Islamic Fiqh > Marriage and family > Lian (mutual imprecation) > When the husband establishes proof or invokes the li'an while naming the man
Contents
Updated on 25 September 2026 at 3:23 PM
This part belongs to the full section: All sections of this part.
The li'an, the mutual imprecation pronounced by a husband and his wife when the husband accuses her of adultery without proof, produces precise legal effects in Islamic law: the fate of the punishment for slander, the dissolution of the marital bond, the lineage of the denied child, and the rules of inheritance. The eight leaves that follow treat these effects question by question according to the four schools of law. Each cites the positions of the imams with their evidence: verses, hadiths, and the opinions of the Companions, with their classical references.
If a husband accuses his wife of adultery with a man he names, the situation falls into three possible cases: establishing proof (bayyinah), invoking the li'an, or doing neither.
The first case, that of proof: the jurists agree that when a husband accuses his wife of adultery with a named man and establishes proof of that accusation, the punishment for slander (qadhf) lapses for both accused persons, and the punishment for adultery becomes obligatory upon them, by the word of Allah:
"Those who accuse chaste women of adultery and then fail to bring four witnesses, flog them with eighty lashes"
Surah An-Nur, 4
The verse indicates that one who brings four witnesses is not flogged. Al-Mawardi (may Allah have mercy on him) explains: this is a matter of consensus; if he wishes to invoke the li'an after establishing proof of adultery, he is allowed to do so, in order to dissolve the marital bed and negate the lineage; for when the li'an is permitted where adultery was not established, it is all the more permitted where it was established (Al-Hawi al-Kabir, 11/65; Al-Bayan, 10/440).
The second case, where he invokes the li'an while naming the man in his imprecation: the jurists differ over whether the punishment for slander lapses for the man who was named.
The Shafi'is and the Hanbalis hold that this punishment lapses if he mentions and names him in his li'an, saying: "I call Allah to witness that I am among the truthful regarding the accusation of adultery I have made against her concerning so-and-so." Their argument: Allah has established only one punishment for the man who accuses his wife of adultery, by His word:
"And those who accuse their own wives and have no witnesses except themselves"
Surah An-Nur, 6
Allah did not distinguish between one who names a man specifically and one who does not name him. Moreover, Hilal ibn Umayyah accused his wife of adultery with Sharik ibn Sahma, and the Prophet did not inflict the punishment upon him nor press him to claim it; had the punishment been due, he would have informed Sharik so that he might claim it if he wished. Furthermore, the li'an constitutes evidence for one of the two parties, so it counts as testimony for the other. Finally, mentioning the man serves a need: exposing the adulterer who corrupted his bed, and sometimes drawing on the child's resemblance to the accused in order to establish the truthfulness of the accuser, just as the Prophet established the truthfulness of Hilal through the child's resemblance to Sharik ibn Sahma. The ruling on his slander must therefore lapse together with the ruling on the slander of the wife, by analogy with her.
Through this li'an, the punishment for adultery becomes obligatory upon the wife if she does not herself invoke the imprecation, according to the Malikis, the Shafi'is and the Hanbalis in one opinion; on the other hand, it never becomes obligatory upon the man who was named, by unanimous agreement, unless there is proof against him or he confesses to the adultery.
Abu Bakr al-Jassas and Ibn Abd al-Barr state: they do not differ over the fact that the man who accuses his wife of adultery with a man and then invokes the li'an does not have the punishment applied to that man (Mukhtasar Ikhtilaf al-'Ulama, 3/322; Al-Istidhkar, 5/517).
It is objected: why are the two accused not equal in the obligation of the punishment through the li'an, as they are equal through proof? The answer: the difference rests on two considerations. The first: proof is general to the rights of spouses as well as to those of strangers, whereas the li'an is specific to the rights of spouses to the exclusion of strangers. The second: since the wife can cause the punishment to lapse through her own li'an, it can become obligatory upon her; the stranger, being unable to cause it to lapse through his li'an, it is not admitted that it become obligatory upon him.
If the husband accuses her of adultery with a named man but does not mention him in his li'an: on the sahih position of the Shafi'is, the punishment for slander is inflicted for that man, for two reasons: one who is not named in the li'an does not lose his right through it, like the wife and the child; and since the slander of the stranger does not lapse through the wife's pardon, her li'an does not cause it to lapse either, the stranger not being an accessory to her case. Mentioning the stranger in the li'an is therefore a condition for his punishment to lapse: to annul it, the accuser resumes the imprecation, names him, and mentions his wife again.
The second Shafi'i opinion, which is the madhhab of the Hanbalis, holds that no punishment is inflicted upon that man, whether he was named in the li'an or not, for two reasons: the stranger, in the li'an, is accessory to the wife, for the li'an would not be valid if it concerned him alone; when the wife's punishment lapses through the li'an, the punishment of the one who follows her case lapses as well. And it is a single slander for a single act: if the act is established through the li'an with respect to one of them, it is established with respect to the other, for adultery occurs only between two offenders (Al-Umm, 5/291, 297; Al-Hawi al-Kabir, 11/65, 69; Al-Muhadhdhab, 2/127; Al-Bayan, 10/463, 464; Rawdat al-Talibin, 5/673; Mughni al-Muhtaj, 5/74, 75; Al-Mughni, 8/71, 82; Al-Kafi, 3/287; Al-Mubdi', 8/91; Al-Insaf, 9/251; Kashshaf al-Qina', 5/468; Manar al-Sabil, 3/149).
Imam Abu Hanifah and the Malikis hold that when the husband accuses his wife of adultery with a named man, he invokes the li'an against his wife, and the man receives the punishment for slander if he claims it; this punishment does not lapse through her li'an, whether he was named in the imprecation or not. He has slandered two persons, and his exemption from the slander of one does not cause the punishment of the other to lapse, as is the case when he slanders concerning other women. Allah established the punishment in absolute terms for the slander of the stranger as well as of the wife, then He singled out the wife for exemption through the li'an, the stranger remaining subject to the absolute bearing of the verse. If Hilal was not punished after accusing his wife concerning Sharik ibn Sahma, it is because he did not claim it: the imam inflicts the punishment for slander only after a demand is made (Al-Kafi, 291; Al-Ishraf 'ala Nukat Masa'il al-Khilaf, 3/523; Ahkam al-Qur'an, 3/357; Tafsir al-Qurtubi, 12/193; Al-Ifsah, 2/193, 194; Al-Mabsut, 7/56).
Imam Ibn al-Qayyim (may Allah have mercy on him) states: those who caused the punishment for the slander of the stranger to lapse through the li'an rely on an apparent and very strong argument, for the Prophet did not punish the husband concerning Sharik ibn Sahma, even though he had named him explicitly. The others answer with two arguments: the accused was a Jew, and no punishment is due for slandering a disbeliever; and he was not demanded, the punishment for slander being applied only after a demand. Others answer these two arguments: the claim that "he was a Jew" is false, for Sharik is the son of Abdah, his mother is Sahma, he is the ally (halif) of the Ansar, and the brother of al-Bara' ibn Malik through his mother. Abd al-Aziz ibn Baziza states, in his commentary on the Ahkam of Abd al-Haqq, that the scholars differed concerning Sharik ibn Sahma, the man accused: some said "he was a Jew," which is false; the correct view is that he was Sharik ibn Abdah, ally of the Ansar and brother of al-Bara' ibn Malik through his mother.
As for the second argument, it turns back as evidence against those who make it: once it was settled in his mind that he had no right in this slander, he did not demand the punishment nor concern himself with it; otherwise, how could he have remained silent about the innocence of his honor while having a way to manifest it through the punishment of his slanderer? Those people were fiercely protective and proud on this point. The li'an was instituted in place of proof out of necessity, as a substitute for the four witnesses; this is why it entails the punishment against the wife if she turns back on her denial. If it counts as testimony for one of the two parties, it counts as testimony for the other; and it is impossible that the woman be punished through the li'an if she turns back on her word, and that the slanderer then undergo the punishment for slander after he has established proof of the truthfulness of his statement. The Prophet said to the husband:
Bring proof, otherwise the punishment is on your backWords of the Prophet cited by Ibn al-Qayyim in Zad al-Ma'ad, 5/383, 384
and not "otherwise two punishments." This while the wife had not demanded the punishment for slander: the demand is a condition for carrying out the punishment, not for its becoming obligatory. This is another answer to the objection that "Sharik did not demand the punishment": the wife had not demanded it either, and yet the Prophet said to her: "Bring proof, otherwise the punishment is on your back."
If it is asked: what do you say if someone accuses a woman other than his wife of adultery with a named man, saying: "So-and-so committed adultery with you, or you committed adultery with him"? The answer: two punishments become obligatory upon him, for he slanders each of the two without producing what would cause the cause of his slander to lapse; the ruling therefore becomes applicable to him, since here there exists, with respect to either of them, neither proof nor anything that takes its place (Zad al-Ma'ad, 5/383, 384).
The third case: the husband establishes neither proof nor li'an. The jurists agree: he becomes a slanderer of two persons, each of whom is entitled to the punishment for slander and to the right of demand; whichever of the two demands it is punished, and whoever does not demand it is not, as when a man slanders another man of adultery with a specific woman. This is the view of the majority of scholars, with the exception of the Hanafis: the husband is not punished, but is imprisoned until he invokes the li'an, as detailed earlier (Al-Hawi al-Kabir, 11/66; Al-Mughni, 8/71).
The second effect of the li'an: the separation between the spouses and its nature. The jurists differ: does separation result from the husband's li'an alone, even if the wife does not invoke the imprecation? Or does it occur only through the imprecation of both, with no ruling of a judge required? Or does it occur only after the imprecation of both, followed by the judge's separating ruling? Three opinions of the jurists:
The Shafi'is and the Malikis, in one opinion, hold that separation takes place through the complete li'an of the husband, even without that of the wife, and does not depend on a judge's ruling. Separation belongs exclusively to the husband: he is the one who holds the cause of separation, so that it does not depend on the woman's act, like divorce; and the judge's ruling on separation is an execution, not an enactment, given the report that the Prophet said to the 'Ajlani when the fifth imprecation was offered to him after the four testimonies: "It is the binding one," in order to clarify the status of this formula in producing the effects of the li'an; its taking place through the husband's li'an alone is thereby demonstrated.
Sa'id ibn Jubayr reports from Ibn 'Umar (may Allah be pleased with them both) that the Prophet said:
The two spouses who invoked the mutual imprecation, once separated, never come together againNarrated by al-Bukhari (5006, 5035) and Muslim (1493)
Abu Malik reports, from 'Asim, from Zarr, from 'Ali and 'Abdallah ibn Mas'ud (may Allah be pleased with them both), that they said: "The Sunnah has passed that the two spouses who invoked the mutual imprecation never come together again," alluding to the Sunnah of the Messenger of Allah; he thus gave no one other than the two of them any effect on the separation between them.
Sa'id ibn Jubayr reports from Ibn 'Abbas (may Allah be pleased with them both) that the Prophet said to the two spouses who invoked the mutual imprecation:
Your reckoning is upon Allah: you have no access to her. He said: What is mine then, O Messenger of Allah? He said: You have nothing; if you are truthful, it is regarding what you made lawful of her private part; if you lie, she is even more distant from youNarrated by al-Bukhari (5006, 5035) and Muslim (1493)
His statement "you have no access to her" informs of the taking place of the separation between them; it is not the enacting of separation, which would consist in saying "I have separated you." His informing that the separation had taken place proves that it occurred before his report. Further arguments confirm it: it is a separation stripped of all compensation; if the wife cannot bring it about alone, the husband can bring it about alone, like divorce; it is a statement that prevents the two spouses from agreeing upon the continuance of the marital bond, so the judge's ruling therein is an execution, not an enactment, like proof of a divorce and its acknowledgment; the statements productive of separation do not require, by their very nature, the intervention of a third party, like divorce; the li'an is an oath according to us and a testimony according to Abu Hanifah, and in both cases the ruling is an execution, not an enactment; a ruling of execution is possible without a demand, as in ruling upon a testimony or an oath, whereas a ruling of enactment is possible only after a demand, as with annulment for impotence ('inna) or insolvency regarding maintenance; but the separation of the li'an does not require a demand, which proves that it belongs to execution to the exclusion of enactment; finally, the li'an produces separation and negates lineage: since the negation of lineage takes place through the husband's li'an alone, separation necessarily takes place on the same basis, as one of the two effects of the li'an (Al-Hawi al-Kabir, 11/52, 53; Rawdat al-Talibin, 5/688; Al-Najm al-Wahhaj, 8/113; Mughni al-Muhtaj, 5/75; Tuhfat al-Muhtaj, 9/737; Sharh Ibn Naji al-Tanukhi 'ala Matn al-Risalah, 2/82, 83; Al-Muqaddimat al-Mumahhadat, 1/637).
The Malikis, on the well-known opinion, and the Hanbalis, in their madhhab, hold that separation occurs only through the imprecation of both spouses, and not through that of one of them, with no ruling of a judge being required; and the judge's ruling on separation is an execution, not an enactment, given the report from 'Umar (may Allah be pleased with him): "The two spouses who invoked the mutual imprecation are separated and never come together again." The li'an entails a permanent prohibition; it therefore does not depend on the judge's ruling, like nursing (rida'ah). If separation were accomplished only by the judge's decision, it would be permitted to withhold separation if they disliked it, like separation for defect or insolvency, and the marriage would have to remain in force if the judge did not separate them. The Prophet's statement "you have no access to her" (narrated by al-Bukhari (5006, 5035) and Muslim (1493)) indicates this, and his act of separating them amounts to informing them that the separation had taken place.
Separation does not occur through the husband's li'an alone, because the Law came ordering separation between the two spouses who invoke the imprecation, and they become "mutual imprecators" only through the li'an of both. The Prophet separated them after the complete imprecation of both; to affirm a separation before that is to contradict the meaning of the Sunnah and the act of the Prophet. The words of the li'an do not in themselves entail separation: it is either an oath concerning his wife's adultery, or a testimony to it; without the Law's ordinance of separation between them, it would not have occurred; but it came after the li'an of both, so it cannot be suspended on one part alone, just as it cannot be suspended on part of the husband's li'an. It is an annulment (faskh) established by the oaths of two persons in disagreement; it is not established by the oath of one of them, like the annulment for mutual hostility of contracting parties (Al-Ishraf 'ala Nukat Masa'il al-Khilaf, 3/519, 520; Sharh Ibn Naji al-Tanukhi 'ala Matn al-Risalah, 2/82, 83; Al-Muqaddimat al-Mumahhadat, 1/637; Bidayat al-Mujtahid, 2/91; Al-Mughni, 8/52, 53; Sharh al-Zarkashi, 2/520, 521; Kashshaf al-Qina', 5/469; Sharh Muntaha al-Iradat, 5/572).
The Hanafis, and the Hanbalis in one transmission, hold that when the li'an has taken place, the separation between the spouses becomes obligatory, but that it does not occur by itself: the judge's decision is indispensable. Until it takes place, divorce by the husband, zhihar and ila' remain valid, and mutual inheritance continues between them if one of the two dies before the separation, given the report of Nafi', from Ibn 'Umar (may Allah be pleased with them both):
A man invoked the imprecation against his wife in the lifetime of the Prophet and denied her child; the Prophet separated them and attached the child to the motherNarrated by al-Bukhari (6367)
Ibn Shihab reports that Sahl ibn Sa'd al-Sa'idi informed him: 'Uwaymir al-'Ajlani came to 'Asim ibn 'Adi al-Ansari and said to him: O 'Asim, consider a man who finds a man with his wife: must he kill him, and would you kill him, or what should he do? Ask for me, O 'Asim, the Messenger of Allah about this. 'Asim asked the Messenger of Allah, who disapproved of such questions and censured them, to the point that what 'Asim heard from the Messenger of Allah weighed heavily upon him. When he returned to his family, 'Uwaymir came and said: O 'Asim, what did the Messenger of Allah say to you? 'Asim replied: you have brought me no good news; the Messenger of Allah disapproved of the question I asked him. 'Uwaymir said: by Allah, I shall not stop until I ask him about it myself. He therefore came to the Messenger of Allah in the midst of the people and said: O Messenger of Allah, consider a man who finds a man with his wife: must he kill him, and would you kill him, or what should he do? The Messenger of Allah said: Allah has sent down revelation concerning you and your companion; go and bring her. Sahl said: they invoked the mutual imprecation while I was among the people, in the presence of the Messenger of Allah. When they had finished, 'Uwaymir said: I lied about her, O Messenger of Allah, if I keep her; and he divorced her three times before the Messenger of Allah even ordered him to. Ibn Shihab said: that was the year of the two spouses who invoked the mutual imprecation (Narrated by al-Bukhari (4959) and Muslim (1492)).
This report demonstrates that the li'an did not itself bring about the separation, given his statement "I lied about her, O Messenger of Allah, if I keep her": he informs, indeed, that he still keeps her after the li'an, in the state in which the marriage stood; had the separation already taken place, his statement "I lied about her if I keep her" would have been impossible, he being no longer her keeper. Since he announces, after the li'an and in the Prophet's presence, that he keeps her, without the Prophet disapproving of him, this proves that the separation did not take place by itself: the Prophet cannot approve of a man's lie, nor of the lawfulness of a marriage that has been annulled.
Supporting this is the report that the Messenger of Allah pronounced the imprecation between 'Uwaymir al-'Ajlani and his wife; when they had finished the imprecation, he separated them, then said:
Allah knows that one of you two is lying; will either of you two repent? He said that three times; they refused, and he separated themNarrated by al-Bukhari (4959) and Muslim (1492)
The hadiths therefore demonstrate that separation occurs neither through the husband's li'an nor through that of the wife: otherwise, the separation carried out by the Messenger of Allah after the separation had taken place between them through the li'an alone would be unintelligible. The ownership of the marriage was established before the imprecation, and the rule is that a right, once established for a person, does not cease except by its removal or when its holder ceases to benefit from it; the removal did not take place at the husband's hand, for the li'an does not announce the extinction of the right: it is a testimony confirmed by an oath, or an oath; and neither the one nor the other announces the extinction of a right, which is why the right does not cease through other testimonies and oaths; the capacity to withhold remains established, and separation therefore does not take place through the li'an alone.
Moreover, Allah addressed His word to the spouses concerning the li'an: "And those who accuse their own wives," to the end of the passage; if separation were accomplished through the husband's li'an alone, the wife would invoke the imprecation against him while no longer being his wife, which contradicts the text. Furthermore, it is a separation whose cause is established only before the judge; it therefore occurs between them only through his ruling, like impotence ('inna), whose cause, during its waiting period, is established only by a ruling, and whose separation occurs only by a ruling. The li'an is also a cause by which the slanderer leaves behind his slander; separation therefore occurs only by a ruling, as with proof. Finally, separation occurs only through what expresses its meaning, an explicit formulation (sarih) or an allusion (kinayah), and the li'an contains neither (Ahkam al-Qur'an, 5/150, 151; Bada'i' al-Sana'i', 3/244, 245; Al-Jawharah al-Nayyirah, 4/563; Hashiyat Ibn Abidin, 3/488; Al-Mughni, 8/52, 53; Sharh al-Zarkashi, 2/520, 521).
The jurists differ over the legal qualification of the separation produced by the li'an: is it an annulment (faskh) or a divorce (talaq)? The stake of the question: whoever holds it to be an annulment establishes a permanent prohibition, while whoever holds it to be a divorce does not establish that permanence, as will appear in the following question.
The majority of jurists, namely the Malikis, the Shafi'is and the Hanbalis, together with Abu Yusuf, Zufar and al-Hasan ibn Ziyad among the Hanafis, hold that the separation produced by the li'an is a separation by annulment: it entails a permanent prohibition and is therefore an annulment, like separation through nursing. Their proof: the Prophet's statement "The two spouses who invoked the mutual imprecation never come together again," an explicit text on this chapter; the li'an is neither an explicit formulation nor an allusion to divorce: even with the intention of divorcing, it would not be a divorce, as with everything that dissolves the marriage; were it a divorce, it would occur through the husband's li'an alone, without that of the wife; and if the li'an were explicit or allusive as divorce, it would occur through the husband's li'an alone, without depending on the wife's.
Were it a divorce, it would be the divorce of a woman with whom the marriage has been consummated, without the intention of three pronouncements: it would therefore be revocable. But divorce is in the hand of the husband, who divorces or keeps as he chooses, whereas this annulment takes place through the Law, without his choice. And since it is established by the Sunnah, the statements of the Companions, and the indication of the Qur'an that the separation of khul' is not a divorce but an annulment, according to the Hanbalis, even though it takes place by the mutual consent of the two spouses, how could the separation of the li'an be a divorce? (Bada'i' al-Sana'i', 3/245, 246; Al-Tamhid, 15/34; Al-Ishraf 'ala Nukat Masa'il al-Khilaf, 3/520; Bidayat al-Mujtahid, 2/91; Rawdat al-Talibin, 5/687; Mughni al-Muhtaj, 5/75; Tuhfat al-Muhtaj, 9/737; Al-Mughni, 8/53, 54; Al-Ifsah, 2/193; Al-Kafi, 3/289; Zad al-Ma'ad, 5/390, 391; Sharh al-Zarkashi, 2/522).
The two imams Abu Hanifah and Muhammad (ibn al-Hasan) hold that the separation produced by the li'an is a divorce: a definitive rupture (bayn) by pronouncement; ownership of the marriage ceases, and the prohibition of intercourse and remarriage remains established as long as they remain in the state of the li'an. The Messenger of Allah pronounced the imprecation between 'Uwaymir al-'Ajlani and his wife, and 'Uwaymir said: "I lied about her, O Messenger of Allah, if I keep her: she is divorced three times"; in some transmissions: "if I do not part from her, she is divorced three times." Divorce after the li'an thus became the Sunnah of the two spouses who invoke the imprecation, for 'Uwaymir divorced his wife three times after the imprecation, before the Messenger of Allah, who carried it out upon him; every mutual imprecator must therefore divorce, and if he refuses, the judge takes his place in separating them: it will be a divorce, as with impotent husbands ('innin). Moreover, the cause of this separation is the husband's slander, which entails the li'an, which entails the separation, which entails the rupture: the rupture is traced, through these intermediaries, back to the initial slander; and every separation that proceeds from the husband, or of which the husband's act is the cause, is a divorce, as with impotence ('innin), khul' and ila'.
Imam Ibn Qudamah (may Allah have mercy on him) states: the people of knowledge do not differ over the fact that, if he does not deny himself, she is never lawful to him, except for an aberrant opinion. There has indeed arisen between them a rupture, mutual hatred, estrangement, and the invalidation of the rights of Allah, which requires that they never come together again: the marital bond is built upon affection and mercy, and these two are utterly devoid of them; their punishment at the very least is separation. In sum, the ugliness that separates them is of the utmost (Al-Mughni, 8/54; Bidayat al-Mujtahid, 2/91).
If the husband denies himself, or if the wife denies herself, does the prohibition become permanent? May he marry her again? The jurists differ over the case of the husband who denies himself, upon whom the punishment for slander is inflicted, or of the wife who denies herself: does the prohibition become permanent, or not, remarriage being then permitted?
The majority of jurists, namely the Malikis, the Shafi'is and the Hanbalis in their madhhab, together with Abu Yusuf among the Hanafis, hold that the li'an renders her permanently forbidden to him, so that she is never lawful to him; even if he denies himself, undergoes the punishment, and the child is attached to him, she never returns to him. Sahl ibn Sa'd (may Allah be pleased with him) said:
The Sunnah has since become established concerning the two spouses who invoke the mutual imprecation: that they be separated, and then never come together againSahih hadith, narrated by Abu Dawud (2250)
'Umar (may Allah be pleased with him) said:
The two spouses who invoked the mutual imprecation are separated and never come together againSahih hadith, narrated by Sa'id ibn Mansur in his Sunan (1561), Ibn Abi Shaybah in his Musannaf (17369), and al-Bayhaqi in as-Sunan al-Kubra (15136)
'Ali (hasan hadith, narrated by Abd al-Razzaq in al-Musannaf, 7/112, no. 12436; Ibn Abi Shaybah in his Musannaf, 4/351, no. 17658; al-Daraqutni, 4/417) and Ibn Mas'ud (hasan hadith, narrated by Abd al-Razzaq in al-Musannaf, 7/112, no. 12434) said similar things.
It is a prohibition that is not lifted by the punishment and the self-denial, like the prohibition through nursing. The Prophet said to the two spouses who invoked the imprecation:
Your reckoning is upon Allah; one of you two is lying; you have no access to herNarrated by al-Bukhari (5006, 5035) and Muslim (1493)
He did not say to him "unless you deny yourself." It is therefore like the permanent prohibition of mothers and of those mentioned along with them; every prohibition of absolute and permanent scope belongs to this category. Consider the man who divorces three times: his prohibition not being permanent, the condition of remarriage to another husband was attached to it; had He said "if he divorces her, she shall never be lawful to him," it would have been an absolute prohibition, with no return ever. But the Prophet made the prohibition of the mutual imprecation absolute, without limiting it to a time: it is therefore permanent. If he denies himself, the child returns to him, for it is a right he had denied and then returned to by acknowledgment; the marriage is not so, for it is a right fixed by his statement "you have no access to her," which he therefore cannot annul (Sharh Sahih al-Bukhari, 7/477; Al-Tamhid, 15/29, 30; Al-Istidhkar, 6/101, 103; Al-Kafi, 290; Al-Najm al-Wahhaj, 8/113, 114; Mughni al-Muhtaj, 5/75; Al-Mughni, 8/55; Al-Mubdi', 7/62; Sharh Muntaha al-Iradat, 5/572; Kashshaf al-Qina', 5/469; Manar al-Sabil, 3/150).
By analogy: it is the prohibition of a bond that is lifted only by self-denial and the punishment; it is therefore not lifted by self-denial and the punishment, like the prohibition through affinity (musaharah). It is a formulation coined for separation; its prohibition therefore is not lifted by self-denial, as with divorce. The prohibition of a wife divides into four categories: a prohibition lifted without a contract, like revocable divorce during the 'iddah; a prohibition lifted by a contract, like revocable divorce after the 'iddah; a prohibition by contract together with another husband, like triple divorce; a permanent prohibition, like that of affinity and nursing. Since the prohibition of the li'an is not comparable to the first three regarding their conditions of lawfulness, it must therefore be comparable to the fourth in the permanence of the prohibition (Al-Hawi al-Kabir, 11/76).
It is stated in Al-Mudawwanah al-Kubrah: Ibn al-Qasim was asked: what do you say of the mutual imprecator who denies himself after the li'an has been completed: is it lawful for him to marry her according to Malik's opinion? He replied that Malik said: she is never lawful to him; he undergoes the punishment, and the child is attached to him. Ibn Wahb reports that Malik said: the Sunnah concerning the two spouses who invoke the imprecation is that they never come together again; if he denies himself, he undergoes the punishment, the child is attached to him, and his wife never returns to him. Malik said: this Sunnah, according to us, admits no doubt. Ibn Wahb reports that Ibn Shihab, Yahya ibn Sa'id and Rabi'ah ibn Abi Abd al-Rahman said similar things; Ibn Lahi'ah and al-Layth reported from Ubaydallah ibn Abi Ja'far, from Bukayr ibn al-Ashajj, that the mutual imprecation is final: they no longer inherit from one another and never come together again; she has the 'iddah of a divorced woman, and any mahr due to her remains due (Al-Mudawwanah al-Kubrah, 6/107).
Imam Malik (may Allah have mercy on him) states in the Muwatta: the Sunnah among us is that the two spouses who invoke the imprecation never come together again; if he denies himself, he undergoes the punishment, the child is attached to him, and she never returns to him; upon this rests the Sunnah among us, which admits no doubt (Al-Muwatta, 2/568).
Imam al-Shafi'i (may Allah have mercy on him) states: when the husband completes the testimonies and the imprecation, his wife's bed has ceased; she is never lawful to him in any case, whether he denies himself or not, whether she invoked the imprecation or not, whether she was punished or not. He said: I say this because the Messenger of Allah said: "The child (belongs to) the bed," and it was a bed; the child cannot therefore be negated from the bed as long as the bed has not ceased to be a bed. Malik informed us, from Nafi', from Ibn 'Umar, that "the Messenger of Allah separated the two spouses who invoked the imprecation and attached the child to the woman" (Al-Umm, 5/291).
Abu Hanifah and Muhammad, and Imam Ahmad in one transmission, hold that the husband may not be with his wife even once as long as they remain in the state of their mutual imprecation; but if he denies himself and the punishment for slander is inflicted, it becomes lawful for him to marry her again: we all agree that if he denies himself, he undergoes the punishment and the child returns to him; likewise the marriage becomes lawful again, just as the child returns; there is no difference between these, and he then becomes like a marriage suitor among suitors.
As for the hadith of al-Zuhri, from Sahl ibn Sa'd al-Sa'idi, concerning the account of the imprecation pronounced by the Messenger of Allah between the two spouses, in which Sahl said: "The Sunnah has since become established concerning the two spouses who invoke the mutual imprecation: that they be separated, and then never come together again" (Narrated by Abu Dawud (2250)), the answer is that it may well concern the mutual imprecator while he was still maintaining the slander for which he had invoked the imprecation against his wife; and we have found, from al-Zuhri himself, a position that goes in this direction as well, as we have mentioned among these possibilities. It is indeed reported from him, concerning the two spouses who invoke the imprecation, that he said: "They never return to one another, unless he denies himself, undergoes the punishment, her innocence becomes manifest, and there is then no blame upon them in returning to one another."
It is likewise reported from Sa'id ibn al-Musayyab that the mutual imprecator who denies himself has his wife returned to him, that is, by a new contract. Hammad reports from Ibrahim that he said: if he is flogged after that, the mutual imprecator becomes a marriage suitor among suitors: he marries her if he wishes, and she (the wife) if she wishes. Our argument: we observed from the outset that the woman may demand of the husband that he invoke against her the li'an that produces separation between them, and that if the husband denies himself, undergoes the punishment, and the woman then demands separation from him on the basis of the statement he had made against her, that is no longer hers; the cause for which the li'an was pronounced between them, namely the husband's remaining in the state he was in toward his wife, thus vanishes with the vanishing of that cause and through the infliction of the punishment due upon him; they then stand as spouses as they were before that statement. The same holds by analogy when separation has taken place after the li'an: the ruling preventing them from coming together remained established only as long as the statement which, from the outset, entailed the li'an and produced separation remained in place; once that statement vanishes and they are able to return to their prior state, it is likewise after the separation; and the obstacle to their coming together in the second case is the statement that entailed the li'an, which produces the impossibility of coming together; when that meaning vanishes, what prevents them from coming together vanishes.
The proof of the lawfulness of their marriage when he denies himself and undergoes the punishment for slander lies in the general scope of the verses permitting marriage contracts, such as:
"Lawful to you are all others beyond those (mentioned)"
Surah An-Nisa, 24
"So marry the women that please you"
Surah An-Nisa, 3
"And marry the unmarried among you"
Surah An-Nur, 32
Another line of analysis: we have shown that this separation is tied to the judge's ruling, and every separation tied to the judge's ruling does not entail a permanent prohibition; the proof is that all other separations tied to the judge's ruling entail no permanent prohibition, like the separation of impotent couples ('innin) and the option of minors, and likewise all separations connected with the judge's ruling. Moreover, the cause of this separation is the husband's slander, which entails the li'an, which entails the separation, which entails the rupture: the rupture is traced, through these intermediaries, back to the initial slander; and every separation that proceeds from the husband, or of which the husband's act is the cause, is a divorce, as with impotence ('innin), khul' and ila' and the like.
As for the hadith, it cannot be acted upon according to its letter: the true mutual imprecator is the one engaged in the act; and once they had finished the imprecation, they were no longer mutual imprecators in reality; the meaning then transferred to the ruling: that the ruling of their mutual imprecation remain established. If he denies himself and undergoes the punishment for slander, the ruling of the li'an falls; they are no longer mutual imprecators, neither in reality nor in ruling, and their coming together therefore becomes possible. The verse about the account of the People of the Cave is its parallel:
"Indeed, if they prevail over you, they will stone you or force you back into their religion, and then you would never succeed"
Surah Al-Kahf, 20
That is: as long as they remain in their religion; note that they succeed as soon as they do not do so; it is the same here (Sharh Mushkil al-Athar, 3/303, 308; Ahkam al-Qur'an, 5/155, 158; Bada'i' al-Sana'i', 3/246; Al-Muhit al-Burhani, 4/65; Al-Jawharah al-Nayyirah, 4/564).
Ibn Qudamah (may Allah have mercy on him) specifies: the li'an renders her permanently forbidden to him, so that she is never lawful to him, even if he denies himself, according to the apparent meaning of the madhhab; and the people of knowledge do not differ over the fact that, if he does not deny himself, she is never lawful to him, except for an aberrant opinion. As for the case where he denies himself, what the company transmitted from Ahmad is that she does not become lawful to him either; and the reports from 'Umar ibn al-Khattab, 'Ali ibn Abi Talib and Ibn Mas'ud (may Allah be pleased with them) establish that the two spouses who invoke the imprecation never come together again; of the same view: al-Hasan, 'Ata', Jabir ibn Zayd, al-Nakha'i, al-Zuhri, al-Hakam, Malik, al-Thawri, al-Awza'i, al-Shafi'i, Abu Ubayd, Abu Thawr and Abu Yusuf.
Another transmission from Ahmad relates that if he denies himself, she becomes lawful to him and his bed returns to what it was; it is an aberrant transmission by which Hanbal departed from his companions. Abu Bakr says: we know of no one else who transmitted it; this transmission should be understood as referring to the case where the judge did not separate them; but with the judge's separation, no continuation of the marriage in its state makes any sense; and we have mentioned al-Batti's position that the li'an produces no separation. Sa'id ibn al-Musayyab: if he denies himself, he is a marriage suitor among suitors, a view followed by Abu Hanifah and Muhammad ibn al-Hasan, the separation of the li'an being a divorce in their view. Sa'id ibn Jubayr: if he denies himself, she is returned to him as long as she is in her 'iddah. Our proof: the hadith of Sahl ibn Sa'd, "The Sunnah has become established concerning the two spouses who invoke the imprecation: that they be separated, and then never come together again," transmitted by al-Jawzajani in his book with his chain of transmission, and similar reports have been transmitted.