Zihdr cannot
occafion divorce;
that he refrain from any repetition of the carnal aft with her until he
perform fuch expiation, becaufe it is related of the prophet that he
thus commanded one who had committed the carnal aft with his wife
after Zihdr, and before expiation; from which tradition it appears
that nothing more is incumbent, (in confequence-of the commiffion
of the carnal aft before expiation,) for i f it were fo, the prophet
would fomewhere have mentioned it.— Le t it be obferved that from
the words o f the hufband “ you are to me like the back of m y mo-
“ ther,” nothing but Zihdr is eftablifhed, becaufe the term employed
exprefsly iignifies Z ih d r; and i f he fhould intend divorce by it, yet
that does not take place, as the law of divorce is broken through in
this particular * , and confequently Zihdr does not admit of divorce
being intended by it.
Z i h d r is
eftablifhed
by a companion
with
any part o f
the body
which implies
the whole
perfon.
I f a man fay to his wife “ you are to me like the belly o f my
“ mother,” or “ the thigh," or “ the pudendum,” — Zihdr is thereby
eftablifhed, as Zihdr. fignifies the likening o f a woman to a kinfwoman
within the prohibited degrees, which interpretation is found in the
comparifon being applied to any of the parts, or members improper to
be feen.— And Zihdr is in the fame manner eftablifhed, by the
likening of the wife to any other kinfwoman within fuch prohibited
degree as that marriage with them is at all times unlawful, fuch as
JiJlers, and aunts, and fojier-mothers, who are invariably prohibited,
as well as a natural mother. And fo alfo, i f a man fay to his wife—
“ your head is to me likg.the back of my mother, or “ your puden-
“ dum,” C>r “ your •uiaijl,"— becaufe by thefe the whole perfon is
figuratively exprefled: and fo alfo if he were to fay— “ your half, or
“ your third,"— becaufe in this- cafe the effeft is eftablifhed in a diffufive
portion+. and confequently extends to the'whole perfon, be-
* Abat is to fay, Zihdr has, been made, by the law, a thing diftindt and feparate from
divorce7 and fubje£t to a rule peculiarly applicable to itfelf.
f Joozoo Shae is here rendered a diffufive portion, in oppolition to Joozoo Mayeen &
Particular or fpecijied portion.
ft caufe
caufe, as the diffufive portion of any thing is a proper fubjeft o f all
other afts,, fuch as purchafe fale and fo forth, fo is it of divorce ; but
I .divorce being incapable of divifion, is neceffarily-eftablifhed in the
I whole perfon; and as,Zihar refembles divorce, it therefore, like divorce,
extends to the whole alfo.
W here a man fays to his wife “ you are to me like my mother,” A general
it is requifite that his intention be examined into, fo as to difeover the S S h
true predicament in which the wife ftands ; and if he declare that his accor<ting to
meaning was only to fhew refped to his wife, it is to be received ac- explanation ;
cording to his explanation, becaufe in fpeech refpeft may be ex-
preffed by a general comparifon ; or, if he declare his intention to have
been Zihar, that is accordingly eftablifhed, for here appears a com-
parifoh with the whole perfon of his mother, in which her back is
included; butas that is not exprefsly mentioned, the fpeaker’ s intention
is requifite to eftablifh it ; and if he declare his intention to be
divorce, a divorce irreverfible takes place, as his comparing his. wife
with his mother is likening her to one who is prohibited to him, and
is, therefore the fame as-if he were to fay 66 you are prohibited to me,7
thereby intending divorce but if he declare that hè'had no pofitive '
intention, neither Zihdr nor divorce are eftablifhed, (according to Ha- ' -
neefa and Aboo Yoofcf,) becaufe the addrefs bearing the conftruftion
Y>{ refpèâl, muftherebe taken in that fenfe, as being of lefs importance
than any other. Mohammed fays .that Zihdr is -eftablifhed independant
of intention, becaufe, a comparifon of the wife with a limb or member
of the mother occafioning Zihar, it follows that, where it is made
with the/whole, Zihdr is-eftablifhed afortiori.— With Aboo Yoofaf, i f
the intention of the hufband be merely prohibition, an A ila only is
eftablifhed, becaufe the prohibition by A ila is lefs rigorous than by
Zihdr. With Mohammed, on the.contrary, Zihdr is eftablifhed; his
argument is taken from the Arabic.
VoL. I. U u If