upon him. Al-Shafi'i holds two opinions corresponding to the two schools, and a third opinion: if the irrevocable separation (baynuna) is by three divorces, the zihar does not return; otherwise, it does. He based this upon the various opinions regarding the return of the attribute of divorce in a second marriage. Our evidence is the generality of the saying of Allah (the Exalted): {And those who perform zihar with their wives and then return to what they said, then [there is] the freeing of a slave before they touch one another}. He has performed zihar with his wife, so it is not lawful for them to touch one another until he performs expiation. Furthermore, he (7) has performed zihar with his wife, so it is not lawful for him to touch her before the expiation, similar to one who has not divorced her. Additionally, zihar is an oath requiring expiation, so its ruling is not voided by divorce, like the vow of abstention (ila').

The Third Section: The 'returning' is intercourse. Whenever he has intercourse, expiation becomes mandatory upon him, and it is not due before that. However, it is a condition for the lawfulness of intercourse, so whoever desires it is commanded to perform it in order to make it lawful for himself, just as one who desires the lawfulness of a woman is commanded to enter into a marriage contract. Something similar to this was narrated from al-Hasan and al-Zuhri. This is also the view of Abu Hanifa, except that he does not make expiation mandatory upon one who has had intercourse; in his view, the one who has had intercourse is the same as the one who does not. The Qadi and his companions said: The 'returning' is the intention to have intercourse. However, they did not make expiation mandatory upon the one who intends to have intercourse if one of them dies or he divorces her before the act of intercourse, except for Abu al-Khattab, who said: If he dies after the intention, or divorces her, then expiation is upon him. This is the view of Malik and Abu 'Ubayd. Ahmad has rejected this, saying: Malik says: "If he resolves [to do so], expiation becomes mandatory upon him." How can this be! If (8) he divorces her after he has resolved [to have intercourse], is he then liable for expiation! This is only possible if he holds the view of Tawus: "If he speaks the words of zihar, it becomes binding upon him like a divorce." Ahmad did not find the view of Tawus acceptable. Ahmad said regarding the saying of Allah (the Exalted): {Then they return to what they said}. He said: "The 'returning' is the act of intimacy (ghishyan). When he intends to have intimacy, he performs expiation." Those who hold this view argued using the saying of Allah (the Exalted): {Then they return to what they said, then [there is] the freeing of a slave before they touch one another}. He made expiation mandatory after the 'returning' [and] before the touching. That which is unlawful (10) before the expiation cannot be that which precedes it. Moreover, he intended by the zihar to render her unlawful, so the intention to have intercourse with her is a 'returning' in what he intended (11).