XIV.

LECTURE courses are the means of ascertaining the state of the womb, the iddat of those women is to be counted by their returns.-Hidayah, vol. i, page 363.

Principle.

Principle.

Principle.

CCCCLXIII. When a man has consummated with a woman under a semblance of right, or a marriage that is invalid, he is liable for the dower, and she to an iddat for three courses if she be free, and two if she be a slave, and that whether her husband have died leaving her surviving, or has separated from her while living, while, if from extreme youth or old age, she is not subject to the courses, her iddat, when free, is three months, and one month and a half when a slave.-Fatáwá Alamgírí, vol. i, page 712. -B. Dig., page 352.

CCCCLXIV. Upon the death of a husband, whether free or a slave, the term of iddat for his widow if a free woman (of any description) is four months and ten days and night, and that for a slave (of any description) is half of that period. This iddat, however, is incumbent only in the case of valid marriage, no matter whether the same has been consummated or not.

CCCCLXV. If a man upon his death-bed repudiate his wife by a reversible divorce, then the term

ANNOTATIONS.

eccclxiv. The iddat of a free woman upon the decease of her hus band is four months and ten days, such being the term mentioned in the Kurán; and that of a female slave, in the like circumstance, is two months and five days, bondage being restrictive of the half.-Hidayah, vol. i, page 360.

The iddat for a free woman for the death of her husband is four months and ten days, whether the marriage were consummated or not, or the woman be a muslimah or kitábíah, or an infant, or an adult, or áyisah, or her husband were free or a slave, and whether she had menstruated within the period or not, provided she does not appear to be pregnant. This iddat is not incumbent except for a valid marriage. And by ten days are meant ten nights and ten days according to genearl agreement.-Fatáwá Alamgírí, vol. i, page 714.-B. Dig., page 353.

XIV.

of her iddat is four months and ten days according to LECTURE all the doctors; if by an irreversible divorce, then according to Abú Hanifah and Muhammad, the term is four months and ten days if she complete three terms of her courses within that period, otherwise the time which may be required to complete three menstruations.

A man having repudiated his wife revocably, she has kept the iddat for three terms, except one day, when the husband dies: four months and ten days are now incumbent on her.-Fatáwá Alamgírí vol. i, page 717.-B. Dig., page

355.

CCCCLXVI. When a man having repudiated Principle. his wife by an irreversible divorce marries her again during her iddat,* and afterwards divorces her before consummation, a complete dower is in this case incumbent upon him, and upon the woman an iddat de novo.-Hidayah, vol. i, page 367.

CCCCLXVII. If a man divorce his wife whilst Principle. in her courses, the term of her iddat is to be counted not from that menstruation but from the next.

CCCCLXVIII. If a man have erroneously carnal Principle. connection with a woman who is in her iddat from divorce, another iddat becomes incumbent upon her,

ANNOTATIONS.

When a married woman is a slave, and her husband has died leaving her surviving him, her iddat is two months and five days. And the same rule applies to a mudabbarah, mukatibah, umm-i-walad, and mustasaah‡, according to Abú Hanifah.-Fatáwá Alamgérí, vol. i, page 712.-B. Dig., page 353.

eccclxvii. If a man divorce his wife whilst in her courses, that term is not to be counted in her iddat, because the iddat is fixed at three complete menstruations; and if the above were to be counted, it would ́ induce a deficiency, as part of that had passed previous to divorce, and therefore cannot be included.-Hidayah, vol. i, page 365.

* See pp. 443 & 444,

+ Sec ante, page 275.

A slave working out her emancipation.

XIV.

LECTURE and the two are blended together, that is to say, her ensuing courses are counted from both iddats; and if the former iddat should be accomplished before the latter, the accomplishment of that still remains incumbent upon her.-Hidayah, vol. i, page 363.

Principle.

Principle.

Of Raját.

CCCCLXIX. If a man have carnal connection with a woman who is in her iddat from the death of her husband, she is to complete that of four months and ten days, being the iddat of widowhood; at the same time counting such terms of her courses as may occur within the remainder of that time, so that the two iddats may be counted together as far as possible.-Hidayah, vol. i, page 366.

CCCCLXX. After divorcing his wife by one or two revocable repudiations, a man may retain her or take her back any time before the expiration of the term of iddat (a) or abstinence, even though she be unwilling. This retention is termed raját.*

(a.) The existence of the iddat is a condition of raját (retention), because by raját is understood a continuance of the marriage (whence the term retention is applied to it), and this cannot be established but during the iddat, since after that is passed the marriage no longer remains. Hidayah, vol. i, page 289.

ANNOTATIONS.

cccclxx. If a man give his wife one or two divorces reversible, he may take her back any time before the expiration of her iddat, whether she be desirous or not.-Hidayah, vol. i, page 289.

When a man has repudiated his wife by one revocable repudiation, or two repudiations, he may retain her while she is still in her iddat, whether she be willing or not.-Fatáwá Alamgírí, vol. i, page 645.— B. Dig., page 285.

*Raját' signifies the maintaining of a marriage in its former condition while the wife is still in her iddat: or, in other words, a husband returning to, or receiving back, his wife after divorce, and restoring her to her former situation.-Vide Hidayah, vol, i, page 219.-B. Dig., page 285.

XIV.

CCCCLXXI. Retention (raját) may be effected LECTURE by words (b) as well as by act (c).

(b.) The words of 'raját' or retention are either saríh or kinayat, that is, as before explained, express or ambiguous. The express words are--"I have brought thee back," or "I have retained thee," or "I have restored thee." The ambiguous words are "Thou art to me as thou wast," or "Thou art my wife," and these are not sufficient without retention.*

(c.) As by matrimonial intercourse or touch with Example. desire, so also by kissing on the mouth with desire, by general agreement.*

(b, c.) Raját is of two species: the first termed 'express,' where the husband says, for example, "I have returned to (or taken back) my wife," or addresses the same to her personally; and the second, implied, where he has carnal connexion, or takes conjugal liberties with her, such as viewing those parts of her which are usually concealed, and so forth.-Hidayah, vol. i, page 290.

CCCCLXXII. Retention by an insane person Principle. must be by act and not by speech.*

CCCCLXXIII. Retention like marriage is valid, Principle. though made under compulsion, or in jest, or in sport, or by mistake; and if a husband should allow a retention as pronounced by a fazúlí or unauthorized person, it would also be valid, but retention cannot be suspended on a condition (d).*

"done"

(d.) As if a husband should say "When the morrow comes,' or "when thou hast entered the house," or so and so, I have retained thee" this would be no raját according to them all. Nor if he were to stipulate for an

ANNOTATIONS.

cccclxxi. As raját or retention is established by speech, it may be so in likewise by deed.*

* Fatáwá Alamgití, vol. i, pp. 646 & 647.--B. Dig., pp. 285-288.

XIV.

"the

LECTURE option would retention be valid; and if he should say after repudiation "I have retained thee tomorrow," beginning of the month," it would not be valid by all opinions.

Principle.

Principle.

Principle.

Principle.

CCCCLXXIV. The repudiated wife, if a free woman, cannot be retained after the expiration of her third courses, since after that remarriage is the only means to take her back.

CCCCLXXV. It is laudable that the husband have two witnesses to bear evidence to his raját (retention), yet if he have no witnesses the raját is nevertheless legal.--Hidayah, vol. i, page 291.

CCCCLXXVI. If a divorced wife who is preg nant, or who has brought forth a child, declare that he has never had carnal connection with her, he (the husband) is nevertheless at liberty to take her back (provided it be possible to derive the pregnancy from him).-Ibid, page 296.

Because where the pregnancy appears within such time as renders it possible to be derived from him, to him it is to be ascribed; and this circumstance proves his connection with her, whence a right of raját is established in him, as the divorce thus appears to be reversible.--Hidáyah, vol. i, page 297.

CCCCLXXVII. In the case of three divorces not taking place, but one irrevocable or irreversible

ANNOTATIONS.

cccclxxiv. The right to retain a repudiated wife is at an end as soon as she has come out of her third courses if she be free, or the second if she be a slave.*

cccclxxvii. If a man has repudiated his wife irrevocably without giving her three repudiations, he may marry her again during her iddat or after its expiration.-Fatáwá Alamgírí, vol. i, page 651.—B. Dig., page 290.

*Fatáwá Alamgirí, vol. i, pp. 646 & 647.-B. Dig., pp. 285–288.