and once he has done so, Ibn al-Mundhir remarks, “Everyone from whom we have transmitted agrees that fayʾ means intercourse.” Linguistically, fayʾ denotes “returning” to an act one had abandoned, and by that return the wife obtains the right that is due to her.

However, if—after the prescribed period has elapsed—the husband who swore the oath still refuses to have intercourse, the judge instructs him to pronounce divorce should the wife request it, in view of the Almighty’s words: “And if they resolve upon divorce, then indeed Allah is All-Hearing, All-Knowing” (Q 2:227). In other words, if he determines and actually carries out the divorce, it takes effect. If he refuses both to resume marital relations and to divorce, the judge pronounces the divorce (or annuls the marriage) on his behalf, for the judge stands in the place of the muʾlī when the latter refuses, and divorce may be executed by proxy.

The jurists have extended the same rulings to two other cases: (1) a man who, without any oath and without excuse, withholds intercourse from his wife for more than four months in order to harm her; and (2) a man who pronounces ẓihār against his wife, fails to make the expiation, and persists in that state for more than four months. Both husbands are deliberately depriving their wives of conjugal rights, so they are treated like a muʾlī. Allah knows best.

They also said: If the four-month period ends and one of the spouses has a legitimate excuse that prevents intercourse, the husband is instructed to make verbal fayʾ by saying, “Whenever I am able, I will be intimate with you.” The aim of fayʾ is to abandon the harm he intended; his verbal apology shows that he no longer wishes to harm her. Once the impediment is removed, he must either have intercourse or pronounce divorce, for the incapacity that justified the delay has ceased.