Surah 2. Al-Baqara

245Although it is true that relations between husband and wife do not always remain cordial, yet Allah's law does not allow that the strained relations should continue indefinitely. Therefore it lays down the maximum period of four months for a separation in which they legally remain husband and wife but practically live separate lives without any conjugal relations between them. Such a separation is termed "ila" in the Islamic code of Law. During this period they must either make a reconciliation between themselves or part for good so that they may be free to marry a suitable person of their liking.

From the words "Those who take an oath" the jurists belonging to the Hanafi and Shafi'i schools of thought conclude that this period of four months applies only to those cases of separation which are made on oath; if they remain separate for any length of time without an oath, this law would not apply to them. On the other hand, the jurists belonging to the Maliki school of thought are of the opinion that the maximum period of four months applies to all cases of separation. A saying of Imam Ahmad also supports this opinion.

Hadrat `Ali, Ibn `Abbas and Hasan Basri are of the opinion that this law applies only to that case of separation which is the result of strained relations, and does not apply to the case in which the husband. and the wife agree to discontinue conjugal relations with mutual consent for some common good and at the same time keep cordial relations. There are other jurists who are of the opinion that the law of 'ila' would apply to every case of separation made on oath irrespective of the fact whether their relations remain good or bad; hence it should not go beyond the prescribed term of four months.

246Some jurists interpret this to mean that if they break their oaths within four months and re-establish conjugal relations, there would be no expiation for this; Allah will forgive the breach of their oath without expiation. But the majority of jurists are of the opinion that expiation must be made in any case. "Allah will forgive and show mercy" does not mean that the expiation will be remitted. It merely means that Allah will accept the expiation and forgive wrong done by each against the other during their separation.

247According to the verdict of Caliph `Uthman, lbn Mas'ud, Zaid bin Thabit and some other jurists, they can reunite only within four months. The expiry of this term itself is a proof that the husband has decided upon divorce. Hence after its expiry, divorce will automatically take place and the husband will forfeit the right of reunion during the waiting term. If, however, both of them agree, they can remarry. There is a verdict to the same effect from Hadrat `Umar, `Ali, Ibn `Abbas and Ibn 'Umar and the jurists of the Hanafi school have accepted the same.

Hadrat Said bin Musayyib, Makh-ul, Zuhri and some others are of the opinion that after the expiry of four months, there shall be an automatic divorce but this will be a single revocable divorce and the husband will have the right to reunite within the term (`iddat) and if he does not reunite within the term, they may remarry if they so desire.

As against this, Hadrat `A'ishah, Abud-Darda' and many other jurists of Madinah are of the opinion that after the expiry of four months the case should be taken to a court so that the judge may order the husband either to reunite with his wife or divorce her. There is also a verdict of Hadrat `Umar, Hadrat `Ali and Ibn `Umar to this effect and the same has been accepted by Imam Malik and Imam Shafi'i also.