Section

What constitutes a return to marital relations for a man who has sworn to abstain varies according to his oath. Where he cannot release himself from it before breaking it, his return can only be through intercourse. Where he can release himself from it both outwardly and inwardly before breaking it, his release from the oath is accepted as his return. [Where he can release himself from it outwardly, while its true inward status is known only to him, there is disagreement over whether his return is accepted through his releasing himself from the oath] outwardly; there are two opinions.

If he has an impediment that prevents intercourse, such as illness, travel, menstruation, postnatal bleeding, or the like, his oath must fall into one of the three categories mentioned:

The first is an oath from which he cannot release himself before breaking it, such as one involving the freeing of an unspecified slave, giving an unspecified thing in charity, or the like.

The second is an oath from which he can release himself before breaking it through a manifest act, so that it is known that the oath has been dissolved by his carrying out the act stipulated in it. An example is swearing not to have intercourse with his wife on pain of freeing a particular slave, or of divorcing another of his wives three times, or the like.

The third is an oath from which he can release himself inwardly, without this being outwardly known except through his own account, such as an oath by Allah Most High, or one whose expiation is the same as that for an oath by Allah Most High.

If his oath is one from which he cannot release himself before breaking it—such as one involving the freeing of an unspecified slave, or a similar obligation of charity, walking, fasting, or the like—a verbal declaration of return suffices until the impediment ceases. He is then required either to resume intercourse or to divorce. This is because freeing a slave or giving something in charity before intercourse neither releases him from his oath nor ends his sworn abstention when no particular slave or item was specified. This is the well-known position, supported by reasoned consideration and analogy. It has, however, been related from Mālik that if a man swears to abstain on pain of freeing an unspecified slave, then frees a slave on that account before breaking his oath, this suffices. This appears in the Book of Zihār in al-Mudawwana, and a similar statement appears in Ibn al-Mawwāz’s book. This view, however, is difficult to sustain.

But if his oath involves freeing a particular slave, giving a particular thing in charity, or a similar obligation involving something specifically designated, a verbal declaration of return is not accepted unless he frees the slave whose freedom he stipulated in his oath or gives in charity