trounced any divorce yefterday, fo- as that be fliould now give intelligence
thereof*.
If a man fay to his wife “ you are under divorce previous
■ to your marriage with me,” — divorce does not take place,,, be-
caufe he applies the divorce to a period which forbids it,, the fame as
if he were to fay “ you are under divorce in nay infancy»” or “ in
“ my fteep.”
If a man fay to his wife, “ you are under divorce- upm ■ my not
“ divorcing you,” or “ when I do not divorce you,” 'and then remain
filent, divorce takes place, becaufe he has here applied it t® a
time which appears the moment he ceafes. to fpeak.— But, i f hé
were to fay, “ you are under divorce i f I do not divorce you,"
divorce does not take place until near thé period of his deeeafe, becaufe
here the condition does not become eftablifhed until life be def-
paired of.
I f a man fay to his wife “ you are divorced, whilft I do not di-
“ vorce you, you are divorced -f,” Ihe becomes divorced on account
o f the laft repudiation, to wit, “ you are divorced.”— This is where
the laft Words of the fentence are uninterruptedly connected with the
firft part of it, and proceeds upon a favourable conftrutlion, for ana.-
logy would fuggeft that the firft divorce takes place alfo, (to wit,
“ you are divorced whilft I do not divorce you,” ) and thus both divorces
would take place, provided the woman be enjoyed ;r and fuch
is the opinion of Z iffer; but the reafon for the more favourable
conftruftion here, is that it is the intention of the vower to fulfil
* Th e reafoning here turns folely upon certain idiomatical peculiarities in the con-
ftru&ion of the Arabic language, in which the preterite is frequently adopted, by the law,
in a creative fenfe. (See Book II. Chap. I.)
f This is one of the forms under which divorce by vow is conceived.
his
his vow, in fiich a manner that he may not be forfworn, which is
impoflible in the prefent cafe, unlefs that portion of time which may
enable him to pronounce the divorce be excepted from his fpeech,
“ you are divorced whilft I do not divorce you ;” and being thus ex-
cept-d, divorce takes place, on account of the words.which follow»
Cafes correfpondent to this occur in the Book o f Eimdn.
If a man fay to a ftrange woman, “ you are under divorce the
“ day upon which I marry you,” and he afterwards marry her in the
night, ihe is divorced; becaufe by day is fometimes meant the day
time, and this fenfe alone it bears where it relates to a matter o f continuance,
(fuch as fafiing, for inftance,) and fometimes i t is meant
to exprefs time in general, which fenfe it bears where it relates to a
tranfient or momentary tranfa&ion, and o f this nature is the a<ft o f
divorce; and confequently by the word day, in the prefent cafe, is to>
be underftood time generally, applying equally to day and night both.
—But if the hulband were to fay that by day he meant the daytime-,
and not time generally, his declaration is admitted with the Kdzee, as
he may be allowed to have intended that conftrudion which is applicable
to the word day, fince, according to cuftom, day applies to the.
daylight, and night to darknefs.
S E C T I O N .
If a hulband fay to his wife “ I am divorced from you,” by this-
nothing is eftablifhed, although divorce be the intention: but i f he
were to fay “ I am Separated from you,” or “ I am prohibited to>
you, intending divorce, the becomes divorced.— Shafei holds that
vorce takes place iii the former inftance alfo, where fuch is the intention,