Mutual cursing between spouses (li'an), fiqh rulings

Li'an, in lexicon, is a verbal noun from cursing, meaning expulsion or distance from good, or from God, and from people, abuse. For the Hanafis and Hanbalis it is the testimonies between spouses, confirmed by oaths, with the curse from the husband and wrath from the wife; for the Malikis, the husband's four oaths that he saw her commit adultery or denies a pregnancy, and her oaths denying him; for the Shafi'is, fixed words. It serves as necessary proof to ward off the hadd of accusation from the husband, or to deny a child ^{1 2}.

The Hanafis hold that a husband's accusation of his wife requires li'an, on the verse of the surah of Light (verse 6), cited without quoting. The Malikis hold three grounds: seeing the act, denying a pregnancy, or accusing without seeing, where most narrators say he is punished and does not curse ². The Hanbalis hold the husband may waive the hadd by li'an; the hadd for accusation is the wife's right, so if she waives it or the husband proves adultery by witnesses, there is no li'an except to deny descent ^{2 3}.

For the Hanafis the element is the testimonies between the spouses; for the Malikis there are four elements: the two parties, the cause and the words ³. For the Hanafis, the husband must have no witness; the wife must deny the act and be chaste; the two must be married at the time of the accusation by a valid marriage, both must be competent to testify against a Muslim, and the accusation must be of adultery or denial of descent ^{3 4 5}. The Malikis require marriage, puberty, sanity, accusation by sight or denial of a pregnancy, promptness, no intercourse after the accusation, the husband's start, and a group present ⁵. The Shafi'is require a husband who may divorce, a prior accusation, the judge's order and recitation of the words, the proper words, continuity, and the wife's cursing to follow the husband's ^{5 6}.

Li'an is established before the judge in two ways: the husband confesses the accusation, or the wife brings evidence that he accused her. Evidence is two men, not women, because li'an stands in for the hadd, and hadds are averted by doubt ⁶.

The Hanafis in the apparent view have the husband swear four times by God that he is truthful about the accusation, and in the fifth say the curse of God be upon him if he is a liar; the wife then swears four times that he is a liar, and in the fifth says the wrath of God be upon her if he is truthful. The Malikis, Shafi'is and Hanbalis have detailed forms for denial of pregnancy, denial of descent or averting the hadd, with the wife cursing after the husband ^{6 7 8}. Nothing takes effect unless all five parts are complete, and changing the words or the order invalidates it ^{8 9}.

The mute curses by a clear sign or writing; if he later speaks and says he did not mean li'an by his sign, his word is taken against him but not for him. A speaker who loses speech through illness waits three days if recovery is hoped; a person who does not speak Arabic curses in his own tongue, with a translator ^{9 10}.

The husband's curse must precede the wife's; if she begins, the judge repeats hers, according to the Shafi'is, Hanbalis and the Malikis, and according to the Hanafis and a Maliki view the husband must begin, and if the judge does not repeat it and separates them, the ruling stands ^{10 11}. If the husband refuses, the Hanafis imprison him until he curses or she accepts or he confesses, then the hadd for accusation; most jurists give him the hadd for accusation, since li'an waives it ^{11 12}. If the wife refuses, the Hanafis and Hanbalis do not give her the hadd for adultery but imprison her; the Malikis and Shafi'is give her the hadd for adultery ^{12 13}.

The effects include the lifting of the hadd from both spouses; the bar on intercourse and enjoyment; whether separation takes place through li'an or the judge's ruling (the Hanafis say the judge's ruling); whether separation is a dissolution or a final divorce, the Malikis, Shafi'is, Hanbalis and Abu Yusuf calling it a dissolution with a lasting bar, and Abu Hanifa and Muhammad a final divorce ^{13 14 15}.

If li'an is completed to deny descent, the child is cut off from the father and joined to the mother, under conditions: promptness at birth, no acknowledgement express or implied, and the child living at the li'an for the Hanafis, which the Shafi'is and Hanbalis do not require ^{16 17 18}. The denied child is a stranger to the father in inheritance and maintenance, but not in testimony, retaliation, forbidden kinship, or in the claim by another ^{18 19}.

Intensifying the li'an is a sunna for the Shafi'is and in the school of the Hanbalis, and obligatory for the Malikis; it may be done at a time, such as after the afternoon prayer, at a place, such as the noble mosques or beside the pulpit, and before a group of upright men ^{19 20}. It is a sunna for the judge to admonish the spouses and for them to stand while cursing so that people see ²¹.