Section
If there is only the intention to take her back, without a verbal declaration or an act that takes its place, such as intercourse or a similar act, this does not constitute taking her back. This is stated in Ibn al-Mawwāz’s book. The correct view, however, is that taking her back is valid through intention alone, since words merely express what is in the mind. If he inwardly intends that he has taken her back and resolves upon this in his heart, then taking her back is valid between him and Allah Most High. If he then expresses verbally what he has harboured in his heart, we rule accordingly. The same disagreement applies to whether divorce takes effect through intention alone, without a verbal pronouncement. Conversely, if there is a verbal declaration without intention, taking her back is not valid between him and Allah Most High, even though we judge him according to his outward declaration and do not accept his claim that he lacked the intention. The exception is the position of those who hold that a person seeking a fatwa is not bound by a divorce pronounced without intention. This position can be inferred from al-Mudawwana, although it is difficult to justify in principle.
Section
Scholars have differed as to whether he may have intercourse with her when he is held legally to have taken her back, according to the view that this is not valid between him and Allah. They have likewise differed over whether intercourse is permissible for a man who divorced his wife during menstruation, then refused to take her back, whereupon a judgment requiring him to take her back was imposed upon him. I have discussed this in its proper place.
Section
As for intercourse without the intention to take her back, it does not constitute taking her back, either inwardly or under the outward legal ruling. Al-Layth ibn Saʿd said: “Intercourse constitutes taking her back, even if he did not intend it as such.” He means—and Allah knows best—that this is so under the outward legal ruling, and that his claim not to have intended thereby to take her back is not accepted. This is the more evident view, by analogy with the purchaser of a slave woman who has an option to confirm or rescind the purchase: his having intercourse with her during the option period constitutes confirmation of the purchase, and his claim that he did not choose to confirm it is not accepted. For he has the choice of taking his wife back during her waiting period, just as he has the choice of confirming his purchase of the slave woman bought with such an option. A distinction may, however, be drawn between the two cases: if the purchaser were to retain the slave woman until the option period had expired and a considerable time had elapsed thereafter, he would be deemed