thrice divorced
(before
the expiration
of
her Edit,) oc-
cafions punt
foment.
Connexion
with a wife
divorced by
implication
does not induce
punifo-
ment ;
have carnal connexion with her during her Edit, and acknowledge
his confcioufnefs of her being unlawful to him, punifhment is incurred,
becaufe here poffeffion by marriage, which legalizes generation,
has been totally annihilated, and hence there can be no error, as
the text in the Koran {hews that legality is deftroyed in this cafe; and
all the doctors coincide in this opinion. But if he were to declare
that “ he conceived, or fuppofed, fhe was {till lawful to him,” pu-
nifhment is not incurred, becaufe his apprehenfion is to be regarded,
fince the effects of marriage {till remain, with refpedt to the eftablifh-
ment of the parentage of children, and the matrimonial reftraint, and
alimony ; (for if the woman fhould bear a child, at any period within
two years from the date of divorce, the parentage of fuch child
is eflablifhed in the hufband, and fhe remains under the reftraint
to which fhe is fubjedl in marriage, and her alimony alfo remains incumbent
upon her hu{band ;) his apprehenfion, as above pleaded, is
therefore of force to prevent punifhment, on account of error by mif-
conception. And an Am-lValid, after manumiflion, and a woman in
a ftate of repudiation by Kboola, or one divorced for a compenfation,
(who are in their Edit,') ftand in the fame predicament with a
woman repudiated by three divorces, as their illegality is univerfally
admitted, and certain effects of marriage continue during their Edit,
as well as in the cafe of a wife under three divorces.
If a man divorce his wife by implication, faying, “ You are
“ divejled," or “ you are at your own difpofal,” and (he chufe
divorce,— and he afterwards have carnal knowledge of her within the
term of her Edit, and fhould acknowledge that he knows her to be
unlawful to him, yet punifhment is not incurred; becaufe concerning
this cafe there is a difference among the companions ; for Omar holds
that the forms above-mentioned are effedtive of only a Angle divorce
reverfible; and the fame in all expreffions of divorce by implication :
he alfo holds the rule to be the fame, where the hufband intends three
divorces, as he maintains that here likewife a fingle divorce reverfible
only
only takes place, and that the intention of three divorces is not regarded.
P u n i s h m e n t is not incurred by a man having carnal connexion nor that with
with the female Have of his fon, or of his grandfon, although he fhould
acknowledge his confcioufnefs of fuch female flave being unlawful to- or a grana/m:
him, for in this cafe the error is by effed, fince it proceeds from an
argument founded upon the words of the prophet, who faid to one
w ith whom he was converfing, “ T h o u and t h i n e are thy f a -
“ t h e r ’s — and the grandfather is fubjedl to the fame rule with
the father, as he is alfo a parent. The parentage alfo of the child begotten
in fuch carnal conjunction is eftablifhed in the father aforefaid,
who remains refponfible to his fon for the value of the female flave.
If a perfon have carnal connexion with the female flave of his otolefathir,
father, or his mother, or his wife, and plead his conception that fuch w‘f " ’(wVete
flave was lawful to him, he does not incur punifhment; neither is his
accufer liable to punifhment:— (but if he fhould acknowledge his cd") ”
confcioufnefs of the illegality, punifhment is to be inflicted upon him,
— and the fame rule obtains where a flave has connexion with the
bondmaid of his mafter,) becaufe between thefe there is a community
of interefts in the acquifition of profit; and hence the man who-
commits the adt may in thofe cafes have conceived, with refpedt to
the enjoyment, that this fpecies of ufufruct is alfo lawful to him,—
wherefore error by mifconception is applicable to him ; but never-
thelefs this is adual whoredom, for which reafon- punifhment is not
incurred by the accufer. The law is the fame, (according to the Z»-
hir Rawdyet,) if the female flave, in either of thefe cafes, were to
plead her fuppofing that the adt was lawful, without any fuch plea-
on the part of the man,— becaufe the carnal conjunction of a man
and a woman being one ad, it follows that a plea of fuppofed legality,
made by either party,, eftablifhes error with refpedt to both-, and
hence the punifhment of both is abrogated.