When does the expiation (Kaffarah) for Zihar become obligatory?
General Chapter
Al-Mughni
Book of Zihar
Primary text
The expiation for Zihar is not obligatory merely upon uttering the declaration of Zihar. It becomes mandatory only upon the act of 'returning' (Al-'Awud), which is defined as intercourse (Wati). This view is held by 'Ata, Al-Nakha'i, Al-Awza'i, Al-Hasan, Al-Thawri, Malik, Abu Ubayd, and the proponents of the *Ra'y* school. The evidence is derived from the divine statement: "And those who make such a pronouncement regarding their wives and then return to what they have said, then [there must be] the freeing of a slave..." (Quran 58:3). This verse explicitly requires both the Zihar and the return ('Awud) for the expiation to be established, meaning one action alone is insufficient. Furthermore, the expiation in Zihar is analogous to the expiation of an oath without its breach (Hanith); the breach here is the act that was sworn against abstaining from, which is sexual intimacy, not merely refraining from divorce.
Supporting text
A dissenting opinion holds that the expiation is due immediately upon uttering the Zihar because it is the established cause for the expiation, and it has occurred. This position is taken by Tawus, Mujahid, Al-Sha'bi, Al-Zuhri, Qatadah, and others. Imam Al-Shafi'i states that if a man retains his wife after Zihar for a period during which he could have divorced her, the expiation becomes due, as he considers this retention itself to be the 'return' ('Awud).