the ruler receives a reply to his letter stating that no news of him is known and no trace of him has been found, he sets a term for the man’s wife of four years if he is free, or two years if he is a slave. During this period, her maintenance is paid from his property. Ibn ʿAbd al-Hakam’s abridgment states that the term begins on the day she brings her case before the ruler. Abū Bakr al-Abharī said: “The missing man’s wife is assigned a term of four years only because that is the maximum duration of pregnancy.” This is a weak explanation. Were this the underlying reason, the same term would necessarily apply to both a free man and a slave, since the period within which paternity may be established is the same for both. Moreover, the term would have to be waived altogether for a young girl whose peers are not yet of an age for intercourse, if her husband went missing and her father brought the case on her behalf.
He has also stated that if she waited twenty years before bringing her case, she would still be assigned a term of four years. This plainly invalidates his explanation. It has also been said that she is assigned four years because this is the time required for correspondence to travel throughout Muslim lands and for replies to return. But this is invalid according to the view that the term is set only after investigation and inquiry. It might plausibly be advanced only according to the view that the term begins when the case is brought, though even then it remains questionable. Rather, the four-year term was adopted through juristic reasoning, because ordinarily, if someone is alive, his being alive will not remain unknown for longer than this when inquiries are made about him. This term must be adhered to, since extending or shortening it would violate consensus. The Muslim community holds two positions concerning a missing person. The first is that his wife may not remarry until his death is known or until enough time has passed that he could no longer be alive. The second is that she may remarry once she has observed her waiting period after waiting four years. It is therefore impermissible to introduce a third position.
Abū Bakr al-Abharī’s statement that the maximum duration of pregnancy is four years is the apparent purport of the Second Book of Manumission in al-Mudawwana, and it is also al-Shāfiʿī’s position. Ibn al-Qāsim held that its maximum duration is five years. Ashhab reported from Mālik that it is seven years, in accordance with the report that Ibn ʿAjlān’s wife once gave birth after seven years. Abū Hanīfa, his companions, and al-Thawrī held that its maximum duration is two years. Al-Tahāwī preferred this view, citing as evidence the words of Allah, Mighty and Majestic:
“His gestation and weaning take thirty months.” [Al-Ahqāf: 15]
This is because Allah places gestation and weaning together within thirty months, so neither their combined duration nor either one individually can exceed that limit. Since all the other views exceed it, only the view whose proponents keep both within it remains. It is therefore the most likely to be correct.