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tention, becaufe the matrimonial right-of pofleflion is equally participated
by the hufband and the wife, infomuch that the latter is entitled
to demand coition of the former, and the former to demand admiflion
to-coition from the latter, and the legality o f the carnal enjoyment
alfo appertains equally to both ; and divorce being ufed for the pur- ,
pofe of diflolving- the right, and the legality, the application of it to
the hulband holds good, as-well as to the wife, and confequently
divorce takes- place under the firft of the above forms, as well as under
the fecmd or third.— The argument 'of our doctors is that divorce is
ufed for the removal o f reflraint, and this is found in the woman, but
not iii the man, (whence it is that a married woman cannot go out |S
the houfe:) and admitting that divorce were ufed for the purpofe ct:
diflolving the matrimonial right o f pofleflion, (as advanced by Shcfeift}}
it may be replied that the hulband is the pofleflor of the- wife, and \
the wife the poffeffed of the hulband, (whence the woman is called
the married\ and th e ' man the marrier,) and confequently poflcflios j
applies' to the woman: contrary to feparation or prohibition, the firft]
of thefe being a total’dilfolution of connexion, and the fecond o f legality,
both of which equally appertain to each of the parties; and hence the
application of them to either is equally forcible, whereas that of divorce'
is of no force except when applied to the wife.
If a man fay to his wife, t! you are divorced once or not,” divorce
does not take place. T h e compiler of the Heddya obferves that the
fame is faid in the Jama-Sagheer-, nor is any difference of opinion!
recorded there. This is ,wh a t is faid by Haneefa, and in one
place by Aboo Toofaf. According to Mohammed (with whom Aboo]
Toofaf in another place coincides) a Angle divorce reverlible takes
place; and in the book of divorce in the Mabfoot it is recorded that,
where the hulband fays to his wife, “ you are divorced once or no-
“ thing,” a Angle divorce reverflble takes place, according to Mohammed:
now between this and the preceding form there is no fort of
difference, and confequently, if the cafe cited in the Jama-Sagheer
be the opinion of all the dodtors, it follows that there are. two opinions
recorded from Mohammed upon this point.— T h e argument of
the latter is that the number is rendered dubious on account of the
particle of doubt “ o r" intervening between the word“ once" and
the negative “ n o tf wherefore regard to the former drops, and his
words remain, “ you are divorced:" contrary to a cafe where he
fays “ you are divorced or not,” in which inftance divorce doés not
take place, Ance in this lalt cafe the doubt exifts with relpedt to divorce
itfelf.— The arguments o f Haneefa are drawn from the Arabic
idiom.
If a man fay to his wife “ you' are divorced after my death,”
or “ after your death no confequence whatever enfues from this
expreffion, becaufe, in the Aril inftance, he has applied the divorce to
a time which forbids it, Ance a hulband is not competent to the execution
of divorce after death ; and, in the fecond, the woman no longer
remains a At fubjedt'of it ; and both thefe circumftances are eflential to
a legal divorce.
If a hulband become the proprietor of his wife [as a Have] either
wholly or in part, or a wife the proprietor of her hulband, feparation
takes place between them, pofleflion by bondage and pofleffion by
matrimony.being irreconcilable;— in the latter inftance, becaule, if
feparation were not to take place, it would follow that the wife is at
once the pojfejfor and the poffejfed, (Ihe falling under the latter defcrip-
tion by virtue of marriage;)— and, in the former' inftance, becaufe
pofleffion by matrimony is eftablilhed o f neceffity, and when the huf-
band becomes adtùal pofleflor of his wife’s perfon, this neceffity ceafes,
and confequently pofleflion by matrimony alfo.
If a man purchafe hisown wife, [as'a Havé,] and afterwards divorce
her, divorce does not take place, becaufe without the continuance of
marriage it cannot exift, and in the prefent cafe the marriage has
V ol. I, G g ceafed
Separation
takes place
upon either
party becom ■
ing poffeffed
o f the other
as a Jlave:
or, upon a
hufband pur-
chafing his
wife.