to resume marital relations or to divorce, once the wife has made her demand. Resumption means returning from what he had declared by having intercourse, if he is able to do so; if he is unable, then it is effected verbally. If he neither resumes relations nor divorces, the authority pronounces one divorce against him.
The view that the husband is to be brought before the authority after the term has elapsed was held by ‘Umar, ‘Uthman, ‘Ali, Abu al-Darda’, and Ibn ‘Umar. Sulayman ibn Yasar said: “I met more than ten of the Companions of the Prophet, peace and blessings be upon him, all of whom held that the husband who had sworn abstinence should be brought before the authority.” This was also the view of Sa‘id ibn Jubayr, Sulayman ibn Yasar, and Mujahid, and was adopted by Malik, al-Shafi‘i, Ahmad, and Ishaq.
Some scholars said: “Once four months have passed, one irrevocable divorce takes effect.” This was the view of Ibn ‘Abbas and Ibn Mas‘ud, and was also held by Sufyan al-Thawri and the adherents of legal opinion.
Sa‘id ibn al-Musayyib and al-Zuhri said: “One revocable divorce takes effect.” If a man swears not to have intercourse with his wife for less than four months, he is not considered to have made an oath of abstinence; rather, he has merely sworn an oath. Thus, if he has intercourse with her before that period has elapsed, he must offer expiation for breaking an oath. If he swears not to have intercourse with her for four months, he is not considered to have made an oath of abstinence according to those who hold that he is to be brought before the authority after the term has elapsed, because some of the term must remain as a condition for bringing him before the authority and for the wife’s right to demand either resumption of relations or divorce; yet the term has already elapsed. According to those who do not hold that he is to be brought before the authority, he is considered to have made an oath of abstinence, and divorce takes effect when the term ends.
According to al-Shafi‘i, may Allah have mercy on him, the period of an oath of abstinence is four months for both the free man and the slave, because it was set in consideration of something relating to natural disposition: a woman’s limited endurance of separation from her husband. Thus, the free man and the slave are alike in this respect, just as they are alike regarding the period allowed in cases of impotence.
According to Malik, may Allah have mercy on him, and Abu Hanifah, may Allah have mercy on him, the period allowed in cases of impotence is halved on account of slavery. However, according to Abu Hanifah, it is halved due to the wife’s slave status, whereas according to Malik, it is halved due to the husband’s slave status, just as they both held concerning divorce.
Regarding His saying, Exalted is He, “a waiting period of four months”: that is, waiting for four months. Waiting means deliberation and holding back. “If they return”: that is, if they return from their oath by having intercourse, “then Allah is All-Forgiving, Most Merciful.” Once he has intercourse, he ceases to be bound by the oath of abstinence, and, according to most scholars, he must offer expiation for breaking an oath. Al-Hasan, Ibrahim al-Nakha‘i, and Qatadah said that no expiation is due from him, because Allah, Exalted is He, promised forgiveness when He said, “then Allah is All-Forgiving, Most Merciful.” According to the majority, however, this refers to the removal of punishment, not to exemption from expiation.
If he says to his wife, “If I approach you, then my slave is free,” or, “You are divorced,” or, “I owe Allah the freeing of a slave, fasting, or prayer,” then he has made an oath of abstinence, because one who makes such an oath is one for whom intercourse entails an obligation. After the term has elapsed, he is brought before the authority. If he resumes relations, the divorce or the manumission made conditional upon it takes effect. If he has undertaken an obligation personally, then according to one view he must offer expiation for breaking an oath; according to another view, he must fulfill what he undertook personally of manumission, prayer, or fasting.
“And if they resolve upon divorce”: that is, if they confirm it by pronouncing it. “Then Allah is All-Hearing, All-Knowing,” of their intentions. This indicates that she is not divorced merely upon the passing of the term unless her husband divorces her, for He made resolve a condition in this matter and said, “Then Allah is All-Hearing, All-Knowing.” This shows that it requires something audible, and it is the spoken pronouncement that is heard.
Regarding His saying, Exalted is He, “Divorced women”: that is, women released from the bonds of their husbands. “Shall wait”: that is, they shall refrain from remarrying. “By themselves for three quru’”: the term quru’ is the plural of qar’, like far‘; its lesser plural is aqru’, while its more common plural is aqra’. The scholars differed over this term.