Edit incumbent in confequence of the firft divorce; for the obligation
upon the woman to complete her firft Edit difappeared upon the
hufband marrying her again ; but this laft marriage being done away
by his divorcing her a fécond time, her obligation to the completion
of her firft Edit recurs. The argument of Haneefa and Abo0 Toofaf
is ' that the fécond divorce is, in fadt, given after carnal connexion,
fince the woman is ftill adtually within the feizin of the man in confequence
of fuch connexion formerly had with her, the effedt of which
remains, namely, the E d it; and where he manies her again during
her Edit, fhe being ftill within his feizin, fuch poffeffion is the fub-
■ ftitute of that which appertains to him in virtue of the fécond marriage;
as in the cafe of an ufurper, who i f he make purchafe of the
article ufurped whilft it is within his feizin, is held to be feized of the
purchafe on thé inftant of the execution of the contradt of fale ; it is
therefore evident that the fécond divorce is a divorce after carnal connexion.—
Zijfer fays that no Edit whatever is incumbent upon the
woman, becaufe the former Edit dropt in confequence of the fécond
marriage, and therefore cannot recur; and no Edit is due on account
o f the fécond divorce, as that is a divorce before confummation: but
the arguments of the two Elders, as above recited, are a fufficient reply
•to this.
I f a Zimmee, or infidel fubjedt, repudiate his wife who is alfo an
infidel fubjedt, no Edit is incumbent upon her: and the fame rule
applies to an alien woman who having been converted to the faith,
.comes from the foreign into the Mujfulman territory * : it is therefore
lawful for fuch women to marry before the expiration of the term of
.Edit, unlefs they be pregnant. This is the opinion of Haneefa with
'refpedt to fuch infidel fubjedts as do not hold or believe in the obligation
o f Edit. The two difciples fay that Edit is incumbent upon
T h is fuppofes a woman who, having been converted to the faith in a foreign land,
■ tJeferts her infidel hufband there, and comes into the Mujfulman territory.
5 women
C h a p . XII. D I V O R 'Q. E. ‘369
women of either defeription ;— upon infidel fubjedts, becaufe they
have bound themfelves to the obfervance of all fuch things as appertain
to the temporal law ; and „upon aliens who, having embraced the
faith, come into the MuJJulmdn territory, becaufe it is fo upon fuch
women on other accounts, fuch as the death of their hulbands, or
their admitting the fon of the hulband t$ carnal connexion, and is
therefore equally obligatory on account of feparation of country:_
contrary to the cafe where a man, being .converted to the faith, comes
from a foreign into a MuJJulman territory, and his wife remains in the
foreign country, for upon her no Edit is, incumbent, as the obligation
of it cannot reach or affedt her in a foreign land.— The argument of
Haneefa with refpedt to infidel fubjedts is that they not being under
any obligation in refpedt to the ordinances of the law, the obligation o f
Edit, as a right of the law, cannot be conceived to effedt them; nor -
can it be fuppofed to do fo on account of the right of the hufband, as
he does not hold or believe in the obligation of i t : and his arguments
with refpedt to alien women are twofold; f ir s t , G od has commanded
Mujfulmans, faying, “ ye m a y m a r r y foreign women, who
“ BEING CONVERTED TO THE FAITH, COME INTO THE TERRITORY
“ of the believers.;” secondly, wherever the Edit is incumbent,
the right of man is connedted with i t ; but a Hirbee or alien
is not confidered as man, but as mere matter, (whence it is that he is
made a property or fa v e .~)— But where the woman is plegnant the
Edit is, incumbent, on account that the feetus o f which fhe is pregnant
is of eftablifhed defeent.— It is recorded from Haneefa that it is lawful
to marry fuch women, being pregnant, but that the hufband muft
refrain from carnal connexion until after delivery, in like manner as in
the cafe of women pregnant and by whoredom.— The former however
is the better opinion.
i
I I
1
VOL, I. S K c T Ï O N,