Self-prohibition and the rules of the oath

An oath may forbid the believer something good or impose hardship on him. The sheets on this page classify the oath by its object, recommended, disliked or permissible, then settle the case of the husband who swears to prevent his wife from leaving, with the subtleties of permission and exceptions.

Each view is reported as the source attributes it, school by school, with the verses, the cited hadiths (including the grade flagged by the sheet) and the book references at the end of each point.

Swearing to do a recommended act or omit a disliked one

The Shafi'is and the Hanbalis stated, and such is the purport of the Hanafi and Maliki schools, that swearing to do a recommended act or omit a disliked one recommends breaking the oath and performing the act; proof:

Whoever swears an oath then sees something better, let him do what is better and expiate his oath.

reported by Muslim (1650)

If he persists and commits the disobedience, he is sinful; no expiation is owed for the sworn act (Bada'i' as-Sana'i' 3/17, al-Ikhtiyar 4/57, al-Jawhara an-Nayyira 6/29-30, al-Fawa'id ad-Dawani 1/414, Rawdat at-Talibin 7/143, an-Najm al-Wahhaj 10/26, Mughni al-Muhtaj 6/208, Tarh at-Tathrib 7/154, al-Mughni 9/389-390, al-Mubdi' 9/254, Kashshaf al-Qina' 6/392, Sharh Muntaha al-Iradat 6/377, Matalib Uli an-Nuha 6/366). The sheet notes that in this case the disobedience requires repentance and immediate seeking of forgiveness, like faults without an instituted expiation. The Shafi'is except the communal obligation, such as swearing not to pray over a particular deceased person: this oath entails no disobedience nor breach, the obligation not being fixed upon him (Rawdat at-Talibin 7/143, an-Najm al-Wahhaj 10/26, Mughni al-Muhtaj 6/208, Tarh at-Tathrib 7/154).

Swearing to omit a recommended act or do a disliked one

The jurists of the four schools stated that swearing to omit a recommended act or do a disliked one recommends breaking the oath, doing the recommended act and leaving the disliked one, with expiation. The Hanafis: if he swears not to pray the supererogatory, not to fast voluntarily, not to visit a sick person or follow a funeral, the best is to act and expiate, per the hadith of Muslim cited (Bada'i' as-Sana'i' 3/18). The Malikis: swearing to omit a recommended act, such as the mid-morning prayer or visiting a righteous man, recommends breaking the oath (al-Fawa'id ad-Dawani 1/414). The Shafi'is: such an oath is disliked, abiding by it is disliked, breaking it is sunnah and the expiation owed; proof is the verse:

Let not those among you who are endowed with grace and abundance swear to give no more to the relatives, the poor and those who emigrated in the path of Allah. Rather forgive and overlook.

Surah an-Nur 22

It was revealed about Abu Bakr, who had sworn to stop supporting Mistah, then said: yes, by my Lord, and he pardoned him (al-Bukhari 4750, Muslim 2770). The hadith of the Bedouin "by Allah I will add nothing nor subtract anything" (al-Bukhari 46, Muslim 11) is no exception: either his oath contained an obedience carrying the command, or his tongue outran his will and the oath was of the idle kind. On swearing not to eat fine food or wear soft clothing, three views: disliked, per "say: who has forbidden the adornment of Allah" (Surah al-A'raf 32); obedience, per the known asceticism of the early generations; or varying with people, their aims and their occupations, the view of ar-Rafi'i held correct (Rawdat at-Talibin 7/143, an-Najm al-Wahhaj 10/26, Mughni al-Muhtaj 6/208, Tarh at-Tathrib 7/154). The Hanbalis: the oath on a makruh or on omitting a recommended act has a recommended dissolution, per the hadith of 'Abd ar-Rahman ibn Samurah: "if you swear then see something better, expiate your oath and do what is better".

Swearing over a permissible thing or its omission

No disagreement among the jurists: swearing to do a permissible thing, enter a house, or omit it, wear this garment or not wear it, offers a choice between act and omission: if he does what he swore to do, no sin and no expiation; if he omits what he swore to omit, no sin and no expiation; if he does what he swore to omit, the expiation is owed; if he omits what he swore to do, the expiation is owed. Ibn Qudamah answers the objection from the verse "and do not violate your oaths after their confirmation" (Surah an-Nahl 91): it concerns the oaths of covenants, with "fulfill the covenant of Allah when you take a covenant, and do not violate your oaths after their confirmation", up to "you take your oaths as means of deception among you, so that one people may be richer than another" (Surah an-Nahl 92); the covenant is fulfilled without an oath, a fortiori with one; hence the prohibition of violating the oath and its blame through the image of the spinner who unravels her thread after twisting it; and there is no disagreement: the thing one freely disposes of falls under none of this (al-Mughni 9/390).

What remains is which is better: breaking the oath and expiating, or fulfilling it? The Hanafis, the Malikis, the Shafi'is (correct view) and the Hanbalis: fulfilling it is better, glorifying Allah, per "and do not violate your oaths after their confirmation" (Surah an-Nahl 91) and "guard your oaths" (Surah al-Ma'idah 89), meaning: from breach (Bada'i' as-Sana'i' 3/18, al-Ikhtiyar 4/57, al-Fawa'id ad-Dawani 1/414, Kashshaf al-Qina' 6/292, Sharh Muntaha al-Iradat 6/377, Matalib Uli an-Nuha 6/366). The Shafi'is according to one opinion prefer breaking it so the poor benefit from the expiation; another opinion gives the choice. Among the Shafi'is, the point of disagreement is the absence of harm to others: if he swore not to enter the houses of his parents, relatives or a friend who dislikes it, breaking is better absolutely, and this oath is disliked without doubt (Rawdat at-Talibin 7/143, an-Najm al-Wahhaj 10/27, Mughni al-Muhtaj 6/209, Tarh at-Tathrib 7/154).

Swearing to prevent one's wife from leaving

The husband says to his wife: "if you leave without my permission, you are divorced", or "unless with my permission", or "if you leave before I permit you", or "until I permit you". The ruling of these formulations: if she leaves without permission, one divorce falls and the oath is dissolved, the particle not requiring repetition; and if he lets her leave with permission, no breach, a point of agreement among the jurists (al-Mabsut 8/173, al-Hawi al-Kabir 15/391, al-Mughni 10/46, al-Kafi 4/407, Sharh az-Zarkashi 3/343, Kashshaf al-Qina' 5/354-355). If he lets her leave once and she then leaves without permission, three categories:

• The first: the two words of limit, "until" and "up to". The oath covers a single permitted exit: one permitted exit fulfills it and dissolves it definitively, no breach afterwards.
• The second: the word "whenever". The oath applies by repetition in fulfillment and breach: if he permits her each time, he fulfills each time; if she leaves once without permission, one breach, one divorce, and the oath remains; on the third exit without permission, a third divorce, then the oath falls, exhausted by the divorces it holds; if he permits her three times, three fulfillments, the oath remaining as long as a divorce remains, and a fourth exit without permission brings the divorce down with the three breaches; if he permits the first and third exits and she leaves without permission on the second and the fourth, two fulfillments for the permitted exits and two breaches for the others, and so on (al-Hawi al-Kabir 15/391, 394, al-Bayan 10/303-304, Sharh az-Zarkashi 3/343).
• The third gathers five disputed formulations: "if you leave the house except with my permission", "if you leave unless I permit you", "if you leave without my permission", "at whatever time you leave without my permission", "whenever you leave without my permission".

On these five, three schools. The Shafi'is and the Hanbalis according to one path: the oath applies once, in fulfillment and breach, every oath containing prohibition and permission mirroring each other in repetition and lapse; the word of repetition is absent from "except with my permission" and present in "whenever", and the oath returns to its object in both cases (al-Hawi al-Kabir 15/391, 394, al-Bayan 10/303-304, Sharh az-Zarkashi 3/343). The Malikis (well-known view) and the Hanbalis (school): the oath applies each time; a permitted exit fulfills without dissolving it, an exit without permission brings a divorce down without extinguishing it, the divorce being suspended on an occurred condition (at-Taj wa-l-Iklil 2/325, 341, Sharh Mukhtasar Khalil 3/78, Tahbir al-Mukhtasar 2/398, 417, Minhaj al-Jalil 3/35). The Hanbalis add: the exit is indefinite in a conditional context, hence general, unless he intends a single permission or says it explicitly: "if you leave except with my permission once"; if he permits her once, no breach afterwards; but "if you leave once without my permission" brings the divorce down on the second exit, an unpermitted exit resembling the first; and if he says to her "leave whenever you wish", the general permission prevents the divorce (al-Mughni 10/46, al-Kafi 4/407, Sharh az-Zarkashi 3/343, Kashshaf al-Qina' 5/354-355). The Hanafis: in "until I permit you", the oath is dated with a term: one permission completes it, per "until the rise of dawn" (Surah al-Qadr 5), the oath taking its term from the term, and the ruling of a term making what follows the opposite of what precedes; in "do not leave without my permission", permission is required for each exit, the letter aiming at the adhesion of the qualification, like "We do not descend except by command of your Lord" (Surah Maryam 64), meaning: on command; if he intends a single permission, he is believed on his word, the view of Abu Yusuf and the fatwa, the exit conforming to the apparent; the device is to say to her "whenever you wish to leave, I have permitted you"; and "unless I permit you" equals the term, per "unless you are besieged" (Surah Yusuf 66) (al-Mabsut 8/173, Majma' al-Anhar 2/286, Tanqih al-Fatawa al-Hamidiyya 1/324).

Leaving for a need then diverting

The husband says: "if you leave anywhere but the bathroom without my permission, you are divorced", or anywhere but so-and-so's house; she leaves for the bathroom then diverts elsewhere. Three cases. Leaving for the bathroom then diverting elsewhere: no breach, the aim of the exit being the bathroom, per the Malikis, the Shafi'is and the Hanbalis in one direction. The Hanbalis (school): he has breached, his dominant aim being that she go neither to the bathroom nor to the visit, and she went elsewhere, continuance following the start. Diverting elsewhere then returning to the bathroom: breach, per the Shafi'is and the Hanbalis. A mixed exit, bathroom and elsewhere: breach per the Shafi'is (correct view) and the Hanbalis: the exit elsewhere occurred, pairing it with the bathroom does not erase it, and the statement proved true in both senses, the exit elsewhere or the exit to the bathroom. The second Shafi'i path, no breach by preferring what does not bind over what binds, is refuted: if he says to her "if you speak to Zayd, you are divorced" and she speaks to Zayd and to 'Amr, she is divorced, her speech to 'Amr not having erased the divorce triggered by her speech to Zayd (al-Mudawwana al-Kubra 3/136, adh-Dhakhira 4/30, at-Taj wa-l-Iklil 2/341, al-Umm 7/78, al-Hawi al-Kabir 15/394-395, al-Muhadhdhab 2/96, al-Bayan 10/303-304, Asna al-Matalib 3/332, al-Mughni 10/47, al-Kafi 4/408, al-Mubdi' 7/359, al-Insaf 9/99-100, Kashshaf al-Qina' 5/355, ar-Rawd al-Murbi' 2/400). The Mudawwana adds the case of one who swears to permit the exit only for visiting a sick person: she leaves permitted for the visit, then another task arises on the spot; Malik said: no breach, unless he learns of it and lets her continue; and regarding one who lets her leave without permission for the bathroom or otherwise: no breach per Malik, unless he learns of it and tolerates it, his silence then amounting to permission; and a statement of Rabi'ah points this way for a tolerated exit outside the visit.

The permission given without her knowledge

The husband says: "if you leave without my permission, you are divorced", then lets her leave without her knowledge and she leaves. Abu Hanifah, Muhammad, the Malikis and the Hanbalis (school): she is divorced; his aim was the exit without permission, and it occurred; permission being a judgment among the acts of accountable persons presupposing an author and an informed recipient, without knowledge there is no permission, like the command and the prohibition which stand only after knowledge; the Qur'an assimilates permission to information: "I proclaimed it to you in fairness" (al-Anbiyah 109), "an announcement from Allah and His Messenger" (at-Tawbah 3), "announce a war from Allah and His Messenger" (al-Baqarah 279); and the exit took place on the same footing as before the permission, believing she had no right to it, just as she would have left before the permission (at-Tajrid al-Qaduri 12/6485-6486, al-Ikhtiyar 4/67, al-Ishraf 'ala nukat masa'il al-khilaf 4/298, at-Taj wa-l-Iklil 2/325, Sharh Mukhtasar Khalil 3/78, ash-Sharh al-Kabir with Hashiyat ad-Dasuqi 2/433, Tahbir al-Mukhtasar 2/398, al-Mughni 10/47, al-Mubdi' 7/359, Kashshaf al-Qina' 5/355, ar-Rawd al-Murbi' 2/400). The Shafi'is, Abu Yusuf, Malik according to one path and the Hanbalis in one direction: no breach and no divorce: the exit followed the existence of the permission on his side, as if she had been informed of it; the deputy is validly dismissed even without knowing of his dismissal, and likewise the wife is permitted even unaware; the permission belongs to the one granting it, the knowledge to the one permitted, and his oath concerned only his permission, not her knowledge: as in his saying "if you stand up, you are divorced": she is divorced by the mere fact of her standing, though she does not know it. The sheet breaks off on the final illustration: having established that, if informed by another, the woman..., the case is left where the source stops.

Practical note

These rules concern above all the husband carried away, who swears to prevent his wife from leaving and creates a trap whose consequences fall on her: the Law recommends dissolving this oath, clearly permitting what is legitimate and, in case of breach, paying the expiation instead of letting the divorce weigh on the household.