Series of Answers by the Eminent Scholar Ata bin Khalil Abu al-Rashtah, Amir of Hizb ut-Tahrir, to Questions from Visitors of His Facebook Page "Fiqhi"
Answer to a Question
To Malik Salim and Abu Bakr al-Fuqaha’
Question from Malik Salim:
My Sheikh, if you would permit me a question: Does a betrothed woman have a waiting period (iddah) if her husband dies? And does she inherit from her fiancé? May Allah reward you with all goodness on our behalf.
Question from Abu Bakr al-Fuqaha’:
May Allah reward our Sheikh. Is the iddah established by consummation (dukhul) or by the conclusion of the contract only? Because there are cases of divorce where consummation does not take place for some reason; is the iddah the same?
The Answer:
Assalamu Alaikum wa Rahmatullahi wa Barakatuh,
The two questions are related; therefore, we will answer them together, Allah willing.
If the intended meaning of "betrothed" in the question is a woman whom a man has proposed to and there is a preliminary agreement for marriage, but the marriage contract (nikah) has not yet been concluded—meaning what some call al-imlak has not occurred, and no offer (ijab) and acceptance (qabul) have taken place according to the relevant Shariah rules... If the "betrothed" mentioned in the question refers to this state of engagement prevalent in some Muslim countries, i.e., preliminary agreement without a marriage contract... then this case is not considered a marriage. The betrothed woman is not considered a wife; she remains a stranger (ajnabiyyah) to the suitor. It is not permissible for him to be in seclusion (khalwah) with her, nor is it permissible for her to reveal any of her awrah (private parts) before him. No consequences resulting from a marriage contract—such as iddah, mahr (dowry), or inheritance—apply to an engagement in this sense.
However, if the intended meaning of the "betrothed woman" in the question is a woman whom the suitor has married through a shar’i marriage contract (nikah), then she is legally his wife. The shar’i marriage contract entails legal consequences according to the details explained in the books of jurisprudence (fiqh), some of which we will clarify in the following points, Allah willing.
A woman whose husband dies before the marriage is consummated—meaning after the marriage contract was concluded but before consummation (dukhul) occurred—is considered the wife of the deceased. she must observe the shar’i iddah for a widow, which is four months and ten days, due to the saying of Allah (swt):
وَالَّذِينَ يُتَوفَّوْنَ مِنْكُمْ وَيَذَرُونَ أَزْواجاً يَتَرَبَّصْنَ بِأَنْفُسِهِنَّ أَرْبَعَةَ أَشْهُرٍ وَعَشْراً
"And those of you who die and leave wives behind them, they (the wives) shall wait (as regards their marriage) for four months and ten days." (Al-Baqarah [2]: 234)
And because of what at-Tirmidhi and others narrated from Ibn Mas’ud, who was asked about a man who married a woman and did not specify a sadaq (dowry) for her, nor did he consummate the marriage with her before he died. Ibn Mas’ud said: "She is entitled to a sadaq like that of women of her status, without reduction or excess; she must observe the iddah, and she has the right to inheritance." Then Ma’qil bin Sinan al-Ashja’i stood up and said: "The Messenger of Allah ﷺ ruled concerning Barwa’ bint Washiq, a woman from among us, just as you have ruled." Ibn Mas’ud was delighted by this... Abu Isa (at-Tirmidhi) said: The Hadith of Ibn Mas’ud is a Hasan Sahih Hadith.
Similarly, she inherits from her deceased husband even if he had not consummated the marriage with her, due to the saying of Allah (swt):
وَلَكُمْ نِصْفُ مَا تَرَكَ أَزْواجُكُمْ إِنْ لَمْ يَكُنْ لَهُنَّ وَلَدٌ فَإِنْ كَانَ لَهُنَّ وَلَدٌ فَلَكُمُ الرُّبُعُ مِمَّا تَرَكْنَ مِنْ بَعْدِ وَصِيَّةٍ يُوصِينَ بِهَا أَوْ دَيْنٍ وَلَهُنَّ الرُّبُعُ مِمَّا تَرَكْتُمْ إِنْ لَمْ يَكُنْ لَكُمْ وَلَدٌ فَإِنْ كَانَ لَكُمْ وَلَدٌ فَلَهُنَّ الثُّمُنُ مِمَّا تَرَكْتُمْ مِنْ بَعْدِ وَصِيَّةٍ تُوصُونَ بِهَا أَوْ دَيْنٍ
"In that which your wives leave, your share is a half if they have no child; but if they leave a child, you get a fourth of that which they leave after payment of legacies they may have bequeathed or debts. In that which you leave, their (your wives) share is a fourth if you leave no child; but if you leave a child, they get an eighth of that which you leave after payment of legacies that you may have bequeathed or debts." (An-Nisa' [4]: 12)
And due to the aforementioned Hadith of Ibn Mas’ud.
A woman whom her husband divorces after the marriage contract but before consummation has different rulings regarding iddah compared to a widow. A divorcee before consummation has no iddah at all, due to the saying of Allah (swt):
يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا نَكَحْتُمُ الْمُؤْمِنَاتِ ثُمَّ طَلَّقْتُمُوهُنَّ مِنْ قَبْلِ أَنْ تَمَسُّوهُنَّ فَمَا لَكُمْ عَلَيْهِنَّ مِنْ عِدَّةٍ تَعْتَدُّونَهَا فَمَتِّعُوهُنَّ وَسَرِّحُوهُنَّ سَرَاحاً جَمِيلاً
"O you who believe! When you marry believing women, and then divorce them before you have touched them, no iddah have you to count from them. So give them a present, and set them free (i.e., divorce) in a handsome manner." (Al-Ahzab [33]: 49)
There is a case that is disputed: if seclusion (khalwah) occurred between the husband and wife before the divorce and before consummation. According to some jurists, this seclusion necessitates the iddah as well. I will quote some jurisprudential opinions regarding the subject of khalwah:
- It is stated in Al-Mughni by Ibn Qudamah: (Issue: He—may Allah the Exalted have mercy on him—said: "If a man divorces his wife after having been in seclusion with her, her iddah is three menstrual cycles, excluding the cycle in which he divorced her." In this issue there are three sections: Section one: That iddah is obligatory for everyone whose husband was in seclusion with her, even if he did not touch her. There is no disagreement among the people of knowledge regarding its obligation on a divorcee after contact (masis). As for if he was in seclusion with her but did not have intercourse with her, then divorced her, the school of Ahmad is that the iddah is obligatory for her.
(Imam Ahmad and al-Athram narrated with their chains from Zurarah bin Awfa, who said: "The Rightly Guided Caliphs ruled that whoever draws the curtain or closes the door, the mahr becomes obligatory and the iddah becomes obligatory." Al-Athram also narrated it from al-Ahnaf, from Umar and Ali, and from Sa’id bin al-Musayyib, from Umar and Zaid bin Thabit).
This was narrated from the Rightly Guided Caliphs, Zaid, and Ibn Umar. This was also held by Urwah, Ali bin al-Hussein, Ata, al-Zuhri, al-Thawri, al-Awza’i, Ishaq, the People of Opinion (Ashab al-Ra'y), and ash-Shafi’i in his old school of thought.
- ash-Shafi’i said in his new school of thought (al-jadid): She has no iddah, based on the saying of Allah (swt):
يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا نَكَحْتُمُ الْمُؤْمِنَاتِ ثُمَّ طَلَّقْتُمُوهُنَّ مِنْ قَبْلِ أَنْ تَمَسُّوهُنَّ فَمَا لَكُمْ عَلَيْهِنَّ مِنْ عِدَّةٍ تَعْتَدُّونَهَا
"O you who believe! When you marry believing women, and then divorce them before you have touched them, no iddah have you to count from them." (Al-Ahzab [33]: 49)
This is a definitive text (nass); and because she is a divorcee who has not been touched, she is like one with whom seclusion did not occur.
The conclusion is that a woman divorced before consummation has no iddah unless her husband had been in seclusion (khalwah) with her—meaning it is proven that he met with her in a room and closed the door upon them alone. In this case, she must observe the iddah according to Imam Ahmad.
I hope this answer is sufficient. Allah is Most Knowing and Most Wise.
Your brother, Ata bin Khalil Abu al-Rashtah
16 Dhu al-Qi'dah 1441 AH Corresponding to 07/07/2020 CE
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