Question:
Assalamualaikum ustaz. What is the meaning of al-Ila’ (الإِيلَاءْ) and what are the implications?
Answer:
Waalaikumussalam wrt. wbt.,
Alhamdulillah, praise and gratitude to Allah SWT for His countless blessings for us all. Praise and salutations to our beloved Prophet Muhammad PBUH, his family, companions, and all those who follow his footsteps until the Final day.
Al-Ila’ (الْإِيْلَاءْ) can be understood as a vow made by a husband who is a mukallaf and able to have intercourse and valid talaq to not have intercourse with his wife for a duration of more than 4 months or in absolution without stating the period or forever. [1]
Al-Ila’, lexically means a vow and the terminology is used to mean a person who vows to not approach his wife and not act like husband and wife for more than four months.
Imam al-Qurtubi cited the words of Ibn Abbas R.Anhuma:
كَانَ إِيلَاءُ الْجَاهِلِيَّةِ السَّنَةَ وَالسَّنَتَيْنِ وَأَكْثَرَ مِنْ ذَلِكَ يَقْصِدُونَ بِذَلِكَ إِيذَاءَ الْمَرْأَةِ عِنْدَ الْمَسَاءَةِ، فَوَقَّتَ لَهُمْ أَرْبَعَةَ أَشْهُرٍ، فَمَنْ آلَى بِأَقَلِّ مِنْ ذَلِكَ فَلَيْسَ بِإِيلَاءٍ حُكْمِيٍّ
“Al-Ila’ during the times of jahiliyyah is for a year and two years or more for the purpose of hurting the wife when an evil deed occurred. Al-Ila’ is then shortened to four months. Hence, whoever did al-Ila’ for less than four months then, it isn’t considered as al-Ila’ according to the ruling.” [2]
Al-Ila’ is prohibited for it hurts and oppresses the wife. Allah SWT states:
لِّلَّذِينَ يُؤْلُونَ مِن نِّسَائِهِمْ تَرَبُّصُ أَرْبَعَةِ أَشْهُرٍ ۖ فَإِن فَاءُوا فَإِنَّ اللَّـهَ غَفُورٌ رَّحِيمٌ * وَإِنْ عَزَمُوا الطَّلَاقَ فَإِنَّ اللَّـهَ سَمِيعٌ عَلِيمٌ
“For those who swear not to have sexual relations with their wives is a waiting time of four months, but if they return [to normal relations] – then indeed, Allah is Forgiving and Merciful. And if they decide on divorce – then indeed, Allah is Hearing and Knowing.” [3]
Imam al-Syaukani stated in the book Fath al-Qadir: The meaning of the above verse is clear where Allah SWT set a duration for whoever vows (to not approach) his wife for four months. Then, Allah SWT informs His slaves that the vow after the vow of four months, if he remains and continues in the marriage, Allah SWT doesn’t consider the vow and forgive the doer and blesses him. While, if he intends for a divorce and means it, indeed, Allah hears and knows what his intentions are. Hence, there is no doubt or unclarity in it. [4]
Imam al-Bujairimi in his book Tuhfat al-Habib [5] stated that when a husband declares Al-Ila’ then the following implications are bound on him, his wife and his marriage as the following:
- The husband is sinful according to Allah for the act of Al-Ila’ is prohibited and causes harm to the wife.
- The wife who is ila’, isn’t automatically divorced but it is obligated to wait for four months where she won’t be having intercourse with her husband or until her husband has intercourse with her before the four months period ends.
- During the Al-Ila’ period, the husband is obligated to provide for his wife except if the wife is nusyuz.
- It is also permissible for the husband to have intercourse with the wife that has been ila’ at any time before the four months period ends.
- It is obligatory for the husband to pay the kifarat when he has intercourse with the wife that he has ila’.
- If the husband didn’t voluntarily have intercourse with his wife during the four months, then the wife reserves a right to ask for intercourse without going through a legal court proceeding.
- If after the four months, the husband still hasn’t had intercourse with his wife, then the wife has a choice of either asking her husband for intercourse or demanding a divorce through legal court proceedings.
If the husband still refuses to have intercourse or divorce the ila’ wife, then the syar’ie judge has the right to sentence talaq raj’ie on the wife. [6]
The reason is a husband isn’t permissible to continue harming his wife by refusing intercourse with her. Considering that there isn’t any way to force the husband to have intercourse, hence, only a divorce will end the harm on the wife. If the husband wouldn’t voluntarily divorce his wife, then the judge has the authority and right to take his place.
If the wife is divorced by the husband or by the judge, later the husband reconciled (ruju’) with his wife during the ‘iddah period, then Al-Ila’ rulings apply back to the husband. Thus, the duration for the calculation of Al-Ila’ begins from the time of reconciliation until the end of the next four months period. [7]
If after reconciliation, the husband still refuses to have intercourse with his wife, until the end of the new four months period, then the wife reserves the right to demand the second talaq. The same continues until the third talaq when they can no longer reconcile.
If the ila’ wife is divorced by her husband until her ‘iddah is over without reconciling with her husband, or she is divorced with talaq ba’in, then the Al-Ila’ rulings are abrogated for the harms on the wife ends with ba’in divorce. However, if the husband remarries her with a new aqad (solemnization), then the ruling of yamin vow previously reapplies. [8]
Thus. A husband is obligated to pay kifarat yamin if he has intercourse with his wife in the new marriage. If he doesn’t have intercourse with his wife for more than four months, the wife doesn’t have a right to demand talaq for the rulings of Al-Ila’ has ended.
If the husband has intercourse with his ila’ wife because he forgets, or is insane then he isn’t considered to have broken his vow, for he wasn’t a mukallaf at the time. Hence, he isn’t fined with kifarat. However, the rulings of Al-Ila’ has ended because his wife has received her rights with the intercourse. Whereas the yamin vow and Al-Ila’ continue as long as there isn’t any broken vow and kifarat. [9]
For Al-Ila’ that has set periods of time such as a year, then it is ruled as over when the time set passes. In this matter, the wife should ask for intercourse or talaq after the four months have ended and before the whole year set passes. If the wife is late in claiming her rights, which means after a year has passed, then the right of the wife to demand talaq is gone, for Al-Ila’ duration has ended. [10]
To conclude, we advise married couples to avoid using words or actions that could lead to Al-Ila’. Build a harmonious and loving marriage to attain mahabbah, mawaddah and Sakinah which ultimately leads to baiti jannati.
May Allah SWT grant us all the correct understanding in this religion. We end with the supplication:
رَبَّنَا هَبْ لَنَا مِنْ أَزْوَاجِنَا وَذُرِّيَّاتِنَا قُرَّةَ أَعْيُنٍ وَاجْعَلْنَا لِلْمُتَّقِينَ إِمَامًا
“Our Lord, grant us from among our wives and offspring comfort to our eyes and make us an example for the righteous.” [11]
Wallahu a’lam.
[1] See Mughni al-Muhtaj, 3/436
[2] See Tafsir al-Qurtubi, 3/103
[5] See Tuhfat al-Habib ‘ala Syarh al-Khatib, pg. 348. This is the final opinion in madhhab Syafi’e.
[6] See Mughni al-Muhtaj, pg. 446
[7] See Mughni al-Muhtaj, pg. 443
[8] See Mughni al-Muhtaj, pg. 445