D I V O R C E .
Differentfor-
mulcts of ex *
prefs divorce.
but yet it is admitted before G od, becaufe he intended in thofe words
à meaning which they are capable of bearing : and if his intention be
to exprefs a releafe from bodily labours, his declaration to this effect
is not at all admitted, either before the Kazee, or before G od, as the
word Talâk does not bear the conftruaion of releafe with refpeff to
bodily labour, although it may occaftonally bear that conftruaion with
refpea to bondage : ' and it is alfo to be remarked that no more than a
iingle divorce can be effeaed by fhefe forms, although the intention
be mote.— Shafei alledges that divorce takes place according to whatever
the intention may be.— The proofs on each fide are drawn front
the Arabic.
I f a may fay to his wife “ Yo.u are [under] divorce,” or “ You
“ are divorced by divorce,” or, “ You are divorced according ||
divorce*,” without any particular intention, or intending thereM
one divorce, or t w o divorces, a fingle divorce reverfible takes place;
and if his intention be three divorces, a triple divorce take? placé'
accordingly.— The proofs are drawn on this occafion from the
Arabic.
If a man were to lay to his wife [as above] You are divorce!.
-i py divorcementj”* and declare that by the word dipôfcêâ he
meant one divorce, and by the word “ divorcernenf" a fécond divorce,
his declaration is credited, becaufe each o f thefe words arfj
capable of being conftrued into an intention of effecting divorce, afitf
hence two reverfible divorces take place, provided the woman has been
enjoyed by him.
* Thefe and1 the fucceeding forms of divorce, literally'rendered) are rooftof them apparently
unintelligible, or abfurd ; they, are each, however, to be confidered .as hw“6jj
fome peculiar force or effect, which it is impoflible to exprefs, or to.coavey an idea of, *
tranjlatlon.
f§
2 >5.
If a man apply divorce to the whole woman, by faying (for
inftance) “ You are divorced,” in this cafe divorce takes place, on
account of its application to its proper fubjedt, namely, the woman,
the relative “ Ton” implying the woman’s perfon in t o t o and the
rule is the fame where he applies it to any particular part or member,
from which the whole perfon is neeeflarily underftood, as if he were
to fay, “ your neck,''' or “ your trunk," or “ your head," or “ your
■ “ body,” or “ • your vulva f — “ is divorced,”— for by fuch words the.
I whole perfon is implied, the terms trunk and body bearing that fefife
■ evidently,, and the others in common ufe; and they moreover occur,
■ both hi the traditions, and alfo in the Koran; and, according to one
I tradition, the term blood may alfo be ufed in the fame fenfe. Divorce
I talie? place alfo where it is applied to any general portion of the wife,
■ as'if the hufband Were to fay to her- •“ your half,” or “ your third, is
■ “ divorced,’’-^-becaufe any general portion is a proper fubjedt of all adds,
■ feqh as fade, purchafe, and fo forth, and is therefore equally fo of di-
H voree; but the fubjedt in q.ueftion (to wit, the woman) is incapable of
divifion, and hence divorce is eftablifhed upon her in toto, and is not
I reftridted to the portion mentioned.
I f the hufband fay to his wife “ your hand.r” or “ your fo o t, is
I “ divorced,” divorce does.vuot take place.— Ziffer and Shafei maintain
that it does :: and the fame difference of opinion, fubfifts-. where the
divorces is- applied to any other ipecific member, or organ, fuch- as
does-not imply the whole perfon, as the ear or the nofe, &c.— The
argument of Ziffer and Shafei is, that, thofe members contribute to the
matrimonial enjoyments, fuch as killing,, touching, and fo forth, and
whatever is of this defeription, as, being a fubjedt of the laws of mar-
■ tage, is a proper fubjedt of divorce, and as fuch,, when divorce is applied
to.it, it takes place upon it, and confequently extends to. the whole,
Perfon^ in the fame manner as, where it is applied.to any general portion,,
*" as, an h a lf, and fo forth: contrary, to the application of marriage,
toany ipecific member-,. fuch, as- the hand or the foot, in-which cafe.
5 ' the
j •
Divorce,
when applied
to any fpecific
part or member
of the
body, fuch as
does not (in
common ufe)
imply the
whole perfon,.
is of no effect.