A hufband
may take
the part omitted be lefs than a limb (a finger, for inftance) it ter-
minates. The compiler of the Hedaya obferves that this rule pro-
■ ceeds upon a favourable confirmation of the law; for analogy would
: dictate, in this cafe, that i f a complete limb be through forgetfulnefs
omitted, the power of Rijadt difcontinues, becaufe the woman has
performed the oblution upon the greateft number of her limbs»- and
the rule of the whole applies to the. greateft number-, whereas, on the
other hand, in the omiffion of any part Jhbrt of a complete limb, it
would fuggeft that the power o f R ijadt'ltill remains, becaufe the laws:
refpedting Jandyat and- the. courfes do not admit of d iv ifio n fW
hence, where, the power of Rijadt remains with refpecl to a
continues with refpeft to the whole, as in the liberty of prayer, fa
mftance; in fhort, analogy requires that the rule be the fame infibth]
cafes: but the reafon for a more favourable conflruftion is that there 1
is an eflential difference in the two cafes,' becaufe any part Jhort of J
complete limb foon becomes dry, efpecially in hot weather, and hence
it is not certain but that part may have undergone ablution to^ethcr
with the reft, for which reafon it is here faid that the Rijadt terminates
; whereas a complete limb does not quickly become dry }'nei-
ther can the omiffion of fo large a portion of the perfon, in ablution,
be afcribed to forgetfulnefs. It is recorded from Aboo Toofaf that the
omiffion o f ablution with refpeft to the mouth or noflrils is the fame,
as with refpedt to a complete limb; but it is elfewhere recorded from
him that thefe Hand the fame as any part fhort of a complete limb,
(and of this opinion is Mohammed,') becaufe there is a difference
of opinion concerning the divine injunaion direaing the ablution of
thofe parts.
* I f a man divorce a wife who is pregnant, or who has bropght
forth *
* T o tuderfiand the fcope of this cafe, it is requifite to advert to one o f the fundamental
laws -of divorce,— that a divorce pronounced upon a woman with whom thé Êfiand
has not had carnal connexion is, in a ll cajh, irreverjible. Th e cafe here confidered fij>
poles
forth a child, and declare that he has never had carnal connexion with
her, he is neverthelefs at liberty to take her back, becaufe where the
pregnancy appears, within fuch time as renders it poffible to be derived
from him,, to him it is. to be afcribed; and this circumftance
proves his connexion with her, whence a right of Rijadt is eflablifhed
in him, as the divorce thus appears to be reverfible; and in the fame
manner, where the parentage of the child born of her is eflablifhed
in him, his connexion with her is alfo eflablifhed; and it thus appearing
that file has been enjoyed by him, the divorce is confequenjtly reverfible
; and his declaration is in either cafe null, as the law denies
it, becaufe, by aferibing the woman’ s pregnancy, or the birth of the
child, to the carnal aft of the hufband, it eftablifhes her marriage, and
confequently his right of Rijadt, a. fortiori.— It is to be obferved that
by the hufband divorcing a wife who has brought forth a child is here
meant divorce after de-lwefy, for if the child were born after the divorce,
the Rdtt would be thereby accotnplifhed, and the power o f
Rjadt, would terminate of courfe.
back an unenjoyed
divorced
wife,
provided Ihe
be delivered
o f a child
within fuch a
time as efta-
blilhes its
parentage in
him.
I f a man retire with his wife in fuch a way as amounts to a Khal- A man ac-
\ wat Saheeh, and afterwards divorce her, declaring that he has not thTthelSd2
had carnal'connexion, he has no power o f Rijadt, becaufe that would "ev" con"
| have been confirmed to him by his commiflion of the carnal a£t; but with his di-
j'he acknowledges--that this has not taken place, and hence his declar- hSnodp"wer
ation is credited, as it operates to the prejudice o f his rio-ht: and the ° fRva£t>^--
law does not on this occanon deny his declaration, becaufe a woman’ s haYe been
right to her ftipulated dower is founded upon her making delivery of wlthh
•her peffon,- and not upon her hufbancTs feizin o f it : contrary to the
former cafe, as there the law is repugnant to the huiband’ s declaration.
poles the hufband to have repudiated his wife hy a fentence o f divorce undefined, that is,
Without fpecifying whether' it is reverjible or irreverjible; for i f he were-to declare it under
TO latter ddcription, it holdsdb at all event's.
Von, I, Q q If