“The First Stratagem”

This concerns the matter to which the oath relates: it is interpreted for them contrary to what they intended and contrary to what the wording signifies in ordinary usage and custom. This is what some writers on jurisprudence have described under the headings “The Chapter on Riddles” and “The Chapter on Stratagems Concerning Oaths.” Most of this consists of things whose impermissibility is necessarily known in the religion, and the oath-taker’s words cannot legitimately be construed in such ways. For this reason, the imams, such as Ahmad and others, sternly condemned those who employed stratagems concerning these oaths.

“The Second Stratagem”

When they cannot devise a stratagem concerning the wording of the oath, they devise one concerning the act to which it relates. They instruct the man to dissolve his marriage through khulʿ (marital dissolution in return for compensation), so that he may perform the act covered by the oath while the marriage is dissolved. This stratagem is more recent than the preceding one, and I think it arose around the third century AH. Most stratagems originated with certain Kufans, but the khulʿ stratagem does not work according to their principles. They hold that if he performs the act covered by the oath during the waiting period, divorce takes effect, because, in their view, a woman observing the waiting period following an irrevocable separation remains subject to divorce. Someone employing this stratagem would therefore have to wait until the waiting period ends, then perform the act covered by the oath. This causes him hardship because of the length of time involved. Some followers of al-Shāfiʿī thus began issuing fatwas permitting this stratagem.

Sometimes they combined it with one of his two views, which agrees with the better-known of the two positions reported from Ahmad: that khulʿ is an annulment, not a divorce. Thus, whenever the oath-taker wishes to break his oath, he dissolves his marriage through khulʿ, performs the act covered by the oath, and then remarries her. They may rule either that this reduces the number of divorces remaining to him or that it does not. This form of khulʿ, known as “khulʿ to circumvent oaths,” is exactly like a marriage contracted to make a thrice-divorced woman lawful again for her former husband. For the latter