Yasir Qadhi – Islamic Rulings Of Iddah Between Shariah And Politics
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AI: Transcript ©
Today's khatira will be fiqhih with a tinge
of, politics, but I have to be generic
as I'll explain why.
We're gonna begin with a very basic overview
of a topic that everybody should know. It
is something that is a part of our
religion, and that is the reality of marriage
and divorce laws. We thank Allah that our
religion has told us everything we need to
know.
Our religion is a holistic complete religion. As
Allah says in the Quran, mafaratna afrikitabi mashay
There's nothing that is left out. And everything
we need to know about how to live,
how to eat, what to eat, how to
drink, how to get married, when to get
married, who can we get married to, who
can we not get married to, and when
can we divorce, how can we divorce. The
rules are all very explicit in the Quran.
And so, today, insha Allahu ta'ala, we're gonna
talk a little bit about the reality of
1 of the aspects that we should be
all aware of, and that is the issue
of idah. What does idah mean?
Idah means to count. Adahu means he counted
it. And technically,
it is to count the time frame
between the ending of 1 nikah of a
lady and the beginning of a new nikah.
And this is something that the Quran has
been very explicit about. So the idah is
the time frame.
The idah is the interim period.
That when does 1 nikah end
and another nikah may begin, there is an
interim. That interim, you count it. That interim
is called 'iddah. And the Quran has given
very explicit rulings about the 'iddah, and the
ahadith clarify these rulings. And of course, there's
a lot of wisdoms of why there is
an i'dah. The primary wisdom, it is common
sense. And that is lineage.
Children, we never want to mix up lineage
whose child belongs in the womb of this
lady. If you get married and then divorced
and then marry immediately after that, there's gonna
be a confusion
whose child it is. But there are other
wisdoms as well of the i'da. And our
scholars mentioned, you know, many of these wisdoms.
But I need to make a point here
before we move on that the average person
a lot of times gets confused between the
wisdom of a ruling and between the shar'i
cause. The wisdom is called the hikmah. The
shar'i cause is called an illah. The 2
are not the same. Why is this? The
wisdom
is generally present, but not necessarily.
And just because the wisdom is not present,
it doesn't change the ruling. The ruling is
not based on the wisdom. The ruling is
based upon the cause. Let me give you
a simple example you will under all understand,
insha'Allah.
We all know when we're traveling, what can
we do?
Qasr. What else can we do about fasting?
Not fast. We could we're not allowed we're
allowed to break the fast. Right? What is
the wisdom? It is obvious. What is the
wisdom?
When you're traveling, life is difficult.
So the wisdom,
Allah has made life easier
that you may do Qasr and you may
break the fast of Ramadan. Now, suppose somebody
says, oh, but I'm traveling in an air
conditioned plane. And in my case, I don't.
This wisdom is not found.
May He still break the fast? Yes or
no?
Yes.
Why? Because the cause, which in Arabic is
called illah. The cause is present. So to
make it clear, the wisdom
generally
is present.
But the ruling of Islam is based upon
not the wisdom, but
the cause. Is that clear? I'm giving this
as a general rule. You should be aware
of it in every case, whether it's i'da,
whether it's any issue, whatsoever.
Now, this is not a detailed fiqh class.
Every student of fiqh will study the the
book of Talaq. And within the book of
Talaq, the biggest chapter within the book of
Talaq is 'idah. And so this is not
a fiqh class. I'm not gonna go over
all the details, but I do want you
to be aware of a very basic reality.
And that is the Quran has mentioned multiple
categories of i'dah for multiple scenarios. And the
books of fiqh, it's their job to then
extrapolate
about those scenarios that are a bit more
rare, a bit more, you know, less common.
So what does the Quran mention? The Quran
mentions a number of iddas. The first iddah
is the iddah of the lady
whose husband has died. She becomes a widow.
So this is the idah of the mutawafaa
and hazujuhah, the 1 whose husband dies. The
idah of the widowed lady. And Allah says
in the Quran that, waladina yutawafaniminkum
wayathrunaswajan
Very explicit.
Whoever amongst you dies
leaving behind a wife, they must wait
4 months 10 days. This is the idah
of the widow. Explicit in the Quran, there
is no controversy whatsoever. When a husband dies,
then the wife remains in a special type
of iddah. It's called Ihdaad.
So it's a special type of iddah. Other
rulings apply, which again is not the time
to get into. I've given a whole lecture
about it. You can find it online. So
this is the idah of the 1 who's
whose,
husband dies. The second category of idah in
the Quran
is the idah of the divorced lady
who has lived with her husband. So she
has had a normal marriage. The 2 have
been intimate. They've had conjugal relations. And then
for whatever reason, the husband decides to divorce
his wife. In this case, Allah Subhanahu Wa
Ta'ala says, wal mutallaka2
yatharabasnabiinfusinna
thalaathatakuroo
The mutallaka,
the 1 who has been given divorce, they
must wait, thalaaataquroo,
3 menstrual cycles.
They must wait 3 menses.
And it is not allowed for them to
hide if they are pregnant. Allah says in
the Quran, wallayahilullahhunnah
So the onus of the burden, the testimony
goes on the woman. It's in the clear
in the Quran. The
has to testify when it is over, when
the whether she's pregnant or not. And Allah
says it is not allowed for the woman
to be quiet if she is pregnant, she
has to tell the husband or they even
if it's an ex husband, she must tell
the husband that or the ex husband that
she is pregnant. So this is the second
category.
Now, in case the woman has reached postpartum,
I e, she is no longer
menstruating or for whatever reason she has never
had menses. Allah says in the Quran,
In case the woman is not menstruating,
she must wait 3 months.
So if she is menstruating, it is 3
menstrual cycles. And if she's not menstruating for
whatever reason, old age or she has a
medical issue, whatever it is, then it will
be 3 months. So this is second category
of idah, and that is the divorced lady
that has lived with her husband. The third
category from the Quran,
the divorced lady who has not lived with
her husband, I e, it might happen, a
nikah takes place, and the husband wife do
not live together. There's no intimacy. And for
whatever misunderstanding, whatever it might happen, then without
having lived together, they end up divorcing.
Right? In this case, Allah explicitly says in
the Quran that
in case you marry a woman, thummatalaktumuhunna
min ghaydum min ghaydantamasuhuna
famalakumalayhinna
minidatintaatadunaha
If you divorce a lady without having touched
her, there is no idah that you must
do upon her. So So there is no
idah for the 1 that even if anika
takes place, but the husband and wife have
not been together. Now pause here. Footnote, There
is a controversy between the scholars. What constitutes
being together?
Is it actual intimacy, sexual relations, or is
it privacy?
2 madhab say privacy. Why? Because we don't
ask what happens. If they were private, then
we consider it to be nikah and it's
not befitting to us. What did you do?
Right? And 2 madhhab say, no. No. It's
intimacy. So if they went privately somewhere, but
they didn't have intimacy, they will tell the
witnesses and the wali that we didn't we
weren't intimate. And this is an Iqtalaf amongst
the madhhabs. But there is agreement that if
they have lived together conjugally and they have
been husband and wife, then this ruling does
not apply. The only Iqtalaf, what constitutes,
touching them? The Quran says, and you haven't
touched them.
Does it literally mean touch them?
Or is there a metaphor
of conjugal relations? And this is a classic
controversy from the time of the Sahab and
Tabir. 2 madhabs here, 2 madhabs there. And
that's for the 1 who who has the
nikah without
intimacy or without privacy.
And then there's another category.
And this category is hotly debated amongst the
fuqaha. And this is the category of hulah.
Hulah. What is hulah?
Hulah is when the wife says to the
husband divorce me.
And she is willing to give something,
a partial Mahar or the full Mahar. Like,
for whatever reason, sometimes the husband wants to
divorce the wife. This is called talaq.
What if the wife does not like the
marriage? And the wife says, I don't want
to remain married. So there is something called
khulah.
And Khulah means
the lady has given up something. Literally, Khalaashi
has given something back, so she has thrown
something back at him. Basically, you may take
the Mahr back or you may take whatever
you she negotiate. She's allowed to negotiate partial
Mahr, full Mahr. The scholars say no husband
should take more than the mahar. That's really,
really cheap and demeaning, aoodhubillah. But she may
give full mahar. She may give 70%, she
may give 50%. Whatever it is, is, it's
on
her. And in this case, a khulah takes
place. Now, this is a controversy in fiqh.
What is the idah of the 1 who
does khulah? You understand this question. Right?
And I will say 2 and a half
of the madhabs. Why do I say half?
Because within 1 madhab, there's even within the
madhab, there's controversy. Okay. 2 and a half
madhab say it is the same as the
talaq.
And 1 and a half madhab actually says
it is 1 menstrual cycle
or 1 month. And this is the position
of many of the Hanbali scholars. Ibn Taymiy
ibn al Qayyim were very adamant they have
their explicit evidences for this. That when the
lady
asks
for a talaq,
and the lady is the 1 who initiates
the talaq, this is called the khulah. And
when the khulah is done according to this
position, then it will only be 1 month
or 1 cycle. As I said, this is
a minority opinion. 1 madhab and a half
if you like. And the majority opinion, it
will still be 3 months like the rest.
And why this is the case is beyond
the scope of our, technical issue over here.
And then there's 1 final category, and that
is more complicated things, which we're not gonna
get into. If the nikah was made fasah,
null and void. If the nikah was made
and
this is technical terms. I just want you
to know in each of these cases, there's
more
controversy and, you know, scholars will differ how
much idah will be given. So this is
a more gray area. Now in case there
is ambiguity,
in case 1 follows, you know, 1 madhab
over the other, there is no question
sharia would not impose any punishment in a
gray area.
In a gray area like this, there is
no question. There is no hadh penalty according
to the Sharia of a misunderstanding
in this regard. And
even if it was confirmed
that 2 people did something unethically they shouldn't
have done, this will not constitute a head
penalty. This will constitute at max what is
called the tazir. And this is left to
this discretion of the, judge. What should be
done? What is the permissibility
or what is the maximum of tazir? Now
this is basic fiqh. And we all know
that in light of what is happening right
now, I'm not just discussing basic fiqh. We
have to get to the awkward reality of
something taking place in the world. But to
be fair, and wallahi, I'm doing this because
I have an iman in the eyes of
Allah, it is not appropriate for me or
anybody
to speak about a specific case
without knowing the details,
yaqeenan.
And without knowing exactly what each party said
and without knowing the facts. And as Allah
is my witness, this is not because a'udhubillah.
I am scared of speaking the truth. I
have spoken the truth on many issues, but
it's not appropriate for any person of knowledge
to speak about a specific case definitively
without knowing the definitive facts. So because of
this, I will speak generically
without mentioning names, without mentioning countries. Not because
I'm scared of the criticism, the critic, but
because Amanah and Sharia and even any court
of law, not even Sharia, any court of
law will say, if you don't know the
facts definitively,
you have no right to make a definitive
verdict. So because of this, I will speak
generically. But insha Allah, it's clear what I
am speaking generically even if I don't mention,
names or countries or details. So
first and foremost,
if 2 people have had a nikah done,
we have to ask what was the previous
nikah's ending? Was it a khula?
Was it a fasq? Was it a talaq?
This is the first area of controversy because
each 1 will have a different riddah,
and each 1 will have different rulings apply.
And as we said, according to the different
madhhabs, some of the madhhabs, if it was
initiated on her side and she asked for
a khulah, some of the madhhabs would allow
an 'idah
for 1 cycle. 1 1 menstrual or 1
month. If she wasn't menstruating will be 1
month. And if, I'm just saying, if a
person asked a Mufti and the Mufti gave
this fatwa, no other madhab can imprison somebody
for following another madhab. You cannot
criminalize
a legitimate area of difference. And we don't
know
who initiated the talaq. There's controversy in this
regard in this particular case. So this is
an area of ambiguity.
A second area of ambiguity.
If the husband and wife differed when exactly
the divorce was initiated. And 1 said, no.
No. This was the day. And the other
said, no. No. This was the day. In
this case, each testimony is canceling the other.
We would have to get evidence from outside.
And in case there was no evidence from
outside,
no court can side with 1 against the
other because each testimony is canceling the other
out. So if you have a case of
differing when did the talaqt even if we
say talaqt. And 1 says, no. Well, the
Talak took place this month. Other says, no,
Talak took place that month. Unless they bring
evidence, once again, there is no question the
Sharia would not impose a penalty. There is
no penalty. This is an ijtihad of your
memory. And each memory is saying, oh, this
versus that. Another point, which is really in
my opinion, the most important point. And that
is
even if it was verified that this was
the day, and even if we know a
talaq took place. So both of these are
ambiguous in a particular case. Even if we
knew it's talaq, it's not it's not khulah.
And even if we know the date, this
is the most important point in my humble
opinion.
When it comes
to menses
and when it comes to a woman's cycle,
the sharia is clear.
Who gives the testimony?
The lady.
The lady gives the testimony. It is not
a man's business
to go demanding proof. A'udhubillah How disgusting is
that? When did your menses finish? This is
not my opinion. This is the unanimous consensus
of the ulama of Islam. And I have
a whole bunch of quotes. I don't need
to quote them ibn Ba'tal said, ittafaqoo.
They have all agreed that when it comes
to the shahada of the hayl, the shahada
of giving birth, the shahada of the child,
the shahada of personal defects in a woman's
body, that the testimony of a woman counts,
not that of a man. We don't open
this door for a man. The Hanafi scholar
Al A'ini said, Ittafakoo
It is allowed that the Shahadah of a
lady about the menses is taken. So when
a woman says her menses are over,
that's between her and Allah. If she's lying,
that's Allah's punishment on her. We cannot get
involved
and say, Oh, you have to prove to
me that your menses are over. Audubillah. Audubayr
think about this. Right? When the lady says
I have done 3 menses and I am
now allowed to get married. Then the lady's
testimony of when her menses finish, the lady's
testimony
will be definitive.
And no 1 has the right to challenge
this. And this is something all of the
madahib agree upon. And as I said, it's
even common
sense. Ask, wallahi, ask me. You ask yourself,
who's gonna get testimony? What type of testimony
are you gonna have? Prove to me that
your menses are over. It is against the
akhlaq of the sharia. We get involved in
something like this. When the lady says it,
Allah says in the Quran, it's not allowed
for you. Okay. This is between her and
Allah. This is a zajr, a harsh commandment.
Allah is saying to the lady, you had
better not lie. That's between her and Allah.
In case even if she lied,
the punishment is on her. We do not
get involved and no court will demand from
her, you must prove your testimony. This is
between her and Allah Subhanahu Wa Ta'ala. And
the sharia requires we
take her testimony at face value.
Especially, if she is not known to be
a liar, she has lived a especially even
more so than we take her word and
we don't get involved in the details of
the nitty gritty of this regard. So
in reality,
generically speaking,
if a court case in the first time
of a country's history
becomes involved in the pettiness of she's wrong
in her menses
or her idah didn't finish. And for the
first time in that country's history, they take
a high profile politician or person, and they
use the Sharia
and some ambiguous rulings to make some case
against him. Wallahi, we must point out from
the sharari perspective.
We must point out this doesn't make any
sense. It doesn't make any sense from the
shari'a because of all these ambiguous reasons. We
don't know whether it was talah, whether it
was khas, whether it was khulal. We don't
know the exact date there is a difference
of opinion. We don't know
when the had finished and she says it
finished. Based on all of this, the shari'a
would rule, we take on face value. And
even if
even if a mistake occurred, this is not
a criminal mistake. We would say, okay, reperform
the nikah and do the nikah properly. There's
no criminality
involved over here. And so without a doubt,
when we find that there seems to be
Allahu, Allah knows best, but there's clearly something
strange when this issue has never been problematized
in any other person in the entire country's
history. And now for the first time, you
find a prominent politician and you use something
like this to jail this person and the
person's spouse. With that without a doubt, we
say it appears it appears that you're playing
games with the Sharia. And you're using the
Sharia for your own personal vendettas.
And we must point out when you involve
the Sharia, it's our right to speak out
and defend the Sharia. Why? Because when you
misuse the Sharia, when you abuse the Sharia,
many things happen. 1st and foremost, you're making
a mockery of Islam.
Secondly, the non practicing Muslims, they themselves are
gonna feel weird. What is going on here?
Thirdly, the non Muslims will make fun of
our religion. They're gonna not understand this. And
fourthly, and most importantly,
you know, honestly, it's 1 thing you do
dhun and that's bad enough. When you bring
in Allah to justify your dhun, Wallahi, you've
reached a different level. It's 1 thing you
do dulm, that's bad. It's 1 thing you're
unjust, that's bad. When you quote Allah to
justify the injustice,
now you have reached a whole different level
of dulm because now the dulm is not
just between you and the person. Now you
are wa antushikubillahhamalummalumidalbina sutalah wa antakuluallallallahi malataalamoon. The
biggest sins in the Quran,
The biggest sins are shirk, and then to
speak about Allah with what you do not
know. And Allah says in the Quran, walataqululimatasifu
alsindlukumalkadibahada
halalummaaadahharamun
litaftaraalullahal
kadib Do not falsely ascribe to Allah, this
is halal and this is haram. This is
iftira and slandering against Allah. And Allah says,
Those who slander against me shall never be
successful.
So we clearly point out, we clearly point
out that if the Sharia is being used
to justify Dhulm, the Sharia is free of
that justification.
And the Sharia has nothing to do with
that justification.
And the onus and the burden and the
sin is on those who make a mockery
of the sharia and attempt to use the
sharia to cover up their their own crimes.
Had they been criminal just between them and
the person, that will be bad enough, and
we can speak against that. But the minute
they bring in Allah, and they bring in
Sharia, and they bring in Islamic law, then
our anger becomes even more. And we say,
clearly, you are using double standards. And it
appears that you are using the name of
Allah to justify your own personal vendettas. So
my appeal to those who are involved in
any such case around the world that they
should really fear Allah Subhanahu Wa Ta'ala. They
have reached a level of dulum where they're
justifying a personal vendetta. If that is the
case, by using the name of Allah, this
has crossed a red line that there is
no coming back from unless they publicly repent
and they ask Allah's forgiveness. From my side,
we say the Sharia is free of the
shenanigans
of those who misuse and abuse it. The
Sharia is a pure and beautiful code and
has nothing to do with this type of
random imprisonment for something over a personal private
matter between a woman and her menses in
cycle, the Sharia is not gonna get involved
much less imprison somebody of this nature. So
we say this is iftira and lying against
the Sharia, and it has nothing to do
with the religion of Allah Subhanahu Wa Ta'ala.
We ask Allah Subhanahu Wa Ta'ala for people
around the globe to respect the Sharia and
to not use and misuse it for their
own personal issues. And Allah Subhanahu Wa Ta'ala
knows best. Wajazakumullahakir,
wasalamu alaykumullahahu
warakatu.