and performs li'an against her, then accuses her of another act of zina, he is subject to the hadd, because she has been separated from him by the li'an and has become a foreigner, unless he attaches the zina to the period of marriage; in that case, if there is lineage he wishes to disavow, he may perform li'an to disavow it, otherwise the hadd becomes mandatory upon him, and there is no li'an between them.

1337 - Issue: He said: "If he performs li'an, but she does not, there is no hadd upon her, and the marriage remains as it is."

The summary of this is that if he performs li'an and she refuses to perform li'an, there is no hadd upon her. This is the position of al-Hasan, al-Awza'i, and the Ashab al-Ra'y. This has also been narrated from al-Harith al-'Ukli and 'Ata' al-Khurasani. Makhul, al-Sha'bi, Malik, al-Shafi'i, Abu 'Ubayd, Abu Thawr, Abu Ishaq al-Jawzajani, and Ibn al-Mundhir held the view that the hadd is mandatory upon her, due to the saying of Allah the Almighty: {And it shall avert the punishment from her if she bears witness four times}. The punishment that her li'an averts is the hadd mentioned in His saying, Glorified be He: {And let a group of the believers witness their punishment}. Furthermore, because through his li'an he verified her zina, therefore the hadd became mandatory upon her, just as if four people had testified against her. Our argument is that her zina has not been verified, so the hadd is not mandatory upon her, just as if he had not performed li'an. The evidence for this is that the verification of her zina must either be through the husband's li'an, her refusal (nukul), or both. It is not permissible for it to be through the husband's li'an alone; for if her zina were established by it, her li'an would not be heard, nor would the hadd be mandatory upon her accuser. Moreover, it is either an oath or testimony, and neither establishes a right against another party, nor is it permissible that it