Friday, July 26, 2013

[2-307] The Mut`ah (Gift) at the time of Divorce

The Mut`ah (Gift) at the time of Divorce


Allah commands the husband to give the wife (whom he divorces before consummating the marriage) a gift of a reasonable amount, the rich according to his means and the poor according to his means, to compensate her for her loss. Al-Bukhari reported in his Sahih that Sahl bin Sa`d and Abu Usayd said that Allah's Messenger married Umaymah bint Sharahil. When she was brought to the Prophet he extended his hand to her, but she did not like that. The Prophet then ordered Abu Usayd to provide provisions for her along with a gift of two garments.

[وَإِن طَلَّقْتُمُوهُنَّ مِن قَبْلِ أَن تَمَسُّوهُنَّ وَقَدْ فَرَضْتُمْ لَهُنَّ فَرِيضَةً فَنِصْفُ مَا فَرَضْتُمْ إَّلآ أَن يَعْفُونَ أَوْ يَعْفُوَاْ الَّذِى بِيَدِهِ عُقْدَةُ النّكَاحِ وَأَن تَعْفُواْ أَقْرَبُ لِلتَّقْوَى وَلاَ تَنسَوُاْ الْفَضْلَ بَيْنَكُمْraster)30%,p(=Rrgjim"ت ث ج ح خ -]

(237. And if you divorce them before you have touched (had a sexual relation with) them, and you have appointed for them their due (dowry), then pay half of that, unless they (the women) agree to remit it, or he (the husband), in whose hands is the marriage tie, agrees to remit it. And to remit is nearer to At-Taqwa (piety, righteousness). And do not forget liberality between yourselves. Truly, Allah is All-Seer of what you do.)

[2-305] Mentioning Marriage indirectly during the `Iddah

Mentioning Marriage indirectly during the `Iddah


Allah said:

[وَلاَ جُنَاحَ عَلَيْكُمْ]

(And there is no sin on you) meaning, to indirectly mention marriage to the widow during the term of `Iddah for her deceased husband. Ath-Thawri, Shu`bah and Jarir stated that Ibn `Abbas said:

[وَلاَ جُنَاحَ عَلَيْكُمْ فِيمَا عَرَّضْتُم بِهِ مِنْ خِطْبَةِ النِّسَآءِ]

(And there is no sin on you if you make a hint of betrothal) "means saying, `I want to marry and I am looking for a woman whose qualities are such and such,' thus talking to her in general terms in a way that is better.'' In another narration (by Ibn `Abbas), "Saying, `I wish that Allah endows me with a wife,' but he should not make a direct marriage proposal.'' Al-Bukhari reported that Ibn `Abbas said that the Ayah:

[وَلاَ جُنَاحَ عَلَيْكُمْ فِيمَا عَرَّضْتُم بِهِ مِنْ خِطْبَةِ النِّسَآءِ]

(And there is no sin on you if you make a hint of betrothal) means, "The man could say, `I wish to marry,' `I desire a wife,' or, `I wish I could find a good wife'.'' Mujahid, Tawus, `Ikrimah, Sa`id bin Jubayr, Ibrahim An-Nakha`i, Ash-Sha`bi, Al-Hasan, Qatadah, Az-Zuhri, Yazid bin Qusayt, Muqatil bin Hayyan and Al-Qasim bin Muhammad and several others among the Salaf and the Imams said that one is allowed to mention marriage indirectly to the woman whose husband died. It is also allowed to indirectly mention marriage to a woman who had gone through final, irrevocable divorce. The Prophet ordered Fatimah bint Qays to remain in the house of Ibn Umm Maktum for `Iddah when her husband Abu `Amr bin Hafs divorced her for the third time. He said to her:

«فَإِذَا حَلَلْتِ فَآذِنِينِي»

(Inform me when your `Iddah term ends.)

When she finished the `Iddah, Usamah bin Zayd, the Prophet's freed slave asked to marry her, and the Prophet married her to him. As for the divorced wife (not irrevocably divorced), there is no disagreement that it is not allowed for other than her husband to mention marriage proposals to her directly or indirectly (before the `Iddah finishes). Allah knows best.

Allah said:

[أَوْ أَكْنَنتُمْ فِى أَنفُسِكُمْ]

(...or conceal it in yourself,) meaning, if you hide the intention of seeking marriage with them. Similarly, Allah said:

[وَرَبُّكَ يَعْلَمُ مَا تُكِنُّ صُدُورُهُمْ وَمَا يُعْلِنُونَ ]

(And your Lord knows what their breasts conceal, and what they reveal) (28:69) and:

[وَأَنَاْ أَعْلَمُ بِمَآ أَخْفَيْتُمْ وَمَآ أَعْلَنتُمْ]

(...while I am All-Aware of what you conceal and what you reveal.) (60: 1) So, Allah said here:

[عَلِمَ اللَّهُ أَنَّكُمْ سَتَذْكُرُونَهُنَّ]

(Allah knows that you will remember them) meaning, in your hearts, so He made it easy for you. Allah then said:

[وَلَـكِن لاَّ تُوَاعِدُوهُنَّ سِرًّا]

(...but do not make a promise (of contract) with them in secret)

`Ali bin Abu Talhah reported that Ibn `Abbas said that

[وَلَـكِن لاَّ تُوَاعِدُوهُنَّ سِرًّا]

(but do not make a promise (of contract) with them in secret) means do not say to her, "I am in love (with you),'' or, "Promise me you will not marry someone else (after the `Iddah finishes),'' and so forth. Sa`id bin Jubayr, Ash-Sha`bi, `Ikrimah, Abu Ad-Duha, Ad-Dahhak, Az-Zuhri, Mujahid and Ath-Thawri said that it (meaning of the Ayah) means taking the woman's promise not to marry someone else.

Afterwards, Allah said:

[إِلاَّ أَن تَقُولُواْ قَوْلاً مَّعْرُوفًا]

(...except that you speak an honorable saying.)

Ibn `Abbas, Mujahid, Sa`id bin Jubayr, As-Suddi, Ath-Thawri and Ibn Zayd said that the Ayah means to indirectly refer to marriage, such as saying, "I desire someone like you.'' Muhammad bin Sirin said: I asked `Ubaydah about the meaning of Allah's statement:

[إِلاَّ أَن تَقُولُواْ قَوْلاً مَّعْرُوفًا]

(. ..except that you speak an honorable saying.) He said, "He says to her Wali, `Do not give her away (in marriage) until you inform me first'.'' This statement was narrated by Ibn Abu Hatim.

Allah then said:

[وَلاَ تَعْزِمُواْ عُقْدَةَ النِّكَاحِ حَتَّى يَبْلُغَ الْكِتَـبُ أَجَلَهُ]

(And do not be determined on the marriage bond until the term prescribed is fulfilled.) meaning, do not make marriage contracts before the `Iddah finishes. Ibn `Abbas, Mujahid, Ash-Sha`bi, Qatadah, Ar-Rabi` bin Anas, Abu Malik, Zayd bin Aslam, Muqatil bin Hayyan, Az-Zuhri, `Ata' Al-Khurasani, As-Suddi, Ath-Thawri and Ad-Dahhak said that:

[حَتَّى يَبْلُغَ الْكِتَـبُ أَجَلَهُ]

(until the term prescribed is fulfilled.) means, `Do not consummate the marriage before the `Iddah term finishes.' The scholars agree that marriage contracts during the `Iddah are invalid.

Allah then said:

[وَاعْلَمُواْ أَنَّ اللَّهَ يَعْلَمُ مَا فِى أَنفُسِكُمْ فَاحْذَرُوهُ]

(And know that Allah knows what is in your minds, so fear Him.) warning the men against the ideas they conceal in their hearts about women, directing them to think good about them rather than the evil, and Allah would not let them despair of His mercy, as He said:

[وَاعْلَمُواْ أَنَّ اللَّهَ غَفُورٌ حَلِيمٌ]

(And know that Allah is Oft-Forgiving, Most Forbearing.)

[لاَّ جُنَاحَ عَلَيْكُمْ إِن طَلَّقْتُمُ النِّسَآءَ مَا لَمْ تَمَسُّوهُنَّ أَوْ تَفْرِضُواْ لَهُنَّ فَرِيضَةً وَمَتِّعُوهُنَّ عَلَى الْمُوسِعِ قَدَرُهُ وَعَلَى الْمُقْتِرِ قَدْرُهُ مَتَـعاً بِالْمَعْرُوفِ حَقًّا عَلَى الْمُحْسِنِينَ ]

(236. There is no sin on you, if you divorce women while yet you have not touched them, nor appointed for them their due (dowry). But give them a Mut`ah (a suitable gift, the rich according to his means, and the poor according to his means, a gift of reasonable amount is a duty on the doers of good.)

[2-306] Divorce before consummating the Marriage

Divorce before consummating the Marriage


Allah allowed divorce after the marriage contract and before consummating the marriage. Ibn `Abbas, Tawus, Ibrahim and Al-Hasan Al-Basri said that `touched' (mentioned in the Ayah) means sexual intercourse. The husband is allowed to divorce his wife before consummating the marriage or giving the dowry if it was deferred.

[2-304] Mourning is required during the `Iddah of Death

Mourning is required during the `Iddah of Death


Allah said:

[فَإِذَا بَلَغْنَ أَجَلَهُنَّ فَلاَ جُنَاحَ عَلَيْكُمْ فِيمَا فَعَلْنَ فِى أَنفُسِهِنَّ بِالْمَعْرُوفِ وَاللَّهُ بِمَا تَعْمَلُونَ خَبِيرٌ]

(...then when they have fulfilled their term, there is no sin on you if they (the wives) dispose of themselves in a (just and) honorable manner (i.e., they can marry). And Allah is well-acquainted with what you do.)

This Ayah indicates that mourning for the dead husband is required until the `Iddah is finished. It is also reported in the Two Sahihs that Umm Habibah and Zaynab bint Jahsh narrated that Allah's Messenger said:

«لَا يَحِلُّ لِامْرَأَةٍ تُؤْمِنُ بِاللهِ وَالْيَوْم الآخِر أن تُحِدَّ عَلى مَيِتٍ فَوْقَ ثَلَاثٍ، إِلَّا عَلى زَوْجٍ أَرْبَعَةَ أَشْهُرٍ وَعَشْرًا»

(It is not lawful for a woman who believes in Allah and the Last Day to mourn for more than three days for any dead person except her husband, for whom she mourns for four months and ten days.)

It is reported in the Two Sahihs that Umm Salamah said that a woman said, "O Messenger of Allah! My daughter's husband died and she is complaining about her eye, should we administer kohl in her eye'' He said, "No,'' several times upon repeating this question. He then said:

«إنَّمَا هِيَ أَرْبَعَةُ أَشْهُرٍ وَعَشْرٌ، وَقَدْ كَانَتْ إِحْدَاكُنَّ فِي الْجَاهِلِيَّةِ تَمْكُثُ سَنَة»

(It is four months and ten (nights)! During the Jahiliyyah, one of you would mourn for an entire year.)

Zaiynab the daughter of Umm Salamah said (about the pre-Islamic era of ignorance), "When the woman's husband died, she would go into seclusion and would wear the worst clothes she has. She would refrain from wearing perfume or any adornments until a year passed. She would then come out of seclusion and would be given dung that she would throw. Then an animal would be brought out, a donkey, a sheep, or a bird. Then some blood would be drained from it, usually resulting in its death.''

In short, the mourning required from a wife whose husband dies, includes not using beautification aids, such as wearing perfume and the clothes and jewelry that encourage the men to seek marriage from the woman. All widows must observe this period of mourning whether they are young, old, free, servant, Muslim or disbeliever, as the general meaning of the Ayah indicates.

Allah also said:

[فَإِذَا بَلَغْنَ أَجَلَهُنَّ]

(...then when they have fulfilled their term) meaning, when the `Iddah finishes, according to Ad-Dahhak and Ar-Rabi` bin Anas.

[فَلاَ جُنَاحَ عَلَيْكُمْ]

(there is no sin on you) Az-Zuhri said, "Meaning her Wali (guardian).''

[فِيمَا فَعَلْنَ]

(if they (the wives) dispose) meaning, the women whose `Iddah has finished. Al-`Awfi said that Ibn `Abbas said, "If the woman is divorced or if her husband dies and then her `Iddah term ends, there is no sin that she beautifies herself, so that she becomes ready for marriage proposals. This is the way `that is just and honorable'.'' It was reported that Muqatil bin Hayyan gave the same explanation. Ibn Jurayj related that Mujahid said:

[فَلاَ جُنَاحَ عَلَيْكُمْ فِيمَا فَعَلْنَ فِى أَنفُسِهِنَّ بِالْمَعْرُوفِ]

(...there is no sin on you if they (the wives) dispose of themselves in a just and honorable manner.) "refers to allowed and pure (honorable) marriage.'' It was also reported that Al-Hasan, Az-Zuhri and As-Suddi said the same.

[وَلاَ جُنَاحَ عَلَيْكُمْ فِيمَا عَرَّضْتُم بِهِ مِنْ خِطْبَةِ النِّسَآءِ أَوْ أَكْنَنتُمْ فِى أَنفُسِكُمْ عَلِمَ اللَّهُ أَنَّكُمْ سَتَذْكُرُونَهُنَّ وَلَـكِن لاَّ تُوَاعِدُوهُنَّ سِرًّا إِلاَّ أَن تَقُولُواْ قَوْلاً مَّعْرُوفًا وَلاَ تَعْزِمُواْ عُقْدَةَ النِّكَاحِ حَتَّى يَبْلُغَ الْكِتَـبُ أَجَلَهُ وَاعْلَمُواْ أَنَّ اللَّهَ يَعْلَمُ مَا فِى أَنفُسِكُمْ فَاحْذَرُوهُ وَاعْلَمُواْ أَنَّ اللَّهَ غَفُورٌ حَلِيمٌ ]

(235. And there is no sin on you if you make a hint of betrothal or conceal it in yourself, Allah knows that you will remember them, but do not make a promise (of contract) with them in secret except that you speak an honorable saying. And do not be determined on the marriage bond until the term prescribed is fulfilled. And know that Allah knows what is in your minds, so fear Him. And know that Allah is Oft-Forgiving, Most Forbearing.)

[2-304] Mentioning Marriage indirectly during the `Iddah

Mourning is required during the `Iddah of Death


Allah said:

[فَإِذَا بَلَغْنَ أَجَلَهُنَّ فَلاَ جُنَاحَ عَلَيْكُمْ فِيمَا فَعَلْنَ فِى أَنفُسِهِنَّ بِالْمَعْرُوفِ وَاللَّهُ بِمَا تَعْمَلُونَ خَبِيرٌ]

(...then when they have fulfilled their term, there is no sin on you if they (the wives) dispose of themselves in a (just and) honorable manner (i.e., they can marry). And Allah is well-acquainted with what you do.)

This Ayah indicates that mourning for the dead husband is required until the `Iddah is finished. It is also reported in the Two Sahihs that Umm Habibah and Zaynab bint Jahsh narrated that Allah's Messenger said:

«لَا يَحِلُّ لِامْرَأَةٍ تُؤْمِنُ بِاللهِ وَالْيَوْم الآخِر أن تُحِدَّ عَلى مَيِتٍ فَوْقَ ثَلَاثٍ، إِلَّا عَلى زَوْجٍ أَرْبَعَةَ أَشْهُرٍ وَعَشْرًا»

(It is not lawful for a woman who believes in Allah and the Last Day to mourn for more than three days for any dead person except her husband, for whom she mourns for four months and ten days.)

It is reported in the Two Sahihs that Umm Salamah said that a woman said, "O Messenger of Allah! My daughter's husband died and she is complaining about her eye, should we administer kohl in her eye'' He said, "No,'' several times upon repeating this question. He then said:

«إنَّمَا هِيَ أَرْبَعَةُ أَشْهُرٍ وَعَشْرٌ، وَقَدْ كَانَتْ إِحْدَاكُنَّ فِي الْجَاهِلِيَّةِ تَمْكُثُ سَنَة»

(It is four months and ten (nights)! During the Jahiliyyah, one of you would mourn for an entire year.)

Zaiynab the daughter of Umm Salamah said (about the pre-Islamic era of ignorance), "When the woman's husband died, she would go into seclusion and would wear the worst clothes she has. She would refrain from wearing perfume or any adornments until a year passed. She would then come out of seclusion and would be given dung that she would throw. Then an animal would be brought out, a donkey, a sheep, or a bird. Then some blood would be drained from it, usually resulting in its death.''

In short, the mourning required from a wife whose husband dies, includes not using beautification aids, such as wearing perfume and the clothes and jewelry that encourage the men to seek marriage from the woman. All widows must observe this period of mourning whether they are young, old, free, servant, Muslim or disbeliever, as the general meaning of the Ayah indicates.

Allah also said:

[فَإِذَا بَلَغْنَ أَجَلَهُنَّ]

(...then when they have fulfilled their term) meaning, when the `Iddah finishes, according to Ad-Dahhak and Ar-Rabi` bin Anas.

[فَلاَ جُنَاحَ عَلَيْكُمْ]

(there is no sin on you) Az-Zuhri said, "Meaning her Wali (guardian).''

[فِيمَا فَعَلْنَ]

(if they (the wives) dispose) meaning, the women whose `Iddah has finished. Al-`Awfi said that Ibn `Abbas said, "If the woman is divorced or if her husband dies and then her `Iddah term ends, there is no sin that she beautifies herself, so that she becomes ready for marriage proposals. This is the way `that is just and honorable'.'' It was reported that Muqatil bin Hayyan gave the same explanation. Ibn Jurayj related that Mujahid said:

[فَلاَ جُنَاحَ عَلَيْكُمْ فِيمَا فَعَلْنَ فِى أَنفُسِهِنَّ بِالْمَعْرُوفِ]

(...there is no sin on you if they (the wives) dispose of themselves in a just and honorable manner.) "refers to allowed and pure (honorable) marriage.'' It was also reported that Al-Hasan, Az-Zuhri and As-Suddi said the same.

[وَلاَ جُنَاحَ عَلَيْكُمْ فِيمَا عَرَّضْتُم بِهِ مِنْ خِطْبَةِ النِّسَآءِ أَوْ أَكْنَنتُمْ فِى أَنفُسِكُمْ عَلِمَ اللَّهُ أَنَّكُمْ سَتَذْكُرُونَهُنَّ وَلَـكِن لاَّ تُوَاعِدُوهُنَّ سِرًّا إِلاَّ أَن تَقُولُواْ قَوْلاً مَّعْرُوفًا وَلاَ تَعْزِمُواْ عُقْدَةَ النِّكَاحِ حَتَّى يَبْلُغَ الْكِتَـبُ أَجَلَهُ وَاعْلَمُواْ أَنَّ اللَّهَ يَعْلَمُ مَا فِى أَنفُسِكُمْ فَاحْذَرُوهُ وَاعْلَمُواْ أَنَّ اللَّهَ غَفُورٌ حَلِيمٌ ]

(235. And there is no sin on you if you make a hint of betrothal or conceal it in yourself, Allah knows that you will remember them, but do not make a promise (of contract) with them in secret except that you speak an honorable saying. And do not be determined on the marriage bond until the term prescribed is fulfilled. And know that Allah knows what is in your minds, so fear Him. And know that Allah is Oft-Forgiving, Most Forbearing.)

[2-303] The `Iddah of the Slave Mother whose Master dies

The `Iddah of the Slave Mother whose Master dies


We should state here that the `Iddah of the slave mother is the same in the case of death, as the `Iddah of the free woman. Imam Ahmad reported that `Amr bin Al-`As said, "Do not confuse the Sunnah of our Prophet for us. The `Iddah of the mother, who is also a servant, when her master dies, is four months and ten nights.''

[2-301] The `Iddah (Waiting Period) of the Widow

The `Iddah (Waiting Period) of the Widow


This Ayah contains a command from Allah to the wives whose husbands die, that they should observe a period of `Iddah of four months and ten nights, including the cases where the marriage was consummated or otherwise, according to the consensus (of the scholars).

The proof that this ruling includes the case where the marriage was not consummated is included in the general meaning of the Ayah. In a narration recorded by Imam Ahmad and the compilers of the Sunan, which At-Tirmidhi graded Sahih, Ibn Mas`ud was asked about a man who married a woman, but he died before consummating the marriage. He also did not appoint a Mahr (dowry) for her. They kept asking Ibn Mas`ud about this subject until he said, "I shall give you my own opinion, and if it is correct then it is from Allah, while if it is wrong it is because of my error and because of (the evil efforts of) Satan. In this case, Allah and His Messenger are innocent of my opinion. She has her full Mahr.'' In another narration, Ibn Mas`ud said, "She has a similar Mahr to that of the women of her status, without stinginess or extravagance.'' He then continued, "She has to spend the `Iddah and has a right to the inheritance.'' Ma`qil bin Yasar Ashja`i then stood up and said, "I heard Allah's Messenger issue a similar judgment for the benefit of Barwa` bint Washiq.'' `Abdullah bin Mas`ud became very delighted upon hearing this statement. In another narration, several men from Ashja` (tribe) stood up and said, "We testify that Allah's Messenger issued a similar ruling for the benefit of Barwa` bint Washiq.''

As for the case of the widow whose husband dies while she is pregnant, her term of `Iddah ends when she gives birth, even if it occurs an instant (after her husband dies). This ruling is taken from Allah's statement:

[وَأُوْلَـتُ الاٌّحْمَالِ أَجَلُهُنَّ أَن يَضَعْنَ حَمْلَهُنَّ]

(And for those who are pregnant, their `Iddah is until they lay down their burden.) (65:4)

There is also a Hadith from Subay`ah Al-Aslamiyah in the Two Sahihs, through various chains of narration. Her husband, Sa`d bin Khawlah, died while she was pregnant and she gave birth only a few nights after his death. When she finished her Nifas (postnatal period), she beautified herself for those who might seek to engage her (for marriage). Then, Abu Sanabil bin Ba`kak came to her and said, "Why do I see you beautified yourself, do you wish to marry By Allah! You will not marry until the four months and ten nights have passed.'' Subay`ah said, "When he said that to me, I collected my garments when night fell and went to Allah's Messenger and asked him about this matter. He said that my `Iddah had finished when I gave birth and allowed me to get married if I wished.''