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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, " 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, " 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 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 p o fliMi g s s 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 fres