Cohabitation
is not made
illegal by a
rev erAble divorce.
where the text applies to the I women under reverfible divorce, the
rying of whom upon a journey is the removal of them from their
dwellings, and is therefore illegal;— ‘Secon d l y, the only reafon why
the effect of a fentence of reverfible divorcees poftponed 'to the accom-
plilhment of the Edit is, the poffible intention or with of the hulband
to take back his wife; but where he does not do fo before the Edit is
accomplifhed, it appears that he had no fuch wifh or intention, in
which cafe it would be evident that the fentence took effedt upon the
inftant of his pronouncing it, and that the wife was confequently fe-
parated from that period; for if the effedt o f the fentence were in
reality reftridted to the completion of the E dit, another Edit would
then always be requifite after the firft ; and hence, as it appears that
the wife is, in effedt, as a franger to her hulband, from the time of
the fentence of divorce, it follows that he has no authority to carry
her forth ; whence it is here faid that he cannot carry her upon a
journey until he has called witnefles to bear evidence to his Rijaât;
— in which cafe the Edit is annulled, and his authority re-efta-
blifhed.
C a r n a l connexion with a wife is not rendered illegal by a reverfible
divorce, according to our dodtors. Shafei maintains that it;jis|
rendered illegal thereby, fince the connubial connexion is diflolved,
becaufe of the appearance o f that which terminates marriage, namely,
his lenience of divorce.'— The argument of our dodtors is that the connubial
tie ftill continues, infomuch that the hulband is at liberty to
take back his wife, even againft her will, becaufe a right o f Rijaât is
referved to him out of tendernefs, in order that he may be enabled to
recover his wife when he becomes afhamed of having divorced her;
and this neceflàrily implying that he is empowered to recover her, his
being fo proves that Rijaât is a continuance of the marriage, and not a
marriage de novo, as a man cannot marry a woman againft her will.
With refpedt to what Shafei advances, that “ the connubial connexion
“ is
“ is diflolved on account of the appearance of that which terminates
“ marriage, namely, his fentence of divorce,” it may be replied
that the effedt of the terminator is poftponed to the completion of the
Edit, according to all the dodtors, out of tendernefs to the hulband,
as above.
S E C T I O N .
O f C ir c ums t a n c e s which render a divorced W i f e lawful
to her H u s b a n d .
I n a cafe of irreverfible divorce, Ihort of three diyorees, the huf-
tmidffs at liberty to marry his wife again, either during her Edit, or
slier its completion, as the legality of the fubject ftill continues, fince from him by
th| utter extinaion o f fuch legality depends upon a third divorce ;
and accordingly, until a third divorce take place, the legality of the
I lubjedt continues.
O bjection. I f the legality of the fubjedt continue, it follows
that it is lawful for any other perfon befides the hulband to marry the
wife during her Edit.
Re p l y .— Her marriage with any other during her Edit is forbidden,
on account of its inducing a doubtful parentage; but i f the hufband
marry her, this objedtion cannot exift.
A man may '
marry a wife
repudiated 1
by
one or t<wo
irreverfible
divorces;
1 ; : 1
but if l>y
\’ ijiHI three divorces i | 1 i j i i f
he cannot
marry her,
until file be 1 i ' • f i 1 i • s , 1 previoufly * nil Ï
!p
married to i "'I'-'-;? ; another man. ' '1ÿ1i ' - ' - cMr « fill ■ . . l i i l t e l i i
‘F i f i f l l
i l l