‘Iddah’ (waiting period) refers to the period during which a wife cannot marry another man after divorce or the death of her husband. This period has been fixed to clarify the status of the woman’s womb and to prevent ambiguities in the child’s ancestry. In the case of divorce, the duration of iddah is three menstrual cycles. Allah Almighty says in Surah Al-Baqarah:
The waiting period for a widow is four months and ten days. Almighty Allah says:
And [if the latter situation develops,] divorced women must keep themselves waiting for three menstrual cycles. And it is unlawful for them, if they believe in God and the Last Day, to hide what God has created in their wombs. And if their husbands wish to reconcile, they have a greater right to take them back during this [waiting period]. And [this is because there is no doubt that] just as according to the norms these women have obligations [towards their husbands], they also have rights, yet men [as husbands] have a degree of preference above women. [This is the directive of God] and God is Mighty, very Wise. (Q 2.228)
This increase is because the divorcee is instructed to divorce in a menstrual cycle in which physical relationship between the wife and the husband has not happened. However, in the case of the death of a husband, no such rules can be followed. Therefore, the iddah of the widow has been fixed for one month and ten days more than the divorce.
If a woman has entered menopause or does not menstruate even after reaching the age of menstruation,
And those of you who die and leave wives behind, they too should keep themselves in waiting for four months and ten days; then when they have fulfilled their term, there is no blame on you about what they do with themselves in accordance with the norms. And God is well acquainted with what you do. (Q 2.234) then her iddah is three months. The iddah of a pregnant woman is the termination of pregnancy. As far as the woman who has not consummated her marriage with her husband is concerned, no waiting period has been specified for her. The Almighty says:
It is clear from the above details that the cause of iddah is the clearance of the womb. That is why the iddah of the pregnant woman ends with the birth of the child, and there is no iddah for a married woman who has not moved to the husband’s house after Nikah.
These are the rulings of the Qur’an regarding iddah. Their status is that of Allah’s eternal law, which must be obeyed. To deviate from them is a violation of the commandments of Allah and is punishable according to the divine laws. Therefore, every Muslim should follow them and not find ways to violate them.
The study of these details also indicates that the Shari’ah remains silent on matters of violation of these laws. For mankind, they often, due to negligence, lack of knowledge, anger, provocation, and reaction, violate the divine laws so as to marry a woman during her waiting period. In such a situation, the question arises on the legal status of such a marriage accomplished in violation of the ruling of the Shari’ah and the possible solutions to handle issues associated with it.
Will such marriages be annulled? If so, what will be the status of the iddah? How will the child’s ancestry be determined in the case of pregnancy? Who will be the custodian of the child? Will such a marriage be declared valid? If so, will there be any punishment for the violators? If a woman becomes pregnant, will the pregnancy be associated with the former or the new husband?
The above and many other similar questions often appear in such situations. To answer those questions, Muslim scholars and researchers, according to their knowledge and understanding, offer opinions under the principled guidance of the religion. People accept those opinions according to the level of their satisfaction. Governments also select some of them to legislate on the issues.
This is the only acceptable solution to reach the objective of the religion if the Qur’an and the Sunnah are silent on any practical issue of the Shari’ah. Linguistically, this process is called Ijtihad. Much of the work of our jurists is related to this realm.
In this issue, the opinion of Hanafis is that if the marriage has not been consummated after the marriage accomplished during the waiting period, then the marriage will be considered invalid (bāṭil) as if it did not happen at all. If the marriage has been consummated, then the marriage will not be invalid, but it will be declared defective (fāsid). That is, the marriage will be considered effective, and the separation will be enforced. In this case, due to the consummation of marriage, the husband will be responsible to pay the dowry.
[There is no need to observe any ‘iddah’ in this marriage to which We have directed the Messenger because] Believers! when you marry Muslim women, then divorce them without touching them they are not liable for any ‘iddah’for your sake that you may count. However, [in this situation also, it is necessary that] you give them some provisions of life and release them in a befitting way. (Q 33.49)
It will be necessary for the wife to spend iddah for clearness of the womb. During this period, the responsibility of alimony will be on the husband.
Javed Ahmed Ghamidi is of the view that marrying during iddah is a violation of Allah’s command, so it is a clear sin, and the perpetrator will be held accountable on the Day of Resurrection. Therefore, those who commit it should repent and seek forgiveness of Allah. Society should establish norms that discourage such violations among people. The purpose of such norms should be to establish the sanctity of Shariah law and prevent its violations. The glory of the divine law should remain intact, and people must realize that such a violation is not ordinary but a serious crime.
As far as the legal status of this marriage is concerned, it should be considered valid. The reason for this is that it is a practical step taken in the past, which comes out in the form of reality. It cannot be undone or abolished.
As a result of such a marriage, disputes can occur. In such cases, the best option is that if the matter is restricted within the families, then it should be resolved at the family level. People should avoid taking the issue to court to prevent harm to the reputation of the concerned individuals. For this purpose, the elders and trusted members of the family should play their role and adopt the opinions of the scholars and jurists they trust most.
While doing so, they must examine the issue from all angles. That is, they must consider the age of the lady who married during iddah, the duration of iddah when she married, and the level of difficulty she faced in spending iddah in the former husband’s house, how long after the marriage they bring the dispute to the table, did they consummate the marriage, if there is a child from the first husband, what is her status, and how much does the wife realize the seriousness of the violation? The decision-makers should keep the above and other relevant questions in mind and decide the dispute according to the requirements of religion, Shariah laws, and justice.
On the contrary, if a party takes the matter to court, then all the power will go to the court. At this point, the court will look into the law of the land. If a jurisprudential opinion has the status of the law of the land, then the court will have to decide accordingly. But if the court is not bound by any fiqh, then it can take a decision independently after reviewing all the circumstances. They also have discretionary power to implement any fiqhi opinion.
At a meeting last year, I asked the same question to the Javed Ahmed Ghamidi, and a learned researcher raised some objections to the opinion my teacher offered in response to my query. Here, we will quote those objections and present our submissions on it.
He writes:
It is also wrong for Ghamidi to say that there is no specific Shari’ah ruling prohibiting marriage during iddah. If that is so, what is the meaning of ‘Ya tarab basna bi anfus ihin na? Has Ghamidi considered how many texts become meaningless if a woman is allowed to marry another man during iddah?”
On this, we believe that the learned researcher has entirely misunderstood Javed Ahmed Ghamidi’s stance. In order to know Javed Ahmed Ghamidi’s position in this regard, the law of Iddah and all its details can be seen in his book “Meezan”. Even in the discussion, he did not say that marriage during iddah is not prohibited in shariah, rather he described it as a serious violation and an act of sin. Javed Ahmed Ghamidi was actually asked about the remedy in case of its violation, to which he replied that it is a matter of Ijtihad. It is as if a scholar states that the Shariah has not prescribed any method to make up for the missed prayers and the listener construes that according to that scholar, missing the obligatory prayers is not a sin. Therefore, it is a misunderstanding to say this about Javed Ahmed Ghamidi.
After this, describing the details of the rulings proposed by the Hanafi school of thought regarding the issue of marriage during Iddah, the author writes:
We wish to inform the writer that Javed Ahmed Ghamidi does not elaborate on Fiqh in his general discussions, rather, he only puts forth his position on the issue in question. The same thing has happened in that discussion. He corrected the questioner’s statement that such a marriage is usually called defective (fāsid), saying that the jurists generally do not consider it defective, but invalid (bāṭil). He was not asked about the limits and conditions of its invalidity according to the opinion of Hanafis, nor was it the topic of the discussion that time. Therefore, he was not presenting the views of other schools of thought to compare their opinion with the Hanafi school of thought and declare it more or less strict. Javed Ahmed Ghamidi only explained that the jurists generally consider such a marriage invalid.
Later, the learned researcher criticizes Javed Ahmed Ghamidi saying that if the matter is between the individuals, how can it be resolved at the family level? He writes:
Here, the learned researcher has objected to Javed Ahmed Ghamidi’s statement that there is no possibility of correcting this mistake while maintaining marriage! In support of his claim, he has given an example that the sale of pork cannot happen because in the eyes of the jurists, it is not a sellable product.
In our view, this is a false analogy (qiyāsma‘a al-fāriq). Declaring returning a purchased product and nullifying human relations arising through marriage completely at the level of society are two entirely different things. If marriage during iddah is completely invalid (bāṭil), then what is the basis of all the rulings of the jurists regarding the obligation of iddah after consummation of marriage, the responsibility
Javed Ahmed Ghamidi said that such a marriage is defective (fāsid), while other jurists call it invalid…. Javed Ahmed Ghamidi has tried to give the impression that Hanafis are stricter in this matter than other jurists, whereas in reality, the case is quite the opposite.
If someone sells pork, it is an invalid trade because pork is not a product to be sold.
In the same way, marriage cannot be declared valid when performed during Iddah because the Shari’ah has prohibited it. Therefore, it is necessary to have a new marriage after completing the waiting period (Iddah).
of alimony during iddah, and the proof of ancestry in the case of birth of children? If a case has no basis, what is the logic behind all these decisions? Therefore, it is clear that considering the situation, jurists are issuing diverse opinions about the issue. That’s what makes it a matter of Ijtihad.
Javed Ahmed Ghamidi was suggesting some remedies after occurrence of the violation on the same principle. Since the Qur’an and Sunnah did not bind us to any specific actions in such a situation, Javed Ahmed Ghamidi stressed that the person who performed marriage in Iddah should repent and rectify his mistake considering its seriousness. Since the couple is not indulged in adultery, they should correct this mistake publicly, and complete the basic procedures of verbal expression of acceptance (ijāb o qabūl) at the right time after iddah. At the same time, Javed Ahmed Ghamidi said that the courts can give any other order in this matter if they want, because the issue and remedial process purely depend on Ijtihad and is not based on a specific religious text (nuṣūṣ). Therefore, now the scope of objection and criticism will be on the soundness of the opinion based on Ijtihad. Our jurists are applying the same method of forming opinion based on Ijtihad.
After this, the learned researcher objects to my comment during the discussion. He writes: “Since such a marriage has no legal status, the man and the woman cannot be declared regular husband and wife. The only option is separation. However, the separation cannot be considered ‘faskh’ (judicial divorce). Muhammad Hassan Ilyas called it ‘faskh’ and Javed Ahmed Ghamidi also went on without commenting. It is not judicial divorce (faskh) but judicial dissolution (tafrīq) because legally, this relationship has no status and is a nullity.”
Here, the researcher objected to my remarks when Javed Ahmed Ghamidi stated that the jurists consider such a marriage invalid, I said: “That is, they annul the marriage.” The learned researcher says that the use of the word ‘faskh’ here is not correct, but it should be called ‘tafriq’. It is because ‘fasakh’ means that the marriage has been accepted, while according to the jurists, the marriage has not taken place. Any party can separate without a divorce.
We don’t think this is true for two reasons. First, in some cases, jurists make ‘iddah‘ compulsory in cases of consummation of marriage, occurrence of pregnancy, and birth of children. They accept children’s ancestry as valid and avoid declaring such a marital relationship as adultery. Moreover, they enforce responsibility for alimony upon the husband during ‘iddah‘ after the abolishment of such a marriage. If, in your words, this marriage has no legal status and is entirely null, then why do jurists recommend these procedures? It implies that jurists also consider this marriage legally binding while recommending a divorce. Hence, in reality, it is the termination of a marriage (‘faskh-e-nikāḥ‘). ‘Faskh-e-nikāḥ‘ means abolishing or terminating a marriage. This is what is happening in the above situation. However, if the learned researcher finds the term ‘tafriq‘ more appropriate, he can adopt it.
Page 13 TRANSLATED INTO ENGLISH BY ABID MAHMOOD HASHMI