CCCL. A sick man may divorce his wife even LECTURE though he be on his death-bed (a).*

(a.) Repudiation by a man in his last illness is termed ' repudiation of a farr, or evador.'†

XIII. Divorce by a sick man.

CCCLI. The woman divorced revocably or Principle. irrevocably by her husband at his death-bed does not lose her right of inheriting from him until the completion of her iddat, so if the husband died before the expiration of the iddat, she will inherit his estate (b), provided she did not, of her own accord and free pleasure, ask him to divorce, or procure it of him for a compensation (c).

(b) When a man in his death-illness has repudiated his wife irrevocably, or given her three repudiations, and has then died while she is still in her iddat, she inherits from him in like manner according to us;' but if her iddat should expire, and he were then to die, she would not inherit. And if the repudiation were given in health or in an illness from which he recovers she would not inherit.†

(b.) If a man lying on his death-bed repudiate his wife, either by one irreversible divorce, or by three divorces, and die before the expiration of her iddat, she is still entitled to her inheritance from his estate; but if he should not die, until after the accomplishment of her iddat, she has no claim.-Hidayah, vol. i, page 271.

(b, c.) When it is said that a woman irrevocably repudiated in such circumstances retains her right of inheritance until the expiration of her iddat, it is assumed that the

By the Muhammadan law, a woman, on the death of her husband, is entitled to an inheritance from his estate, but it is possible that the husband may sometimes be induced from personal dislike, or other motive, when he finds himself dying, to repudiate his wife, in order to exclude her from her right of inheritance, in the event of his death; an injustice which the rules and cautions laid down in this chapter are intended to counteract and guard against some of them are also designed to counteract any fraudulent collusion between the wife and her dying husband to the prejudice of his heirs.— Hidayah, vol. i 279, note.

:

† Fatia Alamgirí, vol. i, page 638.-B. Dig., pp. 277 & 278.

XIII.

LECTURE repudiation is without a request on her part; for if he had repudiated her at her own request, she would have no right of inheritance, unless she were compelled to ask for it, when her right would not be invalidated. In this case, that is, of irrevocable repudiation during a death-illness, competence on her part to inherit must exist at the time of repudiation, and continue till the husband's death.*

Principle.

Principle.

Principle.

Principle.

CCCLII. If a man pronounce upon his wife three divorces in sickness, and afterwards recover his health, but happen to die before the expiration of her iddat, she does not inherit (d).—Hidáyah, vol. i, page 286.

(d.) When a man has repudiated his wife in his illness, and has then recovered, but afterwards died, she does not inherit.*

CCCLIII. If the repudiation were given in health, or in an illness from which he recovers, she would not inherit.*-Ibid, page 277.

CCCLIV. If a man, being in health, slander his wife, that is, accuse her of adultery, and afterwards make asseveration respecting the same on his death-bed, she inherits of him (e).—Hidáyah, vol. i, page 287.

(e.) Muhammad says that she does not inherit: but if the slander be also declared upon his death-bed, she inherits according to all our doctors. The reason of this is that the slander amounts to the suspension of divorce upon a thing unavoidable by the woman, as it constrains her to opposition, that she may remove from herself the scandal of the imputation.-Hidayah, vol i, page 287.

CCCLV. If a man make an ilá, or vow of abstinence, from his wife during his health, and she become divorced in consequence of it when he is upon his death-bed, she does not inherit of him.— Ibid.

* Fatáwá Alamgírí, vol. i, pp. 638-640. B. Dig., pp. 277,

XIII.

CCCLVI. If a man upon his death-bed repu- LECTURE diate his wife by a reversible divorce,* she inherits of him in all the cases here recited.-Hidayah, vol. i, page 288.

Because the marriage is not finally dissolved, since it continues lawful for him to have carnal connexion with her; and such being the case, the principle upon which she inherits stands still unimpeached-Ibid.

CCCLVII. When a man has given his wife a Principle. revocable repudiation, whether it were given in health or in sickness, or with or without her consent, and either of them happens to die before the expiration of her iddat, they are reciprocally entitled to inherit without any difference of opinion.†

CCCLVIII. When a man in health has com- Principle. mitted the repudiation of his wife to a stranger, and the stranger repudiates her in sickness, and the commission were of such a nature that it could not be withdrawn, she would not inherit.†

to one's

Divorce may (also) take place by the husband's delegat- Delegation ing or committing to his wife the power of pronouncing to of divorce herself the sentence of divorce. This is comprehended own wife. under three heads, termed choice or option, liberty, and will or pleasure.'

As a man may in person repudiate his wife, so he may commit the power of repudiating her to herself, or to a third party. This is termed Tafvíz,' and it is of three kinds: Ikhtiyar,' or choice; Amar-bi-yad,' or business in hand, and Mashíat,' or pleasure.-Vide Fatáwá Alamgírí, vol. i, page 542-B. Dig., page 236.

CCCLIX. The delegation of option by the Principle. husband to his wife confers on her the power of divorcing herself, but this right of option is restricted

* In all these cases where it is said that the wife inherits, it means, in case of the decease of the husband, before the expiration of her Iddat,'the reason of which has been already mentioned.-Hidayah, vol. i, page 288, note.

† Fg Alamgirí, vol. i, page 638.-B. Dig., pp. 277 & 284.

LECTURE to the precise place or situation* in which she receives XIII. it, and is annulled by her removal. Intention on the part of the husband is requisite to constitute a delegation.

If a man say to his wife" choose " (thereby meaning divorce) or divorce yourself," the woman has a power to divorce herself so long as she remains in the precise situation in which she received it, but if she remove, or turn her attention to anything else, the power thus vested in her is done away, and her option no longer remains.— Hidayah, vol. i, page 444.

The right of option of the woman is annulled upon the instant of her rising from her seat, as the circumstance proves her rejection of it. And where the husband thus addresses his wife, an intention of divorce is a condition requisite to the effect, because the words choose' is one of the implications of divorce, as it is capable of two constructions, by one he desires the woman to choose herself, and by another to choose her clothes, and so forth; and if she choose herself, a divorce irreversible takes place.—Hidáyah, vol. i, page 245.

Intention is necessary to give effect to the word' choose;' and if the wife should choose herself on his saying "choose," a single irrevocable divorce would take place; and it would not be triple, even though the husband would have intended it.-Fatáwá Alamgírí, vol. i, page 543.— B. Dig., page 238.

ANNOTATIONS.

ccclix. When a man has said to his wife "choose," intending repudiation thereby, or "repudiate thyself," she may repudiate herself at any time while she remains at the meeting, though she should prolong it for a day or more, by not rising from it or betaking herself to some other matter; and though he should rise from the meeting, the matter is still in her hands so long as she continues at it herself, and it is not in his power to revoke the option he has given her, nor to prevent her from exercising it, nor to cancel what she may do under it.-Fatáwá Alamgírí, vol. i, page 542.-B. Dig., pp. 236 & 237.

*Arabic-Majlis' meeting or assembly.

†This is an idiomatical phrase in the Arabic, signifying she chooses her liberty from the matrimonial tie.

XIII.

CCCLX. It is further necessary to give effect LECTURE to the repudiation that the word 'self' or the word 'repudiation' should be combined with the word Principle. 'choose' on one side or the other; either by the husband's saying "choose thyself," or "choose repudiation," or "choose a choice," or by the wife's saying "I have chosen myself," or "I have chosen repudiation," or "I have chosen a choice," whereupon repudiation would take place. And if he were merely to say "choose," and she were to say I have "chosen," nothing would take place.*

If a man say to his wife "choose," and she reply "I have chosen myself," divorce takes place, where such was the husband's intention; because the word 'self' here occurs in the reply given by the woman, and the expression of the husband bears the construction of that which he intended.-Hidayah, vol. i, page 247.

If a man say to his wife "choose yourself," and she answer "I have chosen," a divorce irreversible takes place; because the word 'self' here occurs in the words of the husband, and the words of the woman are in reply to him; and hence her words virtually comprehend "herself." And, in the same manner, if the husband were to say "choose an option," and she reply "I have chosen," a divorce irreversible takes place.-Hidayah, vol. i, page 247.

If a man should say to his wife "choose," and she should say "I choose myself," she would be repudiated on a favorable construction. If she were to say "I have separated myself," or "made myself unlawful," or "repudiated myself," the answer would be sufficient, and repudiation would take effect.*

If the choice be given in connection with the word talák (repudiation), as if he were to say "choose talák," and she should say "I have chosen talák," there would be one revocable repudiation.*

If her words were "I have chosen a choice," or "the choice," or 66 once," or "for once," or " one," there would be three according to them all. So, also, if her words

*Faté Alamgírí, vol. i, pp. 543, 544 & 545.-B. Dig., pp. 238 & 239.

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