Fatwa ID: 03961

Answered by: Maulana Eunus Ali

 

Question

I just found out on the website about ‘ila’ where if someone's husband takes an oath to not have sex with his wife then it may constitute a divorce.
Then I started thinking about an argument my husband and I had in the past. 
 

I roughly remember him saying after an argument in a fit of anger that 'I am not going to have sex tonight or I am not going to have sex now cause my mood is off or you ruined my mood." 
I don't remember how long after those arguments we had sex, it might be within three months or might be after three months. I do not remember the duration.
 

But he never took an oath on Allah's name or promised on Allah's name not to have sex.

He may have said 'I am not going to do it (sex) ever,' which I highly doubt of him saying that.

My question is: 

1. Does using general sentences without taking oath on Allah’s name be regarded as ila and do these sentences constitute divorce or not?

2. Also in the case of having doubts about anything my husband might have said which I vaguely remember but do not remember the exact wording. I don't even remember how long after the argument we had sex, it might be within three months or more than three to four months. What happens in that case?  But my husband never took an oath on Allah's name for not having sex, that is what I am certain about.

 

 

        بِسْمِ اللهِ الرَّحْمنِ الرَّحِيْم

In the name of Allah, the Most Gracious, the Most Merciful

 

Answer:

If someone takes an oath that he will not have sexual intercourse with his wife, then there are four possible situations:

 

(A) No time-limit was fixed by the husband at the time of taking the oath.

(B) A time-limit of four months was fixed.

(C) A time-limit of more than four months was fixed.

(D) The limit was identified as less than four months

 

So, situations A, B, and C are termed in Islamic law as ‘Ila.’

The ruling regarding these 3 situations are:

 

If the husband breaks his oath of not have sexual intercourse with his wife within four months of taking the oath and resumes sexual intercourse with his wife, he will have to pay the compensation for breaking his oath while his marriage remains intact.

 

And should it be that the time-limit of four months did expire and the husband did not break his oath (i.e. did not have sexual intercourse with his wife), a divorce absolute (talaq bain) will become effective.

This means that at the end of the 4 month period the wife will start her iddah (waiting period) as a result of the divorce absolute and the couple may not reconcile the marriage without performing the nikah procedure again with all its rules such as 2 witnesses etc.

 

The ruling in the fourth situation is: If the oath is broken, compensation will be required and if the oath is completed (i.e. the husband did not have sexual intercourse with his wife for the specified time), the marriage, even then, will remain valid.[1] This situation is not considered to be ‘Ila.’

 

In regards to your questions:

As mentioned above, the ruling of ‘Ila’ will only take effect when it is accompanied by an oath, however, it is not necessary to take an oath in the name of Allah. A general oath is sufficient for the Ila.[2]

Also, the statements of ‘Ila’ will only affect a divorce absolute after 4 months have lapsed and the husband has not broken his oath by having sexual intercourse with his wife. If he has broken his oath within the 4 months by having sexual intercourse, he will need to pay the compensation for breaking the oath and no divorce will take place.

As for not being sure about your husband’s statement, you may ask him to clarify what he may have said so he is able to pay the compensation of breaking the oath if need be. In such a situation whereby an oath was made, estimation should be made as to when a sexual relationship took place.

If it was within the 4 months then only the compensation will have to be paid by the husband and if it took place after the 4 months then the divorce would have already taken place by that time, in which case the nikah will need to be performed again.

It should be noted that sexual relation at this time (after the 4 months have elapsed) would be haram as it is the waiting period (iddah) and therefore it will be necessary to repent from any and all shortcomings.³

 

 

Only Allah knows best

Written by Mufti Eunus Ali

Checked and approved Mufti Mohammed Tosir Miah

Darul Ifta Birmingham