Book of ʿĪlāʾ (Oath-Abstinence)

The foundational proof-text for this chapter is the Almighty’s statement:

“For those who swear abstinence from their wives there is a waiting period of four months.” (al-Baqarah 2:226)

ʿĪlāʾ is for a man to swear that he will not have marital relations with his wife—either for a term that exceeds four months, for exactly four months, or without specifying any period at all, according to the differing opinions that will follow.

The jurists of the various regions disagreed about ʿīlāʾ on several points:

• Is the wife automatically divorced upon the expiry of the four months set by the Qur’anic text for the muʾlī, or is she divorced only after the husband is summoned, once the four months have passed, and then either resumes relations or divorces her?

• Is ʿīlāʾ constituted by every kind of oath, or only by oaths whose wording is permissible in the Sharīʿah?

• If the husband merely refrains from intercourse without taking an oath, is he deemed a muʾlī or not?

• Is a muʾlī only the one who ties his oath to a period of four months or more, or is every unqualified oath of abstinence also ʿīlāʾ?

• Is the divorce that results from ʿīlāʾ irrevocable (bāʾin) or revocable (rajʿī)?

• If the husband refuses both divorce and resumption of relations, may the judge pronounce divorce on his behalf, or not?

• Does ʿīlāʾ recur if he divorces her, then takes her back, without issuing a new oath in the second marriage?

• Is actual intercourse during the waiting period a condition for his revocation (rujūʿ), or not?

• Does the ʿīlāʾ of a slave carry the same ruling as that of a free man?

• If he divorces her after the term of ʿīlāʾ has ended, must she observe a waiting period (ʿiddah) or not?

These are the principal disputed questions of ʿīlāʾ among the jurists of the various lands—issues that, within this chapter, assume the rank of foundational principles. We shall present their disagreements on each question in turn, together with the chief evidences they adduce and the reasons for their divergence, as we have intended.

Issue One

The first dispute concerns whether the wife is divorced by the mere lapse of the four months, or whether the ruling is that the husband is summoned: he must either resume relations or pronounce divorce.

Mālik, al-Shāfiʿī, Aḥmad, Abū Thawr, Dāwūd, and al-Layth held that once the four months expire the husband is brought before the judge; he must then either resume marital relations or issue a divorce. This is also the view of ʿAlī and Ibn ʿUmar, notwithstanding other opinions reported from them—the sound position is the one just stated.

Abū Ḥanīfah, his companions, and al-Thawrī—the Kūfan jurists generally—maintained that divorce takes effect automatically when the four-month period ends, unless the husband resumes relations within that time. This is likewise the opinion of Ibn Masʿūd and a group of the Successors.

The cause of the disagreement is whether the Almighty’s words,

“But if they return, surely Allah is All-Forgiving, Most Merciful.” (al-Baqarah 2:226)

mean: if they return before the four months expire, or after they have expired. Those who understood it to refer to a return before the period ends said that divorce falls, and for them the “firm resolve” mentioned in His saying,

“But if they decide on divorce, Allah is All-Hearing, All-Knowing.” (al-Baqarah 2:227)