A hulband
receding
from imprecation
muft
be punifhed
for Jlander.
which the Kazee is to iflue a decree, denying the defcent of the child
from the hufband, and fixing it upon the mother, becaufe the pro.
phet once fo decreed upon fuch an occafion, and alfo, becaufe the
defign of the imprecation in this cafe is to baftardize the child, wherefore
a decree muft be pafled agreeably to the defign o f it.
A decree of reparation between the parties comprehends a decree
o f baftardy in refpect to the child.— It is recorded as an opinion of Abw
Yoofaf that, in a decree of feparation, a decree of baftardy is not com- I
prehended, but that it is requifite that the magiftrate firft effeft the I
feparation, and then fay “ I throw the child upon the mother, and I
t! remove it from the father’ s houfe;” becaufe feparation may feme-
times take place without affecting the defcent of children, as where a j
man accufes of adultery a wife who has children * , in which cafe a I
feparation is eftablilhed by imprecation, but baftardy is not induced I
Upon the children: the Kazee'a mention of baftardy is,therefore re* I
quifite.
I f a hulband, after imprecation, contradict himfelf, by acknow-1
ledging that he had accufed his wife falfely, let the magiftrate punilh I
him, becaufe he then acknowledges himfelf liable to punilhment: and I
it is afterwards lawful for the hulband to marry her again, (according I
to Haneefa and Mohammed,) becaufe, having once fuffered punilhment I
for Hander, competency to make imprecation no longer appertains to I
him; and the prohibition which is the effedt of the imprecation is re*
moved. In the fame manner, if the hulband and wife make impreca- I
tion, and the hulband afterwards accufe of adultery a ftrange woman, |
who is married, and fuffer punilhment on that account, it then be- I
comes lawful fbr him to marry his wife again, for the reafon afore- I
faid. And lb a lfo ,'if the wife, after divorce in confequence of im- I
precation, be found in adultery, and fuffer correction from the Kezcc
* Mean ing, children already born, before the period o f the hulb'and’ S aCcufatiofl.
Oil I
on that account, it then becomes lawful for the hulband to marry
her again, as competency to make imprecation no longer appertains
to her.
If a man acculè his wife, Ihe being an infant or an idiot, imprecation
is not incumbent upon the parties, becaufe the accufer of fuch
aperfon is not liable to punilhment for Hander unlefs he be zfiranger:
imprecation, therefore, is not incumbent in the accufation of fuch
wives by their hulbands, as it is the fubftitute of punilhment for
Hander. And the rule is the fame where the hulband is infane, or an
idiot, becaufe fuch an one is not competent in evidence.
If a dumb perfon accufe his wife, imprecation is not incumbent,
becaufe imprecation is not incumbent unlefs the accufation be ex-
preffed in terms, as is the cafe in Hander, where punilhment is not
incurred unlefs the accufation has been exprelsly-made.— Shaféi op-
pofes this; for he holds that punilhment is due upon the accufation of
a dumb perfon, and confequently, that imprecation is incumbent, becaufe
bisfigns are the fame as the words of one who. has the power of
fpeech; but the argument of our doftors is that the figns of a dumb,
perfon are not altogether free from doubt, and punilhment is removed;
by any circumftance of doubt.
If a man fay to his Wife “ your pregnancy is not o f me,” ' imprecation
is not incumbent.— T h ik is the opinion of Haneefa and Ziffer;
and. the reafon upon which they found, it is, that the circumftance of
pregnancy does not admit of being pofitively certified, wherefore the
nufband s. Words do not convey an immediate acculation.-— T h e two.
Maples fay that imprecation is incumbent in this cafe, provided the
woman be delivered o f a child withimfix. months; and it is this which;
is meant-by what is faid in the Mabfoot that “ the exiftence of pregnancy
at thetime o f accufation may be certified;” but to this we
reply that where the accufation cannot be immediately eftablilhed,,it
8 muft
Imprecation
not incumbent
where
the hufband
or wife is an
infant, or an
idiot;
or where the
hufband is.
dumbi.
or where the
accufation is
indirectly in-
iinuated.