"Then hold [her] in honor or release [her] with kindness." And harming [her] is not from the conduct of kindness.

1300 - Issue; he said: (And the fai'ah is: sexual intercourse).

There is no disagreement regarding this, praise be to Allah. Ibn al-Mundhir said: All the scholars whom we have memorized agreed that the fai'ah is sexual intercourse. This is also what Ibn Abbas said. It was narrated from Ali and Ibn Mas'ud. This was also held by Masruq, Ata', al-Sha'bi, al-Nakha'i, Sa'id ibn Jubayr, al-Thawri, al-Awza'i, al-Shafi'i, Abu 'Ubaydah, and the People of Opinion (Ashab al-Ra'y), provided there is no excuse. The root of the word fai'ah is "returning," and for this reason, the shadow after the sun's meridian (zawal) is called fai' because it has returned from the west to the east. Thus, sexual intercourse from the one who took the oath of Ila' is named fai'ah because it is a return to performing what he had abandoned. The minimum amount of intercourse through which the fai'ah is achieved is the disappearance of the glans (hashafah) into the vagina; for the rulings of intercourse are associated with this. If he has intercourse outside the vagina, or in the anus, it does not constitute a fai'ah, because it was not what he swore to abandon, and the harm is not removed by doing so.

Section: If he performs the fai'ah, he is obligated to pay the kaffarah (expiation), according to the view of the majority of scholars. This is narrated from Zayd and Ibn Abbas. This is also the view of Ibn Sirin, al-Nakha'i, al-Thawri, Qatadah, Malik, the people of Madinah, Abu 'Ubayd, the People of Opinion, and Ibn al-Mundhir. This is the apparent view of the school of al-Shafi'i. He has another view: that no kaffarah is incumbent upon him. This is the view of al-Hasan. Al-Nakha'i said: They used to say that because Allah the Almighty said: "[If they return], then indeed Allah is Forgiving, Merciful." Qatadah said: This contradicts the people, meaning the view of al-Hasan. We respond with the saying of Allah the Almighty: "But He will impose blame upon you for what you intended of oaths. So its expiation is the feeding of ten needy people..." to His saying: "...that is the expiation for those of you when you have sworn [an oath]." And He, the Glorified, said: "Allah has already ordained for you [legal ways for] the dissolution of your oaths." And the Prophet (peace and blessings of Allah be upon him) said: "If you take an oath and see that something else is better than it, then do that which is better, and make expiation for your oath." This is mutually agreed upon. And because he is a swearer who has broken his oath, the kaffarah is incumbent upon him just as if he had sworn to abandon an obligatory act then performed it. Forgiveness does not negate the kaffarah, as Allah the Almighty forgave the Prophet (peace and blessings of Allah be upon him) his past and future sins, yet he used to say: "I swear by Allah, I do not take an oath and see that something else is better than it, except that I do that which is better and make expiation for my oath." This is mutually agreed upon.