the scholars: “Ibn al-Mājishūn’s statement that a comparison to a woman outside the prohibited degrees of marriage does not constitute zihār applies in the cases of having no particular intention and of intending divorce. But if he says, ‘I intended zihār by that,’ then zihār becomes binding upon him if he remarries her after she has been married to another man. Divorce is held binding on account of his words, and zihār on account of his intention.” The correct understanding of his position, however, is that a comparison to a woman outside the prohibited degrees does not make zihār binding, even if that is what he intends, just as a comparison to a woman within the prohibited degrees does not make divorce binding, even if that is what he intends. There is no distinction between the two cases.

The second position is Abū Zayd’s report from Ashhab: a comparison to a woman outside the prohibited degrees constitutes zihār whether or not he mentions the back. The third is Ibn al-Qāsim’s position in al-Mudawwana: if he mentions the back, it constitutes zihār unless he intends divorce; if he does not mention it, it constitutes divorce. His claim that he intended zihār is accepted only if he comes seeking a religious ruling. If he does not come seeking a ruling and witnesses testify against him, divorce is held binding on account of the words to which they testify, and zihār on account of the intention he acknowledges. If he remarries her after she has been married to another man, he may not have intercourse with her until he has offered the expiation for zihār. This follows from his position, although I know of no explicit statement from him on this point.

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Zihār falls into two categories: unqualified and qualified, exactly as divorce does. Unqualified zihār is when a man says to his wife, “You are to me like my mother’s back.” Qualified zihār falls into the same categories into which we divided divorce tied to a condition in our earlier discussion in the Book of Oaths of Divorce. The rulings follow the same pattern in every category. Whatever constitutes an oath of divorce constitutes an oath of zihār, [and whatever does not constitute an oath of divorce does not constitute an oath of zihār]. In cases where divorce must take immediate effect, [zihār must take immediate effect], and he may not have intercourse until he has offered the expiation. Where divorce need not take immediate effect, neither need zihār. Whatever brings the rules of īlā’ (sworn abstention from marital intercourse) into effect for one who swears an oath of divorce also brings them into effect for one who swears an oath of zihār. Reflect on this and apply it by analogy, Allah willing.