What happens if a husband refuses physical restitution after the waiting period, or refuses restitution after his excuse ends, or refuses intercourse after his excuse vanishes?
General Chapter
Al-Mughni
Book of the Oath of Abstention (Ila')
Primary text
If the husband refuses restitution after the prescribed period, or if the excused husband refuses verbal restitution, or if he refuses intercourse after his excuse is removed, he is ordered to divorce. If he divorces, the divorce he issues takes effect, whether one or multiple. The judge cannot compel him to issue more than one divorce because a single divorce fulfills her right, leading to final separation and removal of harm.
Supporting text
If he refuses divorce, the judge divorces on his behalf. This is the position of Malik. There is another narration from Ahmad that the judge cannot effect the divorce because in matters where the husband has a choice between two things (like choosing among wives upon converting to Islam), the judge does not step into his position. Therefore, he is imprisoned and pressured until he either fulfills his duty or divorces. Al-Shafi'i has two opinions reflecting these two narrations. The sounder view in the school is that where deputization is applicable, and the right of the claimant is determined, and the obligor refuses, the judge acts in his place, like settling a debt, and this differs from choosing wives where the right is not determined.