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The role of Qur'ān and ḥadīth in the legal controversy about the rights of a divorced woman during her ‘waiting period’ (‘idda)1

Published online by Cambridge University Press:  24 December 2009

G. R. Hawting
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Extract

In Muslim law one of the topics of dispute which is traced back to some of the earliest authorities, and which persists as a difference between the various madhhabs and sects, concerns the obligations owed by her former husband towards a wife who has been divorced. Schacht attempted a summary of the positions taken in the dispute together with an explanation for them:

The Medinese hold that the definitely divorced wife who is not pregnant, can claim from her former husband only lodging during her period of waiting {‘idda); the Iraqians give her also the right to board. The two doctrines are based on two variants of Koran lxv.6, the Medinese on the textus receptus, the Iraqian on the reading of Ibn Mas‘ūd. When the text of Ibn Mas'ūd was superseded in Iraq by the textus receptus during the reign of the Umaiyad caliph ‘Abdalmalik (A.H. 65–86), this basis of the Iraqian doctrine was forgotten, and Abū Ḥanīfa was reduced to justifying it by an arbitrary interpretation of the textus receptus and by a tradition from ‘Umar.

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Bulletin of the School of Oriental and African Studies , Volume 52 , Issue 3 , October 1989 , pp. 430 - 445
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Copyright © School of Oriental and African Studies, University of London 1989

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References

2 Schacht, J., The origins of Muhammadan jurisprudence, Oxford, 1967, 225Google Scholar.

3 Qudāma, Ibn, Mughnī, Cairo, 1969, VIII, 195Google Scholar: lahā ‘alayhi jamī‘u ḥājatihā min ma'kūlin wa-mashūbin wa-malbūsin wa-maskanin; Lapanne-Joinville, J., ‘L'obligation d'entretien {nafaqa) de l'epouse dans le rite malekite’, Revue marocaine de Droit, III, 1951, 102–14Google Scholar; Schacht, J., Introduction to Islamic law, Oxford, 1964, 167Google Scholar. The Zaydī, al-Siyāghī seems to see nafaqa as entailed by suknā rather than vice versa: wa-idhā wajabat al-suknā wajabat al-nafaqa li-annahā tābi'atu li'l-suknā (Al-Rawḍ al-naḍīr, Cairo, 1928–1930, IV, 120); the close connexion between the two concepts, however, remains.Google Scholar

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11 Yūsuf, Abū, Ikhtilīf, 195Google Scholar; but cf. Ibn, Qudāma, Mughnī, VIII, 232Google Scholar, where Ibn Abī Laylā is listed among those Iraqis who did grant the divorced woman both suknā and nafaqa, and ‘Abd, al-Razzāq, Muṣannaf, Beirut 1971 f., VII, 19 (no. 12020) where he is said to have granted her suknā but not nafaqaGoogle Scholar.

12 See below, note 34.

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14 See above, note 11. Shayba, Ibn Abī, Muṣannaf, Karachi, 1986, V, 147Google Scholar also attributes this position to al-ḥasan, ‘Aṭā’ and al-Sha'bī (!). The reverse stance, granting the divorced woman nafaqa but not suknā, is also attested (Siyāghī, , Al-Rawḍ al-nadir, IV, 122Google Scholar, referring to al-Hādī ila'l-Ḥaqq, al-Mu'ayyad bi'llāh and a riwāya of Ibn Ḥanbal).

15 (Ḥanbalīs:) Qudāma, Ibn, Mughnī, VIII, 232Google Scholar; (ẓāhirīs:) Ḥazm, Ibn, Muḥallā, Beirut, 1961 f., x, 282–303Google Scholar; (Imāmīs:) Ḥillī, , Sharā‘i’ 'al-islām, Najaf, 1969, III, 43Google Scholar; (Ismī'īiīs:) Qā'ḍī, Nu‘mān, Da'ā‘im al-Islām, Cairo, 1960, ii, 288Google Scholar.

16 Ibn, Qudāma, Mughnī, VIII, 233 (citing in part Ibn ‘Abd al-Barr)Google Scholar.

17 The relevant passage (Yūsuf, Abū, Ikhtilāf Abī Ḥanīfa wa-Ibn Abī Laylā, 195Google Scholar) reads: ‘When a man divorces a woman irrevocably and the marriage has been consummated, Abū Hanīfa said about it, “To her suknā and nafaqa are due until her ‘idda is completed” … But Ibn Abī Laylā said, “Suknā is due to her but not nafaqa”. Abū Ḥanīfa responded, “Why? For God has said in His Book:‘ Spend upon them (anfiqū ‘alayhinna) until they bring forth their burden’, and we have heard about ‘Umar b. al-Khaṭṭāb that he granted suknā and nafaqa to the irrevocably divorced woman”’.

18 Shāfi‘ī, , Umm, V, 219–20Google Scholar.

19 Saḥnūn, , Mudawwana, II, 152Google Scholar.

20 For a summary of views about the position of the widow, see, e.g., Qudāma, Ibn, Mughnī, 160Google Scholar (note Ibn Qudāma's own explicit likening of the position of the widow to that of the mabtūta); Ibn Ḥazm, Muḥallā, 287 ffGoogle Scholar.

21 e.g., the compilation Tafsīr al-khams mi'at āya, ascribed to Sulaymān, Muqātil b., ed. Goldfeld, I., Shfaram, 1980, 190Google Scholar.

22 e.g., Mālik, Muwatta’ with commentary by Zurqani, , Cairo, 1936, III, 207Google Scholar; Abū, Yūsuf, Āthār, Cairo, 1355, 132 (no. 608)Google Scholar; Ṭayālisī, Haidarabad, 1321/1904, 228 (no. 1245); Ibn, Abā Shayba, Muṣannaf, V, 149Google Scholar; ‘Abd, al-Razzīq, Muṣannaf, VIII, nos. 12021, 12024, 12025Google Scholar; al-Rabl’, b. Habīb al-Farāḥīdī, Al-Jāmi’ al-ṣaḥīḥ (Al-Musnad) in the tartīb of Abū, Ya'qūb al-Warjalānī, Cairo, 1349, I, 34Google Scholar (no. 532) (I am grateful to Dr. Ella Landau-Tasseron for help in obtaining this Ibāḍī ḥadīth collection. Note that the woman here is anonymous but the report is clearly the same as that in other sources where she is identified as Fatima bint Qays); Muslim, ṣalāq, bāb al-muṭallaqa thalāthan Iā nafaqata lahā; Ibn, Sa'd, ṣabaqāt, Leiden 1904 ff., VIII, 200–2Google Scholar.

23 Sa'd, Ibn, V, 115–17Google Scholar.

24 Ḥajar, Ibn, Tahdhīb, Haidarabad 1325, VI, 82Google Scholar.

25 ibid., xi, 268.

26 ibid., vii, 23.

27 Abū, Yūsuf, Āthār, 132 (no. 608)Google Scholar.

28 e.g., Abī Shayba, Ibn, Muṣannaf, V, 147Google Scholar; Sarakhsī, , Mabsūt, V, 201Google Scholar; Zurqānī, , Sharḥ al-Muwaṭṭa’, on trad. no. 1268Google Scholar.

29 It is cited from Mīlik by, e.g., Muslim, and Sa'd, IbnGoogle Scholar.

30 Saḥnūn, , Mudawwana, II, 153Google Scholar; Shāfi'ī, Umm, V, 219Google Scholar.

31 Zurqānī, , Sharḥ, III, 207 ffGoogle Scholar.

32 ‘Abd, al-Razzāq, VII, 21 (no. 12024)Google Scholar; Muslim, loc. cit., no. 7.

33 e.g., Muslim, loc. cit., nos. 2 and 8.

34 idem, no. 13. On al-Aswad see Ibn, Sa'd, vi, 46–50Google Scholar; Abu, Nu'aym, Ḥilyat al-awliyā’, 10 vols., Cairo, 1932–1938, II, 102–5Google Scholar.

35 e.g., Ṭayālisī, no. 1246; ‘Abd, al-Razzāq, VII, no. 12022, Muslim, loc. cit., no. 61 (both are cited from Zuhrī)Google Scholar.

36 ‘Abd, al-Razzāq, VII, no. 12025 (cf. no. 12024); for ‘iṣma, which occurs with variant readings such as qaḍiyaGoogle Scholar, see Lane, E. W., An English-Arabic lexicon, London, 1874Google Scholar, s.v. The fundamental meaning given there is ‘restraining’ (= man’), ‘iṣmat al-nikāḥ is ‘the marriage tie’.

37 Sarakhsī, , Mabṣūt, V, 201Google Scholar.

38 Saḥnūn, , Mudawwana, V, 140 ffGoogle Scholar.; Zurqānī, , Sharḥ, no. 1268Google Scholar; Majmū’ al-fiqh, 208Google Scholar; Ibn Abī Zayd, 196–7; Shīrāzī, Tanbīh, 80Google Scholar; Ibn, Qāsim al-Ghāzzī, Fath al-qarīb, 520 = 521Google Scholar; Ibn, Ḥazm, Muḥalla, x, 282Google Scholar; ḥillī, , Sharā’ī‘, III, 43Google Scholar.

39 e.g., ‘Abd, al-Razzāq, VII, nos. 12024, 12025Google Scholar.

40 e.g., Ibn, Ḥazm, Muḥaliā, x, 282Google Scholar.

41 Abu, Yūsuf, ĀthĀr, 143 (no. 643)Google Scholar; ‘Abd, al-RazzĀq, VI, 320 ffGoogle Scholar.; ZurqĀnī, SharḤ, III, 207 ffGoogle Scholar.; Sarakhsī, , Mabsūṭ, V, 202Google Scholar.

42 cf., for example, ‘Abd, al-Razzāq, vi, 322–3Google Scholar (where in various traditions fāḥisha mubayyina is interpreted as the fornication (zinā’) of the wife, her leaving the marital home and disobedience to the husband (al-khurūj wa'l-ma'ṣiya), her insubordination (nushūz) or being foulmouthed regarding her husband's family (idhā badhat bi-lisānihā ‘aiā ahlihi)) with Zurqānī, Sharḥ, in, 207 fif., and Sarakhsī, Mabsuūṭ, V, 202 (where, among the possible reasons adduced to account for the Prophet's removal of Fātima from her former husband's house before the completion of her ‘idda, we find that she had been rebellious towards her husband and foulmouthed about his family). One might compare this with the discussion in Judaism of the cases in which a wife might lose her right to her ‘dowry’ (ketubah), usually given to the woman after the death of her husband or after divorce: she might lose it if she transgressed the Law of Moses or Jewish custom. Transgression of the Law, inthis instance, is specified as such things as having sexual relations while menstruating, failing to fulfil a vow, etc. But it is the definitions of transgression of ‘Jewish custom’ which are especially interesting: ‘If she goes out with her hair unbound, or spins in the street, or speaks with any man … Also if she curses his parents in his presence … Also if she is a scolding woman. And who is deemed a scolding woman? Whoever speaks inside her house so that her neighbours hear her voice’. (Mishnah, , Ketuboth, 7:6Google Scholar).

43 Although the first seven verses of Sura 65 (Sūrat al-ṭalāq) seem to be concerned with the technicalities of divorce and to take the fact of divorce itself for granted, it is tempting to see the passage in verse 1, ‘Do not expel them from their houses nor let them go forth except when they commit (?) 3. fāḥisha mubayyina’, as an attempt to limit the grounds for divorce rather than as a statement of how a man should behave after divorcing his wife. In Judaism the woman's leaving, or being expelled from, the marital home is an indication of the end of the marriage, and the Hebrew root frequently indicating ‘divorce’, gh-r-sh, more narrowly means ‘to drive out’, ‘to expel’. Deuteronomy 24:1 is the fundamental biblical text in Jewish discussions of divorce, and reads, ‘When a man hath taken a wife, and married her, and it comes to pass that she finds no favour in his eyes, because he hath found some uncleanness (‘ervath dābhār) in her: then let him write her a bill of divorcement, and give it in her hand, and send her out of his house’. The expression ‘ervath dābhār, as is well known, was the subject of differing interpretations. According to the Mishnah (Gittin, 9:10), the school of Shammai, attempting to limit the grounds for divorce, interpreted the verse to mean that ‘a man may not divorce (yegārēsh) his wife unless he has found unchastity in her’. In other words, divorce, expulsion from the house, was a punishment for the wife's adultery, and for that alone. Now, in ‘Abd al-Razzāq's selection of traditions about the interpretation of fāḥisha mubayyina, ‘fornication’ or ‘adultery’ (zinā) is the opinion of some while others go for the milder and more general options of disobedience and slander against the husband's family. One of the opinions he cites (ascribed to the expert in naskh, ‘Aṭā’ al-Khurāsānī, d. 135/757) clearly interprets the relevant part of Q. 65:1 to mean that the expulsion of the woman from her house was a punishment for a fāḥisha mubayyina. Furthermore, that this Arabic expression was a reference to unchastity in the opinion of ‘Atā’ is indicated by his subsequent comment that the text had been ‘abrogated’ by the revelation of the ḥudūd. It could be that ‘Ata’, like the other commentators, is talking about women who have already been divorced and are awaiting completion of the ‘idda, but in my opinion it is more likely that he sees it as referring to married women generally. The Quranic passage 65:1 referring to a fāḥisha mubayyina and the dispute about the significance of the term might then be seen as a reflexion of Deuteronomy 24:1 and the dispute between the schools of Shammai and Hillel. For Karaite views on ‘ervath dābhār and Deuteronomy 24:1 in general, see L., Nemoy, Karaite anthology, New Haven and London, 1952, 19Google Scholar (Anon), and the reference to Aaron ben Elijah of Nicomedia (d. 1369) in Levy, J., Wörterbuch über die Talmudim und Midraschim, III, Darmstadt, 1963, s.v. ‘ervāhGoogle Scholar.

44 Mishnah, Yebamoth, 4:10Google Scholar. Something like the ‘idda of the divorced woman seems to have been urged by Anan, but it was to be observed before the writ of divorce was issued. If the wife was pregnant, the writ could not be issued until her pregnancy ceased; if she was thought not to be pregnant, the husband was to withdraw from her for a period of three months before writing the bill of divorce, in order to ascertain her non-pregnancy (Nemoy, , Karaite anthology, 19Google Scholar).

45 Eng. tr., The code of Maimonides, IV, The book of women, New Haven and London, 1972, 82Google Scholar.

46 Encyclopaedia Judaica, Jerusalem, 1972, s.v. ‘Maintenance’ for referencesGoogle Scholar.

47 It seems just possible that a similar distinction between ‘accommodation’ and ‘maintenance’ might have developed in Judaism in connexion with the case where a woman would be entitled to leave the marital home but the husband was unwilling to grant a divorce. In such a case, ‘a husband who prevents his wife from marrying another man renders himself liable to maintain her until he grants her a divorce’ (Enc. Jud., loc. cit.).

48 Maimonides, loc. cit., 166–7; Enc. Jud., s.v. ‘Divorce’; Amram, D. W., The Jewish law of divorce according to the Bible and Talmud, with some reference to its development in post-Talmudic times, London, 1897, 81Google Scholar.