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Iddah of a pregnant woman

Source: Al-Nass Wal-Ijtihad, Text and Interpretation
By: Allama Abdul Husayn Sharafuddin al-Musawi


Al-Bayhaqi mentioned in his book Shu’ab al-Eeman that once a pregnant woman had asked Umar for a legal judgment saying to him: “I have given birth to my child after the death of my husband and before the end of my iddah.” He asked her to wait until the end of the longest one of the two terms of iddah. 137
Ubayy bin Ka’b objected to Umar at the presence of the woman and said to him that her iddah had ended since she had given birth to her child and he permitted her to get married before the end of the four months and ten days (of the iddah). Umar said nothing to the woman save this statement: “I am hearing what you are hearing” 138 and he gave up his fatwa. After that Umar agreed with Ubayy bin Ka’b and said: “If she had given birth to her child and her husband was still not buried yet, she could get married.” 139 The followers of the four Sunni sects have followed this principle until nowadays.
But we, the Shia, have found in the holy Qur'an two verses opposing each other concerning the iddah of a woman whose husband dies while she is pregnant; in the first verse Allah has said: “and (as for) the pregnant women, their prescribed time is that they lay down their burden” (Qur’an 65:4)
and in the second one He has said: “And (as for) those of you who die and leave wives behind, they should keep themselves in waiting for four months and ten days (Qur’an 2:234).
A pregnant woman, whose husband dies, can get married after giving birth to her child if she follows the first verse even if she has not passed the period of iddah mentioned in the second verse but if she follows the second verse, she can get married only after passing the period mentioned in the verse even if she has not given birth to her child yet. In both suppositions she will objects to one of the verses and she cannot follow both of the verses at the same time unless she will wait until passing the longer of the two periods (either to pass four months and ten days or until giving birth to her baby) and then she has no way except to do that. This is what has been narrated from Imam Ali (S) and Ibn Abbas. 140 The Shia have followed their imams in acting according to this opinion.
Note
The Muslims have disagreed on the beginning of the iddah of death, 141 which is four months and ten days. The Sunni believe that the iddah of death begins since the husband dies whether the wife knows of her husband’s death or she does not know because of his being far away from her or because of any other reason.
As for the Shia, they believe that the iddah of death begins when a wife knows of her husband’s death even if the death has taken place some time ago. She has no right to get married until she passes the iddah, which is four months and ten days, since the moment she knows of her husband’s death. And then she can get married according to the clear verse after passing the iddah and after the mourning that a wife has to show after the death of her husband.

Marrying a missing husband’s wife
Ad-Dawaleebi said: 142 “…also Umar has judged according to his own opinion concerning the wife of a missing husband. He judged that a wife of a missing husband can get married after passing four years since the absence of the husband and after passing the iddah even if it had not been proved that her husband had died so that the wife would not remain in suspense forever.
“So was the opinion of Malik bin Anas which was unlike the opinion of the Hanafites and the Shafiites who believed that a wife had to wait until she would become certain of her husband’s death because he would be considered as alive until a certain evidence on his death would appear.
But the opinion of Umar was worthy of being regarded because it protected the wife of a missing husband from certain harms and dangers. He permitted the wife of a missing husband to get married despite that this decision opposed the clear texts of the Shari’ah, on which the rest of jurisprudents depended. This was not but changing the verdicts according to the change of the conditions which must be regarded to avoid some harms. The Prophet (S) had said: “No harm (to be done against the others) and no reciprocal harm!” Allah had said: “..and He has not laid upon you any hardship in religion” ( Qur’an 22:78).
“In doing so, Umar did not annul the legal texts but he activated them in the light of the benefit and according to the different circumstances…”
As for the Shia, they have followed their infallible imams of Ahlul Bayt (as) in this matter. They have had fixed texts deciding according to the apparent principles. These texts say that when no information can be obtained about a missing husband, his wife, if there is someone spends on her, must wait until her husband comes or his death is proved or something like that. But if the wife has no one to spend on her, she can bring her case to the legal judge to decide.
When she does so, the judge will begin to search for the missing husband for four years in the possible places, in which the husband can be found, otherwise he looks for him in everywhere since the moment when the wife offers her case before him. Then the judge divorces her or he orders her guardian (the one who is responsible for her) to decide. It is necessary that the guardian may decide first but if he refuses to divorce her, then the judge is to divorce her but after passing the period of researching or after the return of the messengers who go to look for the missing husband or the like.
After that the wife spends the period of the iddah of death which is four months and ten days and then she can get married. If the missing husband comes back during her iddah, he will have the right to marry her again but if he comes back after the iddah, he will have no right to marry her whether he finds her married or not. This is the principle of the Shia on this matter according to their infallible imams (S).

Selling bondwomen
All the Sunni Muslims of the four sects have confirmed that the one, who had prohibited selling bondwomen, was Umar whereas it had been permissible at the time of the Prophet (S), the reign of Abu Bakr and some time of Umar’s rule. They have considered that as one of Umar’s virtues as they have considered Taraweeh Prayer and its likes.
But the scholars, who have looked for the truth of this matter, found in the true prophetic traditions that the Prophet (S) had prohibited selling bondwomen and so found that Umar had followed those traditions and acted according to them. He (Umar) said to his son Abdullah that he had heard the Prophet (S) saying: “A bondwoman is not to be sold, nor to be given as a gift, nor to be bequeathed and not to be considered as entailment. Her owner enjoys himself with her along his life. When he dies, she is to be set free.”
Ibn Abbas narrated that the Prophet (S) had said: “Every bondwoman, who gives birth to a child from her master, becomes free after his death.”
These two traditions have been mentioned by Abu Ja’far Muhammad bin al-Hasan at-Toosi in his book al-Khilaf, vol.2. And according to the apparent meaning of the two traditions, it was clear that Umar had not prohibited selling bondwomen due to his own opinion, but he had acted according to the tradition of his son Abdullah and the tradition of Ibn Abbas.
But Sheikh at-Toosi was forced by the traditions of the infallible imams of Ahlul Bayt (as) about this subject to interpret these two traditions in a way to make them submit to the doctrine of Ahlul Bayt (as). He said: “When a bondwoman gives birth to a child from her master while she is still in his possession, she will have the right to be free due to her bearing a child.
It is not permissible to sell a pregnant bondwoman and when she gives birth to her child, she is still in the possession of her master and she is not permissible to be sold as long as her child is alive but when her child dies, she may be sold anyhow. If her master dies, she is made in the possession of her child and then she is set free due to that. If her master does not leave save her, the share of her child (in her) is set free and she becomes among the shares of the rest of the heirs.
Such was the opinion of ‘Ali (as), Ibn az-Zubayr, Ibn Abbas, Abu Sa’eed al-Khidri, Ibn Mas’ood, al-Waleed bin Uqba, Suwayd bin Ghafla, Umar bin Abdul Aziz, Ibn Seereen and Abdul Melik bin Ya’la. Dawood said: “It is permissible to dispose of her in any way” but he did not give any details. Abu Haneefa, his companions, ash-Shafi’iy and Malik said: “She is not permissible to be sold nor to be disposed of in any way but she is to be set free when her master dies.”
Sheikh at-Toosi added: “Our evidence on that is the consensus of the sect (the Shia) and their traditions. Also there is no disagreement on the possibility of being slept with by her possessor but if she becomes dispossessed, sleeping with her becomes not possible. The rule says that she is a slave and he, who pretends that she is freed after the death of her master, has to show the evidence on that.
The tradition narrated by Ibn Abbas that the Prophet (S) had said: “Every bondwoman, who gives birth to a child from her master, becomes free after his death” means that when her master dies and she becomes her child’s possession, then she is set free due to that. The tradition narrated by Abdullah bin Umar that the Prophet (S) had said: “A bondwoman is not to be sold, nor to be given as a gift, nor to be bequeathed and not to be considered as entailment. Her owner enjoys himself with her along his life. When he dies, she is to be set free” means that she cannot be sold as long as her child is alive. When her master dies, she is set free due to what we have said in the first tradition.”
Notes:
137. Four months and ten days.
138. Kanzol Ummal, vol. 5 p.166
139. Sunan of al-Bayhaqi, Sunan of Ibn Abu Shayba and Kanzol Ummal, vol. 5 p.166.
140. Mentioned by az-Zamakhshari in his Kashshaf when interpreting this verse (and (as for) the pregnant women, their prescribed time is that they lay down their burden). This is the opinion of Ahlul Bayt (as) and it is the most cautious opinion.
141. When a woman’s husband dies.
142. In his book Usool al-Fiqh, p.241.

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