"Waiting Period" (Al-`iddah) According To Five Islamic Schools Of Jurisprudence (1) by Hijr Miskeena Raudah
There is consensus among Muslims about the general necessity of ‘iddah. Its basis is the Qur’an and the Sunnah. As to the Qur’an, we have the following verse:
Women who are divorced shall wait, keeping themselves apart, three (monthly) courses…. (2:228)
As to the Sunnah, there is the Prophet’s tradition commanding Fatimah bint Qays: Observe ‘iddah in the house of Ibn Umm Maktum.
They differ, however, regarding: the ‘iddah of a wife separated from her husband due to divorce or annulment of marriage; the ‘iddah of a widow; the ‘iddah of a woman copulated by mistake; the relief of an adulteress (from menses); and 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 observed: 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 divorcee 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, the Maliki and the Sháfi`í schools have 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 to have completed the period, her word will be accepted if the period is sufficient for the completion of the ‘iddah. According to the Imámís, the minimum 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 minimum period) followed by a ten-day purity period (which is the minimum 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 recommencement of menses and the first moment of the third monthly is to be certain of 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 minimum 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
As mentioned earlier, a mature divorcee who has not yet menstruated will observe a three-month ‘iddah, as per consensus. But if she menstruates and then ceases to do so—as a result of her nursing a child or due to some disease – the Hanbalí and the Maliki schools observe: She will observe ‘iddah for one complete year. In the later of his two opinions, al-Sháfi`í has said: Her ‘iddah will continue until she menstruates or reaches menopause; after this, she will observe an ‘iddah of three months. (al-Mughni, vol. 7, “bab al-‘idad”). The Hanafi school is of the opinion that, if she menstruates once and then ceases perpetually due to disease or breast-feeding a child, her ‘iddah will not terminate before menopause. Accordingly, the period of ‘iddah can extend for more than forty years in the opinion of the Hanafi and the Sháfi`í schools. (al-Fiqh ‘ala al-madhahib al-‘arba’ah, vol. 4, the discussion on ‘iddat al-mutallaqah cIddah kaanat min dhawat al-hayd) .
The Imámís observe: If menstruation ceases due to some accidental cause the divorcee will observe an ‘iddah of three months, similar to a divorcee who has never menstruated. If menses resume after the divorce, she will observe ‘iddah for the shorter of the two terms, i.e. three months or three quru‘. This means that if three quru‘ are completed before three months, the ‘iddah will be over on their completion, and if three months are completed before three quru‘, then again the ‘iddah will terminate. If she menstruates even a moment before the completion of three months, she will have to wait for nine months, and it will not benefit her if she is later free from menses for a period of three months. After the completion of nine months, if she gives birth before the completion of a year, her ‘iddah will terminate, and similarly if she menstruates and completes the periods of purity. But if she neither gives birth nor completes the periods of purity before the end of the year, she will observe an additional ‘iddah of three months after completing the nine months. This adds up to a year, which is the maximum period of ‘iddah according to the Imámís.
The Widow’s iddah
(To be continued).