Hadith 5703

Yahya related to me from Malik that he had heard that Marwan ibnal-Hakam decided about a man who had made a vow to abstain fromintercourse with his wife, that when four months had passed, it was adivorce and he could return to her as long as she was in her idda.Malik added, "That was also the opinion of Ibn Shihab."Malik said that if a man made a vow to abstain from intercoursewith his wife and at the end of four months he declared his intent tocontinue to abstain, he was divorced. He could go back to his wife,but if he did not have intercourse with her before the end of heridda, he had no access to her and he could not go back to her unlesshe had an excuse - illness, imprisonment, or a similar excuse. Hisreturn to her maintained her as his wife. If her idda passed and thenhe married her after that and did not have intercourse with her untilfour months had passed and he declared his intent to continue toabstain, divorce was applied to him by the first vow. If four monthspassed, and he had not returned to her, he had no idda against her noraccess because he had married her and then divorced her beforetouching her.Malik said that a man who made a vow to abstainfrom intercourse with his wife and continued to abstain after fourmonths and so divorced her, but then returned and did not touch herand four months were completed before her idda was completed, did nothave to declare his intent and divorce did not befall him. If he hadintercourse with her before the end of her idda, he was entitled toher. If her idda passed before he had intercourse with her, he had noaccess to her. This is what Malik preferred of what he had heard onthe subject.Malik said that if a man made a vow to abstainfrom intercourse with his wife and then divorced her, and the fourmonths of the vow were completed before completion of the idda of thedivorce, it counted as two pronouncements of divorce. If he declaredhis intention to continue to abstain and the idda of the divorcefinished before the four months the vow of abstention was not adivorce. That was because the four months had passed and she was nothis on that day.Malik said, "If someone makes a vow not tohave intercourse with his wife for a day or a month and then waitsuntil more than four months have passed, it is not ila. Ila onlyapplies to someone who vows more than four months. As for the one whovows not to have intercourse with his wife for four months or lessthan that, I do not think that it is ila because when the term entersinto it at which it stops, he comes out of his oath and he does nothave to declare his intention."Malik said, "If someone vowsto his wife not to have intercourse with her until her child has beenweaned, that is not ila. I have heard that Ali ibn Abi Talib was askedabout that and he did not think that it was ila."