What action constitutes the 'return' (al-'awd) that obligates expiation (kaffarah) after making the declaration of Zihar?
General Chapter
Al-Mughni
Book of Zihar
Primary text
The return ('awd) is the actual sexual intercourse (al-watu'). Expiation becomes obligatory upon the commission of intercourse, but it is a prerequisite for the permissibility of intercourse. Therefore, the person intending intercourse is commanded to perform the expiation to make the act lawful, similar to being commanded to enter into marriage before approaching a woman. This view is attributed to al-Hasan, al-Zuhri, and is the position of Abu Hanifah. However, Abu Hanifah does not obligate expiation upon the one who performs intercourse, viewing his situation as if he had not performed intercourse regarding the obligation of expiation itself. The evidence for defining 'awd as intercourse is derived from the Quranic verse: "Then they return to what they said" (Quran 58:3), interpreted by Imam Ahmad as 'returning to approach' (al-ghushyan). Expiation is required before physical contact ('alā an yatamāsā) according to the verse, indicating that the act subsequent to the declaration but prior to the expiation is the trigger.
Supporting text
The position of the Qadi and his companions is that 'awd means the firm intention (al-'azm) to have intercourse. However, they do not obligate expiation upon the one who merely intends intercourse if death occurs or divorce happens before the act. Al-Aba al-Khittab dissented, stating expiation is due if death or divorce occurs after the firm intention. This aligns with the view of Malik and Abu Ubayd. Al-Shafi'i holds that 'awd is retaining the wife for a duration in which divorce was possible, because Zihar implies separation, and retaining her constitutes returning to what he declared. Dawud argues 'awd is repeating the Zihar declaration a second time, defining 'awd as repetition.