^laJI  ^   f  j4JI  5^j  y,J   -  *S4*j  ^  (,«,JLsj  J  ^).»J)  ^  t^jS 
S11.J)  lift  ^i  Ul  •  J^.1^  II    u^JL«J  M   \ijc  J^i. jJI  ^   SjUK 
«^,Jl*J|  jUi  juuci  ^  jJl»  dSi  fLJI^  f  jjyi  jji,^  /UJjJiyj  U 

i^jj  ^j^j^i  «A«»ay  *x«ji  ^  ^j2;i  j-ij  tju»  jiSi  ^  J  ^jj^] 

1405  »s)jM  jjIkJJ  l/J  ^ytt  *JVU  ^y^\  vi«i  *W  «;lf  «,!  J5  J*;  ||»-» 

•  U'J'sj  Ail 
1407  Oij?r  '!/^  *«lr*^  c>^^f»  u^^^«  J^  e;-  A>^)  J  J«  J*;  l|»*V 


jksii  J  u^  fWi  jum^ujji^  u  ^  jni>  vjiJii  i*ui  ^y 

1399  ^^  ^jJi^dJ  (i  ij  V  c^  *«A"  (^  *'V  C**^  «*•  •*'/''  ^J  '•'l^ 

1400  »;*.  vj^iU  iUJI  ^J^ff  «,!  JUi  «aJ»  *AI;4^I  ii^  ^<i  J^;  l|»-^ 

1401  t>JU»  *Jt;^U  ai^  «,t*t^u;^  iite/I  *4-,;UJU  Lsl— **>  JU  J*.;    ||>.  i 


[  rAv  ] 

1395  ,^  e:,JUfc  py^JI  oyii  U:^^  ^  ^jrtt  v^^l   ajI^I  JS  )il   mo 
JJ\  ^   ^   vXift*'  Ji  jt  jU\  ijiyi^^l   jJlt  ciJl  JUy 

1396  V^  J  \^jj  W*  ^A-^  V  s*^  ^'^''J  c]>i^  il^  '^^^^  «!;^'  '  ''^  •• 

u*^JL«iJ  Ail  g4«^lj  -  lliU  ^.J  J  j^^  aUI/I^I  ^^  ,j,I  J*S 

1397  ^^  ^il  't?-;t^'  V  J^  ^«^'^  Jy-v^  ^^^>'C•  •^'^  »!r*'  Tlv 
^^yi  ^^  lib*  jjo,  viJU  ^^  ,,_jxfci'  jj  J  ^,yi  ja  ci-u 


1392  e^JU^I  fVJ]  JUl  j».  h^^   xj>MaJI  Ji  ts-ui  J5   Jm.j  iru 
1893  ^  ^  jflt  vsJU  u>-i*.  lil  cAJU  ^  ^  *Jl;-J  JU   J?y  iMr 

J  ^1  fb  «»» -  ^  yj^  J^^  ^'A  fb*  ^  V  i>'^  V  rW 

e^J^  131  iL^i)  A'V  J^y  IJi  ^  -  fie  131  fbjJI  ^le  J**4* 
Id*  iA>J»y»  J  JUy  J  •  JaSJ-^I  ^i  C"*;-  ^^'  t>«»  cuili 
,^^,«^  131   is**-*'  J^y  ^  •  l;*Ui  otWI  t^3  (.Ijj  ^  ^ 

131  j.iUU  jsy  U  -  Jl*W  e^Jl«*  >)jJaJI  ^  fl^jJU  *lt«  ^  J 
(JoJX*  131  tSjy^JJ  J  ^j^  13)  ^;i^  J    *s»>y>S  131    <Xi!UJ  J   u:.^ 

•  ]s^)i  tijA  Ji3|  J*-.  ASi  *il^l  ^  f)».J^  *^i  t?****'  ^1^' 
1394.  ^^  cu.iU  ^tft^  JV^  1^;^/;)  y  tt;^/!  *iV>  J5  J^;  mi* 

[rv  ] 


^>iif  J  \^fjL-m  ffj  ^  W^  *»ui  u  jw. v^^  !/< 
1390  £j>n  «.,...<a«i  22Ai  ^  i.jLijb''  J  ^.  W4M  ^1  i^^y  cuJis  sf^i  m* 

1391   *feSAfl  JU    ^jJlfc  *4-t;^U    «iii.l  fii    Jx±!\  ^jJ,  cf^  «,!  J5  J*.;   in  1 
.ilm   tyie  ^j/iJ  ^    ^Ua'I  j^^  ^  U.«.*JLrf  J  .JU  ^SUJ)  ^ 


1384  ^U>  «JU  tJli^f  fi  J  tScJm  sj^ki^  ti^  a'V  J^  J49  'C*^ 
138*  jrtfc  «wU  vj/^t  „;-  «jH»'  v-*"*  sJy^  ^  J  **V*  J«  Jfl  «rAi 

1887  c^  ifeiyi  *i<i  <<  V.  J^  j^*  jJtkcoU  vii»jj  J  jjt^i  j«  jf.;  irAv 

•  •  \^$  UJS  iiiS-'l^  Ji  J  i  Styi»  UiS  J«j  li*  wi;«JI  ^  ^ 

1388  *UI«-^  J  V  J"*  r**  t^^  «^'^  '-^^*^  J   *JV  i)'*  fc^^  •''** 

xS^  ail  v&)/{  I  ju  ^*  ajl&{  tj^  4]H^  ji«y  Ail  -  ^i  u^ 

•  (l^ttJI  liXi  tJ^e  jA«j  J 

1389  J  Jii  ii5r>»  V  «/*   «J»5^  ^^'**   f^  ****^  ^"'  <J^>  'fAl 
. JjS  iyu  ^a*  4>Hfe  *;1;-li  ^^  ^   i/j   f  jUJI  «w  j^  ^J»  ^ 


[  r^r  ] 
13S0  (^.^,^»j  V  (if«  v^  (yu>  t^u  ufe^A;?  ^t  is]^s  ji  jfi;  <  rA* 

1381  lyi!  ^^  v£jui  t»^  ^yit  w:^ai  J-^  «;  ts}jAi  js;  )H  jf  a  i 

^i^  c^juu  Jilt  cfcju  fi^/h  \i^  iiniSiAMi  J  i^ 

1382  g,ir  ^  ui;-j^  ii;V a«H^^  tJ'^  *-=^^  cCijiT  Jl  V  Jisy  J  -ir Ar 

^^  >  J*J  U  ,jjy.  l^  ^tjiJI  ^Ju«<«  bJ^  L«dJU  ^i^  iU>  </•!(■ 

>tfJU^J  ^  >  -  «3>KI  C*i  iLr^  4^^ V^l  vj:'^j  u|i  IpU  8;j^ 
il^Kw^  S^l  J^ckj  i3i>^l  jb  Ail .  jUJi  JU^  ilytJI  d«f 


[  r^r  ] 
•  ^ytJ  J ^^««JJ  ^  ;^  Ail  cfcJU  J  f  'i*A  ^UJI 

1876  Jii  ^  tjjtk  u^'  v^ M;^^  j'  */•'  ^^^-^  J  *^j^  tP  Jw  irvi 
mif^iyu  uX*ij^i  styi  k£juu  u;^  fi.  «j:«r  v.s^  «}tr^i 

•   jUu  Xj    ;y«^  yj  l<v»  ^jy'^  Xi   ^1 


j_jIlAi  J  J. JJI  ^  S1a«J)  ^;  t-ijmyi  ^1  e/e  ^  •  C  ;  JUJI  J**.l^*i 
WtJU    GyrAi  ClJU  J     ^  J«  ^'  O/^  ^'  J^  ut'    Wi  *^ 

1373  J^  ^  sM*  J  ^j,y\  JMU  «,Uyf  uXil  W^4>'  <^^  i]/*^  irvr 


1369  Jii>LJ\  ^  ,^^^\  ^fijii  ^i  ja^JI  JUU  ^,lkL^  J*.;  Md*  ^)  mi 

•  AJI^I  Jliu  I  ^  ^^ 

1370  !;lJt  ^  J\    *4«,;UJL   U,J   JUi  lii.!  ^  «j^|  £•  ^USi  Jk./   irv- 
i^Jl«<  y  f^^Ji  uXrj  ^1    [^*  jJtl)  i3]jm[i  ^  )^\jL.  ^ 

1871  wycM^^y  tti''*^'*  vsJiSji  *u-^  i^^y  kijtfil;^  irvi 

Uli  tJJtb  cfi^li  viJtf  U  vj:^  e,)  ^j,/  JUi  ^^^^  0^1  jl  JUf 
*"l  c/«i  **«  W  tt/i-*  c>>  <-iKJ«y?^I  Jl!  jiUifl  *<  w;^ 


1363  jLi  ^  i]jj]  jAis  I J  ykiji,  ^  [Hi  i^afc  {^^  J  ct^  i]y»]  in  r 

•  uu;  jUi*  A«.;L.  sit; 

•  J^!P»  yj^  V^'  J*^  JIS  *»(f 

1366  JU  JJU.  ^aJli  uXL.  I^j  5-y  e,W  «/Ji  ,J  cl  «>V  Ji  Jj^  ini 

1367  «-<-l;v*  '^*'*'  sT^-'  tt/i  r'Bj'  ***^  i*t*^  d*.  i;K  ji5  ^v;  iri  V 

•  *u  js;i  ^  ^'Ji  ^y  ui^  ^^j 


[    f'A   1 

1360  J5  fi  oi\h  wiJU  f,i/l  ;IJJ|  tSk  J^J  Ji  JiJ  *s]j^ij3  J-^   in* 

1361  yylil  ^y  y  J  ^;>J1   W  Jl^.l^jy  vV  «;<»  Uy  ctJL^  it^l  in  I 

1362  ^^  ^>Vi  *iie  ^JuJi  jsi  ^>j  .^1  yi  ^^  j^jI  j^;  inr 

^1  cJjb  ^j  ^i  ^  J  ^aJi  jii  J  fA>>  ,-yi  ^  ua  ^if «,! 

(f) 
{}ij^  J^j  ^  *!^>*  J^    f'^J^  <^^    <^j)    «^  f^l    *-^^  (W    <^l 

*xb  ^^dji  ;i^i  Oil*  y  ^  lit^c  ct^iujr  aivw  v-s^l  «»*  -  J-"-. 

•  *?1r*'  ^  J  **w  v^^  6j*  ws***^  (*>*  •-*^.W  *^  jjf 

ii,\  Ji{  w  p  )  •  <i«"*»  4^>U<^j  •-^^j  ^^1 J  «*»«►  y»»  Jy  liA  J  (  c>  r  ) 

[n  ] 


Hf*  4^  vis**  ^^  >  **i;*?-  ^^  ^-^  e»*  ^5*^  *^  **^ 

1358  «iH^  w4U  t.%4lt  4^  iJftUI.  w/fV  g;pM>  J-  4^-  tP  s^;.  ir^A 
4iV^t«A  S4«il2  ww^4,  l«»»».  8!^V>  ^^  ^  Vr(  4$^  i'^»  (1^ 


[  rvi  ] 

1^1^  L-V  »«a.^UjJI  ^  fk)jj]  J  ^^Ji<i«)  tt^W'  V^  ii^jj  yJ 
^J,^__i£3ll  Ul  -  lyLii]jJkj  U^  J,-aS*/!  Jl*'*^'  (■^i\  J^  ^ 
vU/JI  ^Ji  }    '  a^-ttSJI  ^   i;^|  i-ilj:^.}  y,Ljnu  UU  JV  fi 

^•»i  »5*'«i"  ttfi*"  '-^  «-<"*"  */  U  *U0  \.jLsi  ^]  ^jAS  JS  .ji 
iuJI  UiLu  ^Ic  v^  uj'*^'  (i/W  l<^  v^<i^  aI  l^  uXJJlj  ^yLj  ^ 
VyJI  «,lf  e>^  -  UiU  Vj-U)  e,if  IJI  lift  -  Jm/I  «i»y^;-  wil«i  1^ 
AAji*.  ^1  Jy  j^  jjjJ  -^  l^I  v|^l  I J*  ,,_s«»  (3/^'  "^  l^** 
li(J  ^   -    JU>    *ill»  A»j  <^yJ\  ^  Ai*  J^/-»*JI  ^    ji^UJ  *U1  **i»>; 

(D 

1354  IjO^l  uy  |AI«j  *<u«  ^_^  J  tft-^l  jUaJb  o»^|  «AU.  J*.;  ir»l* 
j3»WI  ^^  ^t^{j  ^]  e^ilf  ^uyi  jl  iMSi^^tiJy.  t»,Jifl 

\ji^\i  tix^Ji  •  ajIc  Silai  )  ^]jiyn  ^  tale  ^;(^  t«j  UU  i^a/Is'I  ^y(^ 
y  v.iJ(f  tM:^,J    •    Uil  «4b    i(;UJ  J    cJ^ij  fl*ifi  J  }-  S*e 


C  rvo  ] 

Ji  A>|    s-ijc  J  J  -  u**i*<  S   *****  c>i^    KR*  «,lf  vyfl  «-^i  o' 
•  ^*  I   5JU.JI  viJj  KlU  ^If  Ail  ^J^-  8;VJ)  v.s^«^  tJlU  jl 

1352  *ji  o***^  ^-iJ^  «v«i  j^  J  cJiti  ij^  v^  aJ^  tt/ij  J?-;  tr»r 

f^  »;4*J  Vy  ^yi*  «;«  <— ^/^  -  iuUs  ^  v^JJI  ^ij.y  IJ)  J| 
.  *4^  XJbl  »  »ai  ^  «,lf  U4«  -jU  SiOJl  ,^^  ^ 

1353  jMi  ^.j  ^l^  **Jit4  (.li  ^y  '^cr'i  K^jJj*^  iKj  J*-;  iror 

JU   *JJL».  J  *»*I>J   **/•   o.y-**''  "i^^  (^l>«*   *-*^  O^^r**"  ^' 

(D 

^  d^   *ic  *lll  ^j  J15  -  ASa.  ii.1  ^  aJL.  o;^' j  u-**U/| 
^UjJ)  >iLli  J   aJ  ^If  Ai^j^^U^^^  lil   u,U>l  j^   (Al;afl  aI 


134?  ^\  IkLi^  UW  «4  v»^&4!U  luyd  K^j)  ^  ^  u^j  Sl^   liTV 

1848  ^«K'  •3'>^^4^/^^  ^^yVts^'^l^JJw  tV;  iiTA 

m  ^  \.,»,^  ^^  JS  ^  ,  .  iSjm  a*i  »if  *  iOfia.  *Jsi( '^i^  Ji 
1351  JD>y^»u^U  «.JA«'  ^.^0^  ^^  jHJ>^  ^^  ^  ti  J^  \fi 

cJyt  ^t  ya  Jilt  «j1;i.u  ^^1  o&d  ,^^  3  lij  ,^\_y  ^  ji 


^  ^^'^  ^  tP  -  vUXJI  ^  /J  lia  ^^1  J-J^l  VV  ^^ 
^  ^jJl  (^  J*)  jL  I jf  aImmJI  S^  ^  ^  4)«x«d  ^  Axi 
Sj^l  soMii  */i  4j0if  ^^1  jAi.U  ^  ^y  %shU  (Jfi <j/4:'l 

^1  j.^i^uifa^  ^ifhjj^ju^  ^^i^i^-u^Ufc'i 

A^  ij^fd  s)yi  «»#^j  ^i  jtfbii  cJCrd  ^  yjjij  <j>Ji^  ^'{y*/| 
1346  J«  >  tV^  u>o»*  U.I  ^^^a^  y^  «^*M  ,^  is]y»9  J3  J*.;  in*» 

^uj*u)  y^ ^  *ii»  u^  «itt ^^  J4*,un,  «54;»n  b/tt  tV » 

1346  sj>l^  jjWi  »A^U  ^»>>  ^^  ^  Ufcs*i;  e^  #s|/»»  Ji*  Ci^;  llTi 

i^  *4Ji^  ys  ki^  {*ytf  V^i  oj^i  ^  xj^  ,j4  sfyji 


[  rvr  ] 
cJii  J  ■  ii4*>  ^ u^sisi J  ijij »/i» Q>«  B.'f «,i* ^^  ^ 

♦  ***»i  c5*  '.ft'***- 
1341   or-^    Jilfc    cX«U    li*A  ^JU  ^   c>i;-.«,l   **.»    JU    J^;   in»l 
JUi  »jjk  j^   Jl*  *})  ^;  wU^  ^1  ^  ^j;   5^1  v'l  ^b  ^ 

^,^^)L^'    it;JI  i^^ii^    Jii    (^     i»*;«)J)  t)^^^^    tJJ^    J^^l^ii  ^ 
i,*^i».   L^maL    i^^LmJ  )I    uuoI^    iJ  )  '  y±-'^'^  '   t  4««ai.>    iUuftl) 

o^u  Jill,  c>iu  j^J  usj^i  ^1  *;tyJ  js  I ji  byj  u  ^ 
1 343  cs^ii  ^  j)<in  t-flb-  j^i  ;i jJi  tJA  y,^  jj^ftsLIi  J  Ai1^»  ji;  J*,  I  rrr 

I^   us  j]J]  iJU  JaI  JL*I  J  JiijU^-.)  ,-JJUJ|  J  ^*   (}i^ 
^JUaJ  j   ,^il  Si;!*!*  cJJU^I  il^l  cuJVSi  v-^  j  «/»   «-^'i* 

yu  hj^\  c:A^  ;ijJl  .-a-  j^l  u^o  ^  o^l<  ^^1  ;b  ^ 
a«i  J  l^V  ""J^'  *  ^^'  J^>  «-^^  *^:-J^  V  J*''*'W  (J^  «(• 


•  *«U,  n  (  ^  5  )  »  ijj[^i  Ai»*li  (^,»)  »UdiLo(^p)oJ:<y(„,r) 


[    ''VI    ] 

1336  i)\is>^iL  1  J  uJi*i  ^j*L-  ^  jui  i^^y  uiju  sf^i  irn 

1337  t.U»  UjJLs  ta,^jl  ^U  ^Ut  Ji  ^JuiJ  tJil  *Jt^J  JU  J*.;  irrv 

•  2i'A  m*i»n  ajuuJ  jU.o)|  ^^   e:.sM^  aJUo  q,)  •  au*^  ^ 

1338  u>a*w  jJlt  v^:^U  Ijkc  liJ  ^Uuj  ,,^i4«^  ^I  «,!  *jUJ  Jl»  J*.;   I  fT  A 

^liJI    J^^   ^ijy   cJJl*^)  «><f  Ji   «,^'  j/«   ^^1  *-J^J>#  St^JI 

1339  ju»  v  jyjj  u^^j^i  cjjj  J  t^^;  ju  ^-  jjjj  cuJif  st^J  irn 

•  o^l*"  «/-  l^  «-^  j^  «»>^> 
1340  ^^Wl  ^1  ju   e;j^*   45*74^  u^  "J^;  '"i'  *^V  J^   ^J  '«^* 


VjU.  ca^i  ilyii  o.J*>  u«  jnt  wftju  vi^  ^  ft  j  ^j>n 

94t«  V^  J^  il^l  uuiK  ^^  .  ^^>»  u,J^  >  W*<iU.^t>' 

^sa*  vjuiu  (^^  >!  *«^  r/  '-V  -/»  tti^  /»  *'b<^  *>5  "^^  »«*'^ 

1336  tjHk.  v:^U  ^*¥  ^_^l  >x«l,  ^  s;;^^  v*'  *^>^*  *^  ^-^  "^' 
^_4ar-H,   ..  *_^  1^*   U^  Uijl  ^«^  «a  J   -  ^:-^   s4ij 

[r»] 


[  Ml  ] 
Ul  J**  ^  Sly)  ^  j^  ^  ly  ^  ^   ^  d^^  .  ,i^^ 

1828  c-  ^^^-^  J  ci>n  JW  ii^\  ff^:i^^\  t^i^y  *aJ«  SVI  tftH 

1329  ^1  ji«  fp)  ^  i^>Xj  lij  i>iu  j«aj  *-Ci  j».y  Ji?  irrt- 
J  UU  j«t  4^  U  ?|yi  aiL  cuJUi  ^1  Jij.yi  jt«  jua. 

*iy  jf .  >us  cjju'i  Jl^i  vs^jut  V  rt^  ^^  «!r^  *-^  ^y 
jUJ  I,  .  ly  f^iJl  «ty I  ^1  ,^^1  slyj  vjaj  ,^)  ^ 

^  iuf«  V  >ir  J  «.ji»<  jufi  lift  (Jo^  a;  u  Ain^  ^uui  «.(«& 

1830  uu  jiu.  o^  ^^^jjui*  ^i  ^^y)  jui  i^j;  jjjAj  ctJtr  i1;4  irr* 
c^  >*fr^  *k^'  J«  V  *A  s*'  **^>^'  *»«»y  *V  ^^^'^'^ 

1831  wiJU  %Jp  ^  J*.Ji  ^  ^  ^;]A  »-JU.j  ^1  Aj|^|  J,  j^^  ,^, 
^^   Ui.^   U;»a   tKdijJ   e^,   J»;ld    ll;JlvAJU.d«  jW,' 


^1  44*UJ)  I  Jjk  J  ijJJfl  4flj  JSi  «J1  J  \^/^  ff>*i*f^^  ^*^. 
giyi.Ai  O^  <«il  ^    J«»i>-»  jt.  Sl/^J  Jf*.  «iH  »ii'f  ^  **4«4: 

1327  rUU.  ftV'Jes;''  «^>*  »>  c^yi  tK«*«  J?^  *sl;^l  ftJ»  J*;  irrv 


C  rtv  ] 

13JQ  Uljtyif^y.l^lcUiPi  ,^*;^fl;A.«S4iVoJ»U.8ly.l  iril 
•fii-sj  ^  M^i»i  J  Uy  cilo  ^  UUf) J  JU^li  uu^  ^  -^  ^^ 

^--^  *  -V^V  1  i'*-'^  **i^  "V^  ©>"  ^]j^  J*Hhj  .joi^ 

i  .-•  t^^^^'-rW'^  ?«!«..****<«,» 

J321  *-hVi  *e.^ ^^^^ fi;-. ^1^ 9 e|i.*JVLp«^M«4*y^  irrt 

1323,  4-»  tJliu- »  X4t<  j,i*U  ^It  *;1^U  Uy  .^"i  ^|  ju  J^j  j^^r 
«-i^  4$A*i  JWI  e;^  l45li»;  wJUJl  ^(f  IJd  II  .j^j^U  .i|^y:*jj,     •  . 

1324  *Jl^u  f I  wy  ^u^ii  ^^t.yi  j4«,u;i^  jiai  ^^  ^, j^^  ,  ^^^ 


[  riM  ] 

1812  i^\^  ^  ^^:^iU  SjlV  ^  <JX*  isJUiet  J  df;/*)  juy  ^  Ifl  r 

1813  (««^(y  jjubvjuiu^^i  4Jl*  <^jlj:«i  ^,1  jjI^i  J^  J^;  (I'lr 

1316  jRfc  ka^U  ^yi  IJA  ^V  J5**  '-^-^  f'  «>'  *^^'  J*  4^;  «ri • 
ISlfl'  tjAb  ^aJVi  4j^  k-j  ^  1/^  *-Cu.U  jj  J  *it^l  Jlf  J*;  iri  1 

•  Utfci^  «j^  Ji^Jj  J 

1818  01?  j«b  cwu  ^^j^p^  w/i  Xi-M^W  *y!^>  jsy  J  « ru 


[  MO  ] 

1307  ^  uu  ^  uuiu  Sijuj)  li*  2^  vDtki  ^  tt,i  Ail^y  ju  j^;  ir*v 

1808  *JA  yjj*  y  l^V  ^^  ^jj  Uii  ajI^I  ^  i«<  9  uJJU.  J^;  ir*A 

•  A..*i^  ^_^  *H*j  ^  J  -  *ij^  ^ 

1309  i^yA  ^  IjJI\  ^   ^\j^  ^1  J|«i  *£«  Jail  J  U.U  J^,   ir*1 

^1  jj  ^J^  *i  ^  ^^1  41,1;-  J«i  fJ  e,i<  xxai  J..  ^  ^ 

^  ,  -  i^Ior!  »  LSfl  J^  22j^  ^  Ji  Ji  »SIJ  J^  ^tj^ 
fSfi^J'^Ji  •  «H^I«jy  Ait-ZStjj  ^UlcXf^^  tt<ut^ 

•  tX^  ^  vA^  ^(**'l  bJ^ti^ 

1310  >  •  ^V*  Mi>^  £*V'  *? <»!;»^  *^!f'  J*  *yr'  ^  * «»'  "-j^  in* 
fcyi  j^y  iXiU.  ^  tt,i  ,/*ii  lyts  cj.Ujrf  ^  1^1^  jjjj^] 

•  ifcUar'  Jj;l;<iJt  Jli  yk  J    u£„JLs'l 

1311  5^U  fi  »Jjb  ft^  iAi«.  ^  «J*  ts]^]  ^  J-JA^J  J  cJJL.   iri  I 

u^  ^^  tfJu  JiJi^i  Ail .  cX><ki  jujfili  a2x2«.  ^y  y^ .  ^\ 


j-e^    lyj^ic    Is'OfiiJ  J    •  t'lJ\  fisi  SAkl^  ta-atj,  Ij^I  s:iJ|)  y^ 

1303  ^  (y^  Uli;  ^a^  jj  ,j,l   l^^;  aJ  JUi  uyu  J^;  VJi  it^l  irT 

•^^»V'>"v^y   St;JI  jl;5t4  ej^ 

1304  ^j^  3uu  ,j;i-«^  ^  liJ  cJUi  ,j,l  v-^^  **V*  Jl*  «^^ .  •  ''•I* 

•tt^  r*  «ii  J  -  o>^>  c?i  V»^  wiU.  Joyii  «,ir «,J  lyu  vsJUii  xsifc^ 

^  lyii  ^lii^i  ^  j\*ijj!\  i^ji^  jSjS,  .  «iftu  ^ 
1306  u:^li  IJJb  uXA|k«;  ^  SliUI  (J^  u;^!  ^  ^,1  <;1^J  JU  J^^  |f»«.<| 


[  Mr] 

1296  \^  li»  JS)  ^  e,l  JU  fJ  «-</  »JA  ^M  ct-*»>«^'  t^*  «>!/-<  Ml 
jlfcj  1 1^.  t-Xlj  jj^  lI^Ayii  »  J   O^f  f  ^  i3^^  viJU  ^ 
.  •  Hl5  w^  tlA  *Il*'»  "^^^  V  '^•^  '^  «»'  -^^'  «^  ■  *'*!^' 

1298  U«»  jilfc  ^:^li  u6;UI  f)  IJU  ^t^iJ)  u>JU.a  1^1  ajI^^J  JU.J*./  -t  ri4 

1299  .ciJU    ^;JJb   u:^U»  U  V  JU  ^J  Uyo  «Jt;>.l  ^  ^a  J*;  1  rsi 
<5nt  •tf;JU  ^;jJI  «-Xf3  JLs  ^  jy  ^  J  ^yi  JUU  f.l'l  »A^ 
U^3  ui^^l  Ml   jJLw^UiyU   u>U2il   <»j^    |»ft>)Jl'  ^UjJ^ 

1300  y   iuJ  \£X»«»   jilfccsJU  ^_jA4i*  e>JL^e,1    fe-j^J  JU  J*.;   |r»» 

1301  V  ^j>«  Ji«  j-^  d-u  i^A^y  i-Xii  if  Jisi  Ait^i  \j,M  J*-;  ir»i 


[  r'it  ] 

1291  «uiU  ^U-.  y^  y  iJs/j  ^  ^  ^aJSI  ^  *j1^I  Jii  J-.^  I  ni 
•  flyi  ^U  jj^t^l  kiJIf  lil  lojk  AAc  aUI^;  UI^  JU  .-  ij^  ^ 

1292  jjit  ^^1  Jii  /-Ji  e^  I JA  JA  lifri  Ja  «,t^  ju  J^;  1  rir 

1293  J  ^j^i  waJSL.1 «,»  V  ja  «i-^  «Ai;«  J5J1  *j!;^i  i*a  «|i/«  I  nr 

1294  ^  <Ut;  «s>y*^  131  «J^I  :1;JI  ^iUU  U;^  jj|;/*l  ^|  Jy:.  I  r^i* 

$i^  ^  U^Jici  )    ^\/»3l^i  .^\  fS  jAb  iS^U  od^l  J  JUU 

1295  x.r'.iii  ui/ia  ii^  J^  ^j^  J/i  ,4,*J«J  >Uill  ^  ieU.  I  n» 

SJ;J1  «Ja  f)  ^aJ/J  V  J^  Ub:  Sl;Jt  «<U  w&HI^^I  il^l  vA^Ji^i 
U^   jlbJ)  ^  }  U;i2  cuJ/i  U-^  «j>ii'  Sl;JI  %&air  ^1  1^ 

•  *«»»(«,  r) 
[IT] 


C  nt  ] 

1286  u:^U  ^|;>.)  wft^  JjL.  f^jji^  hSn  v.::^  J  »l1^»  Jt5  J^;  j  r  Ai 

1287  Iftiall  ^  ^  JX.  OuL^I  ^  Ujic  J5I  ^  J  *Jl;-»  JJ  J^;  I PAV 

^iV  *>5  '^  «*»^  t*'  •»*«  Jy^«)»  ^^  ^^r^^-t^JL"^! 

fWI  liU  «j^  -  *-^^  u/^  *i^  s^^  tt/W^l  cV  ^-Xlo  ca4J  t-*>l 

•  !/<  ttj>J^  J  •  IfjJ  Ji;  U«  «jlfl  L^ 

1288  jjX^  lii*9-)  jiUl  jJlb  *j1;>U  (.r^)  ^^  vjO-iil  ^»  JU  J-.;   I  r  AA 

1289  ^   ^.4.a«e  J   Ji^  *il;>U  ^  ^  UW  efcJU.cM  «,!  Jti  J*.;  |  TaI 

jju<  ^«i  jA.ji  ^  fcKdj  UK  c;^^  J  ji5  y ;, .  »ii*i  ^  UiU. 
«1;>.|  e:Jtt  J  Juaiu  Uib  ^^yi  ...iL.  ^i  Jlyi  o V  ^^  j^Ji 


tM-3 
•   A^t2/*  UU  y{^  «JA{  Ail   (i^  wJLfef 

1282  UJU.JI  ^  v£JU  ;|jJI  «JA  ^  ^s.^  c>l  ^!r^'  J^  J^^  >  C*' 
i»i.«N{  JtJ  •  *ji  )jiixL\  tSjijLB  s»ii  Af  ^j^  ;'•>  v^  M*  t^ 

«  llitA.  ^2^  II J  -  aIim  ^  (,*^I^  I  ^IjJI  j$<L  M«j  f 

1283  *-pW|  ^I,/-J  jW*  c:JU  ^1;Iju:JU.j^I  *j1;^I  JlS  J*.;   |  TAf 

iiil  II  «xi.l  uil*  ^  y JJI  ca-iif  e,l  ,.^6^1  e:^^  «J^I  c;-Jlf  ^1 

^11  tt»U  <j,l  J  -  u^JLrt  I  i^djifi  j]  X**  ^1  jj*j  ,j,i*4fl  o«j'^fl 
Aipl  <l».l  bl*  tt»;U  U  jMj  c>i*.j  ^t*  «ju)^  ti);|^  «;lo  «s»/«j 
J^llj-Aii  lyUx^l  A^^t  JaS  c>JU.j  J  ^  .  e,JLsj  I  2».JUt{ 
^IU.<»i   fc2;*L«-«   y/iJ  **!«  J  ;I«JJI  v,i^U  e»t.  J  J  -  liiU.  ^  1 

1284-  JjJl  c;-^J^  jJIt  ^Jl»*  W  «i^  j^l  «u*»J  Jl  asI;^!  J«  J*;  I  rA|» 

^Ji^dJ^V  V^  V  •JlJ  e^fr^  i^  «>•  Wil  II  OiT^I  V 

•  **4*i  ^  iaJL**  I  (tf!;*« 
1285  ^  ^  cJilt  u^l*  flVl  u;-  cXt*iI  ^  «,l  aJI^I  Jtt  J^j  \th9 

•  «v»  vJUJi  u&tLi  ( tt,  r  ) 


[  r«i ) 
1278  lAiti  u^;  e^i  u  AXiiV  ^^^  j,^>4i  yyi  *j1^»  JU  tV;  I  rvA 

1289  ajT>»  ^  ^le;  ,  .yn^  «4>^Jf  Uy  iLft;^  iilyJ  Jis  J*;^  I  r  A1 

1280  «^u  ^IjA  ^  jij  J  j^y  oy-  u^  yi  «jl^j  Ji  j^;  I  r  A* 

1281- jj;^    «,»*;  ^    J^/»    U^Si    *«W    li«-»^  J^;j^l  ^J  J^;    irAf 

^  *W)^;  JU-  -  Ai4»i^  uft.Jl«i  yu  «4i  UJl*'! .};« 1i«  jiT>s 


Cr»*  1 
1272  slyi  vliLy  jjit  cuiii  ^;b^  ^  (•;•>>'''/'  '"V*  J^  «J^^  ^  •'^'^ 

1273  ]ji\S  ILX  yif  fi  i  f}i\h  va^U  ,»j-.^y  b  ^J]  *j\^3  JS  J^j    |  rvr 

^^  r^i  *<  ds-y «»'  ^  -  y^  «j/i i  - f^?''  w«^  c?J  ***** 

•  Aii^  ^  Oil*  «9i^  y  lyi;-**.  jju    - 
.stjuji  ,^1  ju  ^  AAi^  iy(s  Mx^  ^  aU»<  UiJ  «j:rj 

1276  U  ^l>»  ^  ^^*  j:il  V  J*«  Hr-^  **V'  ft**'  J?-^_irvi 

1277  ^  ;jt;*-v'  tj»wy  C4>"V  J«  ^V*w:^>  «lr^  irvv 


[  r»v  ] 

1266  Ji  ^jji)  JU»  LJL.  U:./.  iyuJJb  ^  Xitt  J  l^*.^   uJti  Sl^^   (  ni 

1267  ya  il^  c:Jl<-  «,!  ^^yi  V  JUi  Silt*  ^1  v.:>^>   i^j^]  iriv 

1268!  jJU.  va^U  y  ajT^Ki  t  f^  ;Key  J^jJ)  *AjAi  JU  J^^  |  nA 

•  ^J^{J  OiU  ^y:^  J  .-JU.1  JUi  ^J  p^  /\ 
1269  jam)  j  \tUi  jJUd  «l1;-li  <J»i«^l  »J^  «j:,.*iu)  J   JU  J^;  iril 

.  Ai4*<  ^  u^Jusi  J  JU  l«UL 

1270  v>^  d*^  *'*i  th*  (}^  ^^^  «»i^  tt/-  tt/**^  y  ^;  !^?  iPjii  I  r  V 
u*'*  f*^^'  V>^  tt/^  ^r  u/*  i^"'^'  ^j  V  V>^i»u.ji 

•  »^yi  »«i* 


1262  U*>I  Wi««J  Uil  JUU  Vt^*  J  V^'  c^^"  «^V*»  .is-t;  Jf-'  '  f^ 
c-Jilb  j/U,  us^U  c:^!  tt/*V/'   &>"  «J^  (^  •^^  v-j*«^' 

1264  /I  ut^lSi  ^  ^1^  *^^  Jib  ^  Jif,  yV  *»"!;-'  J^  J^-J  I  r  11* 

•  EiaU)  (^  O^l^ 

1265  e^iW  *»yai  ^  ^>l  ^  u  jW*  ^|;-l  juu  Jd*«^  J^^  in» 

U^  J  LyXJI  i^aU  ;yy(f  JjJJliy  J  .  jJli*^  ^*  Cft.Jlsi  oiif^ 


[  ro»  ] 

•   UC  jUJ  jJlx«ij  2UL.   aL'W  Sj«.I^ 
1267  y  J  •  OL*  c:J5U»  OU  jjKt  u^iU  ^'l;/.!  ca*il  ,jP  *j1;-l  Jsy^  i  rev 

.         •  ^j^\ 

1258  1,511.  ^*  \3Xi  jlll,  ijtJU  ji^  ^l^l  ^/!  Jl  ajI^I  JU  J*;   JfoA 
U^^^  ^1  *l  ^  .  ,^1  Jiw  AiJI  ^^  \,   a*JI  J*l  Xyi^  8^1^ 

1259  »Jaw  ^  ^^;jb  ^jt^  jSj]  l^j;  l^J  JUi  t^  ^UJ  51^1    I  r  Al 

•  uju^i  u.Ji«j  di  «-'^i  r*^  i*v  «V  *^^<^i  J^^" 

1260  ^   i^y^  \6i    tj\y\J  ^ii  ^}jm  ^JA  t-U^I  ^/l  J15  Jj.;   I  ri» 

*****  tt/^^^  «>'  **^  »i5**''  ws*  t)^  •  <i5**''  «f«  J  ***<  tl;*  > 
^-j^LJ  aUI  *^;  *«4i»-^_^l  Jr*  ^  U^l  ^y^l^  t.4^a«il  ^| 

•  *y  *'  t)^  y  til  ( e,  r  ) 


[  roe  ] 

1252  ,j-i*^  ^  ^i  uyii  Juu.  ^\  jUJ]  s»;Aj  J  J  ,_iU  J».^  I  r»r 

1253  lai  viJU  JiTjO  ^  e)**^' J   J^  y*  UJj^J\  ti\/l  Ji  Jo.;  ir«r 

1254  ii^b^  ()<i  ^.)\J^    ^J5fi  ajI^I  J^  ^  «*Jbt;J  t*j  J*j   ir»I» 
^jj^  ^i  eUJ  Li>  ^  j^I  Jii  c:^;  y  1  ^  1^*  jjUs  c>Jli 

1255  aiJl  /U  Ui   IdJ  v.::,JU  ^t<  ^  ^  byy/l  *Jt,xJ  JU  J..^    ,  r«* 
);U  ^(f  sU\  ^   ,^r*;iJI  v^y   J*S  V^  *fti  *»  e/i  (J  J-  C  ;^ 

•  OiU  ^If  jjJI  ^ 

1256  v*»i  f'  J^  ^  j*^  ^^=-*^  si*v>  vjy^ «»'  **v  J'^y  ->  •  f^l 

•  lif  cJU  (  e,  r )  •  *l<>AJl<  (or) 

[  rr  -\ 


[  r»r] 

1245  *MUif  «a«ii  jilt  ^  A^V  aS];/.!  viJL^  ^1  J5  ^  cJJL.  J?.;  I  rp» 

1246  I— t4i»   i]jJ]  c>)aA*  tJ4^  *ijU.  JU  ^  JJl  J  J  UtU  J*;   irfl 

1247  f-Ufl^i  J5  y^  %  «ft«-jj|  t^  J^i  tyy  I  J  joyJi  c-iU  irfv 

1248  Uli  f^)  a«<  Ayli}  «,)  ^   */>*>  ^^  *L)  ^}  J  v-il*.  J-.;  I  ri»A 
e,t  ,j,l  ^;  jH«^l^l   Ji   tiiifi  J  «<V  J  fc-A^j  J^  ^J)  ^I 

1249  Jb.;  ^  ;ljJI  Styl  c:^U»  kJ  fc'I^I  ;|J  J^a^*  J  ^iU  J^j   irt»1 

1250  fcJJLe*  ^J*J  «-X»)  u>JUi  J  ojU   ^1^1  ^)  jjI^I  Ui)  J*.;  |  r»» 

1251  jikJW  *^^^  ^  "-i^  J  *»  V  tV;  '»4  v^  *<'•>  os^**'  tV;  ir »i 


1239  i3j-J  fl  1^1  [^THu  iM*t  ^  t^V  v9jM  iSjJlf  ^a,.«,?l  il^xl   |  rn 
^  te/*  s^V<  s**^  M'  -j^b  8J-JI  XaiJ  V  ^  J  -  ,j;s^i 

2-.JUJL;i  AjJU  J  •  d«Jj  ^  l^  l/i  uJii  y^i^i  J  i\jj]  titii  Ji  f 

1241  fi  iXm  ^]  Miji  ^  t5]jA\  s^jm  J  *Jly.|  jUw  uJU  J^^  f  ri»l 

^  ciJUU  IS4A  l»L.  s^:^;  J*   ^j>II  JUU  ^^^1  ^b  ^  ^   i«U 

1242  li*  lyui  jJit  ^  ij*  iJJi  *j1;^  e^  tt/i  (^  «>•  "-ii*  J?-^  I  rrr 

1243  Ji<   till  JU*.;  <u«^  Jl«j  ;dJi^  SU/I  «;1^l  (kj  J  J».yi  u^  I  ffT 
•  aUVt  ^f»    iiSixJi  ^  111*  4111  iu».^  «_iu,^^  Jli  J  Uk  ^>»|  s 

1244  V'  *^^  ^  i  '•'^'  *^^  itf*  *'V'  si**"*  ^  «>'  '-**^  J^-'   •  I"!*!* 

^^  c^y  J-*-"  r^  ';  ^  ;'  Js  J  *"'  **^;  r^'yi  «>8  *-«u. 


(  r»i  1 

cJJ  ju;  jui  fjjy^ .  j,iJ  jui  Ji^tiiijfi^jA  UJ)  ^^i* «;« ij 

1236  jJtb  k&JU  >ldJl  w::Jli.j  u,l  ^iJJI  «.;>i^o^t  asI^)  JU  J^;  irro 

1286  J5  JU  jj  jJlb  c:^U  jfU,  c:^!  vil  uuU  ^1  wl^l  Ji;  J^j  f  rn 
•  ,^W  5  J^b  J  i>4«»XJ(<  Sa^lj  ^*  ^  uXjJOt 

1237  Iv  «^V  c:H-jy«»'^  t^^^  V^s-^^y^' J^  J^;  ifrv 

U«>di*.l^  -  S<w)j  KJ«.)^  ^,UiU»  U^   Ui«  ^y)  ^4>— ^  ufUn^ 

1238  A.;  iU  J  jjtt  tiJi  ^yit  cuii  jw»  u:^!  aJ^j  ju  J?.;  irrA 
^^iiis\  *^j  ^^]yjyj)  ju  iAjj  iiifhs  saSi  Aij  Jii 

^j    .  M  u^j  Ui^  ^]    tV^   ij:JdJ3UyluJL4jl»y^ 
JB  131   u^l  5_JI<  ^W   «l»  U^^  j*«^^   _i*y.  ^  J^ 


•  Uiii  jt;  ji  uiii ^  f*  jsy 

1230  Jpi  fixJtj  iA».)j  jJU.  ^  ^i^iji  J  tjAfc  vjtji  V  jsjf  y  I  rr* 
Jilt  vjtJl  juy  J  -  ^yii  J  Ji  ^T  o>t  v^^sJi  fjwt  Vv"* '  J 

1231  ^  ttiUsAb  ^g^fu  <JjLsu>  iji  i<»«jy  jii  s^  ut^*  IS  J^j  irri 

jyij  |J  i.tA.lj  Sj«.t^  ^jYI  J  itIUIl  ^  ^  AiU  S<i«.l,  ,i^tu^ 

g|b  1^  ^^1  iSiUj  f.»*ij  jj  ^  ^yi  jic  J  xsfUfl  jb 

1232  <-rJii;ji  Xcuji^yifc  ij^  jii  iju  3  wV  ^oi^i  *ij^;  irrr 

1233  ^  J^;>  w  y  J^^  V.S— J  ;'  (^^  ^=-il  A'V*  J«  J*^  I  rir 
ui y  ^yus  <.s^i  J«y  J  -  *^«^  ^/  viJf  3^3  Jf-; *»*  - t>w» 


1226  tJJL.  y,(f  aJI  ^;.»i»j  ****^S^  U^***j  0*W  vJJL.  J*.;  im 

1227  *J  St;-:'  jui  f**  j^u*  c:-iU  jidJ)  CU.UJ  tt,i  *j1^J  tP  J^j  t  rrv 

J^jJL  ^^Jl  o«t  fj}*k  3  '  J^  «4ilin  ^  d'^  «:-5»  J  dr>' 
^yit  ijuJli  «Ji*-^>J  e>'  *«V  1^*^  i  •  cM  *Jt;>«l  ^A^SUp  jJvt 

^yij  J  SI  sj^Ij  sjyi  cusifc  vaju  ^yu.  u>JI  J3j\  v-JI  jl 

ij:^I  J   jJlfc  vA-i)   J«y  J  -  «-^i  **>lii>-T   Utt  ^0/1  fJUfb 
^IXIbyl  ft  Jiji  •  l*i*9-  liSlt  u:^li  ^i  ^J>i\  ^1  j^^)  aI  *JV^I 

1229  ua-2ifc  ,j^^A.i  aJ  sl^i  I— 4jj)^j  Liiij  ^yit  o^i  juy^  irn 
^y  j»kji  vyi  ^  1^1  ^  lii  s^ij  j^>»i  ^  ,^*  jy,j| 


3217  SJ>^    <1«>^I    (>>^    ^Ul&IiUj}    AiU^i   J2?^    «(«(*«;  J^;  KIV 
1218  f-t—Sfl^l  J15    fW)  ^  J  ^/l  4>W.  Jii*!;..!  *4-jUlL  JV5  J-.;  iriA 

1220  uy  ft;^!  */  ^— i^^  ».i»»l  t>«t  ,^  8t;-i  Ji  Jis  J*;  irr* 

1221  Sj^i^  ^  ^\h  «^i  ^^yi  ju;  m  ^jsi3^  (^^y  v-ju  ff^i  i  m 

1222  •  5j^,  ^  tsu^yii  Uisib^g^yi  juu^^^  styi^juy^  trrr 
1228  U^V-^©>"j  ctJUidS  caJUiuX-Ai^^«^i  jisy^  irrr 

1224  *J  sty)  c«^   Jf-yi  "-i^  ♦JlyJ   ^1   J^;  ^  ,.frxj|  if^l  |  fff 
^^yi  JUi  AJt;*!  VI  Xixxfl  *««W)  wa-^lKi  *j  5l^u  ^  U  ^^| 

•  Aifrw  ^  ct.Jlarf  J  Jli  Vfilki  ^•fyl  vjuilf  aS 

1225  U   *ii^l   o«W  *4>*  ^J-JI   ♦-W*'  *U  J^;  J*5  j^I  J-.;  I  rf* 


1210  ctJtM  jflfc  ctJU  c:,.^  131  J^jJI  J*i  «Jl;-J  JU   J^j  Ifl* 

1211  lil  Styy  Jii  jAfi  l^j\  Jl  fU  i  fyu  5?;)  c:J;*  Sj;^!  Af  J^;  I  r  1 1 

1212  J  vj:,jafc  ^^yi  jui  ,_^^  ^jsiio  ^^  i4^^y  clju  st^i  I  n  r 

1213  V^  lAJaki  •ai.i  ai  Jii  ^jiL  ^j^^  ^j^L  w>J(?y  liS,  i  nr 

1214  Jl;l  ji5  ax;  ^jflt  cs^li  ,^  ct^J  U  cJiil,^  ^1  ajI^^J  Jl?  J*;   \r\f 

1215  y  ^  -  JUiJ  u^ifc  jidfl  wuU..>«,l  i  jjrtt  ta^l  AJt^J  Ji  J*.;  I  n« 
^  ijuJI  yjJ)  «:JU.o  ^j,t;  Jijl'ty^t  «:JI  jlJJl  eU^J  J  JJ 

1216  a*«^  cP  v^  tM  Jlt»*  *4l«  *>)i  f^  ^   J  jAt  u;^|  Jjy  ^  I  f  1 1 

•  it^dJi  oILa  «,!  j  J'iy  ( w  c )  •  iM***  ( w  r )  •  »fr^l  ( w  r ) 


t  r«*i  ] 

1203  ^   u^l    ^j^   tib*  ;ljjl  cJii.J  «,!  jJUi  u:^!  JU  y  J  !  rT 

1204.  yk*  j^jji  ^)^  )/^  ;ijj»  cJi^j «,!  jfit  c>ii  juy  J  I  ri» 

1205  vj,l  J*J  «J:J J  «,lf  J  jWt  jllt^lJJI  va^U.j  J  jJUi  ctJI  juy  J  I r*» 
^ijJI  u>U.Ji  l^^y  )i]j  -  JL^^^i  Sd^lj  JU:^  ,,sjui,  v^  j^j^ 

1206  A»I   e,lJAU  Jt^  p^l  ;)dJI  Ji.J  «,!   UU  jJlt  aJ^I  JUS  J*.;  I  r»1 

•  »•>*«  jJ*i  "i  jijt  ^  i«v* 

1207  Ji  c,yi    Jl«    *    liJl-Si  l.iJ  ^W  v>>^'   *Jty.ljaj».;  |f*V 

1208  tp  *UI  «^  W  o**^'  ***•  "-^^  «>'  t>"^  ^^'  *'V*  «J^  «^^/  '  '•* 

(D 

1209  l*  l^J  J15  ^*  ^yj*  oJli  Xfcil;  0    «Ji  ^iJli  lol  aJI^J  JU  J»,j  |  fl 
^^AijjLii^J   Wji«»'   af>^  «>l*  -  A^V  ^-^-^  **^!>"  ttfi' 

[rr  ] 


C  ri*^  ] 

1196  us^l  ».k»; ^Jji  ^\  U  f)]djL  ^J:^i^]J  ^j  ^]  ^^J\Ji  Ji^-jJ  111 

1197  >IUI  «,!  j^)  *ilM  ^r^  tt-Ji**  *j1^)  jliu  J  ^1  juiiU.  J^>  in  V 
Jij  J  Jj  J*ft/0  JU.1  B,l  J  ^  *i4*i  ^  v&.aV  e)M%  ^.^^  {U^ 

«JU«j  ^      vi^J;^:^  )      yU    ^1     Jju    <U.I   Ail     91    AiUJi    0^ 

1198  ^  it^  u^uJ]  ji;i  ^  ajI^i  jibi  >  ^1  JUWiu^tt^g  ,jj*  Je-j  J 1 1 A 

1199  ^jUi..*  J  J  ;1dJI  «JA.  eUi^J  «,!   j/tb  c>il  *:S]/i  JU  Jay  I  n4 

•  ccA*'  >>''^'  »^  "r^^  t>h  <3^  «^»»  ^^l^l 

1200  icM  ^luJ  jSj  tt;iuJ;l«JJ)  liS^i-J  «,l  «J-^|j  ^jftt  ctJI  Jliy  ^  j(  r»» 
jjflt  vi^l  JU  y;iiJ  J  8«»^'^  JSi  (J  ejl  J  -  ;'«>fl  vaJU.4  lol  Id^lj  ,. 

•  i^j  ly  ;1JJI  ctXLj  lil  JiH  Jib  ^*>jJ|>aJU.d  «,l 

1201  «a»u  e,ti  ^*  u;^  J  5^ij  ^jAt  waJl  iajI^J  Jisy  ^  |  r*i 


>usj-»  ^  t: ->'*'**  J^*  d*"^  ^  -  !>i»"  «u^  43^  ws-^'  >>••*" 
1198  »v  r'*  '^  «(t^.  J  ^j  y*^  ^  <^  s/  **^  '^  *^J  ^-"'^  ^'^  "  ^c 

w^  c-rU*  ^  |J  «,!  «A.JL«i  I  wiJU'l  c*M  I'V  t^  «:/* 
U  •  i^U  ll^  ^Uf.  ^  ,_^l  li^  ^jd^  I  ^Un  J'   -  «ftle  JJi 

1195  iUWl*  Iniw  ^^UJI  JyU  ^  ^ ,  *Jf;-l  ^  I  ^1  *JJLy  ,  mo 
iJtfdJS,  «^  t-JUj  >Mt  ^  o>^  ^y,  Jl  '*^.^  \A^>**t  3 


•  \iju.  ji^  uiL*  ^^y\jk^ )  u<»i;  jxiiJij^  ,»i  m '  ^JJ^\ 

1189  «&iU  c^Ji  Jifij^  ^<H«^  «<-^X^  «>*i^  tt)l  A^'t;^  tV  J^^  I  f  A4 

VH^  ^1  jLji  i»yt  ^)  -tj^  ^  j.,.^  ju  >uii  ojuu  jia> 

wuJUT  e,l  JtS  y  I  ii  ,   -  *A^  ^.   ^  *U)  *U  ^  ^-  vs«il 

1190  cJ.^^  J  V  J^  r**  c^'^  •^^  *-^'>^  caU^I  ajI^i  JU  J».;  m  $* 

1191  AAj^^s£Ji^Jiff(^^^£^^*Ji^iJ>ii^^JSj)j  Itll 
^;  J-*^  J^^  jttJ  Jj  .  ^J*~iryi^  1^^  ^V  ^J-*"*  *"' 


st;j^uuAi  iju  j^i  y  s]^  j^*  ijii  y  ju  tju  ^>)  will 
^yrf >iJ^ J  - ftyi ^ji i^ o«*>*i  jSj ff  u ^  -  i5i** (»^ ,^ 

'   sly)  cuJlSI  ^y*2J  |J[*  j*;tf  ,_iJ|  ^  W  «JSSlb  *j1;^5  J*.;  JU 

U<te  t^  I)  JlCj  •  hjAJ\  ^j  Jx!  ^<»e  I>;^b  jUJ)  ^  •  j^LJJ) 
tMl  Ji    tJftltJ  wi/l  ^   jAt  «;-»)   *Iy  t.)  .  tyiJI  J^  J^ 

■^  -  y  «L.  f)/j|  iy.j  uXfi  .^^-iiSii  Ju^jOj^  «Ji-yi  Jeyi 

Lil  ^  •  «)L.  fl/ll  i>^^  «JiS  ^^  I  ^/I  e/j   vt^JI  JUy 
J*  Atir^;j^  ^  -  v^U^I  f\/\  <U>   aL«  ^I^J)  Ayf-nJih  ^^.iiii 

1188  UL*  ^jju.  vj:Jii  uJiu.1  jju  uiit  atjUi  ^L  J  *:1^»  juy  ^  n  *A 

:  J  jjio.  c>ii  ^yi  w  jw  J  xiiUi  \j  V"«fc  sty  I  ttjU  ,j;4Juji 
y , .  i)W  ^^yi  «^^  jjttJ  >  siiUi  «>«ft^j  iU)  >  ftyi  cjuu  isJLi 


[  rp  I  3 

go ,-  So-.  ^  L^  a.  JX.  vj-yi  eP* .  H»>ifl  ;ly5  ^d^n  ^  V 
>^  /  i^'^    f^y'  ^  t.1   .    j^f^  vA^JUaj    V^l  XI^   uX/o 

y»-  i,j3^»>*  e'-^^  ->j^i  yt  v>Ji^  j-iie^  -ii;^i 

1184  «,Ulll,  gSi  Saa.)^  t^tt»*  ^jilt  «:JU  uJislfc  UK  fal^J  Jij  Ji.^  1 1  A,. 

^j  uu  jay  J  .  jiifc  utJU  uisifc  uj  *iyb  i5iii^  4>iiw:n<  jtt. 
lii  juy^  -  au  cr^jufc  S4^i^  i^ijiki  ^^  t-jii  ^it  vj:jb 

d^^l  ^  8^1^  t^  u>«  ^  Ji;  y  ^  ^  5a-.I^  OTiSlt 

•  u^*  ^  *iy  ^^  lii/- ^  ^  */y  ^^  *4«^;  jij«.ij  c-jut 

1185  j/ifc  \sju  uXsUsi  ^  lii  J  ^yu,  »j:^u  uisit  lii  Jsy^  iiao 

li)  ,   -    ^1^  o«b  l^  ^  XiiliJI  tt^l  ^  »^U>*  ^jttii  ^  U 
^   5?*^   O**^"  e/4^1  v^   Oil-.  ;U  *4iU/|  ,^|  ^  ^^^j;^ 

1186  u-JU  USaibiii^j;^*  j/it«tJU«jtsJii»ipilji  iji  juy^  MM 

1187  4>ttJ  J  J  4l;l  fi  j/ltv^li  UL*  (^1  «j:s«bl  ^  J  *,V>  JJ  J..;  M  Av 


cj^  Lyj)  v!f^  yyi  ^^^11  oi>9. «,»  .  uJ&3  wkij  juy 
•  cJj)i  f],Aj  iiifm3^\ij».i^)j  uii  ^1 4i  «J4<J  jisy  i<v^  -'^ 

1181  XU.  »V  -iJja  j^^/^J  ^*{  «lfyfc  JU^  i*-;UJU  UJU  J-,;   I  I  A| 
*AHk^  ^^  J-'Jj^^   ^  *^j»  y  ^jjb  J^.s^JJh^im/iJ)  ]iUJ\ 

•*>  ^  e»W>fc  iiUH  ^  Uy  U4»  ^  .  Jyi.  JJI  ^'  o>*»"  jyk  Uy 
U,<«JLsJ  I  AiU  ^U9  ju'l^  ;ldJ)  v.sJU^  U  ^  j;ldJI  u:4^a 

I 

1182  UL*  u;JUU>  AeU»<>jU  iIaSj  ^  i^yM  uJ3Ju:  i8>d«i  UU  JU  Jay   I  \  Af 
•  Adit  Z|>1^  fl«)^  ^  J<  ,i^  ^  •^^l  ^  flyiJI  ^,y 

1183  ^^*  (A«J^  Ui^  <j<Hj  <tir^  J*^  ^^^  "^j^  ^  J^y  >  1 1  Ar 


C  fr^  ] 

•  ,^  \jt-4>  ^b  JU^I  ly  <i  *UU  *Jsle  ^JJI  wJJia^  y*^UJl 

1177  «,!  ^yOs  uw)  aJ^^  ;ldJltjtJU.J  3>  ^3^9  \Jtsil  *JJ/i»  Jtt  Jft;  H  vv 

1178  aL«  <»»^  |J  m)  .  Jlall  oiU»  ;tJil^.sJU.<s^vj:^  JUy^  llyA 

1179  Vlk{  bJi^j^  tj:alk);)jJ)u>JU^y  j^v^l  4^^  JU  J».;  HV1 

o_^  ^  t«2iiij  ^  ^  .  guiij  J  A^ji^]  sjOi.^  Jii  ^yu. 

>afl  wKJU.d  J  JUy  U  2})Lf>k J  .  olM  ^.  ^>y)  «V<  y  <1;«J> 


1172  ju ^  ^  «»Vy/'  o«t  *-^  ^i>''  ..Ti  ej'  ib*^  J»J *>?■;  "vr 

1173  yi  xjfV  JJ^  f»b  o«i.  ;!>»  oAU  ,y;  ijii^  1^  yi  jiSiVj  •  I  vr 

f'  st^i  c>>ii  cjw*  ^^  4AL  ^- 1^  y>y  J^  j'  (»^  K^y^J^ 
«>J^  0^^"  ©y  ^^  •  ««»<^l^  *Vl  *<  u/WI  '•i',^  cK'**  >  -J^^* 

J**"'*  ttof'  c^y  «»^  •  ^i=-^ »!;''  s^  o»^  *-  •>)<  «i;Vt^  tt/i^ 

1176  \/i   ^^"SjAih^    w^   ^vj;^Af/^^yi   JU  J*.;  11  V» 

[n  ] 


1169  «»;Vy  M  J«  f*i  w:*J^  *-J^I  J  e/iV '  *'!;^*  J^  J?-;  « •  11 
Uuai  y  nil  -  A/y   tpl  «,lf  o***'!  *<   J^  ^  Ail  ^>i  yb  )  ^J*i* 

1170  •%»L^I«ts^Ji  o«l»l;J^jt;;«>t«  «il*<yyi  *V»  Jis  Jft;  Hv 

f^i  .  ^'  y   1^1  ^^1  ^  ■  A|^  JU«.it  (.ax^l  J^dJ  ^  J    U;b 

1171  f;  V^  ^yu.  «uu  Jii f  1;-.  ^^^^y/^  *V*  u^  J^>  Hvi 
«V1  U44*.;  a*>  J  ««4i4^^l  Jy  u-t*?  ^  iyi5  «j*n  ^  v^ 

.    51^1  Ji  aJI^I  JU,y  U  by  )JA  lyLtt.  J  .  Alt/il  jlkJ  ,j^ 
J  •  ^1  (.yij  UMxe  c:.jai>  i,«.^y  |j  i«ig  ^  (>1U»  ^  t^^'t 


C  fn  ] 

ji  jii  jxkit  j^'  ^1  ^  jiyi  ^j  yi  vUi^it  UW4  ^  o>u 

1163  U^  y  4>»W»  J*J  U  W^  v*WI^T  v^  JIW  tX^J^J'}  Hir 
•  ^  9   OXM  Juo*  «^^  «s)UXft  ^  o>^l  J^  Uyn 

1164.  w  ^  j^Jifc  Xi«i^  ^ ct)>  ^^  8ly.i  Ji  *JJ;^l  ^1 1^  Jft;  nil* 

1166  e,lf«,l   «in,t4J  OL*  jfUDc:^il  d*;  Ul    *iV)  ^1   wiiy^  HI* 

1166  VUffl  ^33  ^  t^l*'  '•>*  v^^  UiU-IJl  *Jt;/»l^  V>*iy  ^  •  H' 

^;  -  3»y|^^  U^^  W^l  VIWI  J^^U;^l  e^^^ 
l^  4>IWI  ,^  U^l  ^  uJ^yk  J  v«  0^1  vUxil  J^j 


[  tfo] 

1158  y^SrM  AMi Ul  v^  J^  jxUI  J^^l  J  I*)  ^  f  h»^jJ\  f3  {\»k 
«<^l  ^^>  ,s^  S<^  A^ik  >  -  v3>W)  c|i>  l<i*  V^  <J^'-  j>U> 

]jS}f)^\  c»ty  i  vU^I  (aV    ^^  l<i*  <»*;  <^  J  j/U>  vj;^U 

1159  ^^  u/^U  Ijl  u^->  gflj^l  Ue*  v^  t/.  a«<  *I  tj<  J  >  M»^ 

«f  jLJj  ^  Wit  Jhoj  |»i  tJJi  i«^  I^U  IJA  Aiy  J^  v>)^  u  1^1 

•  JIU)  j«{    Jl^l  (^  131  lift  .  ^Jll!Ln 

1160  w^iii  idA  ^  «^/V  131  Ud«{  v^  ^*  y^i  ^!y*^i  ^^  ji  1 1 1« 
^  v^  u  j^j  a«ft  o«^)  g^'j  V  tt>'  *  o>^'  e^ff  *J^i 

Ur^^l  ^ .  «ja3  1^1  J-a<^^  lift  ^  •A)*^  131  *Jy  J^  ^j^l 

ff  ^Hifl  ^j  «J03  tfiJIJ^j  ^  Aly  U  d);Jj  lift  ^^  U/lf^  131  tSji 

1161  ^ -  ^  «d«{  Uj  Jl«I  lift  ^u;$  *iyj^  v^  U  J  J^liv'u  nil 

U  ^1,   ^  ^1  v--ii  VUWI  ^j  '^^  J^ti  1^1 

*  Lt^  <»"*(«f)»»i**T«»^U^(«r) 


1150  yijjL)  jjub  3jL^  ^;ij^j^\  vyt  y^i  v^A  ^  v^y ,  1 1»* 

•  Ar^*  iAJj  '  ^   tiHo^J   Wl  A^^  I  U  Ail  ^^1  J-  «^ 

1151  ^<V«  J  »jlir!!  ^/i  aJU)^  ^ ^   jj^^l  ^yt  1^1    |-;   <u«^„;ej  HOI 

^jASit  aU«  Jl;y  ^  .  (2j  y  aJI^I  jlk*  t^^^tA*  t  ^6^  a12«  Jp^ 

•  A»ll»  jJi  I    jifci  AlS*  J;  ^  A-l;  j^yt  *^  y 

1162  lil  J-JI  J  AflyJ)  ,  y^l  «;-  8i*^l  ijri'l  «;^  %»/  J  ^  II  "f 

U  Ai)  ^iar^l    ^^y«».^  AjJUJI  JU    ■  «^  lyUtili.)  ^|  ^  jJU> 

•  Ai^  JMj  I  cXar'l  Ai*^  I 

1163  •e^b  JiVij  ^r-^i  o"*»j  n»r 

1164  •  AiUfi ^  ajii.  iiij  J  i_ruyi  ^  ji  giuig  aJIsc  jy  ^ ^  i  lef 


1166  ^  e»'  ^r^  v,^  J  -  Wy*^  J  *^>^  tt/iV  «i^  *^  '  •  "• 

•  UyA«/«|;j^ 

1156  *-r^  UA^a-aJU-  iut»,«».*^ ^  2)jkALK/*  •  ,j,i|a.^  ^  yij  ||»«1 
y  ^  .  Ai^y  ^  «^  ^  A?.^  ^  U4;»l  ,  1JU»|  J  Xai«-Jl  ^ 

•  Al>1;J  i  U^  ^  >  ^1^  i  >UJ|  ^   il^l  ^  W-^  ^    AiikJ-JI 

1167  xittL.^  va^aif  e,i >  -  Ui-y  J  J  o'ij'  e*  *  ii«i-»Ji>  ^  m»» 


t  rrr  ) 

M»S  ^  ^ii'i)    iA»i  ^U>  vj:^I    jUy  y    .    f^y^   tSS\i  iSaJij 
1145     •  *iiU  fd^Ij  ^  IJjLft  yij  j»J^  c;Hrt'l  t.  Jrtt  c;-JI  JUy  ^   MfO 

114«  sj^i^  ^t*  j^  **^  js^  ^i  J**')  Ji-  t>JU>  «:^i  juy  J  I  ||»i 

1147  «,!  J  ■  iAa^i  ^  '•**'^   CKW  >4I  ^    ("ij^  iVU*  OJ>    JSy  J   \  l|»V 

1148  ISU^ij  5<UI  SSU^ljSj  IJA  Jl/.  ^^s^l   Jisy^  |||»A 


♦  gjU  XJm  jUl  J  ( y,  p  )  •  aJjJi  ( a,  r  ) 


trrr  ] 

1140  4^1  **    •rf^fti*   Ji  J   1;^    «^i  ^  i    ^^«»J«I    J5  ^  i   \\f* 

(P) 

1141  AHiU'vae^    SiWI  A{  u^  J«  ^    ^cUaU  ^  v^l  JUiy^   I  Ifl 

•  ,!£;*.»  ^  t-iiwJI  •-»;*.  ^Jl*^l|^«*«l  J  J*y^ 

^  .  ^  v.;^jui,  *j^i^  f^i  iJjb>T  Jj  y^  -  ij^i^  ^ 
u!  .  ij^ij  »i  j2i  li  »;i.T  ^  usi^  ^  f^i  J;)  ^  ^yi  g*Ji 

•»*•»*<  ^  f^'  ty<*»  «-:^l  iP^ i-  »«»^'i  C?i  C^l  J  cr*'  J^y j 
•  ^UJ  *U|  Ih**.^  »-i-.yi  y^)  3  «*ii*  ^j*'  4^  ^^  e/t^"*  *A-^ 

1143  yii  fJ  «,!  ^  -  e^  liW  d5y  Ji  ^^  ^  t^l  **V  Ji  J^j  I  ll»r 

1144  y^  yifiji  e^Jin  j^y  J  vjjif  8j«.Ij  j^tt  cuii  juy  i  I  irt» 


I 


[rri  ] 

1186  iJ^^  a.JL*lo;g  uu^  (ir^tt^^  lilaf)|«i«j  o>^l^«|lj  Mri 

1187  iifti*  ^^)  t|r5  ^^  o»»Ji  ei»  v>v'  f^ ji  fiv  JJy  J  nrv 

1188  J  -  «»ii  «-**  ,^)  uy  ^  u/**^  *-^'  **"  *5^y^  J'  J^J  I  tr* 

1189  JjOU    CU^  JU  J   ^Ji-I   ^^oJuf)  ^JA*I   *J1;/«I  Ji  Jft;  |  \n 

tstfctjab  M,^-Vb  ^ifj^  j«KJi  ^^jg cHki*  Ji»V^ 

U^  JlkJl  won  J  «*ittJb  c:^j  Mii^yi*  e;*'(J  JI»Vj 


1127  »  tiVj  \5ik  ^  Uifc  ^  J  *L.)^;| ,  «,;;)  f;I>i>  JUy  ,  i  irv 

1128  iS^j  ^jiU^,ii6]  sLii  ^lyi  i]  ujjIc  ^  oi^uxn^  ^yi  ^  1 1  ta 

1129  (.s^l   ^.»«l  i»i))  ^i)  ii^^  oljOXJb  viJUlfl  oy  «)'  ^  »'ri 
2j^  ^^Jt  «iU   ^_j«»A»  is>yA.\  vj>JUi    vx/i^t  >iXa.Ij  i^I   uXk*^ 

1130  •etfiiUjai^  ,j^ijun  juii  ^-j  ^  Mr* 

1131  JSUI  ,^^  vji^Ujt^s.:^^^  JUi  Aj^;Uig  o^ic<>iy^  itri 

y^  ^  A))  oj-fli » J  -  xifu  Sj^ij  gSi  ^j  j^i  ^j^  j^jB^y;^ 

1132  ^isiii •  f«Jy  ^^ **•*>;  t.»a.lj jSi ts^jy  wui  ^0  juy^  i irr 

♦  uiiifc  */y  ^;i*ij  Ail  -  ijiJi  ^ii 
U33  *il  45«Mi»»  J  :V^;  e&^  »A~a4tij^"U  v^^^j  oU»  uXh  Ji5y o  I  fir 

1134  c;>^^'  'hJ'^'  J*^ o***"  ci-^J ^  y;i  ^a/j jjSL.  jisy,  itn* 

1135  iA-.>  y  .  f.>;i  U;  j)    f  jy  *lj  y   l«I  JS  y  v,^a-^l  u*>^  ,ji  J  I  iro 

«c^j  jisy  u ^  -  yii  ^  u  jiiJi  fhi  yA»  i^  ju  /  fSMAj^ 


1117  ^y  )\  ^^isiii  ,^  ^)  vr^l  IJA^  ^^i  ^*»il  yjk)f  t  u\v 

1118  cM<  J  »'  €?<*  0»»»'>  v^y  J  X*>U  iJ^k  ^  cyl  V  J«y  >,  IMA 

•;^,  ^u  jjwi  5-j5,j  fjtAjy^  »b/tr  J^y  3  -  dy^  '^' 

1119*  *iy   t!^^  e^   olbJIylfJ   JU,  cu^l  jC*«,y-  Jiy^  mi 

1120  ,^^iau  fJ  ,j,l  cuiUi,  JimII  JUU  ^^^  l,*.^y  «fyj  viJliy^,  I  If 

1121  ^i/l^ia/)  IJ*  e:^  JUi  IjuO*  ^j  toV)  ^K»  J  jiyi  ^^^i  n r  I 

1123  lyu  fob^w  J«  wA  «-H^  i«*i^  tt)i  y  t^jM  ti  oJii  I  irr 
1124 ^  JUi «j;b ^ ^^1  i^ji^ ^\/  \^j,y  iy] v»  juy ,  iiri* 
1125  •*ii^«AiiVJi'y '-i^tir"^^' V  JJy^  iir» 

1126  *^^  5$.  >  S^UJf  tf-li«,»  g^yi  JU*  JUUt  t^^y  8r;JIcJU  ,  |  r^ 

•  e»;^i  ( «.  r ) 


[  rrA  ] 

^4*31^1  ^Ji\ii,  US*Jk,  JUVj  -  ^v3»^l^y  J  ^iJ^^ 

1109     •untcj^o'^icfy^  ^lU'jtsy  c;****^«^^  "•' 

o»kJ)  ^  ^^  "y/^J  v^^  4-^^  1^'  ^=^'  ^'  I;*  ^^' 

1112  o^y,  ^'i^ z^ji^  J^ ^iy  J ^^>^  ^jy*y^^>^jfj>  nir 

.  ^w  an  *^;  iijw  ^1  *pi  ^  cSi  jjyi  *< 

1113  Uj  '^^  «^r^»«-^i;y^^Vc5•>i^yy  Vjuy^  mr 
1114. 1^^  -u«y  '^'  *5«^'  tfi  c>**  «-^J  ^  t>«  f*  J^^  J  "  "• 
1116  y  ju;yU^-€Si»  o»i»Jioa^^  eXji^i^WJjuy^  hi* 

1116  #8?.   qHM^j  ^^^  ^  JSjfj  Mil 


( rrv  ] 
1103  jufy>  -ii^i\  tf»(itixn  ^ ^^jAi oikj)  jJiJ u;i ijw ^«;  n^r 

1104  yljJ  Jjy  ^  -  liUn  XxiUS;  jlkJI  ^  0»tJI  S^JIJ-  aJU^,  mi» 

M 

Ji^  .  ^JUJ   ail  A**.;  iii**^!   t^  ^    A^   o^^.  0»^' 
^>(  ^jfi.  f^]  ( «,  r  )  t'd^W  aUi  u^^j  a»«*j  iM*  v««  ( «tf  r  )     ^ 


C  rn  ] 

1094  U   I>^^1  e,KUU/*    v3>^l   V^  cS«S    ri>j<U,.^  J>>j   1*V 

1095  UJJ  ^Vb  i.s^  W  JC^  ^  iyJ]  »i[y]  JXb  Wt  jjby  ^  1*1« 

v^  fif.  ^  ^1  oiyi  ^  <u.^  ji  v^  tt^J'  >!W'  '-^i'^  r' 

1097'.,-*>U— •  tfU  JU-  jSy*  *j1;^1  jjUuuJ^I;rjj^j«'  131  JJ^I  |*lv 

1098  ^ip  ^  iv^Uy  (^j^  i^Slki  yjJ\JiAi  ws-JLJ  I^  ij^^  |«tA 
J  •  «ni>  ^1  ,1^  M  i^  Mi^  ^  jUa  (>k*'i  Jt*  **^^ 


1099  ]^,^>  -Ui  l^i/*  i3»^l«(^V  o>l»n  J«>^^  <4^  t*^f 

1100-  ^  ^       ^     •u/yu^,'*aik.iiu.  If 

1101  •  U>i^  u^  JLj^t V>^  sf;Jl  JU j^^  0^1  i/J^  Aiu^  1 1*1 

1102  %L»jf^]^  u.MaAllAJUj  ii*r 


t  nt^  ] 

i  jji  ^y.T  M^^  s^>  '"i^  y^*  v^  oMU»  oJl  Jisy  '«»^  ^ 
»*-*»  jsy  J  •  8«>»l,  «J:-iU9;UJJI  J  JiUl  ^  j^JU,  caJI  juy  J 

Jilt  uuii  juy  ^  -  iJ*  c^JOfc  tj^jj  J  u-5,1^  ^  jju*  ctj)  jiUi 

1092'  liU  «J*f,  J^  gSe  dc  iU.  I Jl  J   j.^1  jJlt  cuil  Iff  Jisy  ^  I  •u 

1098  v,;-*iJI  ^j^  ,^  43«w-  «,U^;  ^  jJlt  uJI  J^  ^  JU  J^;  I  ^ir 
tf^  «;i^  t>^  AC  ^__^  jJU.  iaJ)  JUy  ^  -  „,l^y^  fyi^l  ^ 


•  tji^i'r  jlJtf  ( te>i»)  •  «  ^  oMi  ( «)  r )  •  a»>-»  -A^  ( «>  r ) 


(  rrf] 

1085  y  J  *Jt^l  uiJill.  f  Jii  jJlt  II  Sl^l  ud'^i*  !;*«  *»  J«  fe  I  ♦*■ 

jikJiyi  jJL*  ^i^y  ,j,i  lyu  *j1^i  AJtu>i.  o^]yii  ^\  ^U\ 

*3]ja]  Jic  ^ihU  UUjf  Xoj  *AliJij  JlhD'^JjjLJj  ii\ij\  u^ 

1087  *JyC-.  «,»f  «,!   ISU  J15^*  u:.X.j  jllbcaJr  iS]yo:t   JJ  J»j  |»AV 

•  J>^  9  (jo^l  MaiiS  oyLiJI 

1088  Jtt  UU  JU;^  *l  Ji4«c:^L,^  jlUic:^!   *iV*  JUJ*.;  I*AA 
^j  i^A*^  *^'  <-!>*  '***  «>'  <-'****  ^^  '  ^  (3^  t.i  *-*r>i>i* 

Jli    -  j^JUJ  itlfl  Aaa.^  AoaU.  ^I  Jy  lift  ,5,1  J*i«4  ^  -  *iii  lA^ae^ 
#  tSi;^;i-fli   00*  ^iU?.  J5  ^  i^jA  J*y)  jlt  I  jl   «^ 

1089  ^yi  ;!>»  J12»  ;l>»  aJ  c:Jlfii  5a*.Ij  jJUj  cs-JI  *i1^J  JJ  J^;  I  •  Al 

^^  I  ji  yj^i  ^."i^  t>JU»  ws^)  jmy  \^y .  ia*.»,  ,j^5U> 


♦  aUAaU.(^,»)  •«JC,,t-i(^p)  •<yilJ(I^^KJ*(err) 


I 


r  rrr  ] 

^y^  iSc^i]  i  liJlS  ^  «S^j^]  f\  *JJ^)  y  U  J  .  tS]j^]  jUaJ  Udip 
yl  ^    JU  ^   0»t  *-  1/  /^J  JlSi  (JJ^I  jUaJ  ^^  ^1  ^ 

1079  >l*J).  ^ia.  J  o«l»  *«  u;^  ttjiy  ^'J  S--^l  ^  *5l;^»  Jt*  J?-;  1  ♦V^ 

1080  *i  Ji?  fi  bX't;^)  ARaUJI  XJjt  Af  Jam  «AfliL«  St;/*)  AjiXj  ^  Ja.;     I  ♦A* 

i^JUu  waIs*  <i»  ,jj;^  it;^!  ^  ^  fi  J  oUiJIk;  <.«^  cJJL.1 

•  fLos  Ait^l  jJilJ  A>)  j^C  j^^l  ^    .  *4i  lyiUi.1 

1081  ♦-iU  jP  «ly  j^I  **1«^  8|;JI  vj^AJki*  Jm  SI^I  ^jjjy  lii  ^  I  ♦*! 

«  *;I;<.|  iA.g»h  t>/ii»  ^  j-v— *^  »t^I  *i  ^i-Jlf  J 

jUs  iu>j  Jbk^l  JtS*  jll»  ««u  u:^X«i.  U  aM  Jo.^  «)  JU  |i4  A«*i  U 

1083  e9iJJ)  JlSi  ,.^1  ^  ^^-  ^  J  jJlt  cX-f^l  *J^dJ  JU  J*.;   I  .Af 

J^    ^^jA    U^  J\Ak  f}    lol     AiJ    -    i^ji    ^]  ^JUifi    JUl^ 
lOSl  j\jtJ    Jt5i    «J/};lf^J*J    oXl»*wy  ;l  ^;    «;4»J  JU   J^;   |-A|» 

;;^Ji  iJii  J*i  y^-^i  U  ^  f/  y  ^  bi^  ,jj^  o»t 


[  rrr  ] 
c'!)*"^  u5^^j  '"*'  *-*^  ©>"  <J^  ^*  eJ^  ^  i^iXiL^ va-oJ  JU 

•  ajI^J  t^'  J  Jlkfl  «#  J;i  ^  5  ^jJl  Jib 

1074  t>Uw  J  JIfc  ;|>»  U3UI  ^^^  JUU   ISli*  ^^  l^^y  w>JU  «1;-l    I  ♦¥!• 

1075  cUU  ^U  ^ijl  ^  ;lall  jj;..  ^ja^  I  «j1;/.J  JU  J^^  |»V« 
aLJ  j  l^Xlw  bJJU.  «i)Jii  fi  A>)  jlkJ 9  iL>3l^  o^^  o>^W 

•  Aiy  J^l  J^    U^jLC  Jllu  cJ>U 

1077  •  «2U]  ,.sJttt  ^-L.!  JUU  cH^  ^  *J  JfcS*  jAL  JIJ  J»;  I  ♦vv 

1078  *,  ^1  jj  ju ^  uw  fyi  c:.jat  jis y  ^jitt  syi  ji;  J^;  i<.va 
JIS  y  ^  .  aJI^I  fJjiijf  U  *lt^)  jlLJ  ^  >UJ  Jj^  >  ^-f^l 


I 


C  rri  ] 

{irOll^  AjiCLfL  i_^J4  JU  tol    9)   UU  jUui   >l^|  „2^  ^bjtj 

1070  isit  «j^.   o«W   ^Uil  ^l^y  e,l  JLb  Jit  «-»<y  »l]j^i  Ji  J^.;   |*v 

«JX*  Jib  iu^y  ij:ij>>  ^t;i  Ail  Josj  jj:s^^txi)  i<yb  ^9  •  v  yi  J 
«j:; j  jjsj  ia>(juivj  i^ju;^  cr^i  jis  y  ii$  ^  •  z^i  ^  <>j»  ^ 

^j^   Jdj  L.^  y  ^^  JIM  ^Uul  ^  aJUL.)  ^^  Ail  JI  Uil 

•  ^  I  U3Ufl  a;  jI;I  Ail 

1071  j4*£-j   lii  „;  -  UU  cuJ^  U  liJ   JJU.  v-JI  Ajf^l  JU  J*,;   I ♦v I 
J &e  J».l  «-ih*JI  *~jj^  <     «|»>.»  ,j»j^    (i/i«)<^l  J«t  J  <a<WI  ^ 

1072  »l;JI  ssJia  ,^1  ^  3^y^^  uXU  i.*ajL.l  Ul  aJ|^-»  ju  J«.^  f*vr 

•  ^^  »  (  4y  r  ) 


1058         •  iXili  Sj^I^  ^  vA-*iyi  JX^  i^\j  ^}i\k^J>i]   jSjfj   |  •e  A 
106&/.*'!  Ji.jl  ju.'i  JL.jl  ^UHJl-.jM,va^|Jl5y^  |oi 

1060  tt^^>  ^r^i-l  jJltwuJI  \j  J^A/I  Jw  «j1^J  Jis  J^j  |^^» 
€>>  •-**^  s^'  it/"  hh)  ^  *i  ftfy  v_s»  fd-'ij  jsi  un  J  ?j«j^  ji 

1062  iAJ«,nyisa*  jAtc:ju^V'^y=«»'*'V  J«  vVj  fir 

•  ISL*  csJOt  ^j^l  ^  Aiy  .lie  a/l<  UiQJ 

1063  .v^  ^^.jttiJfl  8j;AjJ  e*  tj/lt  «:^l  *J|^>  JIS  J*.;  |<.Mr 

1064  «jtJaJe  J^jJI  jm  uXfj^lf  jiUkj  JJj*  jjlfc»j:^|  JUy^  l«i|l» 

1065  o«t  vXy^J  ,j^  Sj^I^  ^;  JUi  ^I^;|  d^j  olL  aI  J».;   |*i* 

1066  *UI  **»;  aj^l  ^j-oJI  JIS  iu  ]^-  JU  jl  ^y  *j|^>  JU  J^;  |  ♦•i^ 

1067  o«^l  ^  »    *U)  A**;    f-tiUI  ^1  JIS  *-,y  JU  jl  ^ y  jUf y  ,   |*i|V 


•  ^3^)  ^  ffiy>  «^3  ttj^ 

^  *ie  art  ^;  U  V  JU  .  ««  Jl  ^  52,  Jlkn  ^rj,y  ^I  lyli    tjj  Jib 

1052  ii.1  jW»  vjfcJI  JU  Ui  UU  jJlfc  vA-il  aJI^I  J^  ^I  jT;!  J*.;  |.or 
tY^I  «.s,JU ^  UU  JJIL  u;^)  JUy  ^  .  Sj^I,  ^  oU  ^t  aJ  ^UJl 

fj*.)^  Af^  l^t)Uj  ''jb^  uf'^^  ^Ib  u:^|  aJ^  l^jLal   S<>a.lj  jJU> 

1063  i^  c&jai.  J  i^oi'  ^  cXsaUi;  uCf  u:^^  fil^y  ju  J*.;  1  •or 

*  MJi  ^j  iJiik  iJJ  c:^^  Afy  tJj2>  .hi]j^  crVly^ 
1064  JUi  ^It  ^  WH^  Sly  I  c:,JUi  ajI^I  jlLi  J  J^y)  oJjl  lo)   |  ♦»!» 

1056  Uib  o>^l  ^  )  2sUw*  (Jh««.  JUU  Z2lk«  ajI^I  ,^^  Ja.;  |«o«| 

1057  >*Vt  •)•)*  jl  h>]yJ)  •>«>»i'  fj**''  •»•»*  J^Uic:^!  ajI,-.!  JU  J*.;   |  ♦ey 

•  e^iJfl  Ji*  4j/it  u:^i  juy  iJij .  oii*  wi^job 


[fiA   ] 
«  iS\y\  jttu)  ZaiL/*  (,^««.l  J Xalk*  U.U  JUU  uXil^t  ijrJtUi I 

1045  v!^  ti*  tyi;  iUw  ^  iA^  sj^Mi  ^isui  t^^y  u:.jij  iUi  i  •f • 

1046  •  fJo.!^  «-s,J5ll»  5j^^  v.::^!  V  JUU  ^JLSlfc  t^^  u;JU;  it^l  |  i»i 

1047  uiJUi  4*1^1  f)   AjU  vj;JU.Ji  ^  jl  fd^lj  jJl^l  jlfc  J*;;  |*|»v 

Jftii?  ^5»  ©yi  Ji^  u^j  ^  *iASt*  J  v^i  j^  bi*;  j»/ J  van. 

•  A^Ji^  II  Sot^yi  ^*  y  2JUJI  «<)*  £j^ 

^i*^  24-;UJt<  iJDi  Jis  ijj***  jy  ^;  i^uji^i  *kain  ji;^ 

L^j  Aft^]  jA^\  ju  -^y  ji )  (^jo  i  jwiyjj  ^  J  pTy  ««hiJ 
I ji  «ii  iiU  J  •  Ajj^  \ji,>^^  ^j^  131  Aj^^uui  ^  iftyji  ^^  (4;*  y  <ui 

1049  J  J  oi— w  e< »  **i  «^u»i  i^i  ^1  ^:t-^.  J  a>  c:ji  juy^  \*f% 

•  fWi  jj^  y;j»;».  t-jA**  «s»;a.  u  Sowi  ^  -  j^y 
1060  fjy^^UHi  J^J  fflj  jsi  ^^  i^,y  slyi  vjujuy  J  i«». 


[riv] 

^\  «,tiy  ^UJ)  JUJi^^j]  JljSi]  ^y  ,^,4JL-^|  j^-^ 

1038  8^1,  l^  *>l  ^;Ji  J  J  ^^  ,j^*  jl  S.x*l^  tj]y»]  ^U.  J^;   |  •r* 

1039  e>;  tt^I  aJ  J*?  f^*  *.s— A  JUU  c:^-jky  ^-  «i]U  ^^1  */  J^i  J*.;   |*ri 

1040  tJ^vi^  jwy  J  - 1>* / 1.  gSj  J  j/it  U)  ^^  «;!^j  js  J*.;  I •!». 

1041  J  ^  .  UU  «:^5lb  jl-kJI  ^y  J  UU  ^JL.  v^l  ajI^J  Ji  J^;  |«,*| 

1042  uJU  a;  ^y  ^  c^«l  Aj'tt^  t^l  ;UU  ^^  l^^y  l:JI;  S|^|  i  «|^f 

1044  J^jtJ^jlj-  *JVI  Jli"**^  *t  '^yjl^  *r  4^J  J«  J?y   I  'l^l* 


t  rii  ] 

1081  5**  jj;*y  ^^  Ji  ^  «;-  f^<  Ji    <>^U»  «^'  *JV'»  JJ   Jft;  I  ♦« 

^^  jufcn  j(  ji  uJi  ^i  c>*»i  ^  ^  i.»«Jj  JjJi  f>4n  ^  i^ 
•  «a«.ij  II  ^1  cuuikf  ^T  jiu.  ^s^i.  jiy  J -la; 

1033  ^y  ^  XL.  J»u  Jlkil  584  a-  ^1  jJtt  c:^!  xjI^j  Js  J^j  i*ir 

UU»  j^ik  ,p  ^  jiJ  cXafc  Ijjt  JU  ^  Sao.1^  tUj  ^b  Jo^  JU» 
1036  y  J  -  ti^j^y  1^  *  jV*  ^^^  '^  j"   f'^'  '^  J^  tiS  'Tl 


[  n»  ] 

1026  JU  ^t  f»«^  Ju  iJs]y»]  jlfcl  J  AiJ  I  <>J  Jft;  Jts  y  U  >  I  •r  • 
1026  jUi  |AI>.  ^^yi  J«  fif  o«l»  I;  c:-!;  U  ^)>.   «>I  J«  J*;  I  Tl 

vX«ii   ^_^it    *j1^J  JU-y  U   «J^  Ijjfc  J«.  J  .  ^;  Mj^  ^ 

Jtlfl  «*».;  AAXA..  ^^'  jy  k^     ^  t'<  *    '^*  V-S^  ^■^'^^  '^''"^ 
«^)^l  IJA  ^  Lil  ^  -  X<&».)^  (2j  Jlia  ,jft/«i3b  Jayi  eXf6  JU  y  j 

1027  juu  ^;t*Ji  ,juau»  Ail^i  AJ  c>iuu  uyi«^  jc  *i»  i-J;*  j^;  |.rv 

1028  •«»MJ  o«^  e'j^V^'o'^i  •*''* 

1029  f^L^it  ^  «,y«*')  lytj  eirVi  J  «y*Ji tt/«  J^tin^  i^juj^  i  ti 
^  ,jj^i  ft^  ju  J  .  V  UK*  uu  lifc,  ^rti  cXfi,^^ 

Kji'a  J*aj  AaJ  jj;C  ^  ,^l*'1  vj»  ^^\  J^  l^  J*«i  e;^ 

1030  ^Vi  c^aUi  jJ  JJ  ^  <JU  fL.jj  ^^u>  ^  «i1^i  jUd  j^;  I  •r* 

J15   l-«lj   ^K  ill*')  ^JSS  ^   olWI  ^1    Jli]  c>iJ  ^1   J15  ^* 
■^  fl  «»'  ^   -   C*»j^  0«^  fS*'!  ^^^  ^    ^1;^'   *-i:-S"»  •*»" 


^UD  vf£JI  Ji;  «U^J  Jl^efjl  J  ^i=^  *«U  ^  o>^  ^  ^^  J3i 

*  i«jum  ^  Ail  r\j»n 

1021  lAajfi  Ji;  J  jIU»  *i-»l  jlUb  «>il  jJifc  la^l  ajI^I  J5  J^  |*ri 

1022  o-*^  o^r"  tt>*  Jiw  ** *A-4i«  Ji y  jiUi  «aJI  «i1;^  jtf  jy.;  i»rr 

1023  ^  8l,-I  Ji  JS  ,  *,»^U  »i»,.fei   iV«  uXfl  .^   *l  J15  J^;  ffr 

•  «Jl^i  jjttj  J  Ail  j^VJi  ^  jio  jW. 

1024  c;.JU»  f«J  ^^y)  JUi  ^^  jUJ  J  j^'l  I— ^^y  vAJtJ  fl^l  |T|» 
ij]   J*!*!  j^    Ajy  c»-.^l    AjSiJl  JU   ^^    ^5.JLU.  i1;JI 


C  rir] 

1009  >U»«  JU  ^  .  jJiiJ  I  VI  j;lyJI  ^yj  A-,y  «j1;^J  Ji  J^j  I  -1 

1010  jl  S<wly)  v;«l  Sd^lj  ^  JlU)  Ai^j  i^j  c>il  a!^')  JU  1*1* 

1011  •  lib*  us^jat  cj^-aiJiy  jtui  8,^) j-  JU.  ^  *«iy  ajI^j  j« y^  i •  1 1 

1012  j-UUkaJafc^*»lfc;lyb^l  L.^-a^j1w-M^«  UJ  juy^  |.|r 

1018  *-  ^jy\  JU  ^^  si-^uy  ttt-jy ^ J  t^ji  i-y^i  cj;^  iji ^  I ♦ir 

1014  o"^)  j^y )  j4  *i4i«>  li  ^^>n  jsi  )\^  y  ^*,y  8]^)  vj^ju  i  *ii» 


1016  IJJk  fUJfl  ^1  Ji  j^iiiS  ^yi  JUi  <d  Jtt  iul^  JUy  ^  |  ♦Id 

•  ^y  e,l  J  o>M  e?i  * 

1017  o^u^y  J_JU  ^^^^T  AJJiSi  c\jA  jibj^;  fiv 


1000  »*^  J»y>.,^utJlb   ^  Jilt  ^:;^l  aI^I  JtS  J^;  !♦♦♦ 

1001  Jtf  u>J»^    jrtfc  u^l  Jli  jl  ^^1    tjllt  uJI   i5]j^S  J5  Ijl  I  ••! 

1002  Jt  J^  f4^d  ja  ^«iJ  w:JUi  ^  ^^  l^^^  uJU  i1^  |**r 

1003  t  Ctf  <C.J^  (JlkJl  ^  S^  UJf  ,_^  «!|^1  J5  Jb.;   I  **r 

1004  ^> .  JUUJ  (2^  JMU»  ^A^  c^  ^^>  («>  tiH^UI  «!l;^  JUy^  |*«p 

100&aJab^i>j>t«»l^  jlU>  i^l  IfjJ^jJl^  juy^  |..« 


997  J  *Jy  ^^  w>i<  V  J  •^^J  '^  »ti'   <3>^  "^J  *^!;^'  JJ^  ^  11  v 
fi*})  u/ftf  4;^  ^^  4r^  U;  J^  U  /^l  ««^^  )>U  ^U  •  it^  4^ 


{jUi  Aij]  i  \i]  J  JIW  ^  WjJlkS   ^J];^!  «,!    .>n^   J^  JWU/I 
JlMib   c»J;)U^   Jlai»'l    c»J;l   g^    Jl5^   JB   JUW  JUb 

996  «,lf  c'    f^  V  ^   *6i;*JV^    ^'   ^•H*   J«1  jl    *JV>  jU»  J*-;  ^11 


t  f1 3 

986  .  uu  *.5jafc |;j *i«fc;)^  ^1  JL.^  y  v-^  v^  *>*]/•'  J'  J?-;  ^^i 

987         •   «U  c:,>2lt   JKkJl  ^yii  5^  cJJI  ^^il  «4J;»«j  V  JSy  >  ^AV 

•  A«9^|  JLj)  (JLj  I  At)  ■  lijb 

j^i  fjj  Ail .  uuf  ^  Uju  ^  y  ^  ■  AM.yi  tjLj  AiU  soo.)^  ifSikf 
992  XM^  ««i*  <^>^  cP  (^  0^^  ^^^ ;i<^>  '•:>^«>  1^1  V  J^y  ^  ^ir 


M)Vy)  v^^  vjb^  JU,^W  •  a;1;<«I  uu«U>  Ui,a^'  ti)/>i  i 

•  UA.yJk«<  ij:«jU»  UXtj*.!  ci^Slb 
98Q  wO^  ^j9>ij^  uijfiiflAn  iJi^ij,^  f^jA\  ^IJI  ^  1A* 

981  *  ^yiVI  «V^V^  1^)  t,^  ^  4l!;«i  jU»  Ul  ,_fH^  \M,  1AI 

984  f^  P^  i^\j  cN  tt/i^*  ^'  '•»*'j  t>"^  '^l  **V   J^  Jf-J  ^^ 


976  JUy  ^  -  lrfA.0  {V  t>i'«»  »*^  J^  JJ^^  *.a-^  <«!/•*  Jtt  JW  ^V1 

el^e  tt/iHi»;<>  J^  J^y  )<i^j  -  ci^j^^^  ^  i.ju^  ^  j>b  ax^m  j^ 
ft^  lit  All  j(J(Liu  '  ^ib  ^  ^»p  u^*  JJU  jtiy  J .  fs»jj 

^JJtJl  IJ*  ^^  life  ^  ■  fiAjj  m  liJ  ^  <j;ifc**-f  e,^>i  jfl^ 


967  Ji   tJsSii  jif  »JM^/^  ^^1  Jii  Jl^  ^Jl  ^.s,^  wsJUy  j  1iv 

•  lill^  ^^^\  ^ 

968  »jldJI»»/<  >^  ^  c^-Ijo**"  i/^^ji^yj  *JM«>5y^  ^1A 

969  JUjI  «1;*U  »^»JtJIU  JISjl   ij^g  ^/w^  *4;^»«>jy^  111 

970  tpLR  ^ini]  -^j  Jl&JI  cA^J^J  I  JUU  ll^l  uXr  J*  «)  J^/,  IV 

971  ^ cJii  J  *<«*•  ^/«  Jijy  ^j^.  ^  «-ii u  «ui^  jsy ^  ^vi 


•  OsyJ^ 


•  u^l  {Si  o"*»  *-*  0^ 

978  >^  ^  '^e'  ^1  ^j^»  «>I  «1y  t>y  j/   o«W  •-J^l  Jt-;  ^vr 

i-i^  j^y  J  •  tt>^w  ***  ti*^  «-^  ji?y ;  -  (3^  th  •^•'-^ 

[rv] 


S«»*'^  e2<  iSi*  *  y  JU  >l  Jy  8»ulj  t>JU»  v*,il  jyi  ^I  ly  a*  jJlfc 

J^ i  zl  »-^^  c?y  r?  -  J^3"  «-*-»<  k/tj  •»***  iV  ^^ 
*ui  *^^  gim-^l  ofji;  tgpiA  J;  jiu?  »^i  juy  J .  ^  ^ » 

♦  t**^  e?<  ?  t-/ *-i-w  k/l  Jy  ^ ;  8«»^j  e^  ^;  Ik**- 
966  jjf  f^J  ^(|  j)  y  »jb  54>n  JUi  w  o«k  }y>  ^^  v:*Jl?  St^l  lio 

966  ^y  e,!  lyU  ^  ALftb  U  ^^\  JUi^i^  y  t^^y  |ty)  ^-JUy^  ^i^ 


*Ji^(»») 


•  UL*  fi.u.l^  Ji  u:jab  (^  Ail*  ^j^iytl  JU  ^  UU  jllb  liti  jSjJ 

968  ^1  ldX»  ^lab  f J^b  JJ  ^j^  fib  «.U4lLJ^_;..^  e;^  Jljy^  1»a 

969  •  V  *''4""*  «;**«  JUy  U,  li«i  XJiUu'  ^  ^^1  Jisy  \3i^  i»i 

960  ^1  ^^  df<to.l  u:^2U>  v:;Jl$  ^1    ^^1  v.;>lU>  wsJii  Jli   Ja.^  ^i« 

V^4>J  *!>^'  J^   "S'Slb  JUy  J  .  JILJI^  I,  U;4£  ^1  JIWI 

^aJii  JU  y  t<£^^*  81^1  jy  vaJttt  vjJiJ  JU  y  V21lii  <1^|  ^ 

JJL^  tSh^  tJii^J   ^   ^J^   O*^  &'  *   V<-^* 

*  Uyie  u>^  JU 131 

961  tS^l^^  U-^l   fiSi   tSlja- JJ  jJlfcws^l  *Jl^l  JU   J^;  ^.|| 

JU  ji  ^j^)  f^  jftfc  ^1  ^j.^]  f,i  $Ay,9  JU  y  u, 

962  rt^l  O^  jW.  ^  ^l>.  ^  Jl— I/I  i4-,Uit  *3l^J  JU  J^;  1ir 


947  Jl^iXj  ,j^J   <J3uab)  JUj|,^ftaAUl«ASlL*^£j|t^JUy^  ^l»V 

948  jUiJ  Ui)  aU)  ««»;  iJu^  ^1  ^  <Jai)  U^l  «!|;^l  JU  Ij)  ^  4|»A 

949  •  (ij  y  «ii  ^i«^i  J  <j:;ik  tj^u*;  Aiy  ^  ^j  ^tuuii  uju^t  ^  ^i»4 
960  w:^  Jij}  iJm,  J^i<^ yj>4i- ji ^]  ^sikv^H^  juy^  i»* 

•  (iO  I  Ail  ^1^1  ^  JUJI  Ai*  ^JJIU.1 

951  •  jttji  (2f  I  vj:ai»  ^  u^^i  juy  ^  $oi 

962  ^  JIM  jSi »  jJU,  Uj^I  JU^  J*y>*^A*e^e?9^yj  1»r 
aUI  «**;  wiu.ji  ^  ^  ^  •  *«  aW  ^;  X«4i»  ^^  4^  ^^  4^' 

•  ^  »i) 

963  aj|;^i  uJUb  Uija.1  uu2U>  juu  Ajuia.ij  «!l^i  ^  e^t-y^  ^^r 

•  jttJ  Vl   ^;  A^mfj 
954  JU  J  ^1  >  S*4»aJI^  o>W  J«*<  cr*^  I-  i  *'V  «/**  C^V  ^  ^'l* 
cT*;  "-^^  ^  -»  ^^**^  ^^  J>5  ^^  *'!;^'  ^^J'J'^  t^  '*^«>^» 

956  •  M  t>»*«J  *  dM^  '*^''>^'  js  ^  «4*fl  J  Jhf'i  **V  «;«  er^yJ  ^^^ 
966  lii ^ .  UU  U81b  ^^^1  tS  ll^l  V^  Aiti  ^  iSU  jAl>  SiV  Jlsy  ^  ^oi| 


Cr*f  J 

942  JUy^    -^  o^l  *}  ^|^>  vjt^*|j;L  (,j^4v  *JV*  i3**y^  ^l*' 

943  o^^l  <J4Af  Jiji   lii  ^  -  OU  uuJiUs  iJxU   oUiUaJ  vA>*  V  JU   1|Y 

944  Wf  JUiy^W^ei^  UE>M  JUi  «JJl>  A^\  U»  uXj^  J^y  JUy^  ^ff 

S^A   C;  •-»*9«V'    •>**  J  -  C?4  ^'  «y  i^  *"'  <^>  j;—^  Aie 


98»  #  «*».),  ^  ,>il<*^  ^Akj  tjiU.  «^  «S5^I  JU  Ja.;  9  rr* 

937  ^jyi  jiijy^  ,^jii  i]jj\  vajuu  84»ij  f^  vjsJi  *j1^3r  juy^  ^rv 

iJjOby.  tSlkJI  ^^  ^^  ^«.  AJu»^*  aUI  ^j  ii^  ^1  ^ 


923  •  Jiii  ^,  Ail  aUIl»»; icUm^\^i  )J<ie  4^  u^l  J^y  4  ^tf 

924  c;  M"  tt;*>^y*  ""^M"?  *A^  J*^  j^  jnt «;^i  juy^  irf 

•  Aasji  ^  ^^*  «;**  dry «»'  J  ^A^  tf<  **' 
926  Jilt  v.a^l  Jijii-  «J*Ij  »*^5lfc  i2iM  J$  tjWs  »j;-JI  J«y  J  U* 

926  utJi  jis  ,1  *s4ttj  JJ  f  ji  ti^  Ji  A^.  jjo.  1^1  juy  u  ^  sn 

^U!  o<^  '  J>^  b^^  '^^l i>^  ^^^^'^  *Sh^  ^^ 

928  ssu  ju  y^  -uMi^im  "4iki  wJUii  xJWjjifcv^i  jtty,  irA 

939  •J^i^^isjttj^  jiifci^ijuy^  n< 

980  ^  A^ttj  (j;  J  ASitk!  ufi>*  J  &Mk;  umu  jri>  i^t  jsy  j  ir* 
•  s<i«.i^ ^cfi  V**^ ^  ^<*i^^  ^^^^  «»».«>  jisy^  •  u^ 

♦  i^  o«ai  Jib  I  ^;  j-ain  ^ 

982  J*   dJ  JS  ^  cui— 1  Jlii  •-XjV!  v;>aU»  •r**'  Jtt  J*-;  W 


C  1^11 

917  •,^t^(SbSj«.i^i^^^u»u>3U«Jj:2U)Uii  ji;yiii^  siv 

919  (tit*  ^   jfU*  v^l  ^U>c;^l    t«4  »^<ufl    A:1;^y  JU  J*.;  ^n 

jj  juy  lii ^  -^i  2^u;g  c£^  J^  J  'U;  j**^ '  j  -  J^ 

920  ji  it*^  df  juu  s£4;  lou  s1;^i  ^1  J^;Af  JUi  jiUi  v^i  jsy  ^  n* 

921  y> •  «,l5ii»  {Si  o>'»"X  ^»  J"*«^l  Ji^  jJtt  u>il  *j1;^i  Js  J*.;  m 

922  y>-  «4>* c?i *ii cMi ^>i  o«M  yji  jiu,  cwijuy,  srr 

*U|  A*ft.;>»9.  ^1  «i2Al)  JU  .  o(jl^)  vJlUi.!  J^Ull  «{»<  «-iU;i^) 


903  ^^i'  5^1?  c>M  -  «:-5lb  ^:4^  Jii  ^Jsik  {^^^  va^t?  l|^  ^.a 

•  ^i  u^  vjM*^  JUi 

.  «.v»^  j?<  jpifc ^wi»  ju^i  t>iup s^jji  w  Ui^  jtjfy J  -yiJ 

910  -^  Ul  c>S\ijl  vi^b  fl;^UI  y:^t§i  v^^^  *5jr**  «JW  J?J  ^f 

911  i>i»  u4i  ^  f^lrtl  J  jcHk  ^  (^  S;*«  <;1^)  Jl|  J^  411 

^   4y   U4J  Uil  gS^  *-J;«  J  Ji  Jx-  Wt-*    «-^  B|K  tt|l    ^3*«n 

^.  fjl^i  vj:jafc  *^]  «i*  ^^  *5l^i  ^^  J  ^  .  ,^:  an  ^ 

912  ♦  vSiM  jy*  «****  VS^^  ^V  >  J^*  ^.^AWi  *SV>  J^  ^J  ^»' 
914  s^JI  JUj  !;««  *»^..U  v^-  (i  JUi. ^^-  J  t^  ^UVi  «;  Jb^  111* 

[ri] 


898  ^Ab   t5lkJ|  ^  CUil  J  ^ll»  ^  Jji  It^^yi  ^1  iJli  JUy  ^  AS  A 

902  «iiy*l  ctdOfc  %j>^^y*)  ti  i  f^.^^  a^tfyi  J5  J?5>  1*f 

904  Sf^l  ^  JM    hj^'i]y>\iJj    fiy^«-J«v^    ^A^»Jls'jft>  S*!* 

905  ^*4J  ^All/  o"**^  f»».>  *liJ»  ^/^V  J  JM*  vJ**!;^''J*^/^  ^-^» 

906  ^  JU  f?  ^;*  J/);^b\^>l  JU  ^  .^  ^1^1  JUy  liJ  J  S^l 

•  jjUJI^    eA^*a    tM'wJ*    t5i»-««-J4*«^'i'y,J^>J«i;*^ 

•  f  AM  ( tt»  r ) 


C  111] 

888  •  V|^l  ^  VU^I  lift  J«x^   AAA 

889  ;  •  J^  ^  JJLii  jPl  vVI   AA^ 

890    .         •^yiaxij  A^jSeU^  jiM^^^  jpi  Jliin  A1* 
89J  u>^;y  «j:abk£jLi^  zsik/*  u;^)  ji  cJosU)  Ail^y  ju  j^^  a^i 

892  c:,JU  ^yi  JUi  ^^^iSlkJ  ajI^I  ^  jlfc  dJ.  l^^y  sjvJU  sj^i  A^r 

•  hu^f^] w^s»u  ju/iii^ -  jju. ^  v^  juj 

893  J   ^wuJ)    jJtt  w>J)    ^U  .^>J|   a^jj)    aJI^J  Jli   J,.;  A^r 

894  w;JU  usJU  ja  jM*   U»i«  ^^UJI   cji)J^^,:>i]   Ail^f  Jsy  ^  A1|» 

896  >MW  ^  J*«  >>WW  (.*i  J"  tJ^Vl  *a5u>)  «;til  JU  Jft;  Al» 

896  «j1;^»  tjlkJ  jW»  OJI J  t>W»  ^^  i«?-j»yi  tl^l  Ji  *lV  iJ**  *^J  *^"' 

897  tti^  i5«M  e/i  ^fJ^  ^^'^  <5J^  v^  V^j^y'  'V=fc>^  J^^^  ^^  v 


•  isJUkioit  ( tti  r ) •  JiM (Jl^ <«l  ( tt* r ) 


[    1    ] 

^^ 

kl£ 

>- 

tiLm^ 

*«i* 

Mw^tJ^i 

Imu;  j^li'  jl 

ir 

m^ 

rsi 

^■r-^^U^y 

II 

r*ii 

i*»i 

U^.» 

,>siel 

ir 

r*M 

i**i 

Hi^^^ 

W,j^aiJ 

0 

r»i»A 

|*»V 

V^»J 

Vj^  J 

!♦ 

f|»A 

|*»V 

fjjJI«4i  ^yoSii 

8d*;n^^_j^ 

A 

for 

f*h 

L  •■] 

^ 

yc 

> 

*^ 

J-^J^J^ 

J-^'c'a*^^ 

II 

(VA| 

r*it        , 

r-V^ 

r*'^^ 

II* 

IVAf 

rii 

|jb>>  wJJT  tjii 

fikjA  uJiT  *ab* 

A 

iv^e 

Ml 

i\y»i 

*?t;^» 

r 

IA«|» 

rvi 

ri 

lAff 

rvi* 

....     -• 

uJUw'l^i^ 

uJUcIiyoj 

1 

lAfl 

rvi 

l;*US^«,lf 

>.ltu.^lf 

11 

|A0|* 

rvA 

v^y  f'* 

^jy  r'* 

\r 

|AV|* 

rAi 

gU*'!^- 

^U?J|^^ 

1 

lAVV 

rAr 

^U*'!^* 

^M>^ 

r 

|AVV 

rAr 

vJI  ^;' «;!  ^ 

«-»'!  «»Jj>'  «>'  J 

\r 

M»* 

r** 

^jj^^y 

'^e'ii'-^* 

1 

Ml* 

rAv 

Vj*  ,^_j-i«iS 

IflJ^  (j^iii 

1 

n»i 

rir 

l^j^yuJI^o 

I/L.^)/i 

1 

n»i 

nr 

«jjt^l  ^<y^] 

4Uit;/*l  0*.! 

n 

Mir 

rv 

suyisji: 

sisyi  isc 

r* 

Mir 

nr 

v-l5ii> 

wis,.» 

ir 

Mvl 

r^« 

^V«/<» 

Wr-«;i» 

r 

MV1 

rii 

Wy»tt/«^ 

Vy-e/H^ 

V 

MW 

rii 

v» 

A»l 

II 

Ml* 

n* 

[  f  ] 


J^i  J  <>;i/l    ^ 

^Jc^>il   ) 

r 

liov 

m 

df^ti^l  vJ  ^ 

a^;liA/l  ^  ^ 

A 

I1V|» 

ff* 

l«i^lJUy 

Ws^ijuy 

IV 

im 

rff 

•• 

^M^l«5lb^ 

A 

IfSi* 

n*9 

J^;UA. 

J^I;Ui 

!• 

ivir 

n*i 

it;UJ)  ^iO^ 

:);UJ|  k^ 

!• 

IVIV 

r«i 

5l  V  ^ 

il^UJI  ^ 

ir 

IVIV 

roi 

^w^ 

»^i^iif 

1 

IVf 

ror 

5f;M  ^ 

JI;UJI  , 

ii» 

ivrr 

ror 

iWiya 

*Wiiyi5 

r^ 

ivri» 

ror 

j^i  iii^  J 

J^l  Wt-^  Ji 

r* 

ivri 

rer 

W*->;  u;^  ^:>->»j  '^' 

^3}  tt/^  <-r*^  '^' 

1 

ivrr 

roo 

tt^iiWWlt 

ttrf^^S^ 

|A 

|V|»|» 

rov 

^^•JJV^ 

^^•|fc>^ 

ri 

IV»1 

ri* 

j^i^i;^i>n^  . 

cy^c;».;^i>iJV 

1 

IV»1 

ni 

j^^i  j^^ 

tJr*^' v^^ 

ir 

IV01 

ni 

ii^i  dj 

Alt^I  J5 

1* 

IV1* 

r^t 

>^V«''^ 

^Ve-'^ 

IV 

ivie 

nr 

ijii^yj^i^i 

^^jA-ftJIi^U^y^ 

s 

(VIA 

ni» 

^J^ 

*4b^(f 

M 

fVVI 

n« 

C  r  1- 

^ 

kle 

>- 

«JiL.« 

**»-• 

uOA^I 

v-sJLj 

A 

l|*AV 

rT 

>a^ 

«J^ 

tl 

ll^AV 

***•• 

j^},]  tyyi  Jc 

>»^  kr^  ^ 

l» 

f|*AV 

r-i» 

jSi 

«j;JUi 

0 

||»AA 

r-o 

ff^f 

l*M|^ 

V 

IMI» 

r^i 

.i/SiUI 

,>i*^l 

r 

laiv 

rn 

tt/SivJJ 

tt;6SU> 

6 

l»tv 

rii 

iy.au;  )l 

r* 

i»r* 

rir 

mL)  8j«.t;  ^f 

i5<  ij«.I^  J 

8 

|ll|». 

rii» 

jJltcr^t 

vsJi  <yu9 

M 

101^ 

r\f 

ijii.1  jy 

ciaJi.iV 

l» 

iee« 

ri» 

^jj^t 

^iJjin 

!• 

t««l 

rie 

Jaw 

JjJU 

»1 

i»»r 

ri» 

uvju 

uv«  Jis  jii 

1 

(••p 

rii 

».-^JUu.  J15 

VA.'**»  Jl» 

IV 

l»1» 

riv 

tt^TT^  (5/»**^ 

^?'ttfi•»< 

!• 

l»VV 

rn 

«jlt*c:-«  J*'  c/^ 

^W*-;^  J»l  ^ 

A 

f^AI 

rn 

5;V^i  J*s 

lyV'l  J45 

!♦ 

IM1 

rrr 

L|£<yaik 

1 

fill* 

rrv 

sl^J 

favl 

ll» 

I1»» 

rcA 

M* 

w* 

f1 

IV 

iri 

t  r^3 

t^ 

bU 

>- 

«lJLy* 

**«-• 

f) 

y^i 

!• 

l*v^ 

rrr 

<-^<i»»  (.j:,^^ 

(JXl^  i..::4ik 

ir 

M^f 

rrv 

JXk/l^ 

o>^l  -^ 

ir 

nil 

rrA 

i^ymjJL 

lAjm/j, 

ir 

(too 

riT 

o«fc> 

oM»;l>»y 

ir 

iivt* 

rrA 

tij't.lla^l  ilJ 

»j;.Ui..)  jj 

1 

trii 

ri»v 

^^1  ti  sV » 

j^^l  A/  *;t^  » 

IV 

irrA 

ri»i 

Liil^* 

Uiil,^« 

1 

irn 

ro* 

^-^SifJu,! 

^s^Ve'' 

!♦ 

irT 

rii* 

«-*i*^l  o'f  «;lj 

sJ>i\J\JCJi 

0 

irn 

riv 

tJiO 

^. 

II 

irn» 

rv 

5pJv^:,JUL^ 

i!;*/lu.a». 

11 

m© 

rv9 

jyJUIifU^ 

u^XJU.^ 

ir 

mo 

rvi 

V  l«»^  ^l)-- 

yiJj>>l^ 

IV 

irvi 

fA* 

oi;  «i  lb 

»j!;SjI. 

^ 

irve 

rAr 

w);«iib 

»4«i*# 

!♦ 

irvo 

rAf 

V4-»**^ 

>J.'A»-? 

1 

irAi 

rAo 

*JjJI^^Ij  VJUJI  J 

xijjij  ;b  c;Jlj 

r 

11*1  A 

rAA 

j^)uii.iy 

J^UdJLiy 

t 

inA 

rAA 

tft^i  f^'  J 

x^V  <y»e » 

n 

ii»rr 

m 

^'^V"^'^ 

^^J> 

1 

IpAV 

r-r 

^}!:iU]  ^b^J  JisiAs  Osjli^  -i-U  kU 


t^ 

UU 

> 

aiLi^ 

AsA^ 

J5  ^»  'MW 

JU^iUsVU 

l» 

AIO 

HI 

/i^  f'-" 

y,y  fUJi 

ri 

irr 

m 

*^^_^' 

*ii**v_jii 

II 

11*0 

r»r 

««*- 

**i- 

M 

1V1 

r»v 

iyL. 

its^ 

ir 

lvi 

r*v 

^IQ)*«4*-» 

^KUI  ***«-• 

n 

9VV 

r^v 

uk; 

Ukil 

Jf 

^00 

n* 

v^f* 

4-i^f/ 

A 

!♦!• 

rir 

iLw 

aJ^L^ 

0 

ITI 

ri» 

lyu 

lyu 

l» 

i*ro 

rii 

• 

u:.s.aS)) 

M 

f*ro 

rn 

Aj^b^t 

XiiJ^JI 

A 

l»|*V 

riA 

jufcuXie 

Ji"-^ 

!♦ 

I'H 

rn 

t>l*i.)«j^ 

/^l«j;^ 

ir 

l«H 

rn 

rv» 

•••             •  ••             ...             ••• 

^\  vW 

rv^ 

•••             >•.             •••             ••■ 

>UI  vW 

rAr 

jkii\j    y    AJ^Lo    UjbJu^l    «JkU^ 

<i;i^4>"  tt/«  **>"  ^  wUi 

f-AA 

•••                     •••                     ...                     ••• 

e,W/l  ^  J^ 

ri* 



5j*Jl  vW 

nf 

...                     •••                    •••                    •*• 

...     S^IJUUil^J-ftf 

n^ 



SjaaJI  ^  fjai  L4»  J;,ai» 

f-r 

•••                     •••                     •••                     «•• 

^y  ^-Jl  S Ji-JI  ^  J^ 

fy 

•••                     •••                        ••                     ••• 

«-5^vi*iJ|  ^  Juoi 

[    r    ] 

IV*  (►-^I  ^  J-^^ 

ivr  ...  .-.         SdJI  iaii  ^  J.^ 

IVI  ^^y"  (3^  v^  uUai 

IVI  ...  ...  iSlkyo  ^1  Ia.^^  t^5l  ^^^*>jJ  ^il  Sl^l     J  J-^ 

Ur  oll^Jl  iSii  ^  J-^ 

f  At  f^^>?^l  v^;«i;  e/i'^y  *^*  ^'  J-a* 

lir  vJ^UJ)  iSii  ^  J-Ai 

191  (3*^>  ^r^ 

111  Jj'l  s^V 

rn  ...        «:»jy*uJ)  ^  is^bUxJi  ^i  Jufli 

rfr  ...       Js*^' e/^  JJOd  ^i  j^i 

rr<*  Lii^u  o*^i  o'  J^*^ 

try  ...        •••        •••        •••        •••        •••        •••      c5-^'  ^^ 

r\o  ^^>^W  o^' (3*^^  t)^^*^ 

rn  ....  J*^i  fi^' ^^  J-^ 

rrr  «V'  ^^^  -?'  J^y  e;^  im^  v/*^'  o^'  ^^  J^ 

n*i  ...       ...       •••       ...       •••       •••       ...       ff*"^!  ^^ 

nv  ...       -^i^'^i ;  ciV' ^  t^i  v^' J^ 

fV»  ...  ...  •••  •••  •••  Jju^UJb  jlar'l  ^i  J^i 


[    r    1 

*     • 

VA  ...    ■        ...  ^1  JJU^yi  ^   J/l  JuaiJI 

^r  ijJL^JI  ^  ^illil  Jl^oJI 

9r*  •.        ^Jb  {^^  »[r^l  v./-^^  ^  u^UJI  J.^\ 

I  •r  •••        •••        ••#        ...        ..•       jt^^  J^j^  \^  g;j|yi  J^il 

•  '*i  •••        •••        ...        •••        ...         v^'^^*  i^.*i^i  J^fti) 

ir»  ^Kiil  ^_fy:J  ^i  JjJI  JlaaJI 

Jri  ^KjJI  ^le  Sjl^l  ^  ^OJI  J^aiJI 

irA  ...        ...        ...        ...        ...        ....         ^/^i*^' ^*  J^^^ 

\rr       ^Kiib  ^  ^]  ^]j\K:iJ]  ^  j^ 

ir'v       eUyi  ^\j 

lr*1  •••             ...             ...             ...             ...             ...              iiLoar'l  ^  J^^i 

11*1  J5a1/I  vL' 


^Isft-^U  dsjlia  ^■=-^-::^f* 


( 
I 

•r 

II 

rr 
n* 

1*1 

i»i 

•  V 


1A 

vr 


J^jf  ijU  j^  J*2A-  ^icJf  c-jlir 


^UjJI  ib  ,iSijJj  ^1  feUJJ)  ^  J^JI  J<aifl 

<j:jjuji  ^  ^  j^iyi  j^i 

...     ^^loofl  lAM  ^«»i  ^_^  ,_^l«^I  ^yMUt 

XJ191  ^  ^j-jU/I  J^l 

«>UX/|  ^  jjLJI  J,Aifl 

'W^JI  ^  «;^WI  J-ftill 

«« 

,  ^KJJI    jLJ  J    LojJb   ^^jyi]  J^l  ;yi  ^    ^ISil  jLai/l 
tt/i**"  «-^  c*^'  «»**»<  J 

« 


>^'  r^  i  ^j*^^  c*^  cMr"  c^  i*^^  ,_sV-*- 


^  0  . 

i__iJUJl   i»;jJI  ^^;^^   ,j,i-^  e:^;J^  ^y^l  ^KJ)  jj^xJUJI  ^x*-*^ 


1^- 


'^-%