The evidence cited by the first group is the Almighty’s statement, “Fulfil the covenants” (al-Māʾidah 5:1). They say that because the man made the declaration contingent on a future acquisition of ownership, it resembles the case in which ownership is already in his hand; moreover, “The believers are bound by their conditions,” as ʿUmar (may Allah be pleased with him) said.

Al-Shāfiʿī’s proof, however, is the ḥadīth of ʿAmr ibn Shuʿayb—through his father, from his grandfather—in which the Prophet ﷺ declared: “No divorce is valid except over what one owns; no manumission except over what one owns; no sale except over what one owns; and no fulfillment of a vow except over what one owns.” Abū Dāwūd and al-Tirmidhī related it. Since ẓihār is akin to divorce, Ibn ʿAbbās held the same view.

Those who distinguish between an unrestricted and a specific formulation argue that making ẓihār in general terms entails hardship, whereas Allah the Exalted has said, “He has laid no hardship upon you in the religion” (al-Ḥajj 22:78).

From this discussion another issue arises: may a woman pronounce ẓihār against a man? The scholars hold three opinions:

1. The most widely held view—maintained by Mālik and al-Shāfiʿī—is that her words do not constitute ẓihār at all.
2. A second view is that she must pay the expiation for an oath.
3. A third holds that she owes the full expiation for ẓihār.

The majority favor the first view because they liken ẓihār to divorce. Those who obligate the expiation of an oath compare ẓihār to an oath, while those who strike a middle path say that the very least she should incur is the expiation for an oath—an argument they concede is weak. The divergence stems from these competing considerations.

Section Four: What is forbidden to the man who has pronounced ẓihār

The jurists agree that sexual intercourse becomes unlawful for the husband once he has made ẓihār. They differ, however, regarding lesser forms of intimacy—such as touching, non-vaginal intercourse, and looking with desire.
• Mālik holds that both intercourse and every other form of sexual enjoyment—penetration outside the vagina, touching, kissing, and gazing lustfully at any part of her body, beauty, or adornment other than her face and hands—are prohibited.
• Abū Ḥanīfah concurs, except that he only disapproves of looking at the vagina itself.
• Al-Shāfiʿī maintains that ẓihār forbids only vaginal intercourse, the point on which there is consensus; nothing beyond that is unlawful. This is also the view of al-Thawrī, Aḥmad, and others.

Mālik’s evidence is the Almighty’s words: “before the two of them touch one another” (al-Mujādilah 58:3). The plain sense of “touch” (tamās) covers direct physical contact and anything beyond it. Since the utterance renders the woman unlawful to him, it resembles the wording of divorce.

Al-Shāfiʿī replies that “touch” is a euphemism for intercourse, as evidenced by their consensus that intercourse itself is forbidden. Once the term is taken to denote intercourse, it cannot simultaneously indicate what is above intercourse. Its figurative meaning is thus confined to intercourse alone, and any further implication is negated.