Definition of
the term.
The mode in
which Aila is
eftablifhed.
In breach of
Aila expiation
is incumbent
:
but if it be
obferved, a
divorce irre-
verfible en-
lues at its
termination.
C H A P . VII.
Of A il a.
A i t A, in its primitive fenfe, fi'gnifies a vow.-— In law, it implies a
hufband {wearing to abftain from carnal knowledge o f his wife for
any time above fou r months, if fhe be a free woman, or two months,
if fhe be a Have.
I f a man fwear that he will not have carnal connexion with his
wife,— or, that he will not have fuch connexion with her within (iMis
months,— an A ila is eftablifhed ; becaufe G q d has laid “ where a
“ m an makes a vow [Aila] with .respect to his., w ife , he
“ must s t a y four months, ” — to the end of the verfe.
If a man, in a cafe of A ila, have, carnal knowledge of his wife
within four months after, he is; forfworn in his vow, and expiation is
incumbent upon him, this being incurred by the breach of his vow;
and the A ila drops, as his vow is cancelled by the breach of it : but if
he have not carnal knowledge of her for the fpace of four months, a
divorce irreverfible takes place, independant of any decree of feparation
from the magiftrate.— Shafëi fays that a decree of the magiftrate is re-
quifite, becaufe the hufband here withholds her right (namely carnal
connexion) from his wife, and hence the magiftrate aéts as his fubfti-
tue, in effecting a feparation; as in the cafe of eunuchs and impotent
perfons : in fhort, according to Shafëi, a right to demand feparation
refts with the woman, in the fame manner as in the cafe of her marriage1
to one who is impotent or ah eunuch; and in confequence o f a
decree o f the magiftrate fhe becomes repudiated by a divorce irreverfible.—
T h e arguments of our doctors are twofold:— f ir s t , the hufband,
in abftaining from carnal connexion for the fpace of four months,
acts unjuftly towards his wife, by withholding from her that which is
her right, for which the law makes him a due return, in depriving
him of thé benefit of marriage upon thè expiration of that term; and
this is an opinion recorded from Ottoman, and Alee, and Abdoola-lbn-
Mujfaood, and Abdoola-lbn-Abbaas, and Abdoola-Ib'n-Aumroo,- and
Zeyd-Ibn-Sabit:— secondly, in times of ignorance * an A ila flood
as a divorce, and the law afterwards conftituted it a divorce pofiponed
to the period o f four months-:— now, i f a man fwear to abftain for/iW
months, his vow drops at the expiration of that, term; that is, i f the
fame man fhould afterwards marry and cohabit with the fame woman,
he is not forfworn, becaufe the vow was temporary ; but if he fhould
have fworn to abftain /ömvr, his vow continues in force, becaufe it
is general, -(that is to lay, is not reftrifted to four months,) and no
violation appears by which it might.be cancelled: yet divorce does not
take place upon it repeatedly, unlefs.where marriage is repeated, becaufe,
after feparation, the Withholding of the woman’ s.right cannot
be fuppofed to exift; but if, after feparation, the vower, were to marry
her again, the A ila returns; and confequently, upon carnal cohabitation
in this marriage, he would be forfworn ; or, i f he abftain, an irreverfible
divorce again takes place upon her, at the expiration of four
months, as before, becaufe the obligation of the vow continues, on
account of its being general, and in confequence of the man marryino-
her again her right to carnal connexion is eftablifhed, and of courfe his
injuftice in withholding it from her.— And here it is to be obferved that
the recommencement o f the A ila is to be counted from the date o f the
fecond marriage; and if this man were again, a third time, to marry
R 9 2 her,
* That is, before the eftabli/hrrrent o f the Mujfuhmn faith;