Islamic Fiqh > Marriage and family > The pillars and conditions of nikah > The lawfulness of divorce (talaq)
Contents
Updated on 25 September 2026 at 3:23 PM
This part belongs to the full section: All sections of this part.
This third part of the marriage chapter (nikah) gathers the rulings connected with the end of the marital bond and its consequences: the lawfulness of divorce (talaq), taking the wife back during the waiting period (raj'a), the ila' (oath of abstinence), zihar (the statement of likening), the mutual imprecation (li'an), the waiting period ('idda) and the custody of children (hadanah). Each ruling is founded on the Quran, the Sunnah, consensus and rational argument, together with the positions of the four schools, the grading of the hadiths and the references of the classical works.
The people of knowledge have agreed upon the lawfulness of divorce, and they drew its evidence from the Book, the Sunnah, consensus and rational argument.
As for the Book, His statement:
"When you divorce women, divorce them for their waiting period"
Surah At-Talaq, 1
And His statement:
"Divorce is twice. Then either keep her in an acceptable manner or release her with kindness"
Surah Al-Baqarah, 229
As for the Sunnah: Nafi' reported from Abdallah ibn Umar (may Allah be pleased with them both) that he divorced his wife while she was menstruating, in the time of the Messenger of Allah (peace and blessings be upon him). Umar ibn al-Khattab asked the Messenger of Allah about that, and the Messenger of Allah said:
Order him to take her back, then let him keep her until she becomes pure, then she menstruates, then she becomes pure. Then if he wishes, let him keep her, and if he wishes, let him divorce her before touching her. That is the waiting period over which Allah commanded that women be divorced.Reported by al-Bukhari (4953) and Muslim (1471)
The purport of this hadith is that the Prophet (peace and blessings be upon him) ordered Ibn Umar to take back his wife after he had divorced her and did not forbid him to divorce, which proves its permissibility; the hadith even indicates the highest degree of permissibility, in his statement: "then if he wishes, let him keep her, and if he wishes, let him divorce her".
The Prophet (peace and blessings be upon him) also said:
Every divorce is valid, except the divorce of the man who is deranged (ma'tuh) or whose reason is overpowered.Weak hadith, reported by at-Tirmidhi (1191)
At-Tirmidhi said: we do not know it as marfu' (attributed to the Prophet) except through the hadith of 'Ata ibn 'Ajlan, and 'Ata ibn 'Ajlan is weak.
He also said:
The lawful thing most detested by Allah is divorce.Weak hadith, reported by Abu Dawud (2178), Ibn Majah (2018) and al-Hakim (2/214)
And in another wording:
There is nothing lawful more detested by Allah than divorce.Weak hadith, reported by al-Bayhaqi in "As-Sunan al-Kubra" (14673)
As for consensus: a great number of the jurists of the ummah transmitted the agreement upon the lawfulness of divorce. Imam al-Mawardi (may Allah have mercy on him) said: the basis for the permissibility of divorce is the Book, the Sunnah and the consensus of the ummah ("Al-Hawi al-Kabir", 10/111). Imam Ibn Hazm (may Allah have mercy on him) said: they agreed that the divorce of the sane adult Muslim, who is neither drunk, nor coerced, nor angry, nor legally interdicted, nor ill, concerning the wife whom he has validly married, is lawful if he pronounces it after the marriage, by his own free choice ("Maratib al-Ijma'", p. 71). Imam Ibn Abd al-Barr (may Allah have mercy on him) said: the Quran came permitting divorce, and the Messenger of Allah (peace and blessings be upon him) divorced some of his wives, a matter over which there is no disagreement ("At-Tamhid", 15/57). Imam al-'Amrani (may Allah have mercy on him) said: the ummah agreed upon the lawfulness of divorce ("Al-Bayan", 10/66). And Imam Ibn Qudamah (may Allah have mercy on him) said: the people agreed upon the lawfulness of divorce ("Al-Mughni", 7/277).
As for the rational argument: the exclusive right of enjoyment (over the wife) is a property specific to the husband; and every owner of sound mind and reliable judgment is able to dispose of his property, as with any other possession. And because the benefits of marriage may turn into harms, and the harmony between the two spouses into discord, the continuance of the marriage then entails the harms of mutual hatred, enmity and disgust. Divorce was therefore legislated to repel these harms ("Al-Ikhtiyar", 3/151).
Ibn Qudamah (may Allah have mercy on him) said: this indication proves the lawfulness of divorce, for the situation between the two spouses may become corrupted, to the point that the continuance of the marriage becomes pure harm and pure damage: the husband being obliged to provide maintenance and housing, and the woman being confined in bad companionship and permanent quarrels, without any benefit. This therefore requires a means that dissolves the marriage so that the harm arising from it is removed ("Al-Mughni", 7/277).
Taking the wife back (raj'a) is established by the Book, the Sunnah, consensus and rational argument.
As for the Book, His statement:
"And their husbands have more right to take them back in this [period], if they want reconciliation"
Surah Al-Baqarah, 228
This verse refers to the taking back according to the majority of scholars and exegetes: the husband has more right to take back his wife in divorce, so long as it has not reached three divorces. "If they want reconciliation": that is, if the husbands wish to mend what divorce has scattered of the marriage, by using the taking back that Allah has granted them during the waiting period.
His statement also:
"And when you divorce women and they have [nearly] fulfilled their term, either retain them according to acceptable terms"
Surah Al-Baqarah, 231
That is, by taking them back; the meaning of the verse: when they approach the end of their term, that is, the completion of their waiting period ("Al-Mughni", 7/397). And His statement: "Divorce is twice. Then either keep her in an acceptable manner or release her with kindness" (2, 229); restitution and retention are there explained as being the taking back.
As for the Sunnah: there is the hadith of Abdallah ibn Umar cited above, in which the Prophet (peace and blessings be upon him) orders him to take back his wife. Ibn Abbas also reported from Umar ibn al-Khattab (may Allah be pleased with them both) that:
The Messenger of Allah (peace and blessings be upon him) divorced Hafsah and then took her back.Authentic hadith, reported by Abu Dawud (2283), an-Nasa'i (3560) and Ibn Majah (2016)
'Urwa reported from Aisha (may Allah be pleased with her) that she said:
In the time when people divorced, a man would divorce his wife as many times as he wished, and she would remain his wife as long as he took her back during the waiting period, even a hundred times or more, until a man said to his wife: "By Allah, I will not divorce you so that you part from me, and I will never keep you." She asked: how so? He said: "I divorce you, and each time your waiting period is about to end, I take you back." The woman went so far as to enter upon Aisha and tell her; Aisha kept silent until the Prophet (peace and blessings be upon him) came and she told him; the Prophet (peace and blessings be upon him) kept silent until the Quran came down: "Divorce is twice. Then either keep her in an acceptable manner or release her with kindness" (Surah Al-Baqarah, 229). Aisha said: the people then resumed divorcing, both those who had divorced and those who had not.Weak hadith, reported by at-Tirmidhi (1192)
As for consensus: the people of knowledge agreed that the man who has divorced his wife once or twice, having consummated the marriage with her in a valid marriage, has the right to take her back, whether she wills or not, without a guardian and without a dower, so long as she is in her waiting period.
Ibn al-Mundhir (may Allah have mercy on him) said: everyone we memorize from among the people of knowledge agreed that the free man who has divorced his free wife, consummated, once or twice, has more right to take her back until the waiting period ends ("Al-Ishraf", 5/378; "Al-Ijma'", p. 89, no. 462). Imam Ibn Hazm (may Allah have mercy on him) said: they agreed that whoever divorced the wife he validly married, with a Sunnah divorce, among those upon whom the waiting period is obligatory, once or once after another, has the right to take her back, whether she wills or not, without a guardian and without a dower, so long as she is in the waiting period; and the two spouses inherit from one another so long as the waiting period has not ended ("Maratib al-Ijma'", p. 75; "Al-Iqna' fi Masa'il al-Ijma'", 3/1282, no. 2336). Imam Ibn Rushd (may Allah have mercy on him) said: the Muslims agreed that the husband holds the right of taking back his wife in revocable divorce so long as she is in the waiting period, regardless of her consent, according to His statement: "And their husbands have more right to take them back in this [period]" (2, 228); and one of the conditions of this divorce is the prior intention to pronounce it ("Bidayat al-Mujtahid", 2/63). Al-'Amrani (may Allah have mercy on him) said: the ummah agreed upon the lawfulness of taking back during the waiting period ("Al-Bayan", 10/244). Imam Ibn Abd al-Barr (may Allah have mercy on him) said: they agreed that whoever divorced his wife once or twice has the right to take her back; if he divorces her a third time, she does not become lawful to him again until she has married another husband ("Al-Istidhkar", 6/204).
As for the rational argument: the taking back answers a need; for a man may divorce his wife and then regret it, as Allah alluded to in His statement: "You know not whether Allah will after that bring about a new matter" (65, 1); he therefore needs a remedy. If the taking back were not established, this remedy would be impossible: the woman might refuse to conclude a new contract, and the man, unable to be patient without her, would fall into fornication ("Bada'i' as-Sana'i'", 3/181).
With regard to the legal ruling (taklifi), the taking back follows the pattern of marriage: it falls under permissibility, recommendation, obligation, prohibition or disapproval.
Permissibility: the basis is that the taking back is permitted; it is a right among the rights of the husband, according to Allah's statement: "And their husbands have more right to take them back in this [period], if they want reconciliation" (2, 228). Imam Ibn Abd al-Barr (may Allah have mercy on him) said: the scholars agreed that when he divorces her in a purity in which he has not touched her, he is not compelled to take her back and is not commanded to do so, even if his divorce took place contrary to the Sunnah; he is only compelled and commanded if he divorced her while she was menstruating ("Al-Istidhkar", 6/145).
Recommendation: the taking back is recommended when the two spouses regret the occurrence of the divorce, especially when there are children whose welfare requires the presence of both parents, so that they may manage their affairs and interests. It is also recommended outside the states of menstruation and postpartum bleeding.
Obligation: the Hanafis (according to their sound position), the Malikis and Imam Ahmad (according to one narration) affirmed that the taking back becomes obligatory when the husband divorces his consummated wife during menstruation; for it is an innovated and forbidden divorce, and the Prophet (peace and blessings be upon him) ordered Abdallah ibn Umar (may Allah be pleased with them both) to take back the wife he had divorced during menstruation, in the hadith cited above.
When he has divorced during menstruation and the husband refuses to take her back, the judge pronounces the taking back on his behalf, by way of compulsion, according to the Malikis ("Sharh Mukhtasar Khalil", 4/79).
The Hanafis (according to one position), the Shafi'is and the Hanbalis (according to the madhhab) hold that the taking back is recommended and not obligatory: because of the Prophet's command (peace and blessings be upon him) in the hadith of Ibn Umar, and because it removes the harm produced by the divorce. It is not obligatory because it takes the place of initiating the marriage or continuing it, and neither of the two is obligatory: if initiating the marriage is not obligatory, its continuation is not obligatory either.
Allah said: "Then either keep her in an acceptable manner or release her with kindness" (2, 229): He gave him the choice between taking her back and leaving her. And He said: "If they want reconciliation" (2, 228). The verse indicates that the taking back is not obligatory in two ways. The first: He made it a right for the husbands, not a duty upon them. The second: He coupled it with the will for reconciliation. The taking back is either intended for the continuation of the contract or for its repetition: if it is intended for repetition, it is not obligatory, for initiating the marriage is not obligatory; if it is intended for continuation, it is not obligatory, for the husband may end it by divorce. And the prohibition of divorcing during menstruation is like the prohibition of divorcing in a purity in which one has had intercourse; the taking back was not obligatory in that purity, so it is likewise not obligatory during menstruation.
As for the hadith of Ibn Umar and the statement of the Prophet (peace and blessings be upon him): "Order him to take her back, then let him keep her...", two answers are given to it. The first: the Prophet did not order him himself; he made Umar the one who gives the order, in his statement "order him to take her back"; this indicates that the command is shifted from obligation to recommendation, for it is transferred from one whose commands must be obeyed to one whose commands carry no binding force. The second: his statement "then if he wishes, let him divorce, and if he wishes, let him keep" makes the will apply to all that is mentioned, taking back and divorce; and whatever is referred to the will of the doer is not obligatory ("Al-Hawi al-Kabir", 10/123-124; "Sharh Sahih Muslim", 10/60; "Majma' al-Anhar", 2/7; "Al-Fatawa al-Hindiyyah", 1/349; "Al-Kafi", 3/161; "Hashiyat Ibn al-Qayyim", 6/172; "Al-Mubdi'", 7/261).
Imam Ibn Qudamah (may Allah have mercy on him) said: it is recommended to take her back, because of the Prophet's command to take her back, and the least of the degrees of a command is recommendation; and because the taking back removes the meaning for which divorce was forbidden. It is not obligatory according to the apparent position of the madhhab, the view of ath-Thawri, al-Awza'i, ash-Shafi'i, Ibn Abi Layla and the partisans of opinion (ahl ar-ra'y). Ibn Abi Musa narrated from Ahmad another narration according to which the taking back is obligatory, and he chose it; it is also the view of Malik and Dawud, because of the apparent sense of the command, since the taking back follows the pattern of preserving the marriage, preservation being obligatory here as shown by the prohibition of divorce; and because the taking back is the retention of the wife, according to His statement: "retain them according to acceptable terms" (2, 231); it thus becomes obligatory like the retention before the divorce.
Malik and Dawud said: he is compelled to take her back. The companions of Malik said: he is compelled so long as she is in her waiting period; except Ashhab, who said: until she becomes pure and then menstruates; for he is not obliged to retain her in that state, and is therefore not obliged to take her back in it.
The reply is: this is a divorce that the taking back does not remove; the taking back is therefore not obligatory in it, like the divorce in a purity in which he touched her, concerning which they agreed that the taking back is not obligatory, as Ibn Abd al-Barr narrated from all the scholars. The meaning they cited is refuted by this configuration; as for the command to take back, it is interpreted as recommendation, for what has preceded ("Al-Mughni", 7/279-280).
Ibn Battal (may Allah have mercy on him) said: the scholars differed over the meaning of the Prophet's statement (peace be upon him): "order him to take her back". Malik said: this command is taken as carrying obligation, and whoever divorces his wife while she is menstruating or in postpartum bleeding is compelled to take her back, treating postpartum blood like menstrual blood. Malik and most of his companions said: he is compelled to take her back during the menstruation in which he divorced her, the purity that follows, the menstruation that follows the purity and the purity that follows it, so long as her waiting period has not ended. Except Ashhab, who said: he is compelled to take her back only during the first menstruation; once she becomes pure, he is no longer compelled. Ibn Abi Layla - and it is the view of the Kufans, al-Awza'i, ash-Shafi'i, Ahmad, Ishaq and Abu Thawr: he is commanded to take her back but is not compelled to it; they interpreted the command as recommendation so that the divorce falls in accordance with the Sunnah. They did not differ that when her waiting period ends, he is no longer compelled to take her back: proof that the command to take back is a recommendation. The proof of the one who says "he is compelled to take her back" is the Prophet's statement: "order him to take her back", and his command is a duty.
In the terminology of the jurists, the Hanafis said: the ila' is the oath of abstaining from intercourse with the wife for a defined period such that he can no longer have intercourse except with a hardship that becomes binding upon him by reason of the oath ("Tuhfat al-Fuqaha'", 2/203; "Bada'i' as-Sana'i'", 3/161).
It is also said: it is the oath of abstaining from approaching the wife immediately or eventually, as when he says to a woman not lawful to him: "If I marry you, by Allah, I will never approach you"; for what counts is the moment the ila' takes effect: four months or more, sworn by Allah the Most High, or by suspending upon intercourse something burdensome.
Ibn al-Humam (may Allah have mercy on him) clarified: the definition "the oath of abstaining from approaching her for four months" is preferable to that of the "Kanz", for a mere oath is realized in a statement such as: "if I have touched you, two rak'ahs of prayer or an expedition are due upon me", without that constituting an ila', for it involves no hardship in itself, even if the hardship attaches to a blameworthy trait of the soul such as cowardice or laziness; unlike "if I have touched you, the pilgrimage, fasting or charity are due upon me": then the one makes ila' who cannot escape one of the two disliked things, divorce or the endurance of a burdensome obligation. This wording is preferable to their statement: "the one who cannot escape one of the two disliked things: divorce or expiation", given the deficiency of the latter before a statement such as: "if I approach you, his slave is freed, or such a one is divorced" ("Sharh Fath al-Qadir", 4/189; "Hashiyat Ibn Abidin", 3/422).
The Malikis defined the ila' as the oath of the accountable Muslim husband, capable of intercourse, even if sick, swearing by everything that indicates his abstention from intercourse with his wife: whether by Allah, by one of His attributes, by divorce, by manumission, by walking to Makkah, or by undertaking a devotion, for more than four months explicitly, or ambiguously, admitting of more or less. Examples of the minor definition: "If I touch her, a fast is due upon me, or the fast of a day, or of a month, or the freeing of a slave, or of my slave so-and-so". Example of the explicit greater: "By Allah, I will not touch you until five months have passed", or "during this year". Example of the ambiguous: "I will not touch you until Zayd returns from his journey" ("Hashiyat as-Sawi 'ala ash-Sharh as-Saghir", 5/445).
He may have qualified something in his oath, such as: "I will not touch you in this house", or "until you ask me for intercourse"; or left it absolute, such as: "By Allah, he will not touch her"; suspended or actual, as when he suspends intercourse upon entering the house or leaving the country, and the like.
As for the disbeliever, the non-accountable such as the child and the insane, and the one unable to have intercourse such as the castrated, the congenitally impotent (majbub) and the senile old man, and the like: their ila' is not valid.
The ila' of the breastfeeding woman is likewise not valid, whether or not she intends to preserve the child: if he swears not to touch his wife so long as she breastfeeds, or until she weans her child, or during the nursing period, there is no ila' upon him; otherwise, if his oath intends mere abstention, he makes ila'.
And if he says to a woman not lawful to him: "By Allah, I will not have intercourse with you for a year", and then marries her before eight months have passed, he makes ila' ("At-Taj wa-l-Iklil", 3/125; "Mawahib al-Jalil", 5/337; "Sharh Mukhtasar Khalil", 4/89; "Ash-Sharh al-Kabir" with "Hashiyat ad-Dasuqi", 3/345-346; "Hashiyat as-Sawi", 5/445-446).
The Shafi'is said: the ila' is the oath of a husband whose divorce is valid, by Allah the Most High, by one of His attributes, or by what is annexed to that, to abstain from touching her, even revocably; absolute, that is, without limiting it by a period, even by mere intention, or beyond four months, even by a moment ("Rawdat at-Talibin", 5/541; "An-Najm al-Wahhaj", 8/26; "Mughni al-Muhtaj", 5/14; "Tuhfat al-Muhtaj", 9/619; "Nihayat al-Muhtaj", 7/78-79; "Ad-Dibaj", 3/489).
The Hanbalis said: the ila' is the oath of a husband capable of intercourse, by Allah the Most High, by one of His attributes such as Ar-Rahman, Ar-Rahim, the Lord of the worlds, their Creator, or by a mushaf (copy of the Quran) - not by a vow, a divorce or the like - to abstain from touching his wife capable of intercourse; even if he swears to abstain from touching her before consummation forever, or says in his oath "I will not touch her", or swears not to touch her for more than four months, or intends it by swearing not to touch her while intending more than four months ("Al-Mughni", 7/414; "Al-Mubdi'", 8/4; "Kashshaf al-Qina'", 5/409-410; "Sharh Muntaha al-Iradat", 5/521; "Matalib Uli an-Nuha", 5/491; "Manar as-Sabil", 3/129-130).
The ila' was, in the pre-Islamic era (jahiliyyah), a form of divorce, and the Law changed its ruling. Imam ash-Shafi'i (may Allah have mercy on him) said: I heard from those I am content with among the people of knowledge that the people of the jahiliyyah used to divorce by zihar, ila' and divorce; Allah confirmed divorce as divorce, and judged the ila' and the zihar by the ruling proper to each of them ("An-Najm al-Wahhaj", 8/25). Sa'id ibn al-Musayyib (may Allah have mercy on him) said: that was among the torments of the jahiliyyah: the man who did not love his wife and did not want anyone else to marry her would swear never to approach her, leaving her neither widowed nor married; and (the term of four months) was imposed upon them at the beginning of Islam.
Allah therefore set a term for it in Islam, by His statement:
"For those who vow abstinence (ila') from their wives is a waiting of four months; but if they return [to their wives], then indeed Allah is Forgiving and Merciful. And if they decide on divorce, then indeed Allah is Hearing and Knowing"
Surah Al-Baqarah, 226-227
("Tafsir al-Baghawi", 1/202; "Al-Mabsut", 7/19; "Manar as-Sabil", 3/129.)
Anas (may Allah be pleased with him) said:
The Messenger of Allah (peace and blessings be upon him) vowed abstinence from his wives for one month; he stayed in an upper room (mashrabah) of his, after his leg had been sprained, and he sat in an upper story. Umar came to him and said: have you divorced your wives? He replied: "No, but I have vowed abstinence from them for one month." He thus spent twenty-nine (nights), then came down and entered upon his wives. It was said: O Messenger of Allah, you vowed abstinence for a month. He said: "The month is twenty-nine."Reported by al-Bukhari (4905, 4984, 6306)
The Shafi'i and Hanbali jurists explicitly stated that the ila' is forbidden, because of the harm it causes, and because it is an oath to abandon an obligation; they said: the Prophet's ila' (peace and blessings be upon him) concerning his wives for a month, in the ninth year, is not of that category ("Asna al-Matalib", 3/347; "Mughni al-Muhtaj", 5/17; "Al-Mubdi'", 8/3; "Kashshaf al-Qina'", 5/410; "Sharh Muntaha al-Iradat", 5/521; "Matalib Uli an-Nuha", 5/491; "Manar as-Sabil", 3/129). Indeed, the ila' mentioned in the Quran was intended to harm the wife.
The ila' may be permitted when no harm is intended by it and its duration is not long, such as the one undertaken for corrective discipline or another purpose regarded as legitimate other than the blameworthy harm; the Prophet (peace and blessings be upon him) vowed abstinence from his wives for one month: it is said because of an ailment in his leg, and it is said in order to discipline them, for they had received of his great forbearance and kindness what led some of them to excess in their requests, and the rest followed the example of the others or approved of it; Allah and His Messenger know best the hidden realities ("At-Tahrir wa-t-Tanwir", 2/386).
As for the permissibility of the ila' for a benefit, such as fear for the child from the rejection of the milk (ghaylah), or protection against certain diseases in the man and the woman: its permission follows from the evidences of benefit and the negation of harm; and this is realized by the oath for some people, because of the weakness of their resolve and their suspicion that they would fail in the matter without the oath ("At-Tahrir wa-t-Tanwir", 2/386).
The wisdom of granting this period is to preserve the marital bond and to treat its persistence with what prevails upon the natures of people: the absence from the wife during this time excites the husband's longing for her and leads him to weigh his situation with her at its true value. If his soul is unaffected by the separation and he does not care, parting from her is easy for him; otherwise he returns to her, regretting his mistreatment, resolved to conduct the marital life well. The same applies to the woman: her abandonment is one of the means of disciplining her; it may be the cause of her turning back to him, if she has neglected her adornment or treated him in a manner that provokes aversion. The husband's absence during this period is thus a restraint upon her against whatever excess she might commit; the waiting for this period is therefore necessary for the preservation of the marital bond.
The Shafi'is said: its legal reality is the likening of the wife not definitively divorced to a woman who is not lawful to him, such as his mother or his sister ("Mughni al-Muhtaj", 5/32).
The Hanbalis said: zihar legally is that a man likens his wife, or a part of her such as her back, her hand and the like, to the woman forbidden to him, such as his mother or his sister by lineage or by suckling, or his mother-in-law and his son's wife, even if that prohibition is limited in time, as with his wife's sister or his maternal aunt; or that he likens his wife, a part of her or one of her limbs to a part of them, as in: "you, or your hand, or your face, are like my mother's back, or like my mother's hand, leg or belly"; or that he likens his wife to a man or to a limb of a man, absolutely, whether that man is a relative such as the father or a stranger such as Zayd ("Kashshaf al-Qina'", 5/428; "Sharh Muntaha al-Iradat", 5/537; "Matalib Uli an-Nuha", 5/508; "Manar as-Sabil", 3/133; "Kashf al-Mukhaddarat", 2/659-660).
The ruling of the zihar: the people of knowledge agreed upon the prohibition of the zihar, for it is an objectionable (munkar) and false saying; some even explicitly stated that it is among the major sins ("Hashiyat ad-Dasuqi", 3/364). The proof of its prohibition is His statement:
"And indeed, they are saying an objectionable statement and a falsehood. But indeed, Allah is Pardoning and Forgiving"
Surah Al-Mujadilah, 2
Its meaning is that the wife is not like the mother in prohibition. Allah said: "They are not their mothers" (58, 2). And the Most High said:
"And He has not made your wives whom you declare unlawful by zihar your mothers"
Surah Al-Ahzab, 4
Imam al-Hasini (may Allah have mercy on him) said: the zihar is forbidden by consensus, according to His statement: "And indeed, they are saying an objectionable statement and a falsehood" (58, 2) ("Kifayat al-Akhyar", p. 467).
It is therefore not permissible to commit it, for Allah has informed that it is an objectionable and false saying, and both are forbidden. The difference between the objectionable (munkar) and the false (zur) character of his statement "you are to me like my mother's back": it comprises both the information he gives about her and the declaration (insha') of her prohibition; it is thus a false report and an objectionable declaration, for falsehood is untruth contrary to established truth, and the objectionable is the contrary of what is known. The Most High sealed the verse with: "But indeed, Allah is Pardoning and Forgiving" (58, 2), pointing to the cause of the sin which, without Allah's pardon and forgiveness, would have been punished ("Zad al-Ma'ad", 5/326; see "Mawahib al-Jalil", 5/341-342; "Al-Bayan", 10/333; "Al-Mughni", 8/3).
The basis of the establishment of the zihar is the Book and the Sunnah. As for the Book: it is the beginning of Surah Al-Mujadilah:
"Those who make zihar among you concerning their wives - they are not their mothers. Their mothers are none but those who gave birth to them. And indeed, they are saying an objectionable statement and a falsehood. But indeed, Allah is Pardoning and Forgiving. And those who make zihar from their wives and then [wish to] go back on what they said - then [there must be] the freeing of a slave before they touch one another. That is what you are admonished thereby; and Allah is Acquainted with what you do. And he who finds not [the means] - then a fast of two months consecutively before they touch one another; and he who is unable - then the feeding of sixty poor persons. That, for you to believe in Allah and His Messenger. Those are the limits of Allah, and for the disbelievers is a painful punishment"
Surah Al-Mujadilah, 2-4
As for the Sunnah: the verses of the zihar were revealed concerning Khawlah bint Malik ibn Tha'labah. She said:
My husband Aws ibn as-Samit made zihar of me. I came to the Messenger of Allah (peace and blessings be upon him) to complain to him, and the Messenger of Allah argued with me about it and said: "Fear Allah, for he is your cousin." I persisted until the Quran came down: "Certainly has Allah heard the speech of the one who pleads to you concerning her husband" (Surah Al-Mujadilah, 1), up to the mention of the obligation. He said: "Let him free a slave." She said: he cannot afford it. He said: "Then let him fast two consecutive months." She said: O Messenger of Allah, he is an old man unable to fast. He said: "Then let him feed sixty poor persons." She said: he owns nothing to give in charity. At that moment, a load ('araq) of dates was brought. I said: O Messenger of Allah, I will help him with another load. He said: "You have done well; go and feed sixty poor persons with it on his behalf, then return to your cousin."Authentic hadith, reported by Abu Dawud (2214)
Salamah ibn Sakhr said:
I was a man whom women afflicted more than anyone else. When the month of Ramadan came, I feared being afflicted by my wife with something that would be counted against me until morning; so I made zihar of her until the month of Ramadan ended. While she was serving me one night, something of hers was uncovered to me and I soon united with her. In the morning, I went out to my people, told them the news and said: come with me to the Messenger of Allah (peace and blessings be upon him). They said: no, by Allah. So I went to the Prophet (peace and blessings be upon him) and informed him. He said: "Are you in that state, O Salamah?" I said: yes, O Messenger of Allah, twice, and I am patient with the decree of Allah; so judge between me and her as Allah shows you. He said: "Free a slave." I said: by Him who sent you with the truth, I own no slave besides her, and I struck the surface of my neck. He said: "Then fast two consecutive months." I said: was I not afflicted by what afflicted me because of fasting! He said: "Then feed a wasq of dates among sixty poor persons." I said: by Him who sent you with the truth, we spent the night hungry and have no food. He said: "Then go to the collector of the charity of Banu Zurayq and let him hand it to you; feed sixty poor persons a wasq of dates, and eat the remainder, you and your family." I returned to my people and said: I found with you hardship and bad counsel, and with the Prophet (peace and blessings be upon him) generosity and good counsel; he ordered me - or made an order in my favor - with your charity.Authentic hadith, reported by Abu Dawud (2213), at-Tirmidhi (3299), Ahmad in "Al-Musnad" (16468), Ibn Khuzaymah in his "Sahih" (2378) and al-Hakim in "Al-Mustadrak" (2815)
The Malikis said: the li'an is the oath of the accountable Muslim husband concerning the adultery of his wife or the denial of the pregnancy incumbent upon him, and her oath of his lying, four times on each side ("Ash-Sharh al-Kabir" with "Hashiyat ad-Dasuqi", 3/393; "Hashiyat as-Sawi", 6/8). Ibn 'Arafa (may Allah have mercy on him) said: the li'an is the husband's oath concerning his wife's adultery or the denial of the pregnancy obligatory upon him, and her oath of his lying, if the refusal entails the application of her legal punishment by the ruling of a judge ("At-Taj wa-l-Iklil", 3/185; "Mawahib al-Jalil", 5/368; "Sharh Mukhtasar Khalil", 4/124). Al-Khurashi (may Allah have mercy on him) clarified: the statement "obligatory upon him" excludes the pregnancy that is not obligatory upon him, for there is no li'an in that case, as when she gives birth less than six months after the day of the contract, or when the husband is castrated; and the statement "her oath..." excludes the case where he swears and she resists without the resistance entailing her punishment, as when she was raped, denied his child and the rape is established: there is then no li'an against her, but against him alone; and the mention "by the ruling of a judge" excludes the imprecation of the wife and the husband without a ruling, which is not a legal li'an.
The Shafi'is said: the li'an in the Law is a set of known words made a proof for the one compelled to accuse the one who soiled his bed and attached disgrace to him, or to deny the paternity of a child ascribed to him ("An-Najm al-Wahhaj", 8/85; "Mughni al-Muhtaj", 5/56; "Tuhfat al-Muhtaj", 9/700; "Ad-Dibaj", 3/523).
Why was it named li'an? And what is its cause? The well-known imprecation was made a proof for the one compelled to accuse the one who soiled his bed and attached disgrace to him; it was named li'an because it contains the word of the curse (la'n).