Hadith 3371

(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.