The Kazee
cannot effect
a reparation
between ami f-
fing perfon
and his wife.
the marriage and parentage, or if they deny the marriage and parentage
only, in this cafe the perfons entitled to fubfiftence cannot be admitted,
as plaintiffs, to prove and eftablifh thofe points which the
truftee or debtor denies; becaufe a claim is not admitted, unlefs it be laid
againft either t-he principal, or his reprefentative; and the principal,
in the prefent inftance, is ablent; and the debtor or truftee are not
either actually or virtually his reprefentatives :— they evidently are
not athially fo, becaufe he has not cofoftituted any perfon his agent;
nor are they virtually fo, becaufe, in the profecution of the plaintiff’ s
claim againft the abfentee, the fpecification o f the occafton * of the
claim is no good plea for the eftabliihment of his right,— (namely,
fubfiftence from the property in the debtor’s or truftee’s hands,)—
fince, in the fame manner as fubfiftence is due from that property, it
is alfo due from any other property belonging to the miffing perfon
the debtor or truftee are therefore not virtually the miffing perfon’s.
reprefentatives»
The Kdzee- is not empowered to effedf a feparatton between a
miffing perfon and his wife. Malik maintains that, at the expiration
of four years, the Kdzee may pronounce a feparation, after which the
wife is to obferve an edit of four months and ten days, fuch being the
edit of widowhood,— and fhe may then marry whoever ffie pleafes;
becaufe Omar thus decreed with refpect to a perfon who difappeared
from Medina-, and alfo, becaufe a miffing perfon, by his abfence, ob-
ftrufts the woman’s right:— the Kazee, therefore, muft pronounce a
feparation between the parties after the lapfe of a certain time, becaufe
of the analogy this cafe bears to that of Aila, or of impotence-,—
that is to fay, in the fame manner as, in a cafe of Aila, an irreverfible
* Meaning, the circumftance o f t6 the trujlee or debtor having'property belonging to the
<c perfon in his hands,” which is not admitted as a plea on behalf o f the plaintiff,
ilnce his fubfiftence is equally due from any other part o f the miffing perfon’s property.
divorce
T tF
divorce takes place at the end of four months * , on account of the
huiband, by Aila, obftrufting his wife’s right,— and in the fame
manner alfo as, in a cafe of impotence, the Kdzee pronounces a feparation
+ at the end of a year, on account of the hufband thus obftruct-
ing his wife’s right,— fo likewife, in the cafe in queftion, the Kdzee
muft pronounce a feparation, for the lame reafon:— and the cafe of
ahfence being equally analagous to a cafe of Ada and of impotence, the
length of the term is adjufted with a regard to both, by adopting
the number four from Aila, and the term year from impotence, fo as
to make practice in this particular accord in the fame manner with
the other two. The arguments of our doctors upon this point are
twofold.— F i r s t , the p r o p h e t once declared, with relpedt to the
wife of a miffing perfon, “ She is his wife until fuch time as his d e a t h
“ or d iv o r c e Jhall a p p e a r and Alee alfo faid, with refpeft to the
wife of a Mafkood, “ She is a mourner, wherefore Ihe muft be patient,
“ until fhe be perfectly informed of his death, or of his having
“ divorced her,”— S e c o n d l y , the exiftence of the marriage is notorious
; and as the mere difappearance of the hufband is not a fufficient
caufe of feparation, and his death is a matter of uncertainty, it follows
that the marriage cannot be diffolved, becaufe of the doubt. With re-
fpeft to the authority of Omar, as cited by Malik, we reply that he
afterwards adopted the opinion of Alee.— As to what he farther
urges refpedting the analogy between the cafe in queftion, and a
cafe of Ada, it is not admitted; becaufe Aila, in times of ignorance,
was an immediate divorce, but the law afterwards conftituted it a deliberate
divorce J, and hence it is that Aila occafions a feparation §.—
In the fame manner alfo, the analogy urged by him between the cafe
in queftion and a cafe of impotence is not admitted;— becaufe where a
* See vol. I . p. .306. t See vol. I . p. 354.
J Arab. Talah Mowjil, meaning a divorce which is to take place within a certain time.
§ T h a t is to fay, it is for this reafon, and not becaufe o f the huiband obftrutfting his
Wife’ s right, as fuppofed by Malik.
P p 2 huiband