1307 - Issue; He said: (And if he swore an oath of ila' regarding her, and did not have intercourse with her until he divorced her, and her waiting period (iddah) from him expired; then he married her again, while more than four months remained of the period of the ila', he is to be stopped [to wait] for her, as I have described.)

The gist of the matter is that when a husband who has sworn an oath of ila' makes his wife irrevocably divorced, the period of the ila' is interrupted, without any disagreement that we are aware of, whether she became separated through annulment (faskh), a triple divorce, a khul', or the expiration of her waiting period from a revocable divorce; because she has become a stranger to him, and none of the rulings of their marriage remain. If he returns and marries her, the ruling of the ila' returns from the time he married her, and the period is resumed at that time. If what remains of the duration of his oath is four months or less, the ruling of the ila' does not hold; because the period of waiting (tarabbus) is four months. If it is more than four months, he waits for four months, then he is stopped [to wait] for her; so either he restores marital relations (fay') or he divorces, and if he does not divorce, the judge divorces her on his behalf. This is the view of Malik. Abu Hanifah said: If the divorce was less than three [pronouncements], and then he left her until her waiting period expired, then he married her, the ila' returns. But if he had completed the number of divorces, the ila' does not return; because the ruling of the first marriage has ceased entirely, and for this reason, she returns to him after a triple divorce; thus, his ila' in the first marriage became like his ila' regarding a stranger. The companions of al-Shafi'i said: Three opinions are derived from his [al-Shafi'i's] statements; two opinions are like the two schools [of Malik and Abu Hanifah], and a third opinion is that the ruling of the ila' does not return under any circumstances. This is the view of Ibn al-Mundhir; because she has reached a state where, if he were to swear an oath of ila' regarding her, his ila' would not be valid; therefore, the ruling of the ila' regarding her is invalidated, like the woman divorced three times. Our position is that he is prevented from having intercourse with his wife by an oath while they were in the state of their marriage, so the ruling of the ila' is established for him, as if he had not divorced her. It differs from an ila' regarding a stranger; for he does not intend by the oath regarding her to harm her, unlike our issue.

Section: If he swore an oath of ila' regarding his slave-wife, then he bought her, then he emancipated her, and married her, the ila' returns.