D I V O R C E . B ook IV.
“ have carnal connexion with you, you are free,” and he afterwards
have carnal knowledge of her, fhe is emancipated on the inflant of
fuch connexion; yet fhe has no claim to a fine, although hé fhould
not immediately céafe; but if, after a deflation, he again renew the
connexion, fhe has then a claim to a fine.—-This is the doctrine of
the Zâhir-Rcrw&yet.— It is recorded from Aboo Toofdf that a fine is due
where he delays, although he fhould not entirely retreat and again
renew the connexion, becaufe this amounts to carnal conjunction tftcr
divorce or emancipation, on account of his continuing the act ; but pu-
nifhment is not due, fince the whole is only one a£i, in which, as the
commencement affords no caufe for punifhment, fo neither is'punifhment
incurred by the accomplijhment of it ; but yet the fine is- incumbent, as
the Gommiffion of the carnal aCt upon a prohibited fubjeCt Cannot be
free from both punifhment and fine. T h e grounds on whiéh the
Zdhir-Rawâyet determines in this cafe, is that by Jama [the carnal-
a£t] is underffood the commencement o f the aft', and continuation is not
commencement; wherefore carnal connexion de novo is not implied':
contrary to a cafe of (reflation and renewal, becaufe in that cafe the
connexion takes place after divorce; but yet, even in this inffance,
punifhment is not incurred, on account of the doubt occafioned by the
unity of place and of paffion ; but, fuch being the cafe, the fine"-is incumbent,
as the commiffion o f the Carnal aCl upon a prohibited fubjeft
cannot be free both from punifhment and fine.
If , moreover, in the cafe now recited, the hufband had' fufpeude.l
a reverfible decree upon his commiffion of the carnal a ll, the divorcé
is virtually reverfed by his delay, agreeably to Aboa Yaofaf', but if ne
ceafe and again renew, It is then reverfed1, according' to all the
doctors.
C h a p . IV. D I V O R C E . 2
S E C T I O N .
O f Istisna ; Ha th , R e ser va t io n or E xception.
I f a man fay to his wife “ you are divorced, (adding) i f it pleafe Divorce,with
J v J . -i 1 1 i a refervatl0n
“ Go d ” without any ft-op between, divorce does not take place, be- of.thewiilof
caufe the prophet has faid “ where a man makes a vow o f divorce or no° take*5
il mantmifion,. faying,-. is i t p l e a s e G od, he cannot be forfw orn -f PIace>
and alfo, becaufe the hufband has here introduced the words “ i f it
“ pleafeG od” in the form o f a condition, and hence the divorce is
fiifpended upon the will of God, and does not take place until the
oBfurrence of the condition : but, the will of G od not being known,
nothing can be decreed which is fufpended upon it.-—And here, as
the fufpenfion deflroys the effedt of the preceding words, it is a condition
that the fame follow them conneftedly, and without paufe, as
ill other fimilar cafés : and the words “ i f it pleafe G od” are here faid
to be introduced in thé form of a condition, becaufe they are not aftu-
af/fjconditional, as by a condition is underftood a thing not at prefent
exlfting, but (he future occurrence, of which is conceivable; wherefore
a thing now exifhng cannot be termed a condition; nor a thing the ex-
iftence of which is impoffible; and the will of G od is of one or other
of thefe deferiptions.
W h a t is here faid proceeds upon a fuppofition that the words
“ if it pleafe G od” follow the preceding word's-, immediately, and
without reparation, by a paufe ; but i f the man fhould.firfl: fay “ you
“ 'are.divorced,” and remain a moment or two filent, and then fay'
“ if it pleafe G od,” the virtue of fhe former words is eflablifhed, becaufe
in that cafe the additional words come in as ia retradlion from the
firft words which is not held legal.
unlefs it be
pronounced
with a paufe
between the
divorce and
the referva-
tion.
I f