foie and indépendant, which can only be the cafe in irreverfible divorce,
as, where it is reverfble, the hoiband is at iibertyto take her
back without , her confent at any time during, the -continuance of her
Edit, and thus fhe would not become foie and indépendant on the
inftant, which the'nature of the cafe requires.
Under this
form a Jingle
divorce only
takes place,
whatever
may. be the
.intention:
I t is to be obferved that, in the cafe at prefent under confideratioa
one divorce only can take place, and not three, although the hufband
ihould actually have intended the latter option not being of -different
descriptions :— contrary to complete feparation, for if the huiband
were, to fay “ you are completely feparated,” intending three divorces
the three take place accordingly, where filch is his intention, becaufe
this complete feparation is of two deferiptions, the mildmA the
rigorous, and it follows that intention with refpedt to one of thefe holds
good.
and, to efieft I t is alfo to be obferved that, where the hufband ufes the ex-
requifite that preffion “ choofe!” it is requifite that the perfonal pronoun f e lf be
the perfonal mentioned either by the hufband or the wife, infbmuch that if the
pronoun be J
mentioned by hufband were to fay “ choofe!” and the wife anfwer “ I have chofen,”
oftheparties, divorce does not take place, becaufe the effect of divorce is eftablifhed
by all the doctors upon the condition of the mention of the perfonal
pronoun by one of the parties ; and alfo, becaufe the pronoun cannot
be underftood under any circumftances of ambiguity, and thefe words
of the woman bear two conftruftlons; one, that fhe choofes her hufband,
(which would not occafion divorce;) and another, that fhe
choofes her fe lf, (which would occafion irreverfible divorce;) divorce,
therefore, does not take place in defeat of the pronoun, on account of
the ambiguity.
that is, either If a man fay to his wife “ choofe yourfelf,” and fhe anfwer “ 1
band'iAis “ have chofen,” a divorce irreverfible takes place, becaufe the word
declaration, j e i j here occurs in the words of the hufband, and the words of the
4 woman
woman are in reply to him; and hence her words virtually comprehend
her fe lf.— And, in the fame manner, if the hufband were to fay
“ choofe an option,” and fhe reply “ I have chofen,” a divorce
1 irreverfible takes place : the proofs here are drawn from the
Arabic. '' ■ ■■ ■ V '- ' . ,)■ ■ ■ -, v... '
I f a man fey to his wife “ choofe 1” and fhe reply “ I have chofen
I “ myfelf,” divorce takes place, where fuch was the hulband’s intention,
becaufe the word f e l f here occurs, in the reply given by the
I woman, and the expreffion of the hufband hears the confina Ction of
I that which he intended.
■ ■ . I I ... ■ 1 1 .
If a hufband fay to his wife “ choofe !” and fhe reply to him in
I! Ûie Mozaree tenfe, [which, in the Arabic, is common to. the prefent
I I and future,] faying “ I do (or will) choofe myfelf,” divorce takes
I I place, on a favourable conflruction.— Analogy would fuggeft in this
11 cafe that no divorce takes place, becaufe, i f the woman’ s reply be
I taken only in the fu tu re, it Hands as a promife, and bears that con-
I flruftion alfo, i f taken in the prefent-, and hence divorce does not
I take place, from her anfwer amounting only to a promife in thé former
I fenfe, and fr.om its ambiguity in the- latter■ ; as if a man were to fey to
I his wife. divorce yourfelf,” and (lie were to reply Atliko Naffee [ “ I
■ “ do (or will) divorce myfelf,” ] in which cafe divorce does not take
I place, and fo in this cafe likewife: but the reafbns for the more fal
l vourable conilruction are twofold;— f ir s t , it is recorded that, upon
■ the defcent of the paffege of the Koran relating to option, ’vi$,. “ O,
I “ my son! say to your wives, I f you defre the life o f this world,"
I (to the end,)— the prophet feid to Ayfha, “ I have fomething to men-
I “ tion to you, but do not reply to it until fuch time as you confult
I “ your parents,” after which he read to h er the' above paffege, and
I then gave her an option ; and AyJha feid “ in fuch a matter as this
I “ I fhall not confult my father or mother, but w ill (or do) choofe
B G od
or, by the
wife, in her
reply:
and divorce
takes place,
although her
option o f it
be exprefled
in the M ozc-
ree or common
teufe.