348 D I V O R e E. B o o k IV,
When both
parties have
made imprecation,
a reparation
takes
place.
The hufband,
on receding
from his imfhould,
in making the imprecation, addrefs himifelf in the fécond
perfon, faying “ by G q d I fpeak truly concerning the adultery with
“ which I charge you,” becaufe the ufe of the fécond perfon does
not admit fthe poffibility o f the addrefs affedting any other. The
reafon for the form, as above hated, is that the relative, when joined
to the third perfon, removes doubt. And on both making imprecation
in this manner, a feparation takes place between them ; but not
until the Kâzee pronounces a decree to that effedt.— differ fays that
feparation takes place upon the imprecation, indépendant of any judicial
decree, becaufe a perpetual prohibition is eftablilhed by it, the
prophet having laid “ the two who make imprecation can never come ta-
“ gether,” — which proves their feparation, as the prophet’ s forhidding
their ever coming together after imprecation exprefsly declares this.
T h e argument of our doctors is that as, in confequence of the eftablilh-
ment of a prohibition between them, the retaining of the woman
with humanity * is impoffible, it is incumbent upon the hulband to
divorce her on a principle o f benevolence ; but i f he decline lo doing,
it then behoves the Kâzee to iffue a decree of divorce, as the Kazee is
the fubftitute of the hulband in this matter for the purpofe of removing
injuftice : and a proof of this is that Aweemar divorced his wife
after ^imprecation, in the prefence of the prophet, which Ihews that
the marriage ftiU continued and was not virtually diffolved by the imprecation,
otherwife the prophet would have prevented him from pronouncing
divorce.— Obferve that the feparation here mentioned is an
irreverfible divorce, according to Haneefa and Mohammed, becaufe the
act of the Kâzee muft be. referred to the hulband, as. in cales of im?
potence.
I f , after imprecation, the hulband Ihould acknowledge that His
accufation was falfe, by faying “ I falfely laid adultery to her charge,
* Alluding to the words of the Koran,—“ RETAIN THEM WITH HUMANITY, oR
“ DISMISS THEM WITH KINDNESS, (See Rijât.)
he
CWAP. X. D I V O R C E .
he becomes privileged With refpeft to her, that is to fay , it is lawful
for him to marry her as well as any other perfon *1 This is according
to Haneefa and Mohammed.— Aboo Yoofaf fays that Ihe is. for ever
prohibited to him, and that he cannot marry her,— the prophet
having laid “ two who make imprecation can never, come together, ”
which Ihews the feparation eftablifhed between them to be perpetual;
wherefore his marriage with her is illegal.— T h e argument o f Haneefa
and Mohammed is that the hulband’ s acknowledgment is a retraftion
from his evidence, (that is, -from his imprecation,) and evidence is by
fubfequent retraction rendered null and of no: effect: and as to the
faying of the prophet above, cited, it means that the parties cannot
come together as^ long as they. both perfevere in their imprecation;
but after the hufband’s acknowledgment, the imprecation no longer
remains either in fubftance or in effeCt, and confequently they may-
then come together.
If a hulband accufe his wife, by denying her child, it is re-
quilite that the Kazee ifl'ue a decree denying the delcent o f the
child from him and. affixing it upon the mother -f-; and the manner of
the imprecation here is that the Kazee firft makes the hulband give
I evidence, faying “ I tèftify in the fight of G o d that I fpeak truly con-
“ cerning the matter I have brought againft her, in denying the
“ child; after, which- he makes the wife.give evidence in the lame
manner, faying “ I call G o d to witnefs that he fpeaks falfely
“ concerning the matter he has brought againft: me, in denying thé
“ child..” ' 0
If a hulband accufe his wifé, both by bringing a charge of adultery
againft her, and alfo by denying a child born o f her, it is neceftary
that both thefe circumftances be mentioned in the imprecation, after.
* Thatis, without her being, previoufly. married to another. -
t That is, bajiardizing it*
349
precation,
may again
marry h;s
wife.
Imprecation!
occafions a
decree of
baftardy.