Case: Matters which are prohibited and lawful about the wife who is prohibited by Zhihar before paying a penance.
It is prohibited for a husband who practices Zhihar to have sexual intercourse with his wife before paying the penance without disagreement if the penance is emancipation or fasting because of Allah's Saying: "Then (the penalty in that case is) the freeing of a slave before they touch each other." And His Saying: "And he who finds not (the money for freeing a slave) must fast two successive months before they both touch each other." Most scholars hold the view that penance through feeding takes the same ruling of other penances, and it is prohibited to have sexual intercourse with her before paying the penance; those scholars are `Ata', Az-Zuhry, Al Shafi`y, and the people of opinion.
However, Abu Thawr adopted the view of the permissibility of having sexual intercourse with one's wife before paying the penance of feeding. Imam Ahmad also adopted the same view because Allah (may He be Exalted) did not prevent touching before paying the penance of feeding as it is the case of the penance of emancipation and fasting.
The most probable is the first view because of the narration of `Ikrimah who narrated on the authority of Ibn `Abbas who reported that a man came to the Prophet (peace be upon him) after he had made Zhihar with his wife and indulged in sexual intercourse. He said: "O Messenger of Allah, I have made Zhihar with my wife and followed it with sexual intercourse before making an expiation." He said: "And what compelled you to that, may Allah have mercy on you." He said: "I glanced at her anklet in the moon light (and was overpowered)." He said: "Now, do not approach her till you have done what Allah has commanded you to do." (1)
And because the husband practices Zhihar without paying the penance, so it is prohibited for him to have sexual intercourse with his wife.
- As for enjoying the other parts of her body other than sexual intercourse such as kissing, touching, and fondling, it has two views:
1- It is prohibited which is the view of Abu Bakr, Az-Zuhry, Malik, Al Awza`y, Abu `Ubayd, the People of Opinion, An-Nakh`y, and one of the two views of Imam Al Shafi`y because the reason of prohibiting sexual intercourse [i.e., Zhihar] has prohibited its consequences such as the case in divorce and entering into the state of Ihram.
2- Enjoying one's wife is not prohibited. Imam Ahmad said: I hope it is permissible. The same view was adopted by Ath-Thawry, Ishaq, Abu Hanifah, Malik, and one of the two views of Imam Al Shafi`y because it is a sexual intercourse that entails paying the penance, so prohibition is connected by paying the penance so it is temporary like the prohibition of having sexual intercourse with a menstruating woman.
Case: The ruling on the person who desires to have sexual intercourse before paying the penance.
A wife must prevent her husband who practices Zhihar from approaching her, and she may complain about him before the judge to prevent him from doing so until he pays the penance, and the ruler may discipline him.
Case: If a husband refuses to pay the penance while he is capable of doing so:
If a husband practices Zhihar from his wife by saying to her: You are prohibited to me like the back of my mother then refuses to pay the penance, it is known that he intends to harm the wife. In this case he practices Ila' not Zhihar, so he either takes her back in marriage and pay the penance or to divorce her. It is not an oath but when he stops from having a sexual intercourse while he is able to pay the penance, it has become known that he intends to harm the wife, so he shall take the ruling of the one who practices Ila' which is the view of Imam Malik and others.
(1) Reported by At-Tirmidhy in the chapter on the one who practices Zhihar who has sexual intercourse before paying the penance, Hadith 1199 - 3/503 and said: This Hadith is Hassan Gharib (a good Hadith that is strange to come from this chain of narration) and authentic, and Al Albany graded it as good in his verification to the Sunan him achievement to Sunan. It was also reported by An-Nasa'y in the chapter on Zhihar, Hadith No. 3475 - 6/479, and Al Bayhaqy in As-Sunan Al Kubra, No. Hadith 15036 - 7/386, and At-Tabarany in Al Mu`jam Al Kabir, Hadith No. 11600 - 11/236.