Islamic Fiqh > Marriage and family > Iddah (the waiting period) > The iddah of the woman with irregular bleeding (al-mustahadah)
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Updated on 25 September 2026 at 3:23 PM
This part belongs to the full section: All sections of this part.
The second part of the chapter on the iddah (waiting period): the iddah of the woman with irregular bleeding, that of the woman separated by khul', the classification of women with regard to the waiting period, the cases of adultery and intercourse under a mistaken assumption, as well as the missing husband and the transition from the divorce waiting period to the death waiting period. The positions of the schools, the hadiths with their degrees of authenticity, and the classical references are faithfully reported.
If the waiting period is due upon her, it is to manifest the grief over the loss of the blessing of marriage; marriage was indeed a great blessing for her, the husband being the cause of her protection and chastity, and the one who provided maintenance, clothing and shelter. The waiting period is therefore prescribed upon her to manifest grief over the loss of this blessing and to honor her status. Its condition of obligation is a valid marriage only: it is therefore due upon the woman whose husband has died, whether the marriage was consummated or not, and whether she menstruates or not, by the generality of the word of Allah:
'And those of you who die and leave wives behind: they shall wait by themselves for four months and ten days.'
Surah al-Baqarah, 234
and because of what we mentioned: it is due to manifest grief over the loss of the blessing of marriage, which did exist. We made a valid marriage the only condition because Allah imposed it upon husbands, and none becomes truly a husband except by a valid marriage; whether she is a Muslim or a woman of the Book under the protection of a Muslim, by the generality of the text and the presence of the meaning for which the waiting period is prescribed (al-Bada'i' al-Sana'i', 3/192).
Imam Ibn al-Mundhir (may Allah have mercy on him) said: the scholars differed concerning the waiting period of the mustahadah (woman with irregular bleeding). A group said: she counts by her periods (quru'); this is the view of al-Hasan al-Basri, al-Zuhri, al-Nakha'i and al-Thawri. Ikrimah and Qatadah said: three months, and al-Shafi'i followed this. A third opinion: one year; this is the view of Ibn al-Musayyib and Malik. A fourth: if her periods are regular she counts by them, and if they are mixed she counts a year; this is the view of Ahmad and Ishaq. A fifth: she counts by her periods if their days are known, otherwise three months; this is the view of Abu Ubayd.
Abu Bakr said: if she knows her periods she counts by them, and there is no doubt about this; if she does not know her days but knows that she menstruated once each month, her waiting period ends when three months have passed; if she is in doubt about any of this, she waits until she is certain that the three periods have passed, then she becomes lawful to husbands (al-Bada'i' al-Sana'i', 3/192).
Imam Abu Umar Ibn Abd al-Barr (may Allah have mercy on him) said: the scholars differed concerning the waiting period of the mustahadah. Malik said: the waiting period of the mustahadah is one year, the free woman and the slave woman being equal in this; it is the view of al-Layth, who said: the waiting period of the divorced woman and the mustahadah whose husband has died is one year, if she is a mustahadah. Abu Hanifah and his companions said: the waiting period of the mustahadah is the same as that of others: three menses if the position of her periods is known, otherwise she is like the woman who has despaired of menstruating (al-Ishraf, 5/357).
Al-Shafi'i said: if the blood applies to her and her blood separates (days of abundant intense red blood, then pale scanty blood tending to yellow), her menses are the days of the intense abundant blood, and her purity the days of the pale yellowish blood. If her blood is all mixed, her menses equal the number of days of her menses before the irregular bleeding began. If she appears to be a mustahadah, or she has measured her days, she abandons prayer for a day and a night, and she lets her menses come at the beginning of the crescent that follows the divorce: when the crescent of the fourth month appears, her waiting period has ended.
Al-Hasan al-Basri, al-Zuhri, Jabir b. Zayd, Ata', al-Hakam, Ibrahim and Hammad said: the mustahadah counts by her periods. Tawus and Ikrimah said: by the months, and Qatadah followed this. Ahmad and Ishaq said concerning the mustahadah: if her periods are known and regular she counts by them; if they are mixed she counts a year. Abu Ubayd said: if she does not know her periods she counts three months; if she knows them she counts by them. Abu Umar said: if her periods are known she is among the women subject to menses. According to Jabir, she counts by the months if her menses have ceased while she knows she menstruated once each month: three months; likewise, if she knows that she menstruates for a known duration she counts by her periods, even if far apart. Allah knows best (al-Istidhkar, 6/177-178; Mukhtasar Ikhtilaf al-Ulama, 2/393).
Ibn Qudamah (may Allah have mercy on him) said: the waiting period of the mustahadah is never without one of two cases: either she has menses determined by count or distinction, or not. If so, her ruling therein is that of the non-mustahadah: once three periods have passed her waiting period has ended. Ahmad said: the mustahadah counts the days of the periods she knew; if she knows she menstruates every month without knowing their position she counts three months; if she is in doubt about any of this she waits until she is certain the three periods have passed.
If she is a beginner mustahadah without distinction, or a forgetful one who knows neither its time nor its distinction, Ahmad has two narrations. The first: her waiting period is three months; it is the view of Ikrimah, Qatadah and Abu Ubayd; for the Prophet (peace be upon him) ordered Hamnah bint Jahsh to sit six or seven days each month, thus fixing for her a monthly menses in which she left prayer and fasting while the other rulings of menses remained in force: the waiting period must therefore end by it, for this is among the rulings of menses (al-Mughni, 8/91).
The second narration of Ahmad: she counts one year, like the one whose menses stopped without her knowing what stopped them. Ahmad said: if they have become mixed and she does not know the onset and end of the blood, she counts one year, according to the hadith of Umar by which pregnancy is discerned; it is the view of Malik and Ishaq, for no menses was established for her although she is among the women of periods: her waiting period is therefore one year, like the one whose menses ceased. According to the first narration it would be said: when we rule that her menses are seven days each month and two months have passed by crescents with seven days of the first third, her waiting period has ended; if we say 'the pure periods' and he divorced her at the end of a month, two months passed and the third crescent appeared, her waiting period has ended: this is the madhhab of al-Shafi'i (al-Mughni, 8/91).
The jurists differed concerning the waiting period of the khul' wife: is it like that of the divorced woman, three periods, or a single menstruation? The majority of jurists, the Hanafis, Malikis, Shafi'is and Hanbalis in the madhhab, held that the waiting period of the khul' wife is that of the divorced woman: if she is among those who menstruate she counts three periods; if she is among those who have despaired, three months; and every separation between two spouses carries the waiting period of divorce, whether by khul', li'an, breastfeeding, annulment for a defect, insolvency, emancipation, difference of religion or otherwise, in the view of most scholars; by the word of Allah:
'The divorced women shall wait by themselves for three periods.'
Surah al-Baqarah, 228
and because it is a separation that occurs after consummation during life: it is therefore three periods like the khul' (Sharh Fath al-Qadir, 4/307; al-Muwatta, 2/565; al-Tamhid, 23/373-377; al-Istidhkar, 6/73-75; Tafsir al-Qurtubi, 3/144-145; Sharh al-Zurqani, 3/240; Ikhtilaf al-Ulama, 1/158; al-Najm al-Wahhaj, 8/125).
Imam al-Tirmidhi (may Allah have mercy on him) said: the scholars differed concerning the waiting period of the khul' wife; most of the scholars among the Companions of the Prophet (peace be upon him) and others said that the waiting period of the khul' wife is that of the divorced woman: three menses; it is the view of Sufyan al-Thawri and the people of Kufah, and Ahmad and Ishaq say so too. Some scholars among the Companions of the Prophet and others said that the waiting period of the khul' wife is one menstruation. Ishaq said: whoever adopts this view holds a strong madhhab (Sunan al-Tirmidhi, 3/491). Ibn Qudamah said: most of the scholars say that the waiting period of the khul' wife is that of the divorced woman: among them Sa'id b. al-Musayyib, Salim b. Abdallah, Urwah, Sulayman b. Yasar, Umar b. Abd al-Aziz, al-Hasan, al-Sha'bi, al-Nakha'i, al-Zuhri, Qatadah, Khallas b. Amr, Abu Iyad, Malik, al-Layth, al-Awza'i and al-Shafi'i (al-Mughni, 8/79).
Imam Ahmad, in a narration reported from Uthman b. Affan, Ibn Umar, Ibn Abbas and Aban b. Uthman, as well as Ishaq, Ibn al-Mundhir, Ibn Taymiyyah and Ibn al-Qayyim, held that the waiting period of the khul' wife is one menstruation; for Ibn Abbas (may Allah be pleased with him and his father) narrated:
'The wife of Thabit b. Qays separated from him by khul', and the Prophet (peace be upon him) made her waiting period one menstruation.'Authentic hadith, narrated by Abu Dawud (2229) and al-Tirmidhi (1185)
It was reported from Muhammad b. Abd al-Rahman that al-Rubayyi' bint Mu'awwidh b. Afra' informed him that Thabit b. Qays b. Shammas struck his wife and broke her hand; she was Jamilah bint Abdallah b. Ubayy. Her brother came to complain of him to the Messenger of Allah (peace be upon him), who sent to Thabit: 'Take what is due to her and let her go.' He said: yes; and the Messenger of Allah ordered her to wait one menstruation then join her family (authentic hadith, narrated by al-Nasa'i, 3497).
From Sulayman b. Yasar: al-Rubayyi' bint Mu'awwidh b. Afra' separated by khul' during the lifetime of the Prophet (peace be upon him), and the Prophet ordered her, or she was ordered, to count one menstruation (narrated by al-Tirmidhi, 1185; he said: in this chapter from Ibn Abbas, and Abu Isa said: the authentic is that she was ordered to count one menstruation). From Ubadah b. al-Walid b. Ubadah b. al-Samit, al-Rubayyi' bint Mu'awwidh said: 'I separated from my husband by khul', then I came to Uthman and asked him: what waiting period is due upon me? He said: no waiting period is due upon you, unless you are of recent marriage with him; in that case remain until you menstruate once. I follow in this the judgment of the Messenger of Allah concerning Mariyah al-Maghaliyyah, who was the wife of Thabit b. Qays b. Shammas and separated from him by khul'' (judged good and authentic, narrated by al-Nasa'i, 3498). And from Malik, from Nafi', from Ibn Umar: 'The waiting period of the khul' wife is one menstruation' (authentic hadith, narrated by Abu Dawud, 2230).
Imam Ibn al-Qayyim (may Allah have mercy on him) said: the people differed concerning the waiting period of the khul' wife; Ishaq and Ahmad, according to the more authentic of the two narrations reported from him, have as proof that she counts a single menstruation: it is the madhhab of Uthman b. Affan and Abdallah b. Abbas, and the consensus of the Companions has even been reported, with no known dissent from these two imams; the authentic Sunnah of the Messenger of Allah indicates it explicitly; the excuse of whoever differs is that the report did not reach him, or did not seem authentic to him, or he assumed consensus on what negates it. This is the preponderant view both by athar and by examination; as for its preponderance by athar, the Prophet (peace be upon him) never ordered a khul' wife to count three menses; the people of the Sunan even report from the hadith of al-Rubayyi' bint Mu'awwidh that Thabit b. Qays struck his wife and broke her hand, that her brother came to complain of him to the Messenger of Allah, who sent to Thabit: 'Take what is due to her and let her go', which he did, and the Messenger of Allah ordered her to wait one menstruation then join her family. Abu Dawud and al-Nasa'i narrate from Ibn Abbas that the wife of Thabit b. Qays separated from her husband by khul' and that the Prophet ordered her, or she was ordered, to count one menstruation; al-Tirmidhi said: the authentic is that she was ordered to count one menstruation. These hadiths have chains that corroborate one another; the hadith was contested by two defects: first its irsal (disconnection), and second that the authentic wording would be 'she was ordered', the agent being omitted; but both defects are not decisive: the hadith was narrated by connected chains, and there can be no contradiction between 'she was ordered' and 'the Messenger of Allah ordered her', for it is impossible that the one who ordered her this was other than the Messenger of Allah during his lifetime; when a hadith is narrated with an ambiguous wording and with an explicit wording that interprets it, how can the ambiguous be set as contradicting the interpreter, let alone preferred over it? The fatwas of the Companions of the Messenger of Allah suffice moreover: Abu Ja'far al-Nahhas said in his book al-Nasikh wa al-Mansukh that it is a consensus of the Companions.
As for the requirement of examination: the khul' wife leaves her husband owing no waiting period; she has regained possession of herself and is more entitled to her intimacy, and she may marry after the purity of the womb: the waiting period for her is thus reduced to the purity of the womb. Now we see the Shariah prescribe a single menstruation in this kind of case, as it did for the woman taken captive, for the slave woman acquired by an exchange contract or by donation, and for the emigrant woman from the land of war; there is no doubt on the other hand that it prescribed three periods for the revocably divorced woman. The khul' wife is a branch fluctuating between these two principles: she should be attached to what resembles her most, and we find that she resembles the women subject to menses more.
What reveals the wisdom of the Shariah in this is that the Lawgiver divided women into three categories. The first: separation before consummation, which entails neither a waiting period nor a right of return for the husband. The second: separation after consummation when the husband holds over her the right of return: her waiting period was set at three periods, and Allah mentioned the waiting period of three periods only in this category, as the Quran explicitly states:
'The divorced women shall wait by themselves for three periods; and it is not lawful for them to conceal what Allah has created in their wombs, if they believe in Allah and the Last Day. And their husbands have more right to take them back in that, if they wish for reconciliation.'
Surah al-Baqarah, 228
Likewise, in Surah al-Talaq, when Allah mentioned the waiting of three months for the woman who, once her term is reached, sees her husband choose between keeping her with kindness or parting with her with kindness (which is without doubt the revocable divorce), He did not mention the periods or their substitute for the irrevocably divorced woman. The third category: she who has separated from her husband and whose right over her has ceased by captivity, migration or khul': her waiting period is one menstruation, for the purification of the womb (istibra'), and not three, for the husband has no return; and this is most evident and most fitting. As for the adulteress and the woman with whom intercourse occurred under a mistaken assumption, the indication of the text is that they purify themselves with a single menstruation: Ahmad stated it for the adulteress, and our shaykh chose it for the mistaken assumption, and it is the more correct; their analogy with the revocably divorced woman is the farthest and most corrupt of analogies (I'lam al-Muwaqqi'in, 2/88-90; Zad al-Ma'ad, 5/649-650; see also al-Mubdi', 8/120; al-Insaf, 9/278-279; Majmu' al-Fatawa, 32/315, 344).
Imam Ibn al-Mundhir (may Allah have mercy on him) said: the scholars differed concerning the waiting period of the khul' wife: Uthman b. Affan and Ibn Umar said that her waiting period is one menstruation, and Aban b. Uthman and Ishaq b. Rahawayh followed this. A second opinion: her waiting period is that of the divorced woman, which we received from Ali b. Abi Talib, followed by Ibn al-Musayyib, Sulayman b. Yasar, al-Hasan, al-Sha'bi, Salim b. Abdallah, Abu Salamah b. Abd al-Rahman, al-Nakha'i, Urwah b. al-Zubayr, Umar b. Abd al-Aziz, al-Zuhri, Qatadah, Khallas b. Amr, Abu Iyad, Malik, al-Layth b. Sa'd, al-Awza'i, al-Thawri, al-Shafi'i, Ahmad, Ishaq and Abu Ubayd. Abu Bakr said: I hold the first view, for the hadith we report from the Prophet (peace be upon him) concerning the wife of Thabit b. Qays, who separated from him by khul' and for whom the Prophet set a waiting period of one menstruation, and for the view of Uthman b. Affan and Ibn Umar; and the hadith of Ali is not established (al-Ishraf, 5/360).
The jurists differed concerning the adulteress: is a waiting period or a purification of the womb due upon her, or does no waiting period fall due upon her and is it lawful for her to marry the one who committed adultery with her or another? The Hanafis and Shafi'is held that no waiting period is due upon the adulteress and that she may marry: the fluid of fornication carries no sanctity, intercourse with her is lawful, she is entitled to maintenance according to the Hanafis, and the contract is even permitted if she is pregnant; but he does not consummate with her before her delivery, according to Abu Hanifah and Muhammad (al-Hidayah, 1/195; Sharh Fath al-Qadir, 3/242; al-Ikhtiyar, 3/109; Tabyin al-Haqa'iq, 2/114; al-Inayah, 4/380; al-Bahr al-Ra'iq, 3/114; al-Jawharah al-Nayyirah, 5/44; Durrar al-Hukkam, 4/69; Hashiyat Ibn Abidin, 3/511; al-Muhadhdhab, 2/45; Nihayat al-Matlab, 12/219-220 and 14/306; al-Bayan, 9/270-271; Asna al-Matalib, 3/393; al-Najm al-Wahhaj, 8/136; Mughni al-Muhtaj, 5/89).
The Malikis and Hanbalis held that the marriage contract is not valid with the woman with whom one has committed adultery until she is purified of the fornication, nor with the woman pregnant from fornication, even if he is the very one who committed adultery with her; by the word of Allah:
'And those who are pregnant: their term ends when they deliver their burden.'
Surah al-Talaq, 4
a verse of general scope; and because she is pregnant: marriage to her is unlawful as with any other pregnant woman (al-Istidhkar, 7/512; al-Tafri' fi Fiqh al-Imam Malik by Ibn al-Jallab, 2/78; Ahkam al-Quran, 3/338; al-Dhakhirah, 4/259; al-Ma'unah, 1/532; al-Ishraf, 3/317-318, no. 1153-1154; Uyun al-Masa'il, no. 662; al-Mughni, 7/107-108; al-Muharrar, 2/21; Kashshaf al-Qina', 5/90; Sharh Muntaha al-Iradat, 5/171; Manar al-Sabil, 2/581).
The Malikis said: when a man has committed adultery with a woman and then wishes to marry her, this is permitted him after purifying her of his corrupt fluid; if he concludes the contract before purifying her, he is like the one who marries a woman in her waiting period, and it never becomes lawful for him if he consummates. Malik said: the one who marries a free woman and consummates with her, and she then gives birth after a month, may never marry her, for he had intercourse during a waiting period. Ibn Abd al-Barr (may Allah have mercy on him) said: Malik's argument is that he drew an analogy between the purification of the womb from fornication by three menses in the free woman and the ruling of the annulled corrupt marriage; for the ruling of a corrupt marriage is, for all, like that of a valid marriage as regards the waiting period; the same applies to fornication: the womb of another is not purified in a free woman with less than three menses, by analogy with the waiting period (al-Istidhkar, 7/512). And Ibn al-Arabi (may Allah have mercy on him) said: Malik held that if the fluid of fornication carries no sanctity, the fluid of marriage does carry one, part of which is not to be poured upon the fluid of disorder, mixing the unlawful with the lawful and the fluid of disgrace with the fluid of honor: Malik's reasoning was thus stronger than that of the other jurists of the lands (Ahkam al-Quran, 3/338; al-Dhakhirah, 4/259).
The Hanbalis said: when a woman has committed adultery, her marriage does not become lawful until she is purified by the periods, or by the months in the absence of a period: the waiting period is therefore due upon her and her marriage is unlawful during it; for it is in origin for knowing the purity of the womb; and because before the waiting period she may be pregnant, which would render her marriage void; this case is therefore not valid like that of intercourse under a mistaken assumption; and because if the marriage of the pregnant woman is not valid, that of the others is more so: intercourse with a pregnant woman does not lead to confusion of lineage, whereas this one is intercourse upon the vulva: the waiting period is therefore due as for intercourse under a mistaken assumption (al-Mughni, 7/107-108; al-Muharrar, 2/21; Manar al-Sabil, 2/581).
However, Imam Ibn Qudamah (may Allah have mercy on him) said: every woman in a waiting period other than that of a valid marriage, such as the adulteress, the woman with whom intercourse occurred under a mistaken assumption, or the woman of a corrupt marriage: the analogy of the madhhab forbids her marriage to the one who had intercourse with her and to all others. It is preferable to permit her marriage to the one from whom she is observing a waiting period, if the lineage of her child can be attached to him; for the waiting period aims at preserving his fluid and protecting his lineage, and his honorable fluid is not preserved from another honorable fluid, nor is his lineage preserved from it: this is why the marriage of the khul' wife with the one who left her by khul' was permitted. To the one to whom the lineage of the child cannot be attached, such as the adulteress, her marriage is not lawful, for it leads to confusion of lineage: the one who had intercourse is like any other, the lineage of the child being attached to neither (al-Mughni, 8/102). And if the adulteress is purified and is not pregnant, the jurists of the four schools agree that she may marry.
The hafiz Ibn Hajar (may Allah have mercy on him) said: Ibn Abd al-Barr reported that the muftis of the lands agreed that it is not unlawful for the adulterer to marry the woman with whom he committed adultery (Fath al-Bari, 9/157). This issue was treated in detail earlier in the book of marriage. The jurists differed concerning the waiting period of the woman with whom intercourse occurred under a mistaken assumption, such as the one led to the marriage-bed of a man other than her husband by mistake, or the one found at night upon his bed: is her waiting period that of the woman observing a waiting period from a valid marriage, or does she purify herself with a single menstruation?
The majority of jurists, the Hanafis, Malikis, Shafi'is and Hanbalis in the madhhab, held that the woman with whom intercourse occurred under the mistaken assumption of marriage, led to the bed of a man other than her husband who had intercourse with her, owes the waiting period like the one who had intercourse in a valid marriage; for the mistaken assumption stands in place of reality where precaution is required, and imposing the waiting period is among precaution. It is unlawful for her first husband to have intercourse with her: the waiting period having been advanced over the husband's right, intercourse is forbidden to him before its completion, not pleasure; its prohibition rests on a hindrance specific to the vulva, so that pleasure by other means remains permitted, as with the menstruating woman (al-Bada'i' al-Sana'i', 3/192; al-Bahr al-Ra'iq, 4/151; Sharh Mukhtasar Khalil, 4/140; Hashiyat al-Sawi, 6/41; al-Mughni, 8/79; Manar al-Sabil, 3/166-167).
Ibn Qudamah (may Allah have mercy on him) said: the woman with whom intercourse occurred under a mistaken assumption counts the waiting period of the divorced woman, as does the woman of a corrupt marriage; al-Shafi'i said so; for intercourse under a mistaken assumption in a corrupt marriage, with regard to the occupation of the womb and the rights of lineage, is like intercourse in a valid marriage: the same applies to that by which purification is obtained. If the wife had intercourse under a mistaken assumption, her husband may not have intercourse with her before her waiting period is completed, lest the fluids mix and the lineages become confused; pleasure other than the vulva is permitted to him according to one of the two views, for she is a wife whose intercourse is unlawful by a hindrance specific to the vulva: pleasure by other means is permitted, as with the menstruating woman (al-Mughni, 8/79).
The Hanafis said: the woman with whom intercourse occurred under a mistaken assumption may remain with her first husband, her maintenance and lodging being upon the first husband, for the marriage between them stands: only intercourse has become unlawful. She may not leave except with the permission of the first husband: if he permits her, she may leave even if her waiting period has not ended; this if she was not consenting to the intercourse; if she was consenting and informed, she has no maintenance. Intercourse under a mistaken assumption was restricted: if he married another man's wife knowingly and consummated, the waiting period would not be due upon her and intercourse would not be unlawful to the husband; this is the fatwa, for it would then be adultery, and the woman with whom one commits adultery is not unlawful to her husband (al-Bada'i' al-Sana'i', 3/192; al-Bahr al-Ra'iq, 4/151).
The Malikis said: the free woman who had intercourse through adultery or through a mistaken assumption, whether by error or by a corrupt marriage agreed upon by all (such as a close relative forbidden by lineage or by breastfeeding, or not), or whom a usurper abducted and from whom she then escaped, must in all these cases remain for the duration of her waiting period according to the detail given earlier: three periods as purification, not as waiting period, if she is among those who menstruate; or three months if she is a minor or has despaired of menstruating; or one year if her menses are delayed without cause, if she is a mustahadah without distinction, or if she is ill. The woman's statement 'the usurper and those with him did not touch me' is not taken into account: she is not believed in any of these ways, even if the usurper and his companions support her; for the purification is a right of Allah. The husband may not have intercourse with his wife during her purification, unless the pregnancy is apparent; the same applies to pleasure, according to the narration of Ibn al-Qasim; and no one may conclude a marriage contract with this woman during her purification, whether the contracting party is her husband who annulled his marriage, or a stranger (Sharh Mukhtasar Khalil, 4/140; al-Sharh al-Kabir with the gloss of al-Dasuqi, 3/416-417; Hashiyat al-Sawi, 6/41). The Shafi'is said: if a woman had intercourse under a mistaken assumption, the waiting period is due upon her; for intercourse under a mistaken assumption equals the intercourse of marriage with regard to lineage, and therefore requires the waiting period like the intercourse of marriage; if she is a free woman, she counts the waiting period of divorce (al-Bayan, 11/33).
Ibn Taymiyyah and Ibn al-Qayyim held that the woman with whom intercourse occurred under a mistaken assumption purifies herself with a single menstruation. Ibn al-Qayyim (may Allah have mercy on him) said: as for the adulteress and the woman with whom intercourse occurred under a mistaken assumption, the indication of the text is that they purify themselves with a single menstruation; Ahmad stated it for the adulteress and our shaykh chose it for the mistaken assumption, and it is the more correct; their analogy with the revocably divorced woman is the farthest and most corrupt of analogies (I'lam al-Muwaqqi'in, 2/88-90; Zad al-Ma'ad, 5/649-650; see also al-Mubdi', 8/120; al-Insaf, 9/278-279; Majmu' al-Fatawa, 32/315, 344).
The Hanafi and Shafi'i jurists established that if a woman introduces semen into her vagina believing it to be her husband's, the waiting period is due upon her as for intercourse under a mistaken assumption. The Shafi'is said: if the woman introduces into her vulva the semen of the one she believes to be her husband, the waiting period is due upon her as for intercourse under a mistaken assumption (al-Najm al-Wahhaj, 8/124; Tuhfat al-Muhtaj, 10/9). Imam Ibn Nujaym the Hanafi (may Allah have mercy on him) said: in the books of the Shafi'is one reads: 'if she introduces semen into her vulva believing it to be that of a husband or a master, the waiting period is due upon her as for intercourse under a mistaken assumption'; I have not seen it among our fellows, but the principles do not reject it: its obligation aims at knowing the purity of the womb, as will come in the chapter of the legal punishments; and its obligation rests on the fact that the mistaken assumption stands in place of reality where precaution is required, the imposition of the waiting period being among precaution; mourning (ihdad) is not required of her in this waiting period (al-Bahr al-Ra'iq, 4/151; Hashiyat Ibn Abidin, 3/517).
Second case: the husband is lost, his news cut off and his whereabouts unknown; this case divides into two. The first: his absence seems safe, such as a trade journey outside a perilous region, the pursuit of knowledge or tourism; this type is never without two kinds. The first: he has no wealth to spend: if the husband is lost and he is poor, or has left his wife nothing to spend on herself, she may annul the marriage for lack of maintenance, according to the majority of the Maliki, Shafi'i and Hanbali jurists, with a detail specific to each that will come in the book of maintenance. The second: he has wealth to spend.
The jurists differed concerning the husband absent in circumstances whose appearance is safety (such as the one who traveled for trade outside a perilous region, or for the pursuit of knowledge or tourism), whose news is cut off and whose being alive or dead is unknown: does the marital bond remain as it is, or does it end after a determined period? The Hanafis, the Shafi'is in the recent view and the Hanbalis in the madhhab held that his wife may not marry another and that the marital bond remains until his death or divorce becomes certain, or a period passes beyond which none like him lives; among the Hanbalis this period is ninety years from the day of his birth, for it does not appear that he lives longer (al-Mughni, 8/106; Kashshaf al-Qina', 5/495). For what al-Daraqutni reported from al-Mughirah b. Shu'bah (may Allah be pleased with him) as a statement raised to the Prophet (peace be upon him):
'The wife of the missing person remains his wife until the clarification reaches her.'Very weak, narrated by al-Daraqutni (3894)
It is a text, if it is established; and because the one whose death is unknown is not judged dead, like the one absent for less than four years; and because the ruling of life applied to his wealth despite ignorance of his life applies to his wives, as it applies to the mothers of his children; and because if the wife were absent until her news became obscured, it would not be permitted to judge her dead so as to permit her sister to the husband and the marriage of four besides her: the same applies to the husband's absence; and because the ruling of divorce and zihar established during his absence extends to the marital bond which forbids her to another.
From what is reported from Ali (may Allah be pleased with him): 'What Umar said is nothing', meaning concerning the wife of the missing person: she is the wife of the absent one until certainty of his death or her divorce reaches her; she has the mahr of this union for what he made lawful of her intimacy, and his marriage is void (al-Bayhaqi, al-Sunan al-Kubra, 7/731). And al-Bayhaqi said: we report from Sa'id b. Jubayr, from Ali (may Allah be pleased with him): 'She is the wife of the first, whether the second consummated or not'; it is the view of al-Nakha'i, al-Hakam b. Utaybah and others (al-Bayhaqi, al-Sunan al-Kubra, 7/731).
And because Allah said:
'[And lawful to you are] the chaste women among the believers.'
Surah al-Nisa, 24
and they are women having husbands; and because the death of the husband is not established and we do not know his death outwardly: it is not permitted for her to marry as before the passage of four years. And because every state that does not rule the transfer of the missing person's wealth to the heirs does not permit his wife to marry, in origin if less than four years have passed. And because she does not inherit once the impediments are lifted, and the waiting period of death is not imposed upon her, as if four years had elapsed. And because separation is of two kinds: a separation by divorce and a separation by death; separation by divorce is not ruled except after the divorce is established, and separation by death is the same (al-Tajrid of al-Quduri, 10/5329-5330; Mukhtasar Ikhtilaf al-Ulama, 2/329-331; Sharh Fath al-Qadir, 6/146; al-Hidayah, 2/181; al-Inayah, 8/235-236; Tabyin al-Haqa'iq, 3/311; al-Ikhtiyar, 3/44-45; al-Jawharah al-Nayyirah, 4/209-211; al-Ishraf, 5/107-108; al-Umm, 5/239-240; al-Hawi al-Kabir, 11/316-317; al-Bayan, 11/44-46; al-Najm al-Wahhaj, 8/154-155; Mughni al-Muhtaj, 5/103; al-Mughni, 8/106; Kashshaf al-Qina', 5/495; Ikhtilaf al-Ulama, pp. 143-144).
The Malikis, al-Shafi'i in the earlier view and the Hanbalis in one narration held that she waits four years, then observes the waiting period of death and becomes lawful to husbands; for if annulment is permitted for the impossibility of intercourse due to impotence and for maintenance due to insolvency, it is more fitting that it be permitted here for the impossibility of all of this. And because Allah said:
'And do not keep them back to harm them and to exceed the limits.'
Surah al-Baqarah, 231
and keeping her with him in this state is harm and aggression. Umar, Ibn Umar and Ibn Abbas among the Companions followed this; for what is reported from Umar:
'The wife of the missing person waits four years, then observes the waiting period of the one whose husband has died, and she marries if she wishes.'Authentic, narrated by Sa'id b. Mansur (1752)
Imam Malik reported, from Yahya b. Sa'id, from Sa'id b. al-Musayyib, that Umar b. al-Khattab (may Allah be pleased with him) said:
'Any woman who has lost her husband without knowing where he is waits four years, then observes a waiting period of four months and ten days, then becomes free.'Authentic, narrated by Imam Malik in the Muwatta (1195)
Ubayd b. Umayr said: a man was lost in the time of Umar; his wife came to him and mentioned it; he said: go and wait four years. She did so, then returned; he said: go and count four months and ten days. She did so, then returned; he said: where is this man's guardian? His guardian came; he said: divorce her. He did so, and Umar said: go and marry whom you wish; she remarried, then her first husband returned. Umar said to him: where were you? He said: the devils misled me; by Allah I do not know in what land I was; I was among a people who enslaved me, until a Muslim people attacked them and I was among their spoils; they said to me: you are a man among the humans and these are jinn, what is between you and them? I told them my story; they said: in what land of Allah do you love to wake? I said: in Madinah, my land; I woke looking at the free woman. Al-Bayhaqi adds in his account: at night they did not speak to me, and by day a whirlwind of wind followed me to its end; Umar gave him the choice between his wife and the mahr, and he chose the mahr (authentic, narrated by Sa'id b. Mansur in his Sunan, 1755, and al-Bayhaqi in al-Sunan al-Kubra, 15347).
From Sa'id b. al-Musayyib: Umar b. al-Khattab and Uthman b. Affan judged concerning the wife of the missing person: 'she waits four years and observes a waiting period of four months and ten days' (authentic, narrated by Ibn Abi Shaybah in his Musannaf, 16717). From Jabir b. Zayd: Ibn Abbas and Ibn Umar discussed the case of the wife of the missing person and said together: she waits four years, then the guardian of her husband divorces her, then she counts four months and ten days; they then discussed the maintenance: Ibn Umar said: she has maintenance from his wealth, for she confines herself for his sake; Ibn Abbas said: it is not so, that would wrong the heirs; rather she becomes his creditor on his wealth: if he returns it will be hers from his wealth, otherwise she has nothing (narrated by Ibn Abi Shaybah in his Musannaf, 16717-16718, and Sa'id b. Mansur in his Sunan, 1756). And because annulment, once deserved by impotence (loss of pleasure with ability of maintenance) and by insolvency (loss of maintenance with ability of pleasure), is more deservedly so by the disappearance of the missing person, which combines the loss of pleasure and the loss of maintenance (al-Mudawwanah al-Kubra, 5/450-452; al-Istidhkar, 6/130-132; al-Ishraf, 4/41-43, no. 1393; al-Qawanin al-Fiqhiyyah, p. 144; Ikhtilaf al-Ulama, pp. 143-144; al-Hawi al-Kabir, 11/316-317; al-Bayan, 11/44-46; al-Najm al-Wahhaj, 8/154-155; Mughni al-Muhtaj, 5/103).
Ibn Rushd (may Allah have mercy on him) said: the cause of their disagreement is the opposition between the presumption of continuity (istishab) and analogy: the presumption requires that the bond of protection not dissolve except by death or divorce, until a proof indicates otherwise; analogy, for its part, likens the harm of his absence to ila' and impotence, thus giving the wife the choice as in these two cases (Bidayat al-Mujtahid, 2/39-40). And the shaykh of Islam Ibn Taymiyyah (may Allah have mercy on him) said: among the most perplexing rulings of the rightly-guided caliphs for the jurists is the wife of the missing person; it is established from Umar b. al-Khattab that he granted his wife a respite of four years, ordered her to marry after that, then, when the missing man returned, Umar gave him the choice between his wife and her mahr; Imam Ahmad and others followed him in this. Some of the successors among his companions said that this contradicts analogy, according to which she remains bound by the first marriage, unless one says 'separation penetrates outwardly and inwardly', in which case she is the wife of the second: the first is the view of al-Shafi'i and the second that of Malik (Majmu' al-Fatawa, 20/576-577).