CHAPTER

Wife's Release against Payment

(Khu/')

A wife's release against payment is the wife', separa tion from h .. hl15band in ,..,turn for remuneration paid to the husband, and it is effected through a

certain sp<lken form.

the Arabic W<)rd AA"I' means taking off

something. and Ihi& term implies that the wife in this n.., "'parates from her husband just like taking off her clothing. since the husband and hi. wife are

rder""d to in the Qurln as clothing for one another due to their

union, and intimacy. Alla h. Exalted be He, say",

"... 11uy are dothing/or)'flll and )'<Ill fl.re clothingfor them .H

(Qur'An: AlBaqarah: 187)

It is well known that marriage is a union bnwee n the husband and his wife to live logrther in kind" . ... bu ild up a new family. and bring up a new ge neration. Allah, Exalted M Ht, !aY':

VII: DIVORC E

-And DfHiuig.u lf 11r,1/

crulMfor you fro", youndws IIUI"'"

Ilrat you "'ay filld tn"''IUililY ;II tire",; an d He pllKnl l/dwa .. YO" "/fertion fuod .. (Qurln: Ar- Rum: 21)

If this noble obj ective of ma rriage is not fulfilled, as when there is no mutual affection betwn th e ,pauses, or when there is no affection of the huslxlnd towards his wife, or when tMir living together be.:omtt unbeanble and it If too difficult to scale thrir disputrs, the husband in w eh C3$($ is obl iged to release her kindly. ALlah, Exalted bt- He, says:

.. the .. {after 'hat}, ri'Mr IcNp (lw"/ ill a .. IIIPfabk ""'..,....

M"

Tf!WlR (her) wlllr

,ood fTf!Dlme ..I..

(Qur';1n: AIBaqarah: 229) Allah at&o says: -S"t iflhty Iqi!rtJle (I')' diw"n/. 1I11t111 .../U " ,rkh tacit (oftlttm} from Hi. "lrundRltCl. 1IN1 twr if Allah McomJIfWIIIg " ..d W",. (Qur'ilo n: An-Nisi': 130) However, when the: husband loves his wife but she dislikcs him, his marmeR, his ' ppear:m , or hislaclt of reUgiown....., or fea T$ th e sin of not observing his rights, it is permiloSible for her to aslt for separa ti on by ransoming herself thn:lUgh payi ng him B monetary compensation. Allah, Exalted bt- He, says:

... /rut if you pr tluu lhey will .."I knp lwllhln/ the limits "f 1I11t111, lhen .. M IIJtJmt upon elthtr "f 'htm '''''etminl tlull by which she nIIII(}III./tnsdf.... (Qu r'An: AIBaqarnh: 229)
This ",",aJU that when any oftM two spouK$ f1s [hal living togethu results in disputes and violations of one another', rights, ", when the wife fears that may disobey h... Wand, it is permissible for the wife in this eau to talte the initiative aod lSlt for her release aga inst payment. LiLtewise, it is permissible for the h .... sb.nd to Keept such rem l,ln eratlon in such cas..s and to release her. The wisdom beh ind ordinance of a wife's release agai nst payment (l h"l") is to enable the wife 10 irrevocably oeparate from her hU$band. as it is a just setlletnent for Ihe husband and the wife in casn like the a/Qre",",nlioned onC$. It is I n act of the S"nn"h (Prophetic Tradition) for the hltSband to ag.r to his wife', request of releue. if lhe husband IovC"i his wife, it is dC"iinbk: for the wife to be patient and nO! to as.k for separation.

The wifes ,lease agai nst payment is permissible when its 'ason is fulmled as stated in the Qur'anic ver",. namely the fear that the two spouses will not keep a good ,lation within the limits of Allah. when i. no need for such separation. it be<.:omes detestable in this c....,. or prohibited according to others. This is because the Prophet (PBUH) says:

"If any ....oman wb her husband for divorce withoul ,ome ,frong
rewon. the odor of Paradise .... i/l be forbidden to her."'
(Rdated by the Five Compilers of Hadilh In this regard. Sheikll Taqiyyud-Dln said:

"When a wife dislikes her husballd, the SUllllah permits h. r to ask for release in return for remunemtioll alld ",nsom herself from her husband, just w the capli<mll,Om. himself.'"
Sometimes, the husband does not like his wife but keeps her so that she may become bored with living with him and may ask him for ,lease for monetary compensation. In this case. the husband is considered unjust to his wife and it is prohibited for him to take such compensation. and the release against payment (khu/') bc:comes invalid. Allah, Exalted be He, say"

... And da "(It mlJlce difficultiu for them III ordtr to take {Inuk] part of what you gan them ..." AnNisA': 19)
The meaning of this Qur'anic verse is that the husband must not treat his wife badly to make her give him back all or part of what he has paid as dowry or give up some of her rights. Still. the verse makes an exception as it permits the husband to make difficulties for his wife to get back the dowry he has given her if .he is an adulteress; Allah, Exalted be He, says:

":,.unk-.. thty commit a dear immorality {i.e. Qdu/tery]...

(Qur'o1n: AnNisa': 19) Commenting on the aforementioned pleased with him) lbn . Abb"-!; (may Allah be

'This ytrse add,...:;e. the man ....ho hales his ....ife. and mam for her so that she may mnsom herself from him (by rel. au again.t payment). Allah. E:ullled be He, forbaae such an Yet, Allah Ihen says, '.. un/us they commit a clwrlmn"wality {i.e. adultery] .', in .... hich CWt it is permissible for him (i.e, the husband) 10 make difficulties for her until.he asks for stparalion and thus he gets back the dowry he ha. paid her. separatingfrom her in return for getting remuntnltion:

.. against (khun is according to Qur'an, the S..""ah (Prophetic Tradition) and the consensus of .cholors, provi.drd there o:ists good rtason for it The Qur'ank evidence of the permissibility of release against payment is the aforementioned "",.se, in which Allah, Exalted be He, says:
fear IIUII thty ",ill not keep (withilt] th. limits "I Allah, thtn thtn iJ 110 bla"", Upoll t itJu, afthnu tD"ce,ning tlull by which me rallSOms he"elf. ." (Qur'an: AI-Baqarah: 229)
, but if}'OlI

'"

Vlk DIVORCE

As for the SU""llh, the following Iyldfth, wh.ich is related in the SMi/1 (Authentic Book) of is a proof of the permissibility of a wife'. rdea .. in ,turn for remuneration:

"The wife of TMbil Ibn Qays came to the Prophet (PBUH) and said, '0 Messmger of Allah! 1 do not blame Yhabil for d efts in his character or his religion, but I, being a Muslim, dj,lib behaving in an unIslamic manner (if I remain wilh him): Upan that, the of Allah (PBUH) ,aid (la her), 'Will you give back the
garden which he (Thabil, Ihe husband) has givm you (as dowry)?' She said, 'YeJ.' Thereupon, the of Allah (PBUH) said to him (Thabit), the garden, and divorce her once:"
As "'gard, Ihe consensus "fMuslim scholars, Ibn 'Abdul-Barr said:

"A1.Muzanl is the only scholar who disagreeJ in Ihu regard (i,t . disagrteJ on the pt'rmwibility of relea.e againsl payment). Ht argues that the verse (i.e. the aforementioned on"; AI-Baqarah: 229) u abrogaud by the following ve"e in which A.llah, Exalted be Ht, says, 'Bul if you w,ml 10 "place ant Wift wilh ,1IIothtr and you have given one of them a groal amaunl {in gifts}, do not take [back) from it anything.. : (Qur'an: An-Ni,a':

There are some conditions for the validity of release against payment (khul'):
o The monetary must be paid in return by solllrene who is legally qualified to o The husband must be qualified 10 divorce. o If there is no legal reason, the husband must not make difficulties for his wife to get back the dowry he has given her. o The ",lease againsl payment (khu!") must bt done through it, legal ,!'Ohn form.

If it is do"" through a SJI'OIten form of divorce Or an implicit form. provided the husband has the of divorce, ,hen it is regarded u divorce. In this CIS(". the ruling On ,dease in ,tlurn for payment (khu!") ill applied so that the husband is not entitled to take hill wife back. but he can remarry her with a new marr iage contl1lCl. even without . he marrieo and n pal1ltes from another huslnnd first, provided it (the releaK in return for poiymentJ has not bf:en pnceded by \WO divorc..s that makr it a thred"oId d ivorce.

if the separation is done through cM legal $pokrn fonn of a release in retum fOf (kllld ' ) Of its equi\"lIknt forms which the CIIncdlation ofmarriage or the likr. provided the hwband does not intend it to b<: a divorce, it i. a me re cancellation of the marriage contract which does not affect the nu mber of divorces. This ;s the opinion reported to have been adopted by lbn . AbW. (may All ah bf: pleased with him). Ibn 'Abbb ba$td hill opinion on the fullowing of verH5: Allah. Exalted bf: He, uy!. is ' ... '(e..... (Qu rln: AI Baqar.lh: 229), and then urs. ... '''en is .... W me "pon .. of ,''"'' rcmu,."j"g 1>, ...10/(" site ,..."som, ...- (Q urln: Al- Baqarah: 229) After lhat, Allah u.)"$, - ... A"d if " e".... dlwm:u "" (for tM 1 "/nll/_I, '''no . he is lIof kI ...',,/ /0 him IIftffWfIrd "",il [aft,,] ,u /tI""in" hUJ/UfHd ,/11" 1/1," him ..." (Qur'An: Al -Baqarah : 230) lbn . Abbb argu ed that Allah !TIcntion. two acts of divon:c, then an act of the release against (khu/,), then an act of divorce. If the release in retu rn for payment affec ted the number of divorces, there would be four acts of divorce. not three, which is invalid. And, Allah knows best.

<'i,"....

'''tIt

E ndno l es
AbO. NwiId (2226>(lf4631. AI n rmidhl (1190) ()J4'Ul. ond Ibn MJjab (:lOSS) 12151 al . 2 5 MJljmu 'ul-Fat6Md 112/2821,
t

1 AI Bukhl r1 (5273) 1914891.

CHAPTER

Divorce
Divorce is the di!5<J]ulion oft h. bond o f marriage o r part of it. 'in. ruling on divorce varies acmrding to the diffue nt situations. It can k p"rmissibl . detestabl. > d.,.;,.bl", obligatory. or prohibited. So, il ca n involve any of the 11"" rulings.

Divorce i!i permissible when th. husband needs it becaus.t of his wife's ill
(onduct, the harm cau$(d 10 him by kping hi. wife, and the non-fulfillment

ofth.

of marriage by keeping her.

d iVQTct i. d etestable if there i. no need for it, a. when there i. no problem the married couple; some s.cholars deem it prohibited in such a cu . According to the prepo nderan t view, divorce i. p" rm is.sible with detestability in this cue, for the Prophet (P BUH ) says:

"Th. mOST

lawful act in th. Sight of Alklh is diWJrce,'

(Related by Ab" Dlw(\d and lb n M1jah, and the Inen ofit5 chain of transmitters ne tru stworthy)

VI[ DIl;QRCl!

In thi.! l!adith, the Propnct (PBUH) refm to divoru as lawful tbough it i.! detMahle in th e Sight of Allah, indicating its detestabili ty-based permissibility In this caSl:. The reaSOn for its dctesu,bility in th i' case is that it puts an end to a marriage that fulfi1l5 Ihe lega lly desired interestS. On Ihe other hand, divorce txcomes desirable if the wife suffers harm during her marital life, such 1.$ when there is diw-ension bttwttn her and her husband or when shoe dislikes him. In this Ca$oe, malntaining the marriage mo.., harm I(lthe wire, while !he Prophet (PBUH) says:

"Ont sho"ld nor hllrM o/hus I"IOr should one Sk bultfit for ontstlf by causing harm /0 others."
Divo= be<:omes obllgalory far the husband If the wife is neither righteous

nar upright on the religious level. For example, the wife may be SO negligenl In prayer thal she abandons it or performs it belatedly, while the husband Is unable 10 rectify her, Of she may tx morally dishonest. In such casa.. it Is obI igalory for the hwNnd 10 divoru her according 10 the prq>andennl view in this '"'8'o'rd. Ibn Taymiyah (may Allah haw mercy on him) llid, tlot wift rommits od"lury, it i$ I"lOl for the hurMMd /0 kNp hn Olher .....re, Itt 1$ comide.w 11 cwdcold.'" Similarly, if the husband i.I neither righteous our upright concerning religion, it iJ obligatory for the wife 10 nk for divorce, or separa te from him by release agaInst rem uneration (khul ") . h is nO for the wife to Itly I with him as long as he Is negligent of his religious duties. If the hl15band hu sworn not 10 haw saual intercourse with his wik and then the waiting period of four monlM pilS$tS and he $Iill ref"mes !O do so and expiate IOr bis oal h, il iJ obligatory for him !O diVOf"(c t..,r, and he must be forced 10 00 so. This is bauu ADah, I'.nJted be He, sa)'$:

For thOH II'hOlwtll r1101 to h,1't '"lUll rtllltloll' wi rh their w/w:s Is, waitlllg Hme offour monlhs, but I/thq return (Io nOnllll1
""wHon.) - thtn /lIdud, Alwh /J Forgiving "Md Merciful. And 1/ /hty dt( ldt on di'O'(Jra - tht ll indud, AI/"h /.0 Htllrillg and Knowing." (Qur'in: AI-Baqarah: 226227)

It is prohibiled for lhe husband to divorce h is wife while she is in heT Imnses. during hu period of confinement, duri ng her swe of major ritual mrmln,aations) in which he has aln:ady puriry (ie.the period bet_n the had lUual inlcn:ou.rw with her. The husband is also prohibited to divorce his wife thrice at a time, as will point out won in detail, Allah willing.

TM prool's 0( the legality of divarc .. . "" iIIuStl"llN in th .. Q UT'in. the $un .....h (Prophttic Tradition) and the COnKnSUS 0( K hoIaTl, Allah Eu1tN "'"

He, says:
(Qui"ln: Allah ab o says: 229)

"0 Proput, ...hell Y"" (Muslim.) dl"" ..... dil'OTa Ih..... for (,hu ommmctmellt of] their walt/II' period .. ." (Qur'an: Al-Ia11q: I)
Mouover, the Prop""'t (PBUH ) says;

"DillOr bdongs oll/y '0 tllr a nr wha ,akt$ hold oflhr kg (i.f!. Iht husband)."
(Rd N by Ibn MA and Ad'[)haqUlnt, and lhe"" ...., other jm IJ,adllhs indiat ing the same mailing)
Bcidn, many Kholan rq>Ort tlx ron5I':ruu5 0( foqllts on the kpIity of divorce.

The wisdom behind divorce is d ea r, and it is one ofthe merits of this grut rcUgion,ld am, When ne,rssary, divor, .. becomes the legal s.o!ution to marital probleml, All ah, Exalted be He, says:

_thm (/If/tr ,hat), eI,htr ktql (her) In all accepttoblr mOlllnrr 01' "'/taH {hrr] ...ith good matrllm t .. " (Qur'an: Al -Baqarah: 229)
Allah a1l0 &ays: KfHUt'k l lry di....ra/, AI/all ",1/1 rnri(h rQCIt {of IhemJfrum His IlbwnIW"". And ewr il IJIOlh Enromf'"Ri"1 ..lid Wi.... (Q ur'An: An-Nid" 130)
M .., 8

Divorce is a ""lid and a good s.o!ution when the"" is no longer a benefit out of kHping the marriage tie, or when the wife il harmed by staying with her husband, or when either of the married couple is immoral, defiantly unli ke th e other, disobedient, and The commun iti es prohibiting divorce always suffer many serious social problem.! slI(:h as the spread of su icide. crime, and the corruption of fil mily The 8"'11 ""Iigion of Islam permits and makes propcr rulrs to l"I'8ulale il in order to achieve the desired inlrrffiS m d f\'P\'l any possibk n<i1,

.,.
and this is the typical way of Islam in all ils
maintain

VU, DIVORCE

that o(humans in IlK long and the short run. Then:foll'. we

laws and

praise Allah, Exal1n1 be Ht. for Hi s bounty and bcsloWJ[ ofl&lam upon w.
The statemen t of divorce is valid when pronounced by a legally qualified, 5af\C husband o r by his aUlhoriud reprne ntative, as the Prophet
(PBUH ) says:

-Divorce lhe husband):

only 1 the one who Illias hold of Ihe 0

(j.e.

unqualified to divorcr if his "",nl.1 faculties all' lacking due to something cxtuu,ble. such as h..ing inunc. Hownorr, Muslim bOrt\l'S

unconscious, aslet'?> a suffere r from a that unawareness such as pleurisy, king forced 1 drink an intoxicant. or ta king anc"het ic for medical 0 t!'talmon L [f one in any of the aforementioned cases pronouncn the spoken form of divon:r, the dIvorce i. oot legally cffeclive. To illustr:l.le. AI-Bu kMrl rflatn! in hisSahlh (Authmlic Book of lftIdllh) that ' All Ibn AbCllllib (may Allah be pleased wilh him) $aid:
E1I<Uf divorct! iJ uupt that /Iy an Insant man.'"

This is because lanlly i$ the principle upon which a legal judgment Is h.ased. On th e olher hand. if a p"rw n's memal are lacking due to his willi ngly taking an intoxicant. scholars differ ,boUI the validity of his divorce in such a '....,. In g<:ncral. the Four Im Ams as weU :tU a group of Muslim scholars maint";n that such. divorce is valid. If a person is forced to divorce his wik and he divorces her in order 10 avoid injustice. opprusion. or p"rseculion. his divorce is noI lqr,ally dftive. This is because lhe Prophel (PBU H) says:

"Thm is no divorce or t rnllnripafion in case oJ dufl!SS."

(Related by Abmad. Ab(l Dlwild nd lbn M lja hJ

Moreover. Allah, Eultn! be He. laYS:

in {i e.. d"'ia) All"" QJtn "iJ fH:Uef. . aapl for ...... who /, fo,.u: fro ...."o.."'"e "iJ ..../lpml wIoUe his d heart is -=u .... i"/allh ... (Qu rln: AnNaIll: 106)

.Whot>....,

Though di.beUe( is mOft serious lhan divorce. Allah lhose: who pretend to be under durrs$. Th us, divorce. wilh g""al .... lftS()n. i$ nOllegally effective when th e hlLSband is fon:ed to do it. However, divon:e Cln

a..fIlt! 1: DiOOlO: be vaUd under dures.. This is in Cll$C thr husband ha.! JWOrn not to have sexual
interrouTSe with his wife and thm four months pass and he nill rt:fuses 10 have suual with her and expiate fllr his oath. When a man is in a o f anger but still awart: of what he is s.aying. his divorce is valid in this CaK. Yd. if h. is too enraged to be aware of what he is "'ying, his divorce is dmcd void. More over, if a man "lItCl"J the statement of divOKe jokingly, h is divorce is dtcmed valid though hr doe$ nOl mean it, a.! he <MI nt to ullCI" the spoUn form of divorce. And. Allah knows bcit

Endnotes
I ... bll m ,..M (2178) [2/418j.nd Ibn M.Ijoh (2018) !2/SOOj . 2 Se< M.ljtnu ul-F.ototw.! (32/ tU ). 3 Thl$ upr.,..;c,n, namrly""takln, hold to(. ..... bIc, implies havin8......:t inkmlUn< with h ... Th ........ m..Ri", of Iho b4dftl. is tMi .... husband is tl.. ""'r OM 10 whom the rigIM of diYoru bdonp. <4 Iba Mlj.oh (2OII1) [21SJ2] and (_ ) roW4]. S "'1BIlkhIoi (9/48 11. "" l1nnldhl (1194) [Jl4'.161.

6 AbO NW1'>d (1193) (11446' and Ibn Mljah (lO46) (2/S1 4).

CHAPTER

Sunni' and Innovative Divorce

Sunni Divorce
di_ = according '0 Ihe Su", ...h (Prophetic 1'radillon) ilthe divorce that takn pIa according 1 the W;ly orWoined by Allah and His 0 (PBUH ). It is effectnl. by the hU$band 's single pronQ ',,"cefMnt of divQK e in an interval between the wife', men muat ions in wh ich. he has not hld sexual with her, and then he leaves he r until her wail ing period il ov", Tills divorce acconls wilh Ih( 5.. in tUIllS of as he prono unces . lingle diva",,. on his wife and leave. ht. until her waitlns ls over. It also accord$ wit h the Su"n" h in term, of tim ing. as he divorcu her d ur ing her stl tt 0( major ritual purity (i.e. Ihe betwttn her menst ruations) in which he Iw 001 had sexual wIth her. Allah, Enlttd bt He. says:

,,,,an

"0 Prophet, ..mn you (M usli,..,j di'l'fJf'Ce _/M!!, din".:e fr1r [tucom l'MJ'lUmell' ofl their waiting pnlod .

(Qur';!.n:

I)

VI I: DIVORCE

Commenting o n tht aforemtntinntd Qur'anlc verse., Ibn Mali 'Qd (may Allah be pleastd with him) "Id:

"The erse mums tilnl WOmen can bt divorced only during their state ofpurity when no stxllal inrercouru has taken place."'
Mnreover, ' All Ibn AMllllib (may Allah be pleased with him) said:

"lfI-'pk adherY to the ardimmu of AlMh conurning divorce, tk """If w;U newt' rvgrtl diovn:ing a _ .m. Ht prollOunU!J a singk dWorce (at a time) on his w and thm ktJ_ her for thr periods ife, of me/lS/n/ation during ",hich he C fake her back ifht /itA"' /ln
Th is mearu; that as long as the W(lman ;s sti ll in her woiting period, her husband can take htr back, as Allah grants the man who has pronounced a single divorce on hil wife a chance to take her bade du ring her waiting ]>I'riod if he regrets divorcing her, provided it is not hil third pronooncemrnt of divo=on her, Howf'ver, If It tM third divoree, the hU$band CIInnot take his tJtwife bad<.

Innovative Divorce
Innovative divo. ct refers to the divorce that takes place in a prohibited way 5uch as the following cases: Divorcing ont's wife by pronouncing the spoktn form of divorce thrice simultaneously: (lnnovati,.., diVOt in turns of num)x,r) Divorcing one's wife wh ile she is in a stale ofmenstruation o r conii nemmt: (innovat ive divorce in ttm'l5of timing) Divorcing ont'S wife whll< she is in a Sllttofpurily in which he has intercourst with lKr; (lrmovative d ivora in terms of timing) Innovative divorce concern ing the num!)(,. of th( pronouncements of divorce make. ont', ex -wife prohib ited for on c 10 lake back until she marries another man and Ih(n from him, Allah, Eu lt ed!)(' He, says:
flu ,"ird "me}, tMn sit. iJ; 1101 lawfu' to IUm afterward ullli' [lIfter} IIx .....rrtQ If "oaband thOll hlm ...Al-Baqarah: 230)

-And

if". "as

di'l'Orcai

As for the innonlive divorc. concerning thelimi "3 of divorce, when Mlch divorce takes plact, it i, desil1lbk for the hll$bomd to take hili wife h.ack. Th ili is btcllmewhcn' Ibn ' Umar(may Anah be plu$td with them) divorced

his wife during her menses. the Messengtf" of Allah (PIlUH) orderm him to take hu back,' as related by the Group of Compilen of l;J.tJdith. Thus, jf the husband In such a ca", taUs his wife back. he must keep her unal she bf:comes In a state of major ritual purity Ind then he can divorce her ifhe pleases. It is proh ibited for the husband to divorce his wife through the aforemention.ed innovated ways of divoKe, whether concerning the numbe:rofthe pronouncements of divorce o r its tim ing. Allah, Exattod be He. says:
is Iwiu,. T1mt [.. fin tluaI}. eit/w kp [" er} ill,.., 1lCUp1-

IIbIe IIIIlIIntT
Allah also says:

mNN {1ter/ ...iUr pod trul"",,,I . ..

(Qur'ln: Al -Baqarah: 229)

"0 Prophet, ...hltn you {M uslilfU/ dim",,,, _m",". for (the """''''etltenUllt of! Ihtir ..... mllK period ..
(Qur'An:

th"'m
l)

I.e. while they are in a ilate of majo r ritual purity provided no SCltual intercourse with them has t .ktn pl;\Ce.ln addition. when Ihe Prophet (PBUH) was informed. that a man had divorced. his wife with th ree pronouncements of divorce at I time. he (PBUH) wondered angrily:

"Is the Book of AlIllh made light ofwhilt IlIm IImongst you?!"'
Besides, . Umar IOOul Khant b (may AUah bf: pIea5ed with him) used tobe.t any man who divorced his wife thrice (alI lilM) if he was brought to him'. For illuslration., when the Prophet (PBUH) was informoed Ihal . Abdulllh Ibn ' Umar (may Allah be pIeasN with him) divorced. his wife during r..,r menses, he (PBUH ) gOl angry Ind ordmd him 10 lake: her back'. All the previous proofs indicate (hat it is obligatory for every Muslim man to adhere to the legal ruling5 on divorce observIng both its number of pronouncements timing. A Musli m ha. al.., to avoid the prohibited way. of d ivorce whether concerning the number of tr.., pronooncemc nts of divorce o r it' liming. many IMn, do not understand or carr about this nowadays,and. conseque ntly. they cause dimculty and then mey""'" solutions 10 get their hack.. di.5CCll1\flt;ng tr.., muftis whom they refer to. In fact. In .uch problems arc consequences of making light of the Book of Allah. EJ:a\ted be He.

aoo

."

VII, DIVORCE

Some men, unfortunately, diYQIU as a wupon 1 threaten their wivn 0 with, forcing them to do somClhing or prn'C'nting them from doing anol\w; r.
Ot her men USe divorce as an oalh wh ile dealing with or talking

to others. Such men mU51 rear Allah and keep away from uttering the oaths of divo rce, fur diVOrce is not made 10 U an Oath, but to be rc$Ortcd to when ness.ary and according to the s.pedfied number and timing of the pronouncn.." nt of d iVO<"(c.

The Spoken Fonns of Divorce

There au two spoken forms of divorce: A- Direct pron ouncement: It indudes the word "divorce or any of its derivatives that indicate that the husband divorces hi. wife, and it <:wri". no other muning tlun divorce', such as uying to onc's wife, "[

divorc.. YOU,," or, You are dimrced," or, You become a divorc." In such cases, the divoro: valid and dfcctive. Yr(, if the husband says something like, You a.., being divoocrd: or, "en your divora; and tM like, divora in such cases il invalid, as the spobn form dOQ nQl indicate its t!k<:1",",ess.
B- Indirect prono uncement: I1 induda melonymic words Ihat imply divorceas well as ol her mnn ings, such as s.aying to one's wife somtthing like, Y are free; ur, "Go and keep away from me; or, "Go back 1 ou 0 your parents," or, "There i5 no liability on your pari lownds . legal diffe:nce bdwn direcl and indirect lpokm forms of diVOt is that divorce is valid ona the husb;r,nd uners any of the din:ct pronouncements. evm if jokingly or unintentionally. This is because tM Prophet (PBUH) $afJ: "There 1111' /hm ,hings which, whether .. nder/llbn wiuwly Of" in jNt, 11", trttmd lIS serious: divorre, mllrri(1.ge IInd llikjng bild: 11 wife (after 11'liOCabl. divorrt)." (1:1.11 by the CompileT$ of Had/II xcept An-Nod'l) divorce is invalid in CI""of uttering any ofthe indirect metonymlc words of divorce, unless IM husband does inlend to divorce his wife, This it lxausr sw:h indirlKt melonymic words indiat., some meanings OI:her than divorce. ThUs. if the tlllSband does not mean to divorce his wife when unering such words., divorce is Invalid and indfedive, excq>! in th= (2StS: I) If M Utltrs thn.e words whfil there is a his wife: brtWn him and

21lfhe umrs (line worru whtn ht is angry;

3) lfhe utters these words in reply to his wife when she asks him to

divorce her. In the afO"'lD<'ntioned thl" divorce is & emed "'lid and dfective u fOOn u the husband utten such metonymic words, even ifht claim. that he has nOl intended divorce, for tkc state he is in shOWl lhe inlenlion of divorce. And. Allah knows best. It is pennissi\lle for IlK ht.LStnnd 10 daiglljte repTa(f\tatlvt 10 divolU hll wife whether the rqwesentative is a str.mgcr or even the wifto kcrself, as it Is permissible for the husband to authorize his wifto 10 divorce herself if she wantl. The authorized representative legally acts on beha lf of the husband, and thut the rulings on direct or indi...,c! pronouncement.! and the number and the timing of divorce are applied u if he ill the husband himj.elf, unless the husband restricts his representative to effect the divorce In I ce M n way. ai

OiYoroe is not valid unleu it is pronounced by the husband (or his jfpl etUlbtivr). ln otherwords, If the husband hasthc intmtion of diYora withoIJ; pronouncing it, divurcc is stiR Invalid. The Ptop.'let (PBUH) says: /w.s forgiven m)' joilowtrstm evil thoughts tlult occur to Iheir minds, oU kmgll$ such thoughts are nO put into act/o" or ultcrtd.-' I
However, there are two in which divorce is valid even if the husband (or his rtpre.wntative) does not pronounce the SpoUll form of divorce. The lirst case is when the hw.boond writcsdown I (U'CI pronouncement of divorcing his wife provided hc does intend to dMllu her. Yet, scholars differ if he does not hi.vt the intention of diVQl"Ct by sIKh writing. but the majoriry of them '"' ol lhe opinion that divorce is abo valid in this auc. 11>c second case is when a dumb husbmd maJr.et an understandable gesture indiating divorce. pronoun<Xments of divorce, it depends on whether the husband is a or I slave, but it has noth ing to do with women; AU E:nltM be He, addreuel the Prophct and aU Muslim nvn saying: ab,
"0 Proplld, wIo". )'O .. (/toIuollnu) aiwJr alVOml! 'Mm J {the ,,,mmmumnl' of) ,Mlr ....uti"g pmod...
Concerning the number of

wom"",

(Qur'ln: Ai-I al1q: l)

Allah o..Iso saY':

-And when ,... .. aivo":"

WOnltrl

'lnd 'lie),

f nurl)'] fulfilled

their krm .

(Qur"n: Al-B. qau h: 231)

".
the Prophet (PBUH) says:

VII: DIVORCE

"Divorce belongs only to the ont who tQkes hold of the leg (i,e. the husband)."'
A freeman is entitled \0 divorce his wife thr limes even if she is a slave, while a man is entitled to divorce hi. wife only twiC<' """n if she is , {rce woman, Th ere i$ no dispute that if both the husband and wife a"" fr (Le. not slaves), the husband is entitled to divOICf his wife thre<: times, and if they
are slaves, the husband is entitled to divOIU his wife only twice. Yet, scholars differ when either the husband or the wire is free while the oth er is a slave. The preponderant view is that the number of the pronoufla:ment. of divorce is on.ly dependent on the state of the husband., as previously explained, ,ince divo= is essentially a right of the husband not the wife.

It is permissible for the husband to mah uceptions while divorcing hi' wife or wives. Such exceptions can be related to the number of the pronounaments of divorce, such as saying, "You are divorced thru times e:<cept one (Le. twia)." Lihwise, a man can exclude one of his wives while divorce all my wives e:<cept Htimah". divorcing them, such as saying, However. the exduded thing must be half or less than half the general ttrrn. In other words. it is invalid to make the thing excepted more than the general term, such as saying to one's wife, "You are divorced three times except two (i.e. once)." Moreover, it is necessary to utter the exception when it umcerns the number of divorce. For uample, if the hu.band says to his wife, You are divorced three times.- white having the intention of excluding one time of divorce, it is deemed a threefold d ivorce. This is because the uttered number is considered a term that cannot be altered by a mere intention, since the spoken word is more reliabl e than the hidden intention, Nevertheless, it is permissible for the husband to exclude one of his wi"", by his mere intention while uttering the pronouncement of divorce. For e:<ample. if t he husband says, "My wives are divor",d," and he intends to make an exception of one of them, this exception is legally valid, though it is not verbally expressed . This is because the word! "my wives" can refer to all orsome of them, and thus the intention is a decisive criterion in this case. It is pennissible to mak", cond itions for divorce. For example, the husband un say to his wife. "If you enter the house, you will be making the divorce dependent on her entrance to the said house. The onty one permitted to make conditions in divorce is the husband. Thus. if a man says, "If] marry so and '0. [ will divorce her;"' and then he marries

Ch.p,,,, 3;

.nd Inoo ... i.< DiVUfC<

her, such a condition is invalid, for the man was not htr husband when he made it This is due to the b.adllh narrated On the authority of' Amr lbn Shu'ayh, from his father and his grandfather u sptivdy, in which the Prophet (PBUH) says:

'"

"The son of Adam should not a vow about whM he not posuss, or "I fret what he does not possess, or divorce what he does not PVSSfSS:'"
(Rd atffi by Ahmad, Abli D!wud, and At-Tirmidhi who de<:med it ahasan (good) hadrth) Allah, Enhed be He, says:

"0 YO" who have iH:lieved, when you marry bdievillg womell and thell divorce them ... (Qur'!n: AIAhZ<lh: 49 )
This ve!lle and the aforementionffi hJu/ith indicate that a man's divorce: of an ajnabiyyah is invalid; thue is cons-;niUi on this ruling when it is a diu,t pronouncement of divorce, and it is "loo agreffi upon by the majority of scholars when it is a conditional pronouncement of divorce.

If the "husband" makes acondition for divorce, d ivorce is invalid unless the
condition is fulfilled. Further, oometimel; the hushand is uncertain about his utterance of the spoken form of divorce, the numbt rofthe pronouncements of divorce he has made. Or the ful fillment of the divorce conditions. If the husband is uncertain whether he has uttered the spoken form of divorce or not, divorce is deemed invalid, as marriage is a certain fact that cannot be nullified by a mere doubt. Likewise, divorce is invalid if the husband doubts the fulfillment of it. conditions. as when he says to his wife, "If you enter such and such a house, you will be divorced," and then he doubts whether she has en!Cud such a house or not, for marriage cannot be nullified due 10 mere uncertainty. On the other hand, if the husband is certain that he has divorced his wife but uncertain about the number of pronouncements of divorce he has made, it is only regarded as the one pronouncement of divorce which he i. certain about. Other pronouncements of divorce are nnt taken into consideration as they au still doubtful, and the general legal principle is that certainty cannot b.:: nullififfi by mere suspicion. This legal principle i. a general, dfe<:\ ive on e, d erived from some uadi/hs of the Prophet (l'BUH); he (PBUH) says:

uave that which make$ you doubt for that which does not make you dOU bt. "

..,
romt:u,;ng.""
"Ht should not kaw 1Ii> prafD' ,,"Ius lie Iwm wurtd

VII: DIVORCE

The Prophet (PBUH) also said cOn(erning. man', urw;:ntainty whether be: had passed wind during pra)'tt or not:
Or'

smdIs

an some ot"", the $lime meaning. Such ruli ngs Ind icate the leniency and perfection of Sharl 'ah ( Islamic Law ), SO all praise is due to Allah, Lord of the worlds.

Endnotes
I A<tordi"i ID SwrIl4h (Prop/>cIic Tradition). 2 AMLayhaql ( I.91S) P /5321. 3 Ibn AbG Shaybah (1 1716) 14151] 4 AI-BukIU<I (5332) 1 915911. MPJiim (l63S) ISlJOll. Abo) DlorlId (2179) [1I43BI. Al..
Thmidh! (1 177) [lIH8 ). An-Nul' (3l99) (:lJ4SZ). lton Mt;ah (20 19) I2I'iOOJ. 5 An Nun (:HOI) (114S1]. 6 IboI.IJ>jI Shaybah (I77IU) 14191].

1 Mull;'" ( J642) ]513(16). 8 AJ-Sukhlrl (S2ii9J [91(81 ) and Mu5lim ()la) [1m3) . 9 Ibn Mijah (2081) IlI5321 I nd Ad -Oaraqutnl 14/241.
10 AI T1rmldh! (lIB) [3/4861 . nd loo MlJ ah (]1)oI7) 1:1.151 4).

11 AI T1rmidhl (252)) (4/1>68]. 12 AI Bukhtrl (l l7) ! 1/31 2) , and Mutlirn (802) 1111121.

CHAPTER

Taking Back One's Divorced Wife (Raj'ah)

Taking back ont's revocably divorced wi fe during her waiting pe riod
without a new marriage contract ;. permiss ible according to the Quran, the Sunnah (Prophetic Tradition), and the consensus of Muslim scholars.

Concerning the proof of its legality from the Noble

Allah. Exalted

be He. JaYS:
.. And thtlrhusfNmd, haw mort right to tab t"tm back In this [perlod1 if they ",.."t ru" ..dliati" ... ..
M

(Qur'1n: AI -Baqarah: 228)

Allah also $11)'5'

Di,,01'c, Is twi,.., Then [..fin th"t}, t ither kup [herl;" an Qcuptablt manner or reletut [her} with good matmtnt...
M

Al-Baqarah: 229)

VI!: DIVORCE Moreover, Allah, Exalted be He, says: when thq havt tneaTly/ fulfilled thtir ttrm, rtlta/n them according 10 occeptable term. ar part with them <u:cording 10 acceptabk lern:l .." (Qur'1n: At Ial1q: 2) As for lhe Sum"ah, lhe divorced his wife: (PBUH) said aooutlbn 'Umar when

"Order him to tab her baek."'

Moreover, he (PBUH) divorced. his wife and then took her back'. Regarding the consensus of scholars On the legality of taking one'. divorced wife back, said:

Scholm'$ unanimously agree that taking back ones wift during her waitjngperiad is permi$Sib/e for the freeman who /UlS made 1= than three pronouncements of dillOrce (011 his wift), and for the man who has made Ius than two pronouncements ofdjllOrce,'

.Ia",

The wisdom behind the legality of taking one's divorced wife back is that it
is a for the husband regrets divorcing her and wants to maintain the marilallife with her again, and this i. a kind of divine mercy bestowed by Allah u]Xln His servants.

There are some conditions for the validity of taking back one's divorced wife:
1) The number of pronouncements of

made by the husband must be I... than ifhe is a f""'man and le.. than two ifhe is a slave. If the husband has already used up his lawful number of pronouncements of divorce, his exwife becomes to him until she marries and separates from another man.

2) The divorce mllSt be after the consummation of marriage (Le. having

S(:xual intercourse). If lhe husband divorces his wife before having S(:xual intercourse with her, h. cannot lake her back, for .he has no waiting period in this caS(:. Allah, Exalted be He, says:

"0 you who havt b. U.v.d, ...h. n you marry IHUeving wom.n alld rhm dlWJrc. IMm ""for. you luwe touched th.m [I.t., consumrrwted the nuuriap], th. " Iherds not for Y<'" any_itlns period ta co .. ,., conctrning Im,m. So provide for them alld give Ih. m agraaou. reltll.e." (Qur'An: AIA,hub, 49)

.,
3) The divorce must not be in return fur a comptm,ation given tl> the husband. If th e wife pays comp.!nsMion to hu husband to gd divorced, she becom es unlawful to him to take back unless with a new marriage contract and with her consent. This is because she ranwms herself

by paying compensation 10 her husband to separate from him, and taking her back in this case contradicts her purpose in paying him
such comptnsation.

4) Marriage must be originally va lid. If the husband divorce, his wife during an invalid marriage, he cannot take her back she beco mes irTn'ocable for him by divorce. 5) The husband must la"" hi' wife back during her waiting period, for Allah, Exalted be He, says:

", . And

hU$l>ands ha"" mn.... right to tau them ""ek ill

this rptriodl ...

AI -Baqarah: 228)

6) The husband's taking back of his wift must not (,., conditional. For t xample, it is invalid for a husband to say to his ex-wift, "If such and such happens, I will take you hack," Scholar. d iffer On whether it i. a condition for tht validity of returning one's ex-wife that each of the separated couple intend, ,",conciliation. Some scholars maintain that it is a condition th at must be fulfilled, for Allah, Exalted (,., Ht, ""y' in this regard;

", if they "'<lnt reconciliation ,"

(Qur'an: AI -Baqamh: 228)

ShaykhuJ.Ish\m Ibn Taymiyah (may Allah have mercy on him) said :

"The husband is nol perrnilled 1 lake back his ...ife during her waiting 0 period unle" he intends rrxonciliation and wants 10 keep her in an acuplable manner,"'
Some other scholar. are ofthe opinion that the intention of ,",conciliation is not a condition for the validity of taking back one', ex- wife. They argue that tht afo,.,mentioned noble ver ..,. -. .. if thq ",a"t reconciliation ...-, only call, th em to !'e<:oncile and keep away from hurting one another, but it not mean that reconciliation is a condition. Yd, th e first opinion is the preponderant; and Allah knows best. The legal spoken form pronounced by th e husband to ta ke back hi. revocable ex-wife can be through any proper words indicating that purpose, mma.saying, "' take my wife back," or, "' ,.,turn to my w ife," or the like. Taking

vu: DIVORCE
back one's revocable exwife can also be valid by having sexual interr:ou= with her with the intention of taking her back according to the preponderant vi ew in this rrgard If the husband take, his revocable ",,wife back, it is an .ct of the SUHHuh to bring some as witnesses; some scholars say that it is obligatory, as Allah, Exalted. he He, says:

.. And ,"inK to witneu two just meH from among Y<' .....
(QuTan: AJlahiq: 2) And the latter is one o f the opinions attributed to ImAm Ahmad. MO",over, Sheikh Ta'liyyuddin (may Allah han mercy on him) said, 'It is by all means invalid for the husband to take his .... V<X<lble exwife back secretly."' The revocably divorced woman is Irgally considell'd a wife of her hll.5band as long as she i. still in her waiting The refo"" her husband must provide for her and afford her clothing and accommodation. On the other hand, the revocable exwife has the same duties of any wife; she has to stay at her husband's house and beautify he=lf so that he may take her back. If any of the couple dies during the waiting period, the other is entitled to inherit from himlher. In addition, it i. permi.. ible for the man to travel with his revocably divorced wife. to he aloM with her, and to have sexual intercou= with her with the intention of taking her back. The end of the wait ing period is the dndline for taking one's revocable "". wife back. Thus, if she hecomes pure after her third menstruation period after the divorce, the waiting period is deemed. over, and she be<:omes unlawful to him unless he her with a new marriage contract, the consent of her guardian, and the presence of two just witnesses. Allah, Exalted he He, says:

"; And their husbGnds ha...., more right to take them !Pack In this [priodJ ... (Qur'an: AI Baqarah: 228)
The meaning of this ""rse is that when the waiting period i. over, the revocable ex wife hecome. unlawful to her exhusband unless he remarries her with a new marriage contract, fulfilling its conditions. If the husband take. her back during her waiting period. the legal the permissible numher of pronouncements of divorce for him become. one le .. than hefore. When the husband llSI:s up the permissible number of pronouncements of divorce, i.e. wh en he divorces his wife for the third time, me hccomes unlawful for him to marry unless she lawfully marrie. and separates from another man. There a", conditions to make such an """wife lawful to her first husband:

1) She must marry another man

2) Her marriage to the other man must be legal

3) The second husband must have s.exual intercourse with her

This is because Allah, Exalted be He. says:

third Nmej, thell she /$lIOt lawful to him afterward .mm {ajUr} .he marria a husband other than him. And if he {i.e. the latter husblmdl dlvorcu her, i, lIa blame UpOIl 'hem [I.e. the woman and her former husband] for returning ta each other if they thillk that they call kup {within] the limits of Allah ...
AIBaqarah: 230) The great Muslim scholar Ibnul-Qayyim (may Allah have m ercy on him) said:

':And ifhehasdivorcw her

"It i5 wnsidered on e of the greatest favors bestowed upon Muslims Ihal Ihe irnvocablt ex wife becomes lawful to her first husband after she marri", and then separates from another man. The low of the Tomh permits the divorrtd WOman to ",marry her husband if sh e does not marry another man whereas Ihe law of tht Gospel ab.iOlutd y prohibits divorce. However. our Shtlri"ah (Isklmic Law) is mo", perfect, comprehe".ive, and suitable for the interests of /'tople; Islam permits the M uslim man to marry four women. and to have as many slave women as he likes. Morwver, Ihe Muslim man can divorce his wife and Ihen, ifhe longsftr her. ht is permitted to take her back. Yet, if h e divorc .. her for Ihe third time, it becomes prohibited for him to lake her back unle55 she legally marries and stparales fmm another ma n: '
This means that the se<:ond man must be willing to take her as a wife, not to marry her and then separates from her to make her lawful to the first husband; ifhe does so. he is considered a borrowed billy goat, as referred to by the Prophet (PBUH). In additio n, such a false marriage is invalid, and it do es not make the woman lawful to the first husband. And. Allah knows best.

VII: DIVORCE

Endnotes
1 AI-Bukhbl (5251) and Muslim (3637) [5/302[.

2 AM Nwad (2283) (2/4931, AnN.st1 (lW) [3/523) and Ibn MAjah (2016) [2/499). 3 Se<::-AI.ljmd- (p. 126). 4 See the foo tnol<: in - A"RoWli .-\IMum' (616021. S See: AIlkhliJdI"llI (p. 392 ]. 6 Se<:: -' Mm AI_M"""Ii 'n- (2192) .

CHAPTER
,
h'h

,
,

fIn' (Foreswearing One's Wife More

Than Four Months)

fuqillS dd'ine fM ' as the potent husha "d's swcaring, by Allah or one of His Allriliut.., not 10 ha"" ""xua] wilh his wife forever or fo r a period of more tha" four month" . Th is dd initioIl implies th.t the CaSe is not regarded as iltl' (whi(h is prohibitffi in Islam) unless the following conditions are [litre:

I ) The husband is potent

2) The husband swears by Allah or one of His Att ribut es. not by divorce.
en1andp;otio n, OT vow.

3) The husband ,wears that he will not have a legal sexual intercou rse wit h his wife (i ,e. in the vagina).
4 ) Th" husband swears not to have a Ie!;al sex ual intercourse wit h h is wife ror nlQ,e than fOllr months.

5) The wife is fit for havi ng sex ual

'"

VII, DIVORCE

If all the aforemenliomd conditions are IMre, the husband is U'8arded IS committing /lit', and thus the rulings on rill' apply 10 him. If one of these conditions is missing. the caK is not 114'. T/A' i. mentione<! in the Noble Qur'An, u Allah, Exalted be He, says:

"J'()r 'hose "'ha .WN, to ,",VI! UXIUII re/at/OM with ,/wi, w/vu u " .wdtllll tilnt of four ,"OII,n., &ut 1/ they 1Yhlm
1'0 IIoOmwIi rdiUlo/U} - thm InIlUJI, "UIIII Is Fotflrlnf4ln4 MtrdfoL AIId I/'My ditk on divoru - the,,/ndd, ....."..,. 11 Hearilrgllnd IVtowilll.(Qur1n: AIBaqarwh: 226-227)

nD'

The meaning of these two

is that [ftht husband, who swean not to

have sexual intercollrst with his wife, for more than four months, insists on nOI having sexual intercourst with hcr after the four months. he is to be ordered to (Imf back to nannalluual relation wi th hcr and txpiate for his "'"-14 OtJt.etwise, he must be legaUy ordered to divorce her If she dcmancb divorce.
This Islamic wise and Just ruling removes IIw hann IUId ClUKd to women and nullifies what some men UKd 10 do in the Prelslamic Pt.riod of (the 16hiliYJll>II), whn> they used to prolong the period of lid'.

in blam, u it is III oath of abandoniog a marilal obliption. As indicated in the general meaning of the afor.. mentioned verses.. the husband i.I not considered to rn.ve forsworn his wife unle$$ he (In validly divorce her, whether he i.I a Muslim, a disbeliever, freeman, a slave, an adull, or a p"rcipient child (who will be legally ordered, when he rcacha pubfrty, either to IYve normal (setl,lal) relation wilh his wife or 10 divorce her). The ,l,Iling on ild'is abo ev.:n if tht husband made it when angry, or while 5l,1rrering from. curable disease. Morewer, iI4: ...... in& I1 also applied even if is not yet consl,Immatw (Le. the m. rritd eouple ....ve nol had stXl,Ial int .... yet). However, the hl,lsband iJ not <;considered to have forsworn having stXl,Ia l ioterrourst his wife if he i. iou ne or utlcon Kious, in wh ich casei man i. unaware of what he I1 saying and Ihe intention if lacking. In addition, the cast il not regarded as lld' if the hlJ.5band is impotent, Iuch as a castrated 0' I paralytic, for his oath iJ not the only reason for his abandonment ofhaving stXl,Ia! intm:ourse wilh his wife.
1be case is also deoemed ".I' if the husband by Allah that he will not have stX\I.Il intercourse with his wife foreveT, or for a period more than four month.!., or wMn he stipulates something \llIeJ.pKled to Imppen before four months.. such M the Advent of Jesus Christ, the son of Mary (PBU H),

11A' for moll' than four months is

a.apter 5: !U'(Fo=wcuing Ono', Wi!i:

MOf<

'lhan Four Mon,,,")

Or the coming out of the Antichrist. likewise, the case is considered ,W' if the husband make. a condition that his wife must commit a prohibited deed or leave an obligation, For example, he may say to her, -I .wear by Allah that I will not have sexual intercourse with you until you abandon performing prayer (or drink wine, etc.)," This is because he stipulate. what i. legally forbidden, which is similar to th e case of stipulating something impossible to happen. In all the previous the period of ild'must not exceed four months, as Allah, Exalted be H e, says: "For tlwse who ,weo. not to have sexwal ,..,Iotio", with their ""vu u " .....Wng time offour mo"ths... (Qur'An: AI-Baqarah: 226)
It is related in AIBukh<lr! (AI-Bukhtlris Authentic Book of Hodith) thallbn 'Umar (may Allah be pleased with him) said:

"When the four mc>nths art over, the hUJband must be legally ordered either to giy e up 114' (i,e, ta hove narmal sexulll relation with his wife) Or to climr'Ce her. still, divorce is not effected unless the husband makes its pronouncement:'
The same ruling was related by Al Companions',

on the authority of more than ten

Sulaym:ln Ibn Yas!r said:

"I was a contemporary of more than ten of the Cc>mpilnions of the Mrnenger of AUoh (PBUH) and all of them were of the opinion that when the four months are over, husband must be legally ordered tither to give up ild' or to dillorct
This is aloo the opinion of the majority of Muslim schola" and the apparent meaning of the aforementioned Qur'anic verses, The days of menstruation are not legally included in the four months of lld', If the husband h .. sexual intercourse with his wife after this period is over, he is considered to have returned to normal marital lift with his wife, as having sexual intercourse is a sign of returning to normal martial life, Ibnul Mundhir said, "As I concerned, all5Cholars unanimously agrte that sexual intercourse with her."' the returning to oneS wife (after flJ') means Thus, the WOman regains her marital right (rom her husMnd.

vu: DIVORCE
If the four are over and the husband still to have sexual intercourse with his wife, he must be forced by the judge to divorce her, provided it the wife's wish, This is becaus.e Allah, Exalted be He,
"And If they decld" on divorce - then ,ndud, Allah ,. H"ar;ng and (Qur'an: AI -Baqarah: 227)

Howeve r, if such a still refuses ei ther to have normal sexual relation with his wife or to divorce her, the judge divorces her or cancels the marriage contract, as the judge legally considered the husband's guardian in this case, so he is entitled to divorce her On behalf of the husband.
Faqlhs apply the same to thos.e men who inexcusably and harmfully abandon having intercourse with their wives for more than four months, evm if without forswearing. The same applies in case of vhdr for a period that exceeds four months after which the husband still refuses to expiate for it. These two cases have the same ruling on IM', as husbands in both cases abstain from having sex with their wives, causing them harm. And Allah, Exalted be He, knows best.

It may happen that the four months of lid' are over while any of the has a certain excus.e that makes him/her unable to have intercourse as a sign of returning to normal marital life. In such a case, scholars maintain that the husband must be legally ordered 10 remrn to his wife by sayin g something such as saying, indicating returning to normal.exual relation wi th One "I will have sexual with you once I This is because the main purpose of returning to on t's wife is giving up the intention of harming her by the husband indicates his inttntion (through i/a). Such a statement not to harm his wife (by illl,) any more. Afterwards, when he becomes able to have sexual he has either to have sexual intercourse with hi. wife or to divorce her, as th e for not having sexual is no longer there; and Allah knows best.

Endnotes
t AIBukh1r1 (5291) [91 5261. 2 AI-Bukhlrl (9/526). 3 Ad -Dariqulni (3996) [4/331 OIld Al. llayh.qt (15207) [716 t 81. 4 Stt th. foolrIOt<' in Ar.RlIwd .... 1Mu.-/li [616241 .

CHAPTER

Zihar
Zih"r is the saying by a hmband IQhis wiff, when he wanls to abstain from I)aviol stX with her. "(Sexually,) you ilK 10 me like the back of my moilirr.Sometimes the husband likens his wife le hil siller or any woman prohibited

for him du.e 1 blood relations, brustfeeding. or ut.tjons by marriage, il1Slead 0 of saying - my mOlher': whik pronouncing ZihAr is prohibited according 10 theQur'ln, a5 Allah, Exalted be He. says:
"Thou """,, pro .." .. ,," the iihAr IImo"I "",, {Io u fHI ....tt1 fro ... their ",Ivu _ rhq ore 1101 {>nSfij",,,,lyl their mo/hen. Tht/. molM" ",." lIollt bullhQU w"o guI'C' blr'" to 'hem. And '''dud, ,h, y Ilruoylng all objtctl,mable 1IIII, m ' III and .. joIJtlrood ..
,H

A)Muji dila h, 2)
The mean ing iI that those men, who pronounce say grievous and faIR wonh thallhe Sharf"aJr (Islamic Law) disapproves of. Such words an

'"

VII: DIVORCE

men lia and objcctklllable statements lhal arc ddinitdy prohibited, for sw:h a man prohibits for Allah has nol proh ibi ted (or him, making his wife sex ually prohibited for himself u if she is his mother. though she is nol.

Zihtlr wall considered a kind of divorce durlng the Pre- Islamic Period of Ignorance (the }dhiliYY"h), but afterwards Islam repudiated it and consilkred it an oath m{uiring npiation. Thus. tht man who pronouncG zUt4r and his wife prohibited 10 enjoy one another by having sexual intercourx or enn foKplay until tbe husNnd expialn his pronouncetmnt of ziMr. This il

because Allah. Eulted be He,

thou who pronou"c. pM. from IMfr wiYu ""d thm {wWo m] go luuk 011 wIIlll they,.,UI . the .. {IMU mu" Nj 'he

furin, of <I .JaW! be/ou they touch Ollt ""otker... (Qur'ln: A] MujAdilah: 3)

Moreover, the Pmpbd (PBUH) said 10 a man who pronounced rJhArfrom his wife:

for it),'

"Then do not lIpprotlch " " (i.e. do lIof Iuwe inltm1U1K with her) until you do what Allah ordmd you to do (i.t. un til you apialt

(Related by At -Ti rmidhl who deemed it I 1<Iblh had/rh) from hii wife must expiate his :.ihdr first if he wants to have JauaJ intercourse with her, for Allah, Exalted be He, nY"
..Ihar frMn "'.." be} of" d40 befon tMy towlI OIIe _Ilter. 1"11.11 is ""'at ,...... n 1UI", .".Q4QI aNI Allah u AC'l"",,,,ftI wit" w#tat,.... dOl. AltJ IN who don Mt fiNl

So. the man who pronounces

' 'erWy;

(.. si4Yf1J -

to,,," o.u""olhrr.. :

"It" "fallfor two "'0111111 ",nsu..,inl, bel<- Ihq

(Q ur'An: A!. Mujldilah: 3-4)

Th..e two nobl . verJe5 Indicate that it is obligatory for the husband who has pronounud liMr to expiate for it before bavinS sexual Intercourse with hi, wife,and that his wife is prohibited for him until he expiates his pronouncement of i,iMr. This is the opinion of the majority of the Kholars in this rqard

To expiate hill pronouncanent of lilt4r, the h usband must follow thoe sequence of expillions mentioned in the verses. He mUft flft &Iave if pos3iblc-; he must observe fUling for two month..! (()n$(:cutively, and If he Qll\not d"" to an illneu or the like, th e last alternative for him ill to feed sixty poor Allah, Exalted be He. says:

Ch.p .... 6: ZlhJr

thou who proltounce from their wivu .md /h"1t (wim to] go bild; On what thty said - thtll [then bt] tht freeing of a skw.. tht)' touch Ont That is ""'lit yo:u art! adtmmlmtd tMrdry; ami AIWI is AUfUl'iltttd with whtlt yo .. do. And ht who doa 1I0tfind {asl4.,..] -/htll two month. collucutivtly befort! th,y toud! Ollt altother; and ht who is ......bIt - thtll the fudi"g of siKty poor PtrsOIlS.

(Qur'm:

3-4)

In the aforementioned verses, AUah states that "/ho.e who prolloullct pho:l, from their and then regret it and wish to return to normal relations with them have to expiate for their pronouncement of ;:iltdr "btfof"t they touch. 0"" lIowthtr" Such expiation can be one of thf"te things:

1- Emancipation of a Slave
The expiation of z.jMr can be through 7ndllg of a .1.",t if the husband has any, or able to afford to buy one with his surplus money (that i.'! not net<lt<l 10 meet his essential net<ls and the needs ofthas<: whom he supports).
H

The slave to be freed must be a believer. as Allah .tipulates a believing slave for the expiation prescrih<.d for manslaughter: Allah, Exalted be He, says:
". And whMwr Idlb .. btlitwr by mista" - thtn the freeillg of/l bdltvillg sl/lw .. (Qur'm: An -NisA': 92)
H

Thus, according to analogical dt<luction, the slave to be freed in expiation for phdr must be a believer as well, for the unrestricted ruling prevail. over the restricted similar one. Alro. the slave to be freed in expiation for z.iMr must be free of any defect that badly affects his/her ability to work, for the emancipation is intended to free the slave and enable him/her to earn his/her living. This cannot be achieved if the .lave is .fflictt<l with a defect that badly affects bis/her ability to work, such as blindntSl, paralysis, and the like.

2- Fasting for Two Successive Months

There are three conditions for the validity of expiating ziMr through fasting:
1) Th e husband must be unable to free a slave.

2) Th .. husband must observe fasting for two consecutive months. during which he is prohibited to interrupt his futing except for an obligatory fasting. like fasting the month of Rama.din. It is also prohibited to

VII, DIVORCE

interrupt tho", two months of except for an obligatory breaking offasting,lik/, that on the days of the Two 'Ids (Feasts) and on the Days of Tashriq (11 ", \2'" and 13" of Dhul -Hijjah; the th .,., days following the Day of Sacrifice), Fast ing tho'" two months can also he interrupted if there is a legal excuse, such as an exhausting journey Or an illnus. Breaking the fast due to either of th e above reasons is not an interruption of the conse.:utive two-month fasting in expiation for "iMr. 3) The hwband must have the intention of pnformi ng expiatory fuling for "fM, at the night pre<:eJing his fasting day.

3- Feeding Sixty Poor Persons

There are thru condit ions for the validity of expiating feeding sixty poor perS<lnS:
I) The husband must he unable to ob",rve the expiatory fasting.

through

2) The poor person to he fed must he a fI'<'e Muslim entitled to receive M6.h. 3) The amount to he give n to the poor p"rso n must not he (ess than one mudd (a standard measure that equals 543 grams) of wheat or half a &I' (a standard meaSUI'<' that rquals 2172 grams) of any other ceI'<'als, In general. intention is a main condition for th e validity of any expiation, for the ?rophet (PBUH) said, Verily. (the correctness and rewards of) deeds dqlend upon intentions, and every person gets but whM he has Bes ides the Qur'anic proof, there is another proof stated in the Sunnah (Prophetic Tradition) illustrating the legal ways of expiating for "ih.tr and their priority order. It is a hadith narrat ed by Khawlah Bint Mdlik Ibn Tha'labah (may Allah he pleased with her) who said: "My husband, Aws IbHulS.6.mit. pronounced " ihdr from so 1 went 10 Ihe Messenger of Al'ah (PBUH) to complain to him. Th e Messtnger of Allah (PBUH) disagreed with me abaut him ( iot. her hwband) and said, Allah, for h. (i, . her husband) is )'<Jur (ousin: He (PBUH) kept disagreeing with me until the following Qur,mic verse was revealed: 'Urtainly ha. Allah Iwlrd the spuch of thl OM who argues (i.t., plelldJ) with )'<JU, (0 MuI!wJllnod),

c,mcerning her hcuband..: (Qur'an: 58: I) The Prophet (PBUH) th . n said, 'He $hould a $lavt then: 1 said, 'He cannot affGTd it: He said, 'Then he for two 1 ,aid, '0 Messenger of Allah! He is an old man; he ,an not observe Then he should f u d sixty poor people: justing: He (PBUH) 1 said, 'He hus nothing which he may givt in charity: He (PBUH) said, '1 shall help him with a basket ofdMes: 1said, '1 shall help him with another basket of dntes: The Prophet (PBUH) said, 'That is 8000 o/you. Go and/ted sixtypoor on his behalf. and return to your cousin.' . l
(Related by Abl'l Dawl'ld) As we s<:e, our great religion, Islam, offe.. oolutions for all kinds of problems including marital OneS. As shown Islam has oolved the problem of the phM that used to be a dilemma duriug the Pre Islamic Period of Ignorance (th e Jdhiliyyah), wheu prople had to separate the married couple as a solutiou, causing their family breakup. What a g,..,at ,..,!igion Islam;'! In addi.lion. our religion, wheu ordaining the expiation for ;ihdr, gently considers the conditions of the husband, and thus the husband can frte a slave. observe fasting, or fu d p<>e>r people, according to his ability; all praise be to Allah for th at.

Endnote.s
1 AbO Dlwtld (2221) \11462] , AtTIrmidhi ( 1202) (3/5031, An N l1 (.J.457) /31479]. ""d Ilm Mljah (2065) [215Hj. 2 AM Dlwl'ld (21460).

CHAPTER

Li 'an (Allegation of Adultery Sworn against One's Wife)

Allah. Exalted be He, prohibits Muslims to fa lsely accuse the it1nocent people of adultery, and He those comm itting such a 'in wit h .,cvell' punishment All ah, Exalted be He, say"
thou who [falo. 'yl aceu.echo. te, unaw",..,,,,,d believing wom,,".,re cursed in tllis world .alld the Hltntlfter: and they will hay. a gnat prmishm . n', 0" a /Jay whm thdr tongutJ, their hand. "nd their fed will bear witntss agailllt them ,,. la what they "",d to do. That D">I Alia', will 1'''y them infull their true (Lt., dt.trvtdj rtC<I"'pMSt, "mllhty wil/ kn"w that it ;. AlI.. h Who i. the M,miftst Truth (i.t., Perfect jn j ...

(Qurln: An -Nu r: 23-25)

VII, DIVORCE

Morto""r, Allah ru.. ordained Ibal whoever accuses a Muslim of adultery or fornication without producing four witnesses must be punished with eighty after lashes and considered a defiantly disobedient person unless he that and corrects himself. Allah, Exalted be He, says,
-And tlwse who a(cu,e chalu womtll and thtll do 1101 product four ",itnuses - lash them eighty IA$hu tuld do not ""tpl from them te.rinwny ever "fier. And thoot " N! the defitultly diS<>ln:ditn.t. Exctpt f(JT thoH who rtipmt "fter th"t ",u! correct Ihemulves. For. indud, A/I"II i, FQrgiving "lid Merciful."

(Qur'an: An-Nll.r: 45) The afo ,<, mentioned ver",s show the stern punishment and ruling applied wh en a Muslim accuses a woman other than his wife of adultery. However, when a Muslim man his own wife with adultery, there is another ruling to be applied called the li "". [;'<In is four testimonies ensured by sworn oaths taken by each spouse, and accompanied by the curse or wrath of Allah upon the liar, as will soon be explained. If a man charges h is wife with adulte ry and cannot produ ce dear evidence (through witnes""sj,U''!n can spare him the legal punishment for the false accusation of adultery. Allah. Exalted be He, says:
-And th"ot w/w "CCIlU their wiveo ["f adultery] tmd havt 110 witntntl exctpt themselves - tht n ,'''' wilnus at on, "/ them [shall be) four tuti",,,niu (swt"rillg) by A/I"h Ih"l imfud, he Is of tlu: tns.thful. And Iht fifth [lNlth will bel tJw.t the curse o! Allah be upon him ifhe .hould be among the liars. But it will prtVtIIt punishment from her if .he gives four te.rimonie. [.wearing] by A/I"h th<lt imfud, "., is "f the /i"rs. And Ihe fifth [oath will be) that the wrath of Allah be "pon her ifhe was of the truthful.M

AnNo.r: 6-9) Th"". husband says four . , testify by Allah that my has committed adultery. He must p"int at his wife if she is or her name if she is absent. In the fifth testimony, he says the S3me but he adds. ... and may the curse of Allah be upon me if I am lying." In reply and the wife says four times, "I by Allah he is lying about the adultery h. has charged me with." In the fifth testimony, she .ays the same but she adds, ".. .and may the wrath of Allah be upon me ifhe is telling the truth." This is because the on e who knows the t ruth and denie. it incurs the "wrath- of Allah.

o.,pt<r 7: U

',jR

(A11cfuion of Aduh<ry Sworn

0",,', Wife)

Th..e ,,-re some conditions for the validity of ".. an : The two spouses are legally accountable. The husband charges his wife with adultery. The wife keeps on refuting him and charging him with lying until the endofli'4n. The U'dn is conducted by a judge. Ifthe case ofli'dn meets all the aforementioned conditions and is made in the aforementioned way, it results in the following legal rulings:
I) The husband becomes no longer liable to be pun ished for false accusa-

tion of adultery. 2) The couple must beseparated, and the wife be<.:omes prohibited for the husband to remarry forever. 3) Her child will no longer bear th e name of the husband if the latter denies the child during Ii'dn by uying, "This child is not The husband resorts 10 /i'an if he sees his wife committing adultery but he cannot produce evidence, or if he hilsstrong presumptions that his wife commits adultery, as when he sees a wicked man notorious for dissolution secrctlyvisiting her, Therefore, there is a legal wisdom behind the pr=ription of Ii 'an; namely that it spares the husband the disgract and shame of his wife's adultery, the painful marital life with her, and the paternity of a child who is not his. The husband cannot often produce the evidence of his wife's adultery, and his wife d""s not often confess her cri me. Accordingly, since the husbands accusation cannot be accepted without evidence, the only legal solution is public imprecation through strong oaths taken by the spouses, Thus, the pre&eription of the li 'dn solves the problem of such a husband and relieves him from any discomfort. Since the husband has no witness against his wife but himself, the wife i5 legally entitled to oppose his testimonies by equivalent repeated testimonies to avert th e punishment. If the husband refrains from swearing the allegation of adultery against his wife in the way mentioned he is to suffer the legal punishment for false accusation, Likewi se, if she refuses to s....ear by Allah that he is telling lies in the way previously pointed out, his testimonies a", considered irrefutable evidence ofher sin. In this regard, Ibnul-Qayyim said:

"Thi. ruling on li'an accords with the legal proofs. According to

Iit!' Mdlikr, Shdfi 'I, and lianbaJi

A.'l

well AS other.!, the wife

'"'

VI!: DI VORCE

must sujf" the legal pun;shmmt for adultery if she refusa 10 swear (her husband is lying about her committing adultery); this is the sound opinion, as it is the opinion indiUlled in the Noble Qudln. It;s alro the opinion maintained by ShaykhuI.lsMm l/m TaymiYllh and others:'
Ae<.:orrling 10 Sunnah {Prophd ic Tradition}, proof of legality

of resorting 10 Jj '<l" when ne<:essary is the aadrth related by Al-BukMrl and

Muslim on the authority of Ibn 'Urn."

Ibn 'Umar (may Allak be pleased with him) was asked if there should be separatiQn between the two spouses in case of
11 'dn, he said, 'Glorified be Allah. yes. The fir.! one who asked (the Prophet) about it was so ,md SQ. He said. '0 Messenger of Ai/oh! If one of us finds his wife committing adultery, wkot should he do? If he talks, that is something great, and if he keeps silent, that is also something great: The Prophet (PBUH) kept quiet and did not answer him. After some time, he (that very person) Cam e to him (the Prophet) and said, '/ have been involved in that very . ase about which / had a5ked you: Allah, Almighty and EverMajestic be He, then revealed the verses (regarding the ruling on li .<In) of the Sura of An-Nar (the Light), :.tnd those who accuse their wives (of adultery}, ..' AnNilr: 6) Thereupon . he (the Prophet) recited them to him. admonished him. exhorted him, and informed him that the torment of the world is less painful than that of the Hereafter. He (the man) said. 'No, by Him Who sent you with Truth as Pr{Jphrt, 1 havr n{Jt told a lie against hfr: He (the Pr{Jphet) then ClCll/ed her (th e mans wife). admonished her, exhorted her, and informed her thalth. tormenl of this world is less painful than Ihat of the Hereafter. Sh e said, 'No. by Him Who sent you with Truth as Prophe(, he is a liar: The Prophet started with th e man and made him swear and the man swore four lesl;monieJ (swearing) by Allah that indud he was speaking Ihe truth . and hisftflh (oath) was that the curse ofAllah be upon him ifh. was /e/Jinga lie. Then the woman was summoned and she gave four testimonies (swearing) by Alklh that indeed he (her husband)

o...p"" 7: uh (All<g><ion of Aduh.ry Sworn "eiM 0",,', Wif"c:)

."

was u.liar; and her fifth (oath) W./IS that the wrath of Allah bt upon her if he was speaking the truth. He (the Prophet) then effut ed separation between the two:'

Endnotes
1 Se., "ZM,,{Ma tu!" (-tl95) and AI-lkhrjJ'1'rdr [po 345]. 2 AIBuU.W (no. 5311. 5312) ond Mu.slim (no. 1(93).

CHAPTER

Establishing Paternity
If a man. or IMmdmaid givu birth to . child, the man il to tit his {atht< when lhen: is a pouibility that the child could bt hi$. as who:n th( woman is living with him as his wife. This is brausr Prophd (PRUH) said,

"The child masttr):'

10 a certai n man:

/0

tlte OWll t r aftht bM (i.t. rh" husband

(I'

the

There are thr"" cases ill whi ch thtre is a possibility tha t Ihe chil d belongs
The first cue is when the woman is his wife uwlgives birth to her child after half a year of their firs! sexual inttteoun<, whdher the man lives with Of not, si n the baby can be this man's child and
the.., is nothing to Qd.e rwiu. The IOnd cue is when the woman is divon:ed a nd gives birth to her

child afk r less than four years after her irrevocable divolU. for the

'"

VII, DIVORCE

muimum period of pregmIDcy is four years. In this caK, i, possibility that th e child is from her a -husband, and thm lhe child is attributed to him.

In the tw<) afOfe$ald cases, the husband mUSI be Itn years old or more (to be abk 10 hive children). for the Prophet (PBU H) &aid:
"Command yourchildrm 10 pray wIwr they bome stW1I (yelm old) .. /Id but them fix ("ttltirtg) if (Lt.. pmytr) "'km rMy become tor (ycan old}; Il"d Ilmmgr IkiT hub (toslup) Hptlfilltly.The I'rrlphtt's command tn make the children sleep when they beco me ten years old is a proof that they ao have $nul) intercourse, whleh leads to pregnancy and giving birth. This impUe. th.t. ten-yur-old ch ild can be a father even though hi.! puberty is nol n'ident. as puberty is evident only when tu signs Ire apparent on him . Thus. Muslim scholars are of the opinion that the husband's ability 10 haw: 5aUl.l lnlercoune is enough to make tM b,aby belong tQ him, and thus pwpIes 'inngts being The third Cl$<! (in which newborn baby can bdong to the husband ) is when the revocably divorced wife gives birth to child in I four-year pHiod slarting after divorce and M fore the expiry of her waiting peri od, The same applies when the revocably divorced wife gives birth to a child before a four-year ptriod afler the expiry of her waiting pniod. This it bea ...... the ruling on rtVOCI.bly divoreed womln in her wailing ptriod it the $l.me as that of a wife. to the ruling on paternity in of I'e'YOC.Ible d ivorce is similar to that in case ofbeillg married.

If a master admit' that he has had SHualinlercoul"Se with his oondmaid. or if there in proof (If their w:ual intercoum. then the child the gives birth t(l l ix months or more after the intercou!"$C to thi.! man. This it because ,,0.dio8 10 she is legally comidered hl l lawfut woman by l uch the gene",liry of in which Prophet (PBVH) said:

-Tht child belongs to the OWn"" of tilt MI (I.t . tilt Juul,.",d or the nuuter of Q slo .... girl)."
If a master adm il$ that he has bad sexual intercourse with his oondmaid. IlIId then he has IOId he, or set her frtf!. he is considered the father of the dlild she gives binh to in Ins 111.1111 six months after her sale o r emandpation. This Is bause the minimum ptriod of pregnancy iuix m Onths. and ifthis oondmaid

0ueT 8: EM2bIi.bi"ll P,...",j,y

giva birth 10 hn child in less than six months after and her child livtS, it becomes clear !luIt she had conceivW her <hlld when she h.d bttn her lawfu l woman her..ale or emancipation; the Prophet (PBUH) said:

'"

"The ,hild belongs to the owner of the bed (i.e. the husblmd or the masterJ."
There Irt: two casn in whidlthe dtikl cannol belong 10 Ihe bushand.: The fint cue is when the woman gives binh tul n child in I period I<'SS than six mOlllhs . fter her for Ihis is nOl en<MIgh for conceiving and giving birth 10 a child. In th is the wife have pregnanl her marriage 10 her present husband. The _ond cue it when lhoe husband irrevocably dlyorce$ his wife and thm she give:! birth 10 a child In " 1IIOft" lhan foot ytfIl'S afttr divo=_ This is bfaU5e it is rndmt thal she Iw the mild after her divoru..

The child of a bondmaid wUl not ""long 10 he. mastn if he claims that he
made sure she had ""r menstrual period aftn having suual ;ntercourw with him, u this maI= him ctrtain lobe did not conceive adtild .fter having sexual intercourse with him. Therefore. her doild su""y ""'ongs to anolher man. The it is so difficult to verify whether master's claim is accepted in this case, she really had her menstrual period and did not conceive a child after having with him or not. However, such a claim to disown the child is oot legally laepto:d unk" the master takes an and swean by Anah thltthis ch ild don nOl ""long 1 him. as he thus denies any duty relllled to his 0 pllnnity of the child.
If there is a dispute over the IinnS" of I newborn the bwful brd rclltion$ ue kg:dly mOf"t oon$idero:d than a mere resemblance between the newborn baby and ils claimer. For example, when a master claims the child of his bondmaid 10 be hi. and anOlher man who had sexuol intercourse wilh her claims the child btcau$C the child "'i<'mblt'S him, Ihe child legally belongs to the mUlt fur lhe Proph et (P IlUH) laid:
,"lISler

"The child belongs 10 lite oW1le' of G girl).

of the baI (i.t. thl! hUWand 0,

Ihe

The child follows Ihe pt!digrtt ofhis father, for Allah, EXllled bc He. says:
"(All them by Ilhe nGmU 0/1 thei'fot"e ......

(Qur"n: Al-Ahub: 5)

VII, DIVORCE

when il C()f11otS to ttu, child's rdigion, Ihe child follows Ihe ITligion of his paten ... For example, if a Christian man ma rries a polythei$1 woman or vie( verMl, Ihe ch ild follows Ch ri$tianity. Yet, th e chil d followli hi s mother con cerninl:\ frdom or slavery. except when th ere is a previous condition or a ki nd of deception.
H owever,

AfleT this qukk illustration oftk I.lamic rulings on the establishment of palernity and verifkation of "'" realize the keen interest of Isbm ID protm and verify pople'$ as IhelT ue con$Cq\ICnt inteRS!$, such as mainlaining the lies of kinship, inheritance, guard ianship. and th e like. Allah, Enlt ed be He, says:
"0 mankind, Ind"d We h.."" created YO" from m/ll, "nd jtttwle "nd m"de you peopl" and ,.i/la th"t you may know one allo/heT. lndud, th" most nobl, of )'011 in th, light of Allah Is the most riglt/nJIU of yo". Indurl, Allah .. Knowing and A'Illlllintrd.M (Qur'ln: Al-Hujurit: Il)

of the .iMage is nOllntended for bua$tfulnn.s and chauvinism known during the Pre- isJamic Period of Ignorance (Ihe loihili)'Yllh). Rl1ther, it ai ms I1 cooperafion, maintaining the blood ties.. and being merciful towardoi one another. May Allah guide liS all to what He likts and pleases.

Endnotes
I Al-IluWr1 (21 18) 1415191100 M irn (3600) [5Jt79]. ....

CHAPTER

Waiting Period
The waiting ""nod i$ a """,le of divoru", and il a ltplly sprc iCoed piod of wailing afln divor. The proofs of the waitlng.,mod are from tM NOOIe Qurln. the Su"mrJr (Prophetic Tradition) and the Const:nrus ofMwlim scholars.
Ill.. proofs in the Noble Qu.lo, All ah, Exalted be He, say"

-Divorced wom.n ",",,/n ill ,..tIWnl (j.e" do no/ r"marry) for periodl ... AI.Baqarah: 228) He alw
$a)'$;

-A ..d tIrnM: om.. no ",lIP' n/Wct mnut.... ...,..,ell - if 1011 dOflb/, IMIf puiod i,

/alsD for/ I""",,, ''"0 MW "ot "" ".stTlUltN. Alld fo , .. re PrYJfUlltt, ,lld, le"" I, ulllil theY,,\I birtlr .. (Q url n:

,Itn,

"'icHt '''''''''g ,.,u,

'''tu ,"olltl.,. ,,/'Id

4)

VII: DIVORCE

This concerns Ihe cases of separal ion bdWffn wife Ind husband in li fe. However, concerning Ihe case of the death of the hu,\)and, Allah , E.r.altC1l
He, says:

1/wR ..ha "re 1 1'"" in 1'1It""! YON tuld wivQ' "'hind - thcy. {thc "';w" shll11] "",it!llUr monu" alld tCII/d4y,r
(Qur'An; AI-Baq"uh: 234)

The proof deri'ltd from the SII"""" is the /!4dlth narnllro on Ihe aUlhority o f ' A'ishah (may Allah be pleased with her) who $aid:
"&lr/rah IVIIS ordered (by the Prophet) 10 COllnl Ihru monlhly
periods as a ..aIling f/friod."' (Rdatcd. by Ibn Mljah) There are other hadi,h, indica ting the same legal ruling.
As for the wisdom bdlirl<l the prescription of Ihe waiti ng period.;t is 10

makt: sure the woman has not concci'ltd I child sq>arating from her husband. in order not 10 let any ronfusiOlllab pl..:c concern ing the lineage of IIIe child th is period gives lhe husband lhe chance 10 rtptrIl d ivorcing her alld to take his wife back IS long is his divorce is '!.'VOCable. Hoooring the marriage contract and pointing ou t its hncti ty are :also intended through the prescription of the w:aiting period, and so is est=ning the right of th e ex-husband . Besides, th e right of Ihe fetus is highly obileIVed through ttu- prescription of Ihe waiting p.::r iod when Ihe divorced wife is pregnant. In of the prmOlll marriage. general.11tt waiting period il considered The wailing pciod is obligatory upon every woman who has sq>;In.ttd from her husband whether by d ivorce, by IItt khul' (wifei .insl by a d i:;.s<)Jution of the contract, or by the d eath of her husbomd. 1 isacondition to make the wailing period valid thatsudi a huswnd 1 cunKKmsly had privacy with the wife with her conllent and he was polent, whether !he was a or a . lave girl, an adult or. minor of those fit 10 have intercourse.
As fortltt woman from .. horn her hwband 5Cp<Irata beforeconsummaling

marri.age wilh her, whether Ihrough divorce or the 1iM, .. hile hc is has no waiting period. Allah. E.r.alled be He, AYS:

, he

"0 ,..11 ""'0 how hd icwd. ""'no ,.... ml'rry klini", lOO,.,,". OM the" dlO'OlTc 'ht m btfort 1<'11 IUI .... 101lch,., Ih,.", [i.t., COlISumml'ltd Ih, marriagf']. the" Ih_ 1I 11'" forYOII I'IIy .."ifi", per/oJ 10 rolllll c""Ctl7li"8 thtm, ..(Qur'An: A!- Ahzab; 49)

The verbto cmlll' in the vent men to C(lunt ing the peri0d5 O months to determine Ihe time or the waiting period. and -""ve .oudtM implies noble verw indicateJ th at is hiving $tXull intercourlt with them. no waiting period for the woman divorced befou consummating m arriage. and theu is no di..pute am ong scholars OVer this ruling. The mentioning of the "bd/,,,/,,t""""''''' in the vuw is a nfeunce 10 the majority of the wives of Muslims. sinn Muslim scholan unanimoU$ly that the..., il; no difference het " Un the believing women and thoK of the People of t/u: ScriptUu (Christian Or Jewish women) concerning this ruling.

'''tm

However. when the husband dies. his must C(lunt her prescribed Wilting period whether he has had comummated the marriage or nO(. for Allah. Exalted be He. 1lI)'l1:
"Alld those ",ho ..re , .. lee .. III de .. ,h ..mOllg you ....d leavc wlYft beh/lld - the)'> {the wJ,,", shall} wait/our IHOII'''J and " " {days } (Qurln: AI 8aqarah: 234 )

Moreover. there il; no lepl la t or proof to dilTenntiate betwn Ihe consummated and unconsummated muTiages in Ihis respl.

There aU six kinds of women in thei r waiting period: 1l The pregnant widow or the pregn ant divorced woman
2)

The non-pregnant widow

3) The divorced woman who still has her monthly menst rual period
<I) The divorced woman who does not have. monthly menslroai period,

due to young age or menopause

5) The divorced woman who no longer has her monthly menst:rual period,

without an

rcuon

6) The wife of a missing man

Concerni ng Ihe pregnant widow or the pregnant waiting period laslS until she givff birth. for Allah,

woman. her be He. says:

/J UlltIl they

M. And joT "'DSC WftO ...... Pretnllnt, their tu m ..

t iw birth.-

(Qu r'An:

4)

that the waiting I'C'riod of lhe prepant woman encU wben .me givesbirth. Someo( tbes.. klj(ewly Muslim schot..rs) maintained that the pregnant widow mutt consider the Ion1u period: dther until she gives birth or until four month alnd ten days pass . However. afterwards. Muslim

The noble wnw

".

VI1, OlVORCE

scholars unanimou.Jy agrN d th.t th e waiting period for the pregnant woman

ends when she give. birth, whether she is a divorae d or a widow.

However. the waiting period for the pregnant woman does not end if she miscarries, and h OT embryo is a me1l' unformed lump of flesh. Th. waiting period of the pregnant woman ends when she gives birth to a newborn that belongs to Ih. separatro (by divorce. death, etc.) husband; thus. her

waiting period does not end if ,he gives birth to a child that does not belong to the separated hushand. For aampl e, if the husband cannot have children due to a congenital ddect or young age, or when the child is born alive in a period of pregnancy 1 , than six months an.r consummating their marriage, this ..
child does not belong to this husband. Therdore, her waiting period d ""s not ond by giving birth in such cases.
Th. minimum period of pregnancy is six month .... Allah, Exolted be He, says:

... and hi_tutatlon imd m'Wling {pniodJ i. thirtynwnths .

(Qur';ln: AlAhqH: 15)

A,d
''Molhen /tiny "urse complete years ."

fi.".) breastfeedJ their child...,,, two

(Qur'an: Al-Baqarah: 233)

If we subtract the period of breastfeeding, twentyfour month" from

thirty months, the remaining i. six months which is the minimum l'<'riod of pregnancy. and there is nO child that can live ifhorn il) less than six months after conception. Muslim scholandifferon d etermining the maximum l'<'riod of pregnancy. The most preponderant view is that this period depends on the actual cas th,,\ h"ve already occurred. Al-Muwaffaq Ibll Qudamah said, When there;$ no t:.lt, we must resort to the (am, and some cases of pregnancy have bun reported to last for five years and more:' However, the common p"rioo of pregnancy is nine months, for most women give birth after nine months of the conception.
It is impermissible to harm or ass.ault the embryo .. it is highly protected in the Islamic snarl ah (Isllllllic Law). If the embryo, after the soul ha, b",athed in it. ;,. miscarried and di<$, due to an assault against it, blood money and expiation are obligatory upon the erimi....!. If the pregnant woman deserves the legal puni.mment ofla.ming or that of stoning to death, it mmt bt prutponed until she gives birth. Also, it is impermissible for the pregnant woman to cause herself to miscarry by taking medicine or the like.

Ch.p'''?: W.j[ing I>.:,iod

These rulings indicate the comprehensivenrs.s of the Shad 'ah that observes and protects the rights of the embryos. Then, all pra i"" is due to Allah, Lord of the worlds., for His granti ng us this just and comprehensive Shari'ah. We ask Allah to help us adhere to His and be sincere to Him in religion, although the disbelievers dislike it. Concerning the nonpregnant widow, her waiting period i. four months and ten days. whether her husband ha., died before or after the consummation of marri age. and whether she i. fit to have ""xual intercourse or not. This is bream. Allah. Exalted be He, says: who ort taUn in death am''''g you and /ea". "A nd wjus behind - they, {the wives, shall] waitfour months and te .. {days]..." (Qu r'an: Al-Saqarah: 234) lbnul -Qayyim said: "The WIliting period prfscrlped for the widow is obligatory. whether ht r mMriage has been consummaled or nol. IJccording to the generoli ty ofthe legal texts 1nl he Noble Qur :In. th eS unnah (Prophet ie Trodition) as well a.'I the agreement Muslims. The period for the widow is not merely intended for making sure of nor is il an absolute act of worship. sillet eyery ruling in the Shad has ilS wisdom which is understandable to SOme and ambiguous to others."'
AI-Wadr and oth er scholau stated, unanimously agr.. that the waiting period for the non -pregnant widow is four months and ten days'-'

As for the widowed sL girl, she must observe half the waiting period of ave widow; that is two months and five days (including five nights). This the is hecau"" the Prophd's Companions (may Allah bt pleased with them all) unanimously agree<;! that the divorce<! slave girl must observe half the waiting period prescribed for the divorced woman. and so is the ruling on the wido_d slave girl compared to that on th e widow. AI -Muwaffaq Ibn Qudtmah <aid, "Thi< i< the view of the majority of <eha/an. ,ueh Mdlik. A.hShtlfi 'I. Scholars of Interpretative Opinions." AI-Mu waffaq Ibn Qudtmah also said in hi, book enti tled AI.Mubdi" (the Creative):
"The rmanimousiy agreed that the widow girl must observe half the waiting ""riod prescribed for Ihe fru widow W<)maM; otherwi5t. the verse slales a general ruling concerning both the salve wvmtn:'

VII: DIVORCE

There are some Rulings pertaining to the Widow

she was stiying it the deat h of her husband, and it is impermissible for her to leave thll house w:epI for I legal excUK, ou the ProphC't (PBUH) Jaid to a widow:
widow must spend her prescribed waiting period in the house

"Stay at your horn",:'

In :an<>thu namollon, he (PBUH) said:
"SIll)' durlllg )\Iltr

MJiting fWriod in tht hOIol$t wltm

Ift'r't

infonrrd afyour hu"band\: delUlt."

(Related by the Compilers of the Sunan)'" if the widow Is obliged 10 move Into another house, she Is to go whell'w, she desires in order to avert any harm. For example, she can leaw the Ilouse If she fears fOf herself from staying lhell' or u forced 10 Inve it, or if the hO\lK is rt nted and its owna asks her to leavr Of asb for
I

higher Il'nl.

It ;1 pennissible for the widow 10 go OUI from her house for her needs during the daytime, nOl It night when evil incidents Il/"e expected, for the Prophet (PBUH) &lid to the widows observing waiting periods:
"Talk as much you WlInt at tk I",mt of one ofyou and when you

want to sltep. Ihtn twryOl! ofyou should rtlurn 10 hu home.""

Moreover, it ill obligatory for the widow 1 show the Ioigns ofhe. IDOllming 0 by avoiding an that whkh may I/"OUie othen' desire IOWIrds 00 01" mm bet IttI"ICtift to look It With rq.ard to this. the greM tcholar Imba .... uI-Qarrlm (may Allah mercy on him) said:

"This (the widows mourning 0,," htr latt husband) imiiC4/!!S Ihe
ptrJtion and wisdom of Iht lsiamic Sharl ah ((slami' LA",) and how i. thoroughly look. ..fier th", of Mus/i",.. Mourning tht dtetastd JjgnifltltM big disasler afdtath which prop't UJtd 10 uo.ggtmtt urnsivdy during tlv i'rt-lslo.mi, Period of Ignoran,,,, (rhllt!hi!iyy<lh). During such Ihys, llu widow used 10 stay in Iht wont .."" 5m.. UtJt houu, willwut lou,hing ptrfUmts., "I'plyingoiJ 10 her /liking .. !>..th or Jumlil:e lids tlW i'ldia.u diuatufadion with rht DMnr PmltllilUJ'io" . Qu, ofHu AIIllh, /Je Ht, mu nullifltd this way of mOllNling obserwd by the people of rhr Prt-Islamic Ptriod. of 19nortlnu (rhe /dhiliyyalr), Ilnd substirured

pmience, thankfulness, turning back to Allah by saying 'Indeed, Wt belong to AI/oh and ind ..d to Him we will return: Since the di",st. r of deaJh naturally causes jU>in and sadness to the ptople of the deceased, Allah, tlu Wise, the Acquainted. <1l1ows them (th e relMjws other than the wife) to show only afew signs of mourning, that Inst for three daY' only in order to provide them with comfort and release their sadnw. So, mourn ing is prohibited after these three days <IS it is considered a prospective ."i/. What is meant hert. is that Allah permits women to mourn over their deceased. other than the husband, fo r thrt.e days. However, mourning aver the husband is related to the wailing period as it is considered af its nect ssities alld complementary practiC es."
A1J for the pl'<'gnanl widow. she ends her obligatory mourning as as she gives birth 10 her child. Her mourning is reslricted 10 her waiting and is complementary to it, and ont of i Is rulings and obligatiom. Thel'<'fore. her mourning is obligatory as long as she is slill in her waiting
Imho Ibnul-Qayyim then said:

iI. l1I"mOI! needs to adDrn hml lflO /It lowly for her husballd. When
he dies and she is still ill her wailillg period and connat be the wife of another man, she must be preve nted from doing what a womall does for her husband. in .n-der to observe the right of Ihe deceased husband by preventing herself from another man until th e decreed waiting period ends. This also htlps block the means to desire men or be desired by men if she ad"rns herst!f.'''
Thel'<'fore, Ihe widow in her musl avoid adorningherselfby applying dyes, henna, and the like. She musl not wear ally apply any perfume. or wear any adorned dothes, a5 she has to wear only unadorned there is no special clothing for mourning period, and hence the widow can her usual clothes ""cept Ihe adorned oneS. When her waiting period is over, she has nO legal obligation to say or do anything. unlike what common think. wailing period prescribed for WOman who no longer expects menstruation is three monlhs, for Allah, Exalted be He, says:
"Alld thfIU who 110 /ollpr e1C/,t menstTuatloll "mong your

_'11'" -Ify<lu dlIub1, then tht ir perrod 11 thrte manth$...

4)

VII, DIVORCE
'fhf, pr..aibcd waiting period for a diVOf'Ced woman, who iI not !=Snanf

and . till 11. ... m...,strual period" is fhree "",,,,frual periods, for Allah, EDited

be He, saY"
QVillOrud women rl'mai" in Mlmng {I,e., do no/ 1?marry} for
Ihrl't pniodl, IInd /f /, "01 '11 ..."" /n thrir ..

'0"'".....

for lhe", IDto"ctlll ...hal AUah

(Qur'An: .... ls..qarah: 228)

This noble verw indi(;ltnlhal the divon:ro woman n.ust observe a waiting period of three meMtrual periods. and thm w can MTII.rry if she likes.. The word "periods" mmlioned in the wrse ",fen 10 men$lrual periods, a5 narnted from ' Umar ' Ali Ibn AbU. Dlib, and Ibn ' Abbjs (may Allall be pleased witll th em all), The Prophet (PBUH) used tile ltame word 10 to Ihe same meaning as he (PBUH) said 10 a woman In a Slate of ;,tibAdah (Le. a woman having vasi nal bJding other than mmslruation):

. .. When )I1ur menslrutJlion com"" do /10/ perfo,m /'To.,,""-"

Moreover. Ih.,., Ihlft menstrual periods must be and Ihus if Iht woman is divorced during her meMtrual period, this period will not be counted a5 one of the thl" menstrual periods pres<:ritlfil for t",r as a waiting period. It is worth mentioning that though divorce prohibited during the mr ... trual Jl('riod, it is legally vllii d.

The prescribed waiting period for the divorced rJ.a..., girl is only tWO menstrual Jl('riodJ, for tite Prophet (PBUH) $;lid:
"The .....iting

of liu Ji,...., womlln iJ two monthly pmods.-

Th il is Ihe opinion of ' Umar. itis son (' Abdwllh Ib n ' Umar), and ' All Ibn Aba Dlib. and 00 one ohhc Prophet's Comp;an ions opposed this opinion , Thu this rul ing makes an rI the gmeraJity indioled by the Qur'anic veru, U Diw.rreJ rt/f/alll /n Mlllin, {I.r., do nal rtmarryJ for rh," period$ . (Q ur1 n: Al 228) According to the analogical dedu ctio n,

_mt"

the waiting period o(l he slave girl is half that of th e (,"wo man" i. ... one and half mrnstmal peri(t(I$. Yet. u the "",nstmal period aonnOl be divided, tllus the waiting of the girl is lWO menstrual

,la...,

As for the divorced woman who does not haw a monthly menmu.d pniod dur to or young age. her wailing period i. three months. This is according 10 the noble verw, 1110# ""'0 ,,0 'on1ft' up1 menslnlllliOll amo"g)l1ur _mo" -Ifyou doubt, dun thei, perlfHIl' thr "'/lnth., and (""0 !/lr}lhMt who hI/ill 1101 ItItH/lrUllltd .. " Al-Iahlq: 4 )

Ch.p"" 9, W.i[ing l'<rOod With regard to this, Imim Muwaffaqud -Dtn Ibn Qudlmah and other scholars stated that:

"Muslim scholars UIf a If i mously agree I hat I he wa i ti ng periodprescribed for mtMopausal freewoman and far Ihe youMgfreewomoll, who ha> Mot mmstruatcd yet, is Ihree momhs"
As for the woman who ha. reached the age of puberty but has not menstruated yet, her waiting period is to be the same as the menopausal who have woman, as she is induded in the verse: ___ alld (also for] no' ___'" (65: 4) \\/hen the menopausal divorce<! slave woman or that who has nnt menstruated is the mother of a child of her master, her wa it ing period is two months, for' Umar (may Allah be pleased with him) said:

"The waiting period prescribed fo r the divorced s/ae girl who has btgoltm a child to her master is two menstrual periods. If she has not mell$tnwled, he' wailillg period is IWO montlls, "
This is because the months substitu te for the me nstrual periods. 5<>me scholars maintain that waiting period of such a WOman is only one and half months. Thei r proof oflhi s is that the waiting period prescribed for the slave girl is half that observed by the freewoman, and the wailing period for the freewoman who has not menstruated is three months; thus, the menopausal slave woman is one month and a half.
Co ncerning the divorce<;! woman who used to menstruate but suddenly stops menstruating not because of old age, she has two cases:
The firft CIl5t is when she does not know the cause that prevents her menstrual period, and hence, she is to observe a waiting period of on e nine months for pregnancy and three months for the waiting period prescribed for the menop.usal wOman. Aih-SUfi'l (may Allah have mercy on him) said:

This is Ihe judgment of ' Umar issued among the MuMjir,," " alld the An.!"'" and none of rhem dellied it. Th. rearon btkind waitingperioo is to make sure Ihat the woman is "01 pregna/lf, and when nine manlhs pass, it btcomes cerlai" IkM she is n OI pregnant. Then, she '" to observe Ih. wailing perioo pmcribed for Ihe menIJpausal woman, i.e.. three montm. The lotal wailing period '" Ihus twdve monlm, during which it wiU bt urlaill that she is 1101 pregnant and that the three months .upposed to be fc r mtmlruatj"H have palSed:

."

VII, OIVORCE
The HCond cast is when such a _man knows IM cause that prevents her mmstrual.,..riod. such as iIInm. brnstfding. or taking a medic:iM thi.! pn:YI:nts mensln.l2l:ion. In this (list, ,he is to wail until tk no longer nisI>., and thm if silt menstruatn again. she is 10 observe a wailing per iod ofthl' memtrual.,..riods. However, if she does nO! menstruate, she is to observe wailing period of one year just as the woman who dDe not know the ClIUst that pn:vents her menstrual p<:riO<l, according to the most prepondentnt view. This is the opinion

Ibn Taymiyah and onc of the I>piniom [dated about

[mlm Ahmad. Theft are tomt cases .,..rllininSlo the mUSllh'lIah" : TM first case is when she knows her time and habit of menstruation

bd'on istib4dPh ".11Ien,her wait ingperiod must equal th= periods according 10 her \l5Ual
Tht 5Ond is Whrll she fofldj tM dUrlItton other menstrual period before the iSliiI4dah, 001 shtdistingul$l\e$ her menstrual blood (from the blood of isrill6d.ah); thut. sh e must consider her men.trnlion pcriod relying on the di5tinclion bclwten the menmual blood and of iftih4bh .

The third case is when .he forgets the lime'! of her men.truation and she cannot distinguish her menstrual b lood. Ihen $he is 10 observe the same waiting pcriod of a menopausal divorced woman. namdy three months.. Oneofthe rulings pertaining to IM wailing period is Ihe marriage propoJal 10 a woman ob.serving her wail ing period. It is prohibiled 10 propose frankly to the widow or the irf'tVOCtlbly divorced woman as long as any o f is obierving her waiting period. For aample. I ma n is prohibited 10 say to such a wormn something like. - I W;lm 10 marry you." Ho--..er.he CIn allude concern]ng' proposal 10 her, such as when he says, - I want to marrysomcone like )'0\1", for Allah, Exalted he He, sa)'$, - Thm blame "pmt ro"/fIr th4t to whlth Y"" [I"dlnet',] "I/rule "",,r"/"I" t" ... (2: 235)

propo'",

,,"0

In addition, it is permissible for the man 10 p ropo"', whdher frankly or indirectly, to hi. revocably divorced wife during Or aftu hu waiting period. since M b permine.:l 10 lau back his TCv(l.;ably diV<)rced wife during heT

waiting period or remarry her ;dler her wailing period.

As for the wife of a missing man who has disappeared and it is not certain that he i! alivr, she is to wait a sufficient period, set by the judge, for him to come backor until something certain is known about him. During this period, me is still considered his wife, since thte principle acted upon in this case is that he is considered alive. Wh en thi' f'C'riod expires. he is legally considered a dead person, and his wife is to observe the waiting period prescribed in case of death, which is four months and ten days. Thil iI the judgment the Companions (may Allah be pleased with them all) gavr in such a case. Iml m Ibuw-Qayyim said:

... The Rightly-guidM Caliphs gave judgments conuming the wife of 1I missing m<ln a, n<lrrMed "hour Um<l' Ibnul-Kh<lUAb. Im<lm Ahm<id Ibn U<lnhol said. 'r do nor doubr this ruling, fo r five of the Companions ordered rhe wife of the mming m<ln to obs ....w the w<liting prescribed fo' tlu: widow.' .>0
Imlm Ibnul-Qayyim added, "Tlu:opinion of' Um"r is rhe most preponde'<lnt

view by means of an<l/ogic<I/ deduction. "nd SJ,,,ykhu/-bliJm Ibn T<lymiY<lh said, 'This is the sounde$t opinion.'
When the waiting period of the wife of a missing man expires, she is permitted to marry another man, and she does not need to get a divoKe from the guardian of her miMing husband. If she remarries and then her fi!"$\ husband returns, he has the option to take her back or approve of he.- second marriage and restore his dowry, according to the preponderant view, whether his return ill hefo.., o r after the consumDllltion of her marpage 10 the other man. Wrtt> reJlard 10 this, Shlykb..I -lalAm Ibn Tl yml)'llh (may Allah have men:yon him) said:

"The sounkst ruling On tlu: wife of a mining m<ln is the judgment of Umar "Md some other Complmiol15; site must ..".it four then abuTW the wtlitiMg period pnscribed for widow. A.fter completing h.... w<liting period. she is permitted to m"ffY "n(}th .... m<ln. if her first husb<md ,..,turns after slu: has mllrrltd, he has the option 10 take her back or to restore his dowry, whetlu:, his return is EH.fore or after rhe COllSllmm<ltion of her mtlrrl"ge to the oth .... maM. A.nd this is the opin km <leted upon iM the liaM""lf School."
He added, "Giving the man the optian af t<iking hoek his wife Or restoring his dowry is the most prepond....anl view.""

VU, DIVORCE

Endnotes
1 1bn (lW7) [215311 2 Th" i. the waiting period <>ftn. non-pregnant widow_ 3 See; M-M"ghni (11/B4). 4 See: "Z<ldul-Ma 'Jd" (4/206), 5 See the footno t. in ..... r.Rowd AI-Murbi '" (7/5S) , 6 See: "AI-Mughni [9/107). 7 Se. the footnot. in ..... ,..Rowd AI-Murbi" [7/561, 8 Abu Diwfld (BOO) [21500j. At-TIrmidhi (J21H) [315C191, An.N""! (3528) [3/5101. and Ibn (2031 ) (USOIiI_ 9 Ibn Mi j.h (2031) 121 SOIij .nd An-Na ..t (3529) (31S J I). 10Th. Sunon r&11I to compilation. of th. Proph<l;c fI<ldlih. cla"'ified acc<:>rding to 1.lamic ju,i.prude ntial.ubj<ct.; th. main rom compiler:< oftht Suntln ore AbQ N.wOd. Ibo At TirmidhJ a nd An-NW . 11 AI .B"l"haqi (15512) [71717 1. 12 S "J"Mm AI-M""'<!j'in' (21 t651_ .. I J AIHi Dl.woid (280) 1111391. An-N ..., (211) (1/1311, .nd Ibn MAj.h (620) (l/3-(J]. 14 Thi. i. becau.e the diyah (blood !IHlney) <>fa girl " half that of. freewoman ond. likewi"', the punishment girl ,ei"". i. h.lf th.t of a freewoman_ IS Su").I-Mughni" (11/2651_ 16 Ad.Dar-.qutnI (3785) Al -lI.lyh>tqi (154,1) ,Dd 'A!>dur_lumlq (l21!7l) 1 71ll1 1 _ 17 The MuMjin;'n: The Emigrant" those Mu.<linu who emigrat.d from Mec<. to Modin. for bring pe,,,,,,ulod in Mca becaUK of embr:u;ing I.lam_ 18 Mu,wJJMpJ., A worn.n in tat. of i'li/J.Jd<lh (i . , 0 woman having vaginal bleeding other than mtIlSlru.tioo). 19 l<Ii/J.Jd<oh: Voginal bleeding othtr than merutruatiQn. 20 See"/ ' lam AI-Muqi 'in" (215J). 21 Majmu u/ Fo,dwJ" (IOI377-JIl 11 ,

tn.

1 .""

si.""

CHAPTER

Verifying the Slave Girl's Non-Pregnancy

Verifying that the slave Sirl is not p""snant is achieved by hcr master abs tain ing from having s..xllal ,,i lh her [or a specified suffic ient to make sure that she has I\ot conceivw. Thus, when a slave girl "is w ld, given as a gift Of capturw and sh e is fit to have snua] intercourse, her new master i, prohibited to have sexual intercourse with her or even foreplay until making sur. that oh .. is not pregnant , for the Prophet (PBUH) said:
"It is not/awful for a man who in ..... lIah and th . Laot [),.y to watu what anothu has Sawn (meaning having sexual intercou rse

with a pregnant woman;'-'

(Rdated by Abmad, At-Tirmidhl and Ah(l mwUd)

In another narra tion related by Ab6 O.wud, the Prophet (PBUH) said:

"No one should hill'e sexual inter(oul'1e witlt a pregnant woman (from a prt'I'ioUJ man) until sire gives birflt:'

VII: DIVORCE

The period of verifying the pregnancy of a slave girl la.'lts until she giVe!; birth, due to th e generality of the Qur'anic vcne:

"; /lnd for tho,e who .. .., p"'gnant, th eir term is until they give b;rth .. Al-Ial1q: 4)
The period of verifying the non -pregnancy of the nonpregnant slave girl who menstruates is on ly one menstrual period. as the Prophet (PBUH) said about the enslaved women of A"'lh':

'No one should have somal with a pregnant woman (from a man) until she gives birth. nor shauld anyone have intercourse with a non'pregnant woman ""til a menstrual period passes'(Relatw by Abmad and AbCl mwild) This IJlldith indicates the obligation of verifying if the slave girl is pregnant or not. whether captured or not. before having sexu al intercourse with her. Morrover. this lJadith illustrates how to verify the pregnancy of the pregnant slave girl and that of the menstruating one.

As for the menopausal ,lave girl or one who is still young and has not menstruated yet. she needs one month to verify her pregnancy. since one month substitutes for one menstrual period in counting the waiting period.
The wisdom behind tJu, prescription of verifying the PrqpuulC)' or the non-pregnancy afthe slave girl is implied in the badlth in which the Prophet (PBUH) sari
"It is no/lawful for a mall who

ilt Allah /VId

l4$f Day to

water what another has SOwt1 (meall;ng havi"S sexual

with a pregfUV11 woma,,)."

This indicates that the ooje.:tive of verifying tll/, pregnancy is to avoid any possible confusion concerning the lineage of the offspring.

Endnotes
I Ahll Dlwdd (2 158) 121425J and At Tirmidht (1133) (JI437 ]. 2 Ahll DlwM (21 57) 121424]. 1 pLtct who", tru: oHuna)'IItook place.