12 This is in respect of the women who no longer menstruation and have reached menopause because of age. Their waiting-period will be reckoned from the day divorce was pronounced on them and three months imply three lunar months. If divorce was pronounced at the commencement of the lunar month. it is agreed that the waiting-period will be reckoned with regard to the sighting of the new moon; and if it was pronounced somewhere in the middle of the month, according to Imam Abu Hanifah, three months will have to be completed reckoning each month of 30 days. (Badai' as-Sami ) .
As for the women whose courses are irregular due to sonic reason, the jurists have held different opinions:
Hadrat Sa'id bin al-Musayyab says that Hadrat `Umar ruled: "If the woman who has been divorced stops having menses after having them once or twice after the divorce, she will wait for 9 months. If signs of pregnancy appear, well and good, otherwise after the passage of 9 months, she should observe the waiting-period of three additional months. Then she would be lawful for marriage to another person.
Ibn 'Abbas, Qatadah and `Ikrimah say that the waiting-period of the woman who has not menstruated for a year, is three months.
Ta'us says that the waiting-period of the woman who menstntates once in a year, is three mensturations. This very opinion has been reported from Hadrat 'Uthman, Hadrat 'Ali and Hadrat Zaid bin Thabit.
Imam Malik relates that a person Habban by name divorced his wife during the period when she was suckling her child. A year passed on it, but she did not have the menses. Then the man died. The divorced wife laid claim to inheritance. The case came before Hadrat `Uthman. He consulted with Hadrat 'AIi and Hadrat Zaid bin Thabit, and gave the decision that the woman was an heiress. The .argument given was that the woman was neither of those women a who might have desaired of menstruation, nor of those girls who may not have menstruated yet: therefore, up till the husband's death she was on the menses she had discharged last, and had still to pass her waiting-period.
The Hanafis say that the waiting-period of the woman, who no longer menstruates, which may not be on account of menopause so that there may be no hope of her having it later will either be reckoned from the menstnration if she has it in the future, or in accordance with the age at which women generally reach menopause, and after attaining that age she will pass three months of the waitingperiod in order to be released from the marriage bond. The same opinion is held by Imam Shafe'i. Imam Thauri and Imam Laith, and the same also is the view of Hadrat 'Umar Hadrat 'Uthman and Hadrat Zaid bin Thabit.
Imam Malik has adopted the view of Hadrat 'Umar and Hadrat 'Abdullah bin 'Abbas and it is this: The woman will first pass nine months. If she dces not have her menses during thin period, she will pass three months of the waiting-period like like the woman who has despaired of menstruation, Ibn al-Qasim explaining the viewpoint of Imam Malik says: The period of nine months will be reckoned from the day she became free from the previous menstrual discharge and not from the day divorce was pronounced on her. (AlI these have been taken from al-Jassas, Ahkam al-Qur'an and al-Kasani, Badai as-Sana`i) .
Imam Ahmad bin Hanbal says that if the woman whose waiting-period started from menstnration despairs of menstnration during the waiting-period, she will be required to pass the waiting-period of the menopausal woman and not of the women who menstruate regularly. And if she stops menstruating and the cause of the cessation is unknown, she will first pass nine months in the doubt of pregnancy, and then will have to complete three months of the waiting-period, And if the cause of the cessation of the menses becomes known, e.g. a disease, or suckling, or some other cause, she will lie in the waiting-period till the tithe that either she starts having the menses again so that the waiting-period may be reckoned in accordance with the courses, or she reaches menopause and may pass the waiting-period of the menopausal woman. (Al-Insaf) .
13 They may not have menstruated as yet either because of young age, or delayed menstrual discharge as it happens in the case of some women, or because of no discharge at aII throughout life which, though rare, may also be the case. In any case, the waiting-period of such a woman is the same as of the woman, who has stopped menstruation, that is three months from the time divorce was pronounced.
Here, one should bear in mind the fact that according to the explanations given in the Qur'an the question of the waiting period arises in respect of the women with whom marriage may have been consummated, for there is no waiting-period in case divorce is pronounced before the consumation of marriage. (Al-Ahzab: 49) . Therefore, making mention of the waiting-period for the girls who have not yet menstruated, clearly proves that it is not only permissible to give away the girl in marriage at this age but it is also pemssible for the husband to consummate marriage with her. Now, obviously no Muslim has the right to forbid a thing which the Qur'an has held as permissible.
The girl who is divorced in the state when she has not yet menstruated and then she starts having the menses during the waiting-period, will reckon her waiting-period from the same mentruation and her waiting-period will be reckoned just like the woman who menstruates regularly.
14 The consensus of scholarly opinion is that the waiting-period of the pregnant divorced woman is till child birth. But a difference of opinion has occurred about whether the same also applies to the woman whose husband may die during her pregnancy. The dispute has arisen because in Al-Baqarah: 234 the waiting-period of the woman whose husband dies has been laid down as four months and ten days, and there is no mention whatever whether this injunction applies to all widows generally or only to those who are not pregnant,
Hadrat 'Ali and Hadrat `Abdullah bin 'Abbas, reading both these verses together, have drawn the rule that the waiting-period of the pregnant divorced woman is till child-birth, but that of the pregnant widow is the longer of the two periods, whether it be of the divorced woman or of the pregnant woman. For example, if delivery takes place before four months and ten days, she will have to observe a waiting period of four months and ten days, and if it dces not take place till then, her waiting period will come to an end at delivery. The same is the viewpoint of the Imamiah sect of the Shi'as.
Hadrat 'Abdullah bin Mas'ud says that this verse of Surrah At-Talaq was sent down after the verse of Surah Al-Baqarah; therefore, the later injunction has made the earlier injunction particularly applicable to the non pregnant widow, and has laid down the waiting-period of every pregnant woman as till child birth, whether she is divorced or widowed, Accordingly, whether delivery takes place immediately after the husband's death, or takes longer than four months and ten days, the woman's waiting-period in any case will come to an end at the birth of the child. This view is supported by this tradition of Hadrat Ubayy bin Ka'b. He says, "When this verse of Surah At Talaq came down, I asked the Holy Prophet 1 upon whom be AIIah 's peace) : Is it both for the divorced woman and for the widow?" The Holy Prophet replied: "Yes." In another tradition the Holy Prophet further explained it thus: "The waiting period of every pregnant woman is till child-birth." (Ibn Jarir, Ibn Abu Hatim. Ibn Hajar says that although its reliability is questionable, yet as it has been related through several chains of transmitters, one has to admit that it has some basis) . More than that, it is further confirmed by the incident concerning Subai'ah-i Aslamiyyah which occurred in the sacred time of the Holy Prophet (upon whom be Allah's peace) himself. She became a widow during her pregnancy and a few days after her husband's death (according to some traditions 20 days, according to others 23 days. 25 days, 40 days or 35 days) she delivered her burden. The Holy Prophet was asked for his ruling concerning her and Ire permitted her to re-marry. This incident has been related by Bukhari and Muslim in different ways on the authority of Hadrat Umm Salamah. This same incident has been related by Bukhari Muslim, Imam Ahmed Abu Da'ud, Nasa`i and Ibn Majah with different chains of transmitters on the authority of Hadrat Miswar bin Makhramah also. Muslim has cited this statement of Subai'ah-i Aslamiyyah herself: 'I was the wife of Hadrat Sa'd bin Khawalah. He died during the Farewell Pilgrimage when I was pregnant. A few days after his death I gave birth to a child. A man told me that I could not remarry before the expiry of four months and ten days. I went and asked the Holy Prophet (upon whom be Allah's peace) and he gave the verdict: You have become lawful as soon as you gave birth to the child: you can re-marry if you so like'." This tradition has been related briefly by Bukhari also.
This same viewpoint has been reported from a large number of the Companions. Imam Malik, Imam Shafe'i, 'Abdur Razzaq, Ibn Abi Shaibah and Ibn al-Mundhir have related that when Hadrat `Abdullah bin `Umar was asked concerning the pregnant widow, he replied that her waiting-period is till childbirth. At this a man from among the Ansar confirmed, saying: "Hadrat `Umar had said that even if the deceased husband had not yet been buried,and his body still lay on bed in the house and his wife gave birth to a child, she would become pure and lawful for remarriage." The same opinion was held by Hadrat Abu Hurairah, Hadrat Abu Mansur Badri and Hadrat `A'ishah, and the same has been adopted by the four Sunni Imams and the other early jurists.
The Shafe`is say that if the pregnant woman has more children than one in her womb, her waiting-period will come to an end at the -birth of the last child; even if it is still born, the waiting-period will expire at its birth. In case of abortion, if the mid-wives, on the basis of their knowledge and experience, state that it was not merely a piece of flesh but had human form, or that it was not a tumour but a human embryo, their statement will be admitted and the waiting period will expire. (Mughni, al-Muhtaj) . The viewpoint of the Hanbalis and the Hanafis is also very close to it. But in case of abortion, their viewpoint is that unless the human form is clearly visible, the mid-wives' statement that it is human embryo, will not be admitted and this will not bring the waiting-period to an end. (Bade ias-Sane i; AI-Insaf) . But in the modem times by means of medical investigation it can be easily ascertained whether what has been expelled from the womb was actually something of the nature of human foetus or a kind of tumour or congealed blood. Therefore, whenever it is possible to obtain expert medical opinion, it can be easily decided whether what is described as abortion, was really abortion or not, and whether it has brought the waiting-period to an end or not. However, in cases when such medical investigation is not possible, the viewpoint of the Hanbalis and the Hanafis itself is preferable and it is not fit to rely on the ignorant mid-wives.
