The Shari Laws Regarding Iddat

If he divorces her finally, she shall not be lawful to him after that, until she marries another husband. Some of these cases have been reported by major U. Following is a landmark case at New York Supreme Court of Westchester County, in which this author submitted an affidavit on behalf of a client. You may read the judgment of the Supreme Court on the following link: For specific or legal advice on the information provided and related topics, please contact the author. Or visit our websites at the following links: For more information on the author, please see this link: Posted by International Law at Newer Post Older Post Home.

Labels Iran 42 Nuclear threat 1. The schools also concur that a woman observing the 'iddah following her husband's death is not entitled to maintenance, whether she is pregnant or not, except that the Shafi'i and the Maliki schools state: If the husband dies, she is entitled to maintenance only to the extent of housing. The Shafi'is have said: If he separates from her while she is pregnant and then dies, her maintenance shall not cease.

If she is a revocable divorcee and the husband dies during the 'iddah , her 'iddah of divorce shall change into an 'iddah of death, and her maintenance shall cease, except where she had been asked by count to borrow her maintenance and she had actually done so.

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In this case, the maintenance shall not cease. The schools differ regarding the maintenance of a divorcee during the 'iddah of an irrevocable divorce. She is entitled to maintenance even if she has been divorced thrice, whether she is pregnant or not, on condition that she does not leave the house provided by the divorcee husband for her to spend the period of 'iddah. According to the Hanafi school, the rules which apply to a woman in an 'iddah following the dissolution of a valid contract are the same as those which apply to a divorcee in an irrevocable divorce. According to the Maliki school, if the divorcee is not pregnant, she shall not be entitled to any maintenance except residence, and if she is pregnant she is entitled to her full maintenance; it shall not subside even if she leaves the house provided for spending the 'iddah , because the maintenance is intended for the child in the womb and not for the divorcee.

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The Shafi'i, the Imamiyyah and the Hanbali schools state: If she is not pregnant she is not entitled to maintenance, and if pregnant, she is entitled to it. If she leaves the house of her 'iddah without any necessity, her maintenance shall cease. The Imamiyyah do not consider the dissolution of a valid contract similar to an irrevocable divorce; they observe: A divorcee undergoing the 'iddah of a dissolved contract is not entitled to any maintenance whether she is pregnant or not.

The schools concur that a disobedient wife is not entitled to maintenance. But they differ regarding the extent of disobedience which causes the maintenance to subside. According to the Hanaf"is, when a wife confines herself to her husband's house and does not leave it except with his permission, she shall be regarded as 'obedient' even if she denies him her sexual company without any valid reason.

Therefore, though such an act is Haram for her, it shall not cause her maintenance to cease. Thus, the cause which entitles her to maintenance, according to the Hanafis, is her confining herself to her husband's home, and her denial of her sexual company has no effect at all. This view of the Hanafi school is contrary to the view of all the other schools who concur that if a wife does not allow her husband free access to her person without any legal and reasonable excuse, she shall be considered 'disobedient' and shall not be entitled to any maintenance.

Her allowing him free access is not enough unless she comes forth and says expressly to him: In fact, the criterion for ascertaining 'obedience' and 'submission' is the general custom and there is no doubt that the people consider a wife obedient if she does not deny him access when he demands it, and they do not consider it necessary that she offer herself to him morning and evening.

Whatever be the case, we have here the following questions concerning 'obedience' and 'disobedience'. The remaining schools state: A minor wife is not entitled to maintenance even if the husband is a major. Her maintenance is wajib because the hindrance is from his side, not her. The Malikis and some scholars of the Imamiyyah have said: Maintenance is not wajib because the sole granting of access from her side has no effect while there exists a natural disability in the husband, and a minor husband is free of obligations ghayr mukallaf , and as to the duty of his guardian, there is no proof that he is responsible for his ward's wife's maintenance.

The maintenance of a wife belonging to the Ahl al - Kitab is wajib , and there is no difference between her and a Muslim wife from the viewpoint of maintenance. Regarding a wife copulated with before her completing nine years, the Hanafis observe: 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. 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.

Mut’ah and Iddah

Thus, it is necessary that there be three monthlies after the divorce, and the monthly during which she is divorced is disregarded. 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 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.

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.

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In the later of his two opinions, al-Shafi'i has said: 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. 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. 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.

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 waiting for four months and ten days. 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:.

Her 'iddah will be whichsoever is longer of the two terms, i. 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: 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:. 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:. If the questioner replies: We have acted in accordance with the verse: 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.

International Law: The Iddat of a Woman in Islam

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 '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? 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. According to the Imamiyyah, the 'iddah of 'intercourse by mistake' is similar to the 'iddah of a divorcee.

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.

The Right to Maintenance

They do not differ from the Imamiyyah except in some details, as indicated below on the discussion of the 'iddah of a fornicatress. 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.