“Waiting Period” (Al-`iddah) According To Five Islamic Schools Of Jurisprudence (2) by Hijr Miskeena Raudah

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Hijr Miskeenah Rauda (Hajara Tijjani Elmiskin)

Please read: “Waiting Period” (Al-`iddah) According To Five Islamic Schools Of Jurisprudence (1)

The Widow’s iddah

There is consensus among the schools that the ‘iddah of a widow who is not pregnant is four months and ten days, irrespective of her being a major or a minor, her being menopausal or otherwise, and regardless of the consummation of her marriage, in accordance with the verse:

And those among you who die and leave behind wives (these wives should keep themselves in waiting for four months and ten days. (2:234)

This is the case when she is sure of not being pregnant. But if she has a doubt, she is bound to wait until delivery or attainment of certainty that she is not pregnant. This is the opinion of many legists belonging to different schools. The four Sunni schools state: The ‘iddah of a pregnant widow will terminate on delivery, even if it occurs a moment after the husband’s death. This permits her to remarrying immediately after giving birth, even if the husband has not yet been buried, as per the verse:

And as for pregnant women, their term shall end with delivery. (65:4)

The Imámís state: Her ‘iddah will be whichever is longer of the two terms, i.e. delivery or four months and ten days. Thus if four months and ten days pass without her giving birth, her ‘iddah will continue until childbirth; and if she delivers before the completion of four months and ten days, her ‘iddah will be four months and ten days. The Imámís argue that it is necessary to combine the verse 2:234 with the verse 65:4.

The former verse has fixed the ‘iddah at four months and ten days, and it includes both a pregnant and a non-pregnant wife. The latter verse has stipulated the ‘iddah of a pregnant wife to last until child birth, and it includes both a divorcee and a widow. Thus an incompatibility emerges between the apparent imports of the two verses regarding a pregnant widow who delivers before the completion of four months and ten days. In accordance with the latter verse her ‘iddah terminates on delivery, and in accordance with the former the ‘iddah will not terminate until four months and ten days have been completed. An incompatibility also appears if she does not deliver after the completion of four months and ten days; according to the former verse her ‘Iddah terminates when four months and ten days are over, and in accordance with the latter the ‘iddah will not terminate because she has not yet delivered. The word of the Qur’an is unequivocal, and it is necessary that parts of it harmonize with one another. Now, if we join the two verses like this, the meaning will be that the iddah of a widow who is not pregnant or is pregnant but delivers within four months and ten days is four months and that of a widow who delivers after ten days is until the time of her delivery.

If someone asks:  how could the Imámís determine the iddah of a widow to be the longer of the two terms (after delivery and the four months and ten days) although the verse: “The pregnant women’s period is after they deliver their babies…” states clearly that the period of pregnant women ends as soon as they deliver?  The Imámís respond:  How could the Four (Sunni schools) state that the waiting period of the pregnant widow is up to two years if the pregnancy continues during this time period although the verse:  “And those who die amongst you and leave behind wives, they shall wait for four months and ten (days)” is clearly stating that the waiting period is four months and ten.  If one argues:  They (Sunnis) used the verses talking about the children of pregnant women, the Imámís would respond:  We used the verse “…And those who die …” So there is no way of applying the two verses without resorting to adopt the longer period.

All the schools of thought concur that the widow must mourn her husband regardless of her being old or young and Muslims or non-Muslim.  Except the Hanafís who went to exclude the young and Dhimmiyyah because they are not considered religiously responsible.

The Mourning (Hidaad) is defined as the abstinance of the grieving woman from using all sorts of beauty features that would make her desired by the observers. The detail of that was discussed by the people of religious law.

The Imaamees state that the waiting period starts as soon as the divorce is declared regardless of the presence or the absence of the husband.  The Waiting Period of the widow starts as soon as she hears of the death if he was absent.  If he is present but she did not know his death immediately, then the waiting period starts at the time of the death. This is the known view of the Imaami scholars.

They concur that If a woman is divorced, a non-Permanent Divorce and her husband dies while she is in a waiting, she must starts the Widows Waiting from the time of his death regardless of the divorce being stated during death illness or while healthy.  Because the covenant (cismah) between her and her husband was not terminated yet.  If the Divorce was a Permanent (Baa’in) one, then we would have more than one ruling: If he divorced her while he was healthy, she shall continue the Divorce Waiting and she would not be required to go through a Widow Waiting.  This is the view of all the Schools of Law even if the divorce took place without her consensus.  The same view is stated if the divorce was stated while he is in death illness if she is the one who asked for divorce.  But if he divorced her during his death illness without her request for divorce then he died before the expiration of the Waiting, would it become a Widows Waiting as was the cases in the non-Permanent (Rijcee) divorce, or should she continue the Divorce Waiting?

The Imámi, the Maliki and the Sháfi`í schools state: She shall continue to observe the ‘iddah of divorce without changing over to the ‘iddah of widowhood.

According to the Hanafi and the Hanbalí schools, she shall change over to the ‘iddah of widowhood.

In short, a revocable divorcee will start observing the ‘iddah of widowhood if the Divorcer dies before the termination of her ‘iddah of divorce, and an irrevocable divorce will continue to observe the ‘iddah of divorce, as per the concurrence of all the schools except the Hanafi and the Hanbalí , who exclude an irrevocable divorcee if the divorce takes place during the divorcer’s mortal illness without her consent.

Iddah for Intercourse by Mistake

According to the Imámís, the ‘iddah of ‘intercourse by mistake’ is similar to the ‘iddah of a divorcee. Therefore, if the woman is pregnant, she will observe ‘iddah until childbirth; if she has menstruated, her ‘iddah will be three quru’, otherwise three months. An ‘intercourse by mistake’ is, according to the Imámís, one in which the man involved is not liable to penal consequences, irrespective of the woman being one with whom marriage is unlawful (such as wife’s sister or a married woman) or lawful (such as any unmarried woman outside the prohibited degrees of marriage). The view held by the Hanbalís is nearly similar to this view, where they observe that every form of sex relations necessitate the observance of ‘iddah. They do not differ from the Imámís except in some details, as indicated below on the discussion of the ‘iddah of a Fornicatress.

The Hanafís state: ‘Iddah is wajib both as a result of intercourse by mistake or an invalid marriage. ‘Iddah is not wajib if the marriage is void. An example of the ‘mistake’ is a man’s having relations with a sleeping woman thinking her to be his wife. An invalid (faasid ) marriage is one with a woman with whom marriage is lawful but in which some essential conditions remain unfulfilled (such as where a contract has been recited without the presence of witnesses). A void (baatil) marriage is a contract with a woman belonging to the prohibited degrees of relatives (e.g. sister or aunt). The ‘iddah for intercourse by mistake according to them is three menstruation if she menstruates, or three months if she is not pregnant. If she is pregnant, the ‘iddah will continue until child birth.

The Málikís state: She will release herself after three quru’; if she does not menstruate, by three months, if pregnant, on childbirth.

Whatever be the case, if a man who has had intercourse by mistake dies, the woman will not observe the ‘iddah of widowhood, because her ‘iddah is due to intercourse, not marriage.

The Iddah of a Fornicatress

The Hanafi and the Sháfi`í schools, as well as the majority of Imámi legists, remark: ‘Iddah is not required for fornication, because the relations have no sanctity. Thus, marriage and intercourse with a Fornicatress is lawful, even if she is pregnant. But the Hanafís permit marriage with a woman pregnant through fornication without allowing intercourse with her before her delivery.

The Málikís state: Fornication is similar to intercourse by mistake. Thus she will release herself in a period equal to the period of ‘iddah except when she is to undergo the punishment, in which case she will release herself after a single menstruation.

The Hanbalís observe: ‘Iddah is as wajib on a Fornicatress as on a divorcee (al-Mughni, vol.6 and Majma’ al- ‘anhur).

The iddah of a Kitabiyyah

The schools concur that a kitabiyyah (a non-Muslim female adherent of a religion having a scripture) wife of a Muslim will be governed by the laws applicable to a Muslim wife concerning the necessity of ‘iddah, and al-hidad in an ‘iddah of widowhood. But if she is a wife of a non-Muslim kitabl, the Imámi, the Sháfi`í, the Maliki and the Hanbalí  schools consider ‘iddah wajib upon her. But the Sháfi`í, the Maliki and the Hanbalí schools do not consider al-hidad wajib for her while observing the ‘iddah of widowhood.

The Hanafís state: A non-Muslim woman married to a non-Muslim does not have an ‘iddah. (al-Shi’rani, Mizan, bab al-‘idad wa al- ‘istibra’)

Wife of a Missing Husband

A missing person can be in one of these two situations: First, where his absence is continuous but his whereabouts are known and news about him is received. Here, according to consensus, his wife is not entitled to remarry. The second situation arises where there is no more any news of him and his whereabouts. The Imáms of the various schools differ regarding the law applicable to his wife.

Abu Hanifah, al-Sháfi`í according to his later and preferred opinion, and Ahmad according to one of his two traditions, observe: Marriage is impermissible for the wife of a missing husband as long as he may be considered alive on the basis of a usual life-span. Abu Hanifah has fixed this period at 120 years; al-Sháfi`í and Ahmad at 90 years.

Maalik states: She shall wait for 4 years and then observe an Iddah of four months and ten days, after which she may remarry.

Abu Hanifah and al-Shafi’; in the more reliable of his two opinions state: If the first husband returns after she marries another, the second marriage shall become void and she will become the first’s wife.

Maalik observes: If the first husband returns before the consummation of the second marriage, she will belong to the first husband, but if he returns after consummation she will remain the second’s wife. It will be wajib, however, for the second husband to pay dowry to the first.

According to Ahmad, if the second husband has not consummated the marriage she belongs to the first; but if he has, the choice lies with the first husband: he may either reclaim her from the second husband and give him the dowry or allow her to remain with him by taking the dowry. (al-Mughni, vol. 7 and Rahmat al- ‘ummah)

The Imámís state: The case of a missing person who is not known to be living or dead will be studied. If he has any assets by which the wife can be maintained, or has a guardian willing to maintain her, or someone volunteering to do it, it is Wajib for her to patiently wait for him; it is not permissible for her to marry in any circumstance until she learns of his death or his divorcing her. But if the missing husband has neither any property nor someone willing to maintain her, if the wife bears it patiently, well and good; but if she wants to remarry, she will raise the issue before the judge. The judge will order a four-year waiting period for her from the time the issue was brought to him, and then start a search for the husband during that time. If nothing is known, and the missing husband has a guardian or an attorney in charge of his affairs, the judge will order him to divorce her. But if the husband has neither a guardian nor an attorney, or has, but has prohibited him from divorcing, and it is not possible to compel him, the judge will himself pronounce the divorce by using the authority granted to him by the Shari’ah. After this divorce the wife will observe an ‘iddah of four months and ten days after which she may remarry.

The method of search

5 COMMENTS

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