Iddah when a marriage was not consummated

http://islamqa.org/hanafi/daruliftaa/8460

After divorce, is it necessary for a woman to observe the Iddah, even if there has never been any physical relationship between the husband and wife?

ANSWER

In the name of Allah, Most Compassionate, Most Merciful,

There are two scenarios to your question:

1) If divorce occurs before consummation of marriage and before the husband and wife were able to be together in privacy (khalwa), then, upon divorce, the woman does not have to observe the waiting period (idda). She is free to re-marry immediately after the divorce. Allah Most High says:

“O you who believe, when you marry believing women and then divorce them before you have touched them, then they have no obligation of any waiting period (idda) for you that you may count…” (Qur’an 33:49)

The words “before you have touched them” in the above verse refers to sexual intercourse; whether actually, or effectively such as foreplay or being in privacy. (See: Ma’arif al-Qur’an 7/179)

2) If divorce occurs after consummation of marriage, or the marriage is not consummated but the couple have been in seclusion, then, upon divorce, the woman will have to observe the waiting period (idda).

The renowned classical Hanafi jurists Imam Haskafi and Imam Ibn Abidin (may Allah have mercy on them) both explain that the cause (sabab) for the obligation of the Idda is marriage being contracted, and then this marriage contract being reinforced by consummation or that which takes the same course as consummation such as death or remaining in privacy, and thereafter, separation (furqa) taking place. (See: Radd al-Muhtar ala al-Durr al-Mukhtar 3/504)

The meaning of “privacy/seclusion (khalwa)” is that the married couple remain alone in a way that sexual intercourse is possible even if there is a Shari’ah-based reason preventing them from having sex (khalwa al-fasida) such as the woman is fasting or she is on her menstrual period. As such, even if the couple did not touch each other but they were together alone even for a short period of time, then upon divorce, the woman will have to observe the Idda. (Ibid)

The above explanation also serves as an answer to the oft-asked question: Is a woman required to observe the Idda in spite of being separated from her husband for a long time? In light of the above, it becomes clear that as long as the couple have been in privacy after marriage, she is obliged to observe it upon divorce even if she had been separated from her husband for many years.

Unfortunately, many Muslims are mistaken in believing that the sole reason for the obligation of the Idda is to ensure that the woman’s womb is clear. Undeniably, this is one of the primary wisdoms but there are many other reasons and wisdoms for the Idda becoming obligatory such as expressing sadness over an unfortunate incident. As such, even if divorce occurs after many years of separation, the woman must observe the Idda, provided she had been in privacy with her husband once since being married.

And Allah knows best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK

http://islamqa.org/hanafi/daruliftaa/8379

What is the Islamic ruling on pronouncing 3 divorces in one go before consummation of marriage? Do they result in 3 divorces or is it only one divorce?

ANSWER

In the name of Allah, Most Compassionate, Most Merciful,

As explained comprehensively in a previous answer titled ‘The Issue of Three Divorces’ that if a man pronounces three divorces at once to his wife, then all three divorces come into effect, and the woman is free to re-marry after the termination of her waiting period (idda). It was mentioned, in light of many evidences, that this is the position taken by all four Sunni schools of Islamic law and the overwhelming majority of the Sahaba (Allah be pleased with them all) and the Tabi’un (followers).

However, this ruling applies to the standard situation where the marriage has been consummated. If the marriage is not consummated, however, then a different rule applies, as follows:

The jurists (fuqaha) of the Hanafi School assert that when a marriage is not consummated, three divorces pronounced in one sentence do result in three; but if they are pronounced in separate sentences, then only the first divorce comes into effect, and not the second and third one.

It is stated in Al-Fatawa al-Hindiyya:

“If a man pronounces three divorces to his wife before consummating the marriage, all three come into effect. However, if he separates the [pronouncement of three] divorces, she will be irrevocably divorced from him with the first one; hence, the second and third divorces will not come into effect. (Al-Fatawa al-Hindiyya 1/373)

Similarly, Imams Haskafi and Ibn Abdidn (may Allah have mercy on them) have explained in Radd al-Muhtar ala ‘l-Durr al-Mukhtar that if a man, before consummating the marriage, says to his wife, “I divorce you thrice/three times” then all three divorces come into effect. However, if he utters three separate pronouncements of divorce such as “I divorce you, I divorce you, I divorce you”, then it only results in one divorce.

The reason for this, they explain, is that when a marriage is not consummated, the wife is irrevocably divorced (ba’ina) with the first pronouncement of divorce [i.e. “I divorce you”], since there is no obligation upon her to observe the waiting period (idda) as mentioned by Allah Most High in the Qur’an: “O you who believe, when you marry believing women and then divorce them before you have touched them, then they have no obligation of any waiting period (idda) for you that you may count…..”(Qur’an 33/49)

As such, the second and third pronouncements of divorce will be directed at a woman who has already been irrevocably released from the marriage and who is not observing the Idda. Conversely, when all three divorces are pronounced in one sentence [i.e. “I divorce you three times”], then due to them all being directed at one’s wife collectively, they will all come into effect. (Radd al-Muhtar 3/284-286)

Finally, it is important to note here that the above ruling [i.e. the second and third divorces not coming into effect] applies when, as discussed, the marriage is not consummated and neither have the couple been in privacy in a way that there was no possible deterrent from having sex (khalwa al-sahiha). As such, even if the marriage was not consummated but the couple remained in privacy, the second and third divorces would stand.

This is due to the fact that ‘Khalwa (being in privacy)’ here has the same implication as that of consummation of marriage. A woman divorced before consummation but after ‘Khalwa’ is also obligated to observe the waiting period (idda), and as such, the subsequent divorces will be pronounced by the husband in this period. (Radd al-Muhtar ala ‘l-Durr al-Mukhtar 3/119)

And Allah knows best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK

http://islamqa.org/hanafi/daruliftaa/8484

I pronounced 3 divorces in 3 separate sentences (I divorce you, I divorce you, I divorce you) to my wife. We have been married for over a year, but our marriage is yet to be consummated. Although we have been in privacy and tried to consummate our marriage on numerous occasions, this has been prevented due to a medical problem with my wife. She visited a lady doctor who advised that it seems she has a condition called Vaginismus, which refers to involuntary tightness of the vagina during attempted intercourse. The tightness is actually caused by involuntary contractions of the pelvic floor muscles surrounding the vagina. The woman does not directly control or ‘will’ the tightness to occur; it is an involuntary pelvic response. She may not even have any awareness that the muscle response is causing the tightness or penetration problem.
Can you please advise whether in such conditions all 3 divorces were valid or not. I have read a ruling on your website that 3 divorces pronounced in 3 separate sentences result in only one divorce before consummation of marriage. If so, we would like to re-marry.

ANSWER

In the name of Allah, Most Compassionate, Most Merciful,

As explained in detail in a previous answer, which you have referred to, titled: ‘Three Divorces before Consummation of Marriage’ that according to the Hanafi School when a marriage is not consummated, three divorces pronounced in one sentence, such as saying: ‘I divorce you thrice/three times’ do result in three; but if pronounced in separate sentences, such as saying: ‘I divorce you, I divorce you, I divorce you’ only the first divorce comes into effect, and not the second and third one. (See: Al-Fatawa al-Hindiyya 1/373)

The reason for this is that the pronouncement of three divorces in one sentence results in all three being directed to one’s wife jointly, and as such, they all come into effect, even if the marriage is not consummated. However, when the pronouncement takes place in three separate sentences in a non-consummated marriage, the wife is irrevocably and absolutely divorced with the first pronouncement of divorce, because she is not obliged to observe the post-marriage waiting period (idda) due to the marriage not being consummated. As such, the second and third pronouncements of divorce will be considered futile. (See: Radd al-Muhtar ala ‘l-Durr al-Mukhtar 3/284-286)

However, this ruling of the second and third divorces not being counted applies only if, in addition to the marriage not being consummated, the couple since marriage were not alone in a way that they had an opportunity to have sexual intercourse (khalwa al-sahiha). Thus, even if the marriage was not consummated but the couple were alone, the second and third divorces would count, because ‘being alone (khalwa)’ here has the same implication as that of consummation itself. A woman divorced before consummation but after ‘Khalwa’ is also obligated to observe the waiting period (idda), and as such, the subsequent divorces pronounced by the husband will be valid. (Radd al-Muhtar ala ‘l-Durr al-Mukhtar 3/119)

It is important, however, to understand the legal definition of ‘Khalwa’. The renowned Hanafi Jurist, Imam Haskafi (Allah have mercy on him) states in his Al-Durr al-Mukhtar:

‘And being alone (khalwa)… without a physical (hissi) prevention such as the illness of a spouse which prevents sexual intercourse…, without a natural (tab’i) prevention such as the presence of a third person who understands… and without a Islamic Jurisdictional (Shar’i) prevention such as being in a state of Ihram… [This type of Khalwa] takes the same ruling as that of consummation itself… in terms of a second non revocable divorce occurring.’ (See: Radd al-Muhtar ala ‘l-Durr al-Mukhtar 3/114-119, Matlab fi Ahkam al-Khalwa)

In other words, being alone (khalwa) is only considered effective when there are no physical/medical, natural or Islamic preventions from having sexual intercourse. The couple had an opportunity to consummate the marriage but opted not to out of their own choice. However, if any of the above preventions take place during Khalwa because of which the couple are unable to consummate their marriage, then this Khalwa is of no consideration, and it will be as though they did not remain alone.

After providing the above definition of Khalwa, Imams Haskafi and Ibn Abidin (Allah have mercy on both) mention certain instances where a physical/medical problem with the wife may prevent penetration. For example, the wife’s vagina is blocked or nearly so because of abnormal growth of flesh (ratq) or bone (qarn) thus preventing penetration, or the spouse is too young to engage in sexual intercourse. (Ibid)

Thus, in the situation you have described, if your wife’s medical condition indeed prevented vaginal penetration and you had thereby been unable to physically consummate the marriage, then your being alone with her will not be considered effective. As such, your pronouncements of three divorces in separate sentences will be judged to have occurred prior to proper seclusion (Khalwa Sahiha), and as such, the second and third divorces do not count. You are free to remarry her. However, you must be careful in determining whether this was a genuine medical condition or merely anxiety reaction before sexual relations. It is worthwhile to seek professional medical advice on the matter.

And Allah Knows Best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK

http://islamqa.org/hanafi/daruliftaa/7931

Brother X and Sister Y were married for a short while before things turned sour. The couple never lived together and the marriage was never consummated (even though they had the opportunity too). The couple have been separated for several months (more than that of a waiting period) and the divorce has not been finalised yet. The whole process (for divorce) has been initiated by Sister Y.

1) If the marriage was not consummated then do the normal divorce rulings apply or is the marriage annulled (as opposed to divorce)?

2) Is there such thing as an annulment of marriage when the marriage has not been consummated?

3) If the couple have been separated for a long time and NO divorce (revocable or irrevocable) issued then will the sister still need to observe the waiting period when a divorce is finally issued.

4) How can the waiting period be observed in the West with work commitments etc etc. Is there dispensation for those living in the west and who don’t have the means to observe the waiting period.

5) Can the sister initiate the divorce, and if so, how?

ANSWER

In the name of Allah, Most Compassionate, Most Merciful,

1) If the marriage was never consummated, neither the couple were ever together in privacy and isolation (khalwa) since their marriage, then the rules of divorce will defer, e.g.: The wife will only be liable for half of the specified Mahr (dowry), also the wife will only receive one divorce and with that she will be separated from her husband and there is no reconciliation.

Nevertheless it seems that in the stated situation, the couple had been alone sometime or another where they had the opportunity to have intercourse, therefore the same rulings of normal divorce will apply.

2) In Shariah, there are only two ways of separation between the spouses – divorce or khul’a (financial payment from the wife in order to get a divorce). If both these avenues fail, then the woman will have to recourse to a shariah committee for annulment.

3) If after the Nikah (marriage) the couple had intercourse or they were in isolation (meaning they were alone in a way that intercourse was possible), then such a woman, if divorced will have to wait the full period, otherwise there is no waiting.

4) The rulings of Iddah (the waiting period) will apply even in the west. Yes if there is an extraordinary situation, then the ruling will be given according to that situation.

5) In Islam, the husband has the exclusive right of issuing divorce. The wife can ask her husband to issue her a divorce, opt for a khul’a (explained earlier) or refer to a shariah court for annulment.

I hope this has answered all your questions.

And Allah Knows Best

[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK

Assalam o alaikum
ive been in contact with you via emails but i have still not go any reply from you. any way emailing again.
i have been in nikah for more than 8 years, since my nikah i have never been in a sexual relationship with my husband (as he never ever wants to) but only kissing and hugging and thats it. my question is if i get divorce from him, will i be due to any iddah? please do reply as soo as possible.
may Allah swt give you peace in this world and the herafter.
parveen
from pakistan.

Answer

Bismihi Ta’aala Wa-alaykum As-Salaam You will have to sit in Iddah if Khalwah-Saheehah (husband & wife are in such seclusion, that they have the opportunity to have intercourse) has taken place. Khalwah-Saheehah is as mentioned above, but with three conditions: there is no ‘tibbee’, ‘tab’ee’ or ‘shar’ee’ prevention. (1) Tibbee (medical) prevention: The husband and wife are in seclusion, but due to some medical reason, they (husbane & wife) are prevented from having sexual intercourse. (2) Tab’ee (natural/general) prevention: The husband and wife are not in total seclusion E.g. they are in a room alone, but someone else is closeby due to which they are prevented from sexual intercourse. (3) Shar’ee (Islamic Jurisdictional) prevention: The husband and wife are in seclusion, but due to a shar’ee reason E.g. the wife is on her monthly period, they are prevented from sexual intercourse. If any of the above preventions take place during seclusion, the wife will not have to sit in Iddah. However, if none of the above preventions take place, the lady will have to sit in Iddah.