On this basis, it becomes clear how the waiting period constitutes a right of the husband: during it, he is entitled to take his wife back. This is unlike requiring a waiting period after an irrevocable divorce following which she may become lawful to him through a marriage contract. In that case, he has no such right, since marriage is permissible only with the consent of both parties.

For this reason, Abū Hanīfa applied his principle consistently. Since, in his view, divorce is either irrevocable or revocable, and a husband may pronounce an irrevocable divorce without his wife’s consent, he regarded the right to take her back as belonging exclusively to the husband: he may relinquish it or retain it. The waiting period, by contrast, is not something he may waive, so it cannot constitute a right belonging to him.

This supports the view that khulʿ (marital separation in return for compensation) is not divorce, for this entails treating the two alike. It also supports the view that, in khulʿ, the husband has no right to require the woman to observe a waiting period as he does in divorce. Rather, she must wait for one menstrual period to establish that her womb is clear. This requirement is a right owed to Allah, intended to establish that the womb is clear, and is therefore indispensable for every woman who has had intercourse, whether within a valid marriage, an invalid marriage, or through slave ownership. It is required to establish that her womb is clear of the first man’s semen, lest his semen mix with another man’s.

Likewise, according to the sounder of the two scholarly views, this is required of a woman who has had illicit intercourse, on account of the second man’s semen, lest it mix with that of the man who committed illicit intercourse with her. This is the position of Mālik and Ahmad.

If a woman separated by khulʿ is required to observe only one menstrual period as her waiting period, this applies all the more to a woman in an invalid marriage, since the man has no right to take her back and she has no entitlement to maintenance.

If it is objected:

“In the report concerning Tulayha, ʿUmar ibn al-Khattāb said: ‘Any woman who marries during her waiting period must complete the waiting period for her husband if the second man has not consummated the marriage with her. If he has consummated it, she must complete the remainder of her waiting period for the first husband and then observe a waiting period for the second.’

“Likewise, it is reported that ʿAlī ruled that she must complete the remainder of her waiting period for the first husband and then observe a fresh waiting period for the second. Once her waiting period has ended, she may marry if she wishes, or refrain from marrying if she wishes?”