Issue Eight
Must the wife against whom the oath was taken observe a waiting period (ʿiddah), or not? The majority say that a waiting period is incumbent upon her.
Jābir ibn Zayd maintained that no ʿiddah is required of a woman who, during the four-month term, has already experienced three menstrual cycles; a group of scholars concurred, and the view is also transmitted from Ibn ʿAbbās. His proof is that the ʿiddah was instituted solely to ascertain that the womb is clear, and in her case this has already been established. The majority, however, argue that she is deemed divorced and therefore must undergo the ʿiddah like all other divorcees.
The root of the disagreement is that the waiting period embodies both worship and welfare: whoever focuses on the welfare aspect waives the ʿiddah, while whoever regards it as an act of worship makes it obligatory.
Issue Nine
With regard to a slave’s ʿīlāʾ, Mālik held that the term is two months, one-half the period prescribed for a free man, by analogy with the slave’s prescribed penalties and his right of divorce. Al-Shāfiʿī and the Ẓāhirīs responded that his ʿīlāʾ is identical to that of a free man—four full months—invoking the general wording of the verse, for oaths bind free men and slaves alike, and ʿīlāʾ is an oath; they also analogized it to the period granted to an impotent husband. Abū Ḥanīfah, by contrast, argued that any reduction in the term is reckoned with reference to the woman, not the man, just as in the laws of ʿiddah: if the wife is free the full four months apply even when the husband is a slave, whereas if she is a bond-woman the period is halved.
Drawing an analogy between ʿīlāʾ and the ḥadd-penalties is unsound, for a slave’s punishment is lighter only because his offence is deemed less heinous, whereas the term of ʿīlāʾ was fixed to balance the husband’s ease with the wife’s relief from harm. Setting a shorter limit would tighten matters for the husband and more effectively eliminate harm for the wife, and the free man has the stronger claim to leniency; accordingly, on this reasoning no reduction would be warranted except where the husband is a slave and the wife free—yet no jurist has adopted that view. Equity, therefore, dictates equal treatment.
Those who allow slavery to affect the length of ʿīlāʾ differ over what happens once slavery ends: does the case shift to the term for free persons or not? Mālik says it does not; Abū Ḥanīfah says it does, so that if a bond-woman is emancipated after her husband has sworn abstention, the matter transfers to the free person’s four-month term.
Ibn al-Qāsim stated that a minor girl who is not ordinarily subject to intercourse is not liable to ʿīlāʾ; but if an oath is nevertheless made and continues, the four months are counted from the day she reaches puberty, because she suffers no harm from the lack of intercourse. He also said that there is no ʿīlāʾ upon a eunuch or upon anyone incapable of intercourse.
Issue Ten
Is the husband’s return (fayʾ) contingent upon actual intercourse during the ʿiddah? The majority hold that it is not. Mālik, however, ruled that if the husband does not have relations with her during that period without a valid excuse such as illness, his return is ineffective; she remains in her waiting period, and once it ends he no longer has any right to her.
The majority’s evidence is that the matter must be one of two possibilities: either the ʿīlāʾ is reinstated when he takes her back during the ʿiddah, or it is not. If it is reinstated