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puberty, "thy business is in thy hand," intending repu- LECTURE diation, and she should repudiate herself, it would be valid, and the repudiation take effect. A man put his wife's business in the hand of her father, and he said "I have accepted her," repudiation took effect.*

CCCLXXIX. If an authorized person (Fazúlí) says Principle. to the wife of another person "I have put your business into your hand," whereupon she says "I have chosen myself;" and on the intelligence reaching her husband he allows the whole matter, yet she is not repudiated, but her business is placed in her hands by the allowance of her husband for the meeting at which she may receive the intelligence of his allowance.*

CCCLXXX. If a person should say "The wife Principle. of Zayid is repudiated," and Zayid should say "I have allowed," or "I am content," or "I have made it obligatory upon myself," repudiation would become obligatory.*

CCCLXXXI. And in like manner if the wife Principle, should say to herself "I have put my business into my hands, and have chosen myself," and the husband should allow the whole matter, repudiation would not take effect, but the business would be in her hands by his allowance; while if she should say "I have put my business in my hand, and have repudiated myself," and her husband should allow this, one revocable repudiation would take effect on the instant, and her business would be in her hands, so that if she should then say "I have chosen myself," another irrevocable repudiation would take effect.*

CCCLXXXII. If a wife should say "I have Principle. chosen myself," and her husband should say "I have allowed it," there would be no repudiation even though he intended it. But if she should say "I

* Fatáwá Alamgírí, vol. i, pp. 549 & 550.-B. Dig., pp. 245 & 246,

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LECTURE have separated myself," and he say "I have approved," it would take effect when intended.*

Principle.

Principle.

Of lián.

Principle.

Of ilá.

CCCLXXXIII. And if a husband should say "I have sold to thee thy business into thy hand for a thousand dirms," and she should make choice of herself at the meeting, it would be a repudiation, and she would be liable for the money.*

There are two other modes of separation-one of which is by the husband's making oath accompanied by an imprecation (lián) as to his wife's adultery, and the other is his vowing (ílá) not to have carnal connection with his wife and observing the vow inviolate.

CCCLXXXIV. Ifa husband charge his wife with adultery and deny his having begotten the child then conceived in her, or born of her, the charge is investigated by the Kází, who upon proof thereof issues a decree of separation between the husband and wife, and thus their marriage is dissolved. The separation so effected is an irreversible divorce.†See ante, pages 371 and 372.

CCCLXXXV. When a man makes a vow not to have carnal connection with his wife for no less than full four months and observes it inviolate, a divorce irreversible is thereby effected independent of any decree of separation from the Kází (Judge).‡

If a man in case of ilás have carnal knowledge of his wife within four months after he is forsworn in his vow, and

* Fatáwá Alamgírí, vol. i, pp. 548.& 549.-B. Dig., pp. 245, 246 & 247. Vide Macn. M. L., Chap. VII, Princ. 29.

A vow of abstinence made by a husband, and maintained inviolate for a period of four months, amounts to an irreversible divorce.-Macn. M. L., Chap. VII, Princ. 27.

§'Ilá' in its primitive sense signifies a vow. In law it implies a husband swearing to abstain from carnal knowledge of his wife for any time above four months if she be a free woman, and two months if she be a slave.-Hamilton's Hidayah, vol. i, page 306.

Ilá is a husband's prohibition of himself from approaching his wife for four months when he is a free man, and two months when he is a slave, the prohibition being confirmed by a yamín or vow, either by God, or without him.-Fatáwá Alamgírí, vol. i, page 698.-B. Dig., page 294.

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expiation is incumbent upon him, this being incurred by the LECTURE breach of his own, the ílá drops as his vow is cancelled by the breach of it; but if he have not carnal knowledge of her for the space of four months a divorce irreversible takes place independent of any decree of separation from the Magistrate.-Hidayah, vol. i, page 306.

Established impotency is also a ground for admitting a claim of separation on the part of the wife.

Of impo

CCCLXXXVI. If a husband be Innín (impo- Principle. tent), it is requisite that the Kází (Judge) appoint the term of one year from the period of litigation within which if the accused have carnal connection tency. with his wife it is well; but if not, the Kází must pronounce a separation, provided such be the desire of the wife (a).*-Hidáyah, vol. i, page 354.

(a.) An impotent person is one who is unable to have connection with a woman, though he has the natural organs; and a person who is able to have connection with an enjoyed woman, but not with a virgin, or with some women, but not with others, whether the disability be by reason of disease, or weakness of the original constitution, or advanced age, or enchantment, is still to be accounted impotent with respect to her with whom he cannot have connection.-Fatáwá Alamgírí, vol. i, page 707.-B. Dig., page 345.

ANNOTATIONS.

ccclxxxvi. When a woman brings her husband before the Judge and sues him demanding a separation on the ground of impotency, the Judge is to ask him if he has had intercourse with her or not; and if he should admit that he has not had intercourse with her, the case is to be adjourned for a year, whether the wife be an enjoyed woman or a virgin. If the husband should deny the charge alleging that he has had intercourse with her, and she is an enjoyed woman, his word is to be taken, accompanied by his oath that he has had intercourse with her; and if he should swear to that effect her right is void; but if he refuse to

* Vide Macn. M. L., Chap. VIII, Princ. 30,

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LECTURE (a.) The separation here mentioned amounts to the execution of a single divorce irreversible, because the act of the Kází is attributed to the husband, whence it is the same as if he had himself pronounced such a sentence upon her.-Hidayah, vol. i, page 355.

Principle.

CCCLXXXVII. The year of probation appointed by the Kází in cases of impotence is counted by the lunar calendar (from the date of litigation); and the days of the courses and of religious feasts (such as Rumzán) are therein included (a).—Hidayah, vol. 1, page 357.

(a.) As these occur in all years alike, nor can a year pass without them; but the days of sickness of either party are not included, as a year may pass exempt from such an Occurrence.--1bid.

ANNOTATIONS.

swear the case is to be adjourned for a year. If she should allege that she is still a virgin an inspection by women is to be ordered, for though one woman is sufficient, yet an inspection by two is more cautious and more to be relied on. If they should declare her to be an enjoyed woman the word of her husband is to be taken with his oath; and if he should swear her right is void; while if he refuse the case is to be adjourned for a year. If they should declare her to be a virgin, her word as to non-intercourse is to be received without oath. When the fact is ascertained that there has not been any intercourse between the parties the Judge is to adjourn the case for a year, whether the man require it or not, and to take witnesses to the fact of the adjournment and write down the date.-Fatáwá Alamgírí, vol. i, p. 707.—B. Dig., pp. 345 & 346.

ccclxxxvii. The year is to commence from the time of litigation, and there can be no proper adjournment except by the Judge of the town or city, no regard being paid to postponements by the parties themselves without the intervention of a Judge. The adjournment is to be regulated by the lunar year according to the Záhir Rawáyat, confirmed by the Hidayah; but there are several other authorities in favor of computation by the solar year; while Kází Khán and Zahí-ud-din were of opinion that computation by the solar year is allowable by way of precaution, and according to the Khulásah the fatáwá is so.-Fatáwá Alamgírí, vol. i, page 707.-B. Dig., page 346.

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CCCLXXXVIII. Where the term of a year is LECTURE appointed for the trial of a man charged with impotence by a wife whom he had married as a virgin, and he declares, at the expiration thereof, that he has had carnal connexion with her within that interval, and she denies this, she is then to be examined by some of her own sex: if they pronounce her to be still a virgin, she has it at her option either to separate from her husband, or to continue with him.

Because the testimony of the examiners is confirmed by her virginity, that being the original state of every woman; but should they declare her muliebrity, the husband is then to be required on the other hand to make oath, which if he decline, she has an option as above, her plea being strengthened by the circumstance of his declining to swear; but if he swear she has no option.Hidayah, vol. i, page 356.

CCCLXXXIX. If, moreover, she was a Sayyibah* Principle. originally (that is at the time of marriage), and the husband declare that he has had carnal connexion with her within the year of probation, and she deny

ANNOTATIONS.

ccclxxxviii, ccclxxxix. When the period has expired, and the woman comes again to the Judge alleging that her husband has not had connection with her, while he asserts that he has had it, then, if she were at first an enjoyed woman, his word is to be taken with his oath, and if he should swear her right is void, but if he refuse to swear the Judge is to give her an option. If she should choose a separation the Judge is to order the husband to repudiate her, and if he refuse the Judge himself is to pronounce the separation. The separation is one irrevocable repudiation, and the woman is entitled to her full dower, and is under an obligation to keep iddat if there had even been a valid retirement; but if her husband had never retired with her there is no iddat, and she has only half the dower if any had been named, or a mutat (or maintenance) if one was mentioned.†

* A woman who has already had carnal connection with a man.

† Fatáwá Alamgírí, vol. i, page 708.-B. Dig., page 347.