Ibn al-Qāsim. According to the view that he may not have intercourse, he is granted the waiting period prescribed for a husband who swears to abstain from marital relations if the stipulated deadline is more than four months away. This is the ruling for this category, with two exceptions: first, saying, “My wife is divorced if I do not divorce her”; and second, saying, “My wife is divorced if I do not make her pregnant.”
As for saying, “My wife is divorced if I do not divorce her,” there are three opinions. The first is that divorce takes effect immediately upon his swearing the oath. This treats his words as requiring immediate action, as though he had said, “You are divorced if I do not divorce you this instant.” The second is that divorce does not take effect immediately unless his wife brings her case before the ruler and demands that he resume intercourse. The third is that divorce is not imposed upon him when his wife brings her case; instead, he is granted the waiting period prescribed for abstention from marital relations. He must then divorce her, or divorce will be imposed upon him on grounds of abstention when that period expires. He is not permitted to have intercourse, since it is unlawful for him while his oath remains unfulfilled. If he nevertheless dares to have intercourse, the waiting period for abstention lapses, and a new period is set if his wife brings her case before the ruler. According to this opinion, the purpose of setting that period—even though he is not permitted to resume marital relations through intercourse—is the hope that, during it, she may agree to remain married to him without intercourse.
As for saying, “My wife is divorced if I do not make her pregnant,” he may continue having intercourse with her until he makes her pregnant, because that is how he fulfils his oath. Likewise, if he says to his wife, “You are divorced if I do not have intercourse with you,” he may have intercourse with her, because that is how he fulfils his oath. If he refrains from having intercourse with her, he is treated as a husband who has sworn to abstain from marital relations, according to what is reported from Mālik and al-Layth. Ibn al-Qāsim said that he is not subject to the rules governing such abstention, and this is the correct view.
Section
If the act is something he cannot perform at present—for example, if he says at the beginning of the year, “My wife is divorced if I do not perform Hajj”—there are four opinions. The first is that he is prohibited from having intercourse immediately. This is the apparent meaning of Ibn al-Qāsim’s position in the Book of Oaths of Abstention from Marital Relations in al-Mudawwana, and of ‘Īsā’s report from him in the section on oaths by divorce in al-‘Utbiyya. The second is that he is not prohibited from having intercourse until it becomes possible for him to perform that act. The third is that he is not prohibited from having intercourse until he fears missing the opportunity to perform it. The fourth is that he is not prohibited from doing so until the opportunity to perform that act has passed.