As for those who require her to observe the waiting period of widowhood, their evidence is the ḥadīth transmitted from ʿAmr ibn al-ʿĀṣ, who said:

“Do not confuse us about the practice of our Prophet. The waiting period of an umm walad when her master dies is four months and ten nights.”

Imām Aḥmad judged this report weak and did not act upon it.

Others obligate her to observe half the waiting period of a free woman, taking their cue from the slave-wife. The root of the disagreement is that there is no explicit text on the matter and that her status oscillates between that of a slave and that of a free woman. The analogy that likens her to the slave-wife is weak, and weaker still is the view that likens her to the divorced free woman—this latter being the position of Abū Ḥanīfah.

SECOND SECTION: The Consolatory Gift (Muṭʿah)

• The majority hold that the muṭʿah is not obligatory for every divorcee.

• Some of the Ẓāhirīs maintain that it is obligatory in every case.

• Others consider it merely recommended, not compulsory; this is the view of Mālik.

Those who deem it obligatory in certain instances differ among themselves:

– Abū Ḥanīfah: It is due in every case where the husband divorces before consummation and no specific dowry has been fixed.

– Al-Shāfiʿī: It is obligatory for every woman divorced at the husband’s initiative, except one for whom a dowry was already stipulated and who is divorced before consummation—this is also the view of the majority of jurists.

Abū Ḥanīfah argues from the Almighty’s words:

“O you who believe! When you marry believing women and then divorce them before you touch them, they have no waiting period for you to reckon; so provide for them and release them in a gracious manner.” (al-Aḥzāb 33:49)

From this he concludes that muṭʿah is required whenever there has been no consummation. He also cites:

“If you divorce them before you have touched them, while you have already fixed for them a bridal due, then give them half of what you fixed.” (al-Baqarah 2:237)

Thus it is understood that when a dowry has been stipulated and divorce occurs before consummation, no muṭʿah is due—for if no dowry is obligatory, then a fortiori no muṭʿah is due. Indeed, by my life, this is a compelling inference: where no dowry is owed, muṭʿah takes its place, whereas when half the dowry is returned to the husband’s hand, nothing further is due her.

Al-Shāfiʿī, however, understands the commands regarding muṭʿah—such as the Almighty’s statement,

“Provide for them—the man of means according to his means and the man of limited income according to his means—a fair provision.” (al-Baqarah 2:236)

—as applying universally to every divorcee, save the one for whom a dowry was stipulated and who is divorced before consummation.

The Ẓāhirīs take the command as wholly general.

The majority further hold that a woman who secures a khulʿ has no right to muṭʿah, since she herself pays compensation, just like the woman divorced before consummation after a dowry has been specified. The Ẓāhirīs reply that the ruling is divine legislation: she both pays and receives.