Islamic Fiqh > Marriage and family > Raja: the return after revocable divorce > Is the wife's consent, or that of her guardian, required for the validity of the return?
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Updated on 25 September 2026 at 3:23 PM
This part belongs to the full chapter: See all parts.
The people of knowledge agreed: the wife's consent or her guardian's is not required; the return is valid even if she is reluctant and non-consenting, by His word: « And their husbands have a better right to take them back » (Surah Al-Baqarah, 228), without condition of consent; were consent required, the husband would not be more entitled to take her back than she herself, having no such right without her approval: this would contradict Allah's report, which is impossible; the return was instituted to make repair possible in regret: were her consent required, repair would be impossible, for she may not will it (1). Imam Ibn Hazm (may Allah have mercy on him) said: « They agreed that whoever divorced his wife, lawfully married, with a sunnah divorce, while she is among those owing the 'iddah, once or several times, has the right to take her back, whether she wills it or refuses, without guardian or dower, so long as she is in her 'iddah; and the spouses inherit from one another so long as the 'iddah is not complete » (2). Imam Ibn Rushd (may Allah have mercy on him) said: « The Muslims agreed that the husband has the right to return to his wife in revocable divorce so long as she is in her 'iddah, regardless of her consent, by His word: "And their husbands have a better right to take them back in that period"; and that the condition of this divorce is prior consummation » (3).
References: Bada'i' as-sana'i' (3/186); Maratib al-ijma' (p. 75); Al-Iqna' fi masa'il al-ijma' (3/1282, no. 2336); Bidayat al-mujtahid (2/63).
The return is valid although the woman is unaware of it: all the jurists agree, except al-Hasan al-Basri, who said: « It is not a return, unless he informs her of it before her 'iddah expires » (1). Imam Ibn Abd al-Barr (may Allah have mercy on him) said: « The scholars agreed that the first is more entitled to her if he comes before she marries: she was his wife for his return; this proves the validity of the return though she is unaware of it » (2). Ibn Rushd (may Allah have mercy on him) said: « The scholars agreed that the return is valid even if the woman knows nothing of it » (3). Ibn Qudamah (may Allah have mercy on him) said: « The husband of the revocably divorced woman, if he takes her back without her knowing, the taking back is valid: it requires not her consent, therefore not her knowledge, like her divorce » (4).
The ruling when the woman, unaware of the return, has married another husband: the jurists disagreed over the husband who divorced his wife then took her back without her knowing; she married another husband, then the husband claimed to have taken her back and produced witnesses: does the wife belong to the first or to the second? Does the second's consummation make a difference? The Hanafis, the Shafi'is and the Hanbalis (of the madhhab) hold that if the husband took back his wife without her knowing of the return, until her 'iddah expired and she married another, then the first husband comes claiming his return before the 'iddah expired and produces proof: she is his wife and the second's marriage is corrupt, for he married another's wife; she is returned to the first, whether or not he consummated the marriage. Ibn Qudamah (may Allah have mercy on him) said: « This is the correct view, the madhhab of most jurists, among them ath-Thawri, ash-Shafi'i, Abu Ubayd and the partisans of opinion; it is reported from Ali (may Allah be pleased with him) » (1). The proof: Allah's word: « And their husbands have a better right to take them back in that period » (Surah Al-Baqarah, 228): and he did so. The scholars agreed that the first is more entitled if he comes before she marries: this proves the validity of the return despite her ignorance; the return being valid, she is the first's wife: the second's marriage is therefore not valid. If the second has not consummated: they are separated and she is returned to the first, nothing being charged to the second; if he has consummated, she has the equivalent dower due from him: it is intercourse upon a doubt; she observes the 'iddah and does not become lawful to the first until it has elapsed from him (2). Al-Kasani (may Allah have mercy on him) said: « If he takes her back without informing her until her 'iddah expired, and she marries another husband, then the first husband comes: she is his wife, whether the second consummated or not; they are separated, for the return is valid without her knowledge: the second married her while she was the first's wife: it is therefore not valid » (1). Al-Imrani (may Allah have mercy on him) said: neither the wife's consent nor her knowledge is a condition of the return's validity.
Procedure: if her 'iddah has expired, she has married another, and the first husband claims to have taken her back before her 'iddah expired, while the second claims: « her 'iddah ended before you took her back »: if the first produces proof that he took her back before her 'iddah expired, he is judged her husband, the second's marriage is annulled, whether he consummated or not: such is the view of Ali ibn Abi Talib and most jurists. Malik said: « if the second consummated, he is the more entitled to her »; otherwise there are two narrations: one: he is the more entitled; the other: the first; reported from Umar (may Allah be pleased with him). Proof: His word: « Forbidden to you are your mothers... » down to « and married women » (Surah An-Nisa, 23-24): the married woman is she who has a husband, and this one has one: the first; the second's marriage is therefore not valid. Once this is established: if the second has not consummated, they are separated, nothing upon him; if he has consummated, they are separated: the equivalent dower is charged to him and she is in 'iddah, for it is intercourse upon a doubt, and she is not lawful to the first until the 'iddah has elapsed from the second. If the first has no proof, he may litigate against the second, which is more meritorious, or litigate against the wife (1).
The Malikis (in the famous view) and Imam Ahmad (in one narration) hold that if the husband took her back without her knowing of his return, until her 'iddah expired and she married, and the second consummated, she is his wife and the first's marriage is annulled; reported from Umar ibn al-Khattab (may Allah be pleased with him), and its meaning reported from Sa'id ibn al-Musayyib, Abd ar-Rahman ibn al-Qasim and Nafi'; for each of the two contracted with her while the contract was apparently permitted to him, and the second has the preference of consummation: he is given precedence. Imam Ibn Abd al-Barr (may Allah have mercy on him) said: « As for Malik's report from Umar concerning the one who divorced, informed her, then took her back without informing her until she remarried: it is not the famous report from Umar, according to the transmitters of the Hijaz and Iraq. » Abd ar-Razzaq mentioned: Ma'mar reports from Abd al-Karim al-Jazari from Sa'id ibn al-Musayyib, and Ma'mar from Mansur from Ibrahim: « Abu Kanaf divorced his wife, set out traveling, had his return attested before the 'iddah expired, without her knowing, and she married. Umar ibn al-Khattab was asked, and said: if he consummated, she is his wife; otherwise she is your wife if you catch her before he consummates. » Ath-Thawri, Hammad, Mansur and al-A'mash report from Ibrahim: « Abu Kanaf, a man of Najd, divorced his wife once or twice, had the return attested; she did not know, the 'iddah expired, she married; he came to Umar, who wrote to the emir of Egypt: if the other consummated, she is his wife; otherwise she is the first's wife. » Ali (may Allah be pleased with him) said: « she belongs to the first, whether the other consummated or not ». Waki' reported from Isma'il ibn Abi Khalid from al-Hakam that Abu Kanaf divorced his wife, informed her, had his return attested, but she was not informed; Umar said to him: « if you catch her before she marries, you are more entitled to her »; thus he said "before she marries", the preserved version being "unless he consummates". As for the saying « he divorced his wife without informing her », it is the scribe's error; the text is « he divorced, informed her, had his return attested, but she was not informed ». Waki' reported from Shu'bah from al-Hakam that Ali (may Allah be pleased with him) said: « if he divorced her then had his return attested, she is his wife, whether he informed her or not ». Abu Bakr reported: Abdah from Sa'id from Umar ibn Amir from Hammad from Ibrahim, that Ali used to say: « he is more entitled to her, whether he consummated or not ». Abu Umar said: Shurayh, al-Hasan, Sa'id ibn al-Musayyib, Ata', Ibn Shihab, Jabir ibn Zayd and others followed Umar's view in this issue, as did Malik, al-Awza'i, al-Layth and a group among the people of Medina. Among their proofs is the report of Ibn Wahb from Yunus from Ibn Shihab from Sa'id ibn al-Musayyib: « the Sunnah passed judgment on the one who divorces his wife, takes her back, conceals his return, then she becomes lawful and marries another: he has nothing over her affair, which belongs to her other husband ». This report is attributed only to Ibn Shihab ("the Sunnah passed judgment", without mention of Sa'id); others report it from Ibn Shihab from Sa'id from Umar as a judgment, without mention of Sunnah; the mention of Sunnah is not proven therein, and it is reported from Umar through many channels; Ali moreover contradicted him. Qatadah reported from Khallas from Ali, regarding this issue, that he punished the witnesses of the return who concealed it, accused them, flogged them, upheld the divorce and did not return the woman to her first husband: a strange report; had he accepted their testimony of the return, he would not have flogged them; the flogging of witnesses is not proven from him nor in any fundamentals. What is known of Ali is what Ibrahim and al-Hakam reported from him; Ibrahim's mursal reports are moreover all sound by agreement. Such is the view of Ibrahim, the Kufan jurists (Abu Hanifah and his companions), ath-Thawri and al-Hasan ibn Hayy; ash-Shafi'i, Abu Thawr and Dawud said it: all follow herein Ali's word: « the first is more entitled to her, whether the second consummated or not ». The scholars agreed that the first is more entitled if he comes before she marries: this proves the validity of the return despite her ignorance; the return valid, she is the first's wife, the other's marriage is broken, separation is ordered, and she returns to the first after the 'iddah from the second, because of intercourse upon a doubt; her dower is due from him if he consummated. The proof: Allah's word: « And their husbands have a better right to take them back in that period » (Surah Al-Baqarah, 228): and he did so; this view is the most upright. Malik's view, by way of following, is the most apparent. Allah grants success, He who has no partner, and by Allah is success » (1).
Imam Ibn Rushd (may Allah have mercy on him) said: « They disagreed in this chapter over the man who divorces his wife with a revocable divorce while absent, then takes her back: the divorce reaches her, not the return, and she remarries when her 'iddah expires. Malik holds that she belongs to the one who contracted the marriage, whether he consummated or not: such is his word in the Muwatta, followed by al-Awza'i and al-Layth. Ibn al-Qasim reported from him that he retracted the first view and said: the first has more right to her, unless the second consummated. The Medinans among his companions followed the first view: they said he did not retract, having established it in his Muwatta until his death, when it was read to him: it is Umar ibn al-Khattab's view, which Malik reported in the Muwatta. Ash-Shafi'i, the Kufans, Abu Hanifah and others: the first husband who took her back is more entitled to her, whether the second consummated or not: Dawud and Abu Thawr said it, it is reported from Ali, and it is the most apparent. It is reported from Umar ibn al-Khattab (may Allah be pleased with him) regarding this issue: "the husband who took her back is given the choice: either she remains his wife, or he relinquishes it by what he had affirmed as truer". Malik's proof in the first narration is the report of Ibn Wahb from Yunus from Ibn Shihab from Sa'id ibn al-Musayyib: "the Sunnah passed judgment on the one who divorces his wife then takes her back concealing his return until she becomes lawful and marries another: he has nothing over her affair; she belongs to the one who married her". It has been said this hadith is reported only from Ibn Shihab. The first group's proof: the scholars agreed that the return is valid even if the woman is unaware of it, since they agreed the first is more entitled to her before she marries; the return valid, the second's marriage is corrupt: another's marriage does not affect the invalidation of the return, before or after consummation, and this is the most apparent. Witness what at-Tirmidhi reported from Samurah ibn Jundab:
« Whatever woman two men marry, she belongs to the first of them; and whoever concludes a sale with two men, it belongs to the first of them. »Reported by at-Tirmidhi, from Samurah ibn Jundab
References: Al-Iqna' fi masa'il al-ijma' (3/1284, no. 2342); Al-Istidhkar (6/137); Bidayat al-mujtahid (2/65); Al-Mughni (7/411); Al-Istidhkar (6/137); Mukhtasar ikhtilaf al-'ulama (2/390-391); Ikhtilaf al-'ulama of al-Marwazi (p. 179); Bada'i' as-sana'i' (3/181); Al-Bayan fi madhhab al-Imam ash-Shafi'i (10/254-255); Al-Mughni (7/411); Al-Mubdi' (7/397); Al-Insaf (9/159-160); Bidayat al-mujtahid (2/64-65).
Most of the people of knowledge hold that the man who divorces his wife revocably has his divorce, his zhihar and his li'an attach to her; and the spouses inherit from one another if either dies during the 'iddah. The ila' is subject to two views among the Shafi'is and Hanbalis; the correct view among them is that it is valid (1). Ibn Qudamah (may Allah have mercy on him) said: « The revocably divorced woman is a wife: her divorce, her zhihar, her ila' and her li'an attach to her, and the spouses inherit by agreement; khul' is valid. Ash-Shafi'i said in one of his two views: khul' is not valid, for it aims at prohibition, while she is forbidden. In our defense: she is a wife whose divorce is valid: her khul' is therefore valid as before the divorce; the purpose of khul' is not prohibition, but deliverance from the husband's harm and from his marriage which is its cause; the marriage subsists and his return cannot be ruled out; moreover we deny that she is forbidden » (1). Al-Kasani (may Allah have mercy on him) said: « The revocably divorced woman is a wife: her divorce, her zhihar and her ila' are valid, the li'an proceeds between them and they inherit from one another » (2). Ibn Abd al-Barr (may Allah have mercy on him) said: « The divorced woman whose husband holds the right of return is entitled to lodging and maintenance; the spouses inherit so long as the 'iddah is not complete; when it is complete, separation occurs and inheritance falls away; so long as it is not complete, her divorce, her ila' and her zhihar attach to her; he may not, during her 'iddah, marry a fifth besides her, nor her sister, nor her paternal aunt, nor her maternal aunt; she has the wife's status in all her rulings » (3). Ibn Muflih (may Allah have mercy on him) said: « The revocably divorced woman is a wife: divorce, zhihar and ila' attach to her », and the spouses inherit by agreement if either dies; and from him: « the ila' is not valid from her » (1). Ibn al-Qayyim (may Allah have mercy on him) said: « The revocably divorced woman is a wife in the generality of rulings: inheritance and maintenance are established between them; zhihar and ila' are valid; he is forbidden to marry her sister, her paternal aunt, her maternal aunt, or a fourth besides her so long as she is a wife » (2). Imam Ibn al-Mundhir (may Allah have mercy on him) said: « All those whose sayings we preserve agreed: whoever divorced his wife, whom he had consummated, with a divorce leaving him the return, whether sound or sick, if he dies or she dies before her 'iddah expires, the spouses inherit from one another » (3).
References: Al-Bayan (10/245); An-Najm al-wahhaj (8/18); Maghni al-muhtaj (5/12); Ad-Dibaj (3/486); Al-Mubdi' (7/393); Al-Insaf (9/152-153); Al-Iqna' fi masa'il al-ijma' (3/1282); Al-Mughni (7/400); Al-Muhadhdhab (2/74); Bada'i' as-sana'i' (3/180); Al-Kafi fi fiqh al-Imam Ahmad (1/292); At-Taj wa-l-iklil (3/120); Sharh mukhtasar Khalil (4/86); Ash-Sharh al-kabir with the hashiyah of ad-Dasuqi (3/337); Tahbir al-Mukhtasar (3/232); Al-Mubdi' (7/393); Zad al-ma'ad (5/453); Al-Ishraf (5/220).
The jurists disagreed over the divorced woman who claims her 'iddah expired in less than three months, the husband denying the expiry: is her word admitted? The Hanafis: the minimal period in which the woman is believed when she claims her 'iddah expired is sixty days, according to Imam Abu Hanifah; below that, she is not believed. Muhammad and al-Hasan ibn Ziyad (may Allah have mercy on them) disagreed over extrapolating Abu Hanifah's view. According to Muhammad: the divorce is deemed to have occurred at the start of the lunar month, as a precaution against divorce in a month of purity after intercourse; her purity is fixed at fifteen days and her menses at five, the median figure: her 'iddah expires with three purities of fifteen days each and three menses of five days each: sixty days in all. According to what al-Hasan reported from him: the divorce is deemed at the end of the month of purity, as a precaution against lengthening the 'iddah upon her; her purity is fifteen days and her menses ten: purity is estimated at its minimum for the woman's sake, and menses at its maximum for the husband's: her 'iddah expires with two purities of fifteen days and three menses of ten days: sixty days in all. According to Abu Yusuf and Muhammad, the minimum is thirty-nine days: she is trustworthy in reporting what is in her womb: her word must be admitted if she reports what is possible; her statement is possible if the divorce occurred at the end of the month of purity, her purity being fifteen days at minimum and her menses three days at minimum: her 'iddah expires with two purities (thirty days) and three menses (nine days): thirty-nine days in all. Example: the divorce occurs just before her first menses: three days; she purifies fifteen days, menstruates three days, purifies fifteen days, menstruates three days, and the 'iddah is complete: below that she is not believed (1).
The Malikis: the wife claiming her 'iddah expired falls into three cases. First case: her husband took her back, then she claims: « my 'iddah ended with three qur' or by the settling of the pregnancy »: she is believed, even if the husband contradicts her, provided there is a time in which the 'iddah's expiry is possible by what she claims; she is not made to swear even if she departs from her habit, women being trusted regarding their private parts. Second case: she claims expiry within a period in which it rarely expires, such as a month or thereabouts, or the matter is obscure: the women are questioned about it; if they testify for her, that is, that women menstruate like her, she is believed. Third case: she claims expiry within a period in which it cannot expire at all, neither usually nor rarely: she is not believed and the women are not questioned (1).
The Shafi'is: when the woman claims her 'iddah expired by the qur', one examines: if she was divorced in a month of purity while regular, the minimum possible expiry for her likes is thirty-two days and two instants: she is divorced at the very last instant of the month of purity, and that instant counts as a first qur'; she menstruates a day and a night, then purifies fifteen days: second qur'; she menstruates a day and a night, purifies fifteen days: third qur'; then she enters the third menstruation: her 'iddah has expired upon the entry of an instant into the third menstruation. Adding the two purities (thirty days), the two menses (two days) and the two instants: thirty-two days and two instants in all; the first instant is part of the 'iddah, the last is not part of it but reveals its expiry: it is required for the 'iddah without being of it: it therefore avails neither the return nor any other effect of the marriage, such as inheritance; a new contract concluded during that instant would be valid. Such is the minimum of three qur'. As for the beginner (mubtada'ah), the woman divorced before her first menses who then menstruates, the minimum possible is forty-eight days and one instant for entry: the month of purity of the divorce is not a qur', not being flanked by two flows of blood; and another instant is not considered, the divorce possibly having occurred within the end of that month of purity. If she is divorced during her menses, regular or beginner, the minimum expiry is forty-seven days and one instant: divorce attached to the end of her menses, then purification of fifteen days, menses of a day and a night, purification of fifteen days, menses of a day and a night, purification of fifteen days, then entry into the menses (1).
The Hanbalis: the woman claiming her 'iddah expired within a possible period is believed, by Allah's word: « It is not permitted to them to conceal what Allah created in their wombs » (Surah Al-Baqarah, 228); the interpretation says: it is menses and pregnancy; were their word not admitted, concealing it would not be forbidden them; it is a thing they alone know: their word prevails therein, like intention in acts where it is considered, or a thing known only from them: their word is admitted therein. If she claims her 'iddah expired by menses within a single month, she is not admitted without testimonial proof, even from a single woman; affirmed from what is reported of Ali ibn Abi Talib (may Allah be pleased with him): « a woman came to him: her husband had divorced her, and she claimed to have menstruated three times in one month, purified herself at each qur' and prayed. Ali said to Shurayh: judge her case. Shurayh said: if proof from her close kin, whose religion and trustworthiness are acceptable, testifies that she menstruated three times in one month, purified herself at each qur' and prayed, she is truthful; otherwise she is a liar. Ali said: kalon, a Roman word meaning "good", that is, "well done" », forming thirty with his hand. Expiry within a month being very rare, proof is necessary. Imam Ahmad (may Allah have mercy on him) said: « there is no disagreement: the 'iddah expires within a month if proof establishes it » (2). The minimum expiry is twenty-nine days and one instant: he divorces her at the very end of the month of purity; she menstruates a day and a night, purifies thirteen days, menstruates a day and a night, purifies thirteen days, menstruates a day and a night, then purifies an instant, so that the cessation of menses be known; that instant is not part of her 'iddah but is indispensable to know the cessation: were the return to fall upon that instant, it would not be valid.
References: Al-Mabsut (3/200); Bada'i' as-sana'i' (3/198-199); Al-Muhit al-Burhani (4/91); Mukhtasar al-Wiqayah (1/407); Sharh Fath al-Qadir (4/187); Tibyin al-haqa'iq (2/260); Durrar al-hukkam sharh ghurar al-ahkam (4/418); Hashiyat Ibn Abidin (3/524); At-Taj wa-l-iklil (3/120-121); Sharh mukhtasar Khalil (4/86); Ash-Sharh al-kabir with the hashiyah of ad-Dasuqi (3/338); Tahbir al-Mukhtasar (3/233); Al-Umm (5/246); Al-Hawi al-kabir (10/306); Rawdat at-talibin (5/529-530); An-Najm al-wahhaj (8/14-15); Kinz ar-raghibin (4/12-13); Maghni al-muhtaj (5/10-11); Tuhfat al-muhtaj (9/604-606); Nihayat al-muhtaj (7/71-72); Ad-Dibaj (3/483-484); Al-Ishraf (5/380-381); Bukhari, mu'allaq: chapter of the woman who menstruates three times in a month (1/505); ad-Darimi (855); Sa'id ibn Mansur, As-Sunan (1309); Ibn Abi Shaybah (4/200); al-Bayhaqi, Ma'rifat as-sunan wa-l-athar (12/381); al-Hafiz in Fath al-Bari (1/506): its men are trustworthy; Al-Mughni (1/190); Al-Mubdi' (1/271).
First case (during the 'iddah): if he says « I took you back yesterday or last month » during the 'iddah, his word is admitted whether the wife confirms or denies it: having acquired the power of return, he has that of acknowledging it, like divorce; he reports a thing he can create at once, the husband having the power of return at once; whoever reports a thing he can create at once is believed, for otherwise he would create it immediately, and the denial has no effect. He becomes like the agent before revocation saying: « I sold it yesterday » (1).
Second case: he says to her after the 'iddah expired: « I had taken you back yesterday, last month, or two days ago »: the people of knowledge agree that his word is not admitted: the word is the woman's with her oath, unless he produces testimonial proof, or, according to the Malikis, if he used to spend the night with her during the 'iddah: he is then believed and his return valid, even if she denies him. Without proof, his word is not admitted: he reports a thing he can no longer create, no longer having the power of return after the 'iddah's expiry; he becomes like the agent after revocation saying: « I sold it », denied by the principal (1). Imam Ibn al-Mundhir (may Allah have mercy on him) said: « They agreed likewise that if the divorcer says after the 'iddah expired: "I had taken you back during the 'iddah", and the woman denies it, the word is the woman's with her oath, and he has no way to her; but an-Nu'man saw no oath in marriage or in the return; his two companions contradicted him, saying what the rest of the people of knowledge say » (1). Ibn Qudamah (may Allah have mercy on him) said: « If he says after her 'iddah expired "I had taken you back during your 'iddah" and she denies him, the word is the woman's, by agreement: he claimed possessing her at a time when he did not own her, the origin being non-existence and the existence of separation » (2). Imam Ibn al-Qattan al-Fasi (may Allah have mercy on him) said: « The people of knowledge agreed that if the divorcer says after the 'iddah expired: "I had taken you back during the 'iddah", and the woman denies it, the word is the woman's with her oath, except an-Nu'man, who saw no oath in marriage or in the return » (3). Imam al-Qurtubi (may Allah have mercy on him) said: « The scholars agreed that if the divorcer says after the 'iddah expired: "I had taken you back during the 'iddah", and she denies it, the word is the woman's with her oath, with no way for him to her, except an-Nu'man, who saw no oath in marriage or in the return; his two companions contradicted him like the rest of the people of knowledge » (1).
References: Mukhtasar ikhtilaf al-'ulama (4/232); Al-Mabsut (6/22); Tuhfat al-fuqaha (2/180); Bada'i' as-sana'i' (3/185); Sharh Fath al-Qadir (4/163); Al-Mudawwanah al-kubra (5/324-325); At-Taj wa-l-iklil (3/117); Sharh mukhtasar Khalil (4/82-83); Ash-Sharh al-kabir with the hashiyah of ad-Dasuqi (3/331-332); Tahbir al-Mukhtasar (3/227); Al-Umm (5/247); Al-Bayan (10/250); Rawdat at-talibin (5/535-536); Al-Mughni (7/407); Al-Kafi (3/232); Sharh az-Zarkashi (2/122); Al-Mubdi' (7/401); Al-Insaf (9/163); Al-Ishraf 'ala madhahib al-'ulama (5/380); Al-Mughni (7/407); Al-Kafi (3/232); Al-Iqna' fi masa'il al-ijma' (3/1287, no. 2348); Tafsir al-Qurtubi (3/122); At-Taj wa-l-iklil (3/117); Sharh mukhtasar Khalil (4/82-83); Ash-Sharh al-kabir with the hashiyah of ad-Dasuqi (3/331-332); Tahbir al-Mukhtasar (3/227).
When the spouses disagree over the expiry of the 'iddah within a period in which it may expire or subsist, three cases arise. First case: she precedes him with the claim. If she says at the outset: « my 'iddah has ended », and he replies: « I took you back yesterday » for example, and she denies him, his word is not admitted: the word is the woman's according to the jurists of the four schools, Hanafis, Malikis, Shafi'is and Hanbalis; for her information of her 'iddah's expiry is admitted, being possible: his claim of the return therefore comes after the judgment of her 'iddah's expiry: it is not admitted (2). Ibn Qudamah (may Allah have mercy on him) said: « If their disagreement concerns a period in which her 'iddah may expire and subsist, and she begins by saying "my 'iddah has ended", then he says "I had taken you back" and she denies him, his word is not admitted: her information of the expiry is admitted, being possible; his claim of the return comes after the judgment of expiry: it is not admitted » (1). Imam ash-Shafi'i (may Allah have mercy on him) said: « Every divorced woman over whom her husband has the right of return, if she says "my 'iddah has ended" then says "it has not ended", the return belongs to her husband. If she says "my 'iddah has ended" and he denies her, she is made to swear: if she swears, the word is hers with her oath; if he does not swear, he is made to swear decisively whether her 'iddah ended or not; if he balks, she is not returned to him » (2). Az-Zarkashi (may Allah have mercy on him) said: « If she precedes him with the claim, saying within a period in which expiry is possible: "my 'iddah has ended", and he replies "I had taken you back", the word is the woman's, without known disagreement: her information, in this state, of her 'iddah's expiry is admitted; by her word the expiry of her 'iddah was judged, and his later claim is not admitted, the creative act having lapsed: his information is therefore also lapsed » (3).
References: Bada'i' as-sana'i' (3/186); Al-Jawharah an-nayyirah (4/480); At-Taj wa-l-iklil (3/120-121); Sharh mukhtasar Khalil (4/86); Ash-Sharh al-kabir with the hashiyah of ad-Dasuqi (3/338); Tahbir al-Mukhtasar (3/233); Al-Bayan (10/251-252); Rawdat at-talibin (5/535-536); An-Najm al-wahhaj (8/20); Maghni al-muhtaj (5/13); Tuhfat al-muhtaj (9/610); Ad-Dibaj (3/487); Al-Mughni (7/407-408); Sharh az-Zarkashi (2/491); Al-Mughni (7/407-408); Sharh az-Zarkashi (2/491); Al-Mubdi' (7/402); Al-Insaf (9/163); Kashshaf al-qina' (5/403); Al-Umm (5/226); Sharh az-Zarkashi (2/122).
Second case: he precedes her with the claim. If he first says to her: « I have taken you back », and she replies: « my 'iddah ended before your claim », within a period in which the 'iddah may expire or subsist, the word is the husband's according to Abu Yusuf and Muhammad, the Shafi'is in one aspect and the Hanbalis of the madhhab; for his claim of the return precedes the judgment of her 'iddah's expiry within a period in which his word's admission is apparent: the woman's word is therefore no longer admitted thereafter to invalidate it; and because she has encountered the 'iddah: her 'iddah subsists so long as she does not report its expiry, and the return preceded her information of the expiry: the return is valid and the 'iddah falls away; her information of the expiry, coming after the fall of the 'iddah, has no effect, there being no authority to report after the fall (1). Abu Hanifah, the Malikis, the Shafi'is (of the madhhab) and the Hanbalis (in one view) hold that the word is the woman's and the return is not established; for the woman is trusted in her information of the 'iddah's expiry: the Law entrusted her with trust in this chapter, by Allah's word: « It is not permitted to them to conceal what Allah created in their wombs, if they believe in Allah and the Last Day » (Surah Al-Baqarah, 228); the interpretation says: it is menses and pregnancy; He forbade them concealing, and the prohibition of concealing is a command to reveal, the prohibition of a thing being a command of its opposite, and the command to reveal being a command of admission, so that the fruit of revelation appear: the admission of her word and her information of the expiry is therefore required. Moreover, his saying « I have taken you back » is a creative act, and her saying « my 'iddah has ended » is a report: the expiry thus precedes his word; the 'iddah's expiry is known only from her, while the husband can witness the return, no criterion of precedence having prevailed to present it first (1). The Shafi'is admit the husband's word if the woman's speech is separated in time from his; if her speech is continuous, she is the one believed (2).
References: Al-Mabsut (6/24); Bada'i' as-sana'i' (3/185-186); Al-Hidayah (2/7); Al-Muhit al-Burhani (4/17); Al-Ikhtiyar (3/182); Al-Mughni (7/407-408); Sharh az-Zarkashi (2/491); Al-Mubdi' (7/402); Al-Insaf (9/163); Kashshaf al-qina' (5/403); Al-Mabsut (6/24); Mukhtasar ikhtilaf al-'ulama (4/232); Bada'i' as-sana'i' (3/185-186); Al-Hidayah (2/7); Al-Muhit al-Burhani (4/17); Al-Ikhtiyar (3/182); Al-Jawharah an-nayyirah (4/480); Al-Mudawwanah al-kubra (5/327-328); Ahkam al-Qur'an (1/256); At-Taj wa-l-iklil (3/120-121); Sharh mukhtasar Khalil (4/86); Ash-Sharh al-kabir with the hashiyah of ad-Dasuqi (3/338); Rawdat at-talibin (5/535-536); An-Najm al-wahhaj (8/20); Maghni al-muhtaj (5/13); Tuhfat al-muhtaj (9/610); Ad-Dibaj (3/487); Al-Mughni (7/407-408); Sharh az-Zarkashi (2/491).
Third case: the word comes from both at once. The jurists disagreed: if husband and wife claim simultaneously, the husband manifesting the return at the moment she manifests the expiry of the 'iddah, whose word is admitted? The Malikis, the Shafi'is (of the madhhab) and the Hanbalis (of the madhhab) hold that when the spouses claim at the same time, the word is the woman's, namely that her 'iddah has expired, with no return for him; for her information of the expiry proceeds from her person, his word thus falling after the 'iddah: it is not admitted; the expiry, in general, is known only from her, and the husband can witness the return (1). The Shafi'is (in one aspect) and the Hanbalis (in one view) hold that lots are cast between them: the word goes to whoever wins the draw, the lot being the arbiter in case of equality, like the imamate, the call to prayer and manumission (2). According to another view of the Shafi'is and Hanbalis, the word is the husband's: the woman claims what would lift the divorce, which he denies: his word is admitted, like the husband under the oath of abstinence and the impotent man who claim to have had relations with their wife while she denies it (3).
References: Kinz ar-raghibin (4/17); An-Najm al-wahhaj (8/20); Maghni al-muhtaj (5/14); Tuhfat al-muhtaj (9/613); Ad-Dibaj (3/487); Al-Bayan (10/252); Kinz ar-raghibin (4/17); An-Najm al-wahhaj (8/20); Al-Mughni (7/407-408); Sharh az-Zarkashi (2/491); Al-Insaf (9/163); An-Najm al-wahhaj (8/20); Kinz ar-raghibin (4/17); Al-Mubdi' (6/402).
The Muslim jurists agree that the menstruating woman observes her 'iddah for three qur', by His word: « The divorced women await for three qur' » (Surah Al-Baqarah, 228). There is no disagreement between the jurists of the ancients and the later ones over the application of the name qur' to the month of purity and to the menses: had the term not borne both, the ancients would not have interpreted it so, being masters of the language and of the meaning of names; as one of the two groups interpreted it by the menses and the other by the purities, we know the name applies to both; all the more so as this disagreement was widespread among them without anyone rejecting his opponent's view, which proves that the term bears both senses and that interpretive effort therein is legitimate (1). Ibn Battal (may Allah have mercy on him) said: « The people of language did not disagree: the Arabs call the menses qur', call the month of purity qur', and call the time joining menses and purity qur'. The term bearing these senses in the language, proof must therefore be sought of what Allah intends by His word "three qur'" » (Sharh Sahih al-Bukhari of Ibn Battal, 7/487). The jurists of the four schools disagreed over the qur' required of the divorced woman: menses or purities? And accordingly they disagreed over the moment at which the divorced woman is distinguished from her husband, after which the return is no longer possible.
The import of the disagreement: whoever holds the qur' to be purity judges that upon her entry into the third menstruation her 'iddah is finished and she becomes lawful to husbands: the madhhab of the Malikis and Shafi'is. Whoever holds the qur' to be the menses, the Hanafis and Hanbalis, judges that her husband may take her back so long as she has not washed from her third menstruation; after the major ablution, the return is cut off: the ruling of the pure has been established therein, namely the permission of prayer. Here is the detail. The Hanafis and the Hanbalis (of the madhhab) hold that the intended qur' is the menses: the man who divorces his consummated wife counts three menses, excluding the menses of the divorce if he divorced her during her menses; after the major ablution from the third menstruation, her 'iddah is finished and she becomes lawful to husbands. This is reported from Abu Bakr as-Siddiq, Umar ibn al-Khattab, Ali ibn Abi Talib, Abdallah ibn Mas'ud, Abu Musa al-Ash'ari, Mu'adh ibn Jabal, Abu ad-Darda', Ubadah ibn as-Samit and Ibn Abbas (may Allah be pleased with them), and from a group of Successors of the Hijaz, Syria and Iraq: the divorced woman does not become lawful to husbands until after the major ablution from the third menstruation. The proof that the qur' is the menses is the Prophet's word (peace be upon him):
« The 'iddah of the slave girl is two menses. »Weak hadith: reported by Abu Dawud (2189), at-Tirmidhi (1182) and Ibn Majah (2079)
The slave girl does not differ from the free woman in the nature of what produces the 'iddah, but in the number; Allah affirmed the number three and the plural: « three » designates a defined quantity that designates neither more nor less; applying it to purities would amount to using it for what is less, namely two purities and part of the third: contradiction; the full plural being the triple, which is its reality. Urwah ibn az-Zubayr reported that Fatimah bint Abi Hubaysh told him she came to the Messenger of Allah (peace be upon him) complaining of blood:
« That is only a vein. Watch: when your qur' comes, cease praying; then, when the qur' has passed, wash and pray between the two qur'. »Sound hadith: reported by Abu Dawud (280), an-Nasa'i (211), Ibn Majah (620) and Ahmad (27671)
He also said: « The woman with continuous flow suspends prayer on the days of her qur', then washes and performs ablution for every prayer, fasts and prays » (sound hadith: reported by Abu Dawud (297), at-Tirmidhi (126) and Ibn Majah (625)): the Prophet (peace be upon him) thus made the menses a qur'. Alqamah reported from Abdallah ibn Mas'ud (may Allah be pleased with him): « I was with Umar (may Allah be pleased with him) when a man came with a woman. The man said: I divorced my wife then took her back. She said: what prevents me from saying what happened: he divorced me, left me until my third menstruation, the blood ceased, I closed my door, prepared my major ablution and removed my garments; he then knocked at the door and said: I have taken you back. Umar said: speak on her behalf, O son of a slave's mother. I said: I see the return valid so long as prayer is not lawful for her. Umar said: had you said otherwise, I would not have deemed it right. » Makhul reported that Abu Bakr, Umar, Ali, Ibn Mas'ud, Abu ad-Darda', Ubadah ibn as-Samit and Abdallah ibn Qays al-Ash'ari (may Allah be pleased with them) « said, regarding the man who divorces his wife once or twice, that he is more entitled to her so long as she has not washed from her third menstruation; he inherits from her and she from him so long as she is in the 'iddah ». The name qur' applies to the menses: women are called "possessed of qur'" only while menstruating. Hence, if divorced during a menstruation, she does not count it as a qur', being required to count three. Allah said: « Those of your women who have despaired of menstruation, if you doubt, their term is three months; and likewise those who have not yet menstruated » (Surah At-Talaq, 4): each month is set against a menstruation, and the ruling is tied to the absence of menses, not to the absence of purity. And the Prophet (peace be upon him) said regarding the captives of Awtas:
« Let not the pregnant woman be approached until she gives birth; nor the one not pregnant until she has menstruated once. »Sound hadith: reported by Abu Dawud (2157), ad-Darimi (2295), Ahmad (3/62) and al-Bayhaqi (5/329)
Moreover, the primary purpose of the 'iddah is the purification of the womb (istibra'), though it has other benefits; and in honor of the married free woman and as a precaution, the proof of her womb's purity was fixed at three qur'. Were the qur' purity, the first qur' would prove nothing: if the man has intercourse with her in a month of purity, divorces her, then she menstruates, that month counts as a qur' among those who say "the qur' are the purities", while it proves nothing; what proves purity is the menstruation occurring after the divorce. If he divorces her in a month of purity without menstruation in that month, the womb's purity is known here only from the menstruation preceding the divorce; yet the 'iddah cannot exist before the divorce, being its effect, and the effect does not precede its cause. The month of purity after the divorce, devoid of probative value on purity, therefore cannot enter the count of the periods proving the womb's purity: it is like an inadmissible witness, and a ruling is not suspended upon the testimony of a witness without testimony. Clarification: the wife's 'iddah is like the slave girl's istibra'; and the explicit Sunnah established that the istibra' is by menses, not by purity: the same applies to the 'iddah, no difference between them except the plurality of the 'iddah and the fact that the istibra' suffices with a single qur'. The majority hold that the istibra' is counted by a menstruation, not by a purity; and the slave girl's istibra' stands to the free woman as her 'iddah. The free woman's counting by menses is stronger than the slave girl's on two counts: the first: precaution is established therein by repeating the qur' three times in three istibra's, so her counting should be by menses, more precautionary than purity: the remainder of a menstruation does not count as a qur', while the remainder of a month of purity counts as one; the second: the slave girl's istibra' is a branch of the free woman's 'iddah, established by the text of the Qur'an, while the istibra' is established only by the Sunnah: if the Lawgiver took precaution to fix it by menses, all the more the free woman's 'iddah: the free woman's 'iddah is her istibra', and the slave girl's istibra' is her 'iddah. Moreover, signs, markers, delimitations and bounds are obtained only through manifest things distinct from their opposite; purity is the original state: so long as it continues, no ruling singles it out in the Law; the distinct thing is menstruation: as soon as she menstruates, her rulings change (majority, prohibition of prayer, fasting, tawaf, remaining in the mosque and other rulings); then, the blood ceased and the major ablution performed, her rulings do not change through the renewal of purity, but through the disappearance of the changer, namely the menses: after purity she returns to her prior state, without purity creating a new ruling. The qur' is a thing that changes the woman's rulings: that change is obtained only by the menses. This path thus proves the corruption of the view of whoever counts as a qur' the month of purity preceding the menstruation when the woman is divorced before having menstruated and then menstruates: counting that month as a qur' amounts to making a qur' of a thing with no ruling in the Law, which is corrupt (1).
The Hanafis, however, said: if her days of menses are ten, their maximum, the return is not valid: she becomes lawful to husbands at the cessation of the blood of the third menstruation, even without major ablution; the menses cannot exceed ten days, so at cessation she leaves menstruation: the 'iddah expires and the return is cut off. If the blood ceases in less than ten days, the return does not cease before the major ablution: below ten days the blood's return is possible: these would be menses by persistence of the period: the major ablution is therefore necessary; or because she must be subject to a ruling of the pure: if the time of a prayer elapses, it becomes a debt upon her responsibility, and such a debt is owed only by the pure. That is when the blood ceases at the start of the time; if it ceases at the end of the time, the nearest moment in which she can wash and form the intention is considered, or she performs tayammum and prays during that time, even a supererogatory prayer, if she is traveling or for an excuse, according to Abu Hanifah and Abu Yusuf. Muhammad said: if she performs tayammum for an excuse, the return is cut off even without praying (1). It is reported from Imam Ahmad (may Allah have mercy on him) that she remains in her 'iddah, and her husband in his right of return, until the time of the prayer in which she purified elapses; another narration from him: her 'iddah expires upon her purification from the third menstruation, without requiring the major ablution. The apparent madhhab among the Hanbalis: he has the right of return so long as she has not washed, even if she neglects the major ablution for years; the judge Sharik went as far as twenty years, az-Zarkashi saying: « this is the apparent of al-Khirqi's word and of a group. End of quotation »; for intercourse with the wife during her major ablution from the menses is unlawful, the effect of the menses remaining therein, preventing intercourse as the menses do: what prevents like the menses must prevent what they prevent and require what they require, before and after the cessation of the blood; she is thus not lawful to husbands before the major ablution from the third menstruation. As for the other rulings, the cutting of inheritance, divorce, li'an, maintenance and others, they are obtained by the cessation of the blood (1).
The Malikis, the Shafi'is and Imam Ahmad (in one narration) hold that the qur' intended in His word « three qur' » (Surah Al-Baqarah, 228) are the purities, that is, the time of purity between two menstruations, called qur'; this is reported from Dawud ibn Ali and Ibn Hazm; it is the view of Aisha, Zayd ibn Thabit and Abdallah ibn Umar; reported also from Ibn Abbas; al-Qasim, Salim, Aban ibn Uthman, Abu Bakr ibn Abd ar-Rahman, Sulayman ibn Yasar, Urwah ibn az-Zubayr, Umar ibn Abd al-Aziz, Ibn Shihab, Rabi'ah and Yahya ibn Sa'id said it: « the qur' are the purities ». The divorced woman thus becomes lawful to husbands and leaves her 'iddah upon entering the blood of the third menstruation, according to the correct view; it has been said: it does not expire until a day and a night have passed. Whether there remains of the divorce's month of purity a day, less, more, an hour or an instant, the woman counts it as a qur', by His word: « Divorce them for their waiting period » (Surah At-Talaq, 1), that is, within their 'iddah; it is part of their 'iddah only by counting it; divorce was set in purity, to the exclusion of the menses, only so as not to harm them by lengthening the 'iddah: were the remainder of purity not counted, the 'iddah of the woman divorced in that month would not be completed in three qur'. The purpose of purity is the entry of blood upon it, which announces the womb's health: the duration of purity avails nothing. The Prophet (peace be upon him) permitted divorcing the pure woman without intercourse, without specifying the beginning or the end of purity, as in the hadith of Ibn Umar (may Allah be pleased with them both): « when she purifies, let him divorce her if he wills, or keep her »: he did not single out the beginning of purity over its end; had there been a difference, he would have clarified it, he who expounds Allah's intent, having conveyed and not concealed. Its meaning is moreover known from the Arabic tongue: "I gathered the water in the basin", and "she joined the Qur'an", that is, she united its parts with her tongue. Another proof is the hadith of Ibn Umar: the Prophet (peace be upon him), having ordered him to divorce his wife in purity, fixed the 'iddah saying: « such is the 'iddah for which Allah ordained that women be divorced », and forbade him divorcing during the menses, excluding it from the count of the 'iddah: the qur' are therefore the purities. The hadiths of the Companions who say "the qur' are the purities" have sound chains: the hadith of Aisha is reported by Ibn Shihab from Urwah and others from Aisha (may Allah be pleased with her): « the qur' are the purities »; the hadith of Zayd ibn Thabit (may Allah be pleased with him): « when she enters the blood of the third menstruation, she is cleared of him and he of her: she does not inherit from him and he does not inherit from her »; the hadith of Ibn Umar, which Malik reported from Nafi' (may Allah be pleased with them both): « when he divorces his wife and she enters the blood of the third menstruation, she is cleared of him and he of her: she does not inherit from him and he does not inherit from her »; Ibn Umar reports the hadith of the Prophet (peace be upon him): « such is the 'iddah for which Allah ordained that women be divorced »; the story befell him, having divorced his wife during her menses: he is therefore the most knowledgeable therein, with him Zayd ibn Thabit, Aisha and the majority of the Successors of Medina; added to this is the proof of the Prophet's hadith (peace be upon him), a decisive proof in case of dispute. The Companions (may Allah be pleased with them) disagreed over this issue: the word of Aisha and Ibn Umar must be preferred; Aisha knows the state of menstruation better through what is proper to her of women's affairs and her closeness to the Messenger of Allah (peace be upon him); Ibn Umar experienced the divorce during the menses and what befell him therein: he is the most knowledgeable. They agreed that the sunnah divorce consists in divorcing the pure woman without intercourse, and that every woman in 'iddah, from divorce or death, counts her 'iddah from the hour of her divorce or her husband's death: proof that the qur' are the purities, not the menses; for those who say "the menses" hold that she does not count until the menstruation following the month of purity of the divorce: they impose upon her three qur' and more still, contrary to the Book and the Sunnah, and they are compelled to assert that before this menstruation she is in no 'iddah, contrary to the apparent sense of Allah's word: « Divorce them for their waiting period » and the Prophet's word (peace be upon him): « such is the 'iddah for which Allah ordained that women be divorced ». On this basis: if he divorces her pure, her 'iddah expires upon seeing the blood of the third menstruation, according to the correct view; among the Shafi'is and Hanbalis one view requires a day and a night after entry into the third menstruation, and after entry into the following menstruation likewise, the existence of menstrual blood not being confirmed otherwise. If he divorces her during her menses, even if hardly an instant of her menses time remained, her 'iddah expires upon entry into a fourth menstruation: what remains of the menstruation never counts as a qur' (1).
Ibn Qudamah (may Allah have mercy on him) said: « If we say "the qur' are the purities" and he divorces her pure, her 'iddah expires upon seeing the blood of the third menstruation; if he divorces her during the menses, her 'iddah expires upon seeing the blood of the fourth. The view of Zayd ibn Thabit, Ibn Umar, Aisha, al-Qasim ibn Muhammad, Salim ibn Abdallah, Aban ibn Uthman, Malik and Abu Thawr: it is the apparent of ash-Shafi'i's madhhab. Another view is reported from him: the 'iddah does not expire until the time of the blood has elapsed a day and a night, the blood possibly being blood of corruption: we do not judge the 'iddah expired so long as the possibility remains; the judge reported this possibility in our madhhab too. In our defense: Allah fixed the 'iddah at three qur': contradicting it is contrary to the text, no reliance is placed on it; it is the view of those we named among the Companions, reported by al-Athram with his chain. The wording of Zayd ibn Thabit's hadith: "when she enters the blood of the third menstruation, she is cleared of him and he of her: she does not inherit from him and he does not inherit from her". To those who say "the blood may be blood of corruption" we answer: it was ruled menstruation by the suspension of prayer, the prohibition to the husband and the rest of the rulings of the menses: the same applies to the expiry of the 'iddah. And if one refrains from judging the expiry as a precaution, once it is established that it is menstruation, we know the 'iddah expired at the moment she saw the blood. As if one said to her: "if you menstruate, you are divorced": the holders of this formula disagreed: some: that day and night are part of the 'iddah, being blood that completes it: they are of it, like (the blood occurring) amid the purities; others: they are not part of it: they merely reveal its expiry; for making them part of it would impose an addition upon the three qur'. We nevertheless prevent her from marrying until a day and a night have passed; and if her husband takes her back during that time, the return is not valid: this is the more correct of the two views » (1).
Imam Ibn Rushd (may Allah have mercy on him) said: « They disagreed, from this verse, over what the qur' are. Some: they are the purities, that is, the periods between the two periods of blood. Others: it is the blood itself. Among those who say "the qur' are the purities": among the jurists of the lands, Malik, ash-Shafi'i, the majority of the people of Medina and Abu Thawr; among the Companions: Ibn Umar, Zayd ibn Thabit and Aisha. Among those who say "the qur' are the menses": among the jurists of the lands, Abu Hanifah, ath-Thawri, al-Awza'i, Ibn Abi Layla and others; among the Companions: Ali, Umar ibn al-Khattab, Ibn Mas'ud and Abu Musa al-Ash'ari. Al-Athram reported from Ahmad that the senior ones among the Companions of the Messenger of Allah (peace be upon him) say: "the qur' are the menses"; he also reports from ash-Sha'bi that it is the view of eleven or twelve Companions of the Messenger of Allah (peace be upon him). As for Ahmad ibn Hanbal, the narrations about him differ: he is reported to have said "they are the purities", following Zayd ibn Thabit, Ibn Umar and Aisha; then he halted today on account of the view of Ibn Mas'ud and Ali: "they are the menses". The difference between the two madhhabs: whoever holds the purities judges that the revocably divorced woman, upon entering the third menstruation, has no return for her husband and becomes lawful to husbands; whoever holds the menses judges she does not become lawful until the third menstruation ends. The cause of the disagreement is the shared name qur': in Arabic it designates equally the blood and the purities. Both groups claimed the name qur' in the verse is explicit of one of the senses. Those who say "the purities" said: this plural is specific to the qur' that is purity, for the qur' that is menstruation forms its plural differently, according to Ibn al-Anbari; moreover, menstruation is feminine and purity masculine: were the intended qur' the menstruation, the ha would not stand in its plural below ten; derivation proves it too: the qur' derives from "I gathered the water in the basin", so the time of the blood's gathering is the time of purity: such is the strongest hold of the purities' partisans upon the verse's apparent sense. As for the hold of the menses' partisans: His word "three qur'" is explicit of the completion of every qur' among them, the name qur' being said of a part only by way of concession; were the qur' the purities, the 'iddah might consist of two qur' and part of a qur', since they count the divorce's month of purity even if mostly elapsed: the name "three" would then apply only by way of concession, whereas it is explicit of the completion of every qur', which holds only if the qur' are the menses, consensus being established that the woman divorced during a menstruation does not count it. Each of the two groups has equal arguments regarding the term qur', and the experts accepted that the verse is ambiguous therein and that proof must be sought elsewhere. The strongest hold of those who say "the purities" is the hadith of Ibn Umar cited earlier:
« Order him to return to her, then let her menstruate and purify herself, then let her menstruate and purify herself, then let him divorce her, if he wills, before touching her: such is the 'iddah for which Allah ordained that women be divorced. »Hadith of Ibn Umar, reported notably by Malik in the Muwatta
They add their agreement that the sunnah divorce occurs only in a month of purity without intercourse, and that His word « such is the 'iddah for which Allah ordained that women be divorced » clearly proves the 'iddah is the purities, so that the divorce be contiguous to the 'iddah; « such is the 'iddah » may be interpreted as: such is the moment of entering the 'iddah, so that the qur' not be fragmented by divorce during the menses. The strongest hold of the menses' partisans: the 'iddah was instituted only for the womb's purity, obtained only by the menses, not by the purities: hence the 'iddah of her whose menses have lifted is counted in days; the menses are thus the cause of the 'iddah by the qur', and the qur' must be the menses. Those who say "the purities" objected: what is considered for the womb's purity is the passage from purity to menses, not the end of the menses: the last menstruation therefore has no meaning; the three periods whose completion is required are the purities between the menstruations. Each of the two groups has its long arguments. The Hanafi madhhab is more apparent on the side of meaning, and their proofs on the side of tradition are equal or nearly so. The purities' partisans do not disagree: the 'iddah expires upon entering the third menstruation. The menses' partisans disagreed: some: it expires at the cessation of the blood of the third menstruation, al-Awza'i's view; others: upon her washing from the third menstruation, the view of Umar ibn al-Khattab, Ali and Ibn Mas'ud among the Companions, and of ath-Thawri and Ishaq ibn Ubayd among the jurists; others: when the time of the prayer in which she purified elapses; others: the husband has the right of return even if she neglects the major ablution twenty years: reported from Sharik; it has also been said: it expires upon entering the third menstruation: an aberrant view » (1).
References: Ahkam al-Qur'an of al-Jassas (2/55-56); Sharh Sahih al-Bukhari of Ibn Battal (7/487); Abu Dawud (2189); at-Tirmidhi (1182); Ibn Majah (2079); Abu Dawud (280); an-Nasa'i (211); Ibn Majah (620); Ahmad (27671); Abu Dawud (297); at-Tirmidhi (126); Ibn Majah (625); Abu Dawud (2157); ad-Darimi (2295); Ahmad (3/62); al-Bayhaqi (5/329); Zad al-ma'ad (5/611-615); Kashshaf al-qina' (5/399); Sharh Muntaha al-iradat (5/509); Matalib uli an-nuha (5/480); Bada'i' as-sana'i' (3/183-184); Al-Jawharah an-nayyirah (4/482-483); Al-Ikhtiyar (3/183); Sharh Fath al-Qadir (4/308); Tibyin al-haqa'iq (3/26-27); Al-Lubab (2/101); Al-Mughni (8/83-84); Majmu' al-fatawa (20/479); Ar-Rawd al-murbi' (2/412); Manar as-sabil (3/122); At-Tamhid (15/92-100); Al-Istidhkar (6/149-151); Al-Ishraf (5/382-383); Al-Ma'unah (1/621); Iqd al-jawahir ath-thaminah (2/572); At-Taj wa-l-iklil (3/171); Sharh mukhtasar Khalil (4/137); Ash-Sharh al-kabir with the hashiyah of ad-Dasuqi (3/412-413); Sharh Sahih Muslim (10/62-63); Rawdat at-talibin (5/700-702); An-Najm al-wahhaj (8/125-126); Maghni al-muhtaj (5/84-85); Ad-Dibaj (3/551); Al-Mughni (8/48); Al-Kafi (3/204); Bidayat al-mujtahid (2/67-68).