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حولتواصلتبرّعبيانات النشرالخصوصيةشروط الاستخدامحق الانسحابإلغاء اشتراك
المغني لابن قدامة - ت التركي
مجلد 10 · صفحة 566

الترجمة · EN

based on his state, just like their report regarding evidence in matters where evidence is considered. The second category is when she claims the expiration of her waiting period due to childbirth. This situation must fall into one of two scenarios: either she claims that she delivered [the child at full term], or she claims that she miscarried it before its completion. If she claims that she delivered it at full term, her statement is not accepted in less than six months from the time when sexual intercourse was possible after the marriage contract, because it cannot reach completion in less than that. If she claims that she miscarried it, her statement is not accepted in less than eighty days from the time when sexual intercourse was possible after the marriage contract, because the minimum miscarriage through which the waiting period expires is one that has reached eighty days; this is because it is a drop of semen (nutfa) for forty days, then it becomes a clinging clot ('alaqa) for forty days, then it becomes a lump of flesh (mudgha) after eighty days, and the waiting period does not expire through it before it becomes a lump of flesh under any circumstances. This is the manifest view of al-Shafi'i. The third category is when she claims the expiration of her waiting period through the passage of months. Her statement is not accepted regarding this because the disagreement on this matter is based on the disagreement regarding the timing of the divorce, and the statement is that of the husband in this regard; therefore, the statement is his regarding what is based upon it, unless the husband claims the expiration of her waiting period in order to relieve himself of her financial maintenance (nafaqa), such as if he says: "I divorced you in Shawwal," and she says: "Rather, it was in Dhu al-Hijjah." In this case, her statement is accepted, because he is claiming something that relieves him of maintenance, and the original principle is its obligation, so it is not accepted except with evidence. If she claims that, and she has no maintenance due, her statement is accepted because she is admitting against herself something that is more burdensome. If the claim is reversed, and he says: "I divorced you in Dhu al-Hijjah, so I have the right to take you back (raj'a)," and she says: "Rather, you divorced me in Shawwal, so you have no right to take me back," then his statement is accepted, because the original principle is the continuation of his marriage, and because the statement is his in both affirming and denying the divorce; thus, it is the same regarding its timing. Once this is established, in every instance where we said: "the statement is hers," if the husband denies her, al-Khiraqi said: "She must take an oath." This is the view of al-Shafi'i, Abu Yusuf, and Muhammad. Ahmad has also alluded to it in a narration from Abu Talib. Al-Qadi said: "The analogy of the madhhab is that an oath is not obligatory upon her."

الحواشي

(20) In M: "the full-term pregnancy". (21) In the original: "she miscarried". (22) In the original and B: "because". (23) In A: "the disagreement".

السابقمجلد 10 · صفحة 566التالي
السابق10·566التالي