and not for preventing the execution o f i t ; and the aft of the man, or
of the woman, implying propofal on the part of tho former, and ac-
• ceptance on that of the latter, does not carry with it dijfolution on either
part ; his propofal does not, as it is a Yameen, or fufpending vow, on
account of its involving a condition and a conlequence, (namely, the
fulpenfion of divorce upon the woman’ s confent;) and a vow is in it-
felf incapable of effeding diflolution; nor does her acceptance, as that
is the condition of the vow, and as the vow is in itfelf incapable of effecting
diflolution , fo is the condition; and fuch being the cafe, the
referve of option on either part is null.— The argument of Hane/fu is
that Khoola on the part of the woman ftands as a fa le, lince it is a
transfer of property for a return, and accordingly, if it proceed firft
from the wife, by her faying to her hulband- “ divorce me in return
“ for one thoufand Dirms, on a condition of option to me (or, to you)
“ for three days,” and (he afterwards retract before her hulband fig-
nifles his confent, her retradation is approved, on which account it is
reftrided to, that Majlis, or fituation, and does not extend beyond it,
— that is, if Ihe rife from her feat before her hulband fignifies his af-
fent, it becomes null; the condition of option in it therefore, when,
proceeding from the wife, is approved; but when, it proceeds from
tiie hujband, the condition of option is not approved, becaufe it is then,
a vow, wherefore his retractation of it is not approved, and it con-
4inues in force beyond the Majlis ; and as it is a vow on the part of the
hulband, he can have no option, lince a vow does not admit T>f option.
Let it be alfo obferved that the cafe o f a flave, with refpect to
manumiflion, is the fame as that of a wife, with refped to divorce;
,— that is to fay,' manumiflion for a confideration is an exchange,
on the part of a Have, the fame as divorce for a return, on the part of
a wife.
The aflertion I f a man fay to his wife “ I yefterday divorced you for a thoufand
band'refpea- “ JDirnis, but you did not confent,” — and the woman reply that lhe
_mg KtooU confent, the aflertion of the hulband is to be credited; but if a man
is to be ere- * r
diced. ■ ' , . £>}'
fay to another “ I yeflerday fold you this Have for- a thoufand D im s,
I but you did not confent,” and the other reply that he did confent’
the aflertion of the purchafer is to be credited.— The reafon o f the
difference between thele two calés is that divorce for a compénlâtion
is a vow, when proceeding from the hulband, and his acknowledgment
of his having made the propofal does not neceflarily imply an
acknowledgment of the condition having taken place, as the vow
holds good indépendant o f that circumftance, whereas fa le cannot be
effected without the confent o f the purchafer, and hence an, acknowledgment
o f fale neceflarily implies an acknowledgment of
that circumftance without which fale cannot exift, namely,
confent, and the feller’s denial o f that circumftance is a contradiction
to his previous acknowledgment, and confequently not to be
credited.
A M o b a r a t , or mutual difeharge, (fignified by a man faying to
his wife “ I am difeharged from the marriage between you and me,”
and her confenting to it,) is the fame as Khoola,— that is to fay, in
confequence o f the declaration of both, every claim which each had
upon, the other drops, fo far as thofe claims are conneded with their
marriage. This is the dodrine o f Haneefa. Mohammed fays that nothing
is done away by either except what is particularly mentioned by
ot the hulband and the wife. Aboo Yoofaf unites with Mohammed, ■
as to the Khoola, but with Haneefa as to the mutual difeharge._The
argument o f Mohammed is that mutual difeharge and Khoola are con-
trads of exchange, in which the circumftances fpecifically ftipulated’
are alone regarded, and not thofe which are not ftipulated._The argument
of Aboo Y wfafis that the Word Mobdrat, from its grammatical
orm, bears a reciprocal fenfe, and therefore requires that the discharge
bè equally e£tablifhed on.both fides; and this is general• yet
‘he difeharge is in this cafe reftrided to thofe rights • conneded with
marriage, as the defign proves it to be fo; but Khoola,only requires'
3t “ e woman be freed from the reftraint of her hulband | and a s llk §
A mutual difeharge
leaves
each party
without any
claim upon
the other.