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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.
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2046 ^ti u^ds «j:»j ^ fj J i^iixii^ju; ^yuuii^ d*2jiM^ ri»i
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2036 w:^) U>y V J'* j l«»« <5i; ^jJlfc ^^^1 JUJI ajI^j juy ^ fr«>
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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*!**
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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
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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
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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
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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
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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»
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• 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*«>*
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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
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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
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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
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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^
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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
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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^'
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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 )
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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 )
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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|»
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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
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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
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^; 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
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• 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
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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
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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 )
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1755 13m j ^j%^ U^ jI ^UJI V^l** ^^V t^'^ «;if J^ fcV>^ , t v»»
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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
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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
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1735 a- «>-a*Ju ^j^ ©>n J"* V«j'v«5^ *^!r*' c'^ Jw ivr*
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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
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1739 H^,3 ' f^\/^J^^ ^ ^lk*^ ^^*1^ c:^*U*.| f}j \sn
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«;* 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^
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1730 «4le Uf ^ ^ Ail ^ jj ^ ^ Ajb VW A^;/.! 5U. J*.^ I Vr»
e,) ujLdf fi t^cij ^ijH tJji ^oy u ^^ ^^ i^ ^,1^ (^
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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
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J jjr iiit?. V - oja^ij-jyi Jib ^ oJtkii ^.J L,jj) fjjb^ ^^^
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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
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^jA.; «Uf *^; «j>iA. fc^l <V «^ ^;i^ C4*f «/* ej>y' U M?*^
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U *4J vlyp'l LI;,; ^ J . .die jyJ| ^ b^d U *ji vl/y'l h)^)
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V Of^ i •-<>''i^ ^^ <-*">^ ^;'> vJJi JdJi ^ ^jju
• t'*'l 4>yi '•(or)
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l^;*- e:,^a*S ^ i XJ^ju. Sty I ^ fJ «,! ^ - (Vy i_s* tiji^
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1713 otoXfiy j^ j^i ^ sty I u^v ^ «.Uji*ji (.K*.i ^i^ ^ I vir
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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
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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.^
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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
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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(»
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• 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$yi («sib
ujoii i.ii J • •-«/:ii u^ «ft>tAii (2j k^ii uJi:u ,1^1 ihikt
• «*yi lift ^i£
• tfSikjUiix^u^i j(sy tjij- j«Kf)
1695 •Jy*iji»i,j^JiJJ^i)^i}^5^^\i^j^\o^<J'yJ^j 111*
1696 >um^ J5 jlt^ hJI tW**! ^/^ J--) •»« a^V 0«>» J^Vj < "111
1697 tjAtvj:^! J49I V Jl« *i-JLI iSjIk; ^'l^l jlt »>J JU J?.^ 1 11 V
• tstfi ^ ( u; r ) • fr^ij*^ »** ^ ( o r )
1689 *iU} j^.u.1 J49I f^^j^\ ^^ tjiSJ Jii iy^ gyl «I J^j I IM
©>" J^ «»^ vV ViN *^^ d?-**-' Jftyi jity U ^ . Jijyi
ii»^ u/a*. u^i ^ ^t^i jit yiJ Jb.y) juy liJ J - vAyiii
1691 V"^ *«sUu XSxlkLy iSjJftJ^/ Ui** ^}f)j^\ tjiH juy ^1111
«J^I vaJU-. Jisy IJJ > - *i*?.; SJ^lj {Jb crVl ^ wsu» Ii»
1692 ^^uiiJ JftJy ^ t«Slki I^JL) JUy t^^vl^' (^ •>* *J^ ^-^ •'•^'^
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1684 *J«i« mjki fL« ^i J«s Jj^jyi i(2ihj *j|^j jiiw vu jj^y J i«iAi»
1685 ^1 J - «;u> ^1 t^sUi ^ j^yi ^ i^ja] jiiu u.; jf, j^^ 1 1 a&
• uu«s-i ASik ^ Jjjyi jifc ^ j;i ^j JaSj ^^ jjfyi v-^
1686 ji y^^ ji o^U J ^\jA oth^ ^l^j «:^l .^ JU" J^; ( ^ A1
JiJyj) jU. *il . Ma^^ Slyi *UJ j^ Ijf, e/^i fJ oj);!
tjUJI ^1 . Jk*J J ^; ,ULJI v>« JU J . *JUy) JkJ jlbJ
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1687 ^ AjU ^^JL4 «,! ^t^) o»i. ^ ^^ ^aJI »;iAf Jliy ^ 1 1| av
1688 *Jb*/4*'0 ^1 ^ ^]^] JW, ^ ^j vaJI «>/ JU J-.; haa
• v5»tJt o^ ( tt» r ) • ^t^^jy ( «; r )
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1679 J^jyi JM .><^ c"^ V^i;*! jiM i»*.^^- viju;^ i^i*- II VI
^;/*-afl jMJUUlyl Ji^OiJ i/U* *;/A I; A»«i .»;«Afl e/^^r-"***
1680 ^1 Ai' • u:JUb U«iJ^I ^ Ajt^V O"**^ *^^ «^J<^; II**
1681 i-i-JI ^i^^ ^ ^ l^alki UJJ aJJ;/.! jttiJ I*.; J$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$yi vuLi ^ ^u . ju< JxJyi o»»» ^ y iji
^ij J4jyi jiki J*jyi i^ ^ idjg ii4«ji J sjyi ji ^^yi dj;i
(^* ^*.j5>jj UU/. .»iey ^ ifuyi t-sJttw A^*** ^«-»»in
ju,^if*ui<oi4*n^j4jyi ^yyj-j49)»5"»eb»j4iyn«5U.
,us ^ . *ji«^ ^uj) ^^ „»• " H^' ;i«»^ tH «»» J JJiyi
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1676 JaS» I;JJ ^I iJjb ^lUc J«| y u* ^1^1 jlfc »;4*J J; Ja.; 1 1V1
^1 V*^ J O^l J o>i»JI Jifi J*9I ^A*^ » tMl ^ 3 JiVI
^J| ^jle ,_^ ^ jAi\ uSL* ^ *.J^l> %ja\ Uil »Jj J ^ J
1677 y;- ^^As^ ^ *y jP* iJl^l oltu t^; Jfy ^1 al;) J*.; i iw
wUw elf «,! J - *(>« ^ 8tyi wUv Jfti^l tt/^i ^ «,! »V
€>>" s^ S-^ » O"***! wP' - Sty I UrJ^ Ji «,! j JlklU Jjjyi
1678 ji*^ J5 ^^^^^ «-%• uuju;^ ^^ikju la^^jj^y^ invA
jyi *ja*i Ail ^4«^l ^; ^r^' *^'' cr*^ f ^*' ^ tP J
1672 ij^J, \^j^ l^ fS *LJI J* ^ uTj*^ UfjA) tS)jAi JG Jj.; HTf
1673 Jis - *4i i>U^i y:- ^^ Jjjyi V^ *'V o«^ ■?-; t^^ J^; < '"<'
1674 lyiii.* «iV Jjiyi jit* uf>?r*' ti^ c^ *-^^ X"^ JIS J^; 1 1 vi»
ZJiryli «>j,^'« lcUL« a/ c>^ UlL*'* JayJI ^1 ^1^ Q,U • L«l«
yifyi vaJI? Jii^i ^,j,^.^] ^;y.i gL*^ ^i fc-Caij juy^
J ci^tiVi ^ Wj «,if Ai-JL* yu ^2^ j$ ^ ^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
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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^^
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j^jOU jJltcr^l JUy Jifj.yi Aii-.;^ J ^1 aU ^j/lt waJI
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1630 l4«U iuU^ ^1 J iWiti ^J:^Ji jj,) ^yUs v.;^! tj\jAl JSji j | or*
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1519 ^1 Jo^lj Jl Jl^ jl loc So^Ij Jl Ob* jJU» e:^! aJI^J JU Ij) | o | <)
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• JiJI ^ UU^ jl
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JUU^^jL^i o>^I ^* ^^ dAI uJJUl ^ ^31 . d**! «jJU ^ 5j«.)^
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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
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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
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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
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• JjCJI >liSi«l j^l ^Jjj t^ ^Ul /UuLil ^ J J - t>«VI >^l ***
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^ J - Sdu».l^ ^Si Ail ^; uJ«^ ^1 ^^ «»y^l t>*; v_y ^O
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^ »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
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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 •♦^
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• 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^ ^ .
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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»
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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» ^\ ^
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«A^ ^^fijj chX& 4,1 ■ JUU.UJxJl t.J^^^.^ <^>(>'t»Lj'^
^ii^i 2Ui ^ ^ ^U . UlyJ)^ /IfYI^ 21^1 2:0; MUi]^. ^
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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
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• oJttJI^ J-* v^ ^^ VI Jvi «/- JIJ - Udi
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1476 »-*-*» U-i» sj;Jl— « ci-il J iJ^lj jiU. u:^! «j1^J JU ||»v«|
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1464 J*ll JU. te»»VsSi ^ ^ W"«l» -wcJLl ,^ M JUy ^ Iplf
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J^ J Jl±tf Si^AJI vi^ »ji jJlfc «:-iU ^.s-^ «,! J«y ^ - JA»I
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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
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J - UUf«F*^J ufeiiV 5M^ «>• .jW) *i^a* 8^l>/4 ^-s^J
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1450 ;)4l| «j* cJLLd 1^1 ^ ^ il^l Ji JIS iy^^ iij»^j l|*»*
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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 ^ ^
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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
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it|ti^ij^<su «£^(^ sty) ijT j^uj:. ^shJa j styi^^iiiL^
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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
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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*
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^>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
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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 )
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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^
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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»>;
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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
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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**" ^'
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^ 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
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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
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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
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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^^ , ^^^
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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
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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»«.<|
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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
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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)
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1280 «^u ^IjA ^ jij J j^y oy- u^ yi «jl^j Ji j^; I r A*
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1238 A.; iU J jjtt tiJi ^yit cuii jw» u:^! aJ^j ju J?.; irrA
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JB 131 u^l 5_JI< ^W «l» U^^ j*«^^ _i*y. ^ J^
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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
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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
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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
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^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
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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
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1225 U *ii^l o«W *4>* ^J-JI ♦-W*' *U J^; J*5 j^I J-.; I rf*
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1212 J vj:,jafc ^^yi jui ,_^^ ^jsiio ^^ i4^^y clju st^i I n r
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1214 Jl;l ji5 ax; ^jflt cs^li ,^ ct^J U cJiil,^ ^1 ajI^^J Jl? J*; \r\f
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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»»
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1201 «a»u e,ti ^* u;^ J 5^ij ^jAt waJl iajI^J Jisy ^ | r*i
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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>
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^; J-*^ J^^ jttJ Jj . ^J*~iryi^ 1^^ ^V ^J-*"* *"'
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J* Atir^;j^ ^ - v^U^I f\/\ <U> aL« ^I^J) Ayf-nJih ^^.iiii
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^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
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1185 j/ifc \sju uXsUsi ^ lii J ^yu, »j:^u uisit lii Jsy^ iiao
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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»
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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
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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
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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 )
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^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
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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
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{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
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« 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«».
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^\ «,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
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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^ ^
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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,^^
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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"» •*»"
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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
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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
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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 •^•'-^
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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^
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• 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<-^*
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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 ^ $oi
962 ^ JIM jSi » jJU, Uj^I JU^ J*y>*^A*e^e?9^yj 1»r
aUI «**; wiu.ji ^ ^ ^ • *« aW ^; X«4i» ^^ 4^ ^^ 4^'
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963 aj|;^i uJUb Uija.1 uu2U> juu Ajuia.ij «!l^i ^ e^t-y^ ^^r
• jttJ Vl ^; A^mfj
954 JU J ^1 > S*4»aJI^ o>W J«*< cr*^ I- i *'V «/** C^V ^ ^'l*
cT*; "-^^ ^ -» ^^**^ ^^ J>5 ^^ *'!;^' ^^J'J'^ t^ '*^«>^»
956 • M t>»*«J * dM^ '*^''>^' js ^ «4*fl J Jhf'i **V «;« er^yJ ^^^
966 lii ^ . UU U81b ^^^1 tS ll^l V^ Aiti ^ iSU jAl> SiV Jlsy ^ ^oi|
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942 JUy^ -^ o^l *} ^|^> vjt^*|j;L (,j^4v *JV* i3**y^ ^l*'
943 o^^l <J4Af Jiji lii ^ - OU uuJiUs iJxU oUiUaJ vA>* V JU 1|Y
944 Wf JUiy^W^ei^ UE>M JUi «JJl> A^\ U» uXj^ J^y JUy^ ^ff
S^A C; •-»*9«V' •>** J - C?4 ^' «y i^ *"' <^> j;—^ Aie
98» # «*».), ^ ,>il<*^ ^Akj tjiU. «^ «S5^I JU Ja.; 9 rr*
937 ^jyi jiijy^ ,^jii i]jj\ vajuu 84»ij f^ vjsJi *j1^3r juy^ ^rv
iJjOby. tSlkJI ^^ ^^ ^«. AJu»^* aUI ^j ii^ ^1 ^
923 • Jiii ^, Ail aUIl»»; icUm^\^i )J<ie 4^ u^l J^y 4 ^tf
924 c; M" tt;*>^y* ""^M"? *A^ J*^ j^ jnt «;^i juy^ irf
• Aasji ^ ^^* «;** dry «»' J ^A^ tf< **'
926 Jilt v.a^l Jijii- «J*Ij »*^5lfc i2iM J$ 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*
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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
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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
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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 *^"'
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