and the fame
of acompari>
fon in point
ofprohibition.
Zihâr has no
efteft upon
any but a
wife.
I f a man fay to his- wife “ you are to me prohibited, like my
i * mother,” intending either Zihar or divorce, it takes effeft accorcl-
ing to his intention, as this- addrefs may be taken in either fenfe,— in
that of Zihâr, as being a comparifon,— and in that of divorce, as ex-
preffing prohibition, ftrcngthetied by the comparifon. In this cafe,
however, i f he have no intention, according to Abao Toojaf, A ik is.
eftablilhed,— and,' according to Mohammed, Zihâr,— as in the precede
ino- cafe.— And if he fay “ you are to me prohibited like the back of
“ my mother,” and thereby.intend divorce or Aila,. yet nothing but,
Zihâr - is eftablilhed, 'according to Haneefa.-^The two difciples- try
that whatever he may intend is eftablilhed, as prohibition equally implies
either Aila or divorce: according to Mohammed, however, where
divorce is the intention, no Zihâr is eftablilhed; .whereas*, according
to Abao Toofaf, divorce and Zihâr are both eftablilhed together, (that
is, divorce is eftablilhed on account of the intention,, and Zihâr. on account
of the term Z ihr [back] being exprefsly mentioned, .as was- Hated
in its proper place.}— T h e argument of JAanefa is that the words above
recited exprefsly fignifyZ/Mr, and therefore do not bear any other fenfe;
and the word prohibited, which is introduced there, 1 elates lolely to
the prohibition by Zihâr as prohibition is of various kinds, of which,
that by Zihâr is one, and is on this occafion preferred, on. accountgj
the accompanying companion with the hack, of the mother ;. and -dl•
other kinds of prohibition being only eonftrutthe, and that by %iMr
pofitive, the prohibition to which the word “ prohibited” alludes, is ta
be taken as relating to the Zihâr only.
Z ihâr is not eftablilhed with refpea to any but the wife of the
fpeaker, infomuch that if a man pronounce a Zihâr upon his female
Have, it has no effeft, for various reafons;— f ir s t , G od has faid,—
“ men who pronounce Zihâr upon their women,” — where, by
women is underftood wives ; secondly, the legality of a female Have
is of a fecondary or dependant nature, and that of a wife of a primary
or original nature, and hence thofe two perfons mull: not be confounded
; th ir d l y , Zihâr is an imitation o f divorce, and divorce does not
take place upon a Have.
If a mm marry a woman without her confent, and pronounce a
Zihdr upon her before that be obtained, and Ihe afterwards fignify her
confent, the Zihdr is void, becaufe the hulband, in making the com-
parifon, faid no more than what was, at that time, ftridtly true,
and hence what he lays does not amount to a dijowning or denying
of her.
Objection.— It would here appear that -the validity of the Zihar
remains fulpended upon the woman’ s confent to the marriage, in the
fame manner as the manumiflion. of the purchafer o f a Have from an
ufurper refts upon the confent of the proprietor, (that is to lay, where
a perfon purchafes a Have of the ufurper o f him. and emancipates him,
the validity of his emancipation depends upon the proprietor’ s aflenting
to the fale,) becaufe Zihdr is U right of pofleflion by marriage,
in the fame manner as manumiflion is a right o f pofleflion by right of
property.
R e p l y .— The validity -of the Zihdr is not fulpended upon her
confent to the marriage, becaufe Zihdr is not one of the rights of
marriage, as it has no place in the ordinances of the law * , whereas
matrimony has a place in them, and that which is not of the law is
incapable of appertaining as a right to that which is one of its ordinances
: contrary to the cafe of manumiflion proceeding from the'
purchafer o f a Have out of the hands of his ufurper, as manumiflion is
a right of property.
* That is, there are no particular rules inftituted for it in the Karan, the laws re-
fpe&ing it being taken from the Sanaa.
U u W here
n
[.- f il l Ï. 'Ml ; ; 11
j l i 111
11
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