"Waiting Period" According to Five Islamic Schools of Jurisprudence
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 \anbalí 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.8
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:
1. 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 \anbalí 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 \anafís, four years according to the Sháfi`ís and the \anbalís, 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 \anbalí schools. The Imámi, the Sháfi`í and the Maliki schools allow the possibility of its occurrence.
2. 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.9 This age is seventy years according to the Málikís, fifty years according to the \anbalís, fifty-five years according to the \anafís, 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 \anafís 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 \anbalí 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).
3. 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 \anafís and the \anbalís 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 \anafís). 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 ciddah
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 \anbalí 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.1
The Widow's ciddah
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 XXXXXXXX with the verse 65:4 XXX 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 import 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 ciddah 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 upto 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 \anafís who went to exclude the young and Dhimmiyyah because they are not considered religiously responsible.
The Mourning (Hidaad) is defined as the substinance of the grieving woman from using all sorts of beauty features that would make her desired by the observers. The details 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 Permanent (Baa'in) one, then we would have more then one ruling: If he divorced her while he was healthy, she shall continue the Divorce Waiting and she would not 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 \anbalí 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 \anbalí , 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 \anbalís 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 \anafís 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 cIddah 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 \anafís 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 \anbalís observe: 'Iddah is as wajib on a Fornicatress as on a divorcee (al-Mughni, vol.6 and Majma' al- 'anhur).
The cIddah 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 Imámi11, the Sháfi`í, the Maliki and the \anbalí schools consider 'iddah wajib upon her. But the Sháfi`í, the Maliki and the \anbalí schools do not consider al-hidad wajib for her while observing the 'iddah of widowhood.
The \anafís 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 cIddah 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 )1 2
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 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 \anafís 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 \anbalís 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.
1. 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, I even if by an hour, she will not inherit from him.
2. That she does not remarry before his death. If she does and he dies within a year (of the divorce), she will not inherit.
3. 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.
4. That the divorce does not take place on her demand.
cIddah 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.(66:1J
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 \anbalí 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 ciddah 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 Imámís observe: Divorce of a divorcee, revocable or irrevocable does not take effect unless he returns to her because it is meaningless to divorce a divorcee.