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Foreswearing And Beating Of Wives (2)

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For those who take an oath for abstention from their wives, a waiting for four months is ordained; if then they return, Allah is Oft-forgiving, Most Merciful. (Al-Baqarah 2: 226)
As mentioned earlier, the verse is speaking about ee’laa, where a man vows, swears not to sleep with his wife for a certain period, the maximum of which must not exceed four months. 
By what will such vow be? If any has to swear, they should swear by the name of Allah, or they remain silent. Therefore, if any swears by Allah that they will not have sexual intercourse with their wife, there are conditions that must be observed. But where he swears by anything other than Allah, the laws governing ee’laa do not apply. Some of the scholars said any form of oath taken in this respect, like using Allah’s attributes, His Book, or His Messenger, or His House, the Ka’bah, the laws apply. If after taking an oath by any of the aforementioned, the man sleeps with his wife, he has to expiate by fasting for a complete month. 
What are the conditions governing ee’laa? 
The scholars said, if he swears not to sleep with his wife for a period of four (4) months and above, that is ee’laa; but where the period is just for a month, for example, is it not ee’laa. This is like any other oath. He can abstain from her, and fulfil his oath, or break the oath and expiate by feeding or clothing ten needy persons, or manumitting a slave, or fasting for three days if he is not able to do any of the options. 
Other scholars said, the length of the time is immaterial, it is still considered as ee’laa where a man swears not to sleep with his wife for a certain period, whether less or more than four months. If the vow of ee’laa was for less than four months, the man has to wait for the vow’s period to end and then is allowed to have sexual intercourse with his wife. It is reported in the Two Sahihs that `A’ishah said that Allah’s Messenger swore he would stay away from his wives for a month. So, even a month qualifies as ee’laa in an oath of abstention from conjugal relation.
“….if then they return, Allah is Oft-forgiving, Most Merciful.” If they, the menfolk, break their oath, resume sexual relation, and expiate for the vow, then, Allah is Oft-Forgiving, Most Merciful. 
Interestingly, some scholars are opposed to the kaffaarah of ee’laa. They question the authority upon which an expiation on such oath is built if any. The Qur’an has not mentioned any expiation. “…if then they return, Allah is Oft-forgiving, Most Merciful.” Full stop. No kaffaarah is mentioned here. The husband vowed not to grant his wife her conjugal rights because she annoyed him on something. If that husband now returns to her to give her what is her due, why will he be made to expiate for doing the right thing? He breaks the oath, and Allah is Oft-Forgiving, Most Merciful. 
Those among the scholars who sanctioned kaffaarah said, he has to expiate, then Allah will forgive him the harm he caused his wife by the abstention, and breaking the oath that he made.
But if their intention is firm for divorce, Allah heareth and knoweth all things. (Al-Baqarah 2:227)
If reconciliation is not possible after the expiration of the four-month period of ee’laa, and divorce remains the only way out, Allah hears and knows the intention behind the man’s insistence on separation.
This divorce; is it the husband that will divorce her,  or the marriage is automatically set asunder?  Some scholars said if the husband refuses to break his oath before the end of the four-month period, the marriage is set asunder, and the wife is irrevocably divorced. 
Some said he is to divorce her after the passage of the period of ee’laa as he does not sleep with her or break his oath. And in that case, it is a retroactive divorce. But others said it is an irrevocable divorce. 
Still, an opinion said, the marriage subsists; the husband cannot divorce her. It is for the wife to approach the court, where the husband is invited and advised to either break his oath by resuming sexual relations with his wife or to divorce her. If he refuses to do either of the two, the judge sets the marriage asunder, with or without the husband’s consent. 
The difference of opinion among scholars, especially on the issue of ee’laa, may pose a challenge to many people in their attempt to arrive at a position on the matter, to even understand the varying opinions on the issue. The subtle message is that we should avoid putting ourselves in the difficult situation of making any vow against our wives whatever the provocation. 
And one may be tempted to question the reason for all these divergent views. Everyone appears to have an authority to support their stand, on a very simple issue. A man vows not to have an amatory relationship with his wife for a certain period of time, why not just stop at telling him to break his vow or the wife to approach the judge? What is the use of all these strange details? As if these jurists, by these twists and turns in juristic opinions, are subtly passing the message that it is better for one to avoid making any vows on such matters. 
Let us set some examples without going deep into scholastic disagreements:
  1. a man vows not to sleep with his wife in a marriage that has not yet been consummated; is ee’laa valid in such case?  They said, no, it is not valid. They also said, in another opinion, that ee’laa is valid even without consummation since the husband has the right to sleep with his wife, so by vowing not to, he has only postponed what is his right to do. 
  2. Is ee’laa valid for less or more than four months? They said it is only valid from four months upward, while others said it is valid for less than four months. And their reasons are; a) “For those who take an oath for abstention from their wives, a waiting for four months is ordained;” therefore, according to this verse, they are to wait for four months. “….if then they return,” within the period of four months, then, “Allah is Oft-forgiving, Most Merciful.” “But if their intention is firm for divorce,” by not returning to the wives within the period of four months, the wife is divorced, and “Allah heareth and knoweth all things.” This is an opinion of the Hanafischool.
  3. Others said, “For those who take an oath for abstention from their wives, a waiting for four months is ordained;” completely. “…if they return,” after the expiration of the months, not within it, “Allah is Oft-Forgiving, Most Merciful.” “But if their intention is firm for divorce, Allah hears and knows all things.” Allah hears means the husband must pronounce the word of divorce, by declaring to the wife that she is divorced, as against the position of Abu Haneefah that the wife is divorced even without the husband saying so, once the period expires. Therefore, after firm intention for divorce, the decision must be heard, pronounced, and uttered. 
  4. Maliki school said, no; the wife has accepted the fact that the husband has vowed not to sleep with her. She waited for the term of the vowed, after which the husband expiates, and normalcy is restored, and that is all. Why is the issue of divorce mentioned since Allah has said, ‘if their intention is firm for divorce’ and the husband has not so affirmed any intention for divorce? Why should anybody set the marriage asunder? It is not necessary, said the Maliki school, to void the marriage after the expiration of the period, as it is not the husband’s intention to divorce his wife. He vowed, then broke his vow or waited until the vow reached its term, and accepted his wife thereafter; period. Except where she wife goes to the judge and complains about her husband’s desertion, in which case the judge will call the husband and give him the option of having the sexual relationship with his wife within the four-month period, stipulated by Allah, or divorce her, otherwise, the judge  will set the marriage asunder. 
  5. On returning to a normal marital relationship in order to break the oath, some said, the husband has to audibly pronounce the words, like, ‘I accept you, make you whole; I break my oath.’ Some of them said, never; what kind of return is this? The man vowed not to have sexual intercourse with his wife. To return properly and break that oath he has to sleep with her. That is the meaning of ‘if they return..’ as mentioned by the Qur’an. What happens where the husband is ill, or has travelled to another country, or is imprisoned? The oath must reach its term and the wife divorced, or what? They said in the case of a disabling impediment to intercourse the oath could be broken by pronouncement with the proviso that intercourse will occur as soon as practicable, the refusal of which sets the marriage asunder. While some of them are averse to this position and said that returning and breaking of the oath should only be achieved through intercourse, whatever is the condition of the husband. Why will the husband make such oath knowing that he is not a position to fulfil the conditions? What about an old man who lacks vigour; can he make the oath? How can one make an oath on something over which he has no control? Surprisingly, some of them said, yes, he can. How will an aged man return to break the oath? They said through intercourse. 
A student of the scripture will enjoy the display of different opinions on the text by various scholars. What is important is for us to take heed, and understand the subtle message the scholars are passing to us through the expression of their understanding of the verses in the Qur’an, and avoid putting ourselves in unnecessary difficulty. We should, therefore, refrain from hastening in doing today what could be delayed for tomorrow; not to swear concerning anything whether we have control over it or not.
 

On the issue under discussion, Allah has given us a number of options so we do not render void our marriage unions, as we have seen in this verse: admonish, stay away from her to show disapproval of her attitude, and so on, in order to restore normalcy to the marriage consortium. Yes, you are the head of the family but do not act as a dictator. Treat issues with love, compassion and tenderness. Your wife has forsaken everybody in order to be with you, so together both of you can raise a family, a new generation.

She deserves your respect, care and understanding. You must consort with her in kindness, fear Allah, and honour her. Where misunderstanding occurs, as is bound to happen, all efforts must not be spared in resolving the crisis within the confines of the house. Outside intervention, often times, marks the beginning of the end.

Yes, the Qur’an speaks about arbiters from both sides, but that is a worst-case scenario. None of you should noise abroad the problems you face as a couple; not even the children who live with you under the same roof will perceive the existence of any rift. Disagreements and quarrels will come and disappear without your children seeing any traces of disaffection in your countenances. 

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