A child bom
within lefs
than fix
months after
marriage is
not the off*
fpring of that
marriage ;
but if afier
.fix months,
it is fo, indépendant
of
the bufband’s
acknowledgment
; or
upon the
evidence of
one witnefs
to the birth
where he denies
it: and
La an is incumbent,
if
he .perfift in
his denial :
.and the wife’s
teftimony is
to be credited
in refpett to
the date of die
marriage.
Divorce fiif-
pended upon
the birth of a
child cannot
take place on
the evidence
of one woman
-to the birth.
I f -a mail marry a woman, and (he bring forth a child within lefs
than fix months after the marriage, the parentage of the child is not
eftabliihed in the hulband, as pregnancy in that cafe appears to have
exifted previous to the marriage, and confequently cannot be derived
from him : but i f Ihe be delivered after fix months, it is eftabliihed
whether he acknowledge it or not, becaufe then the marriage appears
to have exifted at the time of impregnation, and the -term of pregnancy
is complete. If, moreover, the hulband deny the birth, it may
be proved 'by the evidence o f one woman, after which the parentage
is eftabliihed in virtue o f the marriage; and fuch being the cafe, i f he
perfift in denying the child, imprecation becomes incumbent, becaufe
his denial then amounts to an imputation on his wife’ s chaftity, fince I
it implies a charge o f adultery again!!: her. And if, upon the birth of
a child, a difpute-were to arife between the hulband and wife, he af-
ferting that he had married her only fou r months' 'before, and (he
maintaining that they had been ■ married/*' months, the declaration of
the wife is to be credited, and the child belongs to the hulhand, be-
c-aufe apparent circumftances teftify for the wife, as it appears that her
pregnancy has been a confequence o f marriage and not of whoredom._
A queftion has arifen among our doctors whether the woman’s af-
fertion is to be credited without being confirmed by oath ? The two
■ difciples hold that it requires her oath : but Haneefa maintains the contrary
opinion.
I f a man fufpend divorce upon the circumftance of his wife’s,
bearing a child, by faying to her “ upon being delivered of this child
“ you are divorced,”— and a woman afterwards give teftimony to her
being delivered, yet divorce does not take place, according to Haneefa.
T h e tw o difciples maintain that divorce takes place, becaufe the evidence
of a fingle woman fuffic-es in all fuch matters as are improper to
he beheld by men ; and the evidence of one woman to a birth being
admitted, it is alfo to-be admitted with refpeift to whatever proceeds
from the birth, which in the prefent inftance is divorce.— The argu-
3 ment
ment of Haneefa is that the woman, in this cale, Hands as a plaintiff
for penalty againft her hulband, and he appears as the defendant,
wherefore her claim cannot be eftabliihed" but by complete proof.—
The foundation of this is that the evidence of a woman is admitted
with relpect to child-birth from neceffity only, and has therefore no
effedt with refpedt fo divorce, fince that is a matter altogether diftindf
from childbirth, and unconnected with it, although fuch connexion
appear to exift from the peculiar circumftances of the prefent cafe.—
But if the hulband acknowledge the pregnancy, divorce takes place
upon the woman independant of the evidence of others,, according to
Haneefa.— The two difciples hold that in this cafe alfo the teftimony
©f the midwife is neceflary, becaufe proof is indifpenfable to the
eftablilhment o f a Dawee J~Iins,, or claim of penalty, and the evidence
of the midwife amounts to proof, according to what was before faid.._
The arguments-of Haneefa are twofold;— f ir s t , the acknowledgment
of pregnancy amounts to an acknowledgment of that which
pregnancy induces, and extends thereto, and that thing is childbirth ;
secondly,, the hulband, in acknowledging the pregnancy, declares,
his wife a trufee, as the. child is a depofit in her polTeflion, and confequently
her word is, to be credited in the furrender of the depofit, as.
much as that of any other truftee..
T he longeft term o f pregnancy is two years, becaufe o f the de- The term of'
claration of Ayfha, “ the child does not remain in the mother s womb be- frr0e| nfi"cy is
“ yond'tWQyears:" and the Ihorteft term is fix months,, becaufe the m°i>thstotwo
lâcred. text fays- “ the whole term oe pr egnanc y and w e a n - yearS'
“ ING IS THIRTY months;” ' and Ibn has-laid that, the term-,
of luckling is two« years,. wherefore fix. months remain for the pre°--
nancy.— Shafai has faid that the longeft term o f pregnancy extends to ■
four years ;. but the text here quoted, and the opinion of Ibn Abbas as-
above, teftify againft him.— It is probable that Shafai may have delivered
this opinion upon hearfay, as this is a matter which does not-'
admit of.reafoning..