Salam,
Surah 2:228 - Divorced women shall wait concerning themselves for
three monthly periods. Nor is it lawful for them to hide what Allah Hath
created in their wombs, if they have faith in Allah and the Last Day. And their
husbands have the better right to take them back in that period, if they wish
for reconciliation. And women shall have rights similar to the rights against
them, according to what is equitable; but men have a degree (of advantage) over
them. And Allah is Exalted in Power, Wise.
The perceived problem is the waiting period (iddah) rules for divorced
and widowed women appear to be arbitrary and inconsistent according to the Quran.
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. S2:228 above is being prescribed is for divorced woman a
waiting period of three month but in S65:4 is for those pregnant it says “for
those who carry (life within their wombs), their period is until they deliver
their burdens.” However in S2:234 it says “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.
The discrepancy is 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 the disputant
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 waiting (iddah) have you to
count in respect of them: so give them a present and set them free in a
graceful manner. (S. 33:49)
This ayah also by interpretation contains a command from Allah that
requires 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).
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?
Furthermore 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 the inconsistency: 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 Quran 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 four months and ten days.)
The above misunderstanding by any disputant or doubter can be put to
order if one puts the different situation in it right perspective. There is a
different in situation the reason the Quran allows the divorcee can remarry
immediately but the widow could not do the same. In the former the divorced
couple is still living and both can stand witnesses that no consummation took
place and there is therefore guaranty by each of them that no pregnancy will
take place. In addition the Quran specify that the divorced husbands are given
priority to mend and take their wife back in which S2:228 stated “And their husbands
have the better right to take them back in that period, if they wish for
reconciliation.” They can reconcile their differences and immediately remarry.
However in the case of the widow there in none to bear witness except herself
and therefore the ruling is making surety that the four months period will
clear any doubt on pregnancy is therefore fair to be observed.
Furthermore the amount of dowry is also a factor to the different of
waiting period in the above when a divorced case happen without consummation
the divorcee is allowed to retain half for herself and return the other half to
the former husband as stated in S2:237 “ And if ye divorce them before
consummation, but after the fixation of a dower for them, then the half of the
dower (Is due to them), unless they remit it or (the man's half) is remitted by
him in whose hands is the marriage tie; and the remission (of the man's half)
is the nearest to righteousness. And do not forget Liberality between
yourselves. For Allah sees well all that ye do.” Whereas in the case of the
widow the full sum of the dowry can be kept for her own self and naturally that
will commensurate with the period of waiting.
Nevertheless the waiting period for the widow of four month and ten
days compared to none for the divorcee is more to express a period of mourning
an expression of one who has suffered a time of bereavement and also showing
respect during that period to the family of her late husband. It is not proper
or decent for a widow to immediately remarry when the family members are in
period of bereavement and thus the period of waiting is morally acceptable in
any community.
Asar
