Monday, December 12, 2016

Claimed of Inconsistence in waiting period (Iddah) rulings for divorced and widowed Women

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.