and refraining from. The second is that it is something he cannot refrain from doing. The third is that it is something he cannot do. If it is something he can either do or refrain from doing, there is no disagreement that divorce does not take effect unless he performs that act. Examples include saying, “My wife is divorced if I strike my slave, enter the house, ride the animal,” or something similar. There is one exception: saying, “My wife is divorced if I have intercourse with you.” This requires further distinctions and is subject to disagreement discussed in the principal legal works. A detailed account will follow in the Book of Oaths of Abstention from Marital Relations. If it is something he cannot refrain from doing, one view holds that divorce takes effect immediately; this is Sahnūn’s position. Another holds that divorce does not take effect until he performs the act, as in the first case; this is the apparent meaning of Ibn al-Qāsim’s position in al-Mudawwana.
Examples include saying, “My wife is divorced if I eat, drink, fast, pray,” or something similar. If it is something he cannot do, one view holds that nothing is binding upon him; this is Ibn al-Qāsim’s position in al-Mudawwana. Another holds that divorce takes effect immediately because he is regarded as regretful; this is Sahnūn’s position, and a similar view is also reported from Ibn al-Qāsim. Examples include saying, “My wife is divorced if I touch the sky, pass through the eye of a needle,” or something similar.
The second form—swearing by divorce that he will perform an act—also involves three possibilities. The first is that the act is something he can either do or refrain from doing. The second is that it is something he cannot do at present. The third is that it is something he cannot do under any circumstances.
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If it is something he can either do or refrain from doing, such as saying, “You are divorced if I do not enter the house,” or “if I do not strike my slave,” or something similar, he is prohibited from having intercourse, because his oath remains unfulfilled, and he can fulfil it only by doing that thing. If his wife brings her case before the authorities, he is granted the waiting period prescribed for a husband who swears to abstain from marital relations. At its expiry, divorce is imposed upon him unless he fulfils his oath by performing the act he swore to perform, or she wishes to remain with him without intercourse. If he nevertheless dares to have intercourse, the waiting period for abstention lapses, and a new period is set for her if she brings the matter before the authorities.
Divorce does not take effect merely because he leaves undone the act he swore to perform, for this is a divorce whose taking effect can be established only by death. If he wishes to incur divorce for breaking his oath, rather than have the ruler impose divorce upon him on grounds of abstention, he may do so—unless he specifies a deadline, saying, “My wife is divorced if I do not do such-and-such by such-and-such a time.” In that case, he may not choose to incur divorce for breaking his oath. He may have intercourse until the deadline, though differing views are reported from