LECTURE Principle. a woman is his mother,' or that a certain person is his son,' and the ages of the parties admit of those relations,) or if a person acknowledge a particular woman to be his wife, or a particular person to be his mowlá' (that is his emancipator, or his freedman),-in all these cases the acknowledgment is valid, as affecting only himself, and not any other.-Hidáyah, vol. iii, page 169. In the same manner, also, if a woman acknowledge her parents, or her husband, or her mowlá, it is valid for the same reason. A woman's acknowledgment of a son, however, is not valid,-as such acknowledgment affects her husband, in whom the parentage is established: her acknowledgment of a son, therefore, is not valid, unless the husband confirm her declaration (as the right appertains to him,) or that it be verified by the birth being proven by the evidence of one midwife, which suffices in this particular.-Ibid. Thus, CCCXXVI. The acknowledgment by a woman with respect to her father, mother, husband, and emancipator, is also valid, but not so with respect to her child.* ANNOTATIONS. cccxxvi. A woman's acknowledgment with respect to (her) parents, husband and emancipator is valid, because this relation affects herself, and is not transferred to any other.†-Jowharat-un-Nayyirah, the book on Acknowledgment. A woman's acknowledgment with respect to a son is not valid, inasmuch as the parentage affects another,—that is, husband; for he must descend from him unless it be confirmed by the husband, he being competent to do the same, or the birth be proved by the testimony of a competent woman (i.e., the midwife.)†-Inayah, vol. i, page 215. *This exception is to be understood only of a woman who is married, or in her iddat; and even with respect to a femme couverte, her acknowledgment is valid, if credited by her husband, or confirmed by the testimony of the midwife, for all that is necessary evidence of the actual birth to which the testimony of one woman is sufficient, the ascription of the child to the husband being an inference of law from the fact of marriage, as already observed, which can be rebutted by the lian, or imprecation.-B. M. L., page 42. † Vide B. M. L., p. 41, et seq. XII. CCCXXVII. The confirmation concerning parent- LECTURE age is valid, although made after the death of the acknowledger, because the relation of parentage Principle. exists after death. In the same manner, also, the confirmation of a wife, after the death of her husband, is valid; because the iddat is one of the effects of marriage, and that exists after the death of the husband, whence it may be said that marriage itself endures in one shape; and, therefore, the confirmation of the wife after the death of her husband is valid.—Hidayah, vol. iii, page 170. CCCXXVIII. If a person acknowledge another Principle. to be his uncle, or brother, the acknowledged is entitled to inherit from the acknowledger, if the latter has no other heir, and not, if he has any (h). (h.) If a person acknowledge an uncle or a brother, such acknowledgment is not credited, so far as it relates to the establishment of the parentage, because of its operating upon another than the acknowledger. If, therefore, the acknowledger have a known heir, whether near or remote, the whole of the inheritance goes to him, and not to the person in whose favor the acknowledgment is made, since the parentage not having been established on the part of the acknowledger, no obstacle can thence arise to the inheritance of a known heir. If, however, the acknowledger have no other heir, the person in whose favor he makes acknowledgment is, in that case, clearly entitled to the inheritance, as every person has full power over his estate when he has no heir; whence it is that a person may bequeath the whole of his property in legacy, provided he have no heirs. The person in whose favor the acknowledgment is made is, therefore, in this case, entitled to the whole of the property, although the parentage be not proven, as that would tend to affect another, namely, the father or grandfather of the acknowledger.-Hidayah, vol. iii, page 173. * See ante, page 92. Talák defined. Preliminaries. LECTURE XIII. ON DIVORCE (TALÁK). TALÁK (repudiation, divorce), in its primitive sense, means dismission: in law, it signifies dissolution of marriage, or the annulment of its liability by (the use of) certain words.* Talák may be given either in the present time, or may be referred to a time in future. It may be pronounced before or after consummation. It may be given by writing as well as verbally, and in the Arabic or in a different language.t The words by which talák is given is of two kinds: sarih (express), and kinayat (ambiguous, metaphorical, or implicative).‡ A divorce may be effected in the Sunni or Badai form. The Sunni form of divorce is in accordance with the Sunnat, or traditions. The Badai form is that which is new and irregular. The Sunní divorce is again of two kinds : 6 ahsan,' or the best; and hasan,' or good. or good. It is ahsan' if the husband once expressly pronounces to his enjoyed, but unpregnant, wife the sentence of divorce while she is in tuhr (purity)§, during which he has had no carnal connection with her, and leaves her to complete the prescribed term of iddat, upon the expiration whereof the *Hamilton's Hidayah, vol. i, page 200. Talák, as defined in law, is a release from the marriage tie, either immediately or eventually.-Fatáwá Alamgírí, vol. i, page 491.-B. Dig., page 205. † Repudiation or divorce is pronounced also in Persian words where that language is spoken. In India, however, the Arabic word 'Talák' is almost invariably used with an appropriate verb in Hindustání. Divorce is of two kinds :-Sarih, or express ; and kináyat, or by implication. See pages 385 & 412-416. § Purity, that is, the space between two occurrences of a woman's courses. Iddat' is a woman's abstinence from sexual enjoyment upon divorce or dissolution of her marriage. In divorce, the term of iddat for a free woman is four XIII. repudiation becomes an irrevocable or irreversible divorce LECTURE unless revoked in the interim. It is 'hasan,' or good, when the husband gives his wife one repudiation in a tuhr in which he has had no sexual intercourse with her, and then he gives her another repudiation in the next tuhr, and after that another in the succeeding tuhr. This (third) repudiation being irrevocable, completes the divorce, even without waiting for the expiration of the iddat, or delivery-if she happens to be pregnant. When the woman is a slave, divorce is completed by two repudiations, whether the husband himself be a slave or free. Repudiation, or divorce, is either revocable (rajaí) or irrevocable (báin).† In the ahsan, or best form, the single repudiation that is pronounced is revocable before the completion of the iddat, after which it is irrevocable or irreversible; in the other forms, the first and second are revocable, with respect to an enjoyed wife, and the third is always irrevocable.‡ CCCXXIX. If a man repudiates his wife three Principle. times in one tuhr, § either in a single sentence or in different sentences, or joins two repudiations during ANNOTATIONS. cccxxix. The Talák-i Badaí, or irregular divorce, is where a husband repudiates his wife by three divorces at once; (that is, included in one sentence), or, where he repeats the sentence separately, thrice within one tuhr; or if a husband give three divorces in either of those ways, the three hold good, but the divorcer is an offender against the law.-Hidayah, vol. i, page 203. The pronouncing of two divorces within one tuhr comes under the description of Badaí, or irregular; the same is that of three divorces, as already intimated.-Hidayah, vol. i, page 204. months and ten days, and for a slave girl is half of that period.-See Lecture XIV. *It is only after one or two repudiations that a wife can be retained, and three must, therefore, be irrevocable.-B. Dig., page 206, note. See Lecture XIV. † See the Annotations at pages 388 & 391. See Lecture XIV. § Vide, page 382, Note. XIII. LECTURE one tuhr in a single sentence or in different sentences, the divorce takes place in the Badar, or irregular, form; and the third repudiation, which is irreversible, completes divorce, though the husband commits a sin for having divorced his wife irregularly. Principle. CCCXXX. If a man repudiates an enjoyed wife either at a time when the monthly courses are actually on her, or during a tuhr in which there has been sexual intercourse between them: in this case also, divorce is effected in the Badaí, or irregular, form, but is completed upon the expiration of the iddat:-this, however, ought to be revoked. ANNOTATIONS. CCCXXX. The Badaí, or new and irregular form of repudiation, is of two kinds: one, where the innovation is in respect of number, and the other, where it is in respect of time. The former is, when a man repudiates his wife three times in one tuhr, either in a single sentence or in different sentences, or joins two repudiations in one tuhr in a single sentence, or in different sentences. When he does this, the repudiation takes place, but he is sinful for so doing. The other kind of Badaí, or new repudiation, and which is so in respect of time, is, when a man repudiates an enjoyed wife who is subject to the monthly courses, either at a time, when they are actually on her, or during a tuhr, in which there has been sexual intercourse between them. Such a repudiation is also effective, but it ought to be revoked, or, more correctly speaking, revocation is incumbent on the husband. This kind of Badaí repudiation is necessarily restricted to an enjoyed wife, because one who has not been enjoyed may be repudiated by the sunni form without any reference to time. In the first of the badai forms the repudiations become a complete divorce as soon as they amount to three; in the second, the repudiation does not become divorce until the completion of the iddat.— Fatáwá Alamgirí, vol. i, page 492,-B. Dig., page 207. cccxxx, cccxxxi. There are two forms of repudiation: one termed Sunni, or that which is agreeable to the sunna, or traditions; and the other termed Badaí, or that which is new or irregular,-each being distinguished from the other by number and time. The Sunní form of repudiation, or that which is conformable to the traditions in number and time, is of two kinds, the ahsan, or best, and the hasan, or good. The 'ahsan,' or best, is when a man gives his wife one revocable repudiation in a tuhr, or |