O bject row.— It would hence appear, that the matrimonial right
of'poileffion fhould not terminate in this cafe;, whereas"Shqfe'i alfo
holds that it is terminated.
R e p l y .— The matrimonial intercourfe is not admiflibk between a
Muffulman and an Infidel', for which.reafon.itds that the matrimonial
right o f poffeffion is terminated on the inftant of converfion, where
either party embraces the >. faith, before confummation, becaufe in
this .cafe the right has. not. been .confirmed; but, on the other hand,
i f converfion take place after confummation, , the termination is delayed
until the end'of three menferuations, becaufe the right has on this,
occafion. been confirmed; as holds in divorce.:— The argument of our
doftors is, that, upon either party embracing the faith, the ends of
marriage are defeated, on account of difference, of religion; hence it is
abfolutely neceflary that recourfe be had to feme means by which a
feparation may be effedled;— now IJl&m, as an aft of piety, is incapable
of being rendered a caufe of feparation; the Infidel party is therefore to
be called upon to embrace the faith, in order that the ends of marriage
may be anfwered by converfion, or that a caufe o f feparation
may be eftablifhed in cafe ofrefufal. The reafen upon which- 'Abm
Toofaf founds his opinion is that the occafion of feparation, to wit,
refujingthe jja ith, may proceed from either the. -man or the woman;
a feparation, therefore, on account offuch refufal, is.not divorce, any
more than on account of a right of property;-— that is to fay, if, of
hufband and wife',, either become, the owner of the other, a feparation
enfues; but this feparation is not divorce;. and fo alfo in the prefent
cafe.-— In reply to. this, Haneefa and Mohammed argue that the hufband,
when he refufes the faith, wilfully withholds the cuftomary
benevolence from his wife, where he has it ftill in his power to continue
it to. her, by becoming a Muffulman; and fuch being the cafe,
the magiftrate adts, merely as his fubflitute, in effedting the feparation
; in the fame manner as where a hufband is impotent,, or deprived
of his penis; but a woman is not empowered to divorce, for
which
i -which reafen thé magiftrate cannot be regarded, as her fubflitute in
i -effedting the feparation when fee has refufed the faith.
I t is to be obferved, that where the feparation takes place on account
of the woman’s refufal of 'the faith, fhe is 'ftill entitled to her
I dower, provided-her hufband has-confummated the marriage, as in
[ .this cafe her right has been-confirmed by the carnal adt; but if the
[ marriage feould not have been confummated fhe cannot receive any
[ dower, becaufe the feparation has proceeded from !her, and her right
[ to the dower is not confirmed; thus, the cafe here is the fame as
j where,.a woman apoftatizes, or .admits the fon of her hufband to carnal
| .connexion.
k&f %
If the wife embrace theffaith -in. a'foreign country, and her huf-
And i f the
converfion oJ
either happen
I band be an In f del,— or, i f a foreigner there become a Muffulman,and
[ his wife be a Majdofeea,— the feparation .between them does not takfe
I'pla^i 'untibthe lap feof three terms-of the wife’ s courfes, when fhe
I becomes completely repudiated.-— The reafen of-this is, that I/l&m
j-cannot be made an-occafion of feparation, (ad has been before obfer-
j-ved;-) and the requiring the other party to embrace the faith is im-
'pradticable; as th e authority of the magiftrate does not extend to a
foreign land, nor ifc it- acknowledged there; yet feparation is indif-
I penfable for the'removal of evil ; th e Condition, therefore, of fepara-
don, (to -wit, the lapfe of three terms of ‘the Woman’s courfes,)
|muft Hand in the place of feparation.effedted by the-magiftrate; and
•hi this rule no diftindtion is made between a woman enjoyed, and one
[ Mnenjoyea. -Shafei makes a diftinaion, on this occafion, between a
I,Woman enjoyed and one unenjoyed, in the fame manner as he dif, .
tniguifhes-between them-when they refide in a Muffulman territory,
=and one of them embraces the faith ; as has been before explained.
in a foreign
country,
reparation
takes
place upon
the lapfe o f
the woman’ s
term o f pro«»
bation.
W hen a feparation takes place between hufband and wife, in xfthewifei
confequence of t>be converfion of the former, and the latter is an an alien "
A a
is not to obalien,
ferve an &&