■ 'S
i-ï1
f
R i j a At is o f two fpecies; the first is termed exprefs, where
the hufband fays, for example, “ I have returned to, (or taken back,)
“ my wife,” or addreffes the feme to her perfonally ; and the second
implied, where [he has carnal connexion, or take§' conjugal liberties
with her, fuch as viewing thofe parts of her which are ufually concealed,
and fo forth.— This fécond defcription of Rijadt is according
to our doctors. Shafei fays that the R ijddf is nbt approved,, or regular,
but where it is exprefsly pronounced by the hufband, (provided he be
able to fpeak,) becaufe Rijaât Hands as a marriage de novo:-, and (according
to him) Carnal connexion with the wife is in this cafe prohibited,
on account of its legality having been annulled by the. divorce,
■ Which is a diffolver of marriage, for it WouM appear that the marriage
is itfelf diffolved by a divorce, although it be of the reverfib’s
kind, were it riot that thé law there leaves to the hufband an option
of Rijaât, which is the foie reafön why he confinés its éffedt to the
prohibition of carnal connexion, and does not extend it to a difloltftion
of the marriage itfelf.— T h e argument of our doctors is that by Rijaât
is underflood a continuance of the marriage, as was before explained;
and this may be fhewh bÿ an Æ , Ï5 Well SSHj words,. for a£l3r fbrne-
times evince continuance ; as in the cafe of abolifhing the option of a
feller that is to fay, in the fame manner as the abolition of thé option
of a feller (which is the continuance of property) is prov'ed by an
a£i, foalfo in the prefent cafe ; nOW adts peculiar to marriage are figns
of the continuance of it; and the carnal connexion, or other adts, *
before Hated, are peculiar to marriage* efpecially in the cafe of free
women, fiiice, with refpedt to them, they cannot be lawful but
through marriage,— and, with refpedt to female Haves, they are
fometimes lawful by right of marriage, and fometimes by right kof
pofleffion : contrary to touching, or looking at the pudenda of a woman,
without lufl, becaufe that is fometimes lawful without marriage, as
in the cafe of a phyfician or midwife ; and the fight of other parts than
the pudenda fometimes happens to people who refide together ; and as
a wife refides with her hufband during her E d it, if fuch an accident
'were
were to imply Rijadt, he might then give her another divorce, to her
injury, as it would protradt her Edit.
It is laudable that the hufband have two witneffes to bear evidence The evidence
to his Rijadt-, yet i f he have no witneffes the Rijadt is neverthelefs-^^Tw-'0
legal, according to one opinion of ShqfH.— Mdlik holds that it is not f**» ^ not
lawful without witneffes, G od having fo commanded, faying, in the
Koran, “ r e t a in , them w ith h um a n it y ., or dismiss them
“ WITH KINDNESS, AND TAKE THE EVIDENCE OF"TWO WITNESSES
OF YOUR OWN PEOPEE, AND SUCH AS ARE OF JUST REPUTE
— where, the imperative being o f injmidive import, the taking of
evidence appears to be incumbent.— T o this our dodtors reply that in
all the texts which occur concerning Rijadt, it is mentioned generally,
and not under any refiriction of being witnefled; moreover, by Rijadt
is to be underffood (as was before Hated) the continuance of marriage,
to which evidence is not a neceflary condition; as in a cafe of A ila,
for inHance, where it (the A ila or -vow -of abjlinence) is done away
by the carnal aft, to which there are no witneffes;— but yet the
taking evidence to Rijadt is laudable, for the greater cautioh, fo as to
put it out of the power of any perfon to contradidt it.— With refpedt
to,the facrad text quoted by Mdlik, the imperative is to be taken, not
in an injunSlive, but in a recommendatory fenfe; for in this inflance
retailing them, and feparating from them, are connected by the intermediate
particle “ OR;’’ the text faying “ r e t a in them, or dis-
“ miss them, and t a k e two witnesses, &c.” from which it
appears that the calling witneffes ;is laudable only, and not injuntlive,
in the prefent cafe, becaufe, in feparalion, it is held to be laudable
only, by all the dodtors.
I t is alfo.laudable that the hufband give his wife previous informa- the wife
tion of his intention of Rijadt, lefl Hie fall into fin; for, i f fhe be not duTnotice'oi
aware of his intention, it is poffible that Hie may marry another huf-
band after the accomplifhment of her E dit, and that he may have
P p 2 carnal