The jurists also disagreed about two matters: the waiting period of a pregnant woman, and the waiting period of a slave-woman who, during the four months and ten nights, experiences no menstruation—what is her ruling?

Mālik held that the completion of this waiting period is conditional upon her experiencing at least one menstrual flow within that time. If no menstruation occurs, he regards her as a woman whose condition is suspect (mustaʾrabah), and she must then wait the full term of a pregnancy.

A second report from him says that she may fail to menstruate and yet not be considered suspect if her normal cycle exceeds the length of the waiting period. A woman whose habit is to menstruate only after more than four months, however, is nonexistent—or at best exceedingly rare.

There is further disagreement transmitted from him regarding such a woman should she actually be found. Some said she must wait until she menstruates, whereas Ibn al-Qāsim narrated from Mālik that once the term of four months and ten nights has elapsed and no pregnancy is apparent, she may marry. The majority of the jurists of the major centers—Abū Ḥanīfah, al-Shāfiʿī, and al-Thawrī—follow this latter view.

The second issue concerns a pregnant woman whose husband dies. The majority—and, indeed, all the jurists of the provincial centers—maintain that her waiting period ends when she delivers, relying on the general wording of the Almighty’s statement,

“And those who are pregnant—their term is to deliver their burden” (al-Ṭalāq 65:4),

even though the verse was revealed concerning divorce. They also cite the ḥadīth related by Umm Salamah: Subayʿah al-Aslamiyyah gave birth half a month after her husband’s death, whereupon the Messenger of Allah—peace and blessings be upon him—told her, “You have become lawful; marry whomever you wish.”

Mālik, however, reported from Ibn ʿAbbās that her waiting period is the later of the two termini—that is, she must observe whichever is longer: either delivery or the completion of the four months and ten nights. A similar view is related from ʿAlī ibn Abī Ṭālib—may Allah be pleased with him. Their proof is that this best reconciles the general import of the verse on pregnant women with the verse on widowhood.

SECOND CHAPTER: The Waiting Period for Women Held in Bondage

If a slave-woman whose owner lawfully cohabited with her dies, her status falls into one of four categories: she may have been his wife, his right-hand possession (concubine), an umm walad (the mother of his child), or neither an umm walad nor a wife.

1. If she was a slave-wife, the majority say her waiting period is half that of a free woman, drawing an analogy with blood-money. The Ẓāhirīs, however, say that her waiting period equals that of a free woman, and they apply the same rule to divorce, on the basis of general evidence.

2. If she is an umm walad, Mālik, al-Shāfiʿī, Aḥmad, al-Layth, Abū Thawr, and others rule that her waiting period is one menstrual cycle, and this was also the opinion of Ibn ʿUmar. Mālik adds that if she is among those who do not menstruate, she waits three months, and she is entitled to housing. Abū Ḥanīfah, his companions, and al-Thawrī say her waiting period is three menstrual cycles, a view likewise attributed to ʿAlī and Ibn Masʿūd. Others have said that her waiting period is half that of a free widow; still others hold that it is the full four months and ten nights.

Mālik’s proof is that she is neither a wife, to observe the widow’s waiting period, nor a divorcee, to observe three menstruations. What remains is merely to ascertain the state of her womb, and that is accomplished by a single menstruation, by analogy with a slave-woman whose master dies—an issue on which there is no disagreement.

Abū Ḥanīfah’s proof is that the waiting period became obligatory after she had been emancipated while she was neither a wife nor a slave. She is therefore not subject to the widow’s waiting period, nor to that prescribed for slaves; rather, her womb must be cleared by the waiting period laid down for free women.