her, the .-f/'/tz returns, and occafioris an irreverfible divorce at the expiration
of four months, in cafe of the hufband refraining from carnal
connexion for that term, for the realons 'already ftated.— What is
now advanced'proceeds upon a fuppolkion of the vower marrying the
woman again without the intervention, o f her marriage vvit-h. another
man; but if, in the interim, Ihe had been, married to another man,
divorce would not take place in confequence of the vower abstaining
from carnal connexion for the Ipace of four months, in the fecond
marriage, becaufe the vow is confined, in its effect, to divorce in the
firft or original propriety Eta the Ada, in the prefent cafe,. being the
fame as if the hufband were to fufpend divorce upon his abftaining
from carnal cohabitation for the Ipace of four months,, where the effect
is reftrifted to the propriety then, exifting, and fo in this cafe like-
wife.— This cafe is grafted on the cafe of obliteration, concerning
which there is a difference of opinion between Zijfer and our doftors;
. and that cafe is where a man,, having faid to his wife “ if you enter
“ this houfe you are under three divorces,” afterwards repudiates her
by an exprefs fentenee of three divorce?, and fhe is. again married, to
him, and then enters the. laid, houfe, from which nQ divorce takes
place, according to our dodlors, whereas Ziffer holds that divorce
takes place; as was recited at large in a former chapter.— But ob-
* W h en a man marries- a woman, his M ilk (which is here and el (e where rendered
propriety, or right, that is, peculiarity o f p o jfe jjio n ^) continues with refpedt to her, notwith-
Handing divorce* until it be abrogated by her marriage with another. In fhort, the propriety,
or peculiar right, o f a hufband is a principle which is alive in the a&ual exiftence o f
marriage, and is not annihilated, but remains dormant, or quiefeent, under a termination of
it by divorce;- and hence it is that* where-a man-marries a woman’ after having repudiated
her, he is faid to attain a revival o f propriety, not a propriety de n o v o -. M an y o f the moft
important and (apparently) unaccountable laws o f divorce are to be traced to this fource.
In the prefent cafe the Aila is faid to have been reftri&ed in its effect to the vowe r’ s original
propriety, and confequently, in its effedt, recurs upon every revival o f that propriety by
marriage; but it being abrogated by the woman’s intervening marriage with another.,, the '
vowe r’ s fubfequent marriage with her is an attainment o f propriety novo, in which the vow
cannot operate*
fe iv e
ferve that, in the cafe now under confederation, although divorce do
not take place, yet the obligation of the vow remains, as it was general,
and continues! uncancelled by any breach of it and hence, i f
the man fhould ever have carnal connexion with the wife at any fubfequent
period, expiation is.incumbent upon him, on account of this
breach of his vow.
If a man make a vow to abftain from carnal knowledge ofhis wife A voiv of at»,
for lefs than four months, (as if he were to reftrid it to two or to «rTftort’of'
three months,) it is, not an A ila , becaufe Ihn Abbas has faid that A ila (Pur mol>tbs
. does not conis
not occaiioned by.a vow,of abltinence from carnal connexion with ftitutcAHa*
a wife for a period fhort of four months;, and alfo, becaufe a hulband
who abftains from the embrace of Ins . wife for the fpace of four
months or .upwards, has no obftruftion to plead, that being the
longeft Ipace during which any obftrudion is fuppofed to e x ift* ; but
an obftrudion may continue for a time fhort o f four months; and
confequently divorce will not take place from a vow. of abltinence for
that time.
If a .man make avow , faying to his wife “ by G od I will not
“ have carnal sonnexion with you for two months, nor for two
“ months after that,” Aila is eftablifhed: the proofs o f this are,drawn
from the Arabic.—-But i f a man fwear that “ he will not have carnal
connexion with his wife for two months,” and then remain, filent for
a day, and the next day again fwear that “ he will not have carnal
“ connexion with her for two months after the other two,” A lia is
not eftablifhed, becaufe the fecond vow is diftinct and feparate. from
the former, the hufband, upon his making his firft vow, being prohibited
from carnal connexion for two months, and upon making the
* B y the c b J ir u E t io n here mentioned is to be underftood pregnancy for the lafi four
roonths, during which it is not deemed lawful for a hufband to have carnal connexion w ith
bs wife*
fecond