Definition and types of ‘ Iddah
“Iddah Versus Maqāṣid Ash-Sharī ‘ah
Observance of ‘Iddatu’l Wafāt
Observance of ‘Iddatu’ṭ- Ţalāq
Interpretation of the Phrase “Ḥattā yaḍa‘na Ḥamlahunna”
Notes and References
The observance of ‘Iddah is a phenomenon which comes in Islam as an attendant result of divorce and death of one’s husband. As divorce and death occur from time to time, the observance of ‘Iddah also becomes a re-occurring issue for debates among scholars and Muslims across times and climes. It is on this basis that the paper set out to interrogate the maqṣad (rationale) behind the observance of ‘Iddah after divorce or the death of one’s husband. Though the periods for the observance of both ‘Iddatu’ṭ-Ţalāq and ‘Iddat’ul-Wafāt have been categorically stated in the Qur’ān, there is a conditional phrase which may likely utter these prescribed periods as contained in the Qur’ān. This phrase, as examined in this paper is simply put as “hattā yaḍa‘na ḥamlahunna” and translated as “until delivery”. This phrase, the application and the interpretation of which formed the background of this paper was critically examined with a view to establishing whether or not pregnancy or its delivery is a factor considerable to terminate the observance of ‘Iddah unconditionally. From the re-interpretation and cross-examination of this paper, it was argued that pregnancy or delivery is a condition which bestows the mercy of extension on the observance of ‘Iddah rather than being a phenomenon which abruptly brings it to a close. The paper therefore concluded, going by referenced instances from the Sunnah and other sources of Sharī‘ah, that the prescribed periods of ‘Iddah in the Qur’ān are the minimum required durations which can be extended by pregnancy.
Keywords : ‘Iddah, maqṣad, divorce, delivery, pregnancy.
‘Iddah is an Islamic concept which is used in relation with divorce and in respect of death of husband. This paper therefore is an attempt at a re-interpretation of a particular Qur’ānic phrase which relates to the interpretation of the period of ‘ Iddah. This phrase, as captured in the title of this paper and as contained in the Qur’ān is “ḥattā yaḍa‘na ḥamlahunna.” This can simply be translated as “Until Delivery” or until they (the pregnant women) put to bed”. This attempt is with a view to ensuring a well-thought jurisprudential delivery of fatwah in the motifs, the motives and durations of ‘ Iddatu’t-Talāq and ‘ Iddatu’l Wafāt.
Therefore, with references from the Qur’ān and other secondary sources of Sharī‘ah, the paper will have a look at the definition of ‘ Iddah, types of ‘ Iddah and how they are observed, as a premise into examining different interpretations of the phrase “ḥattā yaḍa‘na ḥamlahunna.” With thorough examination of these interpretations, a pragmatic convergence point, from divergence of opinions will be evolved to ensure a re-interpretational conclusion.
Definition and types of ‘Iddah
‘ Iddah is an Arabic word which literally means number, numerous and many. Technically, it connotes a legally prescribed period of waiting, during which a woman may not remarry after being widowed or divorced.1 This definition, as given by David Cowan, draws an important attention to waiting periods occasioned by “death” and “divorce” which are referred to as al-Wafāt and aṭ-Ţalāq respectively in the title of this paper. By interpretation, ‘Iddaṭu’t-Ţalāq means waiting period of a woman as a result of divorce. As for ‘Iddatu’l Wafāt, it is as a result of her husband’s death, before she can be permitted to remarry. This is in accordance to Espisto who describes ‘ Iddah as the period a woman must observe after the death of her spouse or after a divorce during which she may not marry another man. 2 Going by Hashimi, ‘Iddah literally means to keep count3 and according to Chadhry it is an interval which a woman is bound to observe between the termination by death or divorce of one matrimonial alliance and the commencement of another.4
In short, it must be pointed out here that out of the three types of ‘Iddah recognized in Islam, the most commonly observed two by Muslim women; ‘Iddatu’ṭ-Ţalāq and ‘Iddatu’l Wafāt are the main focus of this paper. The third being ‘Iddatul Mafqūd, the observance of which may be said to be quite unpopular as it is engendered by disappearance of the husband for a substantial period of time, the minimum and the maximum of which varies from one school of thought to another.5 For instance, the Hanafi School provides that we should wait as long as the missing person may be considered alive on the basis of a usual life-span of between seventy and ninety years. As for the Maliki School, between four and seven years is sufficient for ‘Iddah to take effect. Shafi’ and Hanbali Schools maintain that if the person has been missing in a difficult circumstance such as in a battle, shipwreck, earthquake and flood, the judge will order a four-year waiting period for his wife and his heirs from the time the issue was brought to him.6
“Iddah Versus Maqāṣid Ash-Sharī ‘ah
There is no act or deed in Islam which does not have a cause, reason or rationale behind it. This, in Fiqh parlance, is referred to as Maqāṣid ash-Sharī‘ah. Maqāṣid, the singular of which is Maqṣad refers to objectives and purposes behind Islamic rulings. For a number of Islamic legal theorists, it is an alternative expression to people’s interests (Maṣāliḥ) 7. Maqāṣid which include reform of the pillars of faith and spreading awareness that Islam is the religion of pure natural disposition, reason, knowledge, wisdom, proof, freedom, independence, socio-political and economic reform and women’s rights8. Generally speaking, a Maqṣad is not valid unless it leads to the fulfilment of some good (Maṣlaḥah) or the avoidance of some mischief (Mafsadah)9. Therefore, the following purposes are primarily associated with the observance of ‘ Iddah:
i. To establish pregnancy and the legitimate paternity of the baby before re-marriage is allowed, in case of divorce or death.
ii. To give room for reconciliation, as divorce is the last resort in the prescribed measures of resolving family problems between couple, only in the case of divorce.
iii. To mourn the deceased husband whose companionship is terminated by death.
iv. To await the return of a disappeared husband for a period of time before the woman remarries.
v. To guarantee the adequate care and support needed by a woman during pregnancy, especially after the death of her husband.
From the above, it can be deduced that more than one reason or factor can necessitate the observance of ‘ Iddah. For example, the need for reconciliation and establishment of pregnancy in Ţalāq; mourning, establishment of pregnancy and the need to stabilise and recover from the shock of the sudden death of the husband in ‘Iddatu’l Wafāt. This is therefore a very important parameter which must be considered and verified at every point in time for detailed and correct determination of “how” and “duration” of any given type of ‘ Iddah.
Observance of ‘Iddatu’l Wafāt
The prescribed waiting period for the ‘Iddah occasioned by the husband’s death is expressly and clearly stated as four months and ten days in a portion of the Qur’ān which reads:
And those of you who die and leave wives behind them, they (the wives) shall wait for four months and ten days, then when they have fulfilled their terms, there is no sin on you if they (the wives) dispose of themselves in a just and honourable manner (i.e for another marriage). And Allah is well acquainted with what you do. (Q.2:234)
Furthermore, the Qur’ān emphasizes the “must’ attached to the observance of this ‘ Iddah and in the course of the ‘ Iddah, the permissibility of suitors or admirers of the woman in ‘ Iddah to make their proposals without consummating the marriage while the ‘Iddah is still on. This can also be after the expiration of the waiting period. This injunction reads:
And there is no sin on you if you make or conceal a hint of betrothal or conceal it in yourself, Allah knows that you will remember them, but do not make a promise of contract with them in secret except that you speak an honourable saying according to the Islamic law. And do not consummate the marriage until the prescribed is fulfilled. And know that Allah knows what is in your minds, so fear Him and know that Allah is Oft-Forgiving, Most Forbearing. (Q.2:235)
However there is no any other Qur’ānic portion or verse which gives any other duration of ‘ Iddatu’l Wafāt different from four months and ten days and for whatever reason. At this point, a relevant fundamental question needs to be asked. Is the prescribed period (four months and ten days) for ‘ Iddatu’l Wafāt not too long? As the answer to that question will be given later, it is also pertinent to amplify the fact that this period of waiting is not meant to inflict injury of any form on the concerned widow, as may be perceived by some people who see the period as that of imprisonment and double punishment for the widow. The bottom line is that decency, discipline, moderation and decorum must be displayed in everything by a woman in ‘Iddah so as to fulfil the purpose (Maqṣad) of its observance examined ab-initio.
Observance of ‘Iddatu’ṭ- Ţalāq
This type of ‘ Iddah which is observed as a result of divorce is seen as being prominent and popular so much so that it is given a whole chapter (Sūratu’ṭ-Ţalāq) in the Qur’ān. As pointed out before now, it is a period to give room for reconciliation among other things, before divorce can take its full course.
Let us also make it known that it is the last stage of corrective measures prescribed in the Qur’ān to re-mould a misbehaving wife or rehabilitate a breaking family/marriage. The first measures include counselling, sexual withdrawal, slight beating or sanction and involvement of two mediators, one each from both families as stipulated in Qur’ān 4 verses 34-35. At the failure of all these corrective mechanisms, divorce can then be pronounced or implied and followed by the observance of ‘Iddah by the concerned woman.
During the period of ‘ Iddatu’ṭ- Ţalāq , the husband must make adequate provision for the comfort of the wife whether the Ţalāq is revocable or not but with complete withdrawal from conjugal right ordained by Allah to be discharged to the wife. Resumption of this conjugal duty while the woman is observing her ‘ Iddah under the revocable clause or condition, signifies mutual reconciliation of their differences, revocation of the divorce and the end of the ‘ Iddah. This is an important maqṣad of ‘Iddah which makes ‘ Iddatu’ṭ- Ţalāq revocable. With this, the husband reconciling with his wife stands another chance of revocability, following the same process, before the divorce now becomes irrevocable. After this, whether both parties like it or not, divorce must take effect and the woman must be parted with to marry another man. Allah says:
The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness. And it is not lawful to take back any of your bridal money which you have given them except when both parties fear that they would be unable to keep the limits ordained by Allah…..
And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband. Then if the other husband divorces her, it is no sin on both of them that they re-unite, provided they feel that they can keep the limits ordained by Allah. These are the limits of Allah which He makes plain for the people who have knowledge. (Q.2:229 -230)
At this juncture, it is necessary to note that the habit of pronouncing divorce two simultaneous times within seconds or minutes is a wrong interpretation of “aṭ-Ţalāq Marratān” (the divorce is twice), expressed in the above quoted Qur’ānic portion. The interpretation is not only wrong but also un-Islamic to act in accordance to it.