to have confirmed the purchase by doing so, whereas if a husband continued to keep his wife with him until her waiting period expired, she would become irrevocably separated from him, unlike what happens when the purchase-option period expires. This indicates that his intercourse has less legal force than that of a purchaser exercising an option. This distinction, however, is open to objection.

Section

If, after the waiting period has ended, he claims that he took her back during it by a verbal declaration or an intention, his claim is not accepted unless it is known that he used to be alone with her or spend the night with her during that period. His claim is then accepted that his being alone with her and spending the night with her were because he had taken her back. Likewise, if he had intercourse with her during the waiting period and says that he intended thereby to take her back, his claim is accepted. This is what is meant by their statement that intercourse constitutes taking her back if he intends it as such: his claim to have intended to take her back is accepted on the strength of the outward evidence of intercourse.

Section

Whoever has intercourse without intending thereby to take her back has committed unlawful intercourse, contrary to Abū Hanīfa’s view, because she is proceeding towards an irrevocable separation from him. The analogous case is that of a woman of the People of the Book who embraces Islam after consummation of the marriage. If he wishes to take his divorced wife back during the remainder of her waiting period, he must do so by a verbal declaration and having it witnessed, not by intercourse. Intercourse with her is not lawful until she has completed the period of abstention required to establish that she is not pregnant from the unlawful intercourse. If he does not take her back before her waiting period expires, she becomes irrevocably separated from him. Neither he nor anyone else may marry her until she has completed that period of abstention—three menstrual periods—to establish that she is not pregnant from the unlawful intercourse.

Section

Scholars differ over whether, if he himself marries her and consummates the marriage before this period of abstention is complete, he is considered to have married during a waiting period, making her permanently forbidden to him. There are two views. Those who hold that the sole reason for permanent prohibition is marrying before the prescribed time, without also requiring confusion over paternity, rule that she becomes permanently forbidden to him, since that reason is present. Those who hold that the reason is marrying prematurely in circumstances where paternity could be confused do not rule that she becomes permanently forbidden to him: the semen is his own, so there is no confusion over paternity. The same reasoning underlies their disagreement concerning a man who divorces his wife three times and then marries her during her waiting period, before she has had another husband.