In the name of Allah, the Most Gracious, the Most Merciful. All praise is due to Allah. I bear witness that there is no god but Allah, alone, without partner, and I bear witness that Muhammad is His servant and Messenger ﷺ.
This is a summary of what was presented in the audio segment of the debate of Imam al-Shafi’i, may Allah have mercy on him, on the question of the oath of abstention (ila’), focusing on the arguments of both sides and how to weigh between them, and clarifying the important aspects:
The question of ila’:
The subject of this segment is a debate of Imam al-Shafi’i on the interpretation of the verse of ila’: “For those who swear not to have sexual relations with their wives is a waiting time of four months, but if they return [to normal relations] - then indeed, Allah is Forgiving and Merciful. And if they decide on divorce - then indeed, Allah is Hearing and Knowing” (al-Baqarah 2:226-227), and on explaining the ruling on the mu’li after the four months have passed.
The main points Imam al-Shafi’i addressed in this debate:
- The meaning of ila’: Imam al-Shafi’i clarifies that ila’ is the husband’s swearing that he will not approach his wife.
- The ruling on returning before the four months have passed: Imam al-Shafi’i shows that if the husband has intercourse with his wife before the four months have passed, he has returned and the ila’ has ended, and nothing is due from him except the expiation for the oath. He likens this to someone who pays a debt before it falls due.
- The difference between resolving to return and doing it: Imam al-Shafi’i distinguishes between resolving to return (the intention) and the act (intercourse), showing that what counts is the act. So if the husband resolved every day to return but did not have intercourse with his wife until the four months had passed, he is required to do one of two things: return or divorce. Likewise, if he resolved not to return and then had intercourse with his wife before the four months had passed, the ila’ has ended.
- Responding to those who said that the passing of the four months is itself divorce: Imam al-Shafi’i responds to those who said that the passing of the four months counts as a divorce, showing that this view contradicts the apparent meaning of the verse, which mentions returning and deciding on divorce after the four months have passed. This indicates that divorce does not take effect by the mere passing of the period; rather, the husband is given the choice between returning and divorce.
- Clarifying the meaning of the verse: Imam al-Shafi’i clarifies that the meaning of the verse is that if the husband swears that he will not approach his wife, he is given a respite of four months; when this period has passed, he is given the choice between two things: returning (through intercourse) or deciding on divorce (by pronouncing it). If he neither returns nor divorces, the judge obliges him to do one of the two, and if he refuses, the judge pronounces the divorce on his behalf.
- The difference between desertion and ila’: Imam al-Shafi’i shows that there is a difference between desertion (hajr) and ila’: ila’ is swearing not to approach the wife, whereas desertion is leaving off sharing her bed, or speaking to her, or other forms of turning away from the wife, and it may be without an oath.
- Responding to those who drew an analogy from ila’ to saying “You are divorced in four months”: Imam al-Shafi’i responds to those who drew an analogy from ila’ to a man’s saying to his wife “You are divorced in four months”, showing that the analogy is not valid, because ila’ is an oath, and then the Law brought a special ruling after the period has passed, namely giving the husband the choice between returning and divorce; unlike his saying “You are divorced in four months”, which is regarded as suspending the divorce on a condition, so the divorce takes effect by the mere passing of the period.
- Clarifying the judge’s ruling in ila’: Imam al-Shafi’i clarifies that after the four months have passed, the judge does not pronounce the divorce directly; rather, he gives the husband the choice between returning and divorce, and if he refuses both, the judge pronounces the divorce on his behalf.
Additional clarifications:
- Ila’: the husband’s swearing that he will not approach his wife.
- Fay’ah: returning to the wife through intercourse.
Final conclusion:
In this debate Imam al-Shafi’i shows the ruling on ila’ and how to deal with the mu’li after the four months have passed, stressing that divorce does not take effect by the mere passing of the period; rather, the husband is given the choice between returning and divorce, and the judge obliges him to do one of the two, and if he refuses, the judge pronounces the divorce on his behalf. He clarifies the difference between ila’ and desertion, and responds to some mistaken analogies in this question. This segment displays Imam al-Shafi’i’s skill in debate, inference, and weighing between proofs and opinions.
All parts of Summary of the Explanation of al-Shafi'i's al-Risala by Dr. Yasir Burhami