Section Eleven: The Impediment of the Waiting‐Period (ʿIddah)

The jurists are unanimously agreed that it is unlawful to contract marriage with a woman who is still in her waiting-period—whether that period be due to menstruation, pregnancy, or the prescribed months of widowhood.

They differed, however, about a man who marries such a woman and then consummates the marriage. Mālik, al-Awzāʿī, and al-Layth rule that the couple must be separated and that she can never again be lawful for him. Abū Ḥanīfah, al-Shāfiʿī, and al-Thawrī also require separation, yet they allow the man to marry her anew once her ʿiddah has fully elapsed.

The root of their disagreement is whether the decision of a Companion counts as authoritative proof. Mālik relates, through Ibn Shihāb from Saʿīd ibn al-Musayyib and Sulaymān ibn Yasār, that ʿUmar ibn al-Khattāb separated Ṭulayḥah al-Asadiyyah from her husband Rāshid al-Thaqafī when he learned that Rāshid had married her during her waiting-period from a previous husband. ʿUmar proclaimed:

“Any woman who is married while still in her ʿiddah: if the man has not yet consummated with her, they are to be separated; she then completes the remainder of her first ʿiddah, after which he may join those who seek her hand. If he has consummated with her, they are likewise separated; she then finishes the rest of her first ʿiddah, observes a new ʿiddah for the second husband, and the two of them may never reunite.”

Saʿīd added, “She retains her bridal-gift for what has been taken of her.” Some scholars bolster this verdict with a tenuous analogy, arguing that the uncertainty introduced into lineage makes the case resemble that of the couple who invoke mutual imprecation (mulāʿanah); yet the very basis of that analogy is disputed.

Reports from ʿAlī and Ibn Masʿūd show that they disagreed with ʿUmar on the issue. The governing principle is that a woman does not become permanently forbidden unless clear evidence exists from the Qur’an, the Sunnah, or the consensus of the Ummah.

In certain narrations ʿUmar at first pronounced her forbidden and ordered the dowry placed in the public treasury. When that ruling reached ʿAlī, he objected, whereupon ʿUmar retracted: he made the dowry incumbent upon the husband and did not forbid the woman to him. This was transmitted by al-Thawrī from Ashʿath, from al-Shaʿbī, from Masrūq. The opinion that she becomes forbidden merely by the contract, without consummation, is therefore deemed weak.

All scholars agree that a pregnant captive woman may not be approached until she delivers, the reports to that effect from the Messenger of Allah ﷺ being recurrent and unassailable. They differed, however, about the legal status of any child born if intercourse does occur: does the child automatically become free or not? The majority maintain that he does not.

The point of contention lies in whether the man’s semen plays an effective role in the child’s formation. If one says it does, then in some sense the child is his son and could not be enslaved; if one says it does not, that consequence does not follow.

It is related from the Prophet ﷺ that he said, “How can a man enslave a child whom he has nourished in hearing and sight?”

As for the impediment arising from pronouncing divorce three times, that discussion will follow in the Book of Divorce.