Section Five: Rulings That Become Binding Once Liʿān Is Complete
As for the legal effects of liʿān, the scholars have differed over several issues, among them: Does separation (furqah) become obligatory or not? If it is obligatory, when does it occur? Does it take effect by the mere completion of liʿān or only by a judge’s ruling? And, once it has taken effect, is it classed as a divorce (ṭalāq) or a dissolution (faskh)?
The majority maintain that separation follows automatically from liʿān, relying on the well-known narrations in which “the Messenger of Allah—peace and blessings be upon him—separated the two spouses.” Ibn Shihāb al-Zuhrī, in the report transmitted by Mālik, said, “That became the Sunnah for couples who perform liʿān,” and the Prophet—peace be upon him—also declared, “You have no way back to her.”
ʿUthmān al-Battī and a group of scholars from Basra, however, held that liʿān is not followed by separation. They argued that this ruling is neither contained in the Qur’anic verse on liʿān nor stated explicitly in the hadiths, for in the famous report the husband himself pronounced divorce in the Prophet’s presence—peace be upon him—and the Prophet did not object. Moreover, liʿān was legislated only to avert the ḥadd of false accusation; it was not intended to create a permanent prohibition akin to that established by conclusive testimony.
The majority reply that the spouses have already reached such a degree of estrangement, hostility, abuse, and violation of Allah’s limits that they should never be reunited. Marriage is founded on affection and mercy, and these two have lost both entirely; at the very least, their penalty should be separation. In a word, the ugliness that now exists between them is the height of ugliness.
As for the moment when separation becomes effective: Mālik, al-Layth, and a number of scholars say it takes effect once both parties have completed the oaths of liʿān. Al-Shāfiʿī holds that it takes effect as soon as the husband completes his oaths. Abū Ḥanīfah rules that separation occurs only by a judge’s decree, a view also held by al-Thawrī and Aḥmad.
Mālik’s evidence against al-Shāfiʿī is the ḥadīth of Ibn ʿUmar: “The Messenger of Allah—peace and blessings be upon him—separated the two who had performed liʿān and said, ‘Your reckoning is with Allah; one of you is lying. You have no way back to her,’” and reports indicating that he did not separate them until liʿān had been completed. Al-Shāfiʿī counters that the wife’s liʿān serves only to avert the ḥadd from herself, whereas the husband’s liʿān is what negates paternity; therefore, if liʿān has any effect on separation, it must stem from the husband’s liʿān, by analogy with divorce.
Both scholars argue against Abū Ḥanīfah that the Prophet—peace and blessings be upon him—told the couple that separation had already taken place upon the completion of liʿān, showing that liʿān itself is the cause. Abū Ḥanīfah, however, contends that the separation was effected only by the Prophet’s ruling and command—peace be upon him—when he said, “You have no way back to her.” He therefore views the judge’s decision as a condition for separation, just as it is a condition for the validity of liʿān.
The crux of the dispute is that the Prophet’s act of separating the couple is not explicit in the famous hadith, for the husband hastened to divorce her before the Prophet informed him that separation was obligatory. The basic presumption is that no separation occurs except through divorce and that the Sacred Law contains no permanent prohibition that is universally agreed upon. Hence, whoever gives precedence to this foundational presumption—because the textual implication remains open—denies that separation is obligatory, whereas whoever gives precedence to that implication affirms it.