Part 3: Family Law (Munakahat) – Oath of abstention (Ila’)

Part of a series on the structure of Minhaj al-Talibin, the classical Shafi’i legal manual. Section 4 of Part 3 (Family Law).

Introduction

After the Book of Divorce, Imam al-Nawawi (631–676 AH / 1233–1277 CE) presents the Book of the Oath of Abstention (Kitab al-Ila’). The word ila’ means swearing, and in the legal sense it refers to an oath by which a husband undertakes not to have marital relations with his wife for a stated period. The topic has a clear historical background. In the pre-Islamic period, a husband could leave his wife in suspension by swearing not to approach her, sometimes for years, so that she was neither truly married nor free. Islam addressed this injustice by setting a limit to the effect of such oaths.

The Qur’an states the rule in the chapter of the Cow. Those who swear off from their wives are given a waiting period of four months. If they go back, God is forgiving and merciful, and if they resolve on divorce, God is hearing and knowing. The book builds on this verse. This article follows its main themes in the general order of the Minhaj.

1. What the oath is

The oath is made by a husband and is directed at his wife. It consists of a commitment, backed by an oath in God’s name or by another binding form, not to have sexual intercourse with her for a specified period or without limit. The school holds that the legal effects of ila’ apply only if the period exceeds four months, in line with the wording of the verse. If a husband swears to abstain for four months or less, the oath is an ordinary oath, and the special rules of ila’ do not apply. He must simply keep to it or atone for breaking it, and the marriage is unaffected.

2. The pillars of the oath

The book lists the elements that make an oath of this kind effective.

• The husband: he must be capable of making a binding oath, meaning mature and sane, and acting by his own choice. In the school, the husband must also be capable of intercourse in principle, since an oath not to do something that he cannot do has no meaning.
• The wife: she must be the swearer’s wife in a valid marriage. The school applies the rules to a wife whether or not the marriage has been consummated.
• The oath: it must be made in God’s name, by one of His names or attributes, or by a vow or a conditional statement that binds the husband to a penalty, such as “If I approach you, I shall owe a fast,” or “If I approach you, you are divorced.” The school discusses which statements count and which do not.
• The subject: the oath must concern intercourse itself, and the school defines it by its nature. An oath to abstain from other forms of closeness does not fall within the rules of ila’.
• The period: the oath must last for longer than four months, or be unlimited, or be conditional on something that is unlikely to happen within four months.

3. The four months

The period begins from the time of the oath, not from the time that the wife makes a complaint or the judge orders anything. During these four months, the husband is free to keep his oath, and no legal action may be taken against him. The book states that the wife has no right to demand anything during the period, since the Qur’an has granted him this time to reflect. If the period is interrupted by a valid excuse, the school explains how it is counted. For example, if the wife leaves the marriage, or the marriage is ended and begun again, the period starts afresh.

4. After the four months

Once four months have passed, the wife has a right to demand that the husband resolve the matter, and the Qur’anic alternatives apply. He must choose between two courses:

• Returning (fay’ah): he resumes marital relations with his wife, and in doing so he breaks his oath. He must then make the expiation that the oath requires. If the oath was in God’s name, he must atone for it, by freeing a slave, or by feeding or clothing ten poor persons, or, if he cannot do any of these, by fasting for three days, according to the Qur’anic rule on oaths. If the oath was a conditional vow, he must carry out the consequence he named.
• Divorcing: he releases his wife by divorce, which ends the situation.

If the husband refuses to do either, the school holds that the judge may compel him to choose, and the book and its commentaries discuss the means by which the judge may do this, including whether the judge may pronounce the divorce himself. The point is that the wife cannot be left in indefinite suspension, which is the abuse the verse was meant to remove.

5. Excuses and verbal return

The book explains what happens if the husband cannot resume intercourse because of a valid impediment, such as illness, imprisonment, or the wife’s own condition, such as menstruation or illness. In such a case, the school accepts a statement of return in words, such as “I will go back to you as soon as I am able.” This is understood as a sign of his sincere intention to end the oath, and it relieves him of the duty to divorce while the impediment lasts. Once the impediment ends, he must act on his word. If he is able to resume relations and does not, the demand to choose applies again.

6. Distinguishing ila’ from other oaths

The book distinguishes ila’ from other oaths and declarations. An ordinary oath to abstain for a short period is not within the rules, as already mentioned. An oath in which the husband compares his wife to a forbidden relative, called zihar, is a separate matter dealt with in the next book, and it has different consequences. The school stresses that each of these has its own rules, and that mixing them leads to error.

An important point is the difference between ila’ and an abstention for a legitimate reason. A husband who avoids relations because of a valid cause, such as the health of a nursing child, as the Qur’an allows, is not within the rules, as long as he does not intend harm. The school adds that the husband is not legally compelled to have relations at a fixed rate absent an oath, though it is a recommended part of good treatment of a wife, and to neglect it without reason is disapproved.

7. Disputes

The final section discusses disagreements. The spouses may dispute whether an oath was made, when it was made, whether the husband has resumed relations, or whether an excuse exists. The school applies its usual rules, in which the husband is believed regarding what he intended and what he did, under oath, unless there is evidence to the contrary, and the burden is on the party who makes a claim that departs from the norm. The book also considers the case in which the husband says that he has resumed relations, and the wife denies it, and sets out how to resolve the matter.

Why the order matters

The book starts by defining the oath and its elements, then explains the four-month period and what follows it. It then treats the husband’s alternatives, the effect of excuses, and the difference between ila’ and other cases. This order lets the student see the logic of the institution. It is a limit placed on a husband’s power to leave his wife in suspension, and every rule in the book serves to apply the Qur’anic timetable: a period for reflection, followed by a choice between reconciliation and release.

Closing reflection

For al-Nawawi, the law of ila’ shows how the law curbed an abuse without abolishing the institution in which it arose. The husband is not forbidden to take an oath, but the effect of it is capped at four months, after which he must act. The wife is protected from being left in limbo, and the marriage is given a chance of repair through the husband’s return and his atonement. The principle is the one stated in the verse: the end of such a situation should be either a return with kindness or a release with kindness.

Note: This article summarizes the general Shafi’i position as presented in Minhaj al-Talibin. Details, including the judge’s powers to compel the husband and the treatment of excuses, differ among the schools and can vary between editions and commentaries. Family matters are also regulated by national laws, so readers who need a precise ruling should consult a qualified teacher or scholar.