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ties contrail a marriage under this condition, and the man divorce the
woman after carnal connexion, the, upon the completion ot her Edit,
becomes lawful to her former hufband, as there undoubtedly exifts a
confummation in a regular marriage; which is the caUfe of legality,
and the marriageds hot invalidated by the condition.— It is recorded
from Aboo Toofaf that fuch a marriage is null, as it falls under the
defcription of a Nikkah Mowokket, or temporary marriage, becaufe the
words of the hutband, “ I marry you under a condition of rendering
“ you lawful to your former hutband,” imply “ I marry you until
I the time of our having carnal connexion, and not for an indefinite
“ time,”— and is therefore the tame as where a man fays to a woman
“ I marry you for a month,” and fo forth; and the marriage being
invalid, the woman cannot by that means be rendered lawful to hex
former hutband: but in reply to this our doctors urge that the refine*
tion of the marriage to any fpecified time is not exprefsly mentioned
by the parties, nor does the man here marry the woman under any
other condition than that o f doing by her as marriage requires 5 and
hence it does not come under the defcription of a temporary marriage.
— It is recorded from Mohammed that the marriage is legal and valid,
ror the reafons before mentioned ; but yet the woman is not thereby
made lawful to her firft huiband, becaufe the fecond hutband here endeavours
to precipitate a thing which the law pajtpones, (for the law
poflpones her legality to her former hutband to the death of her pre-
feut,) and therefore meets a due return in the defeat of his defign, (to
wit, legalizing the woman to her former hutband;) in the fame riian*
ner as in the murder of an inheritee; that is to fay , i f any perfon flay
his inheritee, he is thereby cut off from inheritance, as having attempted
to precipitate that which the law has poftponed, and thus meets his
punithment in the defeat ofhis defign, (to wit, immediate inheritance;)
and fo alfo in the prefent cafe.
The firft huf- If a man repudiate his wife by one or by two divorces, and, her
vering his being completed, fhe be married-to another man, and afterwards
return
I 'M
return to her former hufoand, he becomes again authorized fo far as
three divorces, the one or the two divorces formerly pronounced upon
her by him having been cancelled and obliterated 'by her marriage with
the fecond hufband, in the fame manner as three divorces would have
been *. This is the do&rine of the two Riders.— Mohammed fays that
marriage with a fecond hufband-does not obliterate any thing fhort of
three divorces. The proofs on .either fide are drawn from the Arabic» '
I f a man pronounce three divorces upon his wife.,, and file afterwards
declare that “ her Edit having been duly accomplifhed, fhe has
“ been married to another man, and enjoyed and divorced by him,
“ and that her Edit from him is elapfed,” — her former hufband may
lawfully admit hey afleveration, and marry her, provided that from the
period pf his divorcing her fuch a (pace of time have elapfed as affords
a poflibility of this having been the cafe, and that he actually believe
her aflertion to be true; becaufe the fubflance of the woman’ s afler-
tion is-either a matter of mere temporal concern, (as ncft comprehending
any merit or demerit before G od,) or it is a matter of religion, (on
account of legality being fufpended upon it,) and the declaration o f a
fingle perfon, either in matters of a temporal or fpiritual nature, is
worthy of credit; and the confirmation of her aflertion is not forbidden
or reprobated, where the fpace of time which has intervened admits;
the poflibility of its truth.— The learned differ concerning the
fhortefl period which admits of this poflibility, as fhall be fully explained
in treating of Edit.
* T h a t is to fay, one or-two divorces are obliterated, the fame as three would be, had
that been the number formerly pronounced by him.— I t isneceflary to obferve that this cafe
involves a principle in divorce which is no where exprefsly mentioned; namely, that' the
feme woman is not a legal fubjedt o f more than three divorces to any one man, and confe-
ftuently, that a man who repudiates his wife by tw o divorces,, (for inftance,) i f he marry
er again, unlefs the intervention o f another huiband obliterate thefe two , has no power beyond
o n e divorce in the fecond .marriage.
R r
wife, by an
intervenient
marriage, re covers
his full
power o f divorce
over
her.
The wife’s
declaration
o f her having
been legalized
is to be
credited.
V ol. I. C H A P .