and fo, alfc,
that of a dumb
perfon.
Number of
divorces in
refpedl to free
wo-men and.
faves.
A maffer
cannot divorce
the wife
of his Have,
T he divorce of a dumb perfon is effectual, i f ‘ it be exprefled by
pofitive and intelligible ligns, becaufe lignsof the dumb are authorized
by cuftom, and are therefore admitted to Hand in the place of fpe,ech
in the prefent inftanee, in order to anfwer the n-eceffity of him who
makes them.. T h e various fpecies of ligns ufed by the dumb.in divorce
lhall be let forth hereafter.
T he utmoff number of divorces, with refpedl to a lémalé Have,
is two, whether her Hulband” be a Have or free: and the. lame with
relpedt to a free woman, is three.— Shafei has laid that, in the number,
o f divorces, relpedt'is to be 'had to the Hate of the maw, that is to lay,
i f the hulhand be free he is empowered to pronounce three divorces,
although his'wife be a Have; whereas,, if he Be a Have,, he is not'authorized
to give more than two divorcés, although His wife IhouldTe
a free woman,, the: prophet having faid “ In divorce the ftate 'of thé
“ h u s b a n d à to be regardedand-in E d i t th a t c f the w i f e : ” !—
moreover, perfonal confequence is an effential -circumllanCe in all
points of authority, and that" appertains to a freeman in a higher degree
than to a Have, whence his'atithority is moft extenlive.— Thé arguments
of our. dóétors are twofold upon this topic;— f i r s t , .a precept
of the prophet, debraring, “ 'The divorces o f a female /lave are
“ ■ t w o , andher E d i t .h t w o . courjis ^ - s e c o n d l y , it is' thè fioitlan
who is the fubjeSf of legality, and this legality entitles her to benefits;
but flavery entitles only to half o f thefe benefits ; hence it follows that
the divorce of z female Have Ihöuld not' exceed one and a half, but
fuch fubdivifion of it bèing impoffihle, her divorces extend to
As to the faying of the prophet quoted by Shafei, that “ in divorce
“ the Hate of the hulhand is to be regarded,’ *” it means no more than,
that the efficiency of divorce proceeds from him..
T he divorce of a Have upon his wife takes-place; but that'of a-
mailer upon the wife of his Have is of no effedl, becaufe the matrimonial
propriety being a right of the flave, the relinquilhment of it
refts with fhojlave, not withhis»«/?<?r..
C H A P .
C H A P . II.
Of the Execution of Divorce.
D ivorce (in refpedl to the execution of it) is of two kinds ; Sareeh
or exprefs, and Kinayair or by, implication :— and firlt of exprefs
divorce.. >
Diffin&ions.
T a l a k S a r e e h , or exprefs divorce, is where a hulhand delivers
Bhe fenterice in diredt and limple terms, as if he were to fay “ I have
1“ divorced you,” or “ you are divorced,!’ which effedls a Talak
Mijai,. or divorce reverjible,— that, is to fay, a divorce fuch as leaves
r a the hulband’s power lawfully to take back his wife at any. time
jwfore the expiration of the E d it: and thefe forms are termed Sareeh,
iff exprefs,^ as not being ufed in. any fenfe but divorce; and it appears,
|ii the facred writings that reverfal after an exprefs divorce is lawful._
Fhe intention' is not a condition of divorce taking place from thefe.
* fm! | f°r the fenic rcafon a£ was already affigned, to w it , becaufe
Ihey diredlly exprefs divorce, as not being ufed in any other fenfe._
Ihidpt.is to be obferved that a reverjible divorce only is effedled by
||iefe. forms, although the intention o f the hulband be a complete
Pworce, becaufe his'intention, is. here to effedl that upon the kdiant
rhich the law fufpends: upon, the lapfe of the E dit, and is therefore
inworthy of regard: and i f his intention Ihould be merely to exprefs
'fi delivery - from bondage, (which the term Taldk is occafionally
fed to imply,)'and he make a declaration, to this effea before the
f “Zee’ it 1S not. admitted, as.it difagrees with his apparent delign:
hut:
The manner
of exprefs
divorce.