The wife is
refponfible
for the compenfation.
Difference
between a
wife requiring
Khoola
in lieu of an
unlawful article,
and requiring
divorce
in lieu
o f the fame
in exprefs
terms.
thing, and confequently not more than the dower a fo r tio r i; wherefore
the ground of admiflibility is abandoned, on account o f the contradiction
between the tradition and the te x t; and practice is efla-
blifhed upon the other remaining ground, namely, the lawfulnefs of
Khoola in a judicial view.
I f. a hufband offer to divorce his wife for a compenfation, and flic
confent, divorce takes place, and fhe becomes anfwerable for the compenfation
; becaufe the hufband is empowered, of himfelf, to pronounce
either an immediate or a fufpended divorce, and he here fuf-
pends the divorce upon the aflent of the woman, who is at liberty.to
agree to the compenfation, as fhe has authority over her own perfon,
and the matrimonial authority, like retaliation, is one of thole things
for which a compenfation is lawful, although it do not confifl of property
; and the divorce is irreverfible for the reafons already affigned,
and alfo becaufe Khoola is underflood to be an exchange of property for
the perfon; and upon the hufband being vefted with a right’in the
property, the woman, in return, is veiled with a right in her own
perfon, in order that an equality may be eflablifhed.
If the thing offered to the hufband in return for Khoola be not lawful
property, (as if the woman were to defire him to grant her Khoola
in lieu of wine or a hog, and he confent, faying “ I agree to a Khoola
“ in lieu of fuch wine,” or fb forth,) a divorce irreverfble takes
place, but nothing is due to the hufband: but i f a compenfation for
divorce confifl of a thing not lawful property, (as if the woman were
to defire her hufband to divorce her for a calk of wine* and he confent,
faying “ I divorce you in confideration of fuch wine,” and fo forth,)
a reverjible divorce takes place.— The reafon for divorce taking place
in both inflances is that the hufband has fufpended it upon the confent
of the woman, which is already tef l i f iedand the difference between
the cafe of Khoola and that of divorce is that, - in the former, the compenfation
being null, the word ufed by the hufband [Khoola] remains,
and
and that, as being a Kindyat, or implied fentence, is effective o f irreverfble
divorce; whereas, in the latter, the word divorce -is exprefs,
and confequently occafions reverfble divorce only.— And the hufband
has here no claim upon his wife, becaufe fhe has not named any appreciable
article, which might be the means of deceiving him; and
alfo, becaufe if the thing named be particularly fpecified by her, it
cannot be lawfully made incumbent upon her in favour of her hufband,
on account of his being a Mujfulman-, and in the fame manner,
it cannot be made incumbent if it be not particularly fpecified, as in
that cafe fhe does not charge herfelf with i t :— but it is otherwife
where fhe fpecifies a thing under a falfe denomination, (as if, for
inflance, fhe were to make a propofal of Khoola to her hufband, by
faying “ divorce me for this calk of vinegar,” and he agree, and the
calk afterwards appear to contain wine,) for in this cafe he has a
claim upon her for an equal quantity of vinegar of the medium fland-
ard, becaufe her naming an appreciable article has been the means of
deceiving him :— and it is alfo contrary to a cafe in which a mailer
I emancipates his flave, or conflitutes him a Mokdtib, in return for a
calk of wine;' for then the emancipated perfon is refponfible to his
emancipator for the amount of his eflimated value as a flave, becaufe
the owner’ s property in his flave is a thing which bears a certain
eflimable value,1 and which he therefore cannot be fuppofed willing to
relinquifh gratuitoufly; whereas.' the property in the wife’s perfon is
not of any eflimable value in the circumflance of the. diffolution of the
connubial right, as the only reafon for its being fo, in the attainment
of fuch right, is its importance, and confequent title to refpefl;
whence it is that the attainment of that right without a return is
not countenanced by the l aw; but the relinquifhment o f that
right being in itfe lf a manifeflation of fuch refpedl, there is then no
occafion to impofe upon any one an obligation of property for the pur-
pofe of manifefling it.
W ha tev er