but not when
it is exprefled
with an un-
reftri&ed par'
tide in re-
ipeót to.flace.
I f a man lay to his wife “ you are divorced as often as you
“ pleafe,” (he is at liberty to divorce herfelf time after time, until
three divorces, becaufe the expreffion as often admits a repetition of
the a f t:— but it is to be obferved that this fufpenfion of divorce upon
the woman’s will is reftricted folely to the marriage at prefent exift.
ing, and does not extend to that which may afterwards occur; and
hence’ if the woman give herfelf three divorces, and be again married
to the fame man, after being rendered lawful to him, and then pro*
nounee divorce upon herfelf, it does not take place, beeaufe a mar*
riage has then occurred Ae novo-,—-and it is: alfo to be remarked that
the woman is not at liberty to pronounce the three divorces upon herfelf
in one lentence, becaufe the expreffion “ as often as” implies
unity, and does not admit of the circumftances to which it relates
being taken collectively, and hence it is lawful for the woman to
pronounce three divorces upon herfelf at three feparate times, but not
at once,
If a man fay to his wife “ you are di vorced wherever you. pleafe,”
yet the woman cannot divorce herfelf but in that place; and if die
rife from her place before fhe pronounce it, her will is not regarded
afterwards, becaufe the words wherever, or wherefoever, are adverbs
o f place, and divorce has no connexion with place; the word where*
<ever is therefore nugatory, and the will only remains, which is confined
to theprecife place.: contrary to the cafe of time, (that-is, where
the hufband fay6 “ when you pleafe,” ) to which divorce has a relation,
as it may take place at one time and not at another, and hence
■ thé mention .of time in divorce is regarded, whether it be particular,
as “ you are- divorced to -m o r r ow o x general, as “ you are divorced
when you pleafe."
I f a man fay to his wife “ you are divorced how you pleafe,” and
fhe remain. filent, a divorce reverfible takes place, whether fhe be
defirous or not: or, if fhe break filence, and fay “ I am defirous of
5 “ one
“ one divorce rèverfîble,” and the hufband reply “ fuch alfo is my
“ defire,” divorce takes, place accordingly, becaufe a conformity is
eftablifhed between the will of the wife- and the intention of the
hufband ; but where the wife délires three divorces, and the hufband
only one divorce irreverfible, or the contrary, a divorce reverfible
takes place, becaufe her adt is rendered nugatory by the non-conformity
of her will with that of her hufband, and his words (v iz .
“ you are divorced, ) remain, which are effective of a divorc.e:.rever-
fible but i f the hufband have no particular intention, the will of the'
wife alone is regarded, infomuch that, whether fhe defire three divorces,
or only one irreverfble divorce, it takes place accordingly,, in-
the opinion of our modern doftors, as this is what a right of option
requires.— The compiler .of the Hedâya obferves that Mohammed, in
the Mabfoot, fays that the taking place of one divorce independant of
| the will of the wife,, as above, ..is the dcxftrine of Haneefa-, but that,,
with the two difciples,, divorce does not take place fo long as the
woman does not divorce herfelf; thus fhe has her option-of either one'
divorce reverfble or irreverfble, or of three divorces : and the fame-
difference of opinion fubfifls with refpedt to manumiffion that is to
I if * rnaffer fay to his Have “ you are emancipated how jfeu pleafe,”
the Have is free upon the inftant, according -to Haneefa-, whereas,-
hccerding to the two difciplqs, he is not free, fo long as he is not dev
Irons of being fo.— T h e argument o f the latter k that the hufband
has delegated to his wife a power to effeft divorce upon herfelf under
whatever defcription fhe pleafes, whether afn g le divorce reverfhle o r
Wreyerfble, or three divorces; and hence it is indifpenfably requifite
Fifll the divorce itfelf be alfo fufpended upon her will, fo that a will
ihall be confirmed to her in all circumftances, that is, both before•
carnal connexion and after it ; for, i f the divorce itfelf were not fufpended
upon the will of the wife, it would fojlow that the wife could
have no will with refpeft to the defcription of the divorce before carnal,
connexion, as before confummation fhe cannot give herfelf three di-
v°rces, fince in fuch cafe the wife becomes irreverfibly repudiated by afingle