Al-Baqarah: (226-227) For those who swear off approaching their wives...

Issues in the Verse:

The linguistic root of Ila' (آلى) is related to swearing an oath. The terms Ila' (إيلاء), Qasam (قسم), Yamin (يمين), and Hulf (حلف) all denote the same concept (swearing).

In common usage, Ila' specifically refers to an oath to abstain from sexual intercourse with one's wife (e.g., saying, "By God, I will not approach you").

Some exegetes suggest an implied word in the verse: "For those who swear off [i.e., abstain from approaching] their wives..." However, I argue that this implication is only necessary if we adhere to the purely linguistic meaning of Ila'. If we adopt the meaning established by Islamic Law (Shar'i usage), the implication is unnecessary.

It is narrated that in the Jahiliyyah (pre-Islamic era), Ila' was equivalent to divorce. Sa'id ibn al-Musayyab reported that a man would swear not to approach his wife if he neither wanted her nor wished for another man to marry her, thereby leaving her in limbo—neither divorced nor fully married. This was done to harm the woman.

Islam abolished this practice, granting the husband a specified period (four months) to reflect. If he sees benefit in ceasing the harm, he may resume relations; otherwise, he should separate from her.

Recitations: 'Abdullah ibn Mas'ud recited: {يُؤْلُونَ مِنْ نِسَائِهِمْ} (yu'lūna min nisā'ihim). Ibn 'Abbas recited: {يُقْسِمُونَ مِنْ نِسَائِهِمْ} (yuqsimūna min nisā'ihim).

The Preposition 'Min' (مِنْ): Why is the preposition min (from/of) used here instead of the usual 'ala (upon) when swearing (e.g., "He swore upon something")?

1. It implies a duration: "They swear off [abstaining from] their wives for a period of four months."
2. The oath implicitly includes the meaning of distancing or separation, as if saying: "They distance themselves from their wives while swearing or taking an oath."

The Duration: {تَرَبُّصُ أَرْبَعَةِ أَشْهُرٍ} (tarabbusu arba'ati ashhurin - waiting for four months).

• Tarabbus means remaining or waiting.
• The addition of the duration to the verbal noun (masdar) is like saying, "A day's journey between them" (a journey within a day).

The Return (Fa'ū): {فَإِنْ فَآؤُوا} (fa-in fā'ū) means "if they return."

• Linguistically, Fay' (فَيْء) is the return of something to its previous state. This is why the shadow that returns in the afternoon (after the sun has passed its zenith) is called Fay', while the morning shadow is called Zill (ظل).
• In this context, it means they return from what they swore upon—abstaining from intercourse.
• {فَإِنَّ اللَّهَ غَفُورٌ رَحِيمٌ} (fa-inna Allāha Ghafūrun Rahīm): God is Forgiving and Merciful to the husband who repents from harming his wife, just as He is to all who repent.

The Resolution to Divorce: {وَإِنْ عَزَمُوا الطَّلَاقَ} (wa-in 'azamū aṭ-ṭalāq).

• Azm (عزم) is the firm resolution of the heart.
• Ṭalāq (طلاق) is the dissolution of the marriage contract according to Islamic law. Its root implies release or departure, thus signifying the release of the wife from the marriage bond.

Rulings Derived from the Verse:

Any husband capable of intercourse whose actions are recognized by Shar' can validly perform Ila'. This principle applies both ways (positively and negatively).

Consequences (Positive Application):

1. Validity for a Non-Muslim Husband (Dhimmi): Valid, according to Abu Hanifa. Abu Yusuf and Muhammad hold that Ila' sworn by God is invalid for him, but Ila' sworn by divorce or manumission is valid. The basis for validity is the general scope of the verse: {لِلَّذِينَ يُؤْلُونَ مِنْ نِسَائِهِمْ} which includes the disbeliever and the Muslim.

2. Duration and Status (Free/Slave):
   • Shafi'i: The duration is always four months, regardless of whether the husband or wife (or both) are free or enslaved, because the underlying reason relates to natural disposition and patience, which is equal in both states (like menstruation or 'Innah period).
   • Abu Hanifa & Malik: The period is halved if either party is enslaved. Abu Hanifa bases this on the enslavement of the wife; Malik bases it on the enslavement of the husband, similar to their ruling on divorce duration.

3. State of Mind: Ila' is valid in states of both contentment and anger. Malik holds it is only valid in anger, based on the verse's apparent context.

4. Validity for a Woman: Ila' is valid from a woman if she is currently married or if she is in the revocable waiting period ('Iddah Raj'iyyah), as she is still considered one of his wives.

*Consequences (Negative Application - Who cannot perform Ila'):*

1. Eunuch (Khasi): Valid. He is capable of intercourse, even if ejaculation is absent, which has no legal effect here. He falls under the general scope of the verse.

2. Castrated Man (Mabjūb): If he retains the capacity for intercourse, his Ila' is valid. If he has lost all capacity, there are two opinions:
   • Abu Hanifa: Invalid.
   • Second Opinion: Valid, due to the general scope of the verse, as the intent to harm through the oath is still present.

The Condition of Being a Husband: Ila' is only valid if the person is a husband. If a man swears not to approach a non-wife, and later marries her, he is not considered to have performed Ila' under this ruling, as the verse specifies the ruling applies "to those who swear off their wives."

The oath can be by God or by something else.

If sworn by God: The husband is considered to have performed Ila'. If he has intercourse during the four months, he leaves the state of Ila'.

• Is the expiation for the oath (Kaffārat al-Yamin) due?
  • New Opinion (More Correct): Yes, the expiation is due (Abu Hanifa's view).
  • Old Opinion: No expiation is due if he returns (repents) either during or after the period.
  • Argument for Old Opinion: The verse states: {فَإِنَّ اللَّهَ غَفُورٌ رَحِيمٌ}. This implies the removal of accountability. Furthermore, if expiation were required, God would have mentioned it, as the need for clarification is present here.
  • Rebuttal: God did not mention it here because it is explained elsewhere in the Quran and by the Prophet (PBUH). The terms Ghafur (Forgiving) and Rahim (Merciful) indicate the removal of punishment, but not necessarily the removal of an obligation (like a penalty for breaking an oath, similar to how a repentant murderer still faces retribution/punishment).

If sworn by something other than God: (e.g., "If I approach you, my slave is free," or "you are divorced," or "your co-wife is divorced," or dedicating an act of worship like charity or Hajj).

• Shafi'i has two opinions:
  • Old Opinion (and apparent view of Ahmad): He is not considered to have performed Ila'. Rationale: Ila' in the Jahiliyyah was specifically an oath by God, and the Prophet (PBUH) said, "Whoever swears, let him swear by God."
  • New Opinion (Abu Hanifa, Malik, and a group): He is considered to have performed Ila', as the term Ila' linguistically covers all oaths.
  • If the oath is valid (under the New Opinion): If he swore manumission or divorce, it takes effect upon intercourse. If he swore an act of worship, the ruling follows that of a conditional vow (Nadhir al-Lajāj), with three views: 1) Only the expiation of the oath is due. 2) He must fulfill what he named. 3) He chooses between expiation and fulfillment.
  • Significance of the difference: If he is deemed to have performed Ila', his situation becomes constrained after four months, forcing him to either return or divorce. If not, the constraint does not apply.

There are differing opinions on the required duration:

1. Ibn 'Abbas: Ila' only occurs if he swears never to approach her again.
2. Hasan al-Basri & Ishaq: Any duration sworn upon constitutes Ila', even one day. (These two views are extremely far apart).
3. Abu Hanifa & Al-Thawri: Ila' only occurs if he swears not to approach her for four months or more.
4. Shafi'i, Ahmad, & Malik: Ila' only occurs if the duration exceeds four months.

Difference between Abu Hanifa and Shafi'i: If the husband swears for more than four months (e.g., five months), Shafi'i holds that he waits four months. This period becomes a right for the wife. After four months, she demands he either returns (Fay') or divorces. If he refuses, the judge divorces her on his behalf. Abu Hanifa holds that divorce occurs automatically upon the expiration of the four months.

Shafi'i's Arguments (Against Abu Hanifa):

1. The Structure of the Consequences: The structure {فَإِنْ فَآؤُوا... وَإِنْ عَزَمُوا الطَّلَاقَ...} implies that these two outcomes (return or resolve to divorce) are legislated after the four months have passed.
   • Counter-argument: This structure is merely a detailed explanation of the initial statement {لِلَّذِينَ يُؤْلُونَ... تَرَبُّصُ أَرْبَعَةِ أَشْهُرٍ}, meaning the ruling applies immediately after the Ila' and the completion of the waiting period.
   • Rebuttal: The structure here links the consequences directly to the mention of Ila' and the waiting period, implying they follow immediately, unlike an analogy where the consequence follows a condition stated earlier.

2. The Husband's Action: {وَإِنْ عَزَمُوا الطَّلَاقَ} explicitly states that divorce occurs through the husband's action (resolution/pronouncement). Abu Hanifa's view implies divorce occurs automatically upon time expiration, without the husband's action.
   • Counter-argument: Ila' itself is divorce.
   • Rebuttal: This is unlikely. {وَإِنْ عَزَمُوا الطَّلَاقَ} means "And if those who swore off approach resolve upon divorce." This requires the Ila' and the Azm (resolution) to coincide, and divorce is the consequence of the Azm. Since Ila' precedes or accompanies the Azm, the divorce mentioned here must be distinct from the initial Ila'.

3. The Threat: {فَإِنَّ اللَّهَ سَمِيعٌ عَلِيمٌ} implies that something audible must proceed from the husband. This means the verse implies: "If they resolve upon divorce and pronounce it, then God hears their speech." The threat is tied to an action following the Ila'.

4. The Choice: The verse presents a choice between two actions (returning or resolving to divorce), suggesting the time for both options is the same, which contradicts Abu Hanifa's view where divorce happens automatically at the end of the period.

5. *Nature of Ila':* Ila' itself is merely an oath to abstain for a specific period, not divorce. The law sets a long period (four months) because short periods might occur without malicious intent. Long periods imply intent to harm. When this intent is established, the law requires either ceasing the harm or releasing her from the bond of Ila'. This mirrors setting a time limit for the impotent husband ('Inni).
   • Argument for Abu Hanifa: 'Abdullah ibn Mas'ud recited a variant: {فَإِنْ فَآؤُوا فِيهِنَّ} (If they return concerning them).
   • Rebuttal: A variant recitation (shadhdh) must be rejected because the Quran must be established by mass transmission (Tawātur). Furthermore, the structure of the verse already proves that the return (Fay') does not occur within the period, invalidating this variant reading.

Al-Baqarah Verse 228

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