Îlâ’ or Taking an oath on not going to one’s wife


Bahishti Zewar, Fiqh, Part 4-Nikah (Marriage) in Islam / Thursday, July 29th, 2010

1. A person takes an oath and says: “I swear by Allah that I will not engage in sexual intercourse”, “I swear by Allah that I will never have sex with you”, “I take an oath that I will not have sex with you.” Alternately, he takes an oath that is similar in meaning to the above-mentioned oaths. The rule with regard to this is that if he does not engage in sexual intercourse with her, talâqul bâ’in will take place on the expiry of four months. Without remarrying, they cannot live as husband and wife. But if the husband breaks his oath within four months and has sexual intercourse with his wife, divorce will not take place. However, he will have to pay the kaffârah for breaking his oath. In the Sharî‘ah, such an oath is called ’îlâ’ (which literally means “oath”).

2. A person did not take an oath of not having sex with his wife forever, instead he took an oath that he will not engage in sexual intercourse for a period of four months and said: “I swear by Allah that I will not have sex with you for four months.” Even by specifying such a period, ’îlâ’ will be considered and the same rule will apply, i.e. if he does not engage in sexual intercourse with her within four months, talâqul bâ’in will take place. If he engages in sexual intercourse within four months, he will have to pay kaffârah. The rules relating to kaffârah will be explained in a later chapter – ’Inshâ’ Allah.

3. If a person takes an oath of not having sex with his wife for a period of less than four months, ’îlâ’ will not be considered. Even if the oath is taken for just one day less than four months, ’îlâ’ will not be considered. However, if he takes an oath for a specified period (less than four months) and then breaks this oath by engaging in sexual intercourse before the expiry of the specified period, he will have to pay kaffârah for breaking the oath. If he does not engage in sexual intercourse, divorce will not take place and his oath will be fulfilled.

4. A person had taken an oath of four months and did not break it. On the expiry of four months, divorce took place. After the divorce, he re-married the very same woman. After the nikâh, if they do not engage in sexual intercourse for a period of four months, there will be no harm in this and no divorce will take place.

A person had taken an oath forever by saying: “I take an oath that I will not have sex with you” or “I swear by Allah that I will never have sex with you”. He did not break this oath of his, on the expiry of four months, divorce took place, thereafter he remarried her and after the marriage they did not engage in sexual intercourse for four months. A second divorce will now take place. If he remarries the same woman for a third time, the same rule will apply over here as well. That is, if they do not engage in sexual intercourse for a period of four months after remarrying for this third time, a third divorce will take place. Now he will not be able to remarry her without her first marrying another person. However, had they engaged in sexual intercourse after the second or third nikâh, the oath would have broken and no divorce would have taken place. However, he would have had to pay the kaffârah for breaking his oath.

5. Furthermore, if three divorces took place in the three nikâhs, thereafter the woman married another person, after being divorced from him and completing her ‘iddah she remarried her first husband, and again he did not engage in sexual intercourse with her. Now, divorce will not take place irrespective of how long he abstains from having intercourse with her. However, if and when he engages in sexual intercourse with her, he will have to pay the kaffârah for breaking his oath because he had taken the oath that he will never engage in sexual intercourse and now he has broken this oath.

6. If a person issues a talâqul bâ’in to his wife and thereafter takes an oath that he will not have sex with her, it will not be ’îlâ’. Now if he remarries her and does not engage in sexual intercourse, divorce will not take place. However, if he engages in sexual intercourse, he will have to pay kaffârah for breaking his oath. But if the person issues a talâqur raj’î and within the ‘iddah he takes an oath that he will not have sex with his wife, it will be ’îlâ’. Now if he revokes his divorce and does not engage in sexual intercourse, divorce will take place after four months. But if he has sex with her, he will have to pay kaffârah for breaking his oath.

7. A person did not take an oath on Allah. Instead, he said: “If I have sex with you, you are divorced.” This will still be considered to be ’îlâ’. If he has sex with her, a talâqur raj’î will take place and in such a case, he will not have to pay the kaffârah for breaking his oath. If he does not engage in sexual intercourse, a talâqul bâ’in will take place after four months.

The person says: “If I have sex with you, one hajj, one fast, R1 in charity, one qurbâni, etc. will become incumbent upon me.” In all these cases, ’îlâ’ will be considered. If he engages in sexual intercourse, he will have to fulfil whatever oath he had taken and it will not be necessary to pay any kaffârah. If he does not engage in sexual intercourse, divorce will take place after four months.

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