First and second cases: the husband divorces while healthy, or while ill then dies during the waiting period

This part belongs to the full section: All sections of this part.

This final part of the chapter on the 'iddah (the waiting period) deals with the remaining questions: the status of the waiting period when the husband divorces while healthy, or while ill with the sickness that leads to his death; the end of the waiting period by the mere lapse of time when the woman is unaware of the divorce or the death; the place of the waiting period for the widow and for the divorced woman; the housing and maintenance of the woman given three divorces; and finally the exit of the observing woman from her home for her needs. Each question is presented with the positions of the schools of law and their proofs.

First and second cases: the husband divorces while healthy, or while ill then dies during the waiting period

The jurists of the four schools agree that when the husband divorces his wife with an irrevocable divorce (ba'in) or with three divorces, and she does not inherit from him because he divorced her while healthy, her waiting period does not turn into the waiting period of death. Allah has made the waiting period of death obligatory upon wives by His saying:

"Those of you who die and leave wives behind: they shall wait by themselves for four months and ten days."

Surah al-Baqarah, 234

Marriage has, however, ended through the irrevocable divorce and the three divorces, which makes it impossible to impose the waiting period of death, and the waiting period of divorce remains as it is. (Sources: "Bada'i' al-Sana'i'" (3/200), "al-Mughni" (8/94), and the previously cited sources.)

Second case: the husband divorces his wife with an irrevocable divorce or with three divorces while he is ill, then dies while she is still in her waiting period. The jurists differed: does it turn into the waiting period of death or not?

Imam Abu Yusuf, of the Hanafi school, along with the Malikis, the Shafi'is and Ibn al-Mundhir, held that it does not. Allah has made the waiting period of divorcees one of equals (three menstruations), and the scholars agreed that if the woman given three divorces dies, the one who divorced her does not inherit from her, because she is no longer his wife; if she is no longer his wife, he is no longer her husband. The Law only imposed the waiting period of death upon wives, and the marital bond has ended through the irrevocable divorce; it was kept only for inheritance, in order to remove any suspicion of escaping. Whoever claims that this bond remains for the obligation of the waiting period of death must produce proof. Allah has said:

"Divorced women shall wait by themselves for three menstrual periods."

Surah al-Baqarah, 228

and He said:

"And for those who are pregnant, their term is until they deliver their burden."

Surah at-Talaq, 4

Indeed, the woman divorced while he is ill is like the woman divorced while he is healthy, and the husband's illness has no effect on increasing or decreasing the waiting period, neither for the woman nor for the husband, as shown by the fact that if she had left her waiting period before his death, no new waiting period would have been imposed upon her; just as if he had divorced her while ill, only what is due from the woman divorced while the husband is healthy would be required of her. It is likewise if he dies while she is still in her waiting period.

Imam Abu Hanifa, Muhammad (al-Shaybani) and the Hanbalis held that if he divorces her with three divorces during the death-sickness, then dies before her waiting period ends, and she inherits from him, she observes the longer of the two terms: that of the waiting period of death or that of the three menstruations. She therefore observes four months and ten days, in which she must have three menstruations; to the point that if she does not see her menses during those four months and ten days, she must complete them afterwards. The same applies to any observing woman who inherits, such as the wife of the apostate: if the husband apostatizes after consummating the marriage, which requires a waiting period of her, then dies or is killed and she inherits from him, the waiting period of death is due from her as in the revocable divorce, and the waiting period of divorce also remains due to her. Since marriage remained in force for inheritance, it is even more fitting that it remain in force for the obligation of the waiting period, the waiting period being imposed as a precaution: the existence of marriage from one side alone suffices, as a precaution, to make the waiting period obligatory. She must therefore observe four months and ten days including three menstruations. (Sources: "Bada'i' al-Sana'i'" (3/200), "al-Muhit al-Burhani" (4/81), "al-Bahr al-Ra'iq" (4/148, 149), "al-Mudawwana al-Kubra" (5/34), "al-Ishraf 'ala Nukat Mas'il al-Khilaf" (4/26, 27), number (1381), "Tafsir al-Qurtubi" (3/182), "Jawahir al-'Uqud" (2/150), "al-Iqna'" (2/466), "Mughni al-Muhtaj" (5/101), "al-Ishraf 'ala Madhahib al-'Ulama'" by Ibn al-Mundhir (5/358).)

If the sick husband dies after his wife's waiting period has expired (by menstruations, months or pregnancy), or if his divorce took place before consummation, no waiting period is due from her for his death. Allah has said:

"O you who believe, when you marry believing women and then divorce them before you have touched them, there is no waiting period for you to count against them."

Surah Luqman, 49

and He said: "Divorced women shall wait by themselves for three menstrual periods" (Surah al-Baqarah, 228), and He said:

"And those of your women who no longer expect menstruation: if you doubt, their term is three months; and likewise those who have not yet menstruated."

Surah at-Talaq, 4

(Sources: "Bada'i' al-Sana'i'" (3/200), "al-Muhit al-Burhani" (4/81), "al-Bahr al-Ra'iq" (4/148, 149), "al-Jawhara al-Nira" (5/14), "al-Lubab" (2/145), "al-Mughni" (8/94).)

The end of the waiting period by the lapse of the term (the woman informed only after expiry)

The jurists differed concerning the wife who remains unaware of her husband's death or her divorce until the waiting period has expired, or until after a long interruption: must she begin observing a waiting period anew?

The majority of scholars, of the Hanafi, Maliki, Shafi'i and Hanbali schools (the position of the madhhab), following Ibn Mas'ud, Ibn 'Abbas, Ibn 'Umar, 'Ata' and Jabir b. Zayd, and the position of the jurists of the cities, holds that if the wife learns of her husband's death only after the waiting period has expired, no waiting period is due from her: her waiting period has lapsed and nothing of it remains. The waiting period begins from the moment of death, not from the moment of knowledge of the death. Since the cause of the obligation of the waiting period is divorce or death, its starting point is taken from the time the cause exists: if she only learned of the divorce or death after the term had passed, her waiting period is complete.

If the husband was absent and his death occurred during a period sufficient to complete the waiting period, there is no waiting period; if she has doubt about the count, she observes from the moment she becomes certain of his death.

Likewise, the majority of scholars (the Hanafis, Malikis, Shafi'is and Hanbalis of the madhhab), following 'Ali, al-Hasan al-Basri, Khallas b. 'Amr and Rabi'a, holds that if the husband divorces his wife and she learns of it only after the waiting period has expired, no waiting period is due from her. What counts is the time of the divorce, not the time of knowledge, the divorce being the cause of the obligation of the waiting period; like the minor girl who observes despite having no intention of her own. If the husband was absent and his divorce occurred during a period sufficient to complete the waiting period, there is no waiting period; if she has doubt about the count, she observes from the moment she becomes certain of it.

The Malikis, however, said: when news of her husband's death reaches her, her waiting period runs from the day of death; if it has not reached her before her waiting period expires, no mourning (ihdad) is required of her and she is released from the prohibition. Likewise if she is divorced while the husband is absent: her waiting period runs from the day of the divorce, provided she establishes proof of the divorce; failing proof, if the husband returns and says "I had divorced her", the waiting period runs from the day of his declaration, and he has no right of return for less than three divorces if the waiting period is completed from the day of his claim. She inherits from him during the waiting period counted from the day of his explicit declaration, for she is indeed in her waiting period; he does not inherit from her, her waiting period having ended through his declaration, unless proof is established: she then observes from the time the proof mentions. This applies to the revocable divorce. As for the irrevocable divorce, there is no mutual inheritance between them in any case, and he does not reclaim from her what he spent of his wealth after the divorce before she learned of it, for he was negligent. (Sources: "Tahdhib al-Mudawwana" (1/377), "al-Taj wa-l-Iklil" (3/182), "Sharh Mukhtasar Khalil" (4/145), "al-Sharh al-Kabir" with "Hashiyat al-Dasuqi" (3/425, 426), "Minh al-Jalil" (4/17).)

It is narrated from Imam Ahmad that if proof is established, the ruling is the same for death and divorce; without proof, her waiting period runs from the day the news reaches her.

Imam Abu Bakr al-Jassas (may Allah have mercy on him) said: Allah explicitly established the obligation of the waiting period for death and divorce by His saying: "Those of you who die and leave wives behind: they shall wait by themselves" (Surah al-Baqarah, 234), just as He said: "Divorced women shall wait by themselves for three menstrual periods" (Surah al-Baqarah, 228). He thus imposed the waiting period in both cases, on account of death and of divorce; it follows that the waiting period, in both cases, runs from the day of death and of divorce. Yet they agreed that the waiting period of the divorcee runs from the day of the divorce, without regard to when the news arrives; the same applies to the waiting period of death, both being causes of the obligation of the waiting period.

Moreover, the waiting period is not an act of the woman in which her knowledge would be considered; it is nothing but the lapse of time, with no difference between her knowing of it or not knowing.

Likewise, the waiting period is owed on account of death just as inheritance is; yet in inheritance only the moment of death is considered, not the moment the news arrives: the waiting period must therefore be the same, with knowledge and ignorance making no difference, just as in inheritance.

Furthermore, the most that knowledge brings her is to avoid what every observing woman avoids (going out and adornment) once she is informed; if she is not informed, her failure to avoid what must be avoided during the waiting period does not prevent the waiting period from completing. Had she known of the death and still not avoided going out and adornment, that would have had no effect on the completion of the waiting period; it is the same when she is unaware of it. (Source: "Ahkam al-Qur'an" by al-Jassas (2/121).)

Ibn Qudama (may Allah have mercy on him) said: issue: "If her husband divorces her or dies while he is away from her, her waiting period runs from the day of his death or his divorce, if that is established with her, even if she does not abstain from what the observing woman abstains from." This is the most famous position of the madhhab: as soon as the husband dies or divorces, her waiting period runs from the day of death or divorce.

Abu Bakr (al-Khiraqi) said: no disagreement is reported to me from Abu Abdallah (Ahmad) concerning the fact that the waiting period begins from death and divorce, except what Ishaq b. Ibrahim narrated. This is the position of Ibn 'Umar, Ibn 'Abbas, Ibn Mas'ud, Masruq, 'Ata', Jabir b. Zayd, Ibn Sirin, Mujahid, Sa'id b. Jubayr, 'Ikrima, Tawus, Sulayman b. Yasar, Abu Qilaba, Abu al-'Aliya, al-Nakha'i, Nafi', Malik, al-Thawri, al-Shafi'i, Ishaq, Abu 'Ubayd, Abu Thawr and the people of opinion.

From Ahmad: if proof is established, the matter is as mentioned; otherwise her waiting period runs from the day the news reaches her. This was narrated from Sa'id b. al-Musayyib and 'Umar b. Abd al-Aziz.

It is narrated from 'Ali, al-Hasan, Qatada, 'Ata' al-Khurasani and Khallas b. 'Amr that her waiting period runs from the day the news reaches her, the waiting period consisting in abstaining from certain things, and she abstained from what she abstained from.

Our proof: if she was pregnant and delivered her burden without knowing she was separated from her husband, her waiting period is complete; the same applies to the other types of waiting periods. It is a period following death or divorce: she must therefore observe it as if he were present. Intention is not considered in the waiting period, as shown by the fact that the minor and the insane complete their waiting period without intention, and nothing is lacking here except intention. It makes no difference whether she abstained or not from what the observing women abstain from: the obligatory mourning (ihdad) is not a condition of the waiting period; whether she abandons it deliberately or not, her waiting period completes. Allah has said: "they shall wait for three menstrual periods" (Surah al-Baqarah, 228), and He said: "their term is three months" (Surah at-Talaq, 4), and He said: "And for those who are pregnant, their term is until they deliver their burden" (Surah at-Talaq, 4); requiring mourning would contradict these texts, so it must not be required. (Source: "al-Mughni" (8/136).)

The completion of the waiting period varies with its type: if the woman is pregnant, her waiting period ends with the delivery of the whole pregnancy; if it is counted by menstruations, it ends with three menstruations; if it is counted by months, it is reckoned from the separation or the death until three months or four months and ten days have passed.

Imam al-Kasani (may Allah have mercy on him) clarified by what the waiting period ends: it ends in two ways, by word and by deed. The word consists in informing the observing woman of the completion of her waiting period within a duration similar to that in which completion is conceivable. If she is a free woman of the months category, she is not believed for less than three months in the waiting period of divorce, nor for less than four months and ten days in the waiting period of death. If she is a free woman of the menstruations category and is observing for death, she is not believed for less than four months and ten days; if she is observing for divorce, her declaration of completion within a duration in which the waiting period can complete is accepted, and rejected if the duration is insufficient, for the word of a truthful person is only accepted in what outward appearances do not belie, and here the outward appearance belies her. Her word is therefore only accepted if she explains it with an oath, and then it is accepted, the outward appearance no longer belying her with this explanation. The minimum for which the observing woman of the menstruations category is believed is sixty days according to Abu Hanifa, and thirty-nine days according to Abu Yusuf and Muhammad. As for the deed, it consists in remarrying another husband after the lapse of a duration in which the waiting period can complete; even if she says "my waiting period is not complete", she is not believed, neither in regard to the first husband nor the second, and the marriage with the second is valid: her venturing into marriage after a plausible duration is proof of completion. (Sources: "Bada'i' al-Sana'i'" (3/198); see also "al-Bahr al-Ra'iq" (4/144), "Sharh Fath al-Qadir" (4/329), "Mukhtasar Ikhtilaf al-'Ulama'" (2/385), "Tafsir al-Qurtubi" (3/182), "al-Umm" (5/216), "Sharh al-Sunna" by al-Baghawi (9/314), "Jawahir al-'Uqud" (2/151), "al-Hawi al-Kabir" (11/317), "al-Muhalla" (10/311).)

The place of the waiting period of the widow

The observing woman observes either a death or a divorce, the latter being revocable or irrevocable; each of these forms has its details, although most scholars hold that she observes in the marital home. Here is the exposition.

The jurists differed over the place of the widow's waiting period: is she obliged to remain in her husband's house and not leave except out of necessity, or may she observe in whatever place she wishes? Two positions are held.

The first position: she must remain in her husband's house in which death reached her. This is the view of most scholars among the four imams and others. Ibn Qudama (may Allah have mercy on him) said: it is the view of 'Umar and 'Uthman (may Allah be pleased with them), narrated from Ibn 'Umar, Ibn Mas'ud and Umm Salama; Malik, al-Thawri, al-Awza'i, Abu Hanifa, al-Shafi'i and Ishaq hold it. Ibn Abd al-Barr said: it is also the view of a group of the jurists of the Hijaz, Syria, Iraq and Egypt. They cited as proof Allah's saying:

"Do not expel them from their houses, nor should they leave, unless they commit a flagrant indecency."

Surah at-Talaq, 1

Imam al-Shafi'i (may Allah have mercy on him) said, concerning this verse: this verse concerned the divorcees, and since the women observing for death are in the same position as the woman observing for divorce, the obligation of residence imposed upon the divorcees and the prohibition of expelling them may indicate the same ruling for those resembling them among the widows, for they resemble them in the waiting period. He also said: the Sunna of Allah's Messenger indicates that the widow must remain in her house until the prescribed term reaches its end; but it is possible that this applies to the divorcees rather than the widows. (Source: "al-Umm" (5/226).)

Supporting this is the hadith of Sa'd b. Ishaq, from Ka'b b. 'Ujra, from his aunt Zaynab bint Ka'b, from Furay'a bint Malik (may Allah be pleased with her), who said:

"My husband had gone out seeking what he needed; they caught up with him at the edge of al-Qadum and killed him. News of my husband's death then reached me while I was in a spacious dwelling of the Ansar, far from my family's home. I went to the Prophet (peace and blessings of Allah be upon him) and said: O Messenger of Allah, news of my husband's death has come and I dwell in a house far from my family's home and that of my brothers; he left me neither wealth to spend on me, nor an inheritance, nor a house of his own. See, then, whether you permit me to join my family's home and that of my brothers, for that is dearer to me and gathers me better in part of my affair. He said: Do it if you wish. She said: I went out with a relieved eye at what Allah had decreed for me through the tongue of His Messenger; then, when I was in the mosque, or in part of the chamber, he called me and said: How have you judged? I told him the story. He said: Stay in the house in which the news of your husband reached you, until the prescribed term reaches its end. She said: So I observed my waiting period of four months and ten days there. Then 'Uthman sent for me, I informed him, and he adopted this ruling."Authentic hadith, reported by Abu Dawud (2302), An-Nasa'i (3532), Ibn Majah (2031) and Ahmad (27132)

Ibn Abd al-Barr (may Allah have mercy on him) said: this hadith of Sa'd b. Ishaq, famous among the jurists of the Hijaz and Iraq, applied by them and welcomed by them, who accepted it and issued fatwas upon it, is the view of Malik, al-Shafi'i, Abu Hanifa and their companions, al-Thawri, al-Awza'i, al-Layth b. Sa'd and Ahmad b. Hanbal: all of them hold that the widow observes in the dwelling she inhabited, whether it belonged to her or to her husband, and that she does not spend a night outside it until her waiting period is complete; she may leave it by day for her needs. This is the view of 'Umar, 'Uthman, Ibn Mas'ud, Umm Salama, Zayd b. Thabit and Ibn 'Umar; Malik held it as well, as did al-Qasim b. Muhammad, 'Urwa b. al-Zubayr and Ibn Shihab. (Source: "al-Istidhkar" (6/214).)

The majority of jurists, Hanafis, Malikis, Shafi'is and Hanbalis, established that she may go out by day for her needs, and part of the night according to one Hanafi position and according to the Shafi'is, but that she must not spend the night away from her residence. She needs to go out by day to earn what she spends, having no maintenance from the deceased husband: her maintenance is upon herself. She therefore needs to go out to obtain maintenance, and does not go out at night, there being no need to go out at night.

When she goes out by day for her needs, she does not spend the night away from the residence in which she observes; the basis of this is the hadith of Furay'a mentioned above. This hadith conveyed to us two rulings: the permissibility of going out by day and the prohibition of relocating; since he did not disapprove of her going out and did not prevent her from it, it indicates the permissibility of going out by day without relocating.

Mujahid reported:

"Men were martyred on the day of Uhud; their women came to Allah's Messenger (peace and blessings of Allah be upon him) and said: O Messenger of Allah, we feel fear at night and we spend the night at one of our homes, then in the morning we return each to her house. Allah's Messenger said: Converse at one of your homes as you wish; then, when you wish to sleep, let every woman return to her house."Weak hadith, reported by Al-Bayhaqi (7/436) and Abd al-Razzaq (7/36)

'Alqama reported that "women of the tribe of Hamdan received news of the deaths of their husbands; they asked Ibn Mas'ud (may Allah be pleased with him) and said: we feel fear. He ordered them to gather by day, then, when night came, each woman to return to her house".

Malik reported in the "Muwatta'", from Yahya b. Sa'id, that it reached him

"that As-Sa'ib b. Khabbab died, and his wife came to Abdallah b. Omar, informed him of her husband's death, mentioned a field they owned at Qana, and asked him whether it was permissible for her to spend the night there. He forbade her from that. She would then leave Medina at dawn, reach their field, spend the day there, and enter Medina in the evening, spending the night in her house"Weak hadith, reported by Malik in the Muwatta' (1231)

Malik reported from Nafi' that Abdallah b. 'Umar used to say:

"Neither the woman whose husband has died nor the woman given three divorces may spend the night except in her house."Authentic hadith, reported by Malik in the Muwatta' (1233)

The night is indeed a time prone to corruption, so it is not permitted for her to leave it without necessity.

It is narrated from Muhammad (al-Shaybani) that he said: there is no harm in her sleeping away from her house less than half of the night, for "spending the night at home" in common usage means dwelling in the house for most of the night; less than that is not called spending the night at home in usage. The residence she is commanded to dwell in while observing is the place she inhabited before parting from her husband and before his death, whether he resided there or not; for Allah attributed the house to her by saying: "Do not expel them from their houses" (Surah at-Talaq, 1), and the house attributed to her is the one she dwells in. This is in the case of free choice.

As for the case of necessity: if she is compelled to leave her house, through fear of losing her dwelling, fear for her belongings, a rented dwelling whose rent she cannot pay during the waiting period of death, fear of thieves, or being among dissolute people she fears for herself: there is then no harm in her relocating. If the dwelling belonged to her deceased husband, she may dwell in her share if it suffices for her residence and shields her from the other heirs who are not her mahrams; if her share does not suffice her, or she fears for her belongings from them, there is no harm in her relocating. This is so because residence became obligatory by way of worship, as a right of Allah upon her, and acts of worship fall away for valid excuses.

It is narrated that when 'Umar (may Allah be pleased with him) was killed, 'Ali (may Allah be pleased with him) relocated Umm Kulthum (may Allah be pleased with her), for she was dwelling in the house of governance; and that 'A'isha (may Allah be pleased with her) relocated her sister Umm Kulthum bint Abi Bakr when Talha (may Allah be pleased with him) was killed. This indicates the permissibility of relocating for a valid excuse.

The Hanafis said: if she can pay the rent of the house during the waiting period of death, there is no excuse and the act of worship is not waived from her, like the one performing tayammum (dry ablution for lack of water) who is able to buy water: if he finds the price, buying is obligatory upon him; if he is not able, he is not obligated, due to the excuse of absence. It is the same here.

The Hanafis and Malikis also established that if she relocates for an excuse, her residence in the house she moved to has the same status as her residence in the one she left, in the prohibition of leaving it: since the relocation from the first dwelling to it occurred for an excuse, the dwelling she moved to becomes as her original residence, and she must remain in it until the waiting period completes. (Sources: "Bada'i' al-Sana'i'" (3/205, 206), "Tabyin al-Haqa'iq" (3/37), "al-Jawhara al-Nira" (5/32, 33), "al-Istidhkar" (6/214), "al-Qawanin al-Fiqhiyya" (158), "al-Bayan" (11/74), "al-Najm al-Wahhaj" (8/169, 170), "Mughni al-Muhtaj" (5/112, 113), "al-Mughni" (8/127, 128), "al-Kafi" (3/323, 324), "al-Insa" (9/308), "al-Rawd al-Murbi'" (2/457).)

The Hanbalis said: she must observe in the dwelling in which her husband died while she was residing in it, whether it was owned by the husband, rented, or borrowed; the Prophet (peace and blessings of Allah be upon him) said to Furay'a: "Stay in your house", while she was not in a dwelling owned by her husband; in some of the wordings: "Observe your waiting period in the house in which the news of your husband reached you", and in a wording: "Observe your waiting period where the news reached you". If the news reaches her elsewhere than in her dwelling, she returns to her dwelling and observes there.

Ibn Qudama (may Allah have mercy on him) said: if she fears collapse, drowning, an epidemic or the like, or the owner removes her because the dwelling is a loan (and she returns there), or the term of a lease has expired, or the owner denies her residence wrongfully, or refuses to house her, or demands more than the market rent, or she finds nothing to rent with, or finds it only from her own wealth: it is permissible for her to relocate, for that is a case of excuse, and she owes no rent of the dwelling for that. What is obligatory upon her is the act of dwelling, not obtaining a dwelling; if dwelling becomes impossible, the obligation falls away, and she may reside wherever she wishes; al-Qadi (Abu Ya'la) mentioned this.

Abu al-Khattab mentioned that she relocates to the nearest place possible for relocation; this is the madhhab of al-Shafi'i, it being nearer to her present situation; likewise the one who owes zakat in a place where the rightful claimants are not found: he transports it to the nearest place in which they are found. Our reply: the obligation falls away for an excuse without the Law intending a substitute for it, and nothing is then required, just as Hajj falls away for incapacity or the loss of one of its conditions, and the i'tikaf of one who cannot retreat in the mosque. What they mention is establishing a ruling without a text or a meaning equivalent to a text: the meaning of observing the waiting period in her house is not found, anything near it, in dwelling next to the place where the rightful claimants are found; seeking the nearest is beneficial, and transporting her to the nearest place where she finds them is beneficial; hence it is required. (Source: "al-Mughni" (8/127, 128).)

The second position: she is not obliged to remain in her husband's house; rather she observes wherever she wishes. This is a narration from Imam Ahmad and the choice of al-Muzani among the Shafi'is, also chosen by a group of the early generations from among the Companions and others: 'Ali b. Abi Talib, Ibn 'Abbas, Jabir, 'A'isha, Jabir b. Zayd, al-Hasan, 'Ata', Tawus and 'Ikrima; al-Baghawi narrated it from Abu Hanifa; it is also the position of Dawud al-Zahiri and Ibn Hazm. (Sources: "al-Mughni" (8/144), "Fatawa al-Subki" (2/317), "al-Insa" (9/306, 307), "Kashaf al-Qina'" (5/331), "Hashiyat Ibn al-Qayyim 'ala Sunan Abi Dawud" (6/290), "al-Jami' li-Ahkam al-Qur'an" (3/177), "al-Muhalla" (10/282).)

They cited as proof Allah's saying:

"Those of you who die and leave wives behind: a testament in favor of their wives, provision for a year without expelling them. If they leave, there is no blame upon you for what they do with themselves in a proper manner."

Surah al-Baqarah, 40

Mujahid (may Allah have mercy on him) said, concerning "Those of you who die and leave wives behind": this waiting period was her observing at her husband's family, as an obligation; Allah then revealed: "Those of you who die and leave wives behind: a testament in favor of their wives, provision for a year without expelling them. If they leave, there is no blame upon you for what they do with themselves in a proper manner." He said: Allah made the whole year, that is seven months and twenty-seven nights, a testament: if she wishes she dwells in the bequeathed dwelling, and if she wishes she leaves, according to His saying: "without expelling them. If they leave, there is no blame upon you"; the waiting period nonetheless remains obligatory upon her. 'Ata' said that Ibn 'Abbas declared: this verse abrogated her waiting period at her own family, and she observes wherever she wishes; "without expelling them", said 'Ata': if she wishes she observes with her family and dwells in the bequeathed dwelling, and if she wishes she leaves, according to His saying: "there is no blame upon you for what they do with themselves in a proper manner"; then inheritance came, said 'Ata', and abrogated the residence, and she observes wherever she wishes. The import of the proof is that their leaving involves no sin.

They also argued that Allah commanded the waiting period of four months and ten days without alluding to the mention of any specific place, indicating that it is not a condition. They also cited what al-Daraqutni reported with his chain to 'Ali b. Abi Talib (may Allah be pleased with him):

"The Prophet (peace and blessings of Allah be upon him) commanded the woman whose husband had died to observe her waiting period wherever she wished."Reported by Ad-Daraqutni (3715), who weakened it

They also said: many of the Companions (may Allah be pleased with them) were killed in jihad with the Prophet (peace and blessings of Allah be upon him), and it is not known that he obliged their women to remain in their husbands' houses for the duration of the waiting period; had that occurred, it would be among the most well-known and clearest of things, and it would not have escaped 'A'isha and Ibn 'Abbas (may Allah be pleased with them) and the other Companions. Had the Sunna proceeded on that basis, Furay'a would not have come seeking permission, and he would not have granted her permission and then called her back and prevented her from it; that would amount to changing the ruling twice, which is not the way of the Shariah. They answered the proofs of the majority by saying that the verse does not include the widow.

Here are some of the reports ('athar) that Abd al-Razzaq narrated in his "Musannaf" from the Companions and the Successors, mentioned by Ibn al-Qayyim in "Zad al-Ma'ad":

• Abd al-Razzaq reported from Ma'mar, from al-Zuhri, from 'Urwa b. al-Zubayr, from 'A'isha (may Allah be pleased with her): she used to issue fatwas permitting the widow to go out during her waiting period, and he went out with her sister Umm Kulthum when Talha b. Ubaydallah was killed, for 'umra to Mecca.
• By the route of Abd al-Razzaq: Ibn Jurayj informed us, from 'Ata', from Ibn 'Abbas, that he said: "Allah said: she observes four months and ten days, and He did not say: she observes in her house; she therefore observes wherever she wishes." 'Ata' heard this statement from Ibn 'Abbas, as Ali b. al-Madini attested: Sufyan b. 'Uyayna narrated to us, from Ibn Jurayj, from 'Ata': I heard Ibn 'Abbas say: "Allah said: '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 He did not say: that they observe in their houses; she observes wherever she wishes." Sufyan said: Ibn Jurayj stated it to us as he informed us.
• Abd al-Razzaq said: Ibn Jurayj reported to us, from Abu al-Zubayr, that he heard Jabir b. Abdallah say: "The widow observes her waiting period wherever she wishes."
• Abd al-Razzaq mentioned, from al-Thawri, from Ismail b. Abi Khalid, from ash-Sha'bi: "'Ali b. Abi Talib (may Allah be pleased with him) used to relocate the widows during their waiting period."
• Abd al-Razzaq also mentioned, from Muhammad b. Muslim, from 'Amr b. Dinar, from Tawus and 'Ata', both of them: "The woman given three divorces and the widow may perform Hajj and 'umra, travel and spend the night (wherever they wish)."
• He also mentioned, from Ibn Jurayj, from 'Ata': "It does no harm to the widow where she observes."
• Ibn 'Uyayna said, from 'Amr b. Dinar, from 'Ata' and Abu al-Sha'tha': "The widow goes out during her waiting period wherever she wishes."
• Ibn Abi Shayba mentioned: Abd al-Wahhab al-Thaqafi reported to us, from Habib the teacher: I asked 'Ata' about the woman given three divorces and the widow: may they perform Hajj during their waiting period? He said: yes; and al-Hasan used to say the like of that.
• Ibn Wahb said: Ibn Lahi'a informed me, from Hunayn b. Abi Hakim, that a woman of the tribe of Muzahim, whose husband died at Khunasira, asked 'Umar b. Abd al-Aziz: must I stay until my waiting period is complete? He said to her: rather, return to your residence and your father's house, and observe your waiting period there.
• Ibn Wahb said: Yahya b. Ayyub informed me, from Yahya b. Sa'id al-Ansari, concerning a man who died in Alexandria leaving his wife, a house there and a house at al-Fustat: he said: if she wishes to observe where her husband died, let her do so; and if she wishes to return to her husband's house, his residence at al-Fustat, to observe there, let her return.
• Ibn Wahb said: Amr b. al-Harith informed me, from Bukayr b. al-Ashajj: I asked Salim b. Abdallah b. 'Umar about a woman taken by her husband to a land where he dies. He said: she observes where her husband dies, or she returns to her husband's house until her waiting period completes.

This is the madhhab of all the Zahiris. The holders of this view have two proofs invoked by Ibn 'Abbas (may Allah be pleased with them); we have already cited one of them: Allah commanded the waiting period of four months and ten days without commanding any specific place. The second is what Abu Dawud reported via Ahmad b. Muhammad al-Marwazi, from Musa b. Mas'ud, from Shibal, from Ibn Abi Najih, who said: 'Ata' said that Ibn 'Abbas said: "This verse abrogated her waiting period at her own family: she observes wherever she wishes, according to Allah's saying: 'without expelling them'." 'Ata' said: if she wishes she observes with her family and dwells in the bequeathed dwelling, and if she wishes she leaves, according to Allah's saying:

"If they leave, there is no blame upon you for what they do with themselves in a proper manner"Reported by Abu Dawud

Abd al-Razzaq said: Ma'mar informed us, from al-Zuhri: those who take the concession in the case of the widow followed the word of 'A'isha (may Allah be pleased with her), and the people of resolve and piety followed the word of Ibn 'Umar. (Sources: these reports are narrated by Abd al-Razzaq in his "Musannaf" (12050, 12060).)

Imam Ibn Hazm (may Allah have mercy on him) said: issue: the widow and the woman given three divorces observe their waiting periods wherever they wish. Issue (2000): the widow, the woman given three divorces or after the third term, and the freedwoman who chooses separation from her husband, choose their separation wherever they wish; there is for them no imposed residence, neither with the divorcing husband, nor with the heirs of the deceased, nor with the one whose separation they choose, nor maintenance. It is permitted for them to perform Hajj during their waiting periods and to travel wherever they wish. As for any divorcee whose husband retains the right of return as long as she is in her waiting period, it is not lawful for her to leave the dwelling she was in when he divorced her; she has the right to maintenance and clothing from him; if there is severe fear or a legal punishment must be applied upon her, she may then leave, otherwise not at all, neither by night nor by day, except necessity without alternative. The proof of that is Allah's saying: "O Prophet! When you divorce women, divorce them for their waiting period, and count the period, and fear Allah your Lord. Do not expel them from their houses, nor should they leave, unless they commit a flagrant indecency. These are the limits of Allah, and whoever transgresses the limits of Allah wrongs his own soul. You know not whether Allah will bring about after that some new matter. Then, when they reach their term, retain them in kindness or part from them in kindness" (Surah at-Talaq, 1, 2): this is the description of the revocable divorce, not of the final divorce. As for the final divorce, as we report by way of Muslim: Ahmad b. al-Muthanna reported to us, Abd al-Rahman b. Mahdi reported to us, Sufyan al-Thawri reported to us, from Salama b. Kuhayl, from ash-Sha'bi, from Fatima bint Qays, from the Prophet (peace and blessings of Allah be upon him), concerning the woman given three divorces: "She has no residence and no maintenance." No authentic report at all establishes the obligation of residence for the widow. The dwelling cannot but be either the property of the deceased or the property of another: if it belongs to another (rented or otherwise permitted), the contract ends with his death, and no one may dwell in it without the permission and consent of its owner; Allah's Messenger (peace and blessings of Allah be upon him) said: "Your blood and your wealth are sacred among you." If it belongs to the deceased, it passes to the creditors, the heirs or the legatees: she may therefore take from it only the amount of her inheritance if she is an heir, and nothing beyond that; this is decisive and conclusive proof, and everything besides it is injustice without concealment. This is a matter in which people have differed greatly: a party held our view, as we report by way of Abd al-Razzaq, from Ibn Jurayj, from 'Ata', that Ibn 'Abbas said: "The mabtuta (one given an immediate final divorce) observes wherever she wishes"; then he mentioned the reports cited earlier. Imam Muslim reported in his "Sahih", from Abu al-Zubayr, that he heard Jabir b. Abdallah say: my maternal aunt was divorced and wished to harvest her dates; a man prevented her from going out. She came to the Prophet (peace and blessings of Allah be upon him), who said:

"Rather, go and harvest your dates; perhaps you will give in charity or do a good deed."Reported by Muslim (1483)

Case 1: the non-pregnant widow and the right to housing

This subject admits two situations. First situation: the non-pregnant widow. The jurists differed concerning the non-pregnant widow: is housing due to her? The Malikis and the Shafi'is (according to the most manifest position) hold that housing is due to her, by His saying: "Those of you who die and leave wives behind: a testament in favor of their wives, provision for a year without expelling them" (Surah al-Baqarah, 40). Allah mentioned several rulings in this verse: that the widow does not leave her dwelling, that her waiting period is a year, and that she is owed maintenance and the bequest. The waiting period beyond four months and ten days was abrogated by the first verse, maintenance by the verse of inheritance, while residence remains upon the apparent meaning of the verse, as shown by what is reported from Furay'a bint Malik: "I came to the Prophet (peace and blessings of Allah be upon him) and said: O Messenger of Allah, my husband went out seeking his slaves who had fled; when he found them, they killed him and he left me no dwelling. Shall I go to my family? He said: Yes. Then he called her before she left the chamber and said: Observe your waiting period in the house in which your husband's death reached you, until the prescribed term reaches its end, four months and ten days." And because she is observing for a valid marriage, housing is due to her as it is to the revocably divorced woman. (Sources: "al-Ishraf 'ala Nukat Mas'il al-Khilaf" (4/24, 25), number (1378), "al-Bayan" (11/59), "al-Najm al-Wahhaj" (8/166, 167), "Mughni al-Muhtaj" (5/111).)

The Malikis condition the widow's housing for the whole duration of her waiting period on two conditions:

• First condition: that the husband has consummated the marriage with her.
• Second condition: that the dwelling she inhabited at the time of his death belonged to the deceased, in full ownership or in temporary enjoyment, or as a lease whose term had not expired before his death; if the lease has expired in part, she is entitled to housing only in proportion to it, and her case for the remainder is that of an unexpired lease. All of this applies if she dies while still under her husband's bond ('isma). If he dies while she is irrevocably divorced and deserving of housing, that housing is established for her in every case, whether the dwelling belongs to her or the lease has expired or not: being divorced, housing is due to her without condition.

(Source: "Sharh Mukhtasar Khalil" (4/156).)

The Hanafis, the Shafi'is (according to al-Muzani's choice, in opposition to the most manifest position) and the Hanbalis (following 'Ali, Ibn 'Abbas and 'A'isha) hold that no housing is due to her if she is not pregnant. Allah has only allotted the wife a quarter (or an eighth) of the estate, the remainder going to the other heirs, and the dwelling is part of the estate: nothing more than that may therefore be owed to her from it. And because she is finally separated from her husband, she resembles the woman given three divorces. And by His saying: "Those of you who die and leave wives behind: they shall wait by themselves for four months and ten days" (Surah al-Baqarah, 234), He mentioned the waiting period without mentioning housing; and if it were so [for the non-pregnant woman, then for the pregnant woman housing and maintenance are due] by consensus of the scholars...