1- The obligation of a penance or the suspended punishment if a person breaks his oath. The promise of forgiveness which Allah spoke about in the Ayah of Ila' does not drop the penance because the penance is a worldly matter and forgiveness is given in the Hereafter.
2- If the duration of Ila' elapsed and a person did not repent, scholars are of two views:
The first view is: One irrevocable divorce shall take place as soon as the duration ends according to the view of Abu Hanifah (may Allah bestow mercy on his soul). He held the following as proofs:
- The recitation of Ibn Mas`ud (may Allah be pleased with him) to the Ayah which reads: "If they return during the duration." They said: Adding the word return to the duration indicates that returning is permissible during it. Hence, either this recitation is treated as the narration of a single narrator which entails to act accordingly or it is part of the Qur'an and its wordings only were abrogated while the ruling remains as is, then the ruling is given by one irrevocable divorce.
- A husband oppresses his wife by preventing her from fulfilling her right of sexual intercourse, therefore it is permissible for the Shari`ah to punish him by the removal of that marriage contract when the duration ends.
- Islam has fixed the duration for Ila' with four months to get rid of oppression, so it is not imaginable to remove oppression by revocable divorce which gives the right to the husband to take his wife back in marriage and repeat Ila'. So, the Shari`ah must give a severe punishment which is irrevocable divorce in order to give the wife her right and remove the oppression of the husband.
- Allah fixed the duration of Ila' by four months as He did with the waiting period of the wife whose husband died, whereas He fixed only three menstrual periods [three months] for the divorced, so there is no waiting after this duration and marital relationship does not exist.
- Ila’ was a type of divorce in the Pre-Islamic Period, so the Shari`ah postponed that divorce until the end of the duration.
- Allah made the duration of Ila' four months, so if the return is done after this duration, it will exceed the fixed duration which is not permissible.
The second view is: The ruling shall be suspended whether a husband takes back his wife in marriage or divorces her. However, if the husband shows stubbornness and refuses to either divorce or take his wife back in marriage, the judge is entitled to divorce her one-time revocable divorce because he prevented her from her right in sexual intercourse, hence the judge is entitled to play the role of the husband in divorce. If the husband says: I shall take her back in marriage, the judge is not entitled to pass a verdict of divorce but waits until the husband takes her back in marriage, but when it becomes apparent that the husband lies, the judge is entitled to make the divorce himself.
The second view is the view of the majority and was chosen by Ibn Taymiyah and his student Ibn Al Qayyim. Sulayman in Yasar said: I saw more than ten Companions who held the view of: The judge should return to the husband to decide either to take his wife back in marriage or to divorce her.
The majority said: We deduced ten proofs from the Ayah of Ila', of the most important are the following:
1- The Ayah attributed the duration of Ila' to husbands and gave them one thing and two things are due on them. The matter which is given for them is to wait for the mentioned period, and the two things which are due on them are taking their wives back in marriage or divorcing them. The view of the one irrevocable divorce shall take place after the end of the duration contradicts the wordings of the Ayah because in this case they only have either to take them back in marriage during the duration of Ila'. As for the divorce, it is neither due on them nor due to them, but it will be to Allah (Glory be to Him) after the end of the duration Who will divorce her after the end of the duration whether a husband desires or not.
2- As for Allah's Saying: "but if they return [to normal relations] – then indeed, Allah is Forgiving and Merciful," Allah mentioned "the return" after the duration which entails the end of the duration such as Allah's Saying: "The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness." (1) The word “after that” indicates that after divorce takes place.
3- As for Allah's Saying: "And if they decide the divorce, then Allâh is All-Hearer, All-Knower," (2) decision is taken based on the will of a person either to do or not to do it, but making the divorce effective without the decision of the husband as soon as the duration end without taking his opinion is contradictory to the Ayah.
4- Allah (Glory be to Him) gave the husband the choice between two things: Taking his wife back in marriage or divorce, and that choice does not exist except in one case like penances. However if they were two cases, they would be and arrangement not choice, so saying that taking the wife back in marriage would be during the duration, whereas the divorce would be after the end of the duration is not true because there is no choice in this case.
- Allah (Glory be to Him) says: "And if they decide upon divorce, then Allâh is All-Hearer, All-Knower." So, the divorce must be audible to match the end of the Ayah (All-Hearer).
- If a person says to an indebted, you have a term for four months and if you pay your debt, I shall accept from you, but if you do not pay it, I shall put you in prison; this means that the action will be taken after the end of the period.
- Scholars said: It is an oath like other oaths which entail penance when a person breaks them, so it does lead to divorce.
- It is a period fixed by the Shari`ah and was not preceded by divorce, so irrevocable divorce is not effective.
- It is not a wording that entails divorce, so the deferred divorce is not effective by it such as Zhihar.
- They said: Divorce takes place by explicit and implicit forms, but Ila' is not of these forms because if it is explicit, divorce shall be effective immediately or after a period, and if it is implicit, the intention is a clincher.
They said: As for the recitation of Ibn Mas`ud, it indicates the permissibility of taking the wife back in marriage during the duration of Ila', and does not indicate the obligation of taking her back in marriage during that period, which is a right that we cannot deny.
As for your saying: If taking the wife back in marriage is done after the duration, the period shall exceed four months; this is not true because the four months are the duration of observing patience to take the debt or to take the wife back in marriage, so as soon as the duration ends the right must be fulfilled. So, the wife has the right to ask for the fulfillment of the right or give him a respite like other rights suspended on fixed periods which must be fulfilled after the end of their fixed period. People should not say: That entails the increase of the period.