the waiting period - shaykh fawzan's fiqh book

7/28/2019 The Waiting Period - Shaykh Fawzan's Fiqh Book

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CHAPTER

Waiting Period

The waiting ""nod i$ a """,le of divoru", and il a ltplly sprc iCoedpiod of wailing afln divor. The proofs of the wai tlng.,mod arefrom tM NOOIe Qurln . the Su"mrJr (Prophetic Tradition) and the Const:nrusofMwlim schola rs.

Ill.. proofs in the Noble Qu.lo , A ll ah, Exalted be He, say"-Divorced wom.n ",",,/n il l ,..tIWnl (j.e" do no/ r"marry) for

periodl .. AI.Baqarah: 228)He alw $a)'$;

-A..d tIrnM: om.. no ", l IP' n/Wct mnut ..."'icHt '''''''''g ,.,u,...,..,ell - i f 1011 dOflb/, IMIf ,Itn, puiod i, '''tu ,"olltl.,. ,,/'Id/alsD for/ I""",,, ' '"0 MW "ot "" ".stTlUltN. Alld fo ,..re PrYJfUl ltt, ,lld, le"" I, ulllil theY,,\I birtlr .

(Q url n: 4)


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VII: DIVORCEThis concerns Ihe cases of separalion bdWffn wife Ind husband in li fe.

However, concerning Ihe case of the death of the hu,\)and, Allah , E.r.altC1lHe, says:1/wR ..ha "re 11'"" in 1'1It""! YONtuld wivQ'

"'hind - thcy. {thc "';w" shll11] "",it llUrmonu" alld tCII/d4y,r(Qur'An; AI-Baq"uh: 234)

The proofderi'ltd from the SII"""" is the /!4dlth narnllroon Ihe aUlhorityof ' A'ishah (may Al lah be pleased with her) who $a id:"&lr/rah IVIIS ordered (by the Prophet) 10 COllnl Ihru monlhlyperiods as a ..aIling f/friod."'(Rdatcd. by Ibn Mljah)

There are otherhadi,h, indicating the same legal ruling.As fo r the wisdom bdlirl


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The verbto cm l l l' in the vent men to C(lunt ing the peri0d5 O monthsto determine Ihe time or the waiting period. and -""ve .oudtM '''tm H implieshiving $tXull intercourlt with them. noble verw indicateJ th at isno waiting period for the woman divorced befou consummating marriage.and theu is no di..pute am ong scholars OVer this ruling. The mentioning ofthe "bd/,,,/,,t""""''''' in the vuw is a nfeunce 10 the majority of thewives of Muslims. sinn Muslim scholan unanimoU$ly that the..., il;no difference het " Un the believing women and thoK of the People of t/u:ScriptUu (Christian Or Jewish women) concerning this ruling.

However. when the husband d ies. his must C(lunt her prescribedWilting period whether he has had comummated the marriage or nO(. forAllah. Exalted be He. 1lI)'l1 :"Alld those ",ho ..re , .. ee .. III de . h ..mOllg you ....d leavcwlYft beh/lld - the)'> {the wJ,,", shall} wait/our IHOII ' ' 'J and" " {days } (Qurln: AI8aqarah: 234)

Moreover. there il ; no lep l la t or proof to dilTenntiate betwn Iheconsummated and unconsummated muTiages in Ihis respl.

There aU six kinds of women in their waiting period:1l The pregnant widow or the pregnant divorced woman2) The non-pregnant widow3) The divorced woman wh o still has her monthly menstrual period


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". VI1, OlVORCEscholars unanimou.Jy agrN d th.t the waiting period for the pregnant womanends when she give. birth, whether she is a divorae d or a widow.

However. the waiting period for the pregnant woman does notend if she miscarries, and hOT embryo is a me1l' unformed lump of flesh. Th.waiting period of the pregnant woman ends when she gives birth to a newbornthat belongs to Ih. separatro (by divorce. death, etc.) husband; thus. herwaiting period does not end if ,he gives birth to a child that does not belong tothe separated hushand. For aampl e, if the husband cannot have children dueto a con genital ddect or young age, orwhen the child is born alive in a periodof pregnancy 1 . than six months an.r consummating their marriage, thischild does not belong to this husband. Therdore, her waiting periodd""s not ond by giving birth in such cases.

Th. minimum period of pregnancy is six month. . . . Allah, Exolted be He, says: .. and hi_tutatlon imd m'Wling {pniodJ i . thirtynwnths .(Qur';ln: AlAhqH: 15)

A,d''Molhen /tiny "urse fi.".) breastfeedJ their child...,,, twocomplete years " (Qur'an: Al-Baqarah: 233)

I f we subtract the period of breastfeeding, twentyfour month" fromthirty months, the remaining i. six months which is the minimum l'


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Ch.p' ' '?: W.j[ing I>.:,iodThese rulings indicate the comprehensivenrs.sof the Shad 'ah that observes

and protects the rights of the embryos. Then, all prai"" is due to Allah, Lordof the worlds., for His granti ng us this just and comprehensive Shari'ah. Weask Allah to help us adhere to His and be sincere to Him in religion,although the disbelievers dislike it.

Concerning the nonpregnant widow, her wa iting period i. four monthsand ten days. whether her husband ha., died beforeor after the consummationof marri age. and whether she i. fit to have ""xual intercourse or not. This isbream. Allah. Exalted be He, says:

"A nd who ort taUn in death am''''g you and /ea".wju s behind - they, {the wives, shall] waitfour months andte.. {days] .." (Qu r'an: Al-Saqarah: 234)

lbnul-Qayy im said:"The WIliting period prfscrlped for the widow is obligatory. whetherht r mMriage has been consummaled or nol. IJccording to thegeneroli tyof he lega l texts 1nl h e Noble Qur :In. th e S unnah (Prophet ieTrodition) as well a.'I the agreement Muslims. The

period for the widow is not merely intended for making sureof nor is i l an absolute act of worship. sillet eyery rulingin the Shad has ilS wisdom which is understandable to SOmeand ambiguous to others."'

AI -Wadr and other scholau stated, unanimously agr. . that thewaiting period for the non -pregnant widow is four months and ten days'-'

As for the widowed sLave girl, she must observe hal f the waiting period ofthe widow; that is two months and five days (including five nights). Thisis hecau"" the Prophd's Companions (may Allah bt pleased with them all)unanimously agree


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VI I: DIVORCE

There are some Rulings pertaining to the Widowwidowmust spend her prescribed waiting period in the house she

was stiying it the deat h of her husband, and it is impermissible for her to leavethll house w:epI for I legal excUK, ou the ProphC't (PBUH) Jaid to a widow :"Stay at your horn",:'

In :anthu namollon, he (PBUH) sa id:"SIll)' durlllg )\Iltr MJiting fWriod in tht hOIol$t wltm Ift'r'tinfonrrd afyour hu"band\: delUlt."(Related by the Compilers of the Sunan) '"

if the widow Is obliged 10 move Into another house, she Isto go whell'w, she desires in order to avert any harm. For example,she can leaw the Ilouse If she fears fOf herself from staying lhell' or u forced10 Inve it , or if the hO\lK is rtnted and its owna asks her to leavr Of asb forI higher I l 'nl .

It ;1 pennissible for the widow 10 go OUI from her house for he r needsduring the daytime, nOl It night when evil incidents Il/"e expected, for theProphet (PBUH) &lid to the widows observing waiting periods:

"Talk as mu ch you WlInt at tk I",m t ofone ofyou and when youwant to sltep. Ihtn twryOl! ofyou should rtlurn 10 hu home.""Moreover, it ill obligatory for the widow 10 show the Ioigns ofhe. IDOllmingby avoiding an that whkh may I/"OUie othen' desire IOWIrds 00 01"mm bet

IttI"ICtift to look I t With rq.ard to this. the greM tcholar Imba . . . .uI-Qarrlm(may Allah mercy on him) said:"This (the widows mou rning 0,," htr latt husband) imiiC4/!!S IheptrJtion and wisdom of Iht lsiamic Sharl ah ((slami' LA",) andhow i. thoroughly look. .. ier th", of Mus/i",.. Mourningtht dtetastd JjgnifltltM big disasler afdtath which prop't UJ td 10uo.ggtmtt urnsivdy during tlv i'rt-lslo.mi, Period of Ignoran,,,,(rhllt!hi!iyy


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pmience, thankfulness, turning back to Allah by saying 'Indeed,Wt belong to AI/oh and ind. .d to Him we will return: Since thedi",st.r of deaJh naturally causes jU>in and sadness to the ptopleof the deceased, Allah, tlu Wise, the Acquainted.


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VII, DIVORCE'fhf, pr. .aibcd waiting period fo r a diVOf'Ced woman, who iI not !=Snanf

and .till 11... . m...,strual period" is fhree "",,,,frual periods, for Allah, EDitedbe He, saY"QVillOrud women rl'mai" in Mlmng {I,e., do no/ 1?marry} forIhrl't pniodl, IInd /f /, "01 '11 ..."" for lhe", IDto"ctlll ...hal AUah/n thrir .. 0"'"..... (Qur'An: .... ls..qarah: 228)

This noble verw indi(;ltnlhal thedivon:ro woman n.ust observe a waitingperiod of three meMtrual periods. and thm w can MTII.rry if she likes.. Theword "periods" mm lioned in the wrse ",fen 10 men$lrualperiods, a5 narntedfrom ' Umar ' Ali Ibn AbU. Dlib, and Ibn ' Abbjs (may Allall bepleased witll them all), The Prophet (PBUH) used tile ltame word 10 toIhe same meaning as he (PBUH) said 10 a woman In a Slate of ;,tibAdah (Le. awoman having vasinal bJding other than mmslruation):

. . . When )I1ur menslrutJlion com"" do /10/ perfo,m /'To.,,""-"Moreover. Ih.,., Ihlft menstrual periods must be and Ihus if

Iht woman is divorced during her meMtrual period, this period will not becounted a5 one of the thl" menstrual periods pres


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Ch.p"" 9, W.i[ing l'

"The waiting period prescribed for the divorced s/ae girl who hasbtgoltm a child to her master is two menstrual periods. If she hasnot mell$tnwled, he' wailillg period is IWO montlls,"This is because the months substitute for the me nstrual periods. 5mescholars maintain that waiting period of such a WOman is only one and half

months. Their proof oflhi s is that the waiting period prescribed for the slavegi rl is half that obse rved by the freewoman, and the wailing period for thefreewoman who has not menstruated is three months; thus, the menopausalslave woman is one month and a half.

Co ncerning the divorce


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." VII, OIVORCEThe HCond cast is when such a _man knows IM cause that prevents her

mmstrual.,. .riod. such as iIInm. brnstfding. or taking a medic:iMthi.! pn:YI:nts mensln.l2l:ion. In th is (list, ,he is to wail until tkno longer nisI>., and thm if silt men struatn again. she is 10 observea wailing per iod ofthl' memtrual.,..riods. However, if she does nO!menstruate, she is to observe wailing period of one year just as thewoman who dDe not know the ClIUst that pn:vents her menstrualp


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As for the wife ofa missing man who has disappeared and it is not certainthat he i! alivr, she is to wait a sufficient period, se t by the judge, for him tocome backor until something certain is known about him. During this period,me is still considered his wife, since thte principle acted upon in this case isthat he is considered alive. When thi' f'C'r iod expires. he is legally considereda dead person, and his wife is to observe the waiting period prescribed incase of death, which is four months and ten days. Thil i I the judgment theCompanions (may Allah be pleased with them all) gavr in such a case. Iml mIbuw-Qayyim said:

... The Rightly-guidM Caliphs gave judgments conuming the wifeof 1I missing m


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Endnotes

1 1bn (lW7) [2153112 Th" i . the waiting period ftn. non-pregnan t widow_3 See; M-M"ghni (11/B4).4 See: "Zdur _lumlq (l21!7l) 171ll1 1_17 The MuMjin;'n: The Emigrant" those Mu.

the waiting period - shaykh fawzan's fiqh book

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