Some issues about divorce and 'Eelaa'
12-10-2009 | IslamWeb
Question:
I have two questions related to Divorce:
1. The Hanafi school's opinion is that if a divorce is executed via an indirect or implied statement then the nikkah terminates immediately even if this is the first or second divorce.
Is this opinion correct? Are scholar's of other school approve this opinion? Why Hanafi's do not allow to unite without a new nikkah if this was the first or second divorce (in case when an implied or indirect statement was used to issue divorce)?
2. If a husband takes an oath to not have sexual relations with his wife and the period of 4 months elapses then does this cause automatic divorce between them? I believe this is the stance of the Hanafi school. Can you please clarify if other scholars hold this view as well. I was under the impression that the husband is asked to divorce his wife after four months (no automatic divorce) and if he refuses then a judge can annull the marriage.
Secondly, if the husband does have sexual relations before the four month time limit expire (like within the first 1-2 months) then is the nikkah intact and valid? and what kaffarah husband has to offer, if any?
Lastly, if wife forces the husband to make such a promise to not have sexual relation with her (due to personal marriage related problems) but husband stays quite (does not make a promise) and later in the same conversation he says that "Yes I will be careful and will watch out to not have sexual activity" (he did not intend to make an oath or promise) then will such situation/statement falls under the ruling of oath of sexual abstinance?
Jazzak Allah.
Answer:
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad, sallallaahu ‘alayhi wa sallam, is His Slave and Messenger.
The Hanafi scholars divide the metaphors of divorce into two categories:
1- Metaphors with which divorce occurs once in a revocable manner. Words of this category are like, "Observe your ‘Iddah", "Make sure that you are not pregnant" or the like which implies divorce.
2- Words with which divorce occurs irrevocably one time, such as "It is irrevocable", "It is absolute", "She is forbidden to me", or the like which implies strong intention of irrevocable divorce.
We drew this conclusion from “Al-Bahr Ar-Raa’iq” by Ibn Nujaym 
and this shows that the Hanafi scholars detailed the issue of divorce by indirect words. In fact, we did not find any school of jurisprudence having the same details of the Hanafi scholars.
As for renewing the marriage contract, it depends on the type of divorce which occurred by indirect words. If the divorce is revocable, it does not need a new contract unless the woman's ‘Iddah expired. If the divorce is irrevocable or revocable but the woman's ‘Iddah expired, it needs a new contract. This is the answer to the first question.
With regard to the second question, the scholars differed about Eelaa’ (a husband swearing not to have sexual intercourse with his wife and refusing to approach her) when its period elapses. The majority of scholars held the opinion that when the period of Eelaa’ elapses, the husband has to choose to return to sexual activity with his wife or to divorce her. The Hanafi scholars said that the woman is automatically divorced after this period elapses. The preponderant opinion is the opinion of the majority of scholars. Allaah The Almighty Says (what means): {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, Allaah Is Forgiving and Merciful.}[Quran 2:226] The verse apparently signifies that the period of return is after four months. The verses continue (what means): {And if they decide on divorce - then indeed, Allaah Is Hearing and Merciful.}[Quran 2:227] Had divorce occurred automatically after the elapse of this period, there would have been no need for deciding on divorce, as Ibn Qudaamah said in “Al-Mughni”.
However, if the man, who swore not to have sexual intercourse with his wife, had intercourse with her, he would be no longer doing Eelaa’, but he is required to make expiation, according to the majority of scholars, because he broke his oath. Allaah The Almighty Says (what means): {He Will Impose blame upon you for [breaking] what you intended of oaths. So its expiation is the feeding of ten needy people.}[Quran 5:89] So, marriage remains valid and Eelaa’ alone does not affect the marriage bond. For further information, see Fataawa 89737 and 88228.
On the other hand, the Muslim jurists differed about if the husband stopped having intercourse with his wife without swearing. The majority of scholars held that he the ruling of Eelaa’ does not apply to him unless he swears not to have intercourse even if he intends to harm his wife. Imaam Maalik considered it Eelaa’ if the husband intended to harm his wife by avoiding intercourse with her, otherwise there will be no Eelaa’, according to him, if the husband does not intend harm. Thus, the majority of scholars based their ruling on the apparent meaning of Eelaa’, whereas Imaam Maalik considered the purpose behind it, as Ibn Rushd stated in “Bidaayat Al-Mujtahid”. The opinion of the majority of scholars is the preponderant one. Ibn ‘Abbaas 
said: "There is no Eelaa’ until it is accompanied by an oath." ‘Ataa’ said, "Eelaa’ occurs only by swearing not to have intercourse [with the wife]." It was narrated on the authority of Abu Hurrah that he asked Al-Hasan about a man who deserted his wife for seven months, he said, "This a long desertion." I asked him if this would be considered Eelaa’, he asked, "Did he swear [to avoid intercourse with her]?" I said, "No." He replied, "There is no Eelaa’ until he swears."