Islamic Fiqh > Marriage and family > Iddah (the waiting period) > The missing person whose absence portends death
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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.
Others exceeded in criticism to the point of saying: if a judge ruled according to Umar's view, his ruling would be annulled, so far is it from analogy. Others retained part of Umar's view and abandoned part of it, saying: if she marries she is the wife of the second, and if the second consummates she is his and she is not returned to the first. Whoever contradicted Umar did not attain what Umar attained of sound experience in analogy; this rests on a principle: the suspension of contracts (Majmu' al-Fatawa, 20/576-577).
Second section: his absence portends death. The jurists differed if the husband disappears in circumstances whose appearance is death: the one lost between the two lines of battle, in fighting between Muslims themselves or between Muslims and disbelievers; the one who disappears from his home by night or by day, or who goes out to prayer and does not return, or who goes to a nearby place to attend to a need and no news of him comes back, or who sinks with his ship in which some of his companions drown, or who is lost in a perilous region like the desert route of the Hijaz (barriyyat al-Hijaz) and the like: does his wife wait four years, more than the maximum duration of pregnancy, then observe the waiting period of death of four months and ten days and become lawful to husbands? Or does she wait until his death or divorce becomes certain, or until he reaches an age beyond which none like him lives?
The Hanafis and the Shafi'is in the recent view held that his wife may not marry another and that the marital bond remains until his death or divorce becomes certain; the Hanafis added: or a period passes beyond which none like him lives, life spans varying according to the eras; according to one view, one hundred and twenty years; according to another, one hundred; according to another, ninety. For what al-Daraqutni reported from al-Mughirah b. Shu'bah (may Allah be pleased with him) as a statement raised to the Prophet: 'The wife of the missing person remains his wife until the clarification comes' (very weak, narrated by al-Daraqutni, 3894); it is a text, if it is established. Ali b. Abi Talib (may Allah be pleased with him) said concerning the wife of the missing person: 'a woman afflicted: let her be patient, and let her not marry until certainty of his death reaches her' (narrated by al-Bayhaqi in al-Sunan al-Kubra, 15574); in another wording: 'she is a woman afflicted: let her be patient until death or divorce comes' (narrated by Abd al-Razzaq in his Musannaf, 12330, 12332).
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: '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. And al-Bayhaqi said: we report from Sa'id b. Jubayr, from Ali: '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: 'the chaste women among the believers' (Surah al-Nisa, 24), and they are women having husbands; and because the death of the husband is neither established nor known outwardly: it is not permitted for her to marry as before 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 not being ruled except after the divorce is established, and separation by death being the same (references as cited above).
The Malikis, al-Shafi'i in the earlier view and the Hanbalis held that if the missing husband is in a place where death predominates outwardly, his wife waits four years, more than the maximum duration of pregnancy, then observes the waiting period of death of four months and ten days and becomes lawful to husbands; because Allah said: 'and do not keep them back to harm them and to exceed the limits' (Surah al-Baqarah, 231), keeping her with him in this state being 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 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 reported the detailed account already cited of the man lost in the time of Umar, ending with: Umar gave him the choice between his wife and the mahr; he chose the mahr and said: 'she is pregnant, I have no need of her' (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 said 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 said together: she waits four years, then the guardian of her husband divorces her, then she counts four months and ten days; on the maintenance, Ibn Umar said: she has it from his wealth for she confines herself for his sake, and Ibn Abbas said: not so, that would wrong the heirs, but she becomes his creditor on his wealth (narrated by Ibn Abi Shaybah, 16717-16718, and Sa'id b. Mansur, 1756). And because annulment, once deserved by impotence and by insolvency, 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; al-Mughni, 8/106; al-Mubdi', 8/127-128; al-Insaf, 9/288; Kashshaf al-Qina', 5/493; Manar al-Sabil, 2/449-450).
Ibn Qudamah (may Allah have mercy on him) said: al-Athram reported that Abu Abdillah (Ahmad) was asked: do you adopt the hadith of Umar? He said: it is the best of them; Umar is reported by eight routes. Then he said: they claim that Umar retracted: these are liars. I said: it was reported through a weak route that Umar said the opposite; he said: no, unless someone lies. I told him once: a man told me that Abu Abdillah abandoned his view on the missing person after you; he laughed and said: whoever abandons this view, what does he say?! It is the view of Umar, Uthman, Ali, Ibn Abbas and Ibn al-Zubayr. Ahmad said: five Companions of the Prophet (peace be upon him); Ata', Umar b. Abd al-Aziz, al-Hasan, al-Zuhri, Qatadah, al-Layth, Ali b. al-Madini and Abd al-Aziz b. Abi Salamah followed it; Malik and al-Shafi'i in the earlier view; except that Malik said: the one lost in battle has no waiting period; and Sa'id b. al-Musayyib said concerning the woman whose husband is lost between the two lines: she waits one year, for here the predominance of his death is greater, the cause being present.
It was reported from Ahmad: 'I used to say: if she waits four years then observes four months and ten days, she marries; I have become unsure about it and feared the answer when the people differed, as if I love safety.' This is a suspension that allows the retraction of what he said, with a perpetual waiting, or scrupulousness: the madhhab then remains what he said first. The qadi said: most of our fellows hold that the madhhab is a single narration; in my view the issue has two narrations. Abu Bakr said: if the disagreement is established in the issue, no second ruling should be given without a proof of the transition; if consensus is established, the ruling follows what was stated explicitly; and the outward appearance of the madhhab is what we reported from the first narration, which the community transmitted from Ahmad; Ahmad moreover denied the narration of the one who reported from him a retraction from what we report from the narration of al-Athram.
Abu Qilabah, al-Nakha'i, al-Thawri, Ibn Abi Layla, Ibn Shubrumah, the partisans of opinion and al-Shafi'i in the recent view said: the wife of the missing person does not remarry until his death or his separation becomes clear; for what al-Mughirah reports from the Prophet (peace be upon him): 'The wife of the missing person remains his wife until her husband comes'; and al-Hakam and Hammad report from Ali: 'The wife of the missing person does not marry until his death or his divorce comes'; for this is doubt about the end of the marital bond: separation is therefore not established, as if his absence seemed safe. Our proof: what al-Athram and al-Jawzjani report by their chains from Ubayd b. Umayr: the account already cited of the man lost in the time of Umar, up to: Umar gave him the choice between his wife and the mahr; he chose the mahr and said: 'she is pregnant, I have no need of her'; Ahmad said: Umar is reported by three routes, and no dissenter is known among the Companions. Al-Jawzjani and others report by their chains from Ali concerning the wife of the missing person: 'she observes four years, then the guardian of her husband divorces her, then she observes four months and ten days; if her missing husband returns after that, he is given the choice between the mahr and his wife'; Uthman judged likewise, and Ibn al-Zubayr in the case of a client of theirs; these judgments spread among the Companions without being contested: it was therefore a consensus. As for the hadith they report from the Prophet, it is not established and the people of the Sunan do not mention it; what they report from Ali, al-Hakam and Hammad report it as mursal, and the musnad from him accords with our view; what they report is then referred to the missing person whose absence seems safe, to reconcile it with what we report; their statement 'it is doubt about the end of the marital bond' is rejected, for doubt is when the two states are equal, whereas here his death predominates (al-Mughni, 8/106-107).
Ibn Qudamah said: is it taken into account that the guardian of the husband divorces her, and that she then observes three periods? Two narrations. The first: it is taken into account, according to the hadith of Umar that we have reported and which Ahmad said is the best; and it is mentioned in the hadith of Ali that the guardian of her husband divorces her. The second: it is not taken into account, as Ibn Umar and Ibn Abbas said, and it is the analogy: a man's guardian has no guardianship over his wife's divorce; and because we have subjected her to the waiting period of death, the waiting period of divorce does not thereby become due upon her, as if his death were certain; and because the proof of his death appeared in a manner that permitted her marriage and imposed upon her the waiting period of death: it resembles the case in which two witnesses testified to this (al-Mughni, 8/107-108).
The Malikis, however, divided the missing person into five categories, with a ruling for each:
First category: the missing person in the land of Islam. His wife observes the waiting period of death according to what precedes, beginning after the term of four years, if she has brought her case before the ruler, his deputy, or the community of Muslims in the absence of a ruler, on condition that her maintenance has been secured from his wealth, leaving her enough to provide for herself; otherwise, if he has left her nothing, she may seek the dissolution of the marriage for lack of maintenance, according to its known condition in its place; this if she does not fear hardship, otherwise she seeks dissolution for harm: she is then more entitled than the one deprived of maintenance.
When she brings her case before the ruler, he grants a respite of four years, in the hope that his news will appear after the failure of the search in the places he is thought to have passed through. When the term of four years ends after the failure of the search, she enters the waiting period of death, needing neither an intention of entering it nor the ruler's permission; she may return to her husband before undertaking it, presuming his life. After undertaking the waiting period, she may no longer return to her husband's bond nor remain with him, his death being presumed by this undertaking; and there is no maintenance for her during her waiting period: it falls upon the husband, his death being presumed.
A divorce must be reckoned at the moment of undertaking the waiting period to free her for the first, for fear that he is alive; the divorce takes effect by the second husband's consummation with her, even if the first returns before the second's consummation: he is more entitled to her; after the consummation she is finally separated from the first and takes the entire mahr from him. If he has not consummated, she becomes lawful to the first missing husband if he returns with a new bond after the second, by the second's divorce or death, provided the first had divorced her twice before the second's consummation; or if the second had consummated intercourse rendering lawful (to the first) the thrice-divorced woman.
If the missing man returns after the second's contract, or his life or death becomes established, it is as if two guardians had married her each to a husband: she passes from the second if he enjoyed her without knowing of his return, his life, or that she was in the waiting period of death of the first; if he enjoyed her knowing one of these facts, she belongs to the missing man. The benefit of her belonging to the missing man in the third case is the annulment of her marriage from the second, his perpetual prohibition, and her inheritance for the first; this in four situations: his death during the waiting period, or after it without the second's contract, or a contract without consummation, or consummation with knowledge.
Malik (may Allah have mercy on him) said: if she marries after her waiting period has ended, whether her husband consummates or not, the first husband has no way to her; and this is our position (al-Muwatta, 2/572). Al-Zurqani (may Allah have mercy on him) said: the contract by itself frees her; then Malik retracted from this a year before his death and said: only the second's consummation, without knowledge of his being alive, frees her for the first, like the case of the two guardians; Ibn al-Qasim and Ashhab adopted it; he says in al-Kafi that it is the soundest by the route of athar, for it is an issue in which we imitate Umar, and which is not an issue of opinion (Sharh al-Zurqani, 2/575).
Second case: the husband's return after the second husband has consummated. The jurists differed: if the wife of the missing man has waited the waiting period, then married and the second husband has consummated, is the first husband given the choice between taking her back (she is then his wife by the first contract) and taking her mahr (she is then the wife of the second)? Or has he no way to her, she being the second's without choice?
The Malikis held that if the wife of the missing man has waited, observed the waiting period, then married and the second husband has consummated without knowledge of his return or his being alive, she passes from the first and there is no choice. Imam Malik said: if she marries after her waiting period has ended, whether her husband consummates or not, the first husband has no way to her; and if her husband overtakes her before she marries, he is more entitled to her. Malik said: I found that the people objected to what some reported from Umar b. al-Khattab: 'the first husband is given the choice if he returns: her mahr or his wife'; and it reached me that Umar b. al-Khattab judged concerning the woman whose husband divorces her while absent from her, then takes her back without his return reaching her although the divorce reached her, and she remarries: whether the second husband consummates or not, the first husband who had divorced her has no way to her; Malik said: this is the dearest of what I have heard in this and concerning the missing person (al-Muwatta, 2/575; al-Mudawwanah al-Kubra, 5/451; al-Istidhkar, 6/130-131; Sharh al-Zurqani, 2/575; al-Taj wa al-Iklil, 3/188; Mawahib al-Jalil, 5/402; Sharh Mukhtasar Khalil, 4/151; al-Sharh al-Kabir with the gloss of al-Dasuqi, 3/430-431).
The Hanbalis held that the first husband is given the choice between taking her back (she is his wife by the first contract) and taking her mahr (she is the wife of the second). For what Abd al-Razzaq reports from Ma'mar, from al-Zuhri, from Ibn al-Musayyib: 'Umar and Uthman judged concerning the missing man that his wife waits four years, then four months and ten days, then marries; if her first husband returns, he is given the choice between the mahr and his wife' (narrated by Abd al-Razzaq in his Musannaf, 7/85). Ubayd b. Umayr reported the detailed account already cited of the man lost in the time of Umar, whom Umar then gave the choice between his wife and the mahr, and he chose the mahr; and Ibn al-Zubayr judged likewise in the case of a client of theirs; no dissenter is known from them in their era: it was therefore a consensus.
Accordingly, if the first keeps her, she is his wife by the first contract; and the explicit statement of Ahmad is that the second needs no divorce, for his marriage was void inwardly. The qadi said: his analogy would require that he needs a divorce, for this is a marriage whose validity is disputed: he would be ordered to divorce so as to cut off the ruling of the second contract like the other corrupt marriages, and the first must keep apart from her until she completes her waiting period from the second. If he does not choose her, she remains with the second, and they did not mention a new contract for her; Ibn Qudamah (may Allah have mercy on him) said: the sound view is that a new contract must be renewed for her, for we have established the nullity of his contract by the first's return; and the saying of the Companions is referred to this by the clear evidence, for a man's wife does not become the wife of another by his mere abandonment of her. Abu al-Khattab said: the analogy is that if we judge separation outwardly and inwardly, she is the wife of the second, with no choice for the first, for she is finally separated from him by the judge's separation, like dissolution for poverty; and if we do not judge the separation inwardly, she is the wife of the first, with no choice for him.
When the first chooses to leave her, the mahr reverts against the second, according to the Companions' judgment to this effect, and because he separated between him and her by his contract and his consummation. Ahmad differed as to what reverts: it was reported from him that the mahr he himself gave her reverts against him; it is the choice of Abu Bakr, the view of al-Hasan, al-Zuhri, Qatadah and Ali b. al-Madini, according to the judgment of Ali and Uthman giving the choice between her and the mahr he himself paid; for he destroyed the counterpart, and the compensation reverts against him, like the witnesses of divorce retracting their testimony. Accordingly, if he paid her no mahr, nothing reverts; if he paid part of it, what he paid reverts; and it is possible that the mahr reverts against him and that the woman returns what remains of the mahr charged to her.
According to Ahmad, it is the mahr the second paid that reverts against him; for the destruction of the intimacy is from his side, and the value reverts; now the intimacy has value only with a husband or his like: it is thus the named mahr of the second that is due, not that of the first. Does the second husband revert against the woman for what was taken from him? Two narrations, mentioned by Abu Abdillah b. Hamid. The first: it reverts against her, for it is a penalty that weighed upon the husband because of his intercourse with her: he makes her return it like the one deceived. The second, more apparent: it does not revert against her, for the Companions did not rule restitution; Sa'id b. al-Musayyib reported: 'Umar and Uthman judged concerning the woman who does not know what befell her husband that she waits four years, then observes the waiting period of the one whose husband has died, four months and ten days, then marries if she wishes; if her husband returns, he is given the choice between his wife and the mahr; if he chooses the mahr, it falls upon the second husband and remains with her; if he chooses his wife, she is separated from the second until her waiting period expires; if her husband returns and the second has died, she inherits and observes the waiting period of death, then returns to the first'; al-Jawzjani narrated it (al-Mughni, 8/109). And because the woman cannot be deceived: nothing reverts against her, unlike the others; if we say 'it reverts against her': if he paid her the mahr it reverts; if he did not pay it, he pays it to the first and nothing reverts against her; if he paid part of it, what he paid reverts. If we say 'nothing reverts against her' and he paid her the mahr, it does not revert; if he did not pay it, payment is incumbent upon him, and he pays the first another mahr.
Imam Ibn al-Mundhir (may Allah have mercy on him) said: chapter on the choice given to the missing man, upon his return, between his wife and her mahr, if he returns after her marriage. They differed concerning the missing man who returns while his wife has remarried: Umar b. al-Khattab said that he is given the choice between his wife and taking her mahr, and this was reported from Uthman and Ali; Ata', al-Hasan, Khallas b. Amr, al-Nakha'i, Ahmad and Ishaq followed it. According to al-Thawri, al-Shafi'i and the people of Kufah: she is the wife of the first. A third opinion: the first husband has no right over her and is given no choice if he returns while she has remarried: it is the view of Malik (al-Ishraf, 5/109).
The shaykh of Islam Ibn Taymiyyah (may Allah have mercy on him) said: the sound view concerning the wife of the missing person is the madhhab of Umar b. al-Khattab and the Companions: she waits four years, observes the waiting period of death, and it is permitted her to marry after that; she is the wife of the second outwardly and inwardly; when the first husband returns after her marriage, he is given the choice between his wife and her mahr, with no difference between before and after the consummation; it is the outward appearance of Ahmad's madhhab. According to the sounder view, the judge is not taken into account: if the term and the waiting period elapse, she marries without a ruling. In sum, every case in which a man and his wife were separated by a cause requiring separation, and it then appears that this cause is absent, resembles the missing person; and the choice between the woman and the mahr is the most equitable of views (al-Fatawa al-Kubra, 4/587-588).
Imam Ibn al-Qayyim (may Allah have mercy on him) said: what was thought contrary to analogy is the judgment of the rightly-guided caliphs concerning the wife of the missing person; it is established from Umar b. al-Khattab that he granted his wife a respite of four years and ordered her to marry, then the missing man returned and Umar gave him the choice between his wife and her mahr. Imam Ahmad followed this and said: 'I do not know to what the one who holds another view would turn'; Abu Dawud said in his questions: I heard Ahmad being asked: is there anything in yourself concerning the missing person? He said: nothing in me; it is five Companions of the Messenger of Allah (peace be upon him) who ordered her to wait. Ahmad said: it is the poverty of a man's knowledge to speak about the wife of the missing person.
Some of the successors among Ahmad's companions said that Umar's madhhab concerning the missing person contradicts analogy, analogy requiring that she be the returner's wife in every state, unless one says 'separation penetrates outwardly and inwardly': she is then the wife of the second in every state. Some dissenters exceeded to the point of saying that if a judge ruled according to Umar's view, his ruling would be annulled, so far is it from analogy. A third group retained part of Umar's view and abandoned part of it: if she marries and the second consummates, she belongs to him and is not returned to the first; if the second does not consummate, she is returned to the first.
Our shaykh said: whoever contradicted Umar did not attain what Umar attained of sound experience in analogy; this is established by a principle: the suspension of contracts when a man disposes of another's right without his permission: is his act annulled, or suspended until his approval? Two famous views, two narrations from Ahmad: the first, that it is suspended until approval: it is the madhhab of Abu Hanifah and Malik; the second, that it is not suspended: it is the more famous of al-Shafi'i's two views, in marriage, sale and lease. The outward appearance of Ahmad's madhhab is the detail: when the one disposing is excused by the impossibility of asking permission and has need to dispose, the contract is suspended until approval, without dispute; if the request was possible, or if there was no need, it is disputed. The first is like the one holding wealth whose owners he does not know, such as seized and usurped property: when knowing the owners becomes impossible for him and he despairs of it, the madhhab of Abu Hanifah, Malik and Ahmad is that he gives it as charity on their behalf; if they appear afterward, they are given the choice between ratification and compensation. This is what the Sunnah brought concerning the lost object: the finder takes it after proclamation and disposes of it; if the owner comes, he is given the choice between ratifying this disposal and claiming the object: a suspended disposal when the request was impossible and the need was present. Likewise the bequest beyond the third is suspended upon the heirs' approval according to the majority, the choice taking place after death. The missing person whose news is cut off: if one says 'his wife remains until his news becomes known', she remains neither widow nor wife until the end of the established rules or death; and the Shariah does not bring anything like this: when four years were granted to her and his news was not clarified, his death is presumed outwardly and more.
The second is the interpretation of Ibn Abbas's hadith: he married her while he was in the Sanctuary in a state of being free from ihram; the one in the Sanctuary is called muhrim even if he is in a state of lawfulness: it is a common and known usage of language, witnessed by the famous verse: 'they killed Uthman the caliph, a muhrim', meaning in the Sanctuary of Madinah. The third: word and deed contradicted each other: the sound view, according to the usulis, is then to prefer the word, for it extends to others, whereas the deed may be restricted to him. The fourth is the answer of a group of our fellows: the Prophet (peace be upon him) could marry while in ihram; it is a peculiarity exclusive to him over the community, and it is the sounder of the two views according to our fellows; the second view is that it is unlawful for him as for the others and is not among his peculiarities.
As for his saying 'and does not marry', it means: he does not give a woman in marriage by guardianship or by agency; the scholars gave its reason: when it was forbidden him, during ihram, to contract for himself, he became like the woman and contracts neither for himself nor for another. The outward appearance of this generality is that no difference is made between giving in marriage by specific guardianship (the father, the brother, the uncle and the like) or by general guardianship (the ruler, the judge and his deputy): this is the sound view according to us, followed by the majority of our fellows; some of our fellows said that the muhrim may give in marriage by general guardianship, for it secures what the specific one does not: this is why it is permitted to the Muslim to give in marriage the dhimmi woman by general and not specific guardianship.
It is said: the named mahr is due in both cases: it is the madhhab of Malik, more famous in Ahmad's text; he even stated it for the one who corrupted his wife's marriage by breastfeeding: it is the named mahr that reverts against him. The Book and the Sunnah indicate this view: Allah said:
'So ask for what you have spent, and let them ask for what they have spent. That is the ruling of Allah by which He judges between you, and Allah is All-Knowing, All-Wise.'
Surah al-Mumtahanah, 10
and 'if any of your wives flee to the disbelievers and you then carry out an expedition, pay those whose wives have gone the like of what they had spent' (Surah al-Mumtahanah, 11): it is indeed the named mahr, not the mahr of equivalence; this is why the Prophet (peace be upon him) ordered the husband of the khul' wife to take back what he had given her, and not the mahr of equivalence; and Allah, in all exchanges, ordains justice.
The Commander of the Believers' judgment concerning the missing person rests upon this principle; and the suspension of contracts in case of need is agreed upon by all the Companions: it is established from them in multiple judgments, without it being known that any of them rejected it; like Ibn Mas'ud's judgment of giving charity on behalf of the slave girl he had bought at the price of his debt, when it became impossible for him to find her; and the charity given by the collector upon the sequestered wealth of the spoils when its division among the army became impossible, with Mu'awiyah's approval and ratification; and other judgments. The view of suspending contracts absolutely is moreover the most apparent in proof: it is the view of the majority, and there is no harm in it at all: it is a reform without corruption; for a man may wish to buy for another, sell for him, lease to him or hire from him, then consult him: whether he approves or not, nothing harmful comes to him; the same applies to giving in marriage his ward. In case of need, this view must be held: the issue of the missing person is among those in which the separation pronounced by the leader is suspended upon the husband's permission upon his return, as the disposal of the lost object is suspended upon the owner's permission; likewise the view of returning the mahr to the husband through the departure of his wife's intimacy from his ownership.
They disputed over the mahr that reverts: is it what he gave her, or what the second gave her? Two narrations from Ahmad: the first, that what the second paid reverts, for she is the one who took it; the sound view is that what he himself paid reverts, for he is the one entitled to it; as for the mahr paid by the second, he has no right over it. If the second guarantees the first the mahr, does it revert against the woman? Two narrations from Ahmad: the first, that it reverts, for she is the one who took it, and the second already paid her the mahr that weighed upon him: he does not guarantee two mahr, unlike the woman who, having chosen separation from the first and marriage to the second, must return the mahr, the separation coming from her. The second: that it does not revert, for the woman deserves the mahr for what he made lawful of her intimacy, and the first deserves the mahr through the departure of the intimacy from his ownership: it is therefore upon the second; this is what is reported from Umar concerning the missing person; according to some jurists it is the view farthest from analogy, to the point that some imams said: 'if a judge ruled so, his ruling would be annulled'; yet it is the soundest of views and the nearest to analogy, and every other view is error: whoever says 'she is returned to the first in every state' or 'she remains with the second in every state' is mistaken; how could she be returned to the one who does not choose her, does not want her, and for whom a lawful separation was pronounced which he himself approved? When the imams saw that reality contradicted their conviction, the right belongs to the husband: if he approves what the judge did, the danger disappears.
As for her belonging to the second in every state, while her husband has reappeared and reality contradicts the judge's act: this too is an error; for he is a Muslim who did not leave his wife: they were separated by a cause that proved nonexistent, and he seeks his wife; how could he be barred when his wealth, or its equivalent, would be returned to him if he sought it? Are his kin not dearer to him than his wealth?! If it is said 'the second's right attached to her', it is answered: the first's right precedes the second's, and the cause by which the second was entitled to have her as his wife proved void; and what requires considering the second's right to the detriment of the first's? The sound view is what the Commander of the Believers Umar b. al-Khattab (may Allah be pleased with him) judged; this is why Ahmad marveled at the dissenters; and when the truthfulness and soundness of the Companions (may Allah be pleased with them) appear in these delicate issues which imams like Abu Hanifah, Malik and al-Shafi'i opposed them in, it is all the more fitting that the right be with them (the Companions) in what these imams followed them in (I'lam al-Muwaqqi'in, 2/54-57).
Imam Abu Bakr Ibn al-Mundhir (may Allah have mercy on him) said: all the scholars whose memory has reached us agreed that if a woman subject to menses menstruates once or twice and then becomes one of those who have despaired, she restarts the counting of the months (al-Ishraf, 5/357). And Ibn al-Qattan al-Fasi (may Allah have mercy on him) said: they agreed that the one who divorces his wife while she is among those who menstruate, and she counts one menstruation then despairs of menstruating, starts three months; likewise the woman divorced while she did not menstruate from the outset, who counts one month and then sees menses: she starts three periods by consensus; except al-Hasan b. Salih, who said: she counts that menstruation as a month, then two other months, and she is free (al-Iqna' fi Masa'il al-Ijma', 3/1303, no. 2385).
Third case: the transition of the woman counting from the waiting period of divorce to the waiting period of death. When a man divorces his wife and then dies during her waiting period, this is never without two types. The first: he divorces her with a revocable divorce and then dies during her waiting period: the scholars agreed that if the husband divorces his wife with a revocable divorce, she counts, and the husband dies during the waiting period, she passes to the waiting period of death of four months and ten days if she is not pregnant, whether he divorced her in illness or in health; the waiting period of divorce collapses and she must restart the waiting period of death, with no disagreement among the scholars; for she is his wife after the divorce, the revocable divorce not bringing about the end of the marital bond; and the death of the husband imposes upon his wife the waiting period of death, by 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
as if he had died before the divorce.