Islamic Fiqh > Marriage and family > Iddah (the waiting period) > Case 2: the woman given three divorces who is not pregnant
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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.
...by consensus of the scholars, by Allah's saying: "Lodge them where you dwell, out of your means, and do not harm them so as to straiten them. And if they are pregnant, spend on them until they deliver their burden" (Surah at-Talaq, 6). And in some reports of Fatima bint Qays: "You have no maintenance unless you are pregnant." Pregnancy is his child, and he must spend on it, which he cannot do without spending on her: it is therefore obligatory, like the wage of breastfeeding. (Source: "al-Mughni" (8/185).)
The jurists differed concerning the woman irrevocably divorced or given three divorces: are both maintenance and housing due to her during her waiting period? Is maintenance alone due? Is housing alone due? Or is nothing at all due to her? The discussion will be in two places.
First place: is housing due to the woman given three divorces? The jurists differed concerning the irrevocably divorced woman and the woman given three divorces: is housing due to her or not? The Hanbalis of the madhhab hold that neither the mabtuta nor the woman given three divorces has a right to residence, because of what Muslim reported, from ash-Sha'bi, who said: I entered upon Fatima bint Qays and asked her about the ruling the Messenger of Allah (peace and blessings of Allah be upon him) passed in her favor. She said:"My husband divorced me outright; so I pleaded against him before the Messenger of Allah regarding residence and maintenance, and he granted me neither residence nor maintenance, and ordered me to observe my waiting period in the house of Ibn Umm Maktum."Reported by Muslim (1480)In a version 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, he said: "She has no residence and no maintenance." (Reported by Muslim (1480).) And from Abu Bakr b. Abi al-Jahm: I heard Fatima bint Qays say:
"My husband, Abu 'Amr b. Hafs b. al-Mughira ('Ayyash b. Abi Rabi'a), sent me my divorce with a messenger carrying five bowls of dates and five bowls of barley. I said: Is this all the maintenance I have? And I will not observe my waiting period in your house. He said: No. So I gathered my garments about me and went to the Messenger of Allah, who said: How many times did he divorce you? I said: Three. He said: He spoke the truth: you have no maintenance. Observe your waiting period in the house of your cousin Ibn Umm Maktum: he is blind of sight, you may set aside your veil there."Reported by Muslim (1480)And 'Amir reported that he said:
"I came to Medina and went to Fatima bint Qays, who told me that her husband had divorced her in the time of the Messenger of Allah (peace and blessings of Allah be upon him), and that the Messenger of Allah had sent him in an expedition. She said: his brother said to me: Leave the house. I said: I am entitled to maintenance and residence until the term becomes lawful. He said: No. She said: So I went to the Messenger of Allah and said: So-and-so divorced me, and his brother expelled me, denying me residence and maintenance. He sent for him and said: What is this with you regarding the daughter of the family of Qays? He said: O Messenger of Allah, my brother divorced her with three divorces at once. The Messenger of Allah said: Look, O daughter of the family of Qays: maintenance and residence are due to a wife from her husband only as long as he retains the right to take her back; when he no longer retains the right to take her back, there is no maintenance and no residence. Go out, and go stay with so-and-so. Then he said: Men converse with her; go stay with Ibn Umm Maktum, for he is blind."Authentic hadith, reported by Ahmad in the Musnad (27145, 27389) and An-Nasa'i (3403)
Ibn Qudama (may Allah have mercy on him) said: it will be said that 'Umar disapproved of it upon her and said: "We will not abandon the Book of our Lord and the Sunna of our Prophet for the word of a woman, not knowing whether she spoke truth or lied." 'Urwa said: "'A'isha censured this most severely; she was in a lonely place and fear was felt for her." Sa'id b. al-Musayyib said: "That is a woman who cast fitnah upon the people; she was a leper, and that is why she was placed in the care of Ibn Umm Maktum the blind man."
We say: as for the contradiction with the Book, when Fatima was disapproved of, she said: "Between you and me is the Book of Allah," citing His saying: "You know not whether Allah will bring about after that some new matter" (Surah at-Talaq, 1): what matter, then, can come about after the three divorces? How, then, can you say: "No maintenance for her if she is not pregnant"? For what purpose do you confine her? How can a woman be confined without maintenance?
As for their saying "'Umar said: we will not abandon the Book of our Lord", Ahmad disapproved of this statement attributed to 'Umar and said: rather he said: "We do not sanction in our religion the word of a woman." This statement remained ambiguous and opposed by other evidence; we have taken the report of Furay'a, and she is a woman, and the narrations of 'A'isha and the wives of Allah's Messenger (peace and blessings of Allah be upon him) in many rulings; and the scholars came to Fatima's report in many rulings, such as the loss of maintenance of the mabtuta when she is not pregnant, the woman's looking at men, and a man's proposal over his brother's proposal when the first engagement did not satisfy her.
As for the interpretation of those who interpreted her hadith, it is worthless: she is the one with knowledge of that and she knows her own state best; the interpreters did not agree upon anything, and a reply was given to whoever opposed her. Maymun b. Mihran said to Sa'id b. al-Musayyib: "That is a woman who cast fitnah upon the people: had she only taken what the Messenger of Allah (peace and blessings of Allah be upon him) advised her, she would not have cast fitnah upon the people; and we have in the Messenger of Allah a fine example, even though she is the most forbidden of people to her husband: he has no right of return over her and there is no inheritance between them." As for 'A'isha's saying "she was in a lonely place", it does not stand: the Prophet (peace and blessings of Allah be upon him) gave a different reason, saying: "O daughter of the family of Qays, residence and maintenance are due only as long as your husband retains the right to take you back"; thus it was narrated by al-Humaydi and al-Athram. And had the interpretation of 'A'isha or another been sound, 'Umar would not have needed, in his rejection, to excuse himself by its being the word of a woman; Fatima, the very protagonist of the story, knows herself and her state best: she disapproved of those who disapproved of her, and answered those who rejected her report or interpreted it against its apparent meaning. Her word must therefore be preferred, on account of her knowledge of herself and the agreement of her word with the apparent meaning of the report, as in all matters of this kind. (Sources: "al-Mughni" (8/132, 133), "Sharh al-Zarkashi" (2/567, 570).)
Ibn Taymiyya (may Allah have mercy on him) said: this is why, when 'Umar (may Allah be pleased with him) saw that the mabtuta had residence and maintenance and thought the Qur'an indicated it, most of the Companions opposed him: some said "she has residence only", others said "she has no maintenance and no residence", among them Ibn 'Abbas, Jabir and Fatima bint Qays, she who reported from the Prophet: "You have no maintenance and no residence." When they argued against her with 'Umar's proof, namely His saying: "Do not expel them from their houses, nor should they leave, unless they commit a flagrant indecency" (Surah at-Talaq, 1), she and other Companions, such as Ibn 'Abbas and Jabir and others, said: "This concerns the revocably divorced woman, by His saying: You know not whether Allah will bring about after that some new matter; what matter, then, can come about after the three divorces?" The jurists of hadith, such as Ahmad b. Hanbal (according to the apparent of his madhhab) and other jurists of hadith, follow Fatima bint Qays. (Source: "Majmu' al-Fatawa" (33/32, 33).)
The majority of jurists, the Hanafis, Malikis, Shafi'is and Hanbalis (in one narration), hold that residence is due to the irrevocably divorced woman and the woman given three divorces, by His saying: "Lodge them where you dwell, out of your means" (Surah at-Talaq, 6). The verse thus applies, in its generality, to wives and divorcees, although it is more specified for the divorcees by what surrounds it; and because she is observing for a divorce, residence is due to her as it is to the revocably divorced woman. It is narrated that the Prophet (peace and blessings of Allah be upon him) said to Furay'a bint Malik (the sister of Abu Sa'id al-Khudri), when she informed him that her husband had been killed leaving her no dwelling of his own: "Stay in your house until the prescribed term reaches its end." Having made residence obligatory for the waiting period of death, it is even more fitting that it be due for the waiting period of divorce; she is observing for a divorce, so residence is due to her as to the revocably divorced woman.
They answer the hadith of Fatima bint Qays that senior Companions, such as 'Umar (may Allah be pleased with him), disapproved of it before the assembly of the Companions. Muslim reported, from Abu Ishaq, who said: I was sitting with al-Aswad b. Yazid in the Great Mosque, and ash-Sha'bi was with us; ash-Sha'bi narrated the hadith of Fatima bint Qays, that the Messenger of Allah (peace and blessings of Allah be upon him) had granted her neither residence nor maintenance. Then al-Aswad took a handful of pebbles and threw them at him, saying: woe to you, do you narrate the like of this? 'Umar said:"We do not abandon the Book of Allah and the Sunna of our Prophet (peace and blessings of Allah be upon him) for the word of a woman, not knowing whether she memorized or forgot. She has residence and maintenance. Allah (Exalted be He) says: Do not expel them from their houses, nor should they leave, unless they commit a flagrant indecency"Reported by Muslim (1480)And from Hammad, from ash-Sha'bi, from Fatima bint Qays: her husband had divorced her with three divorces; she came to the Prophet (peace and blessings of Allah be upon him), who said: no maintenance and no residence. She said: I informed al-Nakha'i of that, and he said: 'Umar b. al-Khattab, who was informed of it, said:
"We will not abandon a verse of the Book of Allah nor the word of Allah's Messenger (peace and blessings of Allah be upon him) for the word of a woman who may have erred; I heard the Messenger of Allah (peace and blessings of Allah be upon him) say: she has residence and maintenance."Reported by At-Tahawi in Sharh Ma'ani al-Athar (3/68)
From al-A'mash, from 'Umara b. Umayr, from al-Aswad: 'Umar b. al-Khattab and Abdallah b. Mas'ud said concerning the woman given three divorces: "She has residence and maintenance." (Reported by At-Tahawi in "Sharh Ma'ani al-Athar" (3/68).)
They say: this is 'Umar (may Allah be pleased with him) disapproving this hadith of Fatima and not accepting it; Usama b. Zayd also disapproved of it upon her. From Abu Salama b. Abd al-Rahman: Fatima bint Qays used to report from the Messenger of Allah (peace and blessings of Allah be upon him) that he said to her: "Observe your waiting period in the house of Ibn Umm Maktum," and Muhammad b. Usama b. Zayd used to say: whenever Fatima mentioned any of that, Usama would throw at her whatever he had in his hand. 'A'isha (may Allah be pleased with her) also disapproved of it: from Yahya b. Sa'id, I heard al-Qasim b. Muhammad and Sulayman b. Yasar mention that Yahya b. Sa'id b. al-'As divorced the daughter of Abd al-Rahman b. al-Hakm, and Abd al-Rahman b. al-Hakm removed her; 'A'isha sent word to Marwan, who was governor of Medina: fear Allah and return the woman to her house. Marwan said, in Sulayman's account: Abd al-Rahman overpowered me; and in al-Qasim's account: have you not heard the hadith of Fatima bint Qays? 'A'isha said: it does you no harm not to mention the hadith of Fatima bint Qays; she had a story for which she was expelled. Marwan said: if evil is with you, what lies between these two suffices you as evil.
Meaning: I expelled her for the same reason for which Fatima was expelled. And from Abd al-Rahman b. al-Qasim, from his father: 'A'isha said: "Fatima has no report warranting the mention of this hadith," meaning her saying: "no maintenance and no residence." Here then is 'A'isha (may Allah be pleased with her) who likewise did not consider acting upon the hadith of Fatima.
Sa'id b. al-Musayyib referred it to another meaning. From 'Amr b. Maymun, from his father: I said to Sa'id b. al-Musayyib: where does the woman given three divorces observe her waiting period? He said: in her house. I said to him: did not the Messenger of Allah (peace and blessings of Allah be upon him) command Fatima bint Qays to observe her waiting period in the house of Ibn Umm Maktum? He said: that is a woman who cast fitnah upon the people and exceeded against her folk with her tongue; so the Messenger of Allah (peace and blessings of Allah be upon him) commanded her to observe her waiting period in the house of Ibn Umm Maktum, who was a man afflicted with blindness.
And from Ibn Shihab: Abu Salama b. Abd al-Rahman informed me that Fatima bint Qays informed him that the Messenger of Allah (peace and blessings of Allah be upon him) said: "Observe your waiting period in the house of Ibn Umm Maktum," and the people disapproved of her concerning what she reported of her going out before she became lawful. Abu Salama also relates, then, that the people, among the Companions of Allah's Messenger (peace and blessings of Allah be upon him) and those who joined them of the Successors, disapproved of that upon Fatima: 'Umar, Usama and Sa'id b. al-Musayyib, along with those we named with them, disapproved this hadith of Fatima bint Qays and did not act upon it. And since 'Umar b. al-Khattab (may Allah be pleased with him) disapproved of it in the presence of the Companions of Allah's Messenger (peace and blessings of Allah be upon him), with no one among them disapproving of his disapproval, their refraining from disapproval shows that their madhhab in this was his.
The jurists differed concerning the irrevocably divorced woman and the woman given three divorces: is maintenance due to her for the duration of the waiting period, or is no maintenance due to her?
The Hanafis hold that maintenance and residence are due to her, by His saying: "Lodge them where you dwell, out of your means" (Surah at-Talaq, 6), and according to the reading of Abdallah b. Mas'ud (may Allah be pleased with him): "Lodge them where you dwell and spend on them out of your means". There is no disagreement between the two readings: one is the explanation of the other, like His saying: "The thief, male and female: cut off their hands" (Surah al-Ma'idah, 38) and the reading of Ibn Mas'ud (may Allah be pleased with them): "their oaths". That is not a divergence of reading; rather his reading is the explanation of the manifest reading; it is the same here. The command to lodge them is a command to spend: confined and prevented from going out, she cannot earn her maintenance; if her maintenance were not upon the husband and she had no wealth, she would perish or fall into hardship, and that is not permitted. His saying: "Let the man of abundance spend of his abundance, and he whose provision is measured, let him spend of what Allah has given him" (Surah at-Talaq, 7) commands spending without distinction between what precedes and what follows the divorce during the waiting period. Maintenance was indeed due before the divorce because she was confined from going out and appearing by the husband's right; that confinement remained after the divorce during the state of waiting, and became reinforced by the joining of the right of the Law. Confinement before the divorce was the husband's right in return for her restraint; after the divorce the right of the Law attaches to it, so that her going out is not lawful even if the husband permits her to leave. Since maintenance was required before confirmation, it is more fitting that it be required after confirmation. As for His saying: "spend on them until they deliver their burden" (Surah at-Talaq, 6), it contains a command to spend on the pregnant woman, and does not negate the obligation of spending on the non-pregnant one without establishing it either: it remains silent, suspended upon the existence of proof, and the proof of obligation is what we have mentioned.
As for the hadith of Fatima bint Qays, 'Umar (may Allah be pleased with him) rejected it, as shown in the accounts already cited (the account of Hammad, from ash-Sha'bi, from Fatima bint Qays, with al-Nakha'i's report of 'Umar, "At-Tahawi" (3/68); and the account of al-A'mash that 'Umar b. al-Khattab and Abdallah b. Mas'ud said: "She has residence and maintenance").
It was then said, interpreting it: she used to cast insults upon her folk (that is, she abused them with her tongue, as one says: I insulted so-and-so, meaning: I spoke foully to him), so she was exceeding against her folk with indecent speech; the Messenger of Allah (peace and blessings of Allah be upon him) therefore moved her to the house of Ibn Umm Maktoum without granting her maintenance or residence, her case becoming like that of the rebellious wife (nashiza), the cause of her removal being her own doing. We say the same of the woman who leaves her husband's house during her waiting period, or whose conduct warrants removal: she does not deserve maintenance as long as she is outside her husband's house. It was also said: her husband was absent, so maintenance and residence were not judged against the husband on her behalf due to his absence, judgment not being passed against an absent man without a present adversary. And because maintenance is owed in return for confinement, which remained after the three divorces and the irrevocable divorce, maintenance remains; whether the observing woman is old or young, Muslim or of the People of the Book (kitabiyya), the proofs mentioned impose no distinction. (Sources: "Bada'i' al-Sana'i'" (3/209, 210), "al-Tajrid" by al-Quduri (10/5395, 5396).)
The majority of jurists, the Malikis, Shafi'is and Hanbalis, hold that the woman given three divorces and the irrevocably divorced have no maintenance, by His saying: "Lodge them where you dwell, out of your means, and do not harm them so as to straiten them. And if they are pregnant, spend on them until they deliver their burden" (Surah at-Talaq, 6). He specified the pregnant woman with the command to spend on her; had spending on the non-pregnant one been obligatory, the specification would be void: this indicates that if she is not pregnant, there is no maintenance for her. Allah made the maintenance of the mabtuta conditional upon pregnancy, indicating its lapse in the absence of pregnancy. Had maintenance been due as residence is, there would be no meaning to specifying maintenance for the pregnant woman; the specification having occurred, it follows that the non-pregnant woman has no maintenance. Allah, having mentioned residence, left it general for every divorcee; having mentioned maintenance, He made it conditional upon pregnancy: proof that the irrevocably divorced woman has no maintenance. What Muslim reports, from ash-Sha'bi (the hadith of Fatima bint Qays cited above, Muslim (1480)), as well as the version: "She has no residence and no maintenance" (Muslim (1480)), and the accounts of Abu Bakr b. Abi al-Jahm and 'Amir (cited above), serve as proof.
She has become a separated wife: maintenance falls away with the end of the bond, as with the widow; he is finally separated from her, so her maintenance falls away as with the woman whose marriage was not consummated. Maintenance is in return for the granting of access (tamkin): when that ceases, maintenance ceases. And just as he possesses the enjoyment of his wife as he possesses ownership of his slave woman, and the maintenance of the slave woman falls away with the end of ownership over her, the wife's maintenance falls away with the end of his right of enjoyment over her. (Sources: "al-Muwatta'" (5/580, 581), "al-Mudawwana al-Kubra" (5/471), "al-Tamhid" (19/141), "al-Istidhkar" (6/165), "al-Ishraf 'ala Nukat Mas'il al-Khilaf" (4/23), "Sharh Sahih al-Bukhari" (7/496), "Ahkam al-Qur'an" by Ibn al-'Arabi (4/287), "al-Hawi al-Kabir" (11/465, 466), "al-Muhadhdhab" (2/164), "al-Bayan" (11/230, 231), "Sharh Sahih Muslim" (10/95), "al-Mughni" (8/185, 187).)
Imam Ibn Rushd (may Allah have mercy on him) said: they differed concerning the residence and maintenance of the mabtuta when she is not pregnant, according to three positions: the first, that she has residence and maintenance: the view of the Kufans; the second, that she has neither residence nor maintenance: the view of Ahmad, Dawud, Abu Thawr, Ishaq and a group; the third, that she has residence without maintenance: the view of Malik, al-Shafi'i and a group. The cause of their difference is the differing narrations of the hadith of Fatima bint Qays and the opposition of the apparent meaning of the Book to it. Those who established neither maintenance nor residence relied on what is narrated in the hadith of Fatima bint Qays: "My husband divorced me with three divorces in the time of the Messenger of Allah (peace and blessings of Allah be upon him); I went to the Prophet and he granted me neither residence nor maintenance," a hadith reported by Muslim; and in some narrations the Messenger of Allah (peace and blessings of Allah be upon him) said: "Residence and maintenance are only for the one over whom her husband retains the right of return." This is a view reported from 'Ali, Ibn 'Abbas and Jabir b. Abdallah. Those who established residence without maintenance relied on what Malik reports in his "Muwatta'" from the cited hadith of Fatima, in which the Messenger of Allah (peace and blessings of Allah be upon him) said: "You have no maintenance from him," and his ordering her to observe her waiting period in the house of Ibn Umm Maktoum, with no mention of the removal of residence: the verse "Lodge them where you dwell, out of your means" thus remains general; they explained his ordering her to stay there by the coarseness of her tongue. Those who established residence and maintenance relied, for the obligation of residence, on the generality of Allah's saying: "Lodge them where you dwell, out of your means" (Surah at-Talaq, 6), and, for the obligation of maintenance, on its following the obligation of residence in the revocable divorce, in the case of the pregnant woman, and in marriage itself. In sum, wherever the Law obliges residence, it obliges maintenance. It is reported from 'Umar that he said concerning this hadith of Fatima: "We will not abandon the Book of our Prophet and his Sunna for the word of a woman," meaning His saying: "Lodge them where you dwell, out of your means," to the end of the verse.
Since the well-known Sunna of the Prophet (peace and blessings of Allah be upon him) is that he made maintenance obligatory where residence is due, the preferable course in this issue is either to say that both commands are hers, returning to the apparent meaning of the Book and the well-known Sunna, or to specify this generality by the cited hadith of Fatima; as for distinguishing between the obligation of maintenance and that of residence, it is difficult, the weakness of its proof being the cause. (Source: "Bidayat al-Mujtahid" (2/71, 72).)
The divorcee is either divorced with a revocable divorce or with an irrevocable divorce.
First: the place of the waiting period of the revocably divorced woman, and the ruling on her going out by night or by day. The revocably divorced woman may not leave her house. Imam Ibn Abd al-Barr (may Allah have mercy on him) said: they agreed that the divorcee whose husband retains the right of return does not leave her house. It was set out, in the book of return (raj'a), what the husband may look at of the revocably divorced woman during the time of her waiting period.
Imam Ibn Rushd (may Allah have mercy on him) said: they differed concerning how much the husband may look at of the revocably divorced woman as long as she is in her waiting period. Malik said: he does not remain alone with her and does not enter upon her except with her permission, he does not look at her hair, and there is no harm in their eating together if another is present with them. Ibn al-Qasim reported that he retracted the permission to eat with her. Abu Hanifa said: there is no harm in the revocably divorced woman adorning herself for her husband, perfuming herself, making herself alluring, showing her teeth and applying kohl to her eyes; al-Thawri, Abu Yusuf and al-Awza'i held the same; and all of them said he does not enter upon her unless she is aware of his entry, by a word or a movement, a cough or the sound of a sandal. (Source: "Bidayat al-Mujtahid" (2/64).)
The Shafi'is said: if she is in a revocable divorce, her place is not fixed: the husband chooses to house her in safe places as he wishes, this residence being a marital right accompanied by maintenance; her situation thus resembles that before the divorce, when he was free to move her, and likewise after it; this residence belongs to the rights between human beings. (Source: "al-Hawi al-Kabir" (11/248, 249).)
Imam al-'Amrani (may Allah have mercy on him) said: if the divorce is revocable, her maintenance and her lodging, wherever he chooses, are due to her, for she is in the meanings of wives; as shown by the fact that his divorce, his zihar and his ila' still reach her, and they inherit from one another. She is therefore among the meanings of wives in maintenance and residence; these are owed in return for enjoyment, and the husband is able to enjoy her whenever he wishes after taking her back, a passing cause alone having forbidden him: he is as if in ihram, or she is. Our companions say this is also a consensus. (Source: "al-Bayan" (11/50).)
Second: the place of the waiting period of the irrevocably divorced woman. The jurists differed over the place of the divorcee's waiting period: may she observe wherever she wishes, or must she observe in a fixed place? The Hanafis, the Malikis and the Shafi'is hold that the divorcee observes in the place where she was, whether owned, rented or lent, and she may not leave it without excuse, by His saying: "Do not expel them from their houses, nor should they leave, unless they commit a flagrant indecency" (Surah at-Talaq, 1).
Imam Malik reported from Nafi' that the daughter of Sa'id b. Zayd b. 'Amr b. Nufayl, wife of Abdallah b. 'Amr b. 'Uthman b. 'Affan, was divorced outright and moved away; Abdallah b. 'Umar disapproved of that upon her. Abu 'Umar (may Allah have mercy on him) said: as for his report from Nafi', that Abdallah b. 'Umar disapproved of the daughter of Sa'id b. Zayd moving from her house when she was divorced by Abdallah b. Amr b. Uthman, that is his madhhab, the madhhab of his father 'Umar b. al-Khattab, of Ibn Mas'ud, of 'A'isha, of most of the Companions and of the majority of jurists, by the generality of Allah's saying: "Do not expel them from their houses, nor should they leave, unless they commit a flagrant indecency" (Surah at-Talaq, 1). They also agreed that the divorcee whose husband retains the right of return does not leave her house. They only differed over the mabtuta: most of the scholars of Medina, the Hijaz and Iraq say: she does not observe except in her house. (Source: "al-Istidhkar" (6/160).)
If the husband wishes to move her elsewhere, or she asks to relocate, or they both agree upon it without excuse, that is not permitted: Allah forbade the husbands to expel them and forbade them to leave their houses, intending thereby their marital residences.
Al-Mawardi (may Allah have mercy on him) said: if the waiting period is from an irrevocable divorce, its place is fixed and she may not be moved from it without a warranted cause; that residence is one of the rights of Allah, for the protection of modesty and the preservation of lineage. That being so, the fixed place of her residence is the dwelling in which he divorced her, by Allah's saying: "Fear Allah your Lord. Do not expel them from their houses, nor should they leave, unless they commit a flagrant indecency" (Surah at-Talaq, 1), meaning: the houses of their husbands; its attribution to them is because they deserve its residence. (Source: "al-Hawi al-Kabir" (11/249).)
Al-'Amrani (may Allah have mercy on him) said: the observing woman may not leave her dwelling, in which the waiting period is due upon her, without excuse, by His saying: "Do not expel them from their houses, nor should they leave, unless they commit a flagrant indecency" (Surah at-Talaq, 1), and by the hadith of Furay'a bint Malik:"Shall I return to my family and observe my waiting period with them? The Prophet (peace and blessings of Allah be upon him) said to her: 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."Authentic hadith, reported by Abu Dawud (2302), An-Nasa'i (3532), Ibn Majah (2031) and Ahmad (27132)
If a right is owed by her: if that right can be exacted from her without her leaving, such as a debt upon her, or a usurped item, a loan or a deposit in her hands that she acknowledges, the claimant goes to her and takes his right from her, and she is not burdened with leaving, having no need to. If the right cannot be exacted without her leaving, such as the punishment for slander, retribution (qisas), the cutting of the hand for theft, or the oath in a claim: if the woman is "bariza" (she who goes out for her needs and meets men), the judge summons her and exacts the right from her; if she is not bariza (she who does not go out for her needs), the judge sends someone to exact the right from her in her house. (Source: "al-Bayan" (11/71, 72).)
The Hanbalis hold that the observing woman of an irrevocable divorce observes wherever she wishes in her town, in a safe place, the place of residence not being fixed in divorce, because of the hadith of Fatima bint Qays reported by Muslim (cited above, Muslim (1480)) and the account of 'Amir (an authentic hadith reported by Ahmad (27145, 27389) and An-Nasa'i (3403), cited above).
Ibn Qudama (may Allah have mercy on him) said: it makes no difference whether we say "she has residence" or do not say it: the husband chooses between leaving her in the place where he divorced her and moving her to a residence like it, and the preferred course is leaving her, by His saying: "Do not expel them from their houses, nor should they leave, unless they commit a flagrant indecency" (Surah at-Talaq, 1), and to avoid dispute, since those in whose regard we established her right to residence hold that her waiting period is obligatory in her dwelling. If she is in a house whose residence the husband possesses and which suits her station, she observes in it; if it is too narrow for both of them, he moves out and leaves it to her, for her residence in that place is recommended. If the place is spacious enough for both of them, and the house contains a space exclusive to her, such as a chamber, the upper floor or the ground floor, with a closed door between them: she resides in it and the husband in the rest, the two being like two adjacent chambers. If there is no closed door between them, but she has a place where she can conceal herself from sight, and a mahram is with her to protect her, it is permitted, for with the mahram corruption is safeguarded against; yet it is disliked on the whole, for the gaze cannot be trusted; and if there is no mahram with her, it is not permitted, by the word of the Prophet (peace and blessings of Allah be upon him):"No man must be alone with a woman who is not a mahram to him, for the third of them is Satan."Reported by Bukhari and Muslim
If he refuses to house her while she is among those to whom housing is owed upon him, the judge compels him; if the judge is absent, she returns to the husband's dwelling; if the judge is present, does she return? Two narrations are held.
If the husband is present and did not prevent her from residence, but she rented a place for herself or dwelt in a place she owns, she is not refunded the rent: she acted voluntarily, so it is not claimed from anyone. If the husband is unable to house her due to hardship or absence, or refuses despite being able, she dwells wherever she wishes; likewise the widow if her heirs do not house her: residence in his dwelling is only imposed upon her for the protection of her modesty, and if she does not comply, it is no longer imposed upon her. (Sources: "al-Mughni" (8/133), "Kashaf al-Qina'" (5/508, 509).)
The Hanafis hold that neither the revocably divorced woman nor the mabtuta may leave her house, by night or by day, during her waiting period, by His saying: "Do not expel them from their houses, nor should they leave" (Surah at-Talaq, 1), and because her maintenance is due from the husband, so she has no need to go out, like the wife; even if she has sworn off her maintenance, it was said: she goes out by day for her livelihood; and it was said: no, which is the sounder view, for she chose to waive her maintenance. And if the observing woman has sworn off residence, it is not permitted for her to go out.
Imam al-Kasani (may Allah have mercy on him) said: if she is an observing woman of a valid marriage, a free divorced woman, adult, of sound mind, Muslim, and the situation is one of free choice, she does not go out by night or by day, whether the divorce is by three divorces, irrevocable or revocable. In the revocable divorce, the proof is His saying: "Do not expel them from their houses, nor should they leave, unless they commit a flagrant indecency" (Surah at-Talaq, 1). It was said, interpreting His saying: "unless they commit a flagrant indecency": unless they commit fornication, and they then go out for the legal punishment to be applied upon them; and it was said that the indecency is the going out itself, that is: unless they go out, their going out being an indecency; Allah forbade the husbands to expel them and the observing women to leave. And His saying: "Lodge them where you dwell" (Surah at-Talaq, 6) is a command to lodge them, meaning a prohibition of expelling them and of their leaving. She is his wife after the revocable divorce, the bond of marriage standing from every aspect: her going out is therefore not lawful as before the divorce, except that after the divorce her going out is not lawful even if he permits her, unlike before the divorce. The prohibition of going out after the divorce is due to the place of waiting, in which lies the right of Allah which he cannot annul, unlike before the divorce: the prohibition there was the husband's right alone, and he may annul his own right by permitting her to leave. And because the husband needs to guard her modesty, the prohibition of going out being the path of that protection: going out makes the husband suspect that another has touched her, and lineage would be confounded were she pregnant. As for the three divorces or the irrevocable divorce, the proof is the generality of the prohibition and the need to guard modesty, as we have explained.
As for the widow, she does not go out at night, but it is permitted for her to go out by day for her needs: she needs to go out by day to earn what she spends, having no maintenance from the deceased husband, her maintenance being 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, unlike the divorcee whose maintenance is upon the husband, so she has no need to go out. Even if she has sworn off the maintenance of her waiting period, some of our shaykhs said: it is permitted for her to go out by day to earn, for she is like the widow; others said: her going out is not permitted, for she is the one who annulled maintenance by her choice, maintenance being her right which she can annul, while dwelling in the house is a duty upon her which she cannot annul. Her residence, in which she is commanded to dwell while observing, is the place she inhabited before parting from her husband and before his death, whether he resided there or not; 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. Hence our companions say: if she was visiting her family and her husband divorced her, she must return to her dwelling, the one she inhabited, and observe there, for that is the place attributed to her even though she is elsewhere; this is in the case of free choice. As for the case of necessity: if she is compelled to leave her house, by fear of her dwelling collapsing or fear for her belongings, there is no harm in her relocating. (Sources: "Bada'i' al-Sana'i'" (3/205); see also "Tuhfat al-Fuqaha" (2/249), "Sharh Fath al-Qadir" (4/343), "al-Ikhtiyar" (3/217, 218), "Tabyin al-Haqa'iq" (3/36), "al-Jawhara al-Nira" (5/31), "al-Lubab" (2/152), "al-'Inaya" (6/145).)
The madhhab of the Shafi'is is close to that of the Hanafis when the divorce is revocable, except that they said: her going out is not lawful except with his permission or out of necessity, her support being obligatory upon him. (Source: "Mughni al-Muhtaj" (5/113).)
The majority of jurists, the Malikis, Shafi'is and Hanbalis, hold that it is permitted for the observing woman of an irrevocable divorce (and likewise the revocably divorced according to the Malikis and the Hanbalis) to go out by day for her need, such as buying food or selling spun thread and the like, because of what Muslim reports, from Abu al-Zubayr, that he heard Jabir b. Abdallah say:"My maternal aunt was divorced and wished to harvest the dates of her palms; 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)
Imam al-Qurtubi (may Allah have mercy on him) said: in this hadith is a proof for Malik, al-Shafi'i, Ibn Hanbal and al-Layth of their position: the observing woman goes out by day for her needs and is bound to her house only at night, Malik making no distinction between the revocably and the irrevocably divorced. Al-Shafi'i said concerning the revocably divorced: she does not go out by night or by day; only the mabtuta goes out by day. (Source: "Tafsir al-Qurtubi" (18/154).)
Imam an-Nawawi (may Allah have mercy on him) said: this hadith is a proof for the going out of the observing woman of an irrevocable divorce for a need; the madhhab of Malik, al-Thawri, al-Layth, al-Shafi'i, Ahmad and others is the lawfulness of her going out by day for a need, and likewise, in their view, for the waiting period of death; Abu Hanifa agreed with them in the waiting period of death, and said concerning the irrevocable divorce: she does not go out by night or by day. (Source: "Sharh Sahih Muslim" (10/108).)
The qadi 'Iyad (may Allah have mercy on him) said: this hadith is a proof for Malik and al-Layth of the lawfulness of the observing woman's going out by day, her being bound to her house only at night, Malik making no distinction between the revocably divorced and the mabtuta. Abu Dawud used this hadith as proof of her going out by day, according to our view; the import of its proof is that the harvest is by day by custom and by law, for he (peace be upon him) forbade the harvest of night; and the palm groves of the Ansar were not so distant as to require spending the night there when she went out by day. (Source: "Sharh al-Zurqani" (3/289).)
It is stated in the "al-Mudawwana al-Kubra": I say: what do you say of the divorcee whose husband retains the right of return, or of the mabtuta: may she go out by day? He said: Malik said: yes, she goes out by day, comes and goes, and spends the night only in the house she inhabited when divorced. I say: the divorced women, mabtutat and otherwise, and those whose husbands have died, are they equal in Malik's view regarding going out by day and sleeping by night? He said: yes. Sahnun reported to me, from Ibn Wahb, from al-Layth, from Sa'd and Usama, from Nafi', from Ibn 'Umar, that he used to say: "When a woman is divorced outright, she may come to the mosque, the right being hers, and she does not sleep except in her house until her waiting period completes." Sahnun reported to me, from Ibn Wahb, from Abu al-Zubayr, from Jabir b. Abdallah, that his maternal aunt informed him that she had been divorced and wished to harvest her dates, but men prevented her from going out; she came to the Messenger of Allah (peace and blessings of Allah be upon him), who said: "Rather, harvest your dates; perhaps you will give in charity and do a good deed." And 'A'isha said: "She goes out and does not sleep except in her house." Al-Qasim said: "She goes out to the mosque." (Source: "al-Mudawwana al-Kubra" (4/188).)
They differed concerning going out by night: the Shafi'is hold that it is permitted for her to go out by night to the house of a neighbor, for spinning, conversation and the like, on condition that she returns and sleeps in her house, because of the hadith of Mujahid:"Men were martyred on the day of Uhud; their women came to the Messenger of Allah (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. The Messenger of Allah 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)
And because the waiting period of death is weightier: if going out is permitted in the waiting period of death, the irrevocable divorce is more deserving of it. (Sources: "al-Bayan" (11/74, 75), "al-Najm al-Wahhaj" (8/169, 170), "Mughni al-Muhtaj" (5/112, 113), "Tuhfat al-Muhtaj" (10/67, 77).)
The Hanbalis hold that the observing woman may not go out by night, even for a need, because of the hadith of Mujahid (cited above) and the report of 'Alqama: "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". The night is a time prone to corruption; rather she goes out by night for necessity, such as the collapse of the house. (Sources: "al-Kafi" (3/323, 324), "al-Mubdi'" (8/145), "al-Insa" (9/308), "Kashaf al-Qina'" (5/505).)
The Malikis said: it is permitted for the observing woman, of death or of divorce, to go out for her needs at the two ends of the day: a little after dawn and after sunset until the 'isha; even more fittingly by day, to the point that it is permitted for her to attend a wedding, while she never sleeps except in her house. It is stated in the "Mudawwana": she may manage her affairs by day and go out at dawn, near the fajr, and she returns between that time and the last 'isha. Al-Lakhmi said: Malik sees no harm in her going out before the fajr. Abu 'Umar said: she goes out to the mosque. The Messenger of Allah (peace and blessings of Allah be upon him) said to the neighboring observing women:"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)
Ibn al-Mawwaz said: it means, and Allah knows best, that they stay up until the time when people sleep. Malik said: I dislike her staying at her mother's all day. Malik also said: it is permitted for her to attend the wedding, but without adorning herself with what a bride does not wear. (Sources: "al-Taj wa-l-Iklil" (3/200), "Sharh Mukhtasar Khalil" (4/160), "Hashiyat al-Dasuqi" with "al-Sharh al-Kabir" (3/441), "al-Tadhyil wa-l-Tahbir" (3/360).)