Chapter on the Missing Person and the Ruling Concerning His Wife

In the view of Mālik and his colleagues, a missing person (mafqud) falls into four categories.

1. The first is the one about whom ʿUmar ibn al-Khaṭṭāb—may Allah be pleased with him—ruled that his wife is to wait four full years, then observe a waiting period of four months and ten days, after which she becomes lawful for marriage to others. This refers to a man who disappears inside Muslim territory while traveling for trade or other ordinary pursuits and whose whereabouts are unknown. When the wife submits her case to the ruler, the latter, after investigating the matter, fixes a term of four years for her. Once those four years pass, she observes the waiting period of four months and ten days, after which the deferred portion of her mahr (bridal gift) is paid to her if it has fallen due, and she is free to marry.

If she does remarry, separation between her and her first husband is deemed to have taken place automatically, with no verbal formula issued by her or by the judge. Some jurists, however, maintain that the separation is not effected until the second husband consummates the marriage.

If the first husband had disappeared before consummation, she is entitled to half of her mahr; and if his death is later confirmed, the remainder of the mahr is completed for her. Likewise, if so much time elapses that a man of his age could not normally remain alive, and she has not married after the four months and ten days, the rest of her mahr is given to her. Another opinion holds that the entire mahr should be delivered to her at that point; should her husband subsequently return, he may reclaim half of it—although others say that he may not reclaim anything.