The second party argued that the Qur’anic passage on liʿān contains no stipulation that the husband be subjected to the ḥadd if he refuses to swear. To infer such a penalty, they said, amounts to adding to the revealed text, and in their view any addition is tantamount to abrogation—something that cannot be established by analogy or by solitary reports.
They further maintained: Had the ḥadd actually been due, resorting to liʿān would not avail the husband, nor would it have any effect in removing the penalty, for liʿān is nothing more than an oath. Since an oath cannot avert the ḥadd from a stranger who slanders, it should likewise be ineffective for a husband.
The correct view, however, is that liʿān constitutes a sui generis oath and therefore carries a sui generis ruling. Revelation explicitly declares that the wife’s oath wards off “the punishment” from her; the question is: What precisely is the punishment that her oath removes?
Because the word “punishment” is subject to more than one meaning, the jurists also disagreed over what becomes obligatory upon her if she refuses to swear. Al-Shāfiʿī, Mālik, Aḥmad, and the majority hold that she incurs the ḥadd: if the marriage had been consummated and the conditions of legal “fortification” (iḥṣān) are met, the ḥadd is stoning; if not, it is flogging. Abū Ḥanīfah, by contrast, rules that a recusant wife is to be detained until she completes liʿān. His evidence is the Prophet’s saying—peace and blessings be upon him: “The blood of a Muslim may be shed only in three cases: adultery after marriage, apostasy after faith, or killing a person without right.”
He further argues that putting someone to death merely for refusing to swear contravenes basic legal principles: many jurists do not impose financial liability for refusal, so how could blood-shedding be required? In sum, the Sharīʿah principle governing life is that blood is not spilled except by upright testimony or by confession, and this principle ought not to be overridden on the basis of an equivocal term. Hence, Abū Ḥanīfah’s position in this matter is closer to the truth, God willing—a point acknowledged even by Abū al-Maʿālī al-Juwaynī in his Burhān, though he himself is a Shāfiʿī.
All are agreed that if the husband later declares himself a liar, the ḥadd is enforced against him and the child—if one had been disavowed—is re-affiliated with him.
They then differed over whether he may take his wife back after the majority have stipulated that separation becomes obligatory through liʿān, whether by the act itself or by a judge’s decree, as will be discussed later. Mālik, al-Shāfiʿī, al-Thawrī, Dāwūd, Aḥmad, and the great majority of jurists in the major centers hold that the couple may never reunite, even if he retracts. Abū Ḥanīfah and a group of others say that if he recants he is flogged for slander but thereafter stands as any other suitor; some even say the wife is automatically returned to him.
The first group’s proof is the Prophet’s statement—peace and blessings be upon him—“You have no way back to her,” delivered without exception, thereby rendering the prohibition absolute. The second group replies that once he brands himself a liar, the legal force of liʿān collapses: just as the child reverts to his lineage, so the wife should revert to him. For the very cause of prohibition was uncertainty over which of the two was truthful while knowing that one of them must be lying; when the truth is uncovered, the prohibition falls away.