(Please read: “Waiting Period” (Al-‘iddah) According To Five Islamic Schools Of Jurisprudence 2)
The method of search is that the judge will question about his presence and seek information from those coming from the place where there is a possibility of his being present. The best way of it is to deputize a reliable person from among the people of the place where the search is being conducted to supervise the search on his behalf and report to him the result. A search of an ordinary extent is sufficient, and it is neither necessary that his whereabouts be inquired in every place which can possibly be reached, nor that the inquiry be conducted continually. When the search is completed in a period of less than four years in a manner that it becomes certain that further inquiry is fruitless, the search is no longer wajib. Yet it is necessary that the wife wait for four years; this is in compliance with an explicit tradition and the demand of precaution in marital ties, as well as the possibility of the husband returning during these four years.
After the completion of this period the divorce will take place and she will observe an ‘iddah of four months and ten days without hidad. She is entitled to maintenance during this period, and the spouses inherit from each other as long as she is in ‘iddah. If the husband comes back during the ‘iddah, he may return to her if he wants or let her remain as she is. But if he comes back after the completion of the ‘iddah but before her marrying another, the preferable opinion is that he has no right over her; and more so if he finds her married.13
Rules Governing ‘Iddah
We said in the chapter on maintenance that there is consensus regarding a revocable divorcee’s right to maintenance during her ‘iddah. We also said that there is a difference of opinion regarding an irrevocable divorce during her ‘iddah. Here we shall discuss the following issues:
Inheritance between a Divorcer and a Divorcee
There is consensus that when a husband revocably divorces his wife, their right of inheriting from each other does not disappear as long as she is in ‘iddah, irrespective of the divorce being given in mortal illness or in condition of health. The right to mutual inheritance is annulled on the completion of the ‘iddah. There is a consensus again regarding the absence of mutual inheritance if the husband divorces his wife irrevocably in health.
Divorce by a Sick Person
The schools differ when a sick person divorces his wife irrevocably and then dies in the same sickness. The Hanafís entitle her to inherit as long as she is in ‘iddah, provided the husband is considered attempting to bar her from inheriting from him and the divorce takes place without her consent. In the absence of any of these two conditions she will not be entitled to inherit.
The Hanbalís state: She will inherit from him as long as she does not remarry, even if her ‘iddah terminates.
The Málikís state: She inherits from him even after her remarriage. Three opinions of al-Sháfi`í have been reported, and one of them is that she will not inherit even if he dies while she is observing ‘iddah.
It is notable that apart from the Imámís the other schools speak of a divorce by a sick person only when it is irrevocable. But the Imámís have observed: If he divorces her while sick, she will inherit from him irrespective of the divorce being revocable or irrevocable, on the realization of the following four conditions.
- That the husband’s death occurs before the completion of one year from the date of divorce. Thus, if he dies one year after the divorce, even if by an hour, she will not inherit from him.
- That she does not remarry before his death. If she does and he dies within a year (of the divorce), she will not inherit.
- That he does not recover from the illness in which he divorced her. Thus, if he recovers and then dies within a year, she will not be entitled to inherit.
- That the divorce does not take place on her demand.
‘Iddah and Location
The schools concur that a revocable divorce will observe ‘iddah at the husband’s home. Therefore, it is not permissible for him to expel her. Similarly, it is not permissible for her to leave it. The schools differ regarding an irrevocable divorcee. The four schools are of the opinion that she will observe ‘iddah like a revocable divorcee, without there being any difference, in accordance with the verse:
Do not expel them from their homes, and neither should they themselves go forth, unless they commit an obvious indecency. Quranic verse.
The Imámís state: An irrevocable divorce is free to decide about her own affairs and may observe ‘iddah wherever she wants, because the marital bond between her and the husband has snapped; neither do they inherit from each other, nor is she entitled to maintenance, unless pregnant. Accordingly, the husband is not entitled to confine her. As to the above verse, they say that it relates specifically to revocable divorce, and there are many traditions from the Imáms of the Ahl al-Bayt (A) to this effect.
Marriage with a Divorcee’s Sister in ‘Iddah
If a person marries a woman, it is haraam for him to marry her sister. However, if she dies or is divorced and her period of ‘iddah terminates, it becomes halal for him to marry her sister. But is it halal for him to marry her sister before her ‘iddah comes to an end? The schools concur that it is haraam to marry the sister of a divorcee in ‘iddah if the divorce is revocable, and differ where the divorce is irrevocable. The Hanafi and Hanbalí schools observe: Neither marriage with her sister is permissible nor the marrying of a fifth wife (if he had four, one of whom he has divorced) until the completion of her ‘iddah, irrespective of the divorce being revocable or irrevocable.
The Imámi, the Maliki and the Sháfi`í schools state: It is permissible to marry the sister of a divorcee and a fifth wife before the commencment of ‘iddah if the divorce is irrevocable.
Can a Divorcee in ‘Iddah be Re-divorced?
The four schools state: In revocable divorce, he is entitled to divorce her again while she is observing ‘iddah, without returning to her, but not if the divorce is irrevocable (al-Mughni7 vol. 7, chapters on khul’ and raj’ah; al-Fiqh ‘ala al-madhahib al-‘arba’ah, the discussion on conditions of divorce).
The ‘iddah of a wife whose husband has disappeared
The five schools concur that a woman divorced before consummation and before the occurrence of valid seclusion has no ‘iddah to observe. The Hanafi, the Maliki and the Hanbalí schools state: If the husband secludes with her without consummating the marriage and then divorces her, she will have to observe ‘iddah, exactly as if consummation had occurred.
The Imámís and the Sháfi’ís observe: Seclusion has no effect. As mentioned earlier in relation with the distinction between revocable and irrevocable divorce, the Imámís do not require a menopausal wife with whom coitus has taken place to observe ‘iddah. The reasons given by the Imámís for this opinion were also mentioned earlier.
The ‘iddah for every kind of separation between husband and wife, except the one by death, is the ‘iddah of divorce, irrespective of its being due to: khul’, li’an, annulment due to a defect, dissolution arising from rida’ (breast-feeding), or as a result of difference of religion.
Moreover, the schools concur that the ‘iddah is wajib on a wife divorced after consummation and that the ‘iddah will be one of the following kinds:
- The five schools concur that a pregnant divorc’ee will observe ‘iddah till childbirth, in accordance with the verse:
And as for pregnant women, their term shall end with delivery. (65:4)
If she is pregnant with more than one child, her ‘iddah will not terminate until she gives birth to the last of them, as per consensus. The schools differ concerning a miscarriage if the fetus is not completely formed; the Hanafi, the Sháfi`í and the Hanbalí schools observe: Her ‘iddah will not terminate by its detachment. The Imámi and the Maliki schools state: It will; even if it is a lump of flesh, so far as it is a fetus.
The maximum period of gestation is two years according to the Hanafís, four years according to the Sháfi`ís and the Hanbalís, and five years according to the Málikís, as mentioned by al-Fiqh ‘ala al madhahib al-‘arba’ah. In al-Mughni, it is narrated from Maalik to be four years. Details of this were mentioned in the chapter on marriage.
A pregnant woman cannot menstruate according to the Hanafi and the Hanbalí schools. The Imámi, the Sháfi`í and the Maliki schools allow the possibility of its occurrence.
- She will observe an ‘iddah of three lunar months if she is: an adult divorcee who has not yet menstruated or a divorcee who has reached the age of menopause. This age is seventy years according to the Málikís, fifty years according to the Hanbalís, fifty-five years according to the Hanafís, sixty-two years according to the Sháfi`ís, and according to the Imámís fifty for ordinary women and sixty for those of Qurayshi descent. Regarding a wife copulated with before her completing nine years, the Hanafís observe: ‘Iddah is wajib on her even if she is a child.
The Maliki and the Sháfi`í schools state: ‘Iddah is not Wajib on a minor incapable of intercourse, but wajib on one who is capable even if she is under nine. The Imámi and the Hanbalí schools do not consider ‘iddah wajib on a minor under nine years even if she has the capacity for inter course. (al-Fiqh ‘ala al-madhahib al-‘arba’ah, vol. 4, discussion on the ‘iddah of a menopausal divorcee).
- A divorcee over nine who has had monthlies and is neither pregnant nor menopausal has an ‘iddah of three quru’ as per consensus. The Imámi, Maliki and Sháfi`í schools have all interpreted the word qara’ to mean purity from menses. Thus, if she is divorced at the last moment of her present period of purity, it will be counted as a part of ‘iddah, which will be completed after two more of such terms of purity. The Hanafís and the Hanbalís interpret the term to mean menstruation. Thus, it is necessary that there be three monthlies after the divorce, and the monthly during which she is divorced is disregarded. (Majma’al ‘anhur)
If a divorcee undergoing this kind of ‘iddah claims having completed the period, her word will be accepted if the period is sufficient for the completion of ‘iddah. According to the Imámís, the mini mum period required for accepting such a claim is twenty-six days and two ‘moments’, by supposing that she is divorced at the last moment of her first purity, followed by three days of menses (which is the mini mum period) followed by a ten-day purity period (which is the mini mum period of purity according to the Imámís) followed again by three days of menses, then a second ten-day purity followed by menses. The period of ‘iddah comes to an end with the sole recommencement of menses, and the first moment of the third monthly is to make certain the completion of the third period of purity. Nifaas is similar to menses, in the opinion of the Imámís. Accordingly, it is possible for an ‘iddah to be completed in twenty-three days, if the wife is divorced immediately after childbirth but before the commencement of nifaas (in which case the ‘iddah is 23 days, considering a moment of nifaas followed by ten days of the first purity, followed by three days of menses—which is the minimum period for it—followed by a second ten-day purity).
The minimum period for accepting such a claim by a divorcee is thirty-nine days according to the Hanafi school, by supposing his divorcing her at the end of her purity, and supposing again the mini mum three-day period of menstruation, followed by a 15-day purity (which is the minimum in the opinion of the Hanafís). Thus, three menses, covering nine days, separated by two periods of purity, making up thirty days, make up a total of thirty-nine.
Maximum Period of iddah