Is sexual intercourse permissible for a man who divorced his wife after making Zihar against her, even if he remarries her?

General Chapter

Al-Mughni

Book of Zihar

Book 42 · Issue 1 · Bab 1

Open in Qurani

Primary text

Sexual intercourse is not permissible for a man who divorced his wife after making Zihar (a form of irregular divorce stating one's wife is like one's mother) against her until he performs the expiation (*kaffarah*). This applies whether the divorce was a triple divorce or less, and whether the return to her occurred after she married another man or before. This is the position stated by Ahmad, 'Ata, Al-Hasan, Al-Zuhri, Al-Nakha'i, Malik, and Abu 'Ubayd. The evidence for this is the general statement of Allah: "And those who pronounce Zihar concerning their wives and then return to what they have said, then [there must be] the freeing of a slave before they touch each other" (Quran 58:3). Since he has pronounced Zihar against his wife, touching her is unlawful before the expiation, similar to the case where Zihar was pronounced but no divorce followed. Furthermore, the oath of Zihar is an oath requiring expiation, and its ruling is not nullified by divorce, analogous to *Ila'* (vow of abstinence).

Supporting text

Qatadah held that once the separation (due to divorce) occurs, the status of Zihar is nullified; thus, if he remarries her, no expiation is required upon him. Al-Shafi'i has two opinions mirroring the two preceding views, and a third opinion stating that if the separation was by a triple divorce, the effect of Zihar does not return, but if it was otherwise, it returns. This latter view is based on the differing opinions regarding whether the characteristic of divorce recurs in a second marriage contract.