Chapter 33: 'Idda, Istibra' and Maintenance

['Idda designates a woman waiting for a specific time determined by the Shari'a to see if she is pregnant. It is also a form of worship in itself. It is obligatory by the words of the Almighty, "until the book reaches its term" and because the Prophet said to al-Furay'a, "Wait in your house until the book reaches its term."

There are three types: menstrual periods, lunar months and pregnancy. Periods apply to the divorced woman who menstruates, free or slave.]

33.1 'Idda for divorced women

33.1a. Its length

The 'idda for a free woman is three periods, whether she is Muslim or kitabi. For a slave or partial slave, it is two periods. It does not matter whether the husband is free or a slave. A 'period' means the periods of purity between two menstruations.

[The ayat is general and this is not disputed. 'Idda has to do with the woman, not the husband. Divorce has to do with the men. A period is the period of purity. Abu Hanifa says it is menstrual periods.]

33.1b. If the woman is not menstruating

If the woman is not menstruating or has ceased menstruation, then it is three months for a free woman, free or slave.

[So she cannot be pregnant. It is three months. This is agreed. It is the same for the slavegirl in the famous position. This is calculated by the moon. When she is divorced during the month, the month in which is which is divorced is completed from the fourth month. The day of divorce is not counted.]

33.1c. A woman with constant bleeding

The 'idda for a divorced woman with constant bleeding is one year, slave or free.

[That is nine months and third months,]

33.1d 'Idda for pregnant women

The 'idda for a pregnant woman who is widowed or divorced is when she gives birth, whether free or slave or kitabi.

[This is in the famous position in divorce and is agreed, even if it is a minute after the divorce or death. This applies to all by the words of the Almighty, "The term of those who are pregnant is when they lay down their burdens." (65:5) It is makes the general particular in "those of you who die and leave wives, they should wait by themselves for fourth months and ten days." (2:234) The limitation of it is is clarification. If she gives birth to twins, she is not lawful until she gives birth to the second.]

33.1e. No 'idda if the marriage has not been consummated.

A divorced woman whose marriage has not been consummated has no 'idda.

33.2 'Idda for widows

The 'idda for a free woman who is widowed is four months and ten nights, whether a child or adult, consummated or not, Muslim or kitabi. For a slave girl who is partially free it is two months and five days, except in the case of an older woman whose period is delayed. Then she waits until the doubt is removed. As for the one who does not menstruate because of youth or old age and her marriage was consummated, she cannot marry until three months after the death of the husband.

[This is a woman who is not pregnant, whether with false menstruation or not. It is the same whatever the age of the husband. Removal of doubt is by menstruation or the completion of nine months.]

33.3 Mourning

Mourning for the woman in 'idda because of being widowed is that she not use any adornment in the form of jewellery, kohl or other things, and she avoids all dyed colours except black. She avoids all perfume. She does not use henna or perfumed oil nor comb perfumed substances into her hair. Mourning should be observed by the slave and free woman, child and adult. There is disagreement about a Kitabi. A divorced woman does not have to observe mourning.

[Ihdad is mourning. She avoids bracelets and similar things, and kohl, which would appear to be even if it was out of necessity, which it the position of Ibn 'Abdu'l-Hakam. In the Mudawwana, "She does not use kohl except for necessity." She removes dishevelment from her self. She does not enter the bath-house except by necessity and does not rub her body with depilatories. Black can be worn as the garment of sorrow. If it is an adornment among some people, she should avoid it. She avoids perfume and adornment because that invites marriage. Henna is adornment. Mourning is observed by all ages because in Abu Dawud the Prophet said, "The woman whose husband dies does not wear saffron or red garments, or jewellery or use henna." There is disagreement about a Kitabi with two famous positions about whether it is obligatory.]

33.4 The 'idda for a Jewish or Christian woman and umm walad

A free Kitabi woman should be compelled to observe the 'idda for a Muslim husband who has died or divorced her. The 'idda of a umm walad after the death of her master is one menstrual period. It is the same when he frees her. If she does not menstruate, it is three months.

[Whether it is a single or final divorce because mourning is prescribed to protect lineage. The man has died and has no one to protect his lineage and so mourning becomes a barrier to defend the dead. The Kitabi is compelled whether the marriage has been consummated or not, even if she is a child or he is one.]

33.5 Istibra'

Istibra' is observed in the case of a slavegirl who changes ownership. It is one menstruation. Ownership changes by selling, giving away, capture, or any other way. If the woman menstruates after being in the possession of the new master before he has bought her, then she does not have to observe an istibra' if she has not gone out. The istibra' for a child when she is sold is three months as it is for a woman who no longer menstruates. There is no istibra' for a woman who has never had intercourse.

If someone buys a pregnant woman from another person or gains possession of her without a sale, should not go near her or enjoy her in any manner until she gives birth.

[Omitted explanation)

33.7 Lodging and maintenance of divorced wives

33.7a. Right to lodging and maintenance

A divorced woman whose marriage has been consummated has the right to lodging, but not maintenance unless she was divorced by less than three divorces or is pregnant. If pregnant, she has a right to maintenance whether it is one or three divorces.

[This is distinct from khul'. Any woman whose marriage has been consummated has the right to maintenance.]

33.7b. The position of a woman separated by a khul'

A woman with a khul' divorce has not right to maintenance unless she is pregnant.

[Any woman divorced by a final divorce is not entitled to maintenance unless she is pregnant.]

33.7c. A woman divorced by li'an

The woman divorce by a li'an has no maintenance, even if she is pregnant.

[Because the husband has denied paternity.]

33.7d. Widows

In the 'idda period on account of being widowed, she has no right to maintenance but to lodging if the house belonged to the decreased or he rented it.

[If the marriage was consummated.]

33.8 Confinement in 'Idda

When she is divorced or widowed, she should not leave her house until her 'idda is over unless the owner of the house evicts her and will not accept a normal rent. Then she leaves and stays in the place to which she moves until the end of the 'idda.

[She is not moved from her house unless it is a case of necessity. She is permitted to go out to see to her needs: what this refers to is moving house. She must spend the night in her house. She does not leave for hajj during this time.]

33.9 Nursing and custody of children

33.9a. Nursing the child

The woman should nurse her child in the marriage unless someone of her status should not do so. A divorced woman can nurse the child for the father and she can take a fee for nursing if she she wishes.

[If she is married or has been divorced by a revocable divorce. In such a case she receives no fee. "A divorced woman" refers to a woman who is finally divorced or who has finished her 'idda. The right of nursing is a right in her favour, not one against her based on what is reported by Abu Dawud that the Prophet said to a woman whose husband had divorced her and wanted to take her child from her, "You are more entitled to the child than he is as long as you do not re-marry."]

33.9b. Custody

After a divorce, the woman has custody of a boy until he reaches puberty and a girl until she marries and the marriage consummated.

[This is the right of the mother, be she free or slave, Muslim, or Kitabi, sensible or foolish according to Ibn 'Arafa. This right also pertains if she is widowed. The girl's maintenance is owed by the father until her marriage is consummated.]

33.9c. Order of custody

After that if the mother dies or remarries, custody goes to the grandmother and then the maternal aunt. If there are no female relatives of the mother, then it goes to one of the sisters and paternal uncles. If there are none, then the agnate relatives.

[Custody goes first to the mother's mother and then the father's mother.]

33.10 Recipients of Maintenance

33.10a. The wife

A man is only responsible for the maintenance of his wife, whether she is rich or poor,

[A wealthy man is obliged to provide food, condiments, clothes and a dwelling once he has consummated the marriage or has been invited to do so while the woman is capable of intercourse. It does not matter whether she is wealthy or poor, Muslim or Kitabi, free or slave. A divorce can be imposed on him if he is unable to provide for him unless she knew of his inability in advance.]

33.10b. His poor parents

and his poor parents

[Who are free, whether they are Muslims or unbelievers and he acknowledges their poverty. If he denies that they are poor, they must prove but are not required to make an oath. Making them take an oath would involve disrespect.]

33.10c. His children: sons

and to his young children who have no wealth. He is responsible for sons until they reach puberty if they have no crippling disability,

[This is free children, even if they are unbelievers. This means a disability which would prevent them from earning, as when they are insane or blind. Then the father is required to continue to support them.]

33.10d. His daughters

and for girls until they marry and their marriages are consummated.

[Or the husband, who is adult, has been invited to consummate the marriage. When her husband divorces her or dies, her father is not responsible for her maintenance if she is adult. If she is not adult, it reverts to him.]

33.10e. He is not responsible for other relatives

These are the only relatives whose maintenance he is responsible for.

[He is not responsible for grandparents or grandchildren]

33.10f. Providing the wife with servants

If he is wealthy enough, he should provide his wife with servants.

[This is an obligation when his wife is not someone who usually serves herself.]

33.11 Burial

33.11a. Burying slaves

He must also maintain his slaves and shroud them if they die.

[The obligation is from the words of the Prophet in the Sahih, "The best sadaqa is that given by the wealthy. The upper hand is better than the lower hand. Begin with your immediate dependents. The woman says, 'Either you feed me or release me, the slave says, 'Feed me and use me,' and the child says, 'Feed me until you let me go.'"]

33.11b. Shrouding the wife

Here is disagreement about shrouding the wife, Ibn al-Qasim said that it is done using her own money, and 'Abdu'l-Malik says that it comes from the husband's money. Sahnun said that if she is wealthy her money is used, and if she is poor, it is done from her husband's money,

[If she is wealthy her money is used and the husband is not obliged to pay it because shrouding is part of maintenance which ends with death. Otherwise the tie of marriage obliges that he do it since he can wash her and she her private parts and they inherit from one another.]