The Minimum Period for the Iddah of Menstruating Women

 

All praise is to Allah, the Lord of the worlds, and prayers and peace be upon our Master Muhammad, his family, and all his companions:

The 'Iddah (waiting period) is a term prescribed by the Shariah for the cessation of the remaining effects of marriage or consummation.

See: Fath al-Qadeer (Vol.4/P.135), Badā'i' al-Sanā'i' (Vol.3/P.190).

The scholars are unanimously agreed that the 'Iddah of a woman separated from her husband after consummation or a valid private meeting (khulwah) due to a reason for separation other than death is three periods (qurū'), provided she is a menstruating woman (dhāt al-hayd), is not pregnant, and has not reached the age of menopause. The evidence for this is the statement of Allah, the Exalted: "Divorced women remain in waiting for three periods" [Surah Al-Baqarah/228].

The term qur' (period) is one of the words with multiple meanings in the Arabic language. It is applied equally to both menstruation (hayd) and purity (ṭuhr). Consequently, the scholars differed regarding the meaning of qur' mentioned in the noble verse, leading to two opinions:

The First Opinion: The Hanafis and Hanbalis hold that qur' means menstruation. Accordingly, a divorced woman's 'Iddah concludes after three menstrual cycles.

The Second Opinion: The Shafi'is and Malikis hold that qur' means purity. Accordingly, the 'Iddah of a divorced, non-pregnant, menstruating woman concludes after three periods of purity. Each opinion has its evidence, which is detailed in books of Fiqh, leaving no room to mention them here. None of the scholars of the four schools of thought said that the 'Iddah of a woman separated from her husband by divorce or annulment is counted in days or months. Counting it as such contradicts the explicit text of the Noble Quran and the consensus of the Ummah.

If a fatwa contradicts an explicit text of the Quran or a consensus, it is invalidated, as is the ruling of a judge. The Jordanian Personal Status Law stipulates that the 'Iddah of a woman separated from her husband concludes upon the passing of three qurū', provided she is not pregnant or menopausal. Article (135) of the aforementioned law states:

"The 'Iddah period for a woman married under a valid contract and separated from her husband after a valid private meeting by divorce or annulment is three complete periods (qurū'), if she is not pregnant and has not reached the age of menopause. If she claims the completion of her 'Iddah before the passage of three months, her claim is not accepted."

Since matters not addressed by a text in this law are referred to the preponderant opinion (rājih) in the school of Imam Abu Hanifah, as stipulated in Article (183) of the same law, the intended meaning of qur' in the law is menstruation, as stated by the Hanafi school.

Therefore: The 'Iddah of a woman separated from her husband, if she is not pregnant or menopausal, is three menstruations. The menstruation during which she was divorced is not counted.

The Scholars' Opinions on the Minimum Period for the Completion of 'Iddah:

Since the duration of menstruation and purity is not fixed for women and varies from one woman to another, the scholars have stipulated the minimum duration for menstruation and purity, and consequently, the minimum period in which the 'Iddah of a woman separated from her husband can conclude.

Abu Hanifah stated that the minimum period in which a woman's claim of completing her 'Iddah is believed is sixty days. Abu Yusuf and Muhammad (al-Shaybani) said: She is believed after thirty-nine days.

The reasoning for their opinion is that it is as if she was divorced at the very last moment of her period of purity. Her menstruation is at its minimum: three days. Her purity is at its minimum: fifteen days. Three menstruations (3 x 3) equal nine days. Two periods of purity (2 x 15) equal thirty days. Thus, she is believed after thirty-nine days.

According to the explanation of Abu Hanifah's opinion as mentioned by Muhammad (al-Shaybani), may Allah have mercy on him, it is as if she was divorced at the beginning of her period of purity, as a precaution against pronouncing divorce during purity after intercourse. Her purity is fifteen days (as the minimum). Her menstruation is five days (as a moderate estimate, neither the rare minimum nor the maximum). Therefore, three periods of purity (3 x 15) equal forty-five days, and three menstruations (3 x 5) equal fifteen days, totaling sixty days.

According to the narration from Al-Hasan (may Allah have mercy on him), it is as if she was divorced at the end of her period of purity, as taking precaution against prolonging the 'Iddah is obligatory, and pronouncing divorce at the end of purity is closest to taking precaution against prolongation. Then her menstruation is ten days (the maximum), for when we estimated her purity at the minimum duration out of consideration for her, we estimate her menstruation at the maximum duration out of consideration for the husband. Therefore, three menstruations (3 x 10) equal thirty days, and two periods of purity (2 x 15) equal thirty days, totaling sixty days. He (Al-Hasan) said there is no meaning to the opinion of Abu Yusuf and Muhammad, as there is no possibility of believing her claim in that period (thirty-nine days).

See: Al-Mabsūṭ (Vol.3/P.217).

The Malikis held that the minimum period for the completion of a divorced woman's 'Iddah is forty-eight days.

The reasoning is: forty-five days for three periods of purity, and three days for three menstruations.

See: Al-Kharashi 'ala Khalil (Vol.4/P.136).

The Shafi'is stated that the minimum period for the completion of a divorced woman's 'Iddah is thirty-two days and two moments.

The detail is: She is divorced when only a moment remains of her period of purity. Then she menstruates for a day and a night, then becomes pure for fifteen days. Then she menstruates for a day and a night and becomes pure for fifteen days. Then she enters (her third) menstruation.

See: Al-Nawawi, Rawdat al-Tālibīn (Vol.3/P.179); Mughni al-Muhtāj (Vol.5/P.8).

The Hanbalis held that the minimum period in which a woman's 'Iddah can conclude is one month only.

This is based on their view that the minimum duration for menstruation is thirteen days.

Upon examining and scrutinizing the aforementioned opinions of the jurists, we find that the longest period mentioned by the scholars as the minimum in which the 'Iddah of a woman separated from her husband can conclude is sixty days, which is the opinion transmitted from Imam Abu Hanifah, may Allah have mercy on him.

Therefore: If a woman separated from her husband claims the completion of her 'Iddah after the passage of sixty days from her separation, her 'Iddah is considered concluded by the consensus of the jurists. Any fatwa to the contrary contradicts the consensus of the scholars and the explicit text of the Noble Quran.

Returning to the second part of Article (135), which states:

"If she claims the completion of her 'Iddah before three months, her claim is not accepted."

This may give judges and muftis the impression that if a woman claims the completion of her 'Iddah before three months, it is never accepted. We have previously clarified through the opinions of the scholars that no one held this view, and it contradicts the explicit text of the Noble Quran.

A decision was issued by the Amman Sharia Court of Appeal (No. 2044/2008, 71034 dated 15/8/2008 AH) clarifying that the text of the aforementioned article is taken from the opinions of some Maliki jurists. The well-known position in the Maliki school is that a woman is believed regarding the completion of her 'Iddah with an oath, provided the elapsed time makes it possible. However, the scholars of Fez, due to the prevalence of women lying about claiming the completion of 'Iddah, began not to accept a woman's claim of completing her 'Iddah in less than three months. They stated that while the opinion of not believing her is very lenient, if we see women in a city frequently lying, we impose upon them what was practiced in Fez, based on the opinion of Ibn Wahb. Otherwise, it would be necessary to follow the well-known opinion of believing them absolutely.

The meaning of the Maliki jurists' statement on this matter is to prevent her from marrying another man before three months have passed, due to the frequent false claims by women about completing 'Iddah. However, regarding returning (raj'ah) to the husband who divorced her, she is believed in any period in which it is possible for her 'Iddah to have ended. Therefore, acting upon this (the three-month restriction) does not entail a Shariah prohibition. The Shariah prohibition lies in returning her to her divorcing husband after her 'Iddah has actually ended, as this is a clear violation of the Quranic text.

The aforementioned decision, adopting the Hanafi school, concluded that if a woman claims the completion of her 'Iddah after sixty days have passed since her separation from her husband and before completing ninety days, she is believed upon taking an oath. The decision clarified that the article should be understood in this sense to avoid contradiction between the article's text and the Quranic text.

In reconciling the jurists' opinions on the minimum period for the completion of 'Iddah, the Jordanian Personal Status Law, and the text of the Amman Sharia Court of Appeal's decision, while considering the school of Imam Abu Hanifah, the position adopted for fatwa in this Department is as follows:

If a divorced woman claims the completion of her 'Iddah by having menstruated three times after the passage of sixty days from the date of her divorce, without her husband having taken her back (raj'ah), she is given a fatwa that her 'Iddah has ended. She is irrevocably separated from her husband—a minor or major irrevocability depending on the number of previous divorces. The fatwa issued to her will state that she must refer to the Sharia judge to establish this before him.