An j?/7/zmade
refpeéting a
woman before
marriage is
nugatory. '
An Aila made
-refpeâing a
wife at a dif-
tance may be
orally ref-
cmacd*
I f a man fay to a ftrange woman “ by G od I will never have car-
“ nal connexion with you,”— or “ you are to me like the back of mv
“ mother*,” and he afterwards marry her, neither A ila nor Zihar
are eftablilhed, as thefe expreflions are Ipfo faB o null, the woman, at
the time of his addreffing her in thefe terms, not being a lubjeft of
either one or the other, fince none are fo but wives n, but yet. if a man
marry a woman after having vowed in this manner, and have.carnal
knowledge o f her, he muft perform expiation on account of breach of
his vow, which is ftill binding upon him.
T he term of A lla, with refpeft to a {lave, is two months, t|is
being the fpace of time fixed for her final feparation; thus the term of
Ada of a {lave is half that of a free woman, as well as her Edit.
If , at the time of making an A ila vow, there Ihould exift any
natural or accidental impediment to generation on the part o f either
the man or the woman, (fuch as the former being fick, or the latter
being impervia coeunti, or an infant, incapable of the carnal a<ft,— or
their being at fuch a diftance from each other as doés not admit
of their meeting during its term,) it is, in this cafe, in the man’s
power to refcind his A ila , by faying “ I have returned to that
“ woman,” upon which the A ila drops.— Shafe'i fays that cannot
be refcinded but by the carnal aft, (and fuch is likewilê the
opinion of Eehdvee,') beca’ule, if the above declaration of the hufband
amounted to a refcindment, it would follow that a breach é f the vow
is -therein eftablilhed, and confequently that expiation is incumbent;
whereas this is not the cafe.— The argument o f our doftors is that,
the Mawalee, having wronged his wife by a vow prohibiting his carnal
connexion with her, it remains with him to make her fuch fatif-
faftion as eircumfiances admit of, by a verbal acknowledgment; and
* A fpeciés of abufe, by which, in times of ignorance, the wife flood virtually divorced.
Since the propagation o f the faith, it only occafions the wife to be prohibited to her hufband
until fuch time as he fhall perform an expiation. See article Zihar.
7 the
the wrong being thereby removed, he is no longer Yubjeft to the
penalty annexed to it, namely, divorce,— It is to be oblerved that if
the obfti notion to generation, in the cafe under confideration, be removed
during A ila, and after the Mawdlee's oral refcindment as above,
fuch refcindment is null, and his commiflion of the carnal aft is then
requifite to refcind it, as he is here enabled to employ the actual
means, whilft the end remains as yet unattained.
I f a man fay to his wife “ you are prohibited to me,” let him be An equivocal
afked concerning the intention of thefe words; and if he fay “ my d ^ Ce°a°eS
“ defign, in thofe words, was to exprefs a falfehood,” his declare- af drd'
tion is Jp be credited, as ins intention coincides with their a&ual tenor, hiifbands in-
(Some have faid that his declaration is not to be credited before the o f h ifhten-
Kazee*, as his fpeech is apparently a vow, fince the rendering pro- tl0n‘
hibited that which is lawful amounts to a vow.) And i f he lay “ I
intended divorce, a lingle divorce irreverfible takes place, except
where he defigned three divorces^ in which cafe three divorces take
place, as was ftated in treating o f Talak Kinayat, or divorce by impli-
catjon : and i f he fay “ I intended Z ih a r," Zihar is accordingly efta-
blilhed with the two Elders. Mohammed fays that this is no°t Zihar,
becaule it, is eflential to Zihar that the hulband compare his wife to
his own relation within the prohibited degrees, which is not the cafe
m this inftance.— The argument of the two Elders is that he has declared
prohibitioa generally-, and Zihar alfo involves a fort of prohibition,
(namely, the prohibition o f carnal connexion, until after expiation,)
and a circumftance generally exprefled is capable of bearing a
reftrifted confirmation.— -And if he fay “ I intended prohibition,”—
or “ I had no particular intention,” his fpeech amounts to a vow, and
confequently an Aila is eftablifhed from it, becaufe a vow is the original
thing (with our doftors) in rendering prohibited that which is lawful,
as fhall be demonftrated in treating of Vows. Some doftors conftrue
any expreflion of prohibition into a divorce, where there is no pa rtie s
intention, as being agreeable to cuftom.
* That is, in point'of law.
V o l . I . S f C H A P .