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Forswearing in Permanent Marriage

Adopted from the Book : "Temporary Marriage in Islamic Laws" by : "Sachiko Marata"

V. Forswearing (Ila')

'Forswearing' means to swear an oath in God's name not to have sexual relations with one's wife, either absolutely, or for a period of more than four months. Since the sharia forbids a husband from refraining from sexual intercourse with his wife for more than four months, once the four months have passed, the wife has a valid reason to have recourse to a qadhi. If the husband should break the oath, he must pay the expiation (kaffara) set by the law for the breaking of an oath. If he holds to his oath and the four months pass, the wife may go before a qadi and request that he clarify her marital situation. According to the wife's wishes, the qadi will either order the husband to return to his wife or to divorce her. If the husband is ordered to return to her but refuses, the qadi will then order him to divorce her. If he also refuses that, the qadil will grant her a revocable divorce. The Shi'is differ here by holding that the qadi does not have the right to grant divorce in the husband's stead; however, he can force the husband-by imprisonment or other means at his disposal-to take one of the two courses open to him, i.e., to return to her or divorce her.1 The Hanafis say that once the period of the husband's oath comes to an end, the woman is divorced irrevocably, without any need for the husband's pronouncement of the formula.2 The Shi'is hold that forswearing may not take place in the case of a virgin.3 The Sunni schools disagree and add that if her husband
1. Sharh al-lum'a, VI, 160; Riyad, II, 123.

2. Fiqh, IV, 485.

3. Riyad, II,122.

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