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Definition o f
tlie terni.
C H A P . VIII.
Of Khoala-
K h o o l a , in. its primitive fenfer means to draw off or dig; Uff. Bn
law it fignifies an agreement entered into for the purpofe of diffolving
a connubial connexion, in lieu of a compenfetion paid by theswife to.
her hulband out of her property.— T h is is the definition of it in the
Jama Ramooz.
IS I 'I I t|ff
I sill Hi
jit
lliilHt IU a
1 1 1 ■
Reafons
which juîlify
Khoola, or divorce
for a
compenfe-
tion j
HI
18 which occasions
a Angle
irreverfible
lli
divorce.
W henever, enmity takes place between, hulband and1 wife, and
they both fee reafbn to apprehend that the ends of marriage. are not
likely to be anfwered by a continuance of their union, the woman
need not fcruple to releafe herfelf from, the power of her hulband, by
offering fuch, a compenfation as may induce him to liberate her,- be-
eaufe the word of Gem fays “ no crim e is imputed to the wife
“ OR HER HUSBAND RESPECTING THE MATTER IN LIEU OF WHICH
“ she hath r e le a se s herself.;” that is to fey, there is-no crime
in the hufband’ s accepting fuch compenfation,. nor in the wife s-
e-Ivins' it ; and where the compenfetion. is thus offered and accepted,
a fino-le divorce irreverfible takes place, in virtue of Khaola-, and the
woman is anfwerable for the amount of it„ becaufe the prophet, has
feid that Kboala effedfs- an irreverfible divorce; and alfo, becaufe the
word Khoola bears the fenfe of divorce, whence it is that it is piaffed
with the implied expreffions of it, and from, an implied divorce a divorce
S
ïrfible
I B B m w
I
irreverfible takes place ;— but intention is not eflential to Khoola, becaufe
by the mention o f a compenfetion, the aft is made indépendant
of it ;— and alfe, becaufe it is not to be imagined that the woman
•would relinquifh any part of her property but with a view to her own
fefety and eafe, which is not to be obtained but by a total feparation.
'What is now advanced proceeds, upon a fuppofition of the averfion
being on the part of the wife, and not on that of the hufband', but if
■ it be on the part o f the. httjband, it would be abominable in" him to
take any thing from her, becaufe the fee-red text fays “ if y e Be
“ desirous of c h a n g in g (that is, repudiating ofte wife, and matry-
■“ ing another,) t a k e n o t from her a n y t h in g —and alfo, be-
.caiife a man, by divorcing his wife from fuch a defire of change, involve^
her in diftrefs ; and it behoves him not to increafe that diftrefe
by taking her property. If, moreover, the averfion be on thé part of
the woman, it is abominable in the hulband to take from her more
than what he had given or fettled upon her, namely, her doWer.
(According to the fama Sag heir, if the hulband take from her more
than the dower, it is flr iâ ly legal, as the text -of the Koran already
quoted is expreffed generally; but the former opinion is founded on a
tradition of the prophet, to whom a woman having mentioned her
-hatred of her hufband, he advifed her to give up her dowtr, as a Compenfetion,
to induce the hufband 'to divorce her, to which fhe replied
“ I will give that and more !” but fhe prophet anfwered “ not moré!”
—■ •and here the averfion was on the part o f the Woman.)‘—But yet i f
the hufband fhould take more than the dower,1 it is approved in point
■ of law ;— and fo alfo, i f he were to take any compenfetion, where
the averfion is on his part, becaufe the facred text goes to eflablifh two
points ; one, the lawfulnefs o f Khoola in a judicial view ; and the other,
its admiffibility between the parties and G o d Almighty ; now, fróm
the tradition which has been recited, it appears that .where the averfion
is on the part of the wife, a Khoola for more than the dower is difep-
proved; and, on the other hand, the text before quoted fhews that
if the averfion be on the part of the hulband, he fhould not take any
S f 2 thinarO