Waiting period for the divorce by vow of abstinence
Fatwa No: 88228

  • Fatwa Date:8-7-2004 - Jumaadaa Al-Oula 21, 1425
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Question

Please what is the Iddah of a woman whose marriage was dissolved by "Eala" or the vow of abstinence? Also, can the parties marry each other again after such dissolution?
I would also like to know the position in respect of Zihar.

Answer

Praise be to Allah, the Lord of the Worlds; and may His blessings and peace be upon our Prophet Muhammad and upon all his Family and Companions.

When the period of the oath not to have sexual relationship with one's wife expires, which is 4 months, the husband is ordered to have sexual intercourse with his wife. If he refuses, she can ask him to divorce her. If he refuses, then the judge would pass a decision in favor of her divorce to prevent harm to her. 

The husband can make his wife return to wedlock during the waiting period, because this kind of divorce is  revocable.

Ibn Qudama said in Al Mughni: " the divorce of the oath not to have sexual relationship is a revocable divorce, either he caused the divorce himself, or it is the judge who passed a decision of their divorce".

As regards Zhihar, which is to say to the wife "you are like my mother's back," as far as sexual relations is concerned its ruling is that it becomes forbidden for the husband to have sexual relations with his wife until he expiates for this. The expiation for this is to free a slave, and if he has no money to free a slave, he has to fast for two consecutive months, and if he cannot do so, he has to feed 60 poor people.

If the husband who pronounces Zihar refrains from the expiation despite the fact that he can expiate, or if he is unable to expiate and the wife wants divorce, then she is entitled to it. However, the husband can take her back as this is a revocable divorce, without her consent or her guardian's consent.

In case the divorce takes effect in Eela or Zihar, then her waiting period is like that of any divorced woman.

If she is pregnant, her waiting period is until she gives birth; if she has no menses, she has to wait three moths, and if she is not pregnant but has menses, her waiting period is 3 menses.

Allah knows best.      

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