If he refuses, judgment shall be passed against him due to his refusal. That the oath is incumbent upon him is indicated by the saying of the Prophet (peace and blessings of Allah be upon him): "But the oath is upon the defendant." The Judge [al-Qadi] said: It may be deduced that he is not to be asked to swear an oath, based on his denial of the claim of divorce, for there are two narrations regarding that, and so it is here. The correct view is what al-Khiraqi said, due to the indication of the report and the meaning thereof. A third narration is reported from Ahmad that the word is the woman's, along with her oath. The Judge narrated this in "al-Mujarrad," because the default state is the absence of intercourse; thus, her word is accepted because her statement is consistent with the default state, and certainty is with her. In every case where we have judged that he has had intercourse, the ruling of his impotence (unnah) is invalidated; if it was at the beginning of the matter, no period shall be set for him. If it was after the setting of the period, it is interrupted. If it was after its expiration, no option (khiyar) is established for her. In every case where we have judged that no intercourse occurred, the ruling of his impotence remains in effect, just as if he had confessed to it.

Abu Bakr chose the view that he should be married to a woman who has a share of beauty, her dowry (sadaq) given from the Public Treasury (Bayt al-Mal), and he is to be left alone with her, and she is to be asked about him, and what she says shall be accepted. If she reports that he has intercourse, the first woman is proven a liar, and the second is given the option between remaining and annulment, and her dowry is from the Public Treasury. If she denies him, he is separated from both of them, and the second woman's dowry is from his own wealth in this instance, because it was reported that a woman came to Samurah and complained to him that her husband did not reach her, so he wrote to Mu'awiyah, who wrote back to him: "Marry him to a woman of beauty, known for righteousness, and pay her dowry from the Public Treasury on his behalf. If he has intercourse with her, she [the first] has lied, and if he does not have intercourse with her, she [the first] has told the truth." Samurah did so, and the woman came and said: "He has nothing." So he separated them. Al-Awza'i said: Two women shall witness him, and a garment is left between them, and he has intercourse with his wife. When he stands up from her, they look at her private part; if there is the moisture of fluid in it, he has told the truth, otherwise not. A similar view was narrated from Malik, except that he sufficed with one woman. The correct view is that the word is his, as if he claimed intercourse in the case of Ila' (oath of continence), and for what we have previously established. Reliance on the discharge of fluid is weak, for he may have intercourse without ejaculating, and he may ejaculate without intercourse, since the weakness of the male organ does not prevent the soundness of the back and the descent of fluid, and a healthy, capable person may be unable to...