Chapter on Triple Divorce, Ila’, and Zihar

(1) The statement: "Until she marries a husband other than him"—Exegetes and scholars of usul mentioned that nikah linguistically means intercourse, but here it is used metaphorically for the contract. The text is understood to require her marriage to another husband. The majority hold that intercourse is also a condition, as understood from the famous hadith of Rifa’ah. Some said "marries" is used in its original meaning, i.e., intercourse, with the contract implied by the term "husband." Thus, if a woman marries a second husband, she cannot return to the first unless intercourse occurs. If the second husband is impotent and she wishes to return, she must seek separation from him and marry a third husband, then return after intercourse. This is agreed upon, as summarized in At-Tafsirat al-Ahmadiyyah.

(2) The statement: "For those who swear not to have intercourse..."—This refers to swearing. Ibn ‘Abbas read it as: "For those who swear not to have intercourse with their wives is a waiting period of four months." (2:226) If they retract within those months, "Allah is Forgiving and Merciful" (2:226), as they prescribed expiation. "And if they decide on divorce" (2:227) by persisting in abstaining, they must wait until the period ends. "Allah is Hearing and Knowing" (2:227) of their oath and intention, which is a warning against persisting. Ash-Shafi’i said "if they return" and "if they decide" apply after the period ends, as "fa" (then) denotes sequence. We say: "If they return" and "if they decide" elaborate on "those who swear," and elaboration follows the elaborated, as in Al-Madarik.

(3) The statement: "And those who declare their wives unlawful..."—This verse establishes the ruling for zihar. "Then retract what they said" means they retract their declaration by resolving to have intercourse, omitting the implied object. Scholars differed on how retraction occurs. According to us, it is by resolving to have intercourse, the view of Ibn ‘Abbas, Al-Hasan, and Qatadah. Ash-Shafi’i said it is by merely retaining the wife without divorcing her after zihar.

(4) The statement: "Must free a slave"—They must free a believing or disbelieving slave. A mudabbar (slave to be freed after death), umm walad (mother of the master’s child), or a mukatab (slave buying his freedom) who has paid part is not valid. "Before they touch one another" refers to the one who made zihar and the one over whom zihar was made. "Touch" includes intercourse, touching with desire, or looking at the private parts with desire. That ruling is admonished to deter repetition. "Allah is Aware of what you do" (58:3). If they touch before expiation, they must seek forgiveness and not repeat it until expiation is made. If they free part of a slave and then touch, they must start over according to Abu Hanifah. "But whoever cannot find one" (58:4) a slave "must fast two consecutive months" before touching. "And whoever is unable" to fast "must feed sixty poor people" (58:4), giving each half a sa’ of wheat or one sa’ of dates or barley. It must be given before touching but need not be repeated if intercourse occurs during feeding, as summarized in Al-Madarik.

(1) The statement: "Until you taste his sweetness and he tastes yours"—This indicates, according to the majority, that intercourse with the second husband is required for tahill (making lawful return to the first husband). This is the view of the four imams and their followers. Even if the second husband divorces her before consummation or dies before it, she does not become lawful for the first. This is mentioned in ‘Umdat ar-Ri’ayah. Ar-Radd al-Muhtar states: "The requirement of consummation is established by consensus, so the contract alone is insufficient." Al-Kashf and other usul works state: "Scholars, except Sa’id ibn al-Musayyab, agreed on requiring consummation." Az-Zahidi said: "This is established by the consensus of the ummah." Al-Munyah states: "Sa’id retracted his opinion and adopted the majority view. Whoever acts contrary to this is disgraced, and whoever issues such a fatwa is punished. What is attributed to As-Sadr ash-Shahid has no basis in his works; rather, they contradict it." Al-Khulasah states: "Whoever issues such a fatwa is cursed by Allah, the angels, and all people, as it contradicts consensus. A judge’s ruling based on this is invalid." The majority who require intercourse follow two approaches regarding the verse: "Until she marries a husband other than him" (2:230). Some held that nikah here means intercourse, as nikah linguistically means joining, which is intercourse literally. It is used as such in the verse: "Test the orphans until they reach the age of marriage..." (4:6). Thus, the Book requires intercourse, supported by the hadith of ‘asilah (sweetness). Others said nikah in the verse means the contract, and the requirement of intercourse is established by the well-known hadiths. These hadiths supplement the Book, as adding to the Book with well-known hadiths is permitted by consensus. Thus, tahill without intercourse contradicts the well-known hadith. This analysis is taken from ‘Umdat ar-Ri’ayah and Sharh al-Wiqayah.

(1) The statement: "Allah curses the muhallil and the one for whom he does so"—If a man marries a woman on the condition that he will consummate and divorce her so she can return to her first husband, such a marriage is prohibitively disliked due to this hadith. If he marries her with this condition, consummates, and divorces her, she becomes lawful for the first husband after her waiting period, though the sin remains for such a marriage and tahill. There is disagreement: Muhammad held that the marriage is valid with the tahill condition, as contracts are not invalidated by invalid conditions. However, she does not become lawful for the first husband through such consummation, as it hastens what the Shari’ah delayed. Abu Yusuf and Ash-Shafi’i said the marriage is invalid due to the tahill condition, as it resembles a temporary marriage. Abu Hanifah’s view is that the marriage is valid but disliked. If the tahill is concealed in the heart without explicit mention, it is permissible without dislike. The Shafi’i school differs from us in that they consider tahill invalid, while we consider it valid but sinful.

(1) The statement: "Ila’ results in one irrevocable divorce..."—Ila’* is swearing not to have intercourse for four months or more. Its ruling is of two types: the ruling of the oath and the ruling of breaking it. If he has intercourse within the period, he atones for breaking the oath, indicating that atonement before breaking is insufficient. If the oath was by Allah, its atonement is feeding ten poor people, clothing them, or freeing a slave. If unable, fasting three days. If the oath was other than by Allah (e.g., vowing Hajj, fasting, charity, freeing a slave, or divorce), he fulfills what he made the penalty for breaking it. If he swore, "By Allah, I will not approach my wife for four months," and retracted within the period, he must atone for the oath. If he swore, "If I approach you within four months, I must perform Hajj," and approached her within the period, Hajj becomes obligatory, and ila’ is annulled, as the oath is lifted by breaking it. If he does not approach her within the period, she is irrevocably divorced by one divorce. This is the view of Ibn Mas’ud, Ibn ‘Umar, Ibn ‘Abbas, Zayd ibn Thabit, and is narrated from ‘Uthman and ‘Ali. It is the view of most Tabi’in. Ash-Shafi’i said she is not divorced by the passage of time, but the ruling is suspended after the period, and he is ordered to retract or separate. If he refuses, the judge separates them. Thus, the difference is twofold: Retraction, according to him, is after the period, while according to us, it is within the period. Separation does not occur except by the judge’s ruling or the husband’s divorce, the view of Malik and Ahmad. Ash-Shafi’i said the judge does not separate but pressures him until he retracts or divorces. According to us, separation occurs by the passage of time. Their evidence is the verse: "But if they return" (2:226), where "fa" (then) denotes sequence, permitting retraction after the period and separation. Our evidence is the reading of Ibn Mas’ud and Ubayy: "If they return within them," proving retraction is within the period, making it evidence against them. "Fa" in the verse denotes retraction following ila’, as retraction before the period is permitted, which would not be if their view were correct. We also have the statements of the senior Companions. In summary, Ash-Shafi’i said the verse means: "If they return and if they decide after the period," as "fa" denotes sequence. We say: "If they return" and "if they decide" elaborate on "those who swear," and elaboration follows the elaborated, as in Al-‘Ayni and Al-Mustakhlas, summarized.

(1) The statement: "So I made zihar against her..."—Zihar linguistically is from zahara, meaning to declare something like another. Legally, it is a Muslim equating his wife or part of her to a permanently prohibited female relative (e.g., saying, "You are to me like my mother’s back"). It does not apply to a non-Muslim’s wife, even if she is a kitabiyyah, minor, or insane. It includes equating any part of her to a prohibited relative, not just the back, though zihar is named after the back due to its common usage. Its condition for the woman is that she is a wife, and for the man, he must be liable for expiation (i.e., free, adult, sane). Its ruling is prohibition of intercourse and its preliminaries until expiation is made. The woman may demand intercourse, as it is her right, but she must prevent him from enjoyment until he atones, and the judge may compel him through imprisonment or beating until he atones or divorces. Some said expiation is obligatory due to retraction, based on the verse: "Then they retract what they said" (58:3). Scholars differed on its meaning. Ash-Shafi’i said retraction obliging expiation is retaining her without divorce after zihar. Abu Hanifah said retraction in the verse is a firm resolution to have intercourse, the view of Ibn ‘Abbas, Al-Hasan, and Qatadah.

(2) The statement: "Free a slave..."—This hadith indicates several rulings: The order of expiation options. The slave need not be a believer, unlike in expiation for killing. The fasting must be consecutive. Expiation is not entirely waived due to inability, as in As-Subul. Expiation is freeing a slave before intercourse. If unable, the one who made zihar must fast two consecutive months before intercourse, excluding Ramadan and the five forbidden days. If unable to fast, feed sixty poor people, each receiving half a sa’ of wheat or one sa’ of dates or barley. It must be given before intercourse but need not be repeated if intercourse occurs during feeding, as in Al-Hidayah, Ar-Radd al-Muhtar, and Ad-Durr al-Mukhtar, summarized.

(3) The statement: "He made his wife unlawful like his mother’s back until Ramadan ended..."—This means he made zihar until Ramadan ended. At-Tibi said: "This indicates the validity of temporary zihar." Qadi Khan said: "If one makes temporary zihar, he is considered to have made zihar immediately, and it expires after the specified time." As in Al-Maraqi.

(2) The statement: "Not to approach her until he atones"—If he has intercourse before atonement, he must seek forgiveness and atone for zihar only. No additional expiation is required for the unlawful intercourse, and he must not repeat it until atoning, as in Sharh al-Wiqayah.

(3) His statement regarding one who declares his wife like his mother’s back and has intercourse before expiating: He said, “One expiation,” meaning if he has intercourse before performing the expiation, no additional expiation is required due to the intercourse. The only obligation is the initial expiation, meaning nothing else is required beyond the first expiation based on this hadith. This is the view of the four Imams. However, according to us [the Hanafis], he should also seek forgiveness from Allah, as transmitted in the Muwatta from the statement of Malik. Nuh Afandi quoted Allamah Qasim, who mentioned that Muhammad [ibn al-Hasan] reported it in The Source as a raised hadith. The intended meaning of seeking forgiveness is repentance from this sin, which is the prohibition of intercourse before expiation.