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المغني لابن قدامة - ت التركي
مجلد 10 · صفحة 527فصل

الترجمة · EN

with the explicit text (nass). Furthermore, because inheriting the entire group is inheritance for those who certainly do not deserve it, while suspending inheritance indefinitely is deprivation for those who certainly do deserve it; whereas the drawing of lots is a means by which one is saved from both of these blameworthy outcomes, and it has an analogy in the Shari'a.

Section: If some or all of them die, we draw lots among the entire group, and whoever the lot falls upon, we exclude her from her inheritance. If some of them die before him and some after him, and the lot falls to one who died before him, we exclude her from her inheritance; if it falls to one who died after him, we exclude her from his inheritance, while the remaining ones inherit from them and are inherited by them. If the husband says after her death: "This is the one I divorced," or says regarding an unspecified one: "This is the one I intended," she is excluded from her inheritance because he is making an admission against his own soul, and he inherits from the remaining ones, whether their heirs believe him or call him a liar; this is because the knowledge of that is known only from his side, and because the fundamental principle is the persistence of the marriage between them, whereas they claim he divorced her, and the fundamental principle is the absence of that. Is he to be put to an oath regarding that? There are two narrations. If we say he is to be put to an oath and he refuses, we exclude her from her inheritance due to his refusal, and he does not inherit from the other woman due to his admission of having divorced her. If he dies, and his heirs say to one of them: "This is the divorced one," and she acknowledges it, or her heirs acknowledge it after her death, we exclude her from his inheritance. If she denies it, or her heirs deny it, the analogy of what we have mentioned is that the statement is hers; because she claims the persistence of her marriage, while they claim its cessation, and the fundamental principle supports her, so their statement is not accepted against her except with evidence. If two of his heirs testify that he divorced her, their testimony is accepted provided they are not among those whose inheritance would increase by her exclusion, nor against those for whom their testimony would not be accepted, such as their mother or grandmother, because the inheritance of one of the wives does not return to the husband's heirs but rather increases the share of her co-wives. If one of the wives claims that he gave her a divorce by which she becomes irrevocably separated, and he denies it, the statement is his. If he dies, she does not inherit from him, due to her admission that she does not deserve his inheritance, so we accept her statement in what concerns herself but not in what concerns his wealth, and she must observe the waiting period (idda) because we did not accept her statement in what concerns herself. This derivation applies when the divorce makes her irrevocably separated; as for if it were a revocable divorce, and he dies during her waiting period, or she dies, each of them inherits from the other.

الحواشي

(3) It preceded in: 8/395. (4) In the original: "If he refuses (fa-in nakala)". (5) In the margin of the addition: "after her death".

السابقمجلد 10 · صفحة 527التالي
السابق10·527التالي