As a general rule, when a marriage ends — whether by a divorce or by the death of the husband — Islam prescribes a waiting period ('iddah) for the woman before she can marry again.
Divorced women shall wait concerning themselves for three monthly periods. Nor is it lawful for them to hide what God Hath created in their wombs, if they have faith in God and the Last Day. ... 2:228 Yusuf Ali
O Prophet ! when you divorce women, divorce them for the prescribed period, and thereafter reckon the period; and fear ALLAH, your Lord. ... And if you are in doubt as to the prescribed period for such of your women as have despaired of monthly courses, then know that the prescribed period for them is three months, and also for such as do not have their monthly courses yet. And as for those who are with child, their period shall be until they are delivered of their burden. And whoso fears ALLAH, HE will provide facilities for him in his affair. S. 65:1,4 Sher Ali
If any of you die and leave widows behind, they shall wait concerning themselves four months and ten days: when they have fulfilled their term, there is no blame on you if they dispose of themselves in a just and reasonable manner. And Allah is well acquainted with what ye do. S. 2:234
A woman who was divorced by her husband has to wait (at least) three monthly periods and a woman whose husband died has to wait (at least) four months and ten days before they can marry again. The main objective appears to be that there should be no doubts as to the identity of the father if the woman gives birth to a child later on. Within this period it should become obvious whether or not a woman is pregnant. If she turns out to be pregnant, then her waiting period lasts until the birth of the child, otherwise she is free to remarry after the three months are over.
One could certainly wonder why a widow has to wait longer than a divorced woman, and view this as an inconsistency or injustice, but this issue shall not be our concern in the present paper.
More interesting is the observation that the Qur'an makes an explicit exception to the above mentioned rule for divorced women:
O you who believe: When you marry believing women and then divorce them before you have touched them, no period of idda (waiting) have you to count in respect of them: so give them a present and set them free in a graceful manner. S. 33:49
In other words, if the marriage was not yet consummated, i.e. there was no sexual intercourse, there cannot be an unborn child. In this case, the woman does not have to observe the 'iddah period; and the husband who does not like to keep her (for whatever reason), does not have to pay her expenses for another three months, which would otherwise be his obligation (cf. S. 65:6-7).
However, this exception is made only for divorced women, not for widowed women. The focus of the present paper is to discuss this inconsistency . In the following I will present some quotations from Muslim commentators in regard to the waiting period for widows in order to understand the Islamic regulations on this topic.
The classical Qur'an commentator Ibn Kathir states in his commentary on 2:234:
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
<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." (Source; capital and underline emphasis ours)
Ibn Kathir also confirms what was stated above, i.e. that the reason why this period was prescribed is to find out whether or not the woman is pregnant:
The Wisdom behind legislating the `Iddah
Sa`id bin Musayyib and Abu Al-`Aliyah stated that the wisdom behind making the `Iddah of the widow four months and ten nights is that the womb might contain a fetus. When the woman waits for this period, it will become evident if she is pregnant. Similarly, there is a Hadith in the Two Sahihs narrated by Ibn Mas`ud stating
<(The creation of) a human being is put together in the womb of his mother in forty days in the form of a seed, and next he becomes a clot of thick blood for a similar period, and next a morsel of flesh for a similar period. Then, Allah sends an angel who is ordered to breathe life unto the fetus.>
So, these are four months and ten more days to be sure, as some months are less (than thirty days), and the fetus will then start to show signs of life after the soul has been breathed into it. Allah knows best. (Source)
The late contemporary Muslim scholar Abu Ala Mawdudi basically reiterated this same position since he wrote in reference to this Quranic passage that:
259. The waiting period owing to death of the husband is obligatory EVEN FOR A WOMAN WITH WHOM CONSUMMATION OF MARRIAGE HAS NOT TAKEN PLACE. A pregnant woman, however, is exempted from this. Her waiting period expires with childbirth, irrespective of whether the time between the husbands death and the childbirth is less than the waiting period prescribed by Law. (Mawdudi, Towards Understanding the Quran: English Version of Tafhim al-Quran, translated and edited by Zafar Ishaq Ansari [The Islamic Foundation, Leicestershire, United Kingdom, Reprinted 1995], Volume I, Surahs 1-3, pp. 182-183; capital emphasis ours)
To summarize: The reason for instituting the 'iddah is the possibility that the woman may be pregnant at the time of the divorce or the death of her husband. Therefore, if the woman delivers a child, then her 'iddah is automatically over. It has served its purpose. This holds equally for the divorced and the widowed woman.
The other case in which one can be certain that there will be no child in regard to whom the Muslim community does not know the identity of the father, is if no sexual intercourse has taken place between husband and wife. Therefore, the exception found in S. 33:49 is logical.
Here, however, is the inconsistency: The Qur'an does not grant the widow the same exception as the divorcee. If the marriage is terminated before it was consummated — whether by divorce or by the death of the husband — why does the widow have to undergo a waiting period of four months and ten days, but the divorcee is free to marry as soon as she likes? Why are these two women not treated equally?
The commentators quoted above merely follow the Qur'an in this inconsistent regulation, and seek to support this regulation for widows with reference to the practice of Muhammad. This does not resolve the inconsistency as such, but simply means that Muhammad followed the Qur'an in being inconsistent in regard to this issue.
The Qur'an states explicitly that divorced and widowed women have to observe a waiting period of three months or four months and ten days respectively, see S. 2:228, 65:4 and 2:234 quoted above. There are no exceptions stated for widowed women. There are two exceptions stated for divorced women: (a) If the woman is pregnant then her waiting period ends with the delivery of the child (S. 65:4), (b) if the couple has not consummated their marriage, then there is no waiting period at all (S. 33:49).
This reveals the second inconsistency. Both exceptions are stated for the divorced woman only but the commentators apply exception (a) also to widowed women, while they do not accept that exception (b) is also applied to them.
To summarize again: There are two inconsistencies. (1) When a marriage is terminated before it is consummated, the women are treated vastly differently. The divorcee can marry again immediately, but the widow has to wait at least four months and ten days. (2) In the Qur'an, there are two exceptions to the normal waiting period for a divorced woman. There are no exceptions mentioned for the widowed woman. The Muslim commentators and jurists apply one of the exceptions that is given for the case of a divorce also to the case of the widow, i.e. they extend the application of the law based on analogy, but they refuse the application of the second exception even though the same kind of analogy could be used.
[ Excursus: For illustration, imagine the following two cases: Couple A and couple B just married. As is still common in many parts of the Islamic world, it may even be a marriage arranged by relatives, i.e. husband and wife may hardly have known each other before the wedding ceremony. Shortly after the wedding something happens which greatly upsets the husband and he becomes very angry at his wife. Husband A pronounces a divorce against his new wife. Husband B has a weak heart, and before he can divorce his wife, he dies of a heart attack. The situation is very similar in both cases, but the quranic ruling is very different. None of the couples ever consummated their marriage. Both women find themselves without husband shortly after their wedding. Yet, the first one is free to marry immediately, while the second one has to observe a waiting period of over four months. ]
The Islamic data are clear. The question remains: Why is the ruling so different in these two similar cases?
The marriage is terminated before it is consummated. That is the same in both cases. What is it that makes them different? Perhaps the reason for the waiting period will provide a clue. The main concern is apparently that there should be no child whose father is in doubt. In both cases, no sexual intercourse was performed by the couple. But how do we know that this is indeed so?
That is the crucial question: How can we be sure? Here is the difference:
In case of the divorcee we have the testimony of the ex-husband, a Muslim man's testimony, that no intercourse has taken place. In case of the widow we only have a woman's testimony.
Could the real reason for the different treatment be that a woman's testimony is not sufficient?
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