and to offer expiation for his oath, for al-Bukhārī and Muslim relate on the authority of ʿAbd al-Raḥmān ibn Samurah that the Messenger of Allah (peace and blessings be upon him) said, “When you swear an oath and then see that something else would be better, expiate your oath and do that which is better.”
4 – The commentator of this book considers the soundest view to be that declaring one’s wife—or anything else that is lawful—unlawful is mere idle speech with no legal consequence whatsoever. The proof is that the right to declare things lawful or unlawful belongs to Allah alone. He, exalted is He, says, “And do not say, uttering the falsehood your tongues describe, ‘This is lawful and this is unlawful’” (Al-Naḥl 116); and He said to His Prophet (peace and blessings be upon him), “O Prophet, why do you prohibit what Allah has made lawful for you?” (Al-Taḥrīm 1). There is therefore no difference between declaring the forbidden lawful and declaring the lawful forbidden; since the first is invalid, the second must likewise be invalid. When we examined the other opinions, we found them inconsistent and unsupported by any proof from Allah. This position is also indicated by the ḥadith of Ibn ʿAbbās: the expiation pertains to the oath, not to the mere utterance of prohibition.
Disagreement among the scholars
The jurists differed regarding a man who says to his wife, “You are unlawful for me,” arriving at eighteen separate opinions, the three most plausible of which are:
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It is an oath that requires expiation. This is the view of the three imams—Abū Ḥanīfah, Mālik, and al-Shāfiʿī—as well as al-Awzāʿī; it was likewise held by Abū Bakr, ʿUmar, Ibn Masʿūd, Ibn ʿAbbās, and ʿĀʾishah.
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The ruling follows the speaker’s intention: if he meant divorce it counts as divorce, if he meant ẓihār it counts as ẓihār, and if he meant an oath it is an oath. This is another opinion within Abū Ḥanīfah’s school, a report from Aḥmad, and the preference of a group of Ḥanbalīs.
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It is ẓihār for which the expiation of ẓihār is due. This is the well-known position of Aḥmad, Isḥāq, and a number of the Successors.
Al-Qurṭubī said: The reason for the disagreement is that there is no explicit text in the Book or the Sunnah on which one can rely, and thus the scholars diverged in their conclusions.