accomplilhed, becaufe G od has faid “ -if he divorce her, she is
“ n o t , a f t er t h a t , law fu l to e im ” (that is after a third divorce)
“ u n t il she m ar ry another husband.” . And here two
divorces to a Jlave are the fame as three to a free woman, becaufe the
legality of the fubjeft has .only half its force in a {lave, on account of
her ftate o f bondage:; and hence it would follow that, to fuch an one,
a.divorce and an half {lands the fame as three divorces to a free woman,
ibut as divorce is incapable of fubdivifion, two divorces are allowed.—-
A s to what is faid., .that the fecond hulband duly confummating is a
condition, it is founded on the text here quoted, in which the word
Nikkah [marriage] implies- carnal connexion’, as it bears two meanings,
by one of which it dignifies carnal conjunction, and by the other the
legal union of the fexes, and it is on this occafiori taken in the former
fenfe: but even admitting that the word Nikkah, ' in the text,' meant
dimply the marriage contradt, yet the condition is eftablilhed upon a
-well known tradition of the prophet, who being queftioned concerning
a perfon’ s power of marrying again a wife who, after he had re:
pudiated her by three divorces, had been married to another man, and
whom, after .retiring with her, and lifting her veil, that man had divorced^
replied “ the woman is not lawful to her jirfi hujband untilJhe
“ has tafedthe embrace o f the other f but the condition requires’ only
the entrance of the penis into the vagina, and not the emiffion of feed,
as the above tradition implies the entrance generally, whence that only
is underftood.
Nature of the
confumma-
tion in the
fecond marriage
which
renders a divorced
wife
Again lawful
to her firft
hulband.
A youth under puberty is the fame as a full grown man with re-
fpedt to legalizing;— that is to fay, if a man give his wife three
divorces, and (lie, after her E dit, marry with a youth under maturity,
and he perform the carnal a£t with her, Ihe then [in cafe of his deceaje
or divorce] becomes lawful to her firft hulband, becaufe the condition,
namely, entrance, in virtue o f a regular marriage, is necelfarily fup'
pofed to be fulfilled.— Malik fays that the carnal a£t of a fu ll grown
man is the condition, becaufe unlefs he be arrived at maturity the wo-
5 . M
man’s tafiing (that is, enjoying pleafure from) his embrace, which is
the condition, is not fulfilled: but the cafes before recited in the book
ef marriage difprove this diftinfHon of Malik.— It is to be obferved
that it is recorded in the fama Sagheer, that a boy under puberty, but
who is fuch as to be able to perform the carnal embrace, is termed a
Moordhick; and where fuch an one has carnal knowledge of his wife,
ablution is incumbent upon her, and fhe is thereby rendered lawful to
a former hulband, if he lhould have repudiated her by three divorces;
and the carnal embrace of fuch an one is implied from the circum-
ftance of his having a priapifm and defire. It. is alfo to be obferved
that ablution is made incumbent upon.the woman, in- the prefent cafe;
only on account of the entrance of the boy’ s penis into her vagina exciting
an emijjio feminis on her part, the neceflity thereof with refpedt
to- her being folely in con fequence of her full puberty; but it is not
incumbent upon the boy, he not being fubjedt to the neceflity o f fuch
obfervance; but yet it is required of him, that' he may. be habituated
to a laudable cuftom.
A fem a l e Have,, whom her hulband'has repudiated by two
divorces, is not rendered lawful to him by the carnal embrace of
her mafter, becaufe that which is eflential to her legality, (namely
marriage, ) does not exift here.
If a man marry a. woman whofe hulband had repudiated her by
th ree divorces, under a condition of rendering her lawful to her former
hulband,. as if he were to declare to her— “ I marry you under a con-
“ dition o f rendering.you lawful to your former hulband,”— or, as if
lhe were to fay to him— “ I marry, with you under the condition of
“ my becoming lawful to my former hulband,” —-this-is an abominable
marriage, becaufe the fécond hulband is here termed a Mohu/lil, or
legalizer, and the prophet has faid “ let the curfe of G od fall upon
“ the Mohullil and the Mohallal-le-hoo* : but. neverthelefs, i f the par-
The fecond'
marriage,
when contracted
under1
a legalizing
condition, is
difapproved;
but yet the
woman is
rendered legal
by it to
her firft lui£*-
band.
The thing rcndercdlegal. It means, on this occafion, a- thing rendered legal by Come
indirect and unapproved expedient,
ties
f|
i HI