The outward purport of the verse implies obligation, yet likening this right to the other rights that a person may take into his possession suggests that testimony is not required. Reconciling analogy with the verse therefore leads to interpreting the verse as merely recommendatory.

As for their dispute over the act by which reinstatement is effected, one group maintained that it occurs only through a verbal declaration—and this is al-Shāfiʿī’s position.

A second group held that reinstatement can also be effected by intercourse. Those who adopted this view split into two sub-opinions: some said it is valid through intercourse only when the husband intends reinstatement thereby, for in their assessment an act takes the place of speech only when joined to intention; this is Mālik’s opinion. Abū Ḥanīfa, however, deems intercourse sufficient whether or not the husband consciously intends reinstatement, though intention is preferable.

Al-Shāfiʿī likens reinstatement to the marriage contract itself and argues that Allah has commanded witnessing, which in his view can apply only to spoken words.

The reason for the divergence between Mālik and Abū Ḥanīfa is that Abū Ḥanīfa regards the revocably divorced wife as lawful for intercourse, by analogy with the wife from whom an oath of abstention (ilāʾ) has been sworn and with the wife subjected to ẓihār. In his view the proprietary bond has not ceased—hence inheritance still passes between them. Mālik, by contrast, rules that intercourse is forbidden until the husband formally reinstates her; accordingly, intention is indispensable.

Such, then, is their disagreement over the conditions for a valid reinstatement.

They also differed over how much of the revocably divorced woman the husband may look at while she remains in her waiting-period. Mālik says: he must not be alone with her, nor may he enter upon her without her permission; he may not look at her hair; and there is no harm in their eating together provided a third person is present. Ibn al-Qāsim reports that Mālik later retracted even the concession of eating with her.

Abū Ḥanīfa says: there is no objection to the revocably divorced wife adorning herself for her husband, perfuming herself, showing her charms, and exposing her hands and the kohl around her eyes. This is also the position of al-Thawrī, Abū Yūsuf, and al-Awzāʿī. All of them stipulate, however, that he must not enter upon her unless she is aware of his presence through speech or some audible sign—such as clearing his throat or the sound of his sandals.

They further disagreed about the case of a man who, while absent, pronounces a single revocable divorce against his wife and later reinstates her; the divorce reaches her but the reinstatement does not, so when her waiting-period expires she contracts a second marriage. Mālik—this is the view recorded in his al-Muwaṭṭaʾ, and shared by al-Awzāʿī and al-Layth—held that she now belongs to the man who contracted the new marriage with her, whether or not it has been consummated. Ibn al-Qāsim reports that Mālik later retracted this and said: the first husband has the stronger claim unless the second has consummated the marriage. Mālik’s companions in Medina adhere to his original position, asserting that he never abandoned it, for it remained in his Muwaṭṭaʾ until his death. That first view is also attributed to ʿUmar ibn al-Khaṭṭāb, from whom Mālik narrates it in the Muwaṭṭaʾ.

Al-Shāfiʿī, the scholars of Kūfa, Abū Ḥanīfa and others—among them Dāwūd and Abū Thawr—say that the first husband who reinstated her has the better right, whether or not the second marriage has been consummated. This opinion is also reported from ʿAlī and is the clearest.

A report from ʿUmar ibn al-Khaṭṭāb (may Allah be pleased with him) states that in such a case the husband who reinstated her is given the choice either to keep her as his wife or to reclaim from her the bridal-gift he had given.

Mālik’s proof for his first narration is what Ibn Wahb transmitted from Yūnus, from Ibn Shihāb, from Saʿīd ibn al-Musayyab, who said: “The Sunnah has been established that when a man divorces his wife, then takes her back but conceals the reinstatement from her until her waiting-period ends and she marries another husband, then he has no …”