Definition of
the phrafe.
Delegation
by option
confers on the
wife a power
of divorcing
herfelf;. but
this right of
option is re-
ftri&ed to the
precife place
or fituation
in which Ihe
receives it,
C H A P . III.
Of Delegation of Divorce.
T a f w e e z a x . T a l a k , or delegation of divorce, is where the husband
delegates or commits the pronouncing o f divorce to his wife*
defiring her to give the effective fentence, and it is comprehended
under three different heads, termed Option, Liberty, and Willi.
S E C T; EO
f I k h t i y A r, or O p t i o n .
If a man fay to-his wife “ choofe!” (thereby meaning divorce,)
or “ divorce yourfelf!” the woman has a-power to divorce herfelf fo
long as fhe remains in. the precife fituation * in which fhe received it;
but if fhe remove,, or turn her attention to any thing elfe* the power
thus- veiled in. her is done away,, and her option no longer remains,
becaufe the exercifeof the optional power thus committed to the wor
man is held, by all the companions,, to be reftrided to the precife
fituation in which.it is received;, and alfo, becaufe this fpecies ofdele-
gation is a. transfer o f power, not a commiffion o f agency, and to give
effect to the former, the.reply is required on. the fpot of declaration,
* Arab. Majlis.-.— This term .is treated of at large elfewhere..
file
the fame as in fale, fince all the moments of one fituation are accounted
as a fingle moment; but a fituation may be altered, fometimes by
change of place, at other times by chance of employment, becaufe a
fituation of eating and drinking (for inflance) is not that of difputa-
tion; and a fituation of bufinefs, on the other hand, is neither a fituation
of eating or drinking, nor of difputation.— The right of option of
file woman is annulled upon the inftant of her riling from her feat, as
that circumftance proves her rejection of i t ; contrary to the cafe of a
Sillm or a S ir/ fale, which does not become null upon the inftant of
rifinvor removing, the caufe of invalidity there being removal without
feizin.— And where the hulband thus addreffes his wife, an intention
of divorce is a condition requifite to the effedt, (as mentioned in the
preceding chapter,) becaufe the word choofei” is one of die implications
of divorce, as it is capable of two conftructions, by" one it de-
fires the woman to choofe herfelf, and by another to choofe her clother,
and fo forth; and i f Ihe choofe h erfelf*, a divorce irreyerfible takes
place. Analogy would fuggeft, in this cafe, that from- ehoofng her-
felf nothing whatever Ihould enfue, although divorce be the intention
of the hulband, becaufe he cannot himfelf effedt divorce by the ufe of
fuch words r that is to fay, if he were to fay to his-wife “ I have
“ chofen myfelf from you,” nothing whatever would follow, and
eonfequently how can he give a delegation of this-nature ?— But here
divorce takes place upon a more favourable conftrudtion, for two rea-
fons;— f i r s t , all the companions agree that divorce takes place from
the ufe of this expreftion;— s e c o n d l y , the hulband has it at his option
either to continue the marriage with his wife, or to put her away, and
hence it follows that he may conftitute her his fubftitute with refpedt
to that rule; and where the woman is thus left to her option, and fays
“ I choofe myfelf,” a divor.ce irreverfible takes place, becaufe the
woman’s ehoofng o f herfelf cannot be eftablillred but by her becoming
* This is an idiomatical phrafe in the Arabic, fignifying tbat.yZi? cboofi. her liberty.from
Ois matrimonial tye.
foie
and is annul-
led'by her removal.
Intention, on
the part of
the hulband,
is requifite tO’
conftitute a-
delegation.