#692: The `Iddah of a Divorced Woman from an Unconsumated Marriage

QUESTION:

“There is a question that needs an urgent response… In a situation where a bro got married to a sister..(aqdun nikkah) and they separated after few weeks without having any intimacy between them. How should this divorce be done? Do they just go separate ways or she will have to do the complete iddah?”

ANSWER:

Alhamdulillāh!

We ask Allāh to guide the couple and bless the decision they have made, amīn.

As for this, Allāh has mentioned in Sūratu Al-Ahzāb:

يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا نَكَحْتُمُ الْمُؤْمِنَاتِ ثُمَّ طَلَّقْتُمُوهُنَّ مِنْ قَبْلِ أَنْ تَمَسُّوهُنَّ فَمَا لَكُمْ عَلَيْهِنَّ مِنْ عِدَّةٍ تَعْتَدُّونَهَا فَمَتِّعُوهُنَّ وَسَرِّحُوهُنَّ سَرَاحاً جَمِيلاً

“O You who believe, if you have married women and then divorced them before you have touched them (intimately), then you do not have any Iddah terms to count over them. So give them a gift and let them go in a beautiful manner.”

Allāh referred in this verse to the fact that there is no ‘Iddah upon her for him however, he needs to compensate her with something for the loss that she has suffered of an unsuccessful marriage.

For this reason, the Ulamā are agreed that if a woman is divorced before a consummation of the marriage, she has no ‘Iddah to observe in lieu of this divorce. They are also agreed that if the case was death of the husband, then she must observe the ‘Iddah of a woman whose husband has passed away though the marriage was not consummated.

To make, the gift mentioned, in the verse clearer, Allāh referred to this in Sūratu Al-Baqarah:

لاَّ جُنَاحَ عَلَيْكُمْ إِن طَلَّقْتُمُ النِّسَاء مَا لَمْ تَمَسُّوهُنُّ أَوْ تَفْرِضُواْ لَهُنَّ فَرِيضَةً وَمَتِّعُوهُنَّ عَلَى الْمُوسِعِ قَدَرُهُ وَعَلَى الْمُقْتِرِ قَدْرُهُ مَتَاعاً بِالْمَعْرُوفِ حَقّاً عَلَى الْمُحْسِنِينَ

“There is no blame on you if ye divorce women before consummation or the fixation of their dower; but bestow on them (A suitable gift), the wealthy according to his means, and the poor according to his means;- A gift of a reasonable amount is due from those who wish to do the right thing”

Al-Hāfidh ‘Imāduddīn Ibn Kathīr – rahimahullāh – said:

__”Allah allowed divorce after the marriage contract and before consummating the marriage. Ibn Abbas, Tawus, Ibrahim and Al-Hasan Al-Basri said that; touched’ (mentioned in the Ayah) means sexual intercourse. The husband is allowed to divorce his wife before consummating the marriage or giving the dowry if it was deferred. The Mutah (Gift) at the time of Divorce. Allah commands the husband to give the wife (whom he divorces before consummating the marriage) a gift of a reasonable amount, the rich according to his means and the poor according to his means, to compensate her for her loss. Al-Bukhari reported in his Sahih that Sahl bin Sa`d and Abu Usayd said that; Allah’s Messenger married Umaymah bint Sharahil. When she was brought to the Prophet he extended his hand to her, but she did not like that. The Prophet then ordered Abu Usayd to provide provisions for her along with a gift of two garments.”__

Then there is a third verse to this regard.

Allāh says:

وَإِن طَلَّقْتُمُوهُنَّ مِن قَبْلِ أَن تَمَسُّوهُنَّ وَقَدْ فَرَضْتُمْ لَهُنَّ فَرِيضَةً فَنِصْفُ مَا فَرَضْتُمْ

“And if you divorce them before you have touched them and you have appointed for them a Sadāq, then you must give them half of what was appointed.”

Ibn Kathīr said:

“Ali bin Abi Talhah reported that Ibn Abbas, may Allah be pleased with him, said:

“If the dowry had been named, she would not be entitled to more than half, but if the dowry is not been named, he should give her a gift according to his means, and this is the “beautiful manner (referred in the verse)'”

That stated, Imām Ash-Shawkānī – rahimahullāh – said in Fat’hu Al-Qadīr:

__”Ibn Jarīr, Ibn Al-Mundhir, and Ibn Abī Hātim recorded from Ibn ‘Abbās that he said: This is as regards a man who married a woman and then divorced her without consummating the marriage with her. If then he divorces her, she leaves him without any ‘Iddah and she may marry whosoever she wills.”__

But as stated above, he must compensate her with either half of the Sadāq if it has been stipulated, or a gift if it hasn’t been stipulated. And Allāh knows best.

Bārakallāhu Fīkum
Jazākumullāhu Khayran

13th Rabi’u ath-Thanni 1440H.

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