There is no ‘iddah binding on a woman whose
وَلاَ عِدَّةَ عَلىٰ مَنْ فَارَقَهَا
Book of Divorce
'Iddah (Continued)
اْلعِدَّةِ
The Book of Purification
The Book of Prayer
Importance of Prayer & Ruling of its Abandonment
Facing the Qiblah & Intention in the Prayer
Etiquettes of Walking to Prayer and its Description
Description of Prayer Continued
Description of Prayer Continued
Description of Prayer Continued
Pillars and Mandatory Acts of Prayer
Two Prostrations of Forgetfulness
Supererogatory (Voluntary) Prayers
Supererogatory (Voluntary) Prayers Continued
Times of Prohibition of (Supererogatory) Prayer
Congregational Prayers & Latecomers
Jumu'ah (Congregational Friday) Prayer
The Book of Funerals
The Book of Fasting
The Book of Hajj and 'Umrah
Book of Zakat
The Book of Selling and Commercial Transactions
Introduction & Commercial and Selling
Selling of Primary & Secondary Commodities
Cancellation Options in Transactions
Cancellation Options Continued
Debt Transference & Guarantor-ship
Mortgaging & Security Deposits
Partnership & Companies Continued
Reviving Barren Lands & Per-Job Wage
Lost and Found Property & Foundlings
Prize Money & Deposits for Safekeeping
The Book of Bequests
The Book of Inheritance
The Book of Marriage
The Book of Divorce
The Book of Sadaq
The Book of Dhihar
The Book of Lian
The Book of Foods
Book of Fatal and Non-Fatal Assault
The Book of Indemnities
The Book of Hudood
The Book of Jihad
The Book of the Judiciary
The Book of Testimonies
Appendix
Glossary
'Iddah (Continued)
Chapter on the ‘Iddah (Waiting Period)
1386
1386. Introduction
The ‘iddah is the waiting period during which the wife is obligated to remain unmarried. It is binding after an unfinalized or finalized divorce, legally enforced divorce, khul‘ (annulment/divorce initiated by the wife), li‘ân, annulment (separation due to an invalid marriage), or death. There is no ‘iddah for an unconsummated marriage except in the case of the husband’s death. The ‘iddah begins from the time of separation, regardless of whether or not the marriage was valid or whether or not they were living together.
The Wisdom Behind the ‘Iddah Legislation
There is a great deal of wisdom behind the legislation of the ‘iddah, including the confirmation that the woman is not pregnant. This is not the only purpose, though, so it would be inappropriate to say that medical investigations would make it unnecessary. For one thing, Allah decreed an ‘iddah for the older woman who could not possibly be pregnant; also, there is a difference between the ‘iddah after divorce and that after the husband’s death. Therefore, we may assume that there are additional benefits, such as allowing the woman time to move past the shock of divorce or the husband’s death and the consequent emotional instability. Some have suggested that there may also be health reasons, presuming that serial relationships without a waiting period between them may be harmful to women
The Difference Between ‘Illah (Effective Cause) and Ḥikmah (Wisdom)
In the Principles of Fiqh, it is stated that:
The ruling hinges on the ‘illah.
الحُكْمُ يَدُورُ مَعَ العِلَّةِ
So, for example, if the reason for prohibiting khamr (alcoholic drinks) is intoxication, then whenever a drink causes intoxication, the prohibition applies; in contrast, if the drink does not have the potency to cause intoxication, it is not khamr. Note that this is the ‘illah, not the wisdom. The ‘illah is the direct effective cause upon which the ruling hinges; it is measurable and well-defined. For instance, travel is the ‘illah of shortening the prayers, but the wisdom behind it is the removal of hardship. Since the wisdom is not well defined, it is generally not used in place of the ‘illah, although according to some scholars (some Ḥanbalis, al-Âmidi, and Ibn al-Ḥâjib), it may be used if it is apparent (dhâhir) and measurable (munḍabiṭ). Lastly, the ruling will depend completely on a certain ‘illah when we are confident it is the only ‘illah. In the case of the ‘iddah, the wisdom is not apparent and measurable, and the ‘illah is not singular.
husband left her, during his life, without having intercourse or seclusion with her. This is because of the statement of Allah Almighty: {O you who believed, when you marry believing women and then divorce them before you have touched them, then there is not for you any waiting period to count concerning them…} (al- Aḥzâb 33: 49)
زَوْجُهَا فِي اْلحَيَاةِ قَبْلَ اْلمَسِيْسِ؛ لِقَوْلِهِ تَعَالى: "يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا نَكَحْتُمُ الْمُؤْمِنَاتِ ثُمَّ طَلَّقْتُمُوهُنَّ مِن قَبْلِ أَن تَمَسُّوهُنَّ فَمَا لَكُمْ عَلَيْهِنَّ مِنْ عِدَّةٍ تَعْتَدُّونَهَا" [سورة الأحزاب: الآية 49]
The women observing the ‘iddah belong to one of four types:
First: Those who are pregnant
Their ‘iddah is until they give birth. If a woman is carrying twins, her ‘iddah is not over until she gives birth 1387 to the second.
The pregnancy whose end brings about the conclusion of the ‘iddah, and which gives the slave woman the status of umm walad (mother of the master’s child), is that which has discernible human features.
1388
وَالْمُعْتَدَّاتُ يَنْقَسِمْنَ أَرْبَعَةَ أَقْسَامٍ:
إِحْدَاهُنَّ: أَوْلاَتُ اْلأَحْمَالِ
فَعِدَّتُهُنَّ أَنْ يَضَعْنَ حَمْلَهُنَّ، وَلَوْ كَانَتْ حَامِلاً بِتَوْأَمَيْنِ لَمْ تَنْقَضِ عِدَّتُهَا حَتَّى تَضَعَ الثَّانِيَ مِنْهُمَا.
وَاْلحَمْلُ الَّذِيْ تَنْقَضِيَ بِهِ اْلعِدَّةُ وَتَصِيْرُ بِهِ اْلأَمَةُ أُمَّ وَلَدٍ، مَا يَتَبَيَّنَ فِيْهِ شَيْءٌ مِنْ خَلْقِ اْلإِنْسَانِ.
Second: Those whose husbands have died
They wait for four months and ten days.
This is the same (whether death happened) before or after consummation. 1389
الثَّانِيْ: اللاَّتِيْ تُوُفِّيَ أَزْوَاجُهُنَّ يَتَرَبَّصْنَ بِأَنْفُسِهِنَّ أَرْبَعَةَ أَشْهُرٍ وَعَشْرًا، وَاْلإِمَاءُ عَلىٰ النِّصْفِ مِنْ ذٰلِكَ. وَمَا قَبْلَ الْمَسِيْسِ وَبَعْدَهُ سَوَاءٌ.
1387. (A) + (+H, +M, +S): This also applies to the widow if she is pregnant.
If a woman belongs to more than one of the four categories (e.g., a pregnant or postmenopausal woman whose husband has died), we give first priority to pregnancy as the determinant of her ‘iddah, and next is death. So the ‘iddah of the pregnant widow ends upon childbirth – not after four months and ten days, and the ‘iddah of the postmenopausal widow ends after four months and ten days – not after three months.
1388. Here, the determination may be deferred to the experts (physicians in this case) because the revelation did not specify a means by which to judge whether there was pregnancy or not.
1389. The only exception is if she is pregnant, in which case her ‘iddah ends upon childbirth.
Third: Divorced women who menstruate They wait three qur’s. 1390
الثَّالِثُ: الْمُطَلَّقَاتُ مِنْ ذَوَاتِ اْلقُرُوْءِ يَتَرَبَّصْنَ بِأَنْفُسِهِنَّ ثَلاَثَةَ قُرُوْءٍ. وَقُرْءُ اْلأَمَةِ حَيْضَتَانِ.
Fourth: Those who are postmenopausal or premenarcheal Their waiting period is three months. 1391
الرَّابِـــــعُ: اللاَّئِيْ يَئِسْنَ مِنَ الْمَحِيْضِ فَعِدَّتُهُنَّ ثَلاَثَـــــةَ أَشْهُرٍ، وَاللاَّئِي لَمْ يَحِضْنَ، وَلِلأَمَةِ شَهْرَانِ.
1390. What Is a Qur’?
Waiting for three qur’s is a matter of consensus because Allah said:
{Divorced women remain in waiting for three periods (qur’s)...} (al-Baqarah 2: 228)
وَالْمُطَلَّقَاتُ يَتَرَبَّصْنَ بِأَنفُسِهِنَّ ثَلَاثَةَ قُرُوءٍ
However, they disagreed over the definition of qur’:
(A) + (+H, +m): It is the menstrual period.
(a) + (-M, -S): It is the period of purity between two menstrual periods.
(A) + (+H): Her ‘iddah is three complete menstrual cycles after the divorce, that is, her period comes, then she becomes pure, and then a second period comes and she becomes pure, and then a third period comes and she becomes pure. Once she is pure after the third period, her ‘iddah is concluded.
(-M, -S): Her ‘iddah ends at the beginning of the third menstrual cycle, because she will have gone through three periods of purity, including the one during which she was divorced.
1391. The Calculation of the Three Months
The months taken into consideration for all Sharia timespans are the lunar months. To calculate the three months if her husband divorces her on the 15th day of Muḥarram:
1) She needs to note how many days are left in the month of Muḥarram (14 or 15, depending on when the moon is sighted to begin the next month, Ṣafar).
2) She waits through the next two months of Ṣafar and Rabee‘ I.
3) She adds enough days from the following month, Rabee‘ II, to the 14 or 15 days of Muḥarram to bring the total to 30 days.
4) Her ‘iddah will end on the 15th or 16th day of Rabee‘ II.
It is prescribed to wait beyond the ‘iddah in three situations:
First: If her menstruation ceases without a known cause. In this case, she waits nine months, and then she observes the ‘iddah of the post-menopausal woman. 1392 If she knows what caused the cessation of her menstruation, she continues to observe the ‘iddah until her menstruation resumes. 1393
وَيُشْرَعُ التَّرَبُّصُ مَعَ اْلعِدَّةِ فِيْ مَوَاضِعَ ثَلاَثَةٍ:
أَحَدُهَا: إِذَا ارْتَفَعَ حَيْضُهَا لاَ تَدْرِيْ مَا رَفَعَهُ، فَإِنَّهَا تَتَرَبَّصُ تِسْعَةَ أَشْهُرٍ، ثُمَّ تَعْتَدُّ عِدَّةَ اْلآيِسَاتِ، وَإِنْ عَرَفَتْ مَا رَفَعَ اْلحَيْضَ، فَإِنَّهَا لَمْ تَزَلْ فِيْ عِدَّةٍ حَتَّى يَعُوْدَ اْلحَيْضُ، فَتَعْتَدَّ بِهِ.
Second: The missing (husband) who was lost in a dangerous situation or place, with his whereabouts and condition unknown. His wife will wait four years, and then she will observe the ‘iddah for death (of her husband). If he went missing in different situations, such as travelling for business or the like, then she cannot marry until she becomes certain of his death. 1394
الثَّانِيْ: امْرَأَةُ اْلمَفْقُوْدِ الَّذِيْ فُقِدَ فِيْ مَهْلَكَةٍ، أَوْ مِنْ بَيْنِ أَهْلِهِ، فَلَمْ يُعْلَمْ خَبَرُهُ. تَتَرَبَّصُ أَرْبَعَ سِنِيْنَ، ثُمَّ تَعْتَدُّ لِلْوَفَاةِ. وَإِنْ فُقِدَ فِيْ غَيْرِ هَذَا، لَمْ تَنْكِحْ حَتَّى تَتَيَقَّنَ مَوْتَهُ.
1392. If Her Menstruation Ceases Without a Known Cause
According to the AMJA’s Family Code, she will observe a waiting period of “three months, after confirming with the physicians that she is not pregnant.” This position may be more suitable for our times. This is one of the cases where the advances in medical sciences and practice could impact the rulings. There are two reasons for the observation of the ‘iddah: 1) to confirm the absence of pregnancy from the previous marriage, and 2) to separate the two marriages with a reasonable period. The position of AMJA here respects both wisdoms and does not contravene any textual proofs.
1393. If the Menstruation Ceases Due to a Known Cause.
According to the AMJA’s Family Code, she will “wait for three months after medically confirming the absence of pregnancy.”
1394. The Missing Husband
(A/SM & Iqnâ‘): She waits until he reaches age 90.
Third: If the woman doubts the end of her ‘iddah after its conclusion because signs of pregnancy appear, she cannot marry until the doubts end; if she marries, her marriage is invalid. If she starts to have the doubts after she marries another man, the marriage will not be voided unless she comes to be certain that she was pregnant when she got married. 1395
الثَّالِثُ: إِذَا ارْتَابَتِ الْمَرْأَةُ بَعْدَ قَضَاءِ عِدَّتِهَا؛ لِظُهُوْرِ أَمَارَاتِ اْلحَمْلِ، لَمْ تَنْكِحْ حَتَّى تَزُوْلَ الرِّيْبَةُ، فَإِنْ نَكَحَتْ لَمْ يَصِحَّ النِّكَاحُ، وَإِنِ ارْتَابَتْ بَعْدَ نِكَاحِهَا، لَمْ يَبْطُلْ نِكَاحُهَا إِلاَّ إن عَلِمَتْ أَنَّهَا نَكَحَتْ وَهِيَ حَامِلٌ.
Ibn Abi Shaybah and others reported from ‘Umar (and also from Ibn ‘Abbâs and Ibn ‘Umar) that the wife of a missing husband should wait four years and then start the waiting period of four months and ten days. They did not specify in all reports that this applied only when the man went missing in perilous circumstances. In fact, the report from ‘Umar concerned a man who went out to pray ‘ishâ’ and did not return. ‘Ali and Ibn Mas‘ood were reported to have said that she should wait until his death became certain. There is also a weak report from the Prophet (SA) himself indicating the same, but nothing can be authentically traced to him concerning this matter. This may be one of the issues that can be subjected to a new ijtihâd in light of the recent changes in the world. Many of the laws in Muslim countries have attempted to lighten the burden of the wife of the missing.
According to the AMJA’s Family Code:
When the husband’s location or place of residence is unknown, and the wife is harmed by that, her affair is referred to an Islamic judiciary to consider separating her from her husband due to harm. This would be a last resort after exhausting all efforts to reach him and, if he were found, demanding he return to his wife or relocating her to be with him.
1395. Doubting the Presence of Pregnancy after the End of the Period
This may happen before or after she marries another man.
If she has already married another man, their marriage will not be voided because of this doubt, but her new husband may not have intercourse with her until the doubt is eliminated. If she gives birth to a child less than six months after the consummation, this marriage will be considered void because it must have taken place while she was pregnant from the previous marriage.
This is assuming that the baby was not deemed by expert physicians to be extremely premature.
When a woman gets married during her ‘iddah, her marriage is void, and the two must be separated. 1396
وَمَتَى نَكَحَتِ الْمُعْتَدَّةُ فَنِكَاحُهَا بَاطِلٌ وَيُفَرَّقُ بَيْنَهُمَا.
If they are separated before the consummation, she then finishes the ‘iddah from the first marriage. 1397
If the separation takes place after the consummation, she resumes the ‘iddah from the first marriage, which was interrupted at the time of the consummation of the second marriage. After the end of the ‘iddah from the first marriage, she will observe anew another ‘iddah from the second marriage. 1398
فَإِنْ فُرِّقَ بَيْنَهُمَا قَبْلَ الدُّخُوْلِ، أَتَمَّتْ عِدَّةَ اْلأَوْلِ. وَإِنْ كَانَ بَعْدَ الدُّخُوْلِ، بَنَتْ عَلىٰ عِدَّةِ اْلأَوَّلِ، مِنْ حِيْنِ دَخَلَ بِهَا الثَّانِيْ، وَاسْتَأْنَفَتِ اْلعِدَّةَ لِلثَّانِيْ. وَلَهُ نِكَاحُهَا بَعْدَ قَضَاءِ اْلعِدَّتَيْنِ.
If this doubt emerges before she marries another man, she must wait until the doubt is eliminated.
In our times, a simple lab test will establish the presence or absence of pregnancy, so the above scenarios may be applicable only in the absence of modern medical technology.
1396. Because this results in the confusion of lineages. Allah said:
{…And do not determine to undertake a marriage contract until the decreed period reaches its end…} (al-Baqarah 2: 235)
وَلَا تَعْزِمُوا عُقْدَةَ النِّكَاحِ حَتَّىٰ يَبْلُغَ الْكِتَابُ أَجَلَهُ
1397. Which is not interrupted by the second unconsummated marriage.
1398. If She Consummates a Second “Marriage” During Her ‘Iddah First, the woman will have to finish what is left of the ‘iddah from the first marriage, starting the count from the time she separated from the second “husband”. After the first ‘iddah ends, she starts the ‘iddah from the second “husband”.
Example: A post-menopausal woman “marries” a second man only two months after a previous divorce, and she lives with the second “husband” for four months. She will be separated from him and must finish the one month remaining from her first ‘iddah (from the time of separation from the second “husband”). Then she starts a new ‘iddah (from the second “marriage”) for another three months. Four months after her separation from the second “husband”, she is free to marry again
He (the second husband) may marry her after the conclusion of both ‘iddahs. 1399
If she gives birth to a child from one of them, her ‘iddah from him ends, and she continues her ‘iddah from the other. If the child could possibly be from either one of them, then he or she will be
وَإِنْ أَتَتْ بِوَلَدٍ مِنْ أَحَدِهِمَا، اْنقَضَتْ بِهِ عِدَّتُهُ، وَاعْتَدَّتْ لِلآخَرِ، وَإِنْ أَمْكَنَ أَنْ يَكُوْنَ مِنْهُمَا، أُرِيَ اْلقَافَةَ، فَأُلْحِقَ بِمَنْ أَلْحَقُوْهُ مِنْهُمَا، وَانْقَضَتْ بِهِ
This is ‘Umar’s decree regarding this matter.
(-H): The ‘iddahs overlap.
1399. Married Her During Her ‘Iddah; Are They Permanently Unmarriageable?
If they did not consummate the marriage, the fuqahâ’ agreed that they may marry after she finishes her ‘iddah of the first marriage.
If they consummated their marriage:
(-H, -S): He may marry her after the end of her ‘iddah (from the previous husband).
(A): She must complete the two ‘iddahs before the marriage.
(a) + (-M): He will be forbidden to her permanently. Mâlik held that position because he reported in al-Muwaṭṭa’ that a woman married during her ‘iddah, and ‘Umar said:
“When a woman marries during her ‘iddah, but they do not consummate the marriage, then they will be separated, and she will have to finish the remaining part of her ‘iddah of the first marriage. Afterwards he (the second man) will be considered like any suitor. If they had consummated the marriage, they will be separated, and she will have to finish her ‘iddah of the first marriage and then her ‘iddah from the second, and he (the second man) may never marry her.”
أيُّما امرأةٍ نُكحت في عدتِها ولم يَدخلْ بها الذي تزوَّجها فُرِّق بينهما ثم اعتدَّت بقيةَ عدتِها من زوجِها الأولِ وكان خاطبًا من الخُطَّابِ وإن دخل بها فُرِّق بينهما ثم اعتدتْ بقيةَ عدتِها من زوجِها الأولِ ثم اعتدَّتْ من الآخرِ ولم ينكِحْها أبدا
The majority argued that ‘Ali said that she may still marry him, and it was reported that ‘Umar recanted his position when he heard of ‘Ali’s. However, those reports are not established.
The majority also argued that a fornicator may still go back and marry the woman with whom he had illicit sex. Additionally, there is no proof in the Qur’an or Sunnah on this permanent prohibition of marriage.
1400. “The qiyâfah of people is an investigative science that studies the physical characteristics of two individuals to assert their ancestry and filiality of one another… This practice is done by speculation and intuition, not by evidences and certainty, and Allah – the Glorified and High – knows best.” (al-Qanooji, Abjad al-‘Uloom)
1401. Married During Her ‘Iddah and Gave Birth to a Baby
If she gives birth less than six months after the second marriage, the child will be attributed to the first husband (as long as the baby is not deemed by expert physicians to be extremely premature).
Her ‘iddah from the first marriage ends upon childbirth, and then she starts counting her ‘iddah from the second.
If she gives birth more than six months after the second marriage, and four years from her separation from the first husband, the child will be attributed to the second husband. In this case, her second ‘iddah ends before the first does. After childbirth, she will have to complete what is left of her first ‘iddah.
(A) + (+M, +S): Four years is the longest possible duration of pregnancy.
(a) + (-H): Two years is the longest.
(Z): Nine months is the longest.
Muhammad ibn al-Ḥakam: It is one lunar year. His position is upheld by modern family laws in Egypt, Syria and other Muslim countries.
If she gives birth more than six months after her second marriage but less than four years after her separation from the first husband, then the physiognomists will be consulted to identify the father.
In our times, whenever DNA testing is available, it will replace the expert opinion of the physiognomists, since its scope of operation and reliability is much greater.
In our times, premature babies born before six months of post-conceptional age (6-1/2 months of gestational age) may survive with advanced medical intervention. Whenever DNA testing is available, it can eliminate any possible confusion.
'Iddah (Continued)
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