for an irrevocable divorce once the four months have elapsed.
The soundest opinion, in our judgment, is that of Mālik and his companions: the husband who has undertaken ilāʾ is not obliged to divorce until the ruler, at the wife’s request, summons him and orders him either to resume conjugal relations—thereby reinstating his wife through intercourse and paying the expiation for his oath—or to pronounce divorce. The ruler will not release him until he does one or the other. In this context, “return” means actual intercourse with a woman who can lawfully be approached.
This applies when the wife is of age or otherwise fit for intercourse. She is free either to press her claim or to remain silent, and her silence does not prejudice her so long as she brings the matter during the ilāʾ period.
The husband’s deadline is counted from the day he swore the oath, not from the day his wife lodges her complaint or brings him before the judge. If she does sue him and will not accept his refusal to have intercourse, the judge grants him four months starting from the day of the oath, not from the day of litigation. Should he then have intercourse, he has returned to the wife’s right and must expiate for his oath; if he refuses, divorce is pronounced against him, and that divorce is revocable.
If the term expires while the husband is ill, absent, or insane, the case is suspended until his situation changes; once able, he must expiate for his oath, otherwise divorce is ordered on his behalf. Some maintain that, in the case of illness, if he verbally declares his return yet has not paid the expiation, no divorce is pronounced until he recovers; once healthy, he must either resume or be divorced, and if divorce is pronounced against a sick man who then dies of that illness, his wife inherits from him.
Mālik gave two different statements about the point at which the husband’s return is recognised and when divorce is ordered. On one occasion he said that this is within the four months, and that if the period ends without a return the judge divorces them without first ordering him to resume relations. At another time he said that the four months constitute only a period of leeway and that the summons comes afterwards; this is the more common view and, God willing, the correct one. If, after the summons, the husband says, “I will resume,” yet shows obstinacy and procrastination, the judge tells him, “If you touch her by such-and-such a day, otherwise divorce will be ordered against you.” If he still fails to comply within the time set, the judge separates them by pronouncing divorce on his behalf. And if the husband’s deadline arrives while the wife is menstruating