Ala-Maududi
(66:2) Allah has prescribed for you a way for the absolution of your oaths.[4] Allah
is your Guardian. He is All-Knowing, Most Wise.[5]
4. It means: Act according to the method Allah has prescribed for absolution from oaths by
expiation in (Surah Al-Maidah, Ayat 89)
and break your promise that you have made to forbid yourself of a lawful thing. Here, an
important legal question arises and it is this: Is this command applicable to the case when a
person has forbidden upon himself a lawful thing on oath, or is forbidding oneself a lawful
thing by itself tantamount to swearing an oath, whether the words of the oath have been used or
not. The jurists in this regard have expressed different opinions:
One section of them says that mere forbidding oneself of a lawful thing is not an oath. If a
person without swearing an oath has forbidden upon himself a wife, or some other lawful thing,
it is an absurd thing which does not entail any expiation, but he can resume without any
expiation the use of the thing that he had forbidden for himself. This is the opinion of Masruq,
Shabi, Rabiah and Abu Salamah; and the same view is held by Ibn Jarir and all the Zahiris.
According to them forbidding oneself of something would be an oath only in case express words of
oath are used when forbidding it for oneself. In this regard, their reasoning is that since the
Prophet (peace be upon him) while forbidding himself a lawful thing had also sworn an oath, as
has been reported in several traditions, Allah told him to act according to the method that had
been appointed for absolving oneself from oaths.
The second group says that to forbid oneself something without using the words of oath is not an
oath by itself, but the case of the wife is an exception. If a person has forbidden himself a
garment, or an article of food, it is meaningless, and one can use it without expiation. But if
concerning a wife or a slave-girl he has said: I forbid myself an intercourse with her, she
would not become unlawful and forbidden, but one would have to expiate the oath before going in
to her. This is the opinion of the Shafeis. (Mughni al-Muhtaj). And a similar opinion on this
question is held by the Malikis. (Ibn al-Arabi, Ahkam al-Quran).
The third group says that to forbid oneself something is by itself an oath even if the words of
oath have not been used. This is the opinion of Abu Bakr. Aishah, Umar, Abdullah bin Masud, Zaid
bin Thabit and Abdullah bin Abbas. Although from Ibn Abbas another opinion has been reported in
Bukhari to the effect: If a man has forbidden himself his wife, it is meaningless, yet it has
been interpreted to mean that according to him this is not divorce but an oath which entails an
expiation. For, in Bukhari, Muslim and Ibn Majah, another saying of Ibn Abbas has been reported
that to forbid oneself one’s wife entails an expiation, and in Nasai the tradition is to the
effect that when Ibn Abbas was asked his opinion on this, he said: She is not forbidden to you,
but you must pay the expiation. And in Ibn Jarir’s tradition the words of Ibn Abbas are to the
effect: If the people forbid themselves what Allah has made lawful for them, they must expiate
their oath. This same is the opinion of Hasan Basri, Ata, Taus, Suleman bin Yasar, Ibn Jubair
and Qatadah, and the same has been adopted by the Hanafis. Imam Abu Bakr al- Jassas says: The
words of the verse lima tuharrimu do not indicate that the Prophet (peace be upon him) along
with forbidding himself the lawful thing had also sworn an oath, therefore, one will have to
admit that tahrim (to forbid oneself something) itself is an oath; for after it Allah made
obligatory the expiation of the oath in connection with the prohibition. Farther on he writes
again: Our companions (i.e. the Hanafis) regard tahrim as an oath in case it is not accompanied
by the intention of divorce. If a person forbade upon himself his wife, he in fact said: By God,
I will not come near you, thus, he committed ila (act of temporary separation). And if he
forbade himself an article of food, etc, he in a way said: By God, I will not use that article.
For Allah first said: Why do you forbid that which Allah has made lawful. And then said: Allah
has appointed a way to absolve you from your oaths. Thus, Allah has regarded tahrim as an oath,
and the word tahrim in its meaning and legal effect becomes synonymous with an oath.
Here, for the benefit of the common man, it would be useful to tell what the legal command is,
according to the jurists, in respect of someone forbidding upon himself his wife and the other
things besides the wife.
The Hanafis say that if without the intention of divorce somebody forbade upon himself his wife,
or swore an oath that he would not have conjugal relations with her, this would be ila
(temporary separation), and in this case he would have to expiate his oath before having the
sexual relation. But if with the intention of divorce he said: You are unlawful to me, it will
have to be ascertained what was his real intention. If his intention was of three divorces, the
three divorces will take place, and if the intention was of a lesser number, of one or two
divorces, only one divorce will take place in either case. And if somebody says: I have
forbidden myself whatever was lawful for me, this would not apply to the wife unless he said
these words with the intention of forbidding himself the wife. Apart from the wife, one cannot
use the thing he has forbidden upon himself until he has expiated the oath. (Badai as-Sanai:
Hedayah; Fath Al-Qadir, al-Jassas, Ahkam al-Quran).
The Shafeis say that if one forbids upon himself the wife with the intention of divorce or zihar,
the intended thing would become effective, whether it is a revocable divorce or an irrevocable
divorce or zihar. And if a person used the words of tahrim with the intention of both divorce
and zihar, he would be asked to choose one, or the other, for both divorce and zihar cannot be
established at one and the same time. Divorce dissolves marriage but in case of zihar it
continues and if without any intention the wife is forbidden, she would not become forbidden,
but expiation of the oath would become necessary. And if another thing, apart from the wife, is
forbidden, it would be meaningless; there is no expiation for it. (Mughni al-Muhtaj).
The Malikis say that if a person forbids upon himself anything other than the wife, it neither
becomes forbidden nor entails an expiation. But if he says to the wife: You are unlawful, or
unlawful for me, or I am unlawful for you, this would amount to a triple divorce in any case
whether this was said to a wife with whom marriage has been consummated, or to one with whom it
has not yet been consummated, unless his intention was of less than three divorces. Asbagh says:
If a person says: whatever was lawful for me, is unlawful, the wife also becomes forbidden
unless he makes an exception of the wife. In al- Mudawwanah, distinction has been made between
the wife with whom marriage has been consummated and the wife with whom it has not been
consummated. If one forbids upon himself the former, a threefold divorce will take place
irrespective of the intention, but in case of the latter the same number of divorces would take
effect as was intended, and if there was no intention of any particular number, it would be
considered a triple divorce. (Hashiyah ad- Dusuqi). Qadi Ibn al-Arabi in his Ahkam al-Quran has
cited three statements of Imam Malik: (1) That forbidding oneself the wife amounts to an
irrevocable divorce. (2) That it amounts to three divorces. (3) That in case of the wife with
whom marriage has been consummated it amounts to three divorces, but in case of the one with
whom it has not been consummated, to only one divorce if one was intended. Then he says: The
correct thing is that forbidding oneself the wife amounts to one divorce only. For if the man
uses the word divorce instead of calling her unlawful without specifying the number, only one
divorce will take place.
Three different views in this regard have been reported from Imam Ahmad bin Hanbal: (1) That to
forbid oneself the wife, or to make a lawful thing absolutely unlawful for oneself, is zihar,
whether zihar was int
