One of the two sub-opinions is to assume an unexpressed element in the verse—namely, the intention to keep the wife—in which case that intention is a prerequisite for the expiation to become obligatory. The other dispenses with any such ellipsis, so that the mere act of ẓihār itself triggers the expiation.
Out of this discussion several subsidiary questions arose. If the husband divorces her before intending to resume the marriage, or if she dies, is the expiation still binding on him? The majority of jurists say that no expiation is due unless he pronounces the divorce after intending to return, or after having actually kept her for a considerable period, as al-Shāfiʿī stipulates. It is reported from ʿUthmān al-Bettī that the expiation remains obligatory even after divorce, and that if she dies before he has formed the intention to return he may not inherit from her until he pays the expiation—an anomalous view that runs counter to the textual evidence. Allah knows best.
Section Three: Persons with respect to whom ẓihār is valid
The jurists agree that ẓihār is binding when directed at a lawfully wedded wife who is under the husband’s bond. They disagree, however, concerning ẓihār aimed at a female slave, at a woman who is not yet under his bond, and likewise over a woman’s ẓihār against a man.
- Ẓihār with respect to a female slave
Mālik, al-Thawrī, and a number of others maintain that it is binding just as it is with a free wife; the same applies to a mudabbar slave or an umm walad. Al-Shāfiʿī, Abū Ḥanīfah, Aḥmad, and Abū Thawr hold that there is no ẓihār regarding a slave woman. Al-Awzāʿī says: if the master has intercourse with his slave, ẓihār applies; if he does not, the words amount only to an oath and require the expiation for an oath. ʿAṭāʾ says that it does constitute ẓihār but obliges only half the usual expiation.
The proof for those who validate ẓihār of a slave is the general wording of the Almighty’s statement, “Those among you who declare their wives unlawful to them…” (al-Mujādilah 58:3), for slave women are included among “women.”
Those who do not treat it as ẓihār argue that there is consensus that the “women” in His saying, “For those who vow abstention from their wives there is a waiting period of four months” (al-Baqarah 2:226), are those who are actually married; therefore the same term in the verse of ẓihār should be restricted likewise.
Thus the dispute stems from a clash between an analogy based on similarity—namely, likening ẓihār to īlāʾ—and the apparent generality of the word “women.” The general wording demands that slave women be included in ẓihār, while the analogy with īlāʾ suggests their exclusion.
- Must the woman be already under the marital bond?
Mālik holds that this is not a condition. If a man specifies a particular woman and, conditional upon marrying her, says, “She is to me like my mother’s back,” he has made ẓihār in respect of her; the same applies if he does not specify and says, “Every woman I marry is to me like my mother’s back.” This differs from divorce. Abū Ḥanīfah, al-Thawrī, and al-Awzāʿī agree with Mālik on this point.
Others maintain that ẓihār is binding only with respect to what the man presently possesses; among them are al-Shāfiʿī, Abū Thawr, and Dāwūd.
Some scholars draw a further distinction: if the statement is unrestricted—as when he says, “Every woman I marry is to me like my mother’s back”—no ẓihār attaches. If, however, he limits it by saying, “If I marry so-and-so,” or names a particular village or tribe, then ẓihār becomes binding. This was the position of Ibn Abī Laylā and al-Ḥasan ibn Ḥayy.