Alhassanain(p) Network for Heritage and Islamic Thought

Al-Khul'

Khul' is a form of divorce in which the wife releases herself (from the marriage tie) by paying consideration to the husband. Here we have the following issues.

The Condition of the Wife's Destestation

When they both agree to khul’ and she pays him the consideration to divorce her, though they are well settled and their conduct towards each other is agreeable, is their mutual agreement to khul’ valid?

The four schools state: The khul’ is valid and the rules applicable to it and their effects will follow. But it is makruh1 (detestable though lawful).

According to the Imamiyyah, such a khul’ is not valid and the divorcer will not own the consideration. But the divorce (so pronounced) will be valid and revocable if all the conditions for revocability are present. The proof they offer are traditions of the Imams of the Ahl al-Bayt (A) and verse 229 of Surat al-Baqarah:

فَإِنْ خِفْتُمْ أَلاَّ يُقِيمَا حُدُودَ اللَّهِ فَلاَ جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ

...Then if you fear that they cannot maintain the limits set by Allah, there is no blame on the two for what she gives to release herself ..

wherein the verse has made the validity of consideration contingent upon the fear of sinning in case the marital relationship were to continue.

Mutual Agreement to Khul' for a Consideration Greater than Mahr

The schools concur that the consideration should have material value and that its value may be equal to, lesser, or greater than the mahr.

Conditions for Consideration Payable in Khul'

According to the four schools, it is also valid to conclude a khul' agreement with anyone apart from the wife. Therefore, if a stranger asks the husband to divorce his wife for a sum which he undertakes to pay and the husband divorces her, the divorce is valid even if the wife is unaware of it and on coming to know does not consent. The stranger will have to pay the ransom to the divorcer. (Rahmat al-ummah and Farq al-zawaj of al-Ustadh al-Khafif )

The Imamiyyah observe: Such a khul' is invalid and it is not binding upon the stranger to pay anything. But it is valid for a stranger to act as a guarantor of the consideration by the wife's permission and ask the husband, after the wife's permission, to divorce her for such· a consideration guaranteed by him. Thus, if the husband divorces her on this condition, it is binding on the guarantor to pay him that amount and then claim it from the divorcee.

All that which is validly payable as mahr is also valid as consideration in khul’, by consensus of all the five schools. It is also not necessary that the amount of consideration be known in detail beforehand if it can be known eventually (such as when she says: "Grant me khul' for that which is at home", or "in the locker", or "my share of inheritance from my father", or "the fruits of my garden").

If khul' is given in return for that which cannot be owned, such as liquor or swine, the Hanafi, the Maliki and the Hanbali schools observe: If both knew that such ownership is haram, the khul' is valid and the divorcer is not entitled to anything, making it a khul' without consideration. The Shafi'is say: The khul' is valid and she is entitled to the mahr al-mithl (al-Mughni, vol. 7).

Most Imami legists state: The khul' shall be void and the divorce will be considered revocable if it is an instance of revocable divorce; otherwise, it will be irrevocable. In all the cases, the divorcer shall not be entitled to anything.

If the husband grants her khul' for a consideration that he believes to be halal and it later turns out to be haram (such as when she says: "Grant me khul’ for this jar of vinegar," which turns out to be wine) the Imami and the Hanbali schools observe: He shall claim from her a similar quantity of vinegar. The Hanafis state: He shall claim from her the stipulated mahr. According to the Shafi'i school, he shall claim from her the mahr al-mithl.

If she seeks khul' for a consideration she considers to be her property and it turns out to be someone else's, the Hanafi school and most Imami legists observe: If the owner allows it, the khul' will be valid and the husband will take it, but if he disallows, the husband is entitled to a similar consideration either in cash or kind. The Shafi'i school states: The husband is entitled to mahr al-mithl. This is in accordance with the Shafi'i principle that when a consideration becomes invalid, it becomes void and mahr al-mithl becomes payable (Maqsad al-nabih). According to the Malikis, the divorce becomes irrevocable, the consideration becomes void, and the divorcer gets nothing even if the owner permits (al-Fiqh 'ala al-madhahib al-'arba'ah, vol. 4).

If the wife seeks khul’ by undertaking to nurse and maintain his child for a certain period, the khul’ will be valid and she will be bound to nurse and maintain the child, as per consensus. The Hanafi the Maliki and the Hanbali schools further clarify that it is valid for a pregnant wife to seek khul’ from her husband in return for maintaining the child in her womb on the same grounds on which it is valid for her to seek khul' by undertaking the maintenance of a born child. I have not come across in the lmami and Shafi'i sources accessible to me anyone who has dealt with this issue, although the principles of the Shari'ah do not prohibit it, because the cause, which is the child in the womb, is present, and the wife's pledge is a condition by which she binds herself to the effect that in the event of the child being born alive she will be responsible for its nursing and maintenance for a specific period, and Muslims are bound by the conditions they lay down, provided this does not result in a halal becoming haram or vice versa. Hence this condition is valid in itself, for it does not suggest anything legally void; therefore its fulfillment is compulsory because it is part of a binding contract. The uncertainty concerning the child being born alive or dead, and its dying after birth before the stipulated period, is overlooked in a khul’.

The furthest one can go in asserting its impermissibility and invalidity is by likening a pledge to maintain with a discharge from maintenance. Therefore, when a discharge from maintenance is invalid because it is an annulment of something not binding, similarly a pledge to maintain is not valid because it is not presently wajib. But there is a great difference between a pledge and a discharge, because it is necessary that a discharge be from something present and actual, while a pledge need not be so. Apart from this, we have already discussed in the chapter on marriage regarding khul’ in return for foregoing the right to custody of a child by the father or the mother.

A Related Issue

If a husband grants khul’ to his wife in return for her maintaining the child, she is entitled to claim the child's maintenance from its father on her not being able to maintain it, and he will be compelled to pay the maintenance. But he can reclaim this maintenance from the mother if she comes to possess the means. If the child dies during the stipulated period, the divorcer is entitled to claim a compensation for the remaining period in accordance with the words of the verse (2:229) فِيمَا افْتَدَتْ بِه It is better for a woman to undertake the nursing and maintenance of the child for a certain period so long as it is alive. Then the divorcer will not have the right to a claim against her if the child dies.

Conditions for a Wife Seeking Khul'

There is consensus among the schools that a wife seeking khul’ should be a sane adult. They also concur that the khul’ of a stupid (safih) wife is not valid without the permission of her wali (guardian). The schools differ regarding the validity of khul’ where the guardian has granted her the permission to seek khul’. The Hanafis observe: If the guardian undertakes to pay the consideration from his own personal assets, the khul’ is valid; otherwise, the consideration is void, while the divorce takes place according to the more authentic of two traditions (Abu Zuhrah).

The Imami and the Maliki schools state: With the guardian's permission to her to pay the consideration, the khul’ is valid by payment from her wealth not his. (al-Jawahir and al-Fiqh 'ala’ al-madhahib al-'arba’ah)

The Shafi'i and the Hanbali schools consider the khul’ of a stupid wife as invalid irrespective of the guardian's permission. The Shafi'i school allows one exception to the above opinion, wherein the guardian fears the husband's squandering her wealth and grants her permission to seek a khul’ from him for the protection of her property. The Shafi'is then add: Such a khul’ is invalid and the divorce is revocable. The Hanbalis say: Neither the khul’ nor the divorce will take place except when the husband intends a divorce through khul’ or if the khul’ takes place in the words of a divorce.

If a woman seeks khul’ during her last illness, it is considered valid by all schools. But they differ where she pays as consideration more than a third of her wealth or more than the husband's share to be inherited from her on assumption of her death during the 'iddah. As said above, they inherit from each other in this situation.

The Imami and the Shafi'i schools state: If she seeks khul' for mahr al-mithl, it is valid and the consideration is payable from her undivided legacy. But if it exceeds mahr al-mithl, the excess will be deducted from one-third of her legacy.

The Hanafis observe: Such a khul’ is valid and the divorcer is entitled to the consideration if it does not exceed either one-third of her wealth or his share of inheritance from her were she to die during the 'iddah. This means that he will take the least of the three amounts: the consideration of the khul’, his share of inheritance from her, or a third of her legacy. (Therefore, if the consideration for the khul’ is 5, his share of inheritance 4, and a third of her legacy 3, he shall be entitled to 3).

According to the Hanbali school, if she seeks khul’ in return for a consideration equaling his share of inheritance from her or something lesser, the khul’ and the consideration are valid. But if she seeks khul' for a higher consideration, only the excess will be void (al-Mughni, vol. 7).

The Imamiyyah moreover require the wife seeking khul' to fulfil all the requirements in a divorcee (such as her purity from menses, non-occurrence of intercourse in the period of purity if her marriage has been consummated, her being neither menopausal nor pregnant, her not being a minor below the age of nine). Similarly, they require the presence of two just witnesses for the khul’ to be valid. But the other schools validate a khul’ irrespective of the state of the wife seeking it, exactly like a divorce.

Conditions for a Husband Granting Khul’

Excepting the Hanbali, all the other schools concur that a husband granting khul' requires to be a sane adult. The Hanbalis state: Khul’ granted by a discerning minor (mumayyiz) is valid, as is a divorce given by him. As mentioned at the beginning of this chapter on divorce, the Hanafis permit a divorce pronounced in jest, under duress, or in a state of intoxication, and the Shafi'i and the Maliki schools concur with them concerning divorce pronounced in jest. A khul' granted in a state of rage is valid if the rage does not eliminate the element of intention.

There is consensus among the schools concerning the validity of a khul’ granted by a stupid (safih) husband. But the consideration will be given to his guardian, and its being given to him is not valid.

Regarding a khul’ granted by a sick husband on his death bed, it is undoubtedly valid, because when his divorcing without receiving any consideration is valid, a divorce along with consideration would be more so.

The Pronouncement of Khul’

The four schools permit the use of explicit words – such as derivatives of al-khul’ and al-faskh (dissolution) – in the pronouncement, as well as implicit words (such as "bara'tuki" [I relinquish you] and "abantuki" [I separate myself from you]). The Hanafis have said: The use of the words al-bay' (to sell) and al-shira' (to purchase) is valid (for instance, when the husband says to the wife: "I sell you to yourself for so much", and the wife replies: "I purchase", or when he says: "Buy your divorce for so much", and she replies: "I accept"). Similarly the Shafi'i school accepts the validity of a khul’ pronounced with the word al-bay'.

The Hanafis allow the conditional khul’, the khul’ by exercise of an option, and the khul’ in which the pronouncement and the payment of consideration is separated by an extended time interval (such as, where a husband is away from his wife and it reaches him that she has said, "I seek a khul’ for so much," and he accepts it). Similarly the Malikis also do not consider the time factor an impediment.

Khul’ is valid according to the Hanbali school even without an intention if the word used is explicit (such as al-khul’, al-faskh and al-mufadat); but it requires that the pronouncement and payment take place simultaneously and unconditionally.

The Imamiyyah have said: Khul' does not take place by using implicit words or even explicit words other than al-khul' and al-talaq. If desired, they can be used together or singly (thus, she may say: "I pay you this much for divorcing me", and he will reply: "I grant you khul' for it, and therefore you are divorced". This form of pronouncement is the safest and most suitable in the view of all Imami legists. It also suffices if he says: "You are divorced in return for it," or "I grant you khul' in return for it"). The Imamiyyah require that khul' should be unconditional, exactly as in divorce, and consider necessary the absence of any time gap between its pronouncement and payment of consideration.

Notes

1. Al-Ustadh al-Khafif, Farq al-zawaj (1958), p.159.

Al-'Iddah

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:

وَالْمُطَلَّقَاتُ يَتَرَبَّصْنَ بِأَنفُسِهِنَّ ثَلاَثَةَ قُرُوءٍ

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:

اعتدّي في بيت ابن أُم مكتوم

Observe 'iddah in the house of lbn 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.

Divorcee's ‘Iddah

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 Hanbali 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 Imamiyyah and the Shafi'is observe: Seclusion has no effect. As mentioned earlier in relation with the distinction between revocable and irrevocable divorce, the Imamiyyah do not require a menopausal wife with whom coitus has taken place to observe 'iddah. The reasons given by the Imamiyyah 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.1

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:

I. The five schools concur that a pregnant divorcee will observe 'iddah till childbirth in accordance with the verse:

وَأُوْلاَتُ الأَحْمَالِ أَجَلُهُنَّ أَنْ يَضَعْنَ حَمْلَهُنَّ

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 foetus is not completely formed: the Hanafi, the Shafi'i and the Hanbali schools observe: Her 'iddah will not terminate by its detachment. The Imami and the Maliki schools state: It will, even if it is a lump of flesh, so far as it is a foetus.

The maximum period of gestation is two years according to the Hanafis, four years according to the Shafi'is and the Hanbalis, and five years according to the Malikis, as mentioned by al-Fiqh 'ala al-madhahib al-'arba'ah. In al-Mughni, it is narrated from Malik 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 Hanbali schools. The Imami, the Shafi'i 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.2 This age is seventy years according to the Malikis, fifty years according to the Hanbalis, fifty-five years according to the Hanafis, sixty-two years according to the Shafi'is, and according to the Imamiyyah fifty for ordinary women and sixty for those of Qurayshi descent.

Regarding a wife copulated with before her completing nine years, the Hanafis observe: 'Iddah is wajib on her even if she is a child. The Maliki and the Shafi’i 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 Imami and the Hanbali schools do not consider 'iddah wajib on a minor under nine years even if she has the capacity for intercourse. (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 Imami, the Maliki and the Shafi'i 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 Hanafis and the Hanbalis 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 Imamiyyah, 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 Imamiyyah) 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.

Nifas is similar to menses, in the opinion of the Imamiyyah. 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 nifas (in which case the 'iddah is 23 days, considering a moment of nifas 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 Hanafis). 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 Hanbali and the Maliki schools observe: She will observe 'iddah for one complete year. In the later of his two opinions, al-Shafi'i 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 Shafi’i schools. (al-Fiqh 'ala al-madhahib al-'arba'ah, vol. 4. the discussion on 'iddat al-mutallaqh idha kanat min dhawat al-hayd).

The Imamiyyah 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 Imamiyyah.3

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:

وَالَّذِينَ يُتَوَفَّوْنَ مِنْكُمْ وَيَذَرُونَ أَزْوَاجاً يَتَرَبَّصْنَ بِأَنفُسِهِنَّ أَرْبَعَةَ أَشْهُرٍ وَعَشْراً

And those among you who die and leave behind wives, (these wives) should keep themselves 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:

وَأُوْلاَتُ الأَحْمَالِ أَجَلُهُنَّ أَنْ يَضَعْنَ حَمْلَهُنَّ

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

The Imamiyyah state: Her 'iddah will be whichsoever 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 Imamiyyah argue that it is necessary to combine the verse 2:234:

يَتَرَبَّصْنَ بِأَنفُسِهِنَّ أَرْبَعَةَ أَشْهُرٍ و عشراً

with the verse 65:4:

أَجَلُهُنَّ أَنْ يَضَعْنَ حَمْلَهُنَّ

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 childbirth, 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:

وَالَّذِينَ يُتَوَفَّوْنَ مِنْكُمْ وَيَذَرُونَ أَزْوَاجاً يَتَرَبَّصْنَ بِأَنفُسِهِنَّ أَرْبَعَةَ أَشْهُرٍ وَعَشْراً ،وَأُوْلاَتُ الأَحْمَالِ أَجَلُهُنَّ أَنْ يَضَعْنَ حَمْلَهُنَّ

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 ten days; and that of a widow who delivers after four months and ten days is until the time of her delivery.

If someone questions how the Imamiyyah specify the 'iddah of a pregnant widow to be the longer of the two terms (delivery or four months and ten days) while the verse وَأُوْلاَتُ الأَحْمَالِ is explicit that the 'iddah of a pregnant woman terminates on her giving birth, the Imamiyyah say: How have the four schools said that the 'iddah of a pregnant widow is two years, if the gestation period so extends, in spite of the verse:

وَالَّذِينَ يُتَوَفَّوْنَ مِنْكُمْ وَيَذَرُونَ أَزْوَاجاً يَتَرَبَّصْنَ بِأَنفُسِهِنَّ أَرْبَعَةَ أَشْهُرٍ وَعَشْراً

which is explicit that it is four months and ten days? If the questioner replies: The four schools have done so acting in accordance with the verse أُولات الأحمال , the Imamiyyah reply: We have acted in accordance with the verse: والذين يتوفّون .

Therefore it is not possible to apply both the verses except by stipulating the longer of the two terms as 'iddah.

The schools excepting the Hanafi, concur that al-hidad is wajib on the widow, irrespective of her being major or minor, Muslim or non-Muslim. The Hanafis do not consider it wajib for a non-Muslim and a minor widow because they are not mukallaf (responsible for religious duties).

The meaning of al-hidad is that the woman mourning her husband's death refrain from every adornment that makes her attractive. It determination depends on prevailing customs and usage.

The Imamiyyah observe: The 'iddah of divorce will commence on the recital of the divorce, irrespective of the husband's presence or absence. The 'iddah of a widow commences on the news of his death reaching her, if he is away. But if the husband is present and she comes to know of his death after some time, her 'iddah will commence from the time of his death, as per the predominant opinion among Imamiyyah legists.

The schools concur that if the husband of a revocable divorcee dies while she is undergoing 'iddah, she is bound to start anew with a widow's 'iddah from the time of his death, irrespective of the divorce taking place during the husband's mortal illness or health, because the marital bond between her and the husband has not yet broken. But if the divorce is irrevocable, it will depend. If he divorces her while healthy, she will complete the 'iddah of divorce and will not have to observe any 'iddah due to the husband's death, as per consensus, even if the divorce was without her consent. Similar is the case if he divorces her during his mortal illness on her demand. But what if he divorces her during his mortal illness without her demanding it, and then dies before the termination of her 'iddah? Shall she start the widow's ‘iddah, like a revocable divorcee, or shall she continue to observe the 'iddah of divorce?

The Imami, the Maliki and Shafi'i 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 Hanbali 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 divorcee will continue to observe the 'iddah of divorce, as per the concurrence of all the schools except the Hanafi and the Hanbali, 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 Imamiyyah, 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 Imamiyyah, one in which the man involved is not liable to penal consequences, irrespective of the woman being one with whom marriage is unlawful (such a 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 Hanbalis 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 Imamiyyah except in some details, as indicated below on the discussion of the 'iddah of a fornicatress.

The Hanafis state: ‘Iddah is wajib both as a result of intercourse by mistake or an invalid marriage. 'lddah 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 (fasid) 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 (batil) 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 menstruations if she menstruates, or three months if she is not pregnant. If she is pregnant, the 'iddah will continue until childbirth.

The Malikis 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 Shafi'i schools, as well as the majority of Imamiyyah legists, remark: 'lddah 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 Hanafis permit marriage with a woman pregnant through fornication without allowing intercourse with her before her delivery.

The Malikis 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 Hanbalis 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 kitabi, the Imami,4 the Shafi'i, the Maliki and the Hanbali schools consider 'iddah wajib upon her. But the Shafi'i, the Maliki and the Hanbali schools do not consider al-hidad wajib for her while observing the 'iddah of widowhood.

The Hanafis 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 imams of the various schools differ regarding the law applicable to his wife.

Abu Hanifah, al-Shafi'i 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-Shafi'i and Ahmad at 90 years.

Malik 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'i 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.

Malik 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 mahr 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 mahr or allow her to remain with him by taking the mahr. (al-Mughni, vol. 7 and Rahmat al-ummah)5

The Imamiyyah 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 depute 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.6

The 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 divorcee 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 Hanfis 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 Hanbalis state: She will inherit from him as long as she does not remarry, even if her 'iddah terminates.

The Malikis state: She inherits from him even after her remarriage.

Three opinions of al-Shafi'i 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 Imamiyyah the other schools speak of a divorce by a sick person only when it is irrevocable. But the Imamiyyah 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, 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.

'Iddah and Location

The schools concur that a revocable divorcee 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:

ولاَ تُخْرِجُوهُنَّ مِنْ بُيُوتِهِنَّ وَلاَ يَخْرُجْنَ إِلاَّ أَنْ يَأْتِينَ بِفَاحِشَةٍ مُبَيِّنَةٍ

Do not expel them from their homes, and neither should they themselves go forth, unless they commit an obvious indecency. (65:1)

The Imamiyyah state: An irrevocable divorcee 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 divorcees, and there are many traditions from the Imams 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 haram 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 haram to marry the sister of a divorcee in 'iddah if the divorce is revocable, and differ where the divorce is irrevocable. The Hanafi and Hanbali 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 Imami, the Maliki and the Shafi'i schools state: It is permissible to marry the sister of a divorcee and a fifth wife before the completion of 'iddah if the divorce is irrevocable.

Can a Divorcee in 'Iddah be Redivorced?

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-Mughni, vol.7, chapters on khul' and raj’ah; al-Fiqh 'als al-madhahib al-'arba'ah, the discussion on conditions of divorce).

The Imamiyyah observe: Divorce of a divorcee, revocable or irrevocable, does not take place unless he returns to her, because it is meaningless to divorce a divorcee.

Notes

1. The Imamiyah state: When the husband, a born Muslim, apostatizes, his wife will observe the ‘iddah of widowhood, and if he apostatizes by returning to his former faith, she will observe a divorcee’s ‘iddah.

2. As mentioned earlier, the Imamiyah do not consider ‘iddah wajib for a menopausal woman. But they say: If he divorces her, and she menstruates once before reaching menopause, she will complete her ‘iddah after two more months. The four Sunni schools observe: She will start observing ‘iddah anew, for three months, and her menstruation will not be included in the ‘iddah.

3. The authors of al-Jawahir and al-Masalik have mentioned the prevalent opinion (mashhur) in this regard, acting in accordance with the tradition narrated by Sawdah ibn Kulayb. Both have discussed this issue at length and narrated other views which are not mashhur and which most Imamiyyah legists have deliberately ignored.

4. The following observation has been made in al-Jawahir, (vol.5, bab al-‘idad). The ‘iddah of a non-Muslim woman is exactly like that of a free Muslim woman in regard to both divorce and death. I have not come across any difference of opinion because of the generality of the proofs and an explicit tradition from al-Sadiq (A) from al-Sarraj, who asked him (A): “What is the ‘iddah of a Christian woman whose husband, a Christian, has died.” He replied: “Her ‘iddah is four months and ten days.”

5. This is when she does not raise the issue before a judge. But if she suffers as a result of his absence and files a complaint in court demanding separation, both Ahmad and Malik allow her to be divorced in such a situation. Details follow under the section on divorce by a judge.

6. See al-Jawahir, appendices to al-‘Urwah of al-Sayyid Kazim, al-Wasilah of al-Sayyid Abu al-Hasan, and other books on Imamiyyah fiqh. But the greater part of our discussion is based on al-Wasilah, because it is both comprehensive and lucid.