Rules to be
obferved at
the expirât ion
of the year
o f probation.
ftill a virgin, the term of a year- is to be appointed, as above, becaufe
the hufband’s falfehood is then evident; but if they declare her muliebrity
* , the Kdzte is in that cafe to require the hufband to make oath,
which i f he do, her right to feparation is defeated; but if he decline,
decifion is to be delayed for a year as above. — All that has here been
faid fuppofes the hufband to be merely Inneen or impotent: but if he be
a Majboob, or complete eunuch, (that is, one deprived both of yard
and tejlicles, or of the former-only,') the Kazee is to pronounce an immediate
feparation, (where fiich is the woman’s defire,) becaufe in
this cafe the delay of a year can be attended with no advantage: if,
however, he be only a Khafee, or fimple eunuch, (that is, ca f rated,)
decifion is to be deferred for a year, as in a cafe of impotency, becaufe
there the yard ftill remains, with which it is poffible that he may perform
the act.
W here the term of a year is appointed for the trial of a man
charged with impotence by a wife whom he had married as a virgin,
and he declares, at the expiration thereof, that he has had carnal connexion
with her within that interval, and fhe denies this, fhe is then
to be examined by fome of her own fe x ; if they pronounce her to be
ftill a virgin, fhe has it at her option either to feparate from her hufband,
or to continue with him, becaufe the teftimony of the examiners
is confirmed by her virginity, that being the original ftate of every
woman; but fhould they declare her muliebrity, the hufband.is then
to be required on the other hand to make oath, which if he decline,
fhe has an option, as above, her plea being ftrengthened by the cir-
cumftance of his declining to fwear; but if he fwear, fire has no option.
If, moreover, fhe was a Siyeeba originally, -(that is at the time
of marriage,) and the hufband declare that he has had carnal connexion
with her within the year o f probation, and fhe deny this, his declaration
upon oath is to be credited,— that is to fay, the oath is to be
* Meaning womanhood, as oppofed to virginity.
7 — tendered
tendered to liiro, which i f he take, fhe has no option; but if he decline
it, fhe has then an option as already flated. And here, if fire
clrufe to continue with him, fhe has no fubfequent option, as by
fo doing fire manifefts an affent to . the relinquifhment o f her
right.
T he year of probation appointed by the Kdzee in cafes of impotence
is to be counted by the lunar calendar; this is approved; and the
days of the courfes, and o f religious falls, (fuch as Ramzdn,) are
therein included, as thefe occur in all years alike, nor can a year
pafs without them; but the days of fckn efs o f either party are
not included, as a year may pafs exempt from, fuch an occurrence.
Ir the defect be on the part of the woman, the hufband has no
right to annul the marriage *— Shafei maintains- that he may annul
it, and put her away on account of any of the five following defers,
namely, leprofy, fcrophula, madnefs, R itk-j-, or Karrn J, becaufe
fome of thefe (fuch as the two latter) are obftrudive of generation;
and others (fuch as the three former) are caufes of natural and in-
fuperable averfion, as is confirmed by a tradition of the prophet, who
has laid “ flee from lepers as ye would from a w ild b e a st .”— The
argument of our do&ors is that if the enjoyment of the wife’s perfon
were to be totally precluded by any circumftance, (fuch as death, for
inftance, before retirement,) yet the marriage is not annulled, but is
rather eftablifhed and confirmed, infomuch that the whole dower .remains
due; and hence, where fuch privation of the connubial enjoyment
is merely dubious, on account of its being occafioned only by a
That is, to break it off, fo as to deftroy the woman’s claim to her dower, which
could not be done by divorce.
t Vulva impervia coeunti.
t A bone, or other unnatural excrefcence, vulva anteriore parte' enafcens.
defefl
The year of
probation to
be calculated
by the lunar
calendar.
A hufband
cannot annul
the marriage,
where the defeat
is on the
part of the
wife»