“As for those who are pregnant, their term is until they give birth.” [al-Talāq: 4] This applies generally, except for the report from some of the early generations that a pregnant widow observes the shorter of the two waiting periods.

If she is not pregnant, however, the waiting period following death differs from that following divorce. The waiting period following death is four months and ten days. It is binding whether or not the marriage was consummated, because of the general wording of Allah’s statement, Almighty and Majestic:

“Those of you who die and leave wives behind—their wives shall wait for four months and ten days.” [al-Baqara: 234]

It has been said that, where the marriage was not consummated, this is a devotional obligation without an underlying rationale. Others have said that it does have a rationale: safeguarding the husband’s interests, since he has died and can no longer present his case. Had he been alive, he might have established that he had consummated the marriage.

A parallel case is that of someone who establishes a debt owed by a deceased person: judgment is not given in his favour until he swears an oath, even if the heirs have not alleged that he has already received payment or waived the debt. Indeed, even if the heirs acknowledge the debt but wish to pay it only under a court order, the judge will not award it to him until he swears an oath, lest another heir or another debt against the deceased should come to light. This is a sound rationale in the case of a female physically capable of intercourse. Since neither the Quran nor the Sunnah specifies a definite threshold for this, the rule is applied uniformly, and the waiting period is made obligatory for her even if she has been given a dowry.

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There is no disagreement that, where the marriage was consummated, the waiting period has an underlying rationale: safeguarding lineage. However, fixing it at four months and ten days, rather than merely requiring enough time to establish that the womb is free of pregnancy, is a devotional prescription.

The evidence for this is Mālik’s differing opinions concerning a woman of the People of the Book whose Muslim husband dies: must she observe four months and ten days, or three menstrual periods? This rests on the disagreement over whether non-Muslims are subject to the prescriptions of Islamic law. If we hold that she is not subject to them, she need only establish that her womb is free of pregnancy by observing three menstrual periods. This, too, follows the position of those who consider all three menstrual periods necessary for that purpose.

Those who hold that one menstrual period establishes freedom from pregnancy, while the other two are a devotional prescription, require her to observe only one menstrual period following either death or divorce, provided the marriage was consummated. If it was not consummated, she is required to observe nothing following either death or divorce. As for waiving her waiting period following death when the marriage was not consummated, a report has been transmitted