354 D I V O R C E . B ook IV.
C H A P . XI.
Of Impotence.
An impotent Jp a hufband be Inneeti, ^impotent, j it is rcquifitc that the TCa%sc
teaUoteTi1 appoint the term of one year from the period of litigation, within
year’s proba- wuich if the accufed have carnal connexion with his wife it is well;
tion, after • 1 i r i t
which fepa- but if not, the Kasee mult pronounce a leparation, provided luch be
ration takes defire Qf tb e w ife, becaufe . the fame is /recorded from Alee, and
Omar, and Ebn Mufood,— and alfo, becaufe the woman is entitled
to the carnal enjoyment, and it is poffible that the hulband may be
incapacitated from the performance of that aft, not only by a radical
infirmity, but alfo by fome fupervenient and accidental caufe, whence
it is necelfary that fome certain term be appointed, in order that the
true reafon of his inability may be afcertained;— and this term is fixed
at one year, becaufe that contains four feafons, and difeafes are principally
occafioned by an excefs either of heat, cold, drynefs, or humidity,
qualities which are peculiar to each feafon refpeftively; and
it is probable that one of thefe four may particularly agree with the
man’ s confritution, To as by its influence to diffipate his difeafe; thus
it may be afcertained, when a year has completely elapfed, whether his
inability proceeded from any radical infirmity, in which cafe, it is
impoffible to retain the wife with humanity*, and hence it is incumbent
upon the hufband to feparate from her, upon a principle of benevolence
: but if he fhould not do fo, the Kazee is in that cafe to pronounce
a reparation, as his fubffitute; yet it is requifite that the wo-
* Alluding to the words of the Koran before mentioned.
mail
man dejire fuch feparation, as it is her right.— T h e feparation here
mentioned amounts to the execution of a Angle divorce irreverfible,
becaufe the aft of the Kazee is attributed to the hufband, whence it is
the fame as if he had himfelf pronounced fuch a fentence upon her.
Shafei alleges that this feparation is an annulment of the marriage;
but with our doftors marriage is held to be incapable of being annulled
of itfelf, although it may be annulled by effetl, in the fame manner as
in the cafe of a hufband’s apoftacy. And this feparation amounts to an
irreverfible divorce, not a reverfible, becaufe the intent of it is the woman’
s relief from a hardfhip, which cannot be effected but by complete
divorce; for if it were not fo, it would frill remain in the hufband’s
power to reverfe it, which would defeat the defign.
T i-ie wife, in the cafe here mentioned, is entitled to her whole
dower, i f the hufband fhould ever have been in retirement with her,
becaufe retirement with an Inneen is accounted a Khalwat Saheeh, or
complete retirement, as well as with any other perfon; and an Edit
is incumbent upon her, as was mentioned in a former place.— What
is here advanced proceeds upon a fuppofition of the hufband acknowledging
that he has not performed the carnal act with his wife ; but if
he controvert her plea, afi'ertirig that he has copulated with her, and
ihe have been married as a Siyeeba, his affirmation upon oath is to be
credited, becaufe he is the defendant againft her claim of feparation,
and the affirmation of a defendant muft be credited when given upon
oath : moreover, the inftrument of generation is originally created free
from inability or difeafe, and it is natural that he fhould perform the
carnal aft where no obftruftion exifts; and the declaration of a perfon
is to be credited when apparent circumftances bear tefrimony to his
veracity, and where he refts his caufe upon the nature of things. I f
therefore the hufband thus make oath, the wife’s right o f feparation is
thereby defeated ; but if he decline this, the term of a year is-then to
be appointed as aforefaid. Where fhe was married as a virgin, Ihe is -
to be examined by fome of her own fex, and if they declare her to be
Z z a frill
and the wife
retains her
whole dower,
if,the huf-
band fhould
ever have
been in retirement
with
her,— but
the wife’s
claim of feparation
may
be here defeated
by the
hufband
fwearing that
he had enjoyed
her.