128
Circumftan-
ce? in which
retirement
does not imply
confum-
mation.
Exception.
Cafe of retirement
of
an eunuch.
M A R R I A G E . BooxU.
afterwards as a tru ft in the hands of the feller, and the whole of the
price is obligatory upon the purchafer.
If a man retire with his wife whilft one of them is fick, or fail-
ing in the month of Rantzân, or in the Ihram o f a pilgrimage, whether
obligatory * or voluntary, or of a vifitàfion at the ihrine of the phi.
phet, (termed an dmrit^) or whilft the woman is -in her courfes,—.
this is not regarded as a Khalwat-Saheeh, or complete retirement, in-
fomuch that i f the man were to divorce his wife after ftich a retirement,
the woman is entitled to her half dower only ; beCaufe all the
above circumftances are bars to the carnal aft ;— ticknefs, from the
weaknefs and imbecility with which it is attended, or from its rendering
the commiffion o f the carnal aft injurious to one or other of the:
parties ;— and falling in Rarnzdn, becaufe it would induce upon the
party a neceffity o f expiation and atonement ;— and pilgrimage, or
vifitation, becaufe it would induce a neceffity of atonement by iaeri- j
fice;— and the woman’s courfes, becaufe they oppofe an obftr-uftioii
both natural and légal.— But i f one of the parties be obferving a Nm
[voluntary] fall only, the woman is entitled to her whole dower,
becaufe the breach o f fiich a fall is a matter of indifference : a.' faft of
atonement, or in confequence of a vow, is the fame as a voluntary
faft in this refpeft, and for the fame realbn.
If a Majboob eunuch retire with his wife, and afterwards divorce
her, Ihe is entitled to her whole dower|b;according to Haneefa.—
The two difciples maintain that the half dower only goes to her, on
account that a Majboob is ftill more incapacitated than -a fick perfon:
contrary to the cafe of an Ineen, (or one naturally impotent,) becaufe
the point of law refts upon the exiftence of the inftrument of generation,
which is there found, but not in the former cafe.— Haneefa, oil
* All Mujfulmans are required, once in their lives, to make a pilgrimage to Jtdeao,
which is termed H 'tdj-Farz, or ordained pilgrimage. the
C h a p . H I . m a r r i a g e . 12Ç
the other hand argues, that all which is due on the part of the woman
is the delivery of her perfon, (by admitting the hulband to feel and
touch her,) and this being, to the extent of her ability, completely
performed, it follows that the confideration is- completely due to
-her.
I t is incumbent upon the woman to obferve an E dit, (or appointed
term of probation,) after the divorce, in all the cafes here recited, for
the fake of caution, on a principle o f propriety, from the apprehenfion
or poffibility of her womb being occupied by feed.— T h e Edit is,
moreover, a right of the law and o f the foetus-, and credit is not to be
given to the parties that they have not committed the carnal aft,
.becaufe this (in precluding the neceffity o f Edit) would amount to an
extinftion of rights (as above fpecified) diftinft and feparate from thefe
of the parties: but it is otherwife with the dower, becaufe that is a
matter of property, the right in which cannot be decided upon principles
of caution, (like the E d it,) nor under any circumftance ad-
mitting of doubt; the dower, therefore, is not due, where retirement
is not of the defeription o f Khalwat-Saheeh.— Kadeoree, in his commentary
upon his own work, has obferved that, i f the obftruftion to
the carnal aft be merely o f a legal nature, (fuch as fa ftin g ,) the ob-
lervance o f Edit is incumbent, becaufe here the natural ability
to the performance o f the aft is fuppofed: but i f the obftruftion
be of a pofttve nature, (fuch as fckn efs or infancy,) the Edit is
not requifite, becaufe the ability to perform the aft does not here
exili
worced by her' hulband, excepting two deferiptions of worne
amely one wh° fe dower has M ftipulated, and whofe huffiai
— B ^fore confummation,-and one whofe dower has n
th ’ , Pu]ated> and who is alfo divorced before confummation; for
^Vbi, ^ * I,reieUt 'S ■ merel3r but incumbent.— Sha)
S c.
Cafes in
which the
prefent to the
wife is laudable
f or incumbent,,