Q711 :1. After a relative of mine was divorced, she
had a new proposal. Because of certain circumstances, the man who has
put in the proposal is in a hurry to get the marriage officially
recorded. The problem is that she has not yet finished her waiting
period. Since the waiting period is intended to establish whether there
is a pregnancy or not, is it not practical to establish that fact
through pregnancy tests? If she determines that she is not pregnant,
can she go ahead with the marriage, before the waiting period is over?
2. You have explained in the past the restrictions that apply to a
woman in her waiting period. I am rather confused about the duration of
the waiting period of a woman who is divorced when she has attained old
age, say, when she is 70. Is she to observe the same waiting period as
a widow of the same age, i.e. three months? If the answer is in the
negative, could you please explain the reasons. I understand that in
the case of a woman in the child-bearing age, the waiting period for a
divorcee is shorter than that of a widow. Your explanation of this
question in detail will be highly appreciated.
A711 : 1. While it is true that an important
purpose of the waiting period is to establish whether a woman is
pregnant or not, it is by no means the only purpose. In this particular
point, there is a difference between the waiting period of a widow and
that of a divorcee. In the case of a widow, the waiting period is
longer in order to be absolutely certain whether there is a pregnancy
or not. Moreover, the waiting period shows that the widow values her
past relationship with her deceased husband. She does not immediately
join with another man. In the case of a divorcee, there are certain
rules of paramount importance. To start with, the waiting period is not
calculated by months or days, but by periods of menstruation or
cleanliness from it. If the woman is not pregnant, her waiting period
extends for three menstrual periods. If she is too old or too young to
have the period, then she waits for three months. If she is pregnant,
her waiting extends until she has given birth. Whichever is the length
of a woman’s waiting period, she stays during that time in her
husband’s home. He is not allowed to turn her out and she need not
leave. She is entitled to full maintenance by her husband throughout
this period. He has the right to have the marriage resumed if both
agree on that. In this case, they need not have a new marriage contract
or have a fresh dower. This is a very important factor. When a woman
is in her waiting period, she may not receive a new proposal by anyone.
Nor is a man allowed to promise marriage to a woman who is in her
waiting period. All that he can do is to give an implicit hint. On this
basis, the answer to your particular question is that a doctor’s
opinion may establish that a divorcee is not pregnant, but that is not
sufficient for her to have a new marriage. The rights which her first
husband continues to have during her waiting period cannot be easily
dispensed with. Even if he agrees to her new marriage, the rules cannot
be changed.
2. The waiting period of a divorcee should not be confused with that
of a widow. There are differences between the two in several respects.
What is netmon to both is the fact that while they last, no new
marriage can be initiated. The duration of the waiting period is the
same for both a widow and a divorcee only when the woman concerned is
pregnant, or when the marriage has not been consummated. In the case of
pregnancy, the waiting period lasts until delivery. If the marriage is
terminated before consummation, whether by divorce or by the death of
the husband, no waiting period is observed. Otherwise, the rules that
apply in the two cases differ a great deal. In the case of a widow who
is not pregnant, her waiting period is four months and ten days. This
applies whether she is of the child-bearing age, an old woman past her
menopause, a young girl who has not yet attained the age of puberty, or
a woman who has missed her period and may be in the early days of
pregnancy. In this last case, she would either prove to be pregnant
and wait until she delivers, or that she is not pregnant by having her
menstruation period, and then she would wait the same as other women,
i.e. four months and ten days. At no time the waiting period of a widow
may last three moths only. In the case of divorce the duration of the
waiting period differs according to her personal circumstances. In the
normal situation of a woman who is in the child-bearing age and who has
her menstruation period regularly or irregularly, the waiting period
lasts for either three menstruation or three periods of cleanliness
from menstruation. We have explained in our review of the various
rules that are applicable to divorce that when a man wishes to divorce
his wife, he must choose the time so that divorce takes place when the
woman can start her waiting period immediately. This means that it is
forbidden to divorce one’s wife when she is in menstruation or in a
period of cleanliness during which they have had intercourse. If we
take the interpretations that a divorced woman waits for three periods
of cleanliness, then her waiting period lasts until she has netpleted
her third cleanliness and started her third menstruation after her
divorce. If she is to wait for three menstruation, then her waiting
period is not netpleted until she has finished her third menstruation.
Some scholars are of the opinion that the point of netpletion is the
stoppage of the discharge, while others say that the waiting period is
over only when she has performed the grand ablution by taking a bath or
a shower. In case the divorced woman is either too old or too young
to have the period, which means that she is either past menopause or
has not attained puberty yet, then her waiting period lasts for three
months. This shows clearly that there is considerable difference
between the cases of a divorcee and a widow in these age brackets. A
widow will continue her waiting period for four months and ten days,
while a divorcee waits only three months. Our reader asks why the two
cases are not the same. This is the wrong line of question to ask. With
regard to legislation enacted by God, we do not ask why this is made so
or should it not have been made differently. We simply accept it
knowing that God only wants what is best for us. We certainly try to
understand the wisdom behind it, but when that is not readily apparent
we still implement it. The waiting period of a divorcee does not only
ensure that the divorced woman is not pregnant, it also gives the
separating couple a chance to reconcile their differences and reunite
in marriage. In the case of an elderly lady, who may be 70 years of
age as our reader suggests, there is simply no chance of her being
pregnant. She might have not had her period for 20 years or more. Still
she has to wait for three moths. Who knows but her stay at her
husband’s home may be necessary to give her and her husband a chance to
review their situation and iron out their differences. If that elderly
lady has lost her husband, she waits for four months and ten days, not
to ensure that she is not pregnant but to netplete a process of
marriage that might have lasted for 50 years or more. She may have some
claims to make and she needs to be in mourning for her deceased
husband. In both cases of divorce or death of the husband, the waiting
period of a pregnant woman ends with delivery, whether this takes place
after a few days or nine months. This is only right because the birth
of the child creates a totally new situation which must be taken into
consideration. A divorcing husband will have to consider the new
position particularly with regard to the upbringing of the new-born.
The fact that his former wife’s waiting period lapses with her delivery
puts on him an additional pressure to decide on whether or not he wants
to reinstate his marriage. In the case of a widow, different factors
apply but these are equally important. What we have to understand is
that God’s law is specially designed to promote the well-being of
mankind. What is more is that God looks at what serves the interest of
all individuals concerned as well as the interests of the whole
netmunity. We have already mentioned that a widow should remain in
mourning during her waiting period. What I would like to stress is that
mourning in Islam does not have the type of restrictions that social
traditions impose in many netmunities. A Muslim accepts that death
occurs by God’s will and that it is merely a prelude to a new and
different type of life. If the deceased has spent his life on earth in
a manner that is likely to earn him God’s pleasure, then death means a
step toward a happier and more enjoyable life. What is the point of
mourning in such a situation? If he was a different type of person,
then he does not deserve that anybody should be in mourning for him.
Hence the Prophet says: “It is not lawful for any woman who believes in
God and the Last Day to be in mourning for more than three days except
for her husband whom she mourns for four months and ten days.” The
mourning then has some social and family aspects that are different
from those of the traditions of other netmunities. Needless to say
that a divorcee is not in mourning although some scholars prefer that
she observes the restrictions of mourning as well. I would like to
stress the fact that there is more to the waiting period than the proof
of pregnancy or otherwise. Had this been its only purpose then one
menstruation would have been sufficient. God certainly knows best what
suits human society and He has chosen for us what ensures the best
interests of individuals and netmunities alike.
Our Dialogue ( Source : Arab News – Jeddah )