Welcome to my ongoing exposition of Shariah Law… we infidels hear about it and read about it, but rarely do we actually READ Sharia itself. Better we actually know what we’re talking about before we comment in public, correct?
This information presented here in this diary is meant to be for education only, with no approval or disapproval of same intended. That is left to the various comments and commentators.
The words of Sharia (and there are many) speak enough for themselves without additional thoughts from me. All editing notes, such as definitions, are shown in [brackets.]
Source Material: Sharia Law text : www.al-islam.com/laws; broader glossary: Islamic-Dictionary.com
Today’s topic: Marriage and Divorce, Sharia-Style.
Of special note:
Marriage (Part I of II)
* The relation between man and woman becomes lawful by contracting marriage. There are two kinds of marriages:
(i) Permanent marriage
(ii) Fixed-time marriage
In a permanent marriage, the period of matrimony is not fixed, and it is forever. The woman with whom such a marriage is concluded is called da’ima (i.e. a permanent wife).
In a fixed time marriage (Mut’ah), the period of matrimony is fixed, for example, matrimonial relation is contracted with a woman for an hour, or a day, or a month, or a year, or more. However, the period fixed for the marriage should not exceed the span of normal lives of the spouses, because in that case, the marriage will be treated as a permanent one. This sort of fixed time marriage is called Mut’ah or Sigha.
Marriage Formula, or Contract
2372. * Whether marriage is permanent or temporary, the formal formula must be pronounced; mere tacit approval and consent, or written agreement, is not sufficient. And the formula (Sigha) of the marriage contract is pronounced either by the man and the woman themselves, or by a person who is appointed by them as their representatives to recite it on their behalf.
2373. The representative should not necessarily be a male. A woman can also become a representative to pronounce the marriage formula.
2374. * As long as the woman and the man are not certain that their representative has pronounced the formula, they cannot look at each other as Mahram (like husband and wife), and a mere probable suspicion that the representative might have pronounced the formula is not sufficient. And if the representative says that he has pronounced the formula, but his assertion does not satisfy the parties concerned, it will not be deemed sufficient.
2375. If a woman appoints a person as her representative so that he may, for example, contract her marriage with a man for ten days, but does not specify the day from which the period of ten days would commence, the representative can contract her marriage with that man for ten days from any day he likes. However, if the representative knows that the woman intends a particular hour or day, he should pronounce the formula according to her intention.
2376. One person can act as the representative of both sides for reciting the formula of permanent or temporary marriage. It is also permissible that a man may himself become the representative of a woman and contract permanent or temporary marriage with her. However, the recommended precaution is that two separate persons should represent each side, for the formula of marriage contract.
The Method of Pronouncing the Marriage Formula
2377. * If a woman and a man themselves want to recite the formula of permanent marriage, the woman should first say: Zawwajtuka nafsi ‘alas sidaqil ma’lum (i.e. I have made myself your wife on the agreed mahr) [ED NOTE: The mahr is an amount of money or property that is given to the wife by the husband as a non-returnable dowry in the marriage contract], and then the man should immediately respond thus: Qabiltut tazwij (i.e. I accept the marriage). In this way, the marriage contract will be in order. And if a woman and a man appoint other person to act as their representatives for pronouncing the formula of marriage, and if, for example, the name of the man is Ahmad and that of the woman is Fatimah, the representative of the woman should first say: Zawwajtuka muwakkilaka Ahmad muwakkilati Fatimah ‘alas sidaqil ma’lum (i.e. I have given to your client Ahmad in marriage my client Fatimah on the agreed mahr) and thereafter the representative of the man should immediately respond thus: Qabiltut tazwijali Muwakkili Ahmad ‘alas sidaqil ma’lum (that is, I accepted this matrimonial alliance for my client Ahmad on the agreed Mahr). Now the marriage contract is in order. And, on the basis of recommended precaution, it is necessary that the words uttered by the man should conform with those uttered by the woman; for example, if the woman says: Zawwajituka …… (i.e. I have made myself your wife) the man should also say: Qabituttazwija ……(i.e. I accept the matrimonial alliance) and not Qabitun Nikaha.
2378. * It is permissible for a man and a woman to recite the formula of the temporary marriage (Mut’ah), after having agreed on the period of marriage and the amount of Mahr [non-refundable “dowry” payment]. Hence, if the woman says: Zawwajtuka nafsi fil muddatil ma’lumati ‘alal mahril ma’lum (i.e. I have made myself your wife for an agreed period and agreed Mahr), and then the man immediately responds thus: Qabiltu (i.e. I have accepted), the marriage will be in order. And the marriage will also be in order if they appoint other persons to act as their representatives. First, the representative of the woman should say to the representative of the man thus: Matta’tu muwakkilati muwakkilaka fil muddatil ma’lumati ‘alal mahril ma’lum (i.e. I have given my client to your client in marriage for the agreed period and the agreed Mahr), and then the representative of the man should immediately respond thus: Qabiltut tazwija li muwakkili hakaza (i.e. I accepted this matrimonial alliance for my client this way).
Conditions of Pronouncing Nikah (the Formula, or Contract)
2379. * There are certain conditions for the Nikah recited for marriage. They are as follows:
(i) On the basis of precaution, the formula (Nikah) of marriage contract should be pronounced in correct Arabic. And if the man and the woman cannot pronounce the formula in correct Arabic, they can pronounce the Nikah in any other language, and it is not necessary to appoint any representatives. But the words used in translation must convey strictly the meaning of “Zawwajtu” and “Qabiltu”.
(ii) The man and the woman or their representatives, who recite the Nikah, should have the intention of Insha’ (i.e. reciting it in a creative sense, making it effective immediately). In other words, if the man and the woman themselves pronounce the formula, the intention of the woman by saying: Zawwajtuka nafsi’ should be that she effectively makes herself the wife of the man; and by saying: “Qablitut tazwija” the man effectively accepts her as his wife. And if the representatives of the man and the woman pronounce the Nikah, their intention by saying: ‘Zawwajtu’ and ‘Qablitu’ should be that the man and the woman who have appointed them as their representatives, have effectively become husband and wife.
(iii) The person who pronounces the Nikah (whether he pronounces it for himself or has been engaged by some other person as his representative) should be sane, and as a precaution, he should be baligh also.
(iv) If the Nikah is pronounced by the representatives or the guardians of the man and the woman, they should identify the man and the woman by uttering their names or making intelligible signs towards them. Hence, if a person has more than one daughters, and he says to a man: Zawwajtuka Ihda Banati (i.e. I have given away one of my daughters to you as your wife) and the man says: Qabiltu (i.e. I have accepted) the marriage contract is void, because the daughter has not been identified.
(v) The woman and the man should be willing to enter into a matrimonial alliance. If, however, the woman ostensibly displays hesitation while giving her consent, but it is known that in her heart, she is agreeable to the marriage, the marriage is in order.
2380. If, while reciting the Nikah, even one word is pronounced incorrectly, as a result of which its meaning is changed, the marriage contract would be void.
2381. * If a person pronouncing Nikah comprehends its general meaning, and has a clear intention of effecting that meaning, the Nikah will be valid. It is not necessary for him to know the exact meaning of each word, or to know the laws of Arabic grammar.
2382. If Nikah of a woman is pronounced to a man without her consent, but later both man and woman endorse the Nikah, the marriage is in order.
2383. If the woman and the man, or any one of them, is coerced into matrimony, and they give consent after the Nikah has been pronounced, the marriage is in order, although it is better that the Nikah be repeated.
2384. * The father and the paternal grandfather can contract a marriage on behalf of his minor son or daughter, or on behalf of an insane son or daughter, if they are baligh. And after the children have become baligh or the insane has become sane, he can endorse or abrogate it, if the contracted marriage involves any moral lapse or scandal. And if the marriage contract does not involve any moral lapse or scandal, but the na-baligh son or daughter calls off the marriage, then as an obligatory precaution, a Talaq or a renewed Nikah, whatever the case may be, must be recited.
2385. * If a girl has reached the age of bulugh and is virgin and mature (i.e. she can decide what is in her own interest) wishes to marry, she should, obtain permission from her father or paternal grandfather, although she may be looking after her own affairs. It is not, however, necessary for her to obtain permission from her mother or brother.
2386. * In the following situations, it will not be necessary for a woman to seek the permission of her father or paternal grandfather, before getting married:
(i) If she is not a virgin.
(ii) If she is a virgin, but her father or paternal grandfather refuse to grant permission to her for marrying a man who is compatible to her in the eyes of Shariah, as well as custom.
(iii) If the father and the grandfather are not in any way willing to participate in the marriage.
(iv) If they are not in a capacity to give their consent, like in the case of mental illness etc.
(v) If it is not possible to obtain their permission because of their absence, or such other reasons, and the woman is eager to get married urgently.
2387. * If the father or the paternal grandfather contracts marriage on behalf of his na-baligh son, the boy, upon attaining bulugh, should pay maintenance of his wife. In fact, he should start paying her maintenance before becoming baligh, when he is able to consummate the marriage. And the wife should not be too young to have any sexual relation with the husband. And in the situation other than these, there is a strong indication that she is entitled to maintenance from the husband, therefore a compromise should be carried out as a precaution.
2388. * If the father or the paternal grandfather contracts a marriage on behalf of his na-baligh son, they should pay the Mahr if the boy does not own any means, or if either of them undertakes to pay the Mahr himself. In other situations, the father or the paternal grandfather can pay Mahr from the boy’s wealth, but it should not exceed the proper usual Mahr customarily given in similar cases. But if the circumstances demand that higher Mahr be paid, they can pay it from the boy’s wealth, and not otherwise, unless the boy approves it after having become baligh (reaching puberty).
Occasions When Husband or Wife Can Nullify Nikah
2389. * If the husband comes to know after Nikah that his wife had, at the time of Nikah, any one of the following six deficiencies, he can annul the marriage:
(i) Insanity, even if it is intermittent.
(v) Being crippled, even if it is not to the extent of immobility.
(vi) Presence of flesh or a bone in the woman’s uterus, which may or may not obstruct sexual intercourse or pregnancy. And if the husband finds that the wife at the time of Nikah, suffered from ‘Ifdha’ – meaning that her urinary and menstrual tract have been one, or her menstrual passage and rectum have been one, he cannot annul the marriage. As an obligatory precaution, he will have to pronounce talaq if he wants to dissolve the marriage.
2390. * A woman can annul the Nikah in the following cases, without obtaining divorce:
(i) If she comes to know that her husband has no male organ.
(ii) If she finds that his penis has been cut off before or after the sexual intercourse.
(iii) If he suffers from a disease which disables him from sexual intercourse, even if that disease was contracted after the Nikah, or before or after the sexual intercourse.
2390. * In the following situations, if a wife refuses to continue with the matrimony and wishes to dissolve the marriage, then as a matter of precaution, the husband or his guardian will solemnise the divorce:
(i) If she comes to know after the Nikah, that the husband was insane at the time of Nikah; or if he becomes insane after the Nikah, before or after consummation of the marriage.
(ii) If she finds out that at the time of Nikah, the husband had been castrated.
(iii) If she learns that he suffered at the time of Nikah from leprosy or leucoderma.
Note: And if the husband is incapable of sexual intercourse, and she wishes to annul the marriage, it will be necessary for her to approach the Mujtahid or his representative, who may allow the husband a period of one year, and if it is found that he was not able to have sexual intercourse with her or with any other woman, the wife can annul the marriage.
2391. * If the wife annuls the marriage because of the husband’s inability to have sexual intercourse, the husband should give her half of her Mahr. But, if the man or the wife annuls the marriage because of one of the other deficiencies enumerated above, and if the marriage has not been consummated, he will not be liable for anything. But if the marriage was consummated, he should pay her full Mahr. If the husband annuls the marriage due to the deficiencies mentioned in rule 2389, he will not be liable for anything if he has not had sexual intercourse with her. But if he has had sexual relation with her, then he has to pay full Mahr.
Women With Whom Matrimony is Haraam
2393. Matrimonial relation is haraam with women who are one’s Mahram, for instance, mother, sister, daughter, paternal aunt, maternal aunt, niece (one’s brother’s or sister’s daughter) and mother-in-law.
2394. If a man marries a woman, then her mother, her maternal grandmother, her paternal grandmother and all the women as the line ascends are his Mahram, even if he may not have had sexual intercourse with the wife.
2395. If a person marries a woman, and has sexual intercourse with her, the daughters and grand-daughters (daughters of sons, or of daughters) of the wife and their descendants, as the line goes low, become his Mahram, irrespective of whether they existed at the time of his marriage, or were born later.
2396. If a man marries a woman, but does not have sexual intercourse with her, the obligatory precaution is that as long as their marriage lasts, he should not marry her daughter.
2397. The paternal and maternal aunt of a man, and the paternal and maternal aunt of his father, and the paternal and maternal aunt of his paternal grandfather, and the paternal and maternal aunt of his mother, and the paternal and maternal aunt of his maternal grandmother, as the line ascends, are all his Mahram.
2398. The husband’s father and grandfather, however high, are the wife’s Mahram. Similarly the husband’s sons and the grandsons (son of his sons or of daughters), however low, are her Mahram, regardless of whether they existed at the time of her marriage or were born afterwards.
2399. If a man marries a woman (whether the marriage be permanent or temporary) he cannot marry her sister, as long as she is his wife.
2400. If a person gives a revocable divorce to his wife, in the manner which will be explained under the rules relating to ‘Divorce’, he cannot marry her sister during the Iddah. But if it is an irrevocable divorce, he can marry her sister. And if it is the Iddah of temporary marriage, the obligatory precaution is that one should not marry his wife’s sister during that period.
2401. A man cannot marry the niece (brother’s or sister’s daughter) of his wife without her permission. But if he marries his nieces without his wife’s permission, and she later consents to the marriage, it will be in order.
2402. * If the wife learns that her husband has married her niece (brother’s daughter or sister’s daughter) and keeps quiet, and if she later consents to that marriage, it will be in order. If she does not consent later, the marriage will be void.
2403. * If before marrying his maternal or paternal aunt’s daughter, a person commits incest (sexual intercourse) with her mother, he cannot marry that girl on the basis of precaution.
2404. * If a person marries his paternal or maternal aunt’s daughter, and after having consummated the marriage, commits incest with her mother, this act will not become the cause of their separation. And the same rule applies if he commits incest with her mother after the Nikah, but before having consummated the marriage with her, although the recommended precaution is that in this circumstance he should separate from her by giving her divorce.
2405. * If a person commits fornication with a woman other than his paternal or maternal aunt, the recommended precaution is that he should not marry her daughter. In fact, if he marries a woman, and commits fornication with her mother before having sexual intercourse with her, the recommended precaution is that he should separate from her, but if he has sexual intercourse with her, and thereafter commits fornication with her mother, it is not necessary for him to get separated from her.
2406. * A Muslim woman cannot marry a non-Muslim, and a male Muslim also cannot marry a non-Muslim woman who are not Ahlul Kitab. However, there is no harm in contracting temporary marriage with Jewish and Christians women, but the obligatory precaution is that a Muslim should not take them in permanent marriage. There are certain sects like Khawarij, Ghulat and Nawasib who claim to be Muslims, but are classified as non-Muslims. Muslim men and women cannot contract permanent or temporary marriage with them.
2407. If a person commits fornication with a woman who is in the Iddah of her revocable divorce, as a precaution that woman becomes haraam for him. And if he commits fornication with a woman who is in the Iddah of temporary marriage, or of irrevocable divorce, or in the Iddah of death, he can marry her afterwards, although the recommended precaution is that he should not marry her.
The meaning of revocable divorce and irrevocable divorce, and Iddah of temporary marriage, and Iddah of death, will be explained under the rules relating to ‘Divorce’.
2408. * If a person commits fornication with an unmarried woman and who is not in Iddah, as a precaution, he cannot marry her till he has sought forgiveness from Allah, and repented. But if another person wishes to marry her before she has repented, there is no objection. If a woman is known as a lewd person, it will not be permissible to marry her till she has genuinely repented, and similarly, it is not permissible to marry a man known for his lustful character, till he has genuinely repented. If a man wishes to marry a woman of loose character, he should, as a precaution, wait till she becomes Pak from her menses, irrespective of whether he had committed fornication with her, or anyone else had done so.
2409. If a person contracts Nikah with a woman who is in the Iddah of another man, and if the man and the woman both know, or any one of them knows that the Iddah of the woman has not yet come to an end, and if they also know that marrying a woman during her Iddah is haraam, that woman will become haraam for the man forever, even if after the Nikah the man may not have had sexual intercourse with her.
2410. If a person contracts Nikah with a woman who is in the Iddah of another man, and has sexual intercourse with her, she becomes haraam for him forever even if he did not know that she was in her Iddah, or did not know that it is haraam to marry a woman during her Iddah.
2411. * If a person marries a woman knowing that she has a husband, he should get separated from her, and should also not marry her at any time afterwards. And the same rule will apply, as a precaution, if he did not know that the woman was already married, and had sexual intercourse with her after Nikah.
2412. If a married woman commits adultery, she on the basis of precaution, becomes haraam permanently for the adulterer, but does not become haraam for her husband. And if she does not repent, and persists in her action (i.e. continues to commit adultery), it will be better that her husband divorces her, though he should pay her Mahr.
2413. In the case of the woman who has been divorced, or a woman who contracted a temporary marriage and her husband forgoes the remaining period of marriage, or if the period of her temporary marriage ends, if she marries after some time, and then doubts whether at the time of her second marriage, the Iddah of her first husband had ended or not, she should ignore her doubt.
2414. * If a baligh person commits sodomy with a boy, the mother, sister and daughter of the boy become haraam (prohibited) for him. And the same law applies when the person on whom sodomy is committed is an adult male, or when the person committing sodomy is na-baligh. But if one suspects or doubts whether penetration occurred or not, then the said woman would not become haraam.
2415. * If a person marries the mother or sister of a boy, and commits sodomy with the boy after the marriage, as a precaution, they will become haraam for him.
2416. If a person who is in the state of Ehram (a “sacred state,” which is one of the acts to be performed during Hajj, or pilgrimage to Mecca) marries a woman, the Nikah is void, and if he knew that it was haraam for him to marry in the state of Ehram, he cannot marry that woman again.
2417. * If a woman who is in the state of Ehram marries a man who is not in the state of Ehram, her Nikah is void. And if she knew that it was haraam to marry in the state of Ehram, as an obligatory precaution, she should not marry that man thereafter.
2418. * If a man does not perform Tawafun Nisa (which is one of the acts to be performed during Hajj and Umrah Mufradah) his wife and other women become haraam for him. Also, if a woman does not perform Tawafun Nisa, her husband and other men become haraam for her. But, if they (man or woman) perform Tawafun Nisa later, they become halal.
2419. * If a person contracts Nikah with a non-baligh [pre-pubescent] girl, it is haraam to have sexual intercourse before she has completed her nine years. But if he commits sexual intercourse with her, she will not be haraam for him when she becomes baligh, even if she may have suffered Ifza [deficiencies making her invalid for marriage] (which has been described in rule 2389), though as a precaution, he should divorce her.
2420. A woman who is divorced three times, becomes haraam for her husband. But, if she marries another man, subject to the conditions which will be mentioned under the rules pertaining to ‘divorce’, her first husband can marry her again after her second husband dies, or divorces her, and she completes the period of Iddah.
Rules Regarding Permanent Marriage
2421. * For a woman with whom permanent marriage is contracted, it is haraam to go out of the
house without the permission of her husband, though her leaving may not violate the rights of the husband. Also she should submit herself to his sexual desires, and should not prevent him from having sexual intercourse with her, without justifiable excuse. And as long as she does not fail in her duties, it is obligatory on the husband to provide for her food, clothes and housing. And if he does not provide the same, regardless of whether he is able to provide them or not, he remains indebted to the wife.
2422. * If the wife does not fulfil her matrimonial duties towards her husband, she will not be entitled for the food, clothes or housing, even if she continues to live with him. But if she refuses to obey occasionally, the common verdict is that even then she cannot claim any entitlement from her husband. But this verdict is a matter of Ishkal. In any case, there is no doubt that she does not forfeit her Mahr.
2423. Man has no right to compel his wife to render household services.
2424. * The travelling expenses incurred by the wife must be borne by the husband, if they exceed her expenses at home, and if she had travelled with the husband’s permission. But the fares for travel by car or by air etc. and other expenses, which are necessary for a journey, will be borne by the wife, except when the husband is himself inclined to take her along with him on a journey, in which case he will bear her expenses also.
2425. * If the husband who is responsible for the wife’s maintenance, does not provide her the same, she can draw her expenses from his property without his permission. And if this is not possible, and she is obliged to earn her livelihood, and she cannot take her case to the Mujtahid, who would compel him (even by threatening him with imprisonment) to pay the maintenance, it will not be obligatory upon her to obey her husband while she is engaged in earning her livelihood.
2426. * If a man, for example, has two wives and spends one night with one of them, it is obligatory on him to spend anyone of four nights with the other as well; in situation other than this, it is not obligatory on a man to stay with his wife. Of course, it is necessary that he should not totally forsake living with the wife. And as a precaution, a man should spend one night out of every four with his permanent wife.
2427. * It is not permissible for the husband to abandon sexual intercourse with his youthful, permanent wife for more than 4 months, except when sexual intercourse is harmful to him, or involves unusually more effort, or when the wife herself agrees to avoid it, or if a prior stipulation to that effect was made at the time of Nikah by the husband. And in this rule, there is no difference between the situations when the husband is present, or on a journey, or whether she is a wife by permanent or temporary marriage.
2428. If Mahr is not fixed in a permanent marriage, the marriage is in order. And in such case, if the husband has sexual intercourse with the wife, he should pay her proper Mahr which would be in accordance with the Mahr usually paid to women of her category. As regards temporary marriage, however, if Mahr is not fixed the marriage is void.
2429. If at the time of Nikah for permanent marriage, no time is fixed for paying Mahr, the wife can prevent her husband from having sexual intercourse with her before receiving Mahr, irrespective of whether the husband is or is not able to pay it. But if she once agrees to have sexual intercourse before taking Mahr, and her husband has sexual intercourse with her, then she cannot prevent him afterwards from having sexual intercourse without a justifiable excuse.
Mut’ah (Temporary Marriage)
2430. Contracting a temporary marriage with a woman is in order, even if it may not be for the sake of any sexual pleasure.
2431. The obligatory precaution is that a husband should not avoid having sexual intercourse for more than four months with a wife of temporary marriage.
2432. * If a woman with whom temporary marriage is contracted, makes a condition that her husband will not have sexual intercourse with her, the marriage as well as the condition imposed by her will be valid, and the husband can then derive only other pleasures from her. However, if she agrees to sexual intercourse later, her husband can have sexual intercourse with her, and this rule applies to permanent marriage as well.
2433. A woman with whom temporary marriage is contracted, is not entitled to subsistence even if she becomes pregnant.
2434. * A woman with whom temporary marriage is contracted, is not entitled to share the conjugal bed of her husband, and does not inherit from him, and the husband, too, does not inherit from her. However, if one or both lay down a condition regarding inheriting each other, such a stipulation is a matter of Ishkal as far as its validity is concerned, but even then, precaution should be exercised by putting it into effect.
2435. If a woman with whom temporary marriage is contracted, did not know that she was not entitled to any subsistence and sharing her husband’s conjugal bed, still her marriage will be valid, and inspite of this lack of knowledge, she has no right to claim anything from her husband.
2436. * If a wife of temporary marriage goes out of the house without the permission of her husband, and the right of the husband is in anyway violated, it is haraam for her to leave. And if the right of her husband remains protected, it is a recommended precaution that she should not leave the house without his permission.
2437. * If a woman empowers a man that he may contract a temporary marriage with her for a fixed period, and against a specified amount of Mahr, and instead, that man contracts a permanent marriage with her, or contracts a temporary marriage with her without specifying the time or amount of Mahr, the marriage will be void. But if the woman consents to it on understanding the position, then the marriage will be valid.
2438. In order to become Mahram (with whom marriage contract becomes haraam and is treated to be one of the close relatives), a father or a paternal grandfather can contract the marriage of his na-baligh son or daughter with another person for a short period, provided that it does not involve any scandal or moral lapse. However, if they marry a minor boy or a girl who is not in anyway able to derive any sexual pleasure during the period from the spouse, then the validity of such a marriage is a matter of Ishkal.
2439. If the father or the paternal grandfather of an absent child, marry it to someone for the sake of becoming Mahram, not knowing whether the child is alive or dead, the purpose will be achieved only if during the period fixed for marriage, the child can become capable of consummating marriage. If it later transpires that it was not alive at the time the marriage was contracted, it will be considered void, and the people who had apparently become Mahram will all become Na-Mahram.
2440. If a husband gifts the wife of Muta’h with the period of her temporary marriage, thus releasing her, and if he has had sexual intercourse with her, he should give her all the things he agreed to give her. And if he has not had sexual intercourse with her, it is obligatory on him to give her half the amount of Mahr, though the recommended precaution is that he should give her full amount of Mahr.
2441. If a man contracted a temporary marriage with a woman, and the period of her Iddah has not ended yet, he is allowed to contract a permanent marriage with her or renew a contract for temporary marriage with her.
Looking At Non-Mahram
2442. * It is haraam for man to look at the body or hair of the Non-Mahram [unrelated] women, regardless of whether it is with the intention of pleasure or not, and whether there is a fear of falling into sinful act or not. It is also haraam to look at the faces and the arms, upto the wrists, of such women with the intention of pleasure, or if there is fear of falling into sinful act, and the recommended precaution is that one should not look at their faces or arms even without such an intention. Similarly, it is haraam for a woman to look at the body of Non-Mahram man, except places which are customarily not covered, like, his face, hands, head, neck and feet. She can look at these parts of a man without the intention of deriving any pleasure, or if there is no fear of being entrapped in any sinful act.
2443. * To look at the body of a woman who would not care for Hijab, even if she were advised, is not haraam, provided that it does not lead to sinful act or sexual pleasure, and excitement, nor is it with that intention; and in this rule, there is no distinction between a Muslim and a non-Muslim woman; and also between those parts, like their faces, their hands which they normally do not cover, and other parts of their bodies.
2444. * Woman should conceal her body and hair from a man who is non-Mahram, and as an obligatory precaution, she should conceal herself even from a Na-baligh boy who is able to discern between good and evil, and could probably be sexually excited. But she can leave her face and hands upto wrists uncovered in the presence of Na-Mahram, as long as it does not lead him to casting a sinful, evil glance or her to doing something forbidden; for in both these cases, she must cover them.
2445. It is haraam to look at the private parts of a baligh Muslim, even if it is seen behind the glass or reflected in the mirror, or clean water etc. As an obligatory precaution, it is also haraam to look at the genitals of a non-Muslim, and of a discerning Na-baligh child. However, wife and her husband can look at the entire body of each other.
2446. If a man and woman who are Mahram of each other, do not have the intention of sexual pleasure, they can see the entire body of each other excepting the private parts.
2447. * A man should not look at the body of another man with the intention of sexual excitement, and also, it is haraam for a woman to look at the body of another woman with the intention of sexual excitement.
2448. A man who is acquainted with a Na-Mahram woman, should not, as a precaution, look at her photograph etc., provided that the woman is not a heedless, commonplace person.
2449. *If a woman wants to give an enema to another woman, or to a man other than her husband, or to clean her/his private parts with water, she should cover her hand with such a thing that her hand would not touch the private parts of the other woman or man. And the same applies to a man who wants to give an enema to another man or a woman other than his wife, or to clean his/her private parts with water.
2450. * If a woman is rendered helpless by her disease, and if the only helpful treatment to her can be given by a male doctor, she can refer to him. And if that male doctor must look at her to be able to treat her, or to touch her for that matter, there is no objection. However, if he can treat her by looking at her, he should not touch her body, and if he can treat her by touching her body, he should not look at her.
2451. * If a person is obliged to look at the private parts of a patient for his/her medical treatment, he should, on the basis of obligatory precaution, place a mirror opposite him/her and look into it. However, if there is no alternative but to look directly at his/her private parts, there is no objection. Similarly, if the duration of regarding the genitals in the mirror would be longer than looking at them directly, the latter method be adopted.
Miscellaneous Rules Concerning Marriage
2452. If a person gets entangled in haraam acts owing to his not having a wife, it is obligatory for him to marry.
2453. * If the husband makes it a condition before Nikah, that the woman should be a virgin, and it transpires after Nikah that she is not virgin, he can repudiate the marriage. However, he can deduct and take the difference between the Mahr usually paid for a virgin woman and the one who is not a virgin.
2454. * It is haraam for a man and a woman who are not Mahrams, to be together at a private place where there is no one else, if it is feared to lead to immorality and scandal, even if it is a place where another person can easily arrive. But if there is no fear of any evil, there is no objection.
2455. If the man fixes the Mahr of the woman at the time of Nikah, but intends not to give it, the marriage contract is in order, but he will be indebted to her.
2456. * A Muslim who renounces Islam and adopts a non-Muslim faith, is an apostate, and they are of two types: Fitri and Milli. Fitri apostate is one whose parents or one of them were Muslims when he was born, and he himself was also a Muslim, till after having reached the discerning age, and thereafter he converted to become a non-Muslim. A Milli is exactly the opposite.
2457. * If a woman becomes an apostate after marriage, her marriage becomes void, and if her husband has not had sexual intercourse with her, she is not required to observe any Iddah. And the position will be the same if she apostatises after sexual relation, but she had reached menopause (Ya’isa), or if she was a minor. And if she had not reached menopause, she should observe Iddah as will be explained in the rules of ‘divorce’. And it is commonly held that if she becomes a Muslim during her Iddah, her marriage remains intact. However, it is improbable that this should be valid, and therefore, precaution should not be abandoned. A Ya’isa is a woman who has reached 50 years of age, and because of that advanced age, stops seeing Haidh and does not expect to see it again in her life.
2458. * If a man becomes a Fitri apostate after Nikah, his wife becomes haraam for him and she should observe Iddah of death [a woman’s prescribed waiting period after divorce or death of husband. It is 4 months and 10 days] in the manner which will be explained in the rules relating to ‘divorce’.
2459. * If a man becomes a Milli apostate after Nikah, his marriage becomes void. And if he has not had sexual intercourse with his wife, or if she has reached menopause, or if she is a minor, she need not observe Iddah. But if he apostatises after having sexual intercourse with his wife, who happens to be of the age of women who normally have menstrual discharge, she should observe Iddah of ‘divorce’ which will be mentioned under the rules relating to ‘divorce’. And it is commonly held that if her husband becomes a Muslim before the completion of her Iddah, their marriage remains intact. However, it is improbable that this be correct, but, precaution should not be abandoned.
2460. If the woman imposes a condition at the time of Nikah that her husband will not take her out of the town, and the man also accepts this condition, he should not take her out of that town against her will.
2461. If a woman has a daughter from her former husband, her second husband can marry that girl to his son, who is not from this wife. Also, if a person marries his son to a girl, he himself can marry the mother of that girl.
2462. * If a woman becomes pregnant as a result of fornication or adultery, it is not permissible for her to have an abortion.
2463. * If a man commits fornication with a woman who has no husband, nor is she in any Iddah, and later marries her, and a child is born to them, and they do not know whether the child is the outcome of legitimate relation or otherwise, the child will be considered legitimate.
2464. * If a man does not know that a woman is in her Iddah and marries her, and if the woman, too, does not know (that she is in her Iddah) and a child is born to them, the child is legitimate and according to Shariah belongs to both of them. However, if the woman was aware that she was in her Iddah, and that during Iddah marriage is not permissible, the child according to Shariah belongs to the father, and in either case their marriage is void, and they are haraam for each other.
2465. * If a woman says that she has reached menopause, her word may not be accepted, but if she says that she does not have a husband, her word is acceptable, except when she is known to be unreliable, in which case, investigation will be necessary.
2466. * If a man marries a woman after her assertion that she does not have a husband, and if some one claims later that she was his wife, his claim will not be heeded unless it is proved to be true according to Shariah laws.
2467. * Until a son or a daughter completes two years of his/her age, his/her father cannot separate him/her from his/her mother. And as a precaution, a child should not be separated from its mother till it is seven years of age.
2468. * If a person proposing marriage is known for his virtues and faith, then it is recommended that his proposal should not be rejected. The Prophet (s.a.w.a.) is reported to have said: “Whenever you receive a proposal for marriage on your daughter from a man whose virtue and piety pleases you, then give her hand in his in marriage. For if you do not do this way, great scandals and lapses will fill the earth.”
2469. * If a woman compromises her Mahr with her husband, on a condition that he will not marry another woman, it is obligatory upon him that he does not marry another woman, and that the wife should not claim her Mahr.
2470. If an illegitimate person marries, and a child is born to him, that child is legitimate.
2471. If a man has sexual intercourse with his wife during fast in the month of Ramadhan or when she is in her menses, he commits a sin, but if a child is conceived, it is legitimate.
2472. If a woman who is sure that her husband died while on a journey, marries another man after completing the Iddah of death, (which will be explained in the rules relating to ‘divorce’) and later her first husband returns from journey, she should immediately separate herself from her second husband, and she will be halal for her first husband. But, if the second husband has had sexual intercourse with her, she should observe Iddah and the second husband should give her proper Mahr equal to that of the women similar to her category, but she is not entitled to subsistence during Iddah.
Rules Regarding Suckling a Child
2473. * If a woman suckles a child with the conditions which will be mentioned in rule 2483, that child becomes Mahram of the following persons:
(i) The woman herself (i.e. the woman who suckles it) and she is called Riza’i mother (milk mother).
(ii) The husband of the woman (for the milk belongs to him); he is called Riza’i father (milk father).
(iii) Father and mother of that woman and all in their upward line, even if they are milk father and milk mother.
(iv) The children born of that woman, or those who are born to her later.
(v) The children of the children of that woman, however low, regardless of whether they are born of her children or her children had suckled them.
(vi) The sister and brother of that woman, even if they are her milk sister and milk brother.
(vii) Paternal uncle and paternal aunt of that woman, even if they are by milk, i.e. suckling.
(viii) Maternal uncle and maternal aunt of that woman, even if they are by milk i.e. suckling.
(ix) The descendants of the husband of that woman, (to whom milk belongs) even if they may be his milk children.
(x) Father and mother of that husband (to whom milk belongs), however high.
(xi) Sister and brother of the husband, (to whom milk belongs) even if they may be his milk sister and brother.
(xii) Paternal uncle and paternal aunt and maternal uncle and maternal aunt of the husband, (to whom milk belongs) however high, even if they are his milk uncles and aunts.
There are other persons also (details regarding whom will be given in the following rules) who become Mahram on account of sucking milk.
2474. If a woman suckles a child with the condition which will be mentioned in rule 2483, the father of the child cannot marry the daughters of that woman, but it is permissible for him to marry her milk daughters, although the recommended precaution is that he should not marry them. Moreover, he cannot marry the daughters of the husband also (to whom milk belongs), even if they may be his milk daughters. And if any one of them happens to be his wife already, his marriage becomes void.
2475. If a woman suckles a child with the conditions mentioned in rule 2483, the husband of that woman (to whom milk belongs) does not become Mahram of the sisters of that child, but the recommended precaution is that he should not marry them. Also, the relatives of the husband do not become Mahram of the sister and brother of that child.
2476. If a woman suckles a child, she does not become Mahram of the brothers of that child. Moreover, the relatives of that woman do not become Mahram of the brother and sister of the child suckled by her.
2477. If a person marries a woman who has suckled a girl fully, and if he has had sexual intercourse with her, he cannot marry that milk girl.
2478. If a person marries a girl, he cannot marry the woman who has suckled her fully.
2479. A man cannot marry a girl who has been suckled fully by his mother or paternal grandmother. Also, if his step-mother suckles a girl from the milk belonging to his father, he cannot marry that girl. And if a person contracts Nikah with a suckling girl, and thereafter, his mother or his paternal grandmother or his step-mother suckles that girl, the Nikah becomes void.
2480. A man cannot marry a girl who has been suckled fully by his sister, or by his brother’s wife. And the position is the same if that girl is suckled by that man’s niece (sister’s daughter or brother’s daughter) or the granddaughter of his sister or the granddaughter of his brother.
2481. If a woman suckles the child of her daughter i.e. her granddaughter, or grandson, the daughter will become haraam for her own husband, and the same applies if she suckles the child of the husband of her daughter from another wife. But if a woman suckles the child of her son, the wife of her son who is the mother of the suckling child, does not become haraam for her husband.
2482. If the step mother of a girl suckles the child of her husband, with the milk that belongs to the girl’s father, the girl becomes haraam for her husband regardless of whether the child is the offspring of that very girl or of some other woman.
Conditions of Suckling Which Causes to be Mahram
2483. The following are the eight conditions under which suckling child becomes the cause of being Mahram.
(i) That the child sucks the milk of a woman who is alive. It is of no consequence if milk is drawn from the breast of a woman who is dead.
(ii) That the milk of the woman should not be the product of fornication or adultery. Hence, if the milk for an illegitimate child is breastfed to another child, the latter will not become Mahram of anyone.
(iii) That the child sucks milk directly from the breasts of the woman. Hence, if milk is poured into its mouth, it has no consequence.
(iv) That the milk be pure and unadulterated.
(v) That the milk be of one husband only. Hence, if a breast-feeding woman is divorced and then she marries another man by whom she becomes pregnant, if the milk of the first pregnancy still continues from the breast till she gives birth to the other child, and she feeds any child eight times with the milk from her first pregnancy before giving birth, and feeds the same child seven times with the milk from the second pregnancy, after giving birth, that child will not become Mahram of anyone.
(vi) That the child does not throw up the milk due to illness. If it vomits the milk, the suckling has no effect.
(vii) The suckling should be of such quantity that it could be said that the bones of the child were strengthened and the flesh allowed to grow. And if that cannot be ascertained, then if a child suckles for one full day and night, or if it suckles fifteen times to its fill, as will be explained later, it will be sufficient. But if it is known that in spite of the child having suckled for one full day and night, or for fifteen times, the milk has not had any effect on the bones and the growth of flesh of the child, then one should not ignore exercising the precaution.
(viii) That the child should not have completed two years of his age, and, if it is suckled after it has completed two years of its age, it does not become Mahram of anyone. In fact, if, for example, it sucks milk eight times before completing its two years, and seven times after completing its two years, it does not become Mahram of anyone. But, if milk continues from the breast for more than two years since a woman gave birth to her child, and she suckles the child continuously, that child will become Mahram of those who have been mentioned above.
2484. It is necessary that the suckling child should not have taken any other food, or sucked milk from any other person, during one full day and night. However, it it takes very little food, so little that one may not say that it has taken any food in between, there is no harm in it. Also, it should have suckled the milk of only one woman fifteen times, and during these fifteen times, it should not have sucked the milk of any other woman. And it should have sucked milk every time without a gap, though, if while suckling milk it pauses to breathe, or waits a little, in a manner that from the time it started till the end, it is taken as one suckling, there is no objection.
2485. If a woman suckles a child from the milk of her husband, and when she later marries another man, suckles another child from the milk of her second husband, those two children do not become Mahram of each other, although it is better that they do not marry each other.
2486. If a woman suckles several children from the milk of one husband, all of them become Mahram of one another, as well as of the husband, and of the woman who suckled them.
2487. If a man has more than one wife, and every one of them suckles a child in accordance with the conditions mentioned above, all those children become Mahram of one another, as well as of that man, and of all those wives.
2488. If a man has two nursing wives, and if, for example, one of them suckles the child eight times and the other suckles it seven times, the child does not become Mahram of any one of them.
2489. If a woman gives full milk to a boy and a girl from the milk of one husband, the sisters and brothers of that girl will not become Mahram of the sisters and brothers of that boy.
2490. * A man cannot marry without the permission of his wife, those women who became her nieces (sister’s daughter or brother’s daughter) owing to the suckling of milk. Also, if a person commits sodomy with a boy, he cannot marry his milk daughter, sister, mother and paternal grandmother by means of sucking milk. This rule applies also in the situation where an active partner in sodomy is not baligh, or when the passive partner is baligh.
2491. A woman who suckles the brother of a person, does not become Mahram of that person, although the recommended precaution is that he should not marry her.
2492. * A man cannot marry two sisters even if they may be milk sisters, that is, they have become sisters by means of suckling milk. If he marries two women and understands later that they are sisters, if he married them at one and the same time, both the Nikah will be void. But if he did not marry them at one time, the first marriage will be valid, and the second will be void.
2493. * If a woman suckles the following persons from her husband’s milk, her husband does not become haraam for her, although it is better to observe precaution.
(i) Her own brother and sister.
(ii) Her own paternal uncle and paternal aunt, and maternal uncle and maternal aunt.
(iii) The descendants of her paternal uncle and her maternal uncle.
(iv) Her nephew (brother’s son).
(v) Brother or sister of her husband.
(vi) Children of her sister, or children of her husband’s sister.
(vii) Paternal uncle and paternal aunt and maternal uncle and maternal aunt of her husband.
(viii) Grand children of another wife of her husband.
2494. If a woman suckles the paternal aunt’s daughter, or maternal aunt’s daughter of a man, she (the woman who suckles) does not become Mahram of that man. However, the recommended precaution is that he should refrain from marrying that woman.
2495. If a man has two wives, and one of them suckles the paternal uncle’s son of the other wife, the wife who suckled does not become haraam for her husband.
How To Breast Feed A Child
2496. The child’s mother is the best person to suckle a child. It is better that she does not claim any award from her husband for suckling the child, although it is good that he should reward her for that. However, if the mother demands more payment for suckling than a wet-nurse, her husband can entrust the child to the wet-nurse.
2497. It is recommended that the wet-nurse, whose services are obtained for a child, should be Shia Ithna-Asheri, sane, chaste, and good looking; and it is Makrooh for a wet-nurse to be a non-Shia Ithna-Asheri or ugly, ill-humoured or illegitimate. It is also Makrooh to entrust the child to a wet-nurse who has given birth to an illegitimate child.
Miscellaneous Rules Regarding Nursing a Child
2498. * It is recommended that a woman avoids suckling any and every child, because it is possible that she may forget as to which of them she has suckled, and later the two persons, who are Mahram to each other, may contract marriage.
2499. It is recommended, if possible, that a child is suckled for full 21 months. And it is not preferred that it be suckled for more than two years.
2500. * If the right of the husband is not in any way violated by suckling, a wife may suckle the child of another person without the permission of her husband.
2501. * If a man contracts Nikah with a suckling girl, and the wife of that man suckles her, then it is considered that the wife becomes the mother-in-law of her husband, and therefore, becomes haraam for him. Although this consideration is not free from Ishkal, yet precaution should not be ignored.
2502. * If a person wants that his sister-in-law (his brother’s wife) may become his Mahram, he may contract a temporary Nikah with a suckling girl, for example, for two days, and during those two days, the wife of his brother may suckle that girl as mentioned in rule no. 2483. By so doing, she will become his mother-in-law, and thus be Mahram. But if the woman suckles the girl from his brother’s milk, it is a matter of Ishkal.
2503. If a man says before marrying a woman, that the woman he is marrying is his milk sister, she is haraam for him, if his statement is verified as true. And if he says this after the marriage, and the woman also confirms his word, the marriage is void. Hence, if the man has not had sexual intercourse with her, or has had sexual intercourse but at the time of sexual intercourse the woman knew that she was haraam for him, she is not entitled to any Mahr. And if she learns after sexual intercourse that she was haraam for the man, the husband should pay her Mahr according to the usual Mahr of other women like her.
2504. If a woman says, before marriage, that she is haraam for a man because she is his milk sister, and if it is possible to verify her statement as true, she cannot marry that man. And if she says this after marriage, it is like the man saying after marriage that the woman is haraam for him, and the rule in this situation has been given in the foregoing clause.
2505. * Suckling a child, which becomes the cause of being Mahram, can be established by the following two ways:
(i) Information in this behalf by a number of persons whose word is reliable.
(ii) Two just men testify to this fact. It is, however, necessary that they should also mention the conditions of suckling the child. For example, they should be able to say, “We have seen the child for twenty four hours, sucking milk from the breasts of a woman, and during this time he has not eaten anything else.” And similarly, they should also narrate in detail, the conditions which have been mentioned in rule no. 2483. Witness by one man or two or four women, even if they are Adil, is a matter of Ishkal for establishing that the child has suckled from a particular woman.
2506. If it is doubted whether or not a child has sucked the quantity of milk which becomes the cause of becoming Mahram, or if it is considered probable that it might have sucked that quantity of milk, the child does not become Mahram of anyone, though it is better to observe precaution.
2507. * A man who divorces his wife must be adult and sane, but if a boy of ten years of age divorces his wife, precaution must be exercised. Similarly, a man should divorce of his own free will, therefore, if someone compels him to divorce his wife, that divorce will be void. It is also necessary that a man seriously intends to divorce; therefore, if he pronounces the formula of divorce jokingly, the divorce will not be valid.
2508. It is necessary that at the time of divorce, wife is Pak from Haidth and Nifas, and that the husband should not have had sexual intercourse with her during that period.
2509. * It is valid to divorce a woman even if she is in Haidh or Nifas in the following circumstances:
(i) If the husband has not had sexual intercourse with her after marriage.
(ii) If it is known that she is pregnant. And if this fact is not known and the husband divorces her during Haidh, and he comes to know later that she was pregnant, that divorce will be valid, and as a recommended precaution he should divorce her again.
(iii) If due to the husband’s absence or imprisonment, he is not able to ascertain whether or not she is Pak from Haidth or Nifas. But in this case, as an obligatory precaution, man must wait for at least one month after separation from his wife and then divorce.
2510. If a man thinks that his wife is Pak from Haidh and divorces her, but it transpires later that at the time of divorce she was in the state of Haidh, the divorce is void. And if he thinks that she is in the state of Haidh and divorces her, and it is later known that she was Pak, the divorce is in order.
2511. * If a person who knows that his wife is in Haidh or Nifas, is separated from her, like when he proceeds on a journey, and wishes to divorce her, he should wait till such time when he becomes sure that his wife must have become Pak from her Haidh or Nifas. Thereafter, having known that she is Pak, he can divorce her. And if he is in doubt he will act according to rule no. 2509 for precaution.
2512. * If a man who is separated from his wife wishes to divorce her and can acquire information as to whether or not she is in the state of Haidh or Nifas, even if that information is based on her habit, or any other signs known in Shariah, if he divorces her and later finds out that his information was wrong, the divorce will be void.
2513. * If a man has sexual intercourse with his wife during her Pak period, and then wishes to divorce her, he should wait till she enters into Haidh again and becomes Pak. But if the wife has not completed her ninth year, or if she is pregnant, she can be divorced after the sexual intercourse. The same rule applies to a wife in menopause. The meaning of menopause has been explained in rule no. 2457).
2514. * If a person has sexual intercourse with a woman during her Pak period and divorces her during the same period, and if it transpires later that she was pregnant at the time of divorce, the divorce will be void. As a recommended precaution, he should divorce her again.
2515. * If a person had sexual intercourse with his wife during her Pak period, and then separated from her, like, if he proceeded on journey and wishes to divorce her then, not knowing whether she is Pak or not, he should wait till such time when the wife enters into the state of Haidh and becomes Pak once again. And, as an obligatory precaution, this period should not be less than one month.
2516. * If a man wishes to divorce his wife who does see blood of Haidh at all by habit, or because of some disease, while other women of her age habitually see Haidh, he should refrain from having sexual intercourse with her for three months from the time he has had the intercourse, and then divorce her.
2517. * It is necessary that the formula of divorce is pronounced in correct Arabic using the word “Taliq”; and two just (‘Adil) persons should hear it. If the husband wishes to pronounce the formula of divorce himself and his wife’s name is, for example, Fatima, he should say: Zawjati Fatima taliq (i.e. my wife Fatima is divorced) and if he appoints another person as his Wakil to pronounce the formula of divorce, the Wakil should say: Zawjatu muwakkili Fatima taliq (Fatima, the wife of my client is divorced). And if the woman is identified, it is not necessary to mention her name. And if the husband cannot pronounce divorce in Arabic, or cannot find a Wakil to do so, he can divorce in any language using the words of the same meaning as in Arabic formula.
2518. There is no question of of divorce in the case of a woman with whom temporary marriage is contracted, for example, for one month or one year. She becomes free when the period of her marriage expires or when the man forgoes the period of her marriage by saying: “I hereby exempt you from the remaining time of marriage”, and it is not necessary to have a witness nor that the woman should be Pak from her Haidh.
Iddah of Divorce (The Waiting Period after Divorce)
2519. A wife who is under nine and who is in her menopause will not be required to observe any waiting period. It means that, even if the husband has had sexual intercourse with her, she can remarry immediately after being divorced.
2520. * If a wife who has completed nine years of her age and is not in menopause, is divorced by her husband after sexual intercourse, it is necessary for her to observe the waiting period of divorce. The waiting period of a free woman is that after her husband divorces her during her Pak period, she should wait till she sees Haidh twice and becomes Pak. Thereafter, as soon as she sees Haidh for the third time, her waiting period will be over and she can marry again. If, however, a husband divorces his wife before having sexual intercourse with her, there is no waiting period for her and she can marry another man immediately after being divorced, except if she finds traces of her husband’s semen in her private part, then she should observe Iddah.
2521. If a woman does not see Haidh in spite of being the age of women who normally see Haidh, if her husband divorces her after sexual intercourse, she should observe Iddah for three months after divorce.
2522. * If a woman whose Iddah is of three months, is divorced on the first of a month, she should observe Iddah for three lunar months, that is, for three months from the time the moon is sighted. And if she is divorced during the month, she should observe Iddah for the remaining days in the month added to two months thereafter, and again for the balance from the fourth month so as to complete three months. For example, if she is divorced on the 20th of the month at the time of sunset and that month is of 29 days, she should observe Iddah for nine days of that month and the two months following it, and for twenty days of the fourth month. In fact, the obligatory precaution is that in the fourth month, she should observe Iddah for twenty one days so that the total number of the days of the first month and the fourth month comes to thirty.
2523. * If a pregnant woman is divorced, her Iddah lasts till the birth or miscarriage of the child. Hence, if, for example, she gives birth to a child one hour after being divorced, her Iddah is over. But this is in the case of a legitimate child of the husband who is divorcing. If the pregnancy is illegitimate, and her husband divorces her, the Iddah will not be over.
2524. * If a woman who has completed nine years of age, and is not in menopause, contracts a temporary marriage, for example, if she marries a man for a period of one month or a year and the period of her marriage comes to an end, or her husband exempts her from the remaining period, she should observe Iddah. If she sees Haidh, she should observe Iddah for two periods of Haidh, and cannot marry again during that period. But if she does not see Haidh, then she should refrain from marrying another man for forty five days. And if she is pregnant, she should observe Iddah till the birth or miscarriage of the child, or for forty five days and as a recommended precaution, she should wait for whichever period is longer.
2525. The time of the Iddah of divorce commences when the formula of divorce is pronounced, irrespective of whether the wife knows about it or not. Hence, if she comes to know after the end of the Iddah that she had been divorced, it is not necessary for her to observe Iddah again.
Iddah (Waiting Period) of a Widow
2526. If a woman is free and is not pregnant and her husband dies, she should observe Iddah (the waiting period) for four months and ten days, that is, she should not marry during that period even if she has entered into menopause or her husband had contracted temporary marriage with her, or he may not have had sexual intercourse with her. If, however, she is pregnant, she should observe the waiting period till the birth of the child. But if the child is born before the end of four months and ten days from the death of her husband, she should wait till the expiry of that period. This period is called the waiting period after death (Iddatul Wafat).
2527. It is haraam for a woman who is observing the Iddah of death to wear brightly coloured dress, or to use surma and to do any such act which is considered to be an adornment.
2528. * If a woman becomes certain that her husband has died, and marries another man after the completion of Iddah of death, and later on learns that her husband had died later, she should separate herself from her second husband. And as a precaution, if she is pregnant, she should observe Iddah of divorce for the second husband till she gives birth to a child, and should thereafter observe Iddah of death for the first husband. But if she is not pregnant, she should first observe Iddah of death for her first husband and thereafter she should observe Iddah of divorce for the second husband.
2529. * The Iddah of death begins, in the situation when the husband has disappeared or is absent, when the wife learns of his death, and not from the time when he actually died. But this rule does not apply to a wife who has not attained the age of Bulugh, or if she is insane.
2530. * If a woman says that her Iddah is over, her word can be accepted unless she is known to be unreliable, in which case, her word will not be accepted. For example, if she claims to have seen blood three times in the month, her claim will not be trusted, except when her women relatives confirm that it is her habit.
Irrevocable and Revocable Divorce
2531. * Irrevocable divorce means that after the divorce, the husband is not entitled to take back his wife, that is, he is not entitled to take her as his wife without Nikah. This divorce is of five kinds, namely:
(i) The divorce of a woman who has not completed nine years of age.
(ii) The divorce of a woman who is in menopause.
(iii) The divorce of a woman whose husband has not had sexual intercourse with her after their marriage.
(iv) The third divorce of a woman who has been divorced three times.
(v) The divorce called Khul’a and Mubarat.
(vi) The divorce by intervention of Mujtahid, in the case of a wife whose husband is neither prepared to maintain her nor to divorce her.
Rules pertaining to these kinds of divorces will be detailed later. Divorces other than these are revocable, in the sense that as long as the wife is observing Iddah her husband can take her back.
2532. * When a person has given revocable divorce to his wife, it is haraam for him to expel her out of the house in which she was residing at the time of divorce. However, in certain cases, like, when she has committed fornication or adultery there is no harm in expelling her. Also, it is haraam for the wife to go out of the house unnecessarily, without her husband’s permission.
Orders Regarding Return (Ruju’)
2533. * In the case of a revocable divorce a man can take back his wife in two ways:
(i) By telling her words which would mean that he wants her again as his wife.
(ii) By acting in a manner which would convey his intention to take her back.
And taking her back will be established by sexual intercourse although the husband may not have intended it. But touching, kissing, with or without intention of taking her back is not sufficient.
2534. It is not necessary for taking her back that the husband should call any person to witness, or should inform his wife. On the other hand if he takes her back without any one else realising this, the Ruju’ is in order. However, if the husband claims after the completion of Iddah that he took his wife back during Iddah, he must prove it.
2535. * If a person who has given revocable divorce to his wife takes some payment from her, making a compromise with her that he will not make Ruju’ to her, though this compromise is valid and it is obligatory on him not to ‘return’, yet he does not forfeit the right to ‘return’. And if he ‘returns’ to her, the divorce given by him does not become the cause of their separation.
2536. * If a man divorces a woman twice and takes her back, or divorces her twice and takes her back by Nikah, or takes her back after one divorce and returns her by Nikah after the second divorce, she becomes haraam for him after the third divorce. But if she marries another man after the third divorce, she becomes halal for the first husband on fulfilment of five conditions, that is, only then he can remarry her:
(i) The marriage with the second person should have been of permanent nature. If he contracts with her a temporary marriage for one month or a year, and then separates from her, the first husband cannot marry her.
(ii) The second husband should have had sexual intercourse with her, and the obligatory precaution is that the sexual intercourse should have taken place in the normal way.
(iii) The second husband divorces her, or dies.
(iv) The waiting period (Iddah) of divorce or Iddah of death of the second husband should have come to an end.
(v) On the basis of obligatory precaution the second husband should have been Baligh at the time of intercourse.
Khula’ Divorce or Talaqul Khula’
2537. * The divorce of a wife who develops an aversion from husband and hates him, and surrenders to him her Mahr or some of her property so that he may divorce her, is called Khula’ Divorce. The hatred must have reached a proportion where she would not allow him conjugal rights.
2538. If the husband himself wishes to pronounce the formula of Khula’ divorce and his wife’s name is, say, Fatima, he should say after receiving the property: “Zawjati Fatimatu Khala’tuha ‘ala ma bazalat” and should also say as a recommended precaution: “Hiya Taliq” i.e. “I have given Khula’ divorce to my wife Fatima in lieu of what she has given me, and she is free’. And if the wife is identified, it is not necessary to mention her name in Talaqul Khula’ and also in Mubarat Divorce.
2539. If a woman appoints a person as her representative to surrender her Mahr to her husband, and the husband, too, appoints the same person as his representative to divorce his wife, and if, for instance, the name of the husband is Muhammad and the name of the wife is Fatima, the representative will pronounce the formula of divorce thus: “An muwakkilati Fatimah bazalat mahraha li muwakkili Muhammad li Yakhla’aha ‘alayh”. Then he says immediately: “Zawjatu muwakkili khala’tuha ‘ala ma bazalat hiya Taliq”.
And if a woman appoints a person as her representative to give something other than Mahr to her husband, so that he may divorce her, the representative should utter the name of that thing instead of the word “Mahraha” (her Mahr). For example, if the woman gives $500 he should say: bazalat khamsa mi’ati Dollar”.
2540. * If the husband and the wife develop mutual aversion and hatred and the woman gives some property to the man so that he may divorce her, this divorce is called ‘Mubarat’.
2541. * If the husband wishes to pronounce the formula of Mubarat, and for example, his wife’s name is Fatima he should say: “Bara’tu zawjati Fatimah ‘ala ma bazalat”. And as an obligatory precaution, he must add: “Fahiya Taliq”, that is “my wife Fatima and I separate from each other in consideration of what she has given me. Hence, she is free.” And if he appoints someone as his representative, the representative should say: “An qibali muwakkili bara’tu zawjatahu Fatimata ‘ala ma bazalat Fahiya Taliq”. And in either case, if he says: “bima bazalat” instead of the words “‘ala ma bazalat” there is no harm in it.
2542. * It is necessary that the formula of Khula’ or Mubarat divorce is pronounced in correct Arabic. And if that is not possible, then the rule explained in 2517 will apply. However, if for the sake of giving her property, the wife says in English or any language that: “I give you such and such property in lieu of divorce” it will be sufficient.
2543. If during the waiting period of Khula or Mubarat divorce the wife changes her mind and does not give her property to the husband, he can take her back as a wife without Nikah.
2544. The property which the husband takes in Mubarat divorce should not exceed the Mahr of the wife. But in the case of Khula’ divorce, there is no harm if it exceeds her Mahr.
Various Rules Regarding Divorce
2545. If a man had sexual intercourse with a non-mehram woman under the impression that she was his wife, the woman should observe Iddah, irrespective of whether she knew that the man was not her husband or thought that perhaps he was her husband.
2546. * If a man commits fornication with a woman knowing that she is not his wife, it is not necessary for the woman to observe Iddah. But if she thought that the man was probably her husband, as an obligatory precaution, she should observe Iddah.
2547. * If a man seduces a woman so that her husband decides to divorce her and then she can marry him, the divorce and marriage are in order, but both of them have committed a major sin.
2548. * If a woman lays a condition at the time of Nikah that if her husband goes on a journey or, for example, does not give her maintenance for six months, she will have the right of divorce, the condition is void. However, if she lays a condition that if her husband goes on a journey or, for example, does not give her maintenance for six months, she will be his Wakil for her own divorce, the condition is in order.
2549. If the husband of a woman disappears and she wishes to marry another man, she should approach an ‘Adil Mujtahid and act according to his directive.
2550. The father and the paternal grandfather of an insane man can divorce his wife.
2551. If the father or paternal grandfather of a child contracts a temporary marriage between him and a woman, and a part of the period fixed for the marriage covers some of the time when the child will have attained the age of bulugh, for example, if he contracts the marriage of a fourteen years old boy for a period of two years – he (the father or the paternal grandfather of the child) can exempt the woman from a part of the period of marriage if doing so, is in the interest of the child, but he cannot divorce the child’s permanent wife.
2552. If a man considers two person to be just (‘Adil) according to the standard prescribed in Shariah, and divorces his wife in their presence, another person to whom their being ‘Adil is not proved can, after the expiry of that woman’s Iddah, marry her or give her in marriage to another person, although the recommended precaution is that he should not marry her nor should he give her in marriage to someone else.
2553. If a person divorces his wife without informing her, and he continues to maintain her the way he did when she was his wife, and after a year tells her that he divorced her a year ago, and also proves it, he can take back from her the things which he supplied her during that period if she has not used them up, but he cannot demand from her the things which she has already expended.
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