210 d i v o r c e . B o o k IV.
O f thè per-
fons who are
competent.to
pronounce
divorce.
A divorce
pronounced
by compulfion,
is effective.
** You are divorced according to the S onnaf omitting the word
thrice ”— in this cafe the intention of three divorces collectively is.
not efficient. The proofs and arguments, upon this paflage are all
drawn from the Arabic, and derive their weight from, certain peculiarities
in that idiom.
S E C T I O' N.
T h e divorce o f every hulband is effective, if he be of found under-
Handing, and mature age; but that of a boy, or a lunatic, or one
talking in his fleep, is- not effective* for two reafons4— E'lRSff, be-
caulfe the prophet has-faid, “ Every divorce is lawful, excepting that
“ o f a boy or a lu n a t ic— secondly,, becaufe a man’s- competency
to aft. depends upon his poffeffion. of a found judgment, which-is not
the cafe with infants,; or lunatics:— and one talking in. his feep is the
fame, in this point, as a boy or a lunatic,, finc.e his. words in this cafe-
are not the refult of a deliberate option..
T he divorce o f one adding upon, compulfion,, from threats, is effective,
according to our doctors,— Shafe'i• maintains that it. is; not
effective,, becaufe a-, perfon who is compelled has no option, and no
formal act of law is worthy of regard unlefs it be purely optional:
contrary to the cafe o f a jejfer, who, in mentioning divorce, adds-
from option, which is the caufe of its validity.^O ur dodtors, on the
other hand,, alledge that the perfon here mentioned pronounces divorce
under cjjcumffances of complete competency, [maturity of age
and, fenity of intellect.,,] the refult qf which is that the divorce takes
effect equally with that of a perfon uncompelled, for withh im necef-
fity * is. the, reafon. of its efficiency; and the fame reafon applies to the
* Namely, the necejjity of reparation from a wife who may be odious or difagreeable
to him.
divorce
O ja*-. # D I V O R C E. 211
diverse Of â Côfhpëllèd jJfeffôn; as he is alfo under neCéffitÿfef divorce,
in ordët that hé fnàÿ be rèlëàlfed fifttâ thè ajapreheiili'ôh of that with
which hfe wàs thrëâtënèd by the comjiëllèi'.— T h e füuildàtiôti o f this
is that thè man allhded to has the choice o f t#o evils ; tille, the
thing with which Hfe is threatened of compelled; and the othef,
divorce upon compulfion ; and viewing both; he ffiàkés choice of that
which appears -to him the eafieft, namely, divorce ; and this proves
that he has an option, though he be not defirdus that its fefffeCt ffiould
be. ellabliffied, or, in other words, that divorce ffiould take place
upon it; nor does this 'circumftance forbid the efficiency o f his
Sentence; as in the cafe of a je jle r ; that is to ,fa y , i f a man
pronounce a divorce in je ft, it takes effect although he bfe not défi
rous that it ffiould; and fo likewife the divorce of one who is compelled.
'
I f a man pronounce a divorce whilft he is in a Hate o f inebriety or In a Rate
from drinking any fermented liquor, fuch as wine, the divorce takes hfvaUd;6^’
place, Koorohhee and S ’ehavee hold that divorce ought not to take
place in this cafe ; and there is alfo an opinion recorded from Shafe'i to
the fame effect, T h e argument upon which they maintain this doctrine
is that reality of intention is connected with the exercife of rfea-
fon* which is fufpended during intoxication from wine; in the lame
manner as where a perfon has taken any allowed but inebriating medicine,
fuch as laudanum, in which calfe a divorce pronounced would
not take effect, and fo in this calfe allb. But to this,our doctors reply
that, in the cafe now under confideration, the fulpenfion of reafon
-being occafioned by an offence, the reafon of the fpeâker is fiippofed
Hill to remain, whence it is that his fentence of divorce takes effeCt,
in order to deter him from drinking fermented liquors, which are prohibited.
But yet if a man were to drink wine to fo great a degree as .
to produce a delirium or inflammation o f the brain, thereby fulpending
his reafon, and he in that lituation pronounce divorce, it will not take
effect.
E e 2 T he