Fourth Treatise: Rulings Concerning Divorcées
This treatise is composed of two chapters:
- The waiting period (ʿiddah).
- The consolatory gift (mutʿah).
Chapter One – The Waiting Period (ʿIddah)
The discussion in this chapter is arranged under two sections:
• Section One: the waiting period of wives.
• Section Two: the waiting period of those held in bondage.
Section One – The Waiting Period of Wives
The inquiry here falls into two parts:
(a) determining the length of the waiting period, and
(b) detailing its specific rulings.
Part One – Determining the Length
Every wife is either a freewoman or a slave-girl, and each, when divorced, is either a woman with whom the marriage has been consummated or one with whom it has not.
- A wife whose marriage has not been consummated has no waiting period at all, by unanimous agreement, in light of the Almighty’s words:
“Therefore you have no waiting period that you should reckon with them” (33:49).
- A wife whose marriage has been consummated is of two kinds: one who menstruates and one who does not.
• A non-menstruating woman is either a minor or one who has passed menopause.
• A menstruating woman is either pregnant, experiencing her normal cycles, one whose menses have ceased, or a woman suffering continuous bleeding (mustahāḍah).
Those whose menses have stopped while they are still of menstruating age are further divided into women who suspect pregnancy—meaning that movement is sensed in the womb—and those who do not. The latter subgroup is itself divided into women whose reason for cessation is known, such as breastfeeding or illness, and women whose reason is unknown.
For menstruating freewomen who continue upon their usual cycles, the waiting period is three qurūʾ; for pregnant women it lasts until delivery; and for post-menopausal women it is three months. There is no disagreement on this point, for it is expressly stated in the Almighty’s words,
“The divorced women shall wait, keeping themselves, for three qurūʾ” (2:228),
and in His words,
“As for those of your women who have despaired of menstruation—if you are in doubt…” (65:4).
From the term qurūʾ in these verses the jurists differed: what does it designate?
• Some said it refers to the periods of purity between two blood flows.
• Others said it denotes the menstrual blood itself.
Those who held that qurūʾ are periods of purity include, among the jurists of the regional centers, Mālik, al-Shāfiʿī, the majority of the scholars of Madinah, Abū Thawr, and others; and among the Companions, Ibn ʿUmar, Zayd ibn Thābit, and ʿĀʾishah.
Those who held that qurūʾ are the menstrual flows themselves include, among the jurists of the regional centers, Abū Ḥanīfah, al-Thawrī, al-Awzāʿī, Ibn Abī Laylā, and several others; and among the Companions, ʿAlī, ʿUmar ibn al-Khaṭṭāb, Ibn Masʿūd, and Abū Mūsā al-Ashʿarī.