Source: Fiqhi Rulings and Issues in the Light of Quran and Hadith, Issues of Divorce: Volume 02: Page 299
Rulings of Khula
All praise is due to Allah, and prayers and peace be upon the Messenger of Allah. To proceed!
Khula means that the husband, upon the wife's demand, separates her from his marriage through specific words. Linguistically, the meaning of Khula is: to separate and remove, because the woman separates herself from the husband as if removing a garment, and therefore it is called Khula. It should also be noted that husband and wife are like garments for each other. Allah Almighty said:
"هُنَّ لِبَاسٌ لَكُمْ وَأَنْتُمْ لِبَاسٌ لَهُنَّ"
“They (wives) are a garment for you and you are a garment for them.”
Reference: Al-Baqarah: 2/187
It is an established fact that marriage is a means to connect a man and a woman, a cause for a pleasant life, a foundation for love, a formation of family, and a means for nurturing a new generation. Allah Almighty said:
"وَمِنْ آَيَاتِهِ أَنْ خَلَقَ لَكُمْ مِنْ أَنْفُسِكُمْ أَزْوَاجًا لِتَسْكُنُوا إِلَيْهَا وَجَعَلَ بَيْنَكُمْ مَوَدَّةً وَرَحْمَةً "
“And among His signs is that He created for you from yourselves mates that you may find tranquility in them; and He placed between you affection and mercy.”
Reference: Ar-Rum:30:21
But if after marriage these purposes are not achieved, love does not develop between husband and wife, or love cannot be maintained, or there is no expression of love and affection from the husband’s side, and their life becomes full of hardship and distress, and no means of reform or remedy remain, then it is appropriate for the husband to divorce the wife in a good manner. Allah Almighty said:
"فَإِمْساكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسانٍ"
“Then either keep [her] in an acceptable manner or release [her] with good treatment.”
Reference: Al-Baqarah:2:229
And in another place He said:
"وَإِنْ يَتَفَرَّقَا يُغْنِ اللَّهُ كُلا مِنْ سَعَتِهِ وَكَانَ اللَّهُ وَاسِعًا حَكِيمًا"
“And if they separate, Allah will enrich each [of them] from His abundance. And Allah is all-Encompassing and Wise.”
Reference: An-Nisa:4:130
If the husband loves the wife but the wife does not have love for the husband in her heart, or she is upset by some moral defect of his, or she does not like his appearance, or she feels hatred due to some religious weakness of his, or she fears that she will not be able to fulfill the husband's rights and will be sinful before Allah, then in such circumstances it is permissible for the woman to demand separation from her husband in exchange for something, and the ruler should accept her request, annul the marriage, and separate the two. Allah Almighty has said:
"فَإِنْ خِفْتُمْ أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ"
“If you fear that they will not be able to keep the limits ordained by Allah, then there is no sin upon them if the woman gives something for her release.”
Reference: Al-Baqarah:2/229
The wisdom behind the permissibility of khula is that the wife separates herself from the husband in such a way that there remains no possibility of reconciliation; therefore, it becomes a fair solution to the difficulty of both. In such a case, the husband should accept the woman's demand. However, if the husband loves her, it is better for the woman to be patient and not seek khula.
Khula is permissible, provided that the reason mentioned in the referenced verse exists, that is, both the husband and wife fear that if they remain in the marriage, they will not be able to uphold the limits set by Allah Almighty. If this reason does not exist, then the demand for khula by the woman is disliked, and according to some scholars, it is forbidden in such a case. The Messenger of Allah, peace and blessings be upon him, said:
"أَيُّمَا امْرَأَةٍ سَأَلَتْ زَوْجَهَا طَلاقًا فِي غَيْرِ مَا بَأْسٍ فَحَرَامٌ عَلَيْهَا رَائِحَةُ الْجَنَّة"
“The woman who demands divorce from her husband without any valid reason is forbidden from the fragrance of Paradise.”
Reference: Sunan Abi Dawood, Divorce in Khula, Hadith 2226; Jami` at-Tirmidhi, Divorce, Chapter on What Has Been Related About Khula, Hadith 1187; Sunan Ibn Majah, Divorce, Chapter on Dislike of Khula by the Men, Hadith 2055; Musnad Ahmad 5/277
Sheikh Taqi al-Din, may Allah have mercy on him, says: “The Shariah permits only that Khula in which the woman dislikes her husband for a reasonable cause and frees herself by giving compensation.”
Reference: Majmu` al-Fatawa 16/397
If the husband does not love his wife but keeps her with him only so that she becomes distressed and pays some compensation to get rid of him, then such a husband will be unjust in the sight of Allah, and it is forbidden for him to take anything in return for separation. Such Khula will not be valid according to Shariah. Allah Almighty says:
"وَلَا تَعْضُلُوهُنَّ لِتَذْهَبُوا بِبَعْضِ مَا آتَيْتُمُوهُنَّ"
“And do not keep them (wives) against their will in order to take back part of what you gave them.”
Reference: An-Nisa: 4/19
That is, do not trouble women so that they return part or all of the dowry or relinquish any of their rights. However, if a woman openly displays immorality, the husband may do so to reclaim the dowry. Allah Almighty has said:
"إِلَّا أَن يَأْتِينَ بِفَاحِشَةٍ مُّبَيِّنَةٍ ۚ "
“Yes, it is a different matter if they commit an open immorality.”
Reference: An-Nisa:4/19
Sayyiduna Ibn Abbas (may Allah be pleased with him) holds the same view.
The permissibility of khula (divorce initiated by the wife) is established by evidence from the Book of Allah, the Sunnah of the Messenger of Allah (peace be upon him), and consensus, when valid reasons exist. The Qur'an states:
"فَإِنْ خِفْتُمْ أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ"
“And if you fear that they will not keep the limits of Allah, then there is no blame upon either of them if she gives something for her release.”
Reference: Al-Baqarah:2/229
And the evidence from the Sunnah is the incident of the wife of Sayyiduna Thabit bin Qais رضي الله تعالى عنه, which is mentioned in Sahih Bukhari. She came to the presence of the Messenger of Allah صلی اللہ علیہ وسلم and said: O Messenger of Allah صلی اللہ علیہ وسلم! I find no fault in my husband Thabit bin Qais رضي الله تعالى عنه in his religion and character, but I dislike that while remaining in Islam, I should belittle my husband and fall into sin. So the Messenger of Allah صلی اللہ علیہ وسلم said:
"أَتَرُدِّينَ عَلَيْهِ حَدِيقَتَهُ ؟ قَالَتْ : نَعَمْ . قَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ : اقْبَلْ الْحَدِيقَةَ وَطَلِّقْهَا تَطْلِيقَةً"
“Will you return his garden (which he gave as Mahr)?” She said: Yes! The Prophet صلی اللہ علیہ وسلم told her husband to take back the garden and give her one divorce and separate from her.”
Reference: Sahih al-Bukhari, Divorce, Chapter: Khula and how divorce is done, Hadith 73.52
As far as consensus is concerned, Allama Ibn Abdul Barr, may Allah have mercy on him, stated that no one is known to deny the permissibility of khula except Muzani, may Allah have mercy on him. According to him, the verse permitting khula is abrogated by Allah's command:
"وَإِنْ أَرَدتُّمُ اسْتِبْدَالَ زَوْجٍ مَّكَانَ زَوْجٍ وَآتَيْتُمْ إِحْدَاهُنَّ قِنطَارًا فَلَا تَأْخُذُوا مِنْهُ شَيْئًا ۚ "
“If you wish to replace one wife with another and you have given one of them a great amount of wealth, do not take anything back from it.”
Reference: An-Nisa:4/20
For khula to be valid, it is a condition that there is financial compensation, and the one giving the compensation must be someone who is legally permitted to dispose of the wealth. Also, the khula must be from a husband whose divorce is valid, and he should not be oppressing the wife unjustly so that she is forced to give compensation. Furthermore, the term "khula" should be explicitly used for khula.
If the husband uses explicit words of divorce or metaphorical words with the intention of divorce, then it will be a divorce, not khula; and there is no possibility of reconciliation in such a divorce, however, a new marriage contract can be made and remarriage can occur, and there is no condition of marrying another man, provided that he has already given two divorces, not three.
And if he uses words of khula, annulment of marriage, or ransom and does not intend divorce, then the marriage will be annulled, it will not be counted as a divorce, and the number of divorces will not decrease. This is the position of Sayyiduna Ibn Abbas (may Allah be pleased with him). His evidence is the command of Allah Almighty:
"الطَّلَاقُ مَرَّتَانِ"
“Divorce is twice.”
Reference: Al-Baqarah:2/229
Then Allah Almighty said:
"فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ "
“Then if he divorces her (the third time), there is no blame upon them for what she gives to regain her freedom.”
Reference: Al-Baqarah:2/229
Then after that He said:
"فَإِن طَلَّقَهَا فَلَا تَحِلُّ لَهُ مِن بَعْدُ حَتَّىٰ تَنكِحَ زَوْجًا غَيْرَهُ"
“Then if he divorces her (the third time), she is not lawful to him afterward until she marries another husband besides him.”
Reference: Al-Baqarah:2/230
From this sequence, it becomes clear that after mentioning two divorces, Allah Almighty spoke about khula (divorce initiated by the wife), and then after that, another divorce was mentioned. If khula were also considered a divorce, then the last divorce would be counted as the fourth, which is not correct. And Allah knows best.
Rules of Divorce
The literal meaning of divorce (Talaq) is: to leave and to free. From this comes the phrase "Talqat al-Naqa," meaning the she-camel was freed when it was let loose to graze wherever it wished.
The Shariah meaning is to completely or partially dissolve the bond of marriage.
Due to differences in circumstances and causes, the ruling on divorce also changes. Sometimes it is permissible (mubah), sometimes disliked (makruh), sometimes recommended (mustahabb), sometimes obligatory (wajib), and sometimes forbidden (haram). Thus, all five Shariah rulings apply to it. Their details are as follows:
① Permissible Divorce
If the wife's character is bad and she causes harm to the husband, and the purpose of marriage is not being fulfilled by continuing the marriage, then it is permissible and allowed for the husband to divorce her.
② Disliked Divorce
If the conditions of the husband and wife are good, and there is no need or reason for divorce, then giving divorce is disliked. According to some Imams, giving divorce in such a situation is forbidden. The hadith states:
"أَبْغَضُ الْحَلالِ إِلَى اللَّهِ عَزَّ وَجَلَّ الطَّلاقُ "
“Among the lawful things with Allah, divorce is the most disliked.”
Reference: (Weak) Sunan Abi Dawood, Divorce, Chapter on the Dislike of Divorce, Hadith 2178
In this hadith, the Messenger of Allah (peace be upon him) has declared divorce lawful, although it is disliked by Allah, which shows that despite being permissible in this condition, it is disliked. The reason for the dislike is that divorce ends the marriage which was based on social benefits and interests.
③ Recommended Divorce
When divorce is necessary and keeping the marriage causes harm to the woman, for example, if disputes and disagreements have arisen between husband and wife, and the woman dislikes the husband, then maintaining the marriage causes harm to the woman’s rights, therefore giving her a divorce is recommended. The Messenger of Allah (peace be upon him) said:
"لا ضرر ولا ضرار"
"Do not cause harm and do not suffer harm."
Reference: Sunan Ibn Majah, Ahkam, Chapter: What is built in his right that is struck by a neighbor, Hadith 2340
④ Obligatory Divorce
If a woman is weak in religious terms, for example, if she abandons prayer, or is habitually late in prayer without reason, does not understand when advised, or does not protect her honor and chastity, then the correct ruling is that it is obligatory to divorce such a woman. Shaykh al-Islam Ibn Taymiyyah, may Allah have mercy on him, states:
"When the wife is a fornicator, it is not permissible to keep her in marriage; otherwise, the one who keeps her is a man without shame."
Reference: Al-Fatawa al-Kubra al-Ikhtiyarat al-Ilmiyyah, Chapter: The Prohibitions in Marriage 5/460
Similarly, if the husband is not correct in religious terms, then it is incumbent upon the woman to demand divorce or separate through khula, and in such a case, she should by no means remain with him.
Similarly, in the case of Ilaa, that is, if the husband swears to abstain from intercourse and after four months still refrains from intercourse and does not pay the expiation for the oath, then it becomes obligatory to divorce such a husband, otherwise he will be compelled to give a divorce. Allah Almighty has said:
"لِّلَّذِينَ يُؤْلُونَ مِن نِّسَائِهِمْ تَرَبُّصُ أَرْبَعَةِ أَشْهُرٍ ۖ فَإِن فَاءُوا فَإِنَّ اللَّهَ غَفُورٌ رَّحِيمٌ (226) وَإِنْ عَزَمُوا الطَّلَاقَ فَإِنَّ اللَّهَ سَمِيعٌ عَلِيمٌ"
“Those who swear not to have relations with their wives have a term of four months; and if they return, then indeed Allah is Forgiving and Merciful. But if they decide on divorce, then indeed Allah is Hearing and Knowing.”
Reference: Al-Baqarah:2:226-227
⑤ Forbidden Divorce
It is forbidden to divorce a wife during her menstruation, or during her postnatal bleeding, or during a purity in which intercourse has already taken place and the pregnancy condition is not clear. Similarly, when the husband has already given three divorces, giving more divorces is also forbidden. The details of this will come later, InshaAllah.
The legitimacy of divorce is established by the Book of Allah, the Sunnah of the Messenger of Allah (peace be upon him), and consensus.
Allah Almighty has said:
"الطَّلَاقُ مَرَّتَانِ ۖ "
“Divorces are two times.”
Reference: Al-Baqarah:2/229
And He said:
"يَا أَيُّهَا النَّبِيُّ إِذَا طَلَّقْتُمُ النِّسَاءَ فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ"
“O Prophet, (tell your Ummah) when you divorce your wives, then divorce them during their waiting period (iddah).”
Reference: At-Talaq 1/65
And the Messenger of Allah (peace be upon him) said:
"إِنَّمَا الطَّلاَقُ لِمَنْ أَخَذَ بِالسَّاقِ"
“Divorce should be given by the one who married the woman.”
Reference: Sunan Ibn Majah, Talaq, Chapter of the Slave, Hadith 2081
Many scholars have transmitted consensus on the permissibility of divorce.
The wisdom behind the permissibility of divorce is very clear. It is one of the merits of Islam, because the solution to the difficulties arising in marriage at times of need is divorce. Allah Almighty said:
"فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ "
“Then either keep [her] in an acceptable manner or release [her] with good treatment.”
Reference: Al-Baqarah: 2/229
And He said:
"وَإِنْ يَتَفَرَّقَا يُغْنِ اللَّهُ كُلا مِنْ سَعَتِهِ وَكَانَ اللَّهُ وَاسِعًا حَكِيمًا"
“And if they separate, Allah will enrich each from His abundance. And Allah is all-Encompassing and Wise.”
Reference: An-Nisa: 4/130
If there is no benefit in maintaining the marriage, or if the woman is harmed by staying with the husband, or if either spouse is severely weak in religious or moral terms, then in such a case, divorce is the best way to escape hardship.
Many societies suffer difficulties because they close the door to divorce, resulting in problems such as destruction, suicide, and family breakdown. Islam has permitted divorce and set regulations for it that bring benefits and eliminate harms. Praise be to Allah who has bestowed His grace upon us.
The authority to give divorce lies with the husband, provided he is competent and sane, or he appoints someone as his agent, then the agent can give divorce on his behalf. The evidence is the Prophet’s ﷺ statement:
"إِنَّمَا الطَّلاَقُ لِمَنْ أَخَذَ بِالسَّاقِ"
“Divorce is from the one who married the woman.”
Reference: Sunan Ibn Majah, Divorce, Chapter of the Slave, Hadith 2081
If a person has lost their intellect and is incapacitated in this regard, for example, a madman, unconscious, asleep, or a patient whose consciousness has ended, like someone with epilepsy, or someone who has been forced to consume an intoxicating substance, or who has drunk bhang as medicine and lost their intellect, then if such persons say the words of divorce to their wife, the divorce will not take effect. Sayyiduna Ali رضي الله عنه said:
"وَكُلُّ الطَّلَاقِ جَائِزٌ إِلَّا طَلَاقَ الْمَعْتُوهِ"
“Divorce is valid for everyone except the one who is not sane.”
Reference: Sahih al-Bukhari, Divorce, Chapter on Divorce in cases of compulsion, intoxication, and drunkenness, Hadith 5269, with commentary
Because the rulings are based on intellect. And Allah knows best.
However, if someone voluntarily consumed an intoxicating substance and lost their intellect, then gave divorce, there is a difference of opinion among scholars whether such a divorce will be valid or not. According to one opinion, the divorce will be valid, and this is the view of a group of scholars besides the four Imams.
If a person is forced or threatened into giving a divorce and gives the divorce out of fear, such a divorce will not be valid, because in the hadith it is stated:
"لَا طَلَاقَ وَلَا عَتَاقَ فِي إِغْلَاقٍ"
“There is neither divorce nor freedom in compulsion and coercion.”
Reference: Sunan Abi Dawood, Divorce, on a weak hadith 2193; Sunan Abi Majah, Divorce, chapter on forced and unintentional divorce, hadith 2046; Musnad Ahmad 6/276
And Allah Almighty said:
"مَنْ كَفَرَ بِاللَّهِ مِنْ بَعْدِ إِيمَانِهِ إِلا مَنْ أُكْرِهَ وَقَلْبُهُ مُطْمَئِنٌّ بِالإيمَانِ "
“Whoever disbelieves in Allah after his faith except for one who is forced while his heart is secure in faith.”
Reference: An-Nahl 16:106
When disbelief can be forgiven under compulsion, which is a far greater matter, then divorce will certainly be forgiven. However, in cases where forcing a divorce is permissible, a forced divorce can be given.
If a person, while angry, understands what he is saying, then the divorce he pronounces will be valid. But if the anger is so intense that he is not aware of what he is saying, then such a divorce will not be valid.
A divorce given in jest also becomes effective, because the intention to utter the words of divorce is present, even if the intention for it to take effect is not there. And Allah knows best.
Sunnah and Non-Sunnah Divorce
A Sunnah divorce is one that is given according to the command of Allah Almighty and His Messenger Muhammad ﷺ.
Its form is that the husband gives only one divorce, and that too during a period of purity in which he has not had intercourse with his wife, then leaves her in that state until the completion of the ‘iddah. In terms of ‘iddah, this is a “Sunnah divorce” because only one divorce was given, and in terms of timing, it is also “Sunnah” because the divorce was given during a period of purity in which intercourse had not occurred.
Allah Almighty has said:
"يَا أَيُّهَا النَّبِيُّ إِذَا طَلَّقْتُمُ النِّسَاءَ فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ"
“O Prophet ﷺ! (Tell your Ummah) when you divorce your wives, divorce them during their ‘iddah.”
Reference: At-Talaq 65:1
Sayyiduna Ibn Mas'ud رضي الله تعالى عنه explained the term "li'iddatihinna" as meaning that they should be in a state of purity and that intercourse has not taken place.
Reference: Al-Sunan al-Kubra by Al-Bayhaqi 7/325
Sayyiduna Ali bin Abi Talib رضي الله تعالى عنه said: "If people adhere to Allah's command regarding divorce, then a man will not have to chase after a woman. He should give one divorce, then leave her for three menstrual cycles, and if he wishes, he may reconcile within the 'iddah."
Reference: Al-Muhalla by Ibn Hazm 10/173
Allah Almighty has given respite to the one who divorces so that if he regrets after divorcing, he may reconcile within the 'iddah, provided it is not the third divorce. But if the number of divorces is complete, that is, the third divorce has been given, then he has closed the door of reconciliation for himself.
Non-Sunnah divorce refers to a divorce that is given contrary to the command of Allah Almighty and His Messenger Muhammad صلى الله عليه وسلم. Its forms are as follows:
① Pronouncing three divorces in one sitting.
② Giving divorce during menstruation or postpartum bleeding.
③ Giving divorce during a state of purity in which intercourse has taken place and pregnancy is not clearly evident.
The first case is non-sunnah in terms of number, and the second and third cases are non-sunnah in terms of timing.
In terms of number, an unsunnah divorce becomes effective.
Reference: Three divorces given in the same sitting will be counted as one divorce, not three; therefore, the husband will have the right of reconciliation. It is narrated in Sahih Muslim that during the time of the Prophet Muhammad ﷺ and Hazrat Abu Bakr رضي الله تعالى عنه, and in the early period of the caliphate of Hazrat Umar رضي الله تعالى عنه, three divorces given at once were counted as one. As for the words of the Noble Verse "فَإِن طَلَّقَهَا", in the light of the Hadith, it means that if the husband gives the third divorce in the third sitting or on the third occasion, then she will not be lawful for him until she marries another man and he divorces her or dies. (Saarim)
Allah Almighty said:
"فَإِن طَلَّقَهَا فَلَا تَحِلُّ لَهُ مِن بَعْدُ حَتَّىٰ تَنكِحَ زَوْجًا غَيْرَهُ"
“Then if he divorces her (a third time), she is not lawful to him afterward until she marries another husband.”
Reference: Al-Baqarah: 2/230
In terms of time, it is recommended for the husband to reconcile in the case of non-prescribed divorce. Sayyiduna Ibn Umar رضي الله تعالى عنه gave his wife a divorce during her menstruation, and the Messenger of Allah صلی اللہ علیہ وسلم ordered him to reconcile.
Reference: Sahih al-Bukhari, Tafsir Surah At-Talaq, Hadith 4908; Sahih Muslim, Talaq, Chapter on the Prohibition of Divorcing a Menstruating Woman, Hadith 1471
After reconciliation, it is obligatory that he keep her with him until she becomes pure from menstruation, then if he wishes, he may divorce her without intercourse in the state of purity.
It is forbidden for the husband to give a non-prescribed divorce, whether in terms of the number or the timing. Allah Almighty said:
"الطَّلَاقُ مَرَّتَانِ ۖ فَإِمْساكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسانٍ"
“These divorces are twice. Then either keep [her] in an acceptable manner or release [her] with good treatment.”
Reference: Al-Baqarah: 2/229
And He said:
"يَا أَيُّهَا النَّبِيُّ إِذَا طَلَّقْتُمُ النِّسَاءَ فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ"
“O Prophet صلی اللہ علیہ وسلم! (Say to your people) when you divorce your wives, divorce them during their waiting period.”
Reference: At-Talaq 1/65
The Messenger of Allah, peace be upon him, heard that a man had given his wife three divorces at once, so he said:
"أَيُلْعَبُ بِكِتَابِ اللَّهِ وَأَنَا بَيْنَ أَظْهُرِكُمْ ؟"
“How strange! While I am present, the Book of Allah is being toyed with.”
Reference: Sunan An-Nasa'i, Divorce, Chapter on the Combined Three and the Severity Therein, Hadith 3430
When a person who had given three divorces in one sitting was brought to Sayyiduna Umar, may Allah be pleased with him, he would punish him. And when it was mentioned in the presence of the Messenger of Allah, peace be upon him, that Ibn Umar, may Allah be pleased with him, had divorced his wife during her menstruation, he became displeased and ordered him to take her back.
All these evidences make it clear that the commands of Allah Almighty regarding divorce should be followed and forbidden forms should be avoided. The regret is that many people neither understand these commands nor pay attention to them, resulting in their own distress and remorse, and also causing hardship for the scholars. All this is the consequence of playing with the Book of Allah Almighty.
Some people use divorce as a weapon. When they want to make the wife do something or prevent her from doing something, they threaten divorce to get their way. Some people use divorce in conversations or dealings as if it were an oath, for example: if I do not do this, my wife will be divorced, or if I do this, my wife will be divorced. Such people should fear Allah Almighty and protect their tongues from this word, except in genuine necessity, and even then, the prescribed time and number limits must be observed.
Types of Divorce Words
Divorce words are of two types:
❀ Explicit words: Those words which have no meaning other than divorce, for example, when a husband says to his wife: "I have divorced you," or "You are divorced," or "You have been given a divorce."
❀ Implied words: Those words which may have meanings other than divorce, for example: "You are separated," "You are bad," "You are apart," "You are free," "Leave from here and go to your family," or "I have left you," etc.
Reference: The author has given examples according to the Arab environment; in other languages, their idioms and words will be considered, meaning those words which are also used for divorce and also carry other meanings. All of these are included in "implied divorce" (Saarim)
Divorce occurs through explicit words, whether the speaker intended it or not, whether said seriously or jokingly. The Messenger of Allah, peace be upon him, said:
" ثَلَاثٌ جِدُّهُنَّ جِدٌّ وَهَزْلُهُنَّ جِدٌّ : النِّكَاحُ ، وَالطَّلَاقُ ، وَالرَّجْعَةُ "
"Three matters become certain whether they are said seriously or in jest: marriage, divorce, and reconciliation."
Reference: Sunan Abi Dawood, Divorce, Chapter on Divorce in Jest, Hadith 2194; Jami` at-Tirmidhi, Divorce, Chapter on What Has Been Related About Seriousness and Jest in Divorce, Hadith 1184
However, divorce does not occur through metaphorical words unless the intention of divorce is included, because these words can have other meanings. Therefore, without intention, divorce will not be established. Nevertheless, there are three cases in which divorce occurs even through metaphorical words, even if the husband says that he did not intend divorce:
① When there is a quarrel between husband and wife.
② When the husband says these words in a state of anger.
③ When the wife has demanded divorce and the husband uses metaphorical words.
In these situations, the context indicates his intention, so his claim will not be accepted. And Allah knows best.
If the husband wishes, he can appoint someone as his agent to give divorce, whether that person is a stranger or his own wife, meaning he can delegate the authority of divorce to him. The agent will explicitly, implicitly, or numerically represent his client, unless the client sets any limit for him.
For the one giving divorce, whether he is the husband or the agent, it is necessary to utter words with the tongue and produce a sound. Divorce does not take effect by intention of the heart alone. The Messenger of Allah, peace be upon him, said:
"إن الله تجاوز عن أمتي ما حدثت به أنفسها ما لم تعمل أو تتكلم"
“Allah Almighty has pardoned my Ummah for matters that remain in the form of thoughts in the heart as long as they are not acted upon or uttered by the tongue.”
Reference: Sahih al-Bukhari, Divorce, Chapter on Divorce in cases of closure, compulsion, and intoxication, Hadith 5269
However, there are two cases in which divorce takes effect even without being uttered by the tongue:
① When divorce is written in explicit words, it can be clearly read and there is intention, then the divorce will take place. And if there is no intention, there are two opinions among scholars; according to the majority, it still takes place.
② When the one giving the divorce is mute and his gesture clearly indicates divorce.
How many divorces can a woman be given?
This depends on the status of the man, whether he is free or a slave. Allah Almighty has addressed only men in the matter of divorce:
"يَا أَيُّهَا النَّبِيُّ إِذَا طَلَّقْتُمُ النِّسَاءَ فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ"
“O Prophet, when you divorce women, divorce them at their prescribed waiting period.”
Reference: At-Talaq 1/65
And He said:
"وَإِذَا طَلَّقْتُمُ النِّسَاءَ فَبَلَغْنَ أَجَلَهُنَّ "
“When you divorce women and they have fulfilled their waiting period.”
Reference: Al-Baqarah:2/231
And the Messenger of Allah (peace be upon him) said:
"إِنَّمَا الطَّلاَقُ لِمَنْ أَخَذَ بِالسَّاقِ"
“Divorce is from the one who has married the woman.”
Reference: Sunan Ibn Majah, Divorce, Chapter of Divorce of a Slave, Hadith 2081
A free man has the right to three divorces, even if he has a slave woman in marriage. A slave man has the right to two divorces, even if his wife is free. If both are free, it is unanimously agreed that the husband has the right to three divorces. If both are a slave man and a slave woman, the husband has the right to two divorces without any difference of opinion.
Divorce with Exception and Condition
Exceptions are permissible in the words of divorce. This exception can be in the number of divorces, for example, someone may say: "You have three divorces but one less," or in the number of divorced wives, for example: "I divorce all my wives except Fatimah."
For the exception to be valid, it is necessary that the excepted part is half or less. If it is more than half, for example, saying: "You have three divorces but two less," then it will not be effective.
One condition for exception is that it must be expressed verbally, not just in the heart. Therefore, if someone says: "You are divorced," but in their heart says "except one," three divorces will still take place.
Reference: We have proven in the footnotes earlier that three divorces at one time count as one divorce. (Saarim)
At this point, the ruling of the words is stronger than the intention. However, in the case of exception regarding wives, intention is valid; if someone says: "My wives are divorced," and in their heart excludes one wife, it is correct, because the term "wives" sometimes applies to all and sometimes to some, so here intention will be valid.It is also permissible to make the divorce conditional, for example: "If you enter such and such house, then you are divorced." In this case, when she enters that house, the divorce will take effect.
But the condition will only be valid if the person making the statement is the husband. If someone says: "If I marry such and such a woman, then I will divorce her," and then marries her, the divorce will not take place, because at the time of making the condition, he was not her husband. The hadith states:
"لاَ نَذْرَ لاِبْنِ آدَمَ فِيمَا لاَ يَمْلِكُ، وَلاَ عِتْقَ لَهُ فِيمَا لاَ يَمْلِكُ، وَلاَ طَلاَقَ لَهُ فِيمَا لاَ يَمْلِكُ"
“No vow is valid for a person concerning what he does not own, nor is he free to do what he does not own, nor will he divorce what he does not own.”
Reference: Sunan Abi Dawood, Faith and Light, Chapter on Oaths concerning severing kinship, Hadith 3274; Jami` at-Tirmidhi, Divorce and Cursing, Chapter on 'No Divorce before Marriage', Hadith 1181, and the wording is his
And Allah Almighty said:
"يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا نَكَحْتُمُ الْمُؤْمِنَاتِ ثُمَّ طَلَّقْتُمُوهُنَّ "
“O you who believe! When you marry believing women and then divorce them.”
Reference: Al-Ahzab: 33, 49
Both the verse and the hadith make it clear that a stranger woman (non-wife) cannot be divorced. There is consensus among scholars that an unconditional divorce does not occur, and most also hold that a conditional divorce does not take effect.
If the divorce is suspended upon a condition, then the divorce does not take place before the condition is fulfilled.
Rulings on Doubt in Divorce
If doubt arises, whether in pronouncing the word of divorce, or in the number of divorces, or in the fulfillment of a condition, the details are as follows:
① If there is doubt whether the words of divorce were pronounced or not, then divorce will not occur merely due to doubt, because the marriage is certain and certainty is not nullified by mere doubt.
② If there is doubt about the occurrence of a condition attached to the divorce, for example, he said: "If you enter such and such house, then you are divorced," and then there is doubt whether she entered that house or not, then divorce will not occur, because the original marriage remains intact.
③ If the occurrence of divorce is certain but there is doubt about the number, then one divorce will be considered to have occurred, because the occurrence of one is certain and the excess is doubtful, and certainty is not nullified by doubt.
This is a general principle useful in all Shariah rulings, and it is derived from the saying of the Messenger of Allah, peace be upon him:
"تدع ما يريبك إلى مالا يريبك"
“Leave that which makes you doubtful and choose that which does not make you doubtful.”
Reference: Sahih al-Bukhari, Al-Buyu’, Chapter on Interpretation of Ambiguous Matters before Hadith 2052 Mu’allaqan, Jami’ at-Tirmidhi, Chapter on Resurrection, Hadith ‘Aqilha wa Tawakkal’ Hadith 2518
And similarly, if someone has certainly attained purity, but then doubts occur regarding hadath (state of ritual impurity), the Prophet Muhammad (peace be upon him) said:
"لا ينصرف حتى يسمع صوتا أو يجد ريحا "
“Do not turn back until you hear a sound or smell an odor.”
Reference: Sahih al-Bukhari, Al-Wudu’, Chapter: One should not perform ablution out of doubt until certainty, Hadith: 137
Other narrations on this subject also exist.
All these rulings indicate the beauty and perfection of Islam. Praise be to Allah who has granted us this great blessing.
Explanation of Raj’oo (Revocation of Divorce)
When a woman has been given one or two divorces, resuming the marital relationship during the ‘iddah (waiting period) without a new marriage contract is called raj’oo (revocation).
The evidence for raj’oo is established from the Book of Allah, the Sunnah of the Messenger of Allah (peace be upon him), and the consensus of the Ummah. Allah Almighty said:
"وَبُعُولَتُهُنَّ أَحَقُّ بِرَدِّهِنَّ فِي ذَٰلِكَ إِنْ أَرَادُوا إِصْلَاحًا ۚ "
“Their husbands have the full right to take them back during this period if they intend to reconcile.”
Reference: Al-Baqarah:2/228
Also He said:
"الطَّلَاقُ مَرَّتَانِ ۖ فَإِمْساكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسانٍ"
“Divorces are twice. Then either keep [her] in an acceptable manner or release [her] with good treatment.”
Reference: Al-Baqarah:2/229
And He said:
"فَإِذَا بَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ فَارِقُوهُنَّ بِمَعْرُوفٍ "
“So when they have fulfilled their term, either retain them according to acceptable terms or part with them according to acceptable manners.”
Reference: At-Talaq:2/65
From the Sunnah, the evidence is the incident of Sayyiduna Ibn Umar (may Allah be pleased with him) that the Prophet (peace be upon him) said about him:
"مُرْهُ فَلْيُرَاجِعْهَا"
“Tell him to take back his wife.”
Reference: Sahih al-Bukhari, Talaq, Chapter: The Saying of Allah Almighty "O Prophet, when you [Muslims] divorce women" Hadith 5251; Sahih Muslim, Talaq al-Haidh Hadith 1471
Similarly, the Messenger of Allah (peace be upon him) divorced Sayyida Hafsa (may Allah be pleased with her) and then took her back.
Reference: Sunan Abi Dawood, Talaq, Chapter on Reconciliation Hadith 2283; Al-Sunan al-Kubra by An-Nasa’i, Talaq, Chapter on Reconciliation Hadith 5755; Sunan Ibn Majah, Talaq, Chapter, Narrated by Suwaid bin Saeed Hadith 2016
Regarding Ijma, Ibn Mundhir, may Allah have mercy on him, states that the scholars agree that when a free man gives less than three divorces and a slave less than two divorces, they have the right to reconcile during the waiting period (iddah).
The wisdom behind the period of reconciliation is that if the husband divorces and regrets it and wants to restore the household, this path remains open to him so that he can reconcile and reestablish the household. This is a part of Allah's mercy.
Conditions for Reconciliation
① The number of divorces must be less than the number of divorces he is entitled to. That is, a free man has given less than three and a slave less than two divorces. If a free man has given three and a slave two divorces, then reconciliation is no longer possible. Now, the marriage is not valid until the woman marries another man.
② The woman must have been consummated. If the divorce was given before consummation, then reconciliation is not possible because there is no waiting period (iddah) for her. Allah Almighty has said:
"يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا نَكَحْتُمُ الْمُؤْمِنَاتِ ثُمَّ طَلَّقْتُمُوهُنَّ مِنْ قَبْلِ أَنْ تَمَسُّوهُنَّ فَمَا لَكُمْ عَلَيْهِنَّ مِنْ عِدَّةٍ تَعْتَدُّونَهَا فَمَتِّعُوهُنَّ وَسَرِّحُوهُنَّ سَرَاحًا جَمِيلا "
“O believers! When you marry believing women and then divorce them before you have touched them, there is no ‘iddah (waiting period) for them to count.”
Reference: Al-Ahzab 33:49
③ Divorce should be without compensation. If the wife has obtained separation by giving compensation, then it is not permissible for the husband to take her back unless he marries her again with her consent, because the woman has freed herself by paying a ransom.
④ The marriage should be valid. If the marriage was not lawful and then divorce was given, there will be no reconciliation because the divorce will be irrevocable there.
⑤ Reconciliation should be within the ‘iddah period. Allah Almighty said:
"وَبُعُولَتُهُنَّ أَحَقُّ بِرَدِّهِنَّ فِي ذَلِكَ"
“Their husbands have a better right to take them back during that period.”
Reference: Al-Baqarah: 2/228
⑥ It is not correct to make reconciliation conditional, for example, saying: “I will reconcile if such and such happens.”
Is the intention of reconciliation for reform a condition?
According to some scholars, this is a condition because Allah Almighty said:
"إِنْ أَرَادُوا إِصْلَاحًا ۚ "
“If they intend reconciliation.”
Reference: Al-Baqarah: 2/228
Sheikh al-Islam Ibn Taymiyyah, may Allah have mercy on him, says: "Permission for reconciliation will be given only to the husband who intends to reform and wants to keep the wife in a good manner."
Reference: Al-Fatawa al-Kubra al-Ikhtiyarat al-Ilmiyyah al-Ruj'ah 5/503
According to some scholars, the intention of reform is not a condition; rather, the verse encourages reform and prevents harm. However, the first opinion seems more correct. And Allah knows best.
There is no specific prescribed word for reconciliation. Any word that indicates reconciliation is sufficient, such as: "I have reconciled," "I have taken her back," "I have kept her with me," etc. Similarly, if intercourse is done with the intention of reconciliation, according to the correct opinion, this will also be counted as reconciliation.
It is appropriate, and according to some scholars obligatory, to appoint witnesses at the time of reconciliation, because Allah Almighty has said:
"وَأَشْهِدُوا ذَوَيْ عَدْلٍ مِّنكُمْ "
"And appoint two just witnesses from among yourselves."
Reference: At-Talaq 2/65
There is also a narration from Imam Ahmad, may Allah have mercy on him, in accordance with this. Sheikh Taqi al-Din, may Allah have mercy on him, says: "Keeping the matter of revocation (rajoo') secret is never correct."
Reference: Al-Fatawa al-Kubra al-Ikhtiyarat al-Ilmiyya al-Raj'ah 5/503
A woman who has been given a revocable divorce (raj'i talaq) is considered the wife of her husband during the 'iddah period. The husband is obligated to provide her with maintenance, clothing, and accommodation, and the woman is required to stay in the husband's house and take care of her adornment and appearance so that the husband's desire remains. If either of them dies during the 'iddah, the other becomes the heir. Both can travel, be in seclusion together, and the husband can have intercourse with her; however, intercourse counts as revocation (rajoo').
When the 'iddah ends, for example, when the woman becomes pure from the third menstrual cycle, the right of revocation also ends. After that, if they want to resume the relationship, a new marriage contract must be made in the presence of a guardian and two witnesses. Allah Almighty says:
"وَبُعُولَتُهُنَّ أَحَقُّ بِرَدِّهِنَّ فِي ذَٰلِكَ"
"Their husbands have a better right to take them back during that period."
Reference: Al-Baqarah: 2/228
This means that reconciliation is within the period of 'iddah. If the husband reconciles during the 'iddah, he will still retain the right to the remaining divorces, and the divorce after which reconciliation took place will be counted.
If the husband has given three complete divorces, then it is forbidden for both to resume marital relations until the woman marries another man through a valid Islamic marriage, which is not solely for the purpose of halala, and he consummates the marriage with her naturally, then divorces her. Allah Almighty has said:
"فَإِن طَلَّقَهَا فَلَا تَحِلُّ لَهُ مِن بَعْدُ حَتَّىٰ تَنكِحَ زَوْجًا غَيْرَهُ ۗ فَإِن طَلَّقَهَا فَلَا جُنَاحَ عَلَيْهِمَا أَن يَتَرَاجَعَا إِن ظَنَّا أَن يُقِيمَا حُدُودَ اللَّـهِ ۗ "
“If he divorces her, it is not lawful for her to marry him again until she marries another man. Then if that (other husband) also divorces her, there is no sin upon them if they return to each other, provided they know they can observe Allah’s limits.”
Reference: Al-Baqarah: 2/230
Allama Ibn Qayyim (may Allah have mercy on him) states that after the marriage and intercourse with the second husband, the permissibility of the first husband is a great favor from Allah Almighty. In the Torah, permissibility was granted only through the second marriage; intercourse was not a condition, and in the Gospel, divorce was completely prohibited. The Shariah of Islam is perfect, in which the welfare of the servants has been fully considered. A man is permitted to marry up to four women, allowed to keep concubines, given the right to divorce, and also the possibility of reconciliation is kept. But after the third divorce, a condition is set for return that another man should marry with desire, not as a ruse. The person who marries with the intention of halala, the Messenger of Allah (peace be upon him) called him a "borrowed bull," therefore a marriage done with this intention is invalid and through it the woman does not become permissible for the first husband. And Allah knows best.
Rules of Ilaa
The literal meaning of Ilaa is: to swear an oath. The Shariah meaning is that a person swears that he will not have intercourse with his wife. The jurists have defined it as follows:
“A husband who is capable of intercourse swears by Allah Almighty or one of His attributes that he will not have intercourse with his wife through the vaginal route forever or for a period exceeding four months.”
From this definition, it is clear that there are five conditions for Ilaa to be valid:
① The person making Ilaa must be capable of intercourse.
② He must swear by Allah Almighty or one of His attributes, not intending divorce, emancipation, or a vow.
③ He must swear to abstain from intercourse through the vaginal route.
④ The period of abstinence must be more than four months.
⑤ The wife must be such that intercourse with her is possible.
When these five conditions are met, he will be considered legally as having made Ilaa, and the rulings of Ilaa will apply to him. If even one condition is missing, the Ilaa will not be valid.
Allah Almighty has said:
"لِّلَّذِينَ يُؤْلُونَ مِن نِّسَائِهِمْ تَرَبُّصُ أَرْبَعَةِ أَشْهُرٍ ۖ فَإِن فَاءُوا فَإِنَّ اللَّهَ غَفُورٌ رَّحِيمٌ (226) وَإِنْ عَزَمُوا الطَّلَاقَ فَإِنَّ اللَّهَ سَمِيعٌ عَلِيمٌ"
“Those who swear not to have relations with their wives shall have a term of four months; and if they return, then indeed, Allah is Forgiving and Merciful. But if they intend divorce, then indeed, Allah is Hearing and Knowing.”
Reference: Al-Baqarah: 2:226-227
The meaning of this verse is that those who swear not to have intercourse with their wives are given a period of four months. If during this period they return and pay the expiation for their oath, then Allah is forgiving.
Reference: If the oath in 'Ila' is for less than four months and he completes it, then no expiation is required. If the oath in 'Ila' is for more than four months, then he must pay the expiation mentioned in Surah Al-Ma'idah 5:89. (Saarim)
And if four months pass and they persist in their stance, they should be brought before the Qadha council and persuaded to resume relations with their wife and pay the expiation. If they refuse, then upon the woman's request, they shall be ordered to grant a divorce.
Reference: 63
This verse ends the injustice of ignorance in which the husband would keep the wife hanging by pronouncing for a long time just to cause her distress. Islam has protected the woman from this injustice with justice.
In Islam, for more than four months is forbidden, because it causes the abandonment of a mandatory right.
is established by every husband whose divorce is valid, whether he is Muslim or non-Muslim, free or slave, adult or a sane minor; however, after reaching puberty, the demand to resume relations will be made. Similarly, one can in a state of anger or if the person is ill but expected to recover. Even with a woman with whom intercourse has not yet occurred, can be done, because the words of the verse are general.
by a mad or unconscious person is not valid, because intention is essential and their words are not valid.
If the husband is unable to have intercourse, for example, if he is impotent or has a severed private organ, then Ilā’ will not be established, because in this case, not having intercourse is due to incapacity, not because of an oath.
If someone says: "By Allah! I will never have intercourse with you," or takes an oath not to have intercourse for more than four months, or sets a condition for intercourse that is not expected to be fulfilled within four months, such as the descent of Jesus (peace be upon him) or the emergence of the Dajjal, then in all such cases, the ruling of Ilā’ will apply. Similarly, if he sets a condition that is forbidden to fulfill or obligatory to abandon, for example, saying: "By Allah! I will not have intercourse with you until you abandon prayer," or "until you drink alcohol," then in this case too, Ilā’ will be established, because he has set a condition that is legally prohibited, which is similar to an impossible condition in a sensory sense.
In these circumstances, a period for Ilā’ is fixed. Allah Almighty has said:
"لِّلَّذِينَ يُؤْلُونَ مِن نِّسَائِهِمْ تَرَبُّصُ أَرْبَعَةِ أَشْهُرٍ "
“Those who swear not to have relations with their wives shall have a term of four months.”
Reference: Al-Baqarah:2/228
It is narrated from Sayyiduna Ibn Umar رضي الله تعالى عنه that when a person who has sworn for a period longer than four months completes the four months, he will be brought before the Qadi and asked to pronounce divorce. It should be noted that mere Ilaa (refusal of conjugal relations) does not result in divorce; divorce occurs only upon pronouncement.
Imam Bukhari رحمه الله عليه has narrated in Sahih Bukhari that fourteen Sahabah رضوان الله عنهم أجمعين held this same ruling. Sulaiman bin Yasar رحمه الله عليه says that I found more than ten Sahabah رضوان الله عنهم أجمعين, and all of them held the view that the one who performs Ilaa will be brought to the assembly. The majority of scholars also hold this ruling, and the apparent meaning of the verse also indicates this.
When the four months of Ilaa are completed, and it should be noted that the days of the woman’s excuse are not counted in this period, then there are two cases:
① If he has intercourse with his wife, it will be understood that he has withdrawn the oath, because intercourse itself is "fī’." Ibn Mundhir, may Allah have mercy on him, has narrated the consensus of the scholars on this. And in the words of the verse "فَإِن فَاءُوا," the meaning of fī’ is to return to the act that was abandoned. Through this, the woman obtains her right.
② If after four months he still refuses intercourse, the ruler or judge will order him to divorce her upon the woman's demand. Allah Almighty said:
"وَإِنْ عَزَمُوا الطَّلَاقَ فَإِنَّ اللَّـهَ سَمِيعٌ عَلِيمٌ "
"And if they intend to have a divorce, then indeed, Allah is Hearing and Knowing."
Reference: Al-Baqarah: 2:226-227
That is, if the husband does not return and firmly intends to divorce, then the divorce will take place. And if he neither returns nor divorces, the judge will divorce on his behalf or annul the marriage, because he is his representative, and delegation in divorce is permissible.
The jurists have included with the one who makes __ARABIC_N__ the person who, without taking an oath, refrains from intercourse merely to trouble his wife. Similarly, the person who commits __ARABIC_N__ with his wife and then does not restore relations by paying the expiation until more than four months have passed, is also considered under the ruling of __ARABIC_N__. And Allah knows best.
The jurists have also said that if the period of __ARABIC_N__ has passed and neither the husband nor the wife is able to have intercourse, the husband will be instructed to say words of return verbally, for example: "When I am able, I will have intercourse." Because this shows that he has abandoned the intention to harm the woman. Then, when the excuse is removed, he should either have intercourse or give a divorce.
Rulings of __ARABIC_N__
Zihar is when a man severs relations with his wife by saying to her: "You are to me like the back of my mother," or "like the back of my sister," or likening her to a woman with whom marriage is permanently forbidden due to kinship, suckling, or in-law relationships.
Reference: The truth is that zihar is only established by "أنت علي كظهر أمي" — "You are to me like the back of my mother."
Zihar is forbidden. Allah Almighty has said:
"الَّذِينَ يُظَاهِرُونَ مِنكُم مِّن نِّسَائِهِم مَّا هُنَّ أُمَّهَاتِهِمْ ۖ إِنْ أُمَّهَاتُهُمْ إِلَّا اللَّائِي وَلَدْنَهُمْ ۚ وَإِنَّهُمْ لَيَقُولُونَ مُنكَرًا مِّنَ الْقَوْلِ وَزُورًا"
“Among you are those who pronounce zihar to their wives; they are not their mothers. Their mothers are only those who gave birth to them. Indeed, they utter an ill word and a lie.”
Reference: Al-Mujadila: 58:2
From this, it is understood that zihar is a bad, false, and unlawful statement. A man is forbidding something upon himself which Allah has not forbidden, and he is likening his wife to his mother, whereas she is not his mother.
In the age of ignorance, Zihar was considered a form of divorce. When Islam came, it declared it false and a lie, and prescribed expiation for it, which is more severe than the expiation for an oath. It was made obligatory on both husband and wife that until the husband pays the expiation, intercourse and its preliminaries remain forbidden.
Allah Almighty said:
"الَّذِينَ يُظَاهِرُونَ مِنكُم مِّن نِّسَائِهِم مَّا هُنَّ أُمَّهَاتِهِمْ ۖ إِنْ أُمَّهَاتُهُمْ إِلَّا اللَّائِي وَلَدْنَهُمْ ۚ وَإِنَّهُمْ لَيَقُولُونَ مُنكَرًا مِّنَ الْقَوْلِ وَزُورًا ۚ وَإِنَّ اللَّـهَ لَعَفُوٌّ غَفُورٌ ﴿٢﴾ وَالَّذِينَ يُظَاهِرُونَ مِن نِّسَائِهِمْ ثُمَّ يَعُودُونَ لِمَا قَالُوا فَتَحْرِيرُ رَقَبَةٍ مِّن قَبْلِ أَن يَتَمَاسَّا ۚ ذَٰلِكُمْ تُوعَظُونَ بِهِ ۚ وَاللَّـهُ بِمَا تَعْمَلُونَ خَبِيرٌ ﴿٣﴾ فَمَن لَّمْ يَجِدْ فَصِيَامُ شَهْرَيْنِ مُتَتَابِعَيْنِ مِن قَبْلِ أَن يَتَمَاسَّا ۖ فَمَن لَّمْ يَسْتَطِعْ فَإِطْعَامُ سِتِّينَ مِسْكِينًا ۚ ذَٰلِكَ لِتُؤْمِنُوا بِاللَّـهِ وَرَسُولِهِ ۚ وَتِلْكَ حُدُودُ اللَّـهِ ۗ وَلِلْكَافِرِينَ عَذَابٌ أَلِيمٌ "
“Those of you who call their wives 'mother' (i.e., commit Zihar) are not their mothers; their real mothers are those who gave birth to them. Indeed, they utter an unreasonable and false statement. Surely, Allah is Forgiving and Merciful. (2) And those who commit Zihar and then retract what they said must free a slave before they touch each other again. This is how you are advised. And Allah is well aware of what you do. (3) But if someone cannot afford to free a slave, then he must fast for two consecutive months before they touch each other. And if he is unable to do that, then he must feed sixty poor people. This is so that you may obey Allah and His Messenger. These are the limits set by Allah, and for the disbelievers is a painful punishment.”
Reference: Al-Mujadila: 58:3-4
And the Messenger of Allah, peace be upon him, said to the one who commits Zihar:
" فَلَا تَقْرَبْهَا حَتَّى تَفْعَلَ مَا أَمَرَكَ اللَّهُ بِهِ "
“Do not approach your wife until you have paid the expiation appointed by Allah.”
Reference: Sunan Abi Dawood, Divorce, Chapter on Zihar, Hadith 2221; Jami` at-Tirmidhi, Divorce, Chapter on what has been narrated about those who commit Zihar before expiation, Hadith 1199, and the wording is his
According to most scholars, it is obligatory for the one who commits Zihar to pay the expiation before intercourse, meaning the wife remains forbidden to him until the expiation is completed.
Order of the Expiation for Zihar
The expiation for Zihar is obligatory in the order mentioned in the Qur'an:
① Freeing a slave or a female slave, or paying their price.
② If one is unable to do that, then fasting continuously for two months.
③ If that is also not possible due to illness or other reasons, then feeding sixty poor people.
Allah Almighty said:
"وَالَّذِينَ يُظَاهِرُونَ مِن نِّسَائِهِمْ ثُمَّ يَعُودُونَ لِمَا قَالُوا فَتَحْرِيرُ رَقَبَةٍ مِّن قَبْلِ أَن يَتَمَاسَّا ۚ ذَٰلِكُمْ تُوعَظُونَ بِهِ ۚ وَاللَّـهُ بِمَا تَعْمَلُونَ خَبِيرٌ ﴿٣﴾ فَمَن لَّمْ يَجِدْ فَصِيَامُ شَهْرَيْنِ مُتَتَابِعَيْنِ مِن قَبْلِ أَن يَتَمَاسَّا ۖ فَمَن لَّمْ يَسْتَطِعْ فَإِطْعَامُ سِتِّينَ مِسْكِينًا ۚ ذَٰلِكَ لِتُؤْمِنُوا بِاللَّـهِ وَرَسُولِهِ ۚ وَتِلْكَ حُدُودُ اللَّـهِ ۗ وَلِلْكَافِرِينَ عَذَابٌ أَلِيمٌ"
“Those who pronounce zihar against their wives and then revoke what they said must free a slave before they touch each other again. This is how you are admonished. And Allah is fully aware of what you do. (3) But if someone cannot afford to free a slave, then he must fast for two consecutive months before they touch each other again. And if he is unable to do that, then he must feed sixty poor people. This is so that you may obey Allah and His Messenger. These are the limits set by Allah, and a painful punishment awaits the disbelievers.”
Reference: Al-Mujadila: 58:3-4
“The meaning of ‘يُظَاهِرُونَ مِن نِّسَائِهِمْ’ is that a man tells his wife that she is forbidden to him like his mother’s back, or says a similar word.
‘ثُمَّ يَعُودُونَ لِمَا قَالُوا’ means that then he intends to have intercourse with the same woman from whom he made the declaration of zihar.
And ‘فَتَحْرِيرُ رَقَبَةٍ مِّن قَبْلِ أَن يَتَمَاسَّا’ means that it is obligatory to free a slave before they have intercourse.
It is a condition for freeing a slave or a female slave that they be a believer, because Allah Almighty has made the condition of a believing neck in the expiation for killing:
"وَمَن قَتَلَ مُؤْمِنًا خَطَأً فَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ"
“Whoever kills a believer unintentionally, then freeing a believing slave is obligatory upon him.”
Reference: An-Nisa:4/92
Therefore, in the expiation for zihar, the general term will be applied to a specific (believing) person. Similarly, it is also a condition that the slave or female slave be physically sound, meaning that there should be no defect that clearly hinders their work, because the purpose of freeing is that they become the owner of their own benefit, and this is only possible if they are physically capable.
Conditions of Fasting
The conditions for observing fasts as expiation for Zihar are as follows:
① One should not have the ability to free a slave or a slave girl.
② The fasts must be consecutive for two months, with no break in between, except for a valid excuse recognized by Shariah, such as the beginning of Ramadan, Eid, or the days of Tashreeq, or the use of leave in case of illness or travel. In such cases, the continuity will not be broken.
③ One must intend the fast of expiation every night.
Conditions for feeding food
If the expiation is paid by feeding sixty poor people, the following conditions apply:
① One should not have the strength to fast.
② The person being fed must be poor, Muslim, and free, and eligible to receive Zakat.
③ Each poor person should be given no less than one “Mudd” (half a kilo) of wheat or other food, which is half a “Saa’” (one kilo).
And intention is a condition for the validity of the expiation, because the Messenger of Allah (peace be upon him) said:
"إِنَّمَا الأَعْمَالُ بِالنِّيَّاتِ، وَإِنَّمَا لِكُلِّ امْرِئٍ مَا نَوَى"
"Actions depend on intentions, and a person will get only what he intended."
Reference: Sahih al-Bukhari, Beginning of Revelation, Chapter: How the Revelation Began to the Messenger of Allah ﷺ, Hadith 1
Besides the Quran, the incident of Sayyida Khawla (may Allah be pleased with her) is also evidence for this order. She said:
"ظاهر مني زوجي أوس بن الصامت فجئت رسول الله صلى الله عليه وسلم أشكو إليه ورسول الله صلى الله عليه وسلم يجادلني فيه ويقول اتقي الله فإنه ابن عمك فما برحت حتى نزل القرآن )قد سمع الله قول التي تجادلك في زوجها (إلى الفرض فقال يعتق رقبة قالت لا يجد قال فيصوم شهرين متتابعين قالت يا رسول الله إنه شيخ كبير ما به من صيام قال فليطعم ستين مسكينا قالت ما عنده من شيء يتصدق به قالت فأتي ساعتئذ بعرق من تمر قلت يا رسول الله فإني أعينه بعرق آخر قال قد أحسنت اذهبي فأطعمي بها عنه ستين مسكينا وارجعي إلى ابن عمك "
"My husband Aws ibn Thabit (may Allah be pleased with him) pronounced Zihar on me, so I came to the presence of the Messenger of Allah ﷺ and complained about my husband. I began to argue with you, and you said: 'Khawla! Fear Allah, he is the son of your maternal uncle.' I was still there when the verses of the Quran were revealed: 'Indeed, Allah has heard the statement of the woman who disputes with you concerning her husband.' The Messenger of Allah ﷺ said: 'Your husband must free a slave.' Hazrat Khawla (may Allah be pleased with her) said that he did not have the strength for that. The Messenger of Allah ﷺ said:
"He fasted continuously for two months." She said, "O Messenger of Allah, he is very old; how can he have the strength to fast?" The Prophet ﷺ said: "He should feed sixty poor people." She said: "He has nothing to give in charity." She said that at that moment a basket of dates was brought to the Prophet ﷺ, so I said: O Messenger of Allah ﷺ, I will also give him one basket. The Prophet ﷺ said: "Very good. Go and feed these sixty poor people on his behalf. Tell your cousin (husband) to restore relations with you."
Reference: Sunan Abi Dawood, Divorce, Chapter on Zihar, Hadith 2214
Alhamdulillah! Our religion is such a great religion in which every difficulty has a solution. Zihar was a severe hardship in the time of ignorance that caused the destruction of families, but Islam presented a just solution for it. Furthermore, in the expiation, the husband's capacity and ability were also taken into consideration. Alhamdulillah for that.
Rulings of Lian
Allah Almighty has forbidden accusing any chaste man or woman of adultery, and has decreed severe punishment for the one who makes such an accusation. Allah Almighty said:
"إِنَّ الَّذِينَ يَرْمُونَ الْمُحْصَنَاتِ الْغَافِلَاتِ الْمُؤْمِنَاتِ لُعِنُوا فِي الدُّنْيَا وَالْآخِرَةِ وَلَهُمْ عَذَابٌ عَظِيمٌ ﴿٢٣﴾ يَوْمَ تَشْهَدُ عَلَيْهِمْ أَلْسِنَتُهُمْ وَأَيْدِيهِمْ وَأَرْجُلُهُم بِمَا كَانُوا يَعْمَلُونَ ﴿٢٤﴾ يَوْمَئِذٍ يُوَفِّيهِمُ اللَّـهُ دِينَهُمُ الْحَقَّ وَيَعْلَمُونَ أَنَّ اللَّـهَ هُوَ الْحَقُّ الْمُبِينُ"
“Those who accuse chaste, innocent, believing women are cursed in this world and the Hereafter, and for them is a great punishment (23) When their tongues and their hands and their feet will bear witness against them as to what they used to do (24) On that Day Allah will give them their full recompense with justice, and they will know that Allah is the Truth and that He is the Manifester of the truth.”
Reference: An-Nur: 24:23-25
And Allah Almighty has emphasized that if anyone accuses of adultery and cannot produce four witnesses in support of his claim, then he shall be flogged with the same number of lashes, he will be considered a sinner and his testimony will not be accepted, unless he sincerely repents. Allah Almighty said:
"وَالَّذِينَ يَرْمُونَ الْمُحْصَنَاتِ ثُمَّ لَمْ يَأْتُوا بِأَرْبَعَةِ شُهَدَاءَ فَاجْلِدُوهُمْ ثَمَانِينَ جَلْدَةً وَلَا تَقْبَلُوا لَهُمْ شَهَادَةً أَبَدًا ۚ وَأُولَـٰئِكَ هُمُ الْفَاسِقُونَ ﴿٤﴾ إِلَّا الَّذِينَ تَابُوا مِن بَعْدِ ذَٰلِكَ وَأَصْلَحُوا فَإِنَّ اللَّـهَ غَفُورٌ رَّحِيمٌ"
“Those who accuse chaste women of adultery and then do not produce four witnesses, flog them with the same punishment and never accept their testimony. These are the wicked people. (4) However, those who repent and reform thereafter, Allah is Forgiving and Merciful.”
Reference: An-Nur: 24:4-5
These rulings apply when someone accuses a woman other than his wife. But if someone accuses his own wife of adultery, there is a different ruling called “Lian,” in which both husband and wife swear specific oaths and words of curse and wrath are used.
If a man accuses his wife of adultery and has no evidence, and both agree to the Lian, then no punishment will be imposed on either. Allah Almighty said:
"وَالَّذِينَ يَرْمُونَ أَزْوَاجَهُمْ وَلَمْ يَكُن لَّهُمْ شُهَدَاءُ إِلَّا أَنفُسُهُمْ فَشَهَادَةُ أَحَدِهِمْ أَرْبَعُ شَهَادَاتٍ بِاللَّـهِ ۙ إِنَّهُ لَمِنَ الصَّادِقِينَ ﴿٦﴾ وَالْخَامِسَةُ أَنَّ لَعْنَتَ اللَّـهِ عَلَيْهِ إِن كَانَ مِنَ الْكَاذِبِينَ ﴿٧﴾ وَيَدْرَأُ عَنْهَا الْعَذَابَ أَن تَشْهَدَ أَرْبَعَ شَهَادَاتٍ بِاللَّـهِ ۙ إِنَّهُ لَمِنَ الْكَاذِبِينَ ﴿٨﴾ وَالْخَامِسَةَ أَنَّ غَضَبَ اللَّـهِ عَلَيْهَا إِن كَانَ مِنَ الصَّادِقِينَ "
“Those who accuse their wives of adultery and have no witness except themselves, then each of them should swear by Allah four times that they are indeed truthful (6) and the fifth time say that the curse of Allah be upon him if he is among the liars (7). And the punishment can be removed from that woman if she swears by Allah four times that indeed her husband is among the liars (8) and the fifth time says that the wrath of Allah be upon him if her husband is among the truthful.”
Reference: An-Nur:24.6.9
The husband should say four times, “By Allah! My wife has committed adultery.” If the wife is present, he should also point towards her, and if she is not present, he should mention her name, so that the matter becomes clear. The fifth time he should say, “If I am lying, then may the curse of Allah be upon me.”
Then the wife will swear four times that her husband is lying about the accusation he has made against her, and on the fifth time she will say that if her husband is truthful, then may Allah's wrath be upon her.
The word "wrath" is used for the woman in the case of __ARABIC_N__ because one who knowingly rejects the truth is considered __ARABIC_N__.
For the __ARABIC_N__ to be valid, the condition is that both husband and wife must be accountable, i.e., sane and adult, and the accusation must be of adultery, and the woman must continuously deny the husband's claim until the __ARABIC_N__ is complete and the judge decides its completion.
When these conditions and circumstances are met, three rulings will apply:
① The husband will not be liable for the punishment of __ARABIC_N__.
② The husband and wife will be permanently separated from each other; their marital relationship will now be forbidden.
③ If the husband also denies the child’s lineage to himself in the __ARABIC_N__, then that child will not be attributed to that husband.
A husband will resort to the path of __ARABIC_N__ only when he finds his wife guilty of adultery but does not have evidence that can be presented in court, or he has strong circumstantial evidence, such as repeatedly seeing a corrupt person coming and going to his wife.
The wisdom behind the permissibility of __ARABIC_N__ is that keeping an adulterous wife is a source of shame for the husband, and there is also the risk of the lineage of another man's child being attributed to him. The husband is certain of his claim but lacks proof, and the woman does not confess but instead calls the husband a liar. In such a situation, it is appropriate to decide through severe oaths. The Shariah has prescribed the path of __ARABIC_N__ to resolve this difficulty.
If the husband has no witness other than himself, the woman will be given the opportunity to swear oaths in response to the husband's oaths to deny the accusation, which will result in her being spared the punishment of hadd. If the husband refuses to swear oaths, then the punishment of qadhf (false accusation), that is, the same number of lashes, will be inflicted on him. And if after the husband swears oaths, the woman denies by swearing oaths, then the man's oaths and the woman's denial will be strong evidence that the crime was committed by her.
Allama Ibn Qayyim, may Allah have mercy on him, states that the evidence is established on this matter, and Imam Ahmad, Imam Shafi'i, and Imam Malik, may Allah have mercy on them, also said that if the woman refuses to swear oaths, then the hadd punishment for adultery will be applied to her. This is the correct opinion, and the Holy Quran also supports this.
The evidence for La'an in Sunnah is narrated from Sayyiduna Ibn Umar رضي الله تعالى عنه in the incident where a man asked the Messenger of Allah صلی اللہ علیہ وسلم: If a man sees his wife with another man, what should he do? If he speaks out, it is a big matter, and if he remains silent, it is also unbearable. The Messenger of Allah صلی اللہ علیہ وسلم remained silent, then the man came again and said that now this matter has actually happened to me. Then the verses of Surah An-Nur were revealed:
"وَالَّذِينَ يَرْمُونَ أَزْوَاجَهُمْ .....إِن كَانَ مِنَ الصَّادِقِينَ "
They were revealed. The Prophet Muhammad (peace be upon him) recited them and preached that the punishment of this world is very light compared to the punishment of the Hereafter. The husband said that he was not lying. Then the woman was called and advised; she also said that he was lying. Then the husband swore four oaths that he was truthful, and on the fifth time said that if he was lying, then Allah's curse be upon him. Then the woman swore four oaths that her husband was lying, and on the fifth time said that if the husband was truthful, then Allah's wrath be upon him. After that, the Messenger of Allah (peace be upon him) separated them.
Reference: Sahih Muslim, Al-Li'an, Hadith 1493
Statement on Establishing Lineage
If a man's wife or slave woman bears a child, and it is possible that the child is his, then the child's lineage will be attributed to that man, because the child was born in his bed. The Messenger of Allah (peace be upon him) said:
"الولد للفراش"
“The child belongs to the one on whose bed the child is born.”
Reference: Sahih al-Bukhari, Hudood, Chapter on Fornication, Hadith 68.18, Jami` at-Tirmidhi, Ar-Rida` Chapter, What Has Been Related About the Child Belonging to the Bed, Hadith 1157
In the following cases, the child will be considered the legitimate offspring of that person:
① The woman is married to the husband, and the child is conceived within at least six months after the possibility of intercourse, whether the husband is present with her or absent. In this case, it is possible that the child belongs to this husband, and there is no strong evidence against it.
② The woman is no longer married to the husband, meaning the husband has separated from her, and she conceives a child within less than four years after the divorce. Then the child will be considered the legitimate offspring of the former husband, because the maximum duration of pregnancy is considered to be four years, so it is highly likely that the child belongs to him.
In both these cases, one condition is that both the man and the woman must be capable of producing a child, meaning their age is ten years or more, because the Prophet (peace be upon him) said:
"مُرُوا أَوْلادَكُمْ بِالصَّلاةِ وَهُمْ أَبْنَاءُ سَبْعِ سِنِينَ وَاضْرِبُوهُمْ عَلَيْهَا وَهُمْ أَبْنَاءُ عَشْرٍ وَفَرِّقُوا بَيْنَهُمْ فِي الْمَضَاجِعِ "
“Command your children to pray when they reach the age of seven, and when they reach the age of ten and do not pray, then beat them and separate their beds.”
Reference: Sunan Abi Dawood, Prayer, Chapter: When the boy is commanded to pray, Hadith 495
From this, it is inferred that the possibility of intercourse exists at the age of ten.
Reference: The author's inference is not accepted by the majority of scholars. Therefore, this is debatable (Saarim)
③ If someone gives his wife a revocable divorce, and before four years have passed since the time of divorce and before the completion of the waiting period (iddah), she gives birth to a child, then the child's lineage will be attributed to the one who gave the divorce, because the revocable divorced wife remains under his authority.
For attributing the lineage of a child born from a slave woman to the master, the following conditions are sufficient:
First: The master admits that he had intercourse with the slave woman, or there is clear evidence in his favor.
Second: After this admission or proof of intercourse, the woman conceives a child within six months or more.
In this case, the child's lineage will be attributed to the owner, because he has been established as the master of the bed, therefore the hadith "The child belongs to the owner of the bed" applies generally.
Reference: Sahih al-Bukhari, Al-Judood, Bab Lil Aahir Al-Hajr, Hadith: 6818
Similarly, if the owner admits to intercourse with the slave woman, then sells or frees her, and she conceives before the six months of sale or freedom are completed and the child survives, the lineage will still be attributed to that owner, because the minimum gestation period is six months, which shows that the pregnancy occurred during the time of his ownership.
There are two cases in which the child's lineage will not be attributed to the husband:
① When the woman conceives a child six months before the marriage and the child survives, because it is not possible for the pregnancy to have occurred after the marriage and the child to be born alive within such a period, therefore it will be understood that she was already pregnant before.
② When a man gives his wife an irrevocable divorce, and then the woman gives birth to a child more than four years after the time of divorce, the child's lineage will not be attributed to the man who gave the divorce, because this exceeds the maximum duration of pregnancy.
If a master claims to be free from pregnancy (istibra) after intercourse with a slave woman, and then she gives birth to a child, the child's lineage will not be attributed to the master, because he is the claimant of istibra. Since istibra is a hidden matter, its claim will be accepted with an oath.
If there is doubt about the lineage of a child, the owner of the bed will be judged. For example, if the master says this child is mine, and another person claims the child is his based on doubtful intercourse, the child will be considered the master's, because:
"الولد للفراش"
“The child belongs to the owner of the bed.”
Reference: Sahih al-Bukhari, Al-Judood, Chapter on Prohibition of Fornication, Hadith 68.18
The child will follow the father in lineage, because Allah Almighty said:
"ادْعُوهُمْ لِآبَائِهِمْ"
“Call the foster-parents by their (real fathers') names.”
Reference: Al-Ahzab 5/33
In religion, a child will follow the parent who has the better faith. For example, between a Christian and a polytheist, the child will follow the Christian.
In terms of freedom and slavery, the child will follow the mother, unless the one who freed the child has set a condition, or there is a specific case of deception.
Islam has explained these rules of lineage so that genealogies remain preserved, because many rulings such as maintaining kinship ties, inheritance, guardianship, and many others are connected with them. Allah Almighty has said:
"يَا أَيُّهَا النَّاسُ إِنَّا خَلَقْنَاكُم مِّن ذَكَرٍ وَأُنثَىٰ وَجَعَلْنَاكُمْ شُعُوبًا وَقَبَائِلَ لِتَعَارَفُوا ۚ إِنَّ أَكْرَمَكُمْ عِندَ اللَّـهِ أَتْقَاكُمْ ۚ إِنَّ اللَّـهَ عَلِيمٌ خَبِيرٌ"
“O mankind! Indeed We have created you from a male and a female and made you into nations and tribes so that you may know one another. Indeed, the most honored of you in the sight of Allah is the most righteous of you. Indeed, Allah is Knowing and Acquainted.”
Reference: Al-Hujurat:13.49
Therefore, the purpose of knowing lineage and ancestry is not for pride or ignorant boasting, but for mutual cooperation, maintaining kinship ties, and showing mercy and compassion to one another.
May Allah Almighty grant us all the ability to perform deeds that are beloved and pleasing to Him. Ameen.
Rules of 'Iddah'
After divorce, 'Iddah' (waiting period) is obligatory. This means that a woman must wait for a specified period with certain restrictions prescribed by Shariah.
The evidence for 'Iddah' is from the Book of Allah, the Sunnah of the Messenger of Allah ﷺ, and the consensus of the Ummah. Allah Almighty said:
"وَالْمُطَلَّقَاتُ يَتَرَبَّصْنَ بِأَنفُسِهِنَّ ثَلَاثَةَ قُرُوءٍ ۚ "
“Divorced women shall keep themselves waiting for three menstrual periods.”
Reference: Al-Baqarah:2/228
And He said:
"وَاللَّائِي يَئِسْنَ مِنَ الْمَحِيضِ مِن نِّسَائِكُمْ إِنِ ارْتَبْتُمْ فَعِدَّتُهُنَّ ثَلَاثَةُ أَشْهُرٍ وَاللَّائِي لَمْ يَحِضْنَ ۚ وَأُولَاتُ الْأَحْمَالِ أَجَلُهُنَّ أَن يَضَعْنَ حَمْلَهُنَّ ۚ "
“And those of your women as have passed the age of monthly courses, for them the 'Iddah' if you have doubt, is three months, and for those who have no courses (i.e., they are still immature), their 'Iddah' is three months likewise, except in case of death. And for those who are pregnant, their 'Iddah' is until they deliver their burdens.”
Reference: At-Talaq:4/55
These verses pertain to the 'Iddah' after separation during life. And if the 'Iddah' is due to the husband's death, then Allah Almighty said:
"وَالَّذِينَ يُتَوَفَّوْنَ مِنكُمْ وَيَذَرُونَ أَزْوَاجًا يَتَرَبَّصْنَ بِأَنفُسِهِنَّ أَرْبَعَةَ أَشْهُرٍ وَعَشْرًا ۖ "
“And those of you who die and leave wives behind, they (the wives) shall wait four months and ten days.”
Reference: Al-Baqarah:2/234
The Sunnah evidence is from the narration of Sayyidah Aisha (may Allah be pleased with her):
" أمرت بريرة أن تعتد بثلاث حيض "
“Barirah, may Allah be pleased with her, was commanded to observe three menstrual cycles of ‘iddah.”
Reference: Sunan Ibn Majah, Divorce, Chapter on the option of ‘Iddah when the woman is divorced, Hadith 2077
The wisdom behind the legitimacy of ‘iddah is that the state of pregnancy in the womb becomes clear and there is no confusion in lineage. Similarly, in revocable divorce, the husband is given a period during which, if he repents, he may reconcile. This includes the sanctity and respect of marriage, honoring the husband's rights, and if the woman is pregnant, the protection of the fetus. In short, ‘iddah is a means of preserving the respect of marriage.
‘Iddah is obligatory on every woman who has separated from her husband, whether the cause is divorce, khula, annulment of marriage, or the husband's death, provided that the husband has been intimate with her, whether the woman is free or a slave, adult or such a minor with whom intercourse is possible.
If a woman is divorced before any intimacy during her lifetime, then ‘iddah is not obligatory on her. Allah Almighty has said:
"يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا نَكَحْتُمُ الْمُؤْمِنَاتِ ثُمَّ طَلَّقْتُمُوهُنَّ مِن قَبْلِ أَن تَمَسُّوهُنَّ فَمَا لَكُمْ عَلَيْهِنَّ مِنْ عِدَّةٍ تَعْتَدُّونَهَا ۖ "
“O believers! When you marry believing women and then divorce them before touching them, there is no ‘iddah (waiting period) for them to count.”
Reference: Al-Ahzab:33:49
In the verse, “تَمَسُّوهُنَّ” (tamassuhunna) refers to intercourse. Scholars are unanimous on this. The word “الْمُؤْمِنَاتِ” (al-mu’minat) is used generally, because this ruling also applies to the women of the People of the Book.
However, if the husband dies, the woman must observe ‘iddah, whether intercourse took place or not, because the verse is general and there is no specification against it:
"وَالَّذِينَ يُتَوَفَّوْنَ مِنكُمْ وَيَذَرُونَ أَزْوَاجًا يَتَرَبَّصْنَ بِأَنفُسِهِنَّ أَرْبَعَةَ أَشْهُرٍ وَعَشْرًا ۖ "
“Those of you who die and leave behind wives, those wives shall wait for four months and ten days.”
Reference: Al-Baqarah:2/234
There are six types of women who observe ‘iddah:
① Pregnant
② Non-pregnant whose husband has died
③ Non-pregnant divorced woman who menstruates
④ Divorced woman who does not menstruate
⑤ Woman whose menstruation has stopped due to old age, youth, or illness
⑥ Woman whose husband is missing
‘Iddah of the Pregnant Woman
The waiting period (iddah) for a pregnant woman lasts until she gives birth, whether the separation from the husband is due to divorce or his death. Allah Almighty has said:
"وَأُولَاتُ الْأَحْمَالِ أَجَلُهُنَّ أَن يَضَعْنَ حَمْلَهُنَّ ۚ "
“The waiting period for pregnant women is until they give birth.”
Reference: At-Talaq:4/65
From this verse, it is understood that the iddah of a pregnant woman ends upon the birth of the child, whether the husband has died or has divorced her. Some of the early scholars held the view that in the case of death, the longer of the two iddahs should be observed, but later the scholars unanimously agreed that the iddah ends with childbirth.
However, the iddah does not end with every expelled matter; rather, it must be a child in whom the human form and features are evident. If it is only a lump of flesh without clear human formation, then the iddah does not end.
Similarly, the pregnancy must be of the same husband who has divorced the woman. If the pregnancy is not of that husband, for example, if the husband is so young that he cannot father a child, or is incapable due to a congenital defect, or the woman gave birth to a living child six months before the marriage, then the 'iddah will not end because the lineage is not established with that husband.
The minimum duration of pregnancy is six months. Allah Almighty has said:
"وَحَمْلُهُ وَفِصَالُهُ ثَلاثُونَ شَهْرًا"
“The period of pregnancy and weaning of the child is thirty months.”
Reference: Al-Ahqaf:46/15
And He said:
"وَالْوَالِدَاتُ يُرْضِعْنَ أَوْلَادَهُنَّ حَوْلَيْنِ كَامِلَيْنِ ۖ "
“Mothers shall breastfeed their children for two full years.”
Reference: Al-Baqarah:2/233
When two years, i.e., twenty-four months, are subtracted from thirty months, six months remain; this is the minimum duration of pregnancy.
There is a difference of opinion among scholars regarding the maximum duration of pregnancy. The preferred view is to refer to actual examples. Allama Muwaffaq al-Din Ibn Qudamah, may Allah have mercy on him, states that where there is no text, observation is reliable. Although some examples of five years or more have been reported, the prevailing duration is nine months.
The Islamic Shariah has given great respect and status to pregnancy. It is not permissible to harm the pregnancy. If the pregnancy is terminated due to someone's wrongdoing after the soul has entered, then blood money (diyah) and expiation (kaffarah) become obligatory. If a pregnant woman is subject to a hadd punishment or stoning, the implementation of the punishment will be postponed until the child is born. It is also not permissible to abort the pregnancy through medication.
Thanks be to Allah who has granted such a perfect Shariah in which the rights of even the unborn child in the womb are protected. We pray to Allah to grant us sincerity in following His commands and obedience to Him.
Iddat of Death
If a woman's husband dies and she is not pregnant, her waiting period (iddah) is four months and ten days, whether the husband's death occurs before or after intercourse, and whether the woman is capable of intercourse or not. The evidence is the general command of Allah Almighty:
"وَالَّذِينَ يُتَوَفَّوْنَ مِنكُمْ وَيَذَرُونَ أَزْوَاجًا يَتَرَبَّصْنَ بِأَنفُسِهِنَّ أَرْبَعَةَ أَشْهُرٍ وَعَشْرًا ۖ "
“Those of you who die and leave behind wives, the wives shall wait for four months and ten days.”
Reference: Al-Baqarah:2/234
Allama Ibn Qayyim, may Allah have mercy on him, states that the waiting period of four months and ten days is due to the husband's death, whether intercourse took place or not, because the evidences from the Quran and Sunnah are general, and the scholars are unanimous on this.
Reference: I'lam al-Muwaqqi'in 2/76
And Allama Wazir and others have also narrated that the scholars are unanimous on this.
For a slave woman, this waiting period is half, i.e., two months and five days. It is narrated that the Companions, may Allah be pleased with them all, were unanimous that the waiting period of divorce and death for a slave woman is half that of a free woman.
Reference: Al-Mughni wal-Sharh al-Kabir 9/108
Specific rulings of the waiting period after death
① A woman will observe her 'iddah (waiting period) at the place where she was residing at the time of her husband's death. It is not permissible to move from there without a valid excuse, because the Messenger of Allah (peace be upon him) told a woman to observe her 'iddah in the same house where she received the news of her husband's death.
Reference: Sunan Abi Dawood, Divorce, Chapter on the deceased husband, Hadith 2300; Sunan an-Nasa'i, Divorce, Chapter on the place of the deceased husband during 'iddah, Hadith 3559, 3560; Jami' at-Tirmidhi, Divorce, Chapter on what Ibn Ta'tad said about the deceased husband, Hadith 1204
② If she is compelled, for example, if there is a danger to life, if she is forcibly expelled, or if there is a problem with rent, then she may observe her 'iddah wherever she wishes.
③ She may leave the house during the day if necessary, but not at night, because the risk of disorder is greater at night. The hadith states:
"تحدثن عند إحداكن ما بدا لكن، فإذا أردتن النوم فلتأت كل امرأة إلى بيتها"
“You may gather together to talk with one another (during the day), but when it is time to sleep, each one should return to her own home.”
Reference: (Weak) Manar al-Sabeel, pp. 612-613, Hadith 2135; Al-Sunan al-Kubra by al-Bayhaqi 7/436. However, in cases of severe necessity, a woman may leave the house.
④ During the waiting period after death (Iddat al-Wafat), a woman should remain in a state of mourning. She should not adopt a demeanor that is decorative, beautifying, or attractive. Allama Ibn Qayyim (may Allah have mercy on him) has explained very subtle wisdom behind this: In the era of ignorance, women used to mourn for a whole year with severe distress, but Islam abolished this false practice and taught patience and gratitude. Mourning for other deceased persons besides the husband is permitted for three days, whereas mourning for the husband is connected with the waiting period (Iddat). Since in the presence of the husband, a woman needs perfume, adornment, etc., it is a right of the husband that she refrains from these during the waiting period after his death. This also prevents others' attraction and the woman's own display of adornment.
Reference: I'lam al-Muwaqqi'in: 2/145,147
Therefore, it is obligatory upon a woman during the waiting period after death that she:
✔ Does not apply henna
✔ Does not use decorative colors
✔ Does not wear jewelry
✔ Does not use perfume
✔ Does not wear bright and decorative clothing
✔ Wears simple clothing that is not considered adornment
⑤ For the 'Iddat of death,' Shariah has not prescribed any specific clothing, only that the clothing should not be a cause of adornment.
⑥ When the 'Iddat' is completed, there is no specific ritual or particular words established by Shariah for this occasion.
Iddat of a Divorced Woman
For a woman who does not menstruate, her 'Iddat' after divorce is three months. Allah Almighty has said:
"وَاللَّائِي يَئِسْنَ مِنَ الْمَحِيضِ مِن نِّسَائِكُمْ إِنِ ارْتَبْتُمْ فَعِدَّتُهُنَّ ثَلَاثَةُ أَشْهُرٍ"
“Those of your women who have despaired of menstruation, if you have any doubt, their 'Iddat' is three months.”
Reference: At-Talaq:4/55
And for a divorced woman who menstruates, provided she is not pregnant, her 'Iddat' is three menstrual cycles. Allah Almighty has said:
"وَالْمُطَلَّقَاتُ يَتَرَبَّصْنَ بِأَنفُسِهِنَّ ثَلَاثَةَ قُرُوءٍ ۚ وَلَا يَحِلُّ لَهُنَّ أَن يَكْتُمْنَ مَا خَلَقَ اللَّهُ فِي أَرْحَامِهِنَّ "
“Divorced women shall keep themselves waiting for three menstrual periods. It is not lawful for them to conceal what Allah has created in their wombs.”
Reference: Al-Baqarah:2/228
Here, "Qurū’" refers to menstruation. Among the Companions of the Prophet, may Allah be pleased with them all, this was the opinion of Hazrat Umar, Hazrat Ali, and Ibn Abbas, may Allah be pleased with them. And in the Hadith, "Qar’" has also been used to mean menstruation. The Prophet Muhammad (peace be upon him) said to a woman suffering from Istihadah (non-menstrual bleeding):
"إِذَا أَتَى قَرْؤُكِ فَلَا تُصَلِّي "
“When you experience menstruation, do not perform prayer.”
Reference: Sunan Abi Dawood, Purification, Chapter on Women Experiencing Istihadah, Hadith 280; Sunan An-Nasa’i, Menstruation, Chapter on Mentioning the Princes, Hadith 358
It is necessary to complete three full menstrual cycles in the waiting period ('iddah). If a divorce is given during menstruation, although it is forbidden, that menstruation will not be counted in the 'iddah.
If the divorced woman is a slave girl, her 'iddah is two menstrual cycles. This was the practice of Sayyiduna Umar, Ali, and Ibn Umar (may Allah be pleased with them), and there is no well-known opposition among the Companions. This ruling specifies the general command of Allah Almighty:
"وَالْمُطَلَّقَاتُ يَتَرَبَّصْنَ بِأَنفُسِهِنَّ ثَلَاثَةَ قُرُوءٍ "
“Divorced women shall keep themselves waiting for three menstrual periods.”
Reference: Al-Baqarah: 2/228
By specification. By analogy, it should have been one and a half menstrual cycles, but menstruation cannot be divided, so two menstrual cycles were prescribed.
For a woman whose menstruation has ceased due to old age, or a girl who has not yet begun menstruating, the 'iddah is three months. Allah Almighty has said:
"وَاللَّائِي يَئِسْنَ مِنَ الْمَحِيضِ مِن نِّسَائِكُمْ إِنِ ارْتَبْتُمْ فَعِدَّتُهُنَّ ثَلَاثَةُ أَشْهُرٍ وَاللَّائِي لَمْ يَحِضْنَ "
“Those women among you who have despaired of menstruation—if you have any doubt, their 'iddah is three months, and (likewise) for those who have not yet menstruated.”
Reference: At-Talaq:4/55
Imam Ibn Qudamah, may Allah have mercy on him, has narrated the consensus of the scholars on this matter.
Reference: Al-Mughni wal-Sharh al-Kabir Ibn Qudamah:9/90
If a slave girl is young or her menstruation has stopped, then her 'iddah is two months. Sayyiduna Umar, may Allah be pleased with him, said:
"عِدَّةُ أمِّ الولدِ حَيْضَتَانِ، ولو لم تَحِضْ كانَتْ عِدَّتُها شَهْرَيْنِ"
“The 'iddah of a female slave is two menstrual cycles; if she has not started menstruating, then her 'iddah is two months.”
Reference: Manar al-Sabeel p.608, Hadith:2122, Al-Sunan al-Kubra by Al-Bayhaqi 7/425
Some scholars hold the view that her 'iddah is one and a half months.
Reference: Regarding this, a narration is transmitted from Hazrat Ali, may Allah be pleased with him; see Al-Sunan al-Kubra by Al-Bayhaqi:7/425
A woman whose menstruation stops due to a condition
Such a woman has two situations:
① The cause is unknown. Such a woman will have an 'iddah of one year: nine months for the possibility of pregnancy, and three months for the 'iddah. Imam Shafi'i, may Allah have mercy on him, states that this decision was that of Sayyiduna Umar, may Allah be pleased with him, and it was practiced among the Muhajireen and Ansar, and no one opposed it.
Reference: Al-Mughni wal-Sharh al-Kabir 9/98
② The cause is known, such as illness, breastfeeding, or medication that prevents menstruation. Such a woman will first wait for the cause to end. If menstruation occurs, she will complete three menstrual cycles for 'iddah, and if menstruation does not occur despite the cause ending, then according to the correct opinion, she will complete one year of 'iddah. Sheikh al-Islam Ibn Taymiyyah, may Allah have mercy on him, preferred this, and Imam Ahmad, may Allah have mercy on him, also has a similar opinion.
'Iddah of a Mustahadhah Woman
There are three types of mustahadhah women:
① If the number and timing of menstrual days are known before istihaza; then she should observe the three menstrual periods of 'iddah according to her usual habit.
② If the number is forgotten but she can distinguish between menstrual and istihaza blood; then she should observe 'iddah according to that distinction.
③ If neither the days are known nor can she distinguish between the bloods; then she should observe 'iddah like a woman who is hopeless of menstruation for three months.
Marriage Proposal and 'Iddah
It is forbidden to explicitly propose marriage to a woman who is observing the 'iddah of her husband's death or who has been given a final divorce during the 'iddah, for example: "I want to marry you." However, it is permissible to convey the proposal by implication, for example: "I want to marry a woman like you." The evidence for this is Allah's statement:
"وَلَا جُنَاحَ عَلَيْكُمْ فِيمَا عَرَّضْتُم بِهِ مِنْ خِطْبَةِ النِّسَاءِ"
"It is no sin for you that you make a hint or conceal it in speech to those women."
Reference: Al-Baqarah:2/235
But if a woman has been given less than three divorces, or if it is a revocable divorce, then it is permissible for the husband to propose marriage after the completion of the waiting period ('iddah). In fact, he can even express this intention explicitly or implicitly during the 'iddah, because he retains the right to marry her, and indeed, he also has the right to reconcile.
The Wife of a Missing Husband
If a woman's husband goes missing, and neither his life nor death is known, the judge should set a period according to the circumstances during which the woman should wait for his return or news of him. Until this period ends, she will be considered married to him, because the original husband is presumed alive. When the period expires, the judge will declare him dead, and then the woman will observe the waiting period for death, which is four months and ten days. This is the ruling of a group of the Companions of the Prophet (may Allah be pleased with them all).
Imam Ibn Qayyim رحمه الله عليه states that it is established from Sayyiduna Umar رضي الله تعالى عنه that he ordered the wife of a missing person to wait for four years, and then permitted her to marry someone else. Later, when the first husband returned, Sayyiduna Umar رضي الله تعالى عنه gave him the choice to either take back his wife or take back the dowry. Imam Ahmad رحمه الله عليه also adopted this position. Abu Dawood رحمه الله عليه narrated that Imam Ahmad said: I have no doubt in this matter, because five noble Companions رضوان الله عليهم أجمعين gave this same ruling.
Reference: I'lam al-Muwaqqi'in: 2/49
Imam Ibn Qayyim رحمه الله عليه states that the statement of Sayyiduna Umar رضي الله تعالى عنه is the most correct and closest to reason, and Shaykh al-Islam Ibn Taymiyyah رحمه الله عليه also affirmed this as correct.
When a woman completes this waiting period (iddah), she can marry another man. There is no need to obtain a divorce from the guardian of the missing husband. If she marries another man and then the first husband returns, she has the option to either demand separation from the second husband or take back the dowry and remain married to the second husband. It does not matter whether the second husband has consummated the marriage or not.
Sheikh al-Islam Ibn Taymiyyah, may Allah have mercy on him, states that this opinion is correct, and it fully embodies justice and fairness.
Reference: Al-Fatawa al-Kubra al-Ikhtiyarat al-Ilmiyyah, Volume: 5/511-512
Explanation of Istibra' al-Rahim
Istibra' al-Rahim means that after acquiring a slave woman and before having intercourse with her, a waiting period is observed to determine whether she is pregnant or not.
If a person has purchased a slave girl, or she was gifted to him, or obtained through captivity, and she is capable of intercourse, then having intercourse with her and benefiting from her is forbidden until she becomes pure from menstruation.
The Messenger of Allah, peace be upon him, said:
" من كان يؤمن بالله واليوم الآخر فلا يسقي ماءه زرع غيره "
“Whoever believes in Allah and the Hereafter, it is not appropriate for him to give water to someone else's field.”
Reference: Jami' at-Tirmidhi, Marriage, Chapter on the man who buys a slave girl while she is pregnant with the phrase "وَلدَ غَيْرِهِ" (gave birth to another's child), Hadith 1131; Musnad Ahmad 4/108; Sunan Abi Dawood, Marriage, Chapter on intercourse with captives, Hadith 2158
And in another narration:
"لَا تُوطَأُ حَامِلٌ حَتَّى تَضَعَ "
“Do not have intercourse with a pregnant (slave girl) until she gives birth.”
Reference: Sunan Abi Dawood, Marriage, Chapter on intercourse with captives, Hadith 2157
If the slave girl is pregnant, her purity (istibra) will be after childbirth, because the command of Allah Almighty is general:
"وَأُولَاتُ الْأَحْمَالِ أَجَلُهُنَّ أَن يَضَعْنَ حَمْلَهُنَّ ۚ "
“And the waiting period of pregnant women is until they deliver their burdens.”
Reference: At-Talaq 65/4
And if she is not pregnant and menstruates, then one menstruation is sufficient for cleansing the womb. Regarding captive women in bondage, the Messenger of Allah, peace be upon him, said:
"لَا تُوطَأُ حَامِلٌ حَتَّى تَضَعَ وَلَا غَيْرُ ذَاتِ حَمْلٍ حَتَّى تَحِيضَ حَيْضَةً"
"Do not have intercourse with a pregnant woman until she gives birth, and do not have intercourse with a non-pregnant woman until she has had one menstruation."
Reference: Sunan Abi Dawood, Marriage, Chapter on Intercourse with Captives, Hadith: 2157, Musnad Ahmad: 3/62.87
If the slave woman has despaired of menstruation, or is so young that menstruation has not yet started, then wait for one month, as this is equivalent to one menstruation.
The wisdom of cleansing the womb is clear from the Prophet’s, peace be upon him, statement:
" من كان يؤمن بالله واليوم الآخر فلا يسقي ماءه زرع غيره "
"A person who believes in Allah and the Hereafter should not give his water to another’s field."
Reference: Jami` at-Tirmidhi, Marriage, Chapter on a man buying a slave girl who is pregnant, wording "gave birth to another’s child," Hadith 1131, Musnad Ahmad 4/108, Sunan Abi Dawood, Marriage, Chapter on Intercourse with Captives, Hadith 2158
Meaning, the purpose is to avoid mixing of fluids and confusion in lineage.
Rules of Breastfeeding
Allah Almighty mentioned the prohibitions and said:
"وَأُمَّهاتُكُمُ اللَّاتِي أَرْضَعْنَكُمْ وَأَخَواتُكُمْ مِنَ الرَّضاعَةِ"
“And your mothers who have suckled you, and your milk-sisters (are also forbidden to you).”
Reference: An-Nisa: 4/23
And the Messenger of Allah (peace be upon him) said:
" يَحْرُمُ مِنْ الرَّضَاعِ مَا يَحْرُمُ مِنْ النَّسَبِ "
“Women who become forbidden through suckling are the same as those forbidden by blood relations.”
Reference: Sahih al-Bukhari, Al-Shahadat, Chapter on Testimony Regarding Lineage and Suckling... Hadith 2645; Sahih Muslim, Al-Rida’ Chapter on Prohibition of Suckling from a Fertile Man’s Milk, Hadith 1445
And in another narration it is stated:
"يحرم من الرضاعة ما يحرم من الولادة"
“Women become forbidden through suckling as they are forbidden by birth.”
Reference: Sahih al-Bukhari, Al-Nikah, Chapter on What is Permissible Regarding Intercourse and Looking at Women in Suckling? Hadith 5239; Sahih Muslim, Al-Rida’ Chapter on What is Forbidden by Suckling as Forbidden by Birth, Hadith 1444
The literal meaning of suckling (Rida’ah) is: a child drinking milk from a woman’s breast.
The Islamic legal meaning is: a child under two years of age drinking milk from a woman at least five times.
The ruling of suckling regarding marriage, seclusion, being mahram, and looking at the woman is the same as that of blood relations.
There are two conditions for establishing suckling:
① The child must have suckled from a woman at least five times. Sayyida Aisha (may Allah be pleased with her) said:
" كَانَ فِيمَا أُنْزِلَ مِنَ الْقُرْآنِ: عَشْرُ رَضَعَاتٍ مَعْلُومَاتٍ يُحَرِّمْنَ، ثُمَّ نُسِخْنَ، بِخَمْسٍ مَعْلُومَاتٍ، فَتُوُفِّيَ رَسُولُ اللهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ، وَهُنَّ فِيمَا يُقْرَأُ مِنَ الْقُرْآنِ "
“The first ruling revealed in the Holy Quran was that suckling from a woman ten times establishes milk kinship, then the ruling of five times suckling was revealed which abrogated the first ruling. When the Messenger of Allah (peace be upon him) passed away, this ruling was in effect.”
Reference: Sahih Muslim, Kitab al-Rida’ah, Chapter on the prohibition by five sucklings, Hadith: 1452
The ruling that milk kinship is established by suckling five times remains, even though the recitation has been abrogated.
② These five or more sucklings must occur when the child is under two years of age. Allah Almighty said:
"وَالْوَالِدَاتُ يُرْضِعْنَ أَوْلَادَهُنَّ حَوْلَيْنِ كَامِلَيْنِ لِمَنْ أَرَادَ أَن يُتِمَّ الرَّضَاعَةَ ۖ "
“Mothers shall breastfeed their children for two full years, for those who wish to complete the nursing period.”
Reference: Al-Baqarah: 2/233
And the Messenger of Allah (peace be upon him) said:
"لَا يُحَرِّمُ مِنْ الرِّضَاعَةِ إِلَّا مَا فَتَقَ الْأَمْعَاءَ فِي الثَّدْيِ وَكَانَ قَبْلَ الْفِطَامِ"
“Milk kinship does not become established until the milk has reached the intestines, and this occurs before the age of weaning.”
Reference: Jami’ at-Tirmidhi, Kitab al-Rida’ah, Chapter on what was mentioned about milk kinship not being established before two years of age, Hadith: 1152
A "radha" means that the child starts suckling milk from the breast, then stops on their own, whether to breathe or to move to the other breast. This will be counted as one time. If the child suckles again in the same way, it will be counted as the second time, even if it is in the same sitting. Since the Shariah has not specified a limit for "radha," customary practice is considered valid.
If a woman delivers her milk to the child's stomach through any other means besides the breast, then breastfeeding will still be established, provided it happens five times, because the purpose is to deliver nourishment.
When a woman has fed a child under two years of age five or more times, that child will be considered her child in terms of breastfeeding. Marriage with her will be forbidden for that child, and it will be permissible to look at her and be in seclusion with her, because Allah Almighty has said:
"وَأُمَّهَاتُكُمُ اللاَّتِي أَرْضَعْنَكُمْ"
“Your mothers who have breastfed you (are also forbidden for you).”
Reference: An-Nisa:4/23
However, in this milk kinship, all those rulings that are established through blood relation will not be applicable, such as maintenance, inheritance, participation in blood money, or guardianship; because blood relation is stronger than milk kinship. Only those rulings will be established which have been explicitly stated in the Sharia.
Just as the woman who breastfeeds the child will be the milk mother of the child, similarly, the owner of that milk, i.e., her husband or master, will be the milk father, because the milk has come into his marriage or ownership. Therefore, the rules of prohibition (mahram) will also apply to him.
The relationships that are forbidden in blood relation are also forbidden in milk kinship. Thus, the milk mother's father, grandfather, children, mother, maternal grandmother, sisters, paternal uncle, paternal aunt, maternal uncle, maternal aunt—all are mahram to the one who has been breastfed. Similarly, all the mahram relations of the milk father will also be forbidden to him.
If sanctity is established for a child, this sanctity will also extend to the child's offspring and their descendants. However, this sanctity does not apply to the child's ancestors, i.e., parents and higher relatives, nor to the child's collateral relatives such as siblings. Therefore, the child's biological siblings will not become mahram to the foster mother or foster father.
If a woman has had intercourse through falsehood or adultery and then breastfed the child, the child will be attributed only to the woman who breastfed, not to the man, because if he is not the father in lineage, he will not be considered so in fosterage either, as fosterage is a branch of lineage.
Drinking the milk of an animal does not establish sanctity; for example, if a boy and a girl have drunk milk from the same animal, their marriage to each other will not be prohibited.
If a woman’s milk comes down without intercourse and childbirth, and a child drinks it, there is a difference of opinion among scholars regarding whether prohibition is established from that. One opinion is that prohibition is not established because it is not real milk but merely moisture. The second opinion is that prohibition is established, and this is the view of Imam Ibn Qudamah, may Allah have mercy on him, and others.
Breastfeeding can be established through the testimony of a woman, provided she is honest, truthful, and well-known. Sheikh al-Islam Ibn Taymiyyah, may Allah have mercy on him, states that if a woman is known for truthfulness and says that she breastfed so-and-so five times, then her statement will be accepted and breastfeeding will be established.
Reference: Majmoo’ al-Fatawa: 34/52
If there is doubt about whether breastfeeding occurred, did not occur, or was completed five times, and there is no clear evidence, then prohibition will not be established, because the original assumption is that milk was not drunk. And Allah knows best.
Rulings on the Right of Upbringing
The literal meaning of custody is: nurturing and taking into one's lap. The Shariah meaning is to protect a child or a person under a child's guardianship, such as someone mentally challenged or insane, from harm, and to raise and train them while considering their physical and spiritual welfare.
The wisdom behind the right of upbringing is that a child or a person under a child's guardianship cannot take care of their own interests, therefore they need a guardian who protects them, looks after their benefits, prevents harm, and provides good training.
Islamic Shariah has laid down principles for the care and upbringing of such individuals because they are especially deserving of mercy, compassion, and kindness. If they are left unattended, they will be lost, and our religion forbids letting them perish. Upbringing is both the right of the child under custody and the responsibility of close relatives.
Order of the Right of Custody
① The greatest right to raise a child belongs to the mother. Ibn Qudamah, may Allah have mercy on him, states that when a husband and wife separate and they have a young child or an older but mentally immature child, the mother is more entitled, provided the conditions of custody are met. Imam Malik and the companions of opinion hold the same view, and there is no known opposition to this.
Reference: Al-Mughni wal-Sharh al-Kabir: 9/299,300
If the mother marries someone else, her right to custody will be forfeited. A woman said to the Messenger of Allah, peace and blessings be upon him: O Messenger of Allah! This is my son; I carried him in my womb, nursed him with my breast, raised him in my lap, and now his father wants to take him from me. The Prophet, peace and blessings be upon him, said:
"أنْتِ أَحَقُّ بِهِ مَا لَمْ تَنْكِحي"
“You are entitled to keep the child as long as you do not marry another man.”
Reference: Sunan Abi Dawood, Divorce chapter, Hadith 2276; Musnad Ahmad: 2/182
The preference for the mother is because she is more compassionate, closer, more patient, and more aware of the child's needs. Sayyiduna Ibn Abbas رضي الله تعالى عنه said: "For the child, the mother's scent, her bed, and her lap are better for you until he grows up and chooses for himself."
Reference: Sabil al-Salam Bab al-Hadanah: 3/1562. Under Hadith: 1079
Shaykh al-Islam Ibn Taymiyyah رحمه الله عليه states that women are more merciful towards young children, more capable of feeding and nurturing them, and more patient with hardships; therefore, the mother is given precedence in the custody of the child.
Reference: Majmoo' al-Fatawa: 17/216
② If the mother's right is lost for some reason, then the maternal grandmother, then the great-grandmother, and the mothers above them are entitled to this right because they are the substitutes for the mother.
③ After that, the child's father will be entitled, because the original lineage is from him and he is the closest male relative.
④ If the father is also not present or his right is terminated, then the grandmother, then the great-grandmother will have the right, because their relation is from the father's side, and the grandmother takes precedence over the grandfather just as the mother does over the father.
⑤ After that, the grandfather, then the great-grandfather.
⑥ Then the grandfather's mother, and whoever is closer will take precedence over the one who is farther.
⑦ Then the child's sisters. Among them, the full sister takes precedence, then the maternal sister, then the paternal sister. Some scholars have given preference to the paternal sister over the maternal sister.
⑧ Then the maternal aunts, because the Prophet ﷺ said:
"الْخَالَةُ بِمَنْزِلَةِ الْأُمِّ "
“The maternal aunt is in the rank of the mother.”
Reference: Sahih al-Bukhari, Al-Sulh, Chapter: How to write this: The good of so-and-so son of so-and-so and so-and-so son of so-and-so...? Hadith 2699
Among them, the full maternal aunt, then the maternal, then the paternal maternal aunt.
⑨ Then paternal aunts. Sheikh al-Islam Ibn Taymiyyah, may Allah have mercy on him, said that the paternal aunt takes precedence over the maternal aunt, and relatives on the father's side take precedence over relatives on the mother's side, because the original guardianship is with the father. In the case of Hamzah, may Allah be pleased with him, the paternal aunt was given precedence because the maternal aunt did not make any claim.
Reference: Majmoo' al-Fatawa: 34/122-123
⑩ Then nieces (sons' daughters)
⑪ Then nieces (brothers' daughters)
⑫ Then daughters of paternal uncles
⑬ Then daughters of paternal aunts
⑭ Then, in order, the remaining agnates: brothers, their sons, paternal uncles, their sons, etc.
If the child is a girl, the condition for the man who takes custody is that he must be her mahram; otherwise, she should be entrusted to a trustworthy person.
Barriers to the Right of Custody
① Slavery is a barrier to custody because a slave cannot be a guardian, and the benefits belong to his master.
② A sinful and immoral person is not qualified for custody because he is not trustworthy and may corrupt the child's religion.
③ A disbeliever cannot become the guardian of a Muslim child, because their harm is even greater than that of a sinner, and they can raise the child in disbelief.
Reference: In the 1990s, Serb Christian terrorists committed genocide against Muslims in Bosnia Herzegovina, leaving thousands of children orphaned. During this time, NATO troops arrived there for "peacekeeping," and Christian NGOs and missionary organizations took thousands of orphaned Muslim children to various European countries where they were converted to Christianity. In other regions as well, countless Muslim children have fallen prey to Christian missionaries. This is a tragedy and a matter for serious reflection. Islamic countries, especially the Organization of Islamic Cooperation, bear the responsibility to establish institutions for the education and upbringing of orphaned and abandoned Muslim children in an Islamic environment so that the offspring of Muslims can be saved from the traps of Christianity in all its forms. (Mohsin Farani)
④ If a woman marries a man who is a stranger to the child, then she will no longer be eligible for custody, because the Messenger of Allah, peace be upon him, said:
"أنْتِ أَحَقُّ بِهِ مَا لَمْ تَنْكِحي"
“You are entitled to take the child as long as you do not marry another man.”
Reference: Sunan Abi Dawood, Divorce, Chapter: Who has the right to the child? Hadith 2276, Musnad Ahmad: 2/182
However, if he has married a relative of the child, his right will not be forfeited.
⑤ If these impediments are removed, for example, if a slave is freed, a sinner repents, a disbeliever becomes Muslim, or the woman is divorced, then the right of custody will be regained.
Custody in Case of Travel
If one of the parents undertakes a long journey with the intention of permanent residence, and the purpose is not harmful, and the route and place are safe, then the child will stay with the father, whether the father is traveling or residing, because the responsibility of upbringing, supervision, and teaching manners primarily lies with the father.
If the journey is short, meaning not long enough to require a permanent residence, and the purpose is to stay there temporarily, then custody will be with the mother, because she can provide better care and the father's supervision will still be possible.
If the journey is for a temporary necessity, or the route is dangerous, or the destination is unsafe in terms of security, then custody will remain with the resident, whether the father or the mother, because there is a fear of harm to the child.
Imam Ibn Qayyim, may Allah have mercy on him, states that if the father uses a trick to deprive the mother of her right of custody, for example, by choosing to travel so that the child comes with him, this is against the Shariah.
Reference: I'lam al-Muwaqqi'in: 3/257
And the Prophet Muhammad (peace be upon him) said:
"مَنْ فَرَّقَ بَيْنَ وَالِدَةٍ وَوَلَدِهَا فَرَّقَ اللَّهُ بَيْنَهُ وَبَيْنَ أَحِبَّتِهِ يَوْمَ الْقِيَامَةِ"
“Whoever separates a mother and her child, Allah will separate him from his loved ones on the Day of Resurrection.”
Reference: Jami' at-Tirmidhi, Al-Buyu', Chapter on the dislike of separation between siblings or between mother and her child in sale, Hadith 1283
The Prophet (peace be upon him) also forbade selling the mother and child separately, so how can separation be permissible through trickery? Ibn Qayyim, may Allah have mercy on him, has extensively discussed this.
Reference: I'lam al-Muwaqqi'in 3/257,258
Choice of the Child
When the child reaches the age of seven, he will have the right to choose between either of the parents, because at this age he is sensible. This was the decision of the Rightly Guided Caliphs, Hazrat Umar and Hazrat Ali (may Allah be pleased with them). It is narrated from Sayyiduna Abu Hurairah (may Allah be pleased with him) that a woman said that her husband wanted to take the child from her, so the Prophet (peace be upon him) said to the child:
"هَذَا أَبُوكَ وَهَذِهِ أُمُّكَ ، فَخُذْ بِيَدِ أَيِّهِمَا شِئْتَ " ، فَأَخَذَ بِيَدِ أُمِّهِ فَانْطَلَقَتْ بِهِ"
“(O child!) This is your father and this is your mother, so hold the hand of whichever you want to hold.” Accordingly, he took the mother’s hand and she took him.”
Reference: Sunan Abi Dawood, Divorce, Chapter: Who has the right over the child, Hadith 2277
This right will be applicable only when:
① Both parents are fit for custody.
② The child is sensible. If the child is mentally deficient, he will remain with the mother.
If the child is given to the father’s custody, he will stay with him day and night so that the father can supervise and educate him, but the father should not prevent him from meeting the mother. If the mother is given custody, the child will stay with the mother at night and with the father during the day so that the father can continue education and training. If no one is given custody, then it will be decided by drawing lots.
As for a seven-year-old girl, she will stay with the father until she gets married, because the father can protect and supervise her better. However, the mother will not be prevented from meeting the daughter, provided there is no harm in it. If the father is unable to provide protection or is negligent and the mother is more suitable, then the girl will stay with the mother. Sheikh al-Islam Ibn Taymiyyah, may Allah have mercy on him, states that the apparent opinion of Imam Ahmad and his companions is the same.
Reference: Majmoo’ al-Fatawa by Sheikh al-Islam Ibn Taymiyyah, 34/132
And Allah knows best.Statement on the Wife’s Maintenance and Expenses
In the dictionary, Nafaqah means the money spent, such as dirhams, dinars, and similar wealth. In Islamic terminology, Nafaqah means providing food, drink, clothing, shelter, and necessities of life to the person whose maintenance is obligatory.
First and foremost, the wife’s Nafaqah is obligatory on the man, meaning providing her with suitable food, drink, clothing, and shelter. Allah Almighty said:
"لِيُنْفِقْ ذُو سَعَةٍ مِنْ سَعَتِهِ "
“Let the one who is generous spend from his generosity.”
Reference: At-Talaq:7/65
And He said:
"وَلَهُنَّ مِثْلُ الَّذِي عَلَيْهِنَّ بِالْمَعْرُوفِ ۚ "
“And women have rights similar to those against them, according to what is reasonable.”
Reference: Al-Baqarah:2/228
And the Messenger of Allah, peace and blessings be upon him, said:
"وَلَهُنَّ عَلَيْكُمْ رِزْقُهُنَّ وَكِسْوَتُهُنَّ بِالْمَعْرُوفِ"
“It is obligatory upon you to provide your wives with food, Nafaqah, and suitable clothing.”
Reference: Sahih Muslim, Hajj, Chapter: The Prophet’s Hajj, Hadith 1218; Sunan Abi Dawood, Al-Manasik, Chapter: Description of the Prophet’s Hajj, Hadith 1905
Shaykh al-Islam Ibn Taymiyyah, may Allah have mercy on him, says regarding Allah’s statement:
"وَلَهُنَّ مِثْلُ الَّذِي عَلَيْهِنَّ بِالْمَعْرُوفِ ۚ "
All rights and responsibilities related to the wife are included, and they depend on custom, meaning those things which people generally consider known and necessary in everyday life.
Reference: Majmoo' al-Fatawa by Shaykh al-Islam Ibn Taymiyyah 17/193. Adapted
If there is a dispute between the husband and wife regarding maintenance, the judge will determine the wife's maintenance by considering the financial status of one or both of them.
If the woman is the wife of a wealthy man, she will receive maintenance, clothing, residence, household items, and furnishings of the same standard as women of her status in that society. If the woman is poor and the husband is also poor, or both are of middle status, then she will receive necessities according to the husband's status. And if the woman is wealthy and the husband is poor, or vice versa, then a middle standard will be adopted.
Along with food, clothing, and residence, it is also obligatory upon the husband to provide necessary items related to the woman's personal hygiene, such as oil, soap, drinking water, and water for purification.
This all applies as long as the woman is married to her husband. If the husband has divorced her, then if the divorce is revocable, her maintenance and residence during the waiting period (iddah) remain obligatory upon the husband, because she is still considered a wife. Allah Almighty has said:
"وَبُعُولَتُهُنَّ أَحَقُّ بِرَدِّهِنَّ فِي ذَٰلِكَ"
“And their husbands have more right to take them back.”
Reference: Al-Baqarah: 2/228
And if the woman has been given an irrevocable divorce (talaq ba'in), then she will not receive maintenance or residence from the husband. When Hazrat Fatimah bint Qais (may Allah be pleased with her) was given an irrevocable divorce by her husband, the Messenger of Allah (peace be upon him) said:
"لاَ نَفَقَةَ لَكِ وَلاَ سُكْنَى"
“You will neither receive maintenance nor residence.”
Reference: Sahih al-Bukhari, Talaq, Chapter: The case of Fatimah bint Qais, Hadith 5323, 5324; Sahih Muslim, Talaq, Chapter: The irrevocable divorce, no maintenance for her, Hadith 1480, and the wording is his
Allama Ibn Qayyim (may Allah have mercy on him) states that this is the correct hadith, in accordance with the Book of Allah and analogy, and this is also the doctrine of the jurists of the later period.
Reference: I'lam al-Muwaqqi'in 3/321
However, if the irrevocably divorced woman is pregnant, then she will receive maintenance, because Allah Almighty has said:
"وَإِنْ كُنَّ أُولَاتِ حَمْلٍ فَأَنْفِقُوا عَلَيْهِنَّ حَتَّىٰ يَضَعْنَ حَمْلَهُنَّ"
“If she is pregnant, then continue to provide maintenance until she delivers.”
Reference: At-Talaq:5.65
And He said:
"أَسْكِنُوهُنَّ مِنْ حَيْثُ سَكَنتُم مِّن وُجْدِكُمْ "
“Keep those women with you according to your means wherever you live.”
Reference: At-Talaq 6/65
And in the narration of Hazrat Fatimah bint Qais (RA):
"لَا نَفَقَةَ لَكِ ، إِلَّا أَنْ تَكُونِي حَامِلًا "
“There is no maintenance for you, except if you were pregnant, then you would definitely receive maintenance.”
Reference: Sunan Abi Dawood, Talaq, Chapter on Maintenance of the Pregnant Woman, Hadith 2290
The reason is that the fetus is the husband's child, and the maintenance of the child is obligatory upon the father, which will be fulfilled by spending on its mother. Ibn Qudamah (may Allah have mercy on him) states that there is consensus among the scholars on this matter; the only difference is whether this maintenance is the right of the fetus or of the pregnant woman due to the pregnancy.
Reference: Al-Mughni wal-Sharh al-Kabir 9/292
Situations in which the wife is deprived of maintenance
① When the woman is prevented from going to her husband, then maintenance is not the husband's responsibility, because the benefit for which maintenance was given is not being obtained.
② When a woman becomes disobedient, for example, if she does not come to her husband's bed, or does not live appropriately with her husband, or goes out of the house without his permission, then her right to maintenance is suspended.
③ If a woman goes on a journey for her personal matters, she will also not receive maintenance, because she has distanced herself from her husband for a reason originating from herself.
If the husband dies, the woman will not receive maintenance from the husband's inheritance, because the property has transferred to the heirs. Now she will bear her own expenses, or if she becomes needy, her guardian will provide for her.
However, if the woman is pregnant and the husband dies, she will receive maintenance for the duration of the pregnancy, provided the husband left behind wealth; otherwise, the wealthy heir will bear the expenses of the pregnancy.
If the husband and wife agree on a specific amount or value for maintenance, or agree to cash, credit, shorter or longer duration, it is permissible, because it is their mutual right. But if there is a disagreement, the daily expenses should be given in the morning. If they agree to give in the form of grain, that is also permissible.
It is obligatory on the husband to arrange the clothing for the entire year at the beginning of the year.
If the husband disappears and leaves nothing for the wife, or is present but does not provide maintenance, then the expenses for all the past days will remain his responsibility, whether he is rich or poor, because this is a mandatory right upon him and does not lapse with the passage of time.
The husband becomes obligated to provide maintenance to the wife from the moment the woman surrenders herself to him. If the husband is unable to provide maintenance, the woman will have the right to annul the marriage, because the Messenger of Allah, peace be upon him, said about the person who cannot provide maintenance to his wife:
"يفرق بينهما"
“Separate them.”
Reference: Al-Sunan al-Kubra by Al-Bayhaqi 7/469-470
And Allah Almighty said:
"فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ ۗ "
“Either retain them in kindness or release them in kindness.”
Reference: Al-Baqarah: 2/229
Keeping the wife without providing maintenance is not included in "holding with kindness" (imsak bima'ruf).
If the husband is wealthy but disappears, leaving no maintenance for the wife, and the wife is unable to take from his wealth or borrow in his name, then with the permission of the ruler, she will have the right to annul the marriage. And if the wife comes into possession of the husband's wealth, she may take according to her needs. The Messenger of Allah, peace be upon him, said to Sayyida Hind, may Allah be pleased with her:
"خُذِي مَا يَكْفِيكِ وَوَلَدَكِ بِالْمَعْرُوفِ "
“You may take as much as suffices you and your children in a proper manner.”
Reference: Sahih al-Bukhari, Al-Nafaqat, Chapter: When a man does not spend, Hadith 5364
All these rulings indicate the perfection of the Islamic Shariah, which teaches giving every rightful person their due rights. This is the reason why this Shariah is superior to all other laws. Allah punishes those who abandon it and adopt ignorant laws. Allah Almighty said:
"أَفَحُكْمَ الْجَاهِلِيَّةِ يَبْغُونَ ۚ وَمَنْ أَحْسَنُ مِنَ اللَّهِ حُكْمًا لِّقَوْمٍ يُوقِنُونَ "
“Do they then desire the judgment of ignorance? And who is better in judgment than Allah for a people who have firm faith.”
Reference: Al-Ma'idah: 5/50
Statement on Providing Food and Maintenance to Relatives and Slaves
Here, relatives mean those close kin who are heirs in the capacity of a wajib al-fard or asaba, and mamluk refers to slaves, maidservants, animals, etc.
Spending on relatives becomes obligatory when these conditions are met:
① They may be direct or collateral relatives, such as parents, grandfathers, great-grandfathers, children, grandchildren, granddaughters, etc.
② The person on whom the expenditure is being made should be poor, or should not have sufficient wealth, and should not have the ability to earn.
③ The one who is spending should be wealthy, meaning he has wealth beyond the needs of himself, his family, and his dependents.
④ Both should share the same religion.
⑤ If the person is neither from the children nor from the ancestors, then an additional condition is that the spender should also be his heir.
It is obligatory to spend on parents according to their needs. Allah Almighty has said:
"وَبِالْوَالِدَيْنِ إِحْسَانًا ۚ "
“And be kind to parents.”
Reference: Al-An'am 16:15
Spending on parents falls under good treatment, indeed it is a great kindness.
Similarly, it is also obligatory for parents to spend on their children. Allah Almighty has said:
"وَعَلَى الْمَوْلُودِ لَهُ رِزْقُهُنَّ وَكِسْوَتُهُنَّ بِالْمَعْرُوفِ"
“And the father is responsible for providing them (their mothers) with food and clothing according to custom.”
Reference: Al-Baqarah 2:233
The responsibility of parents to provide for their children is according to their ability and custom; neither extravagance nor stinginess is allowed. The Messenger of Allah, peace be upon him, said to Sayyida Hind, may Allah be pleased with her:
"خُذِي مَا يَكْفِيكِ وَوَلَدَكِ بِالْمَعْرُوفِ "
“You may take from your husband's wealth as much as is appropriate and sufficient for you and your children.”
Reference: Sahih al-Bukhari, Al-Nafaqat, Chapter: If a man does not spend, Hadith 5364
If a person has close relatives who are poor and for whom he is an heir, then it is obligatory upon him to fulfill their needs according to his ability. Allah Almighty said:
"وَعَلَى الْوَارِثِ مِثْلُ ذَٰلِكَ ۗ "
“The heir also has a similar responsibility.”
Reference: Al-Baqarah: 2/233
This also includes maintaining kinship ties, which Islam greatly emphasizes. Allah Almighty said:
"وَآتِ ذَا الْقُرْبَىٰ حَقَّهُ"
“And keep up the ties of kinship.”
Reference: Bani Isra'il: 26/17
A man asked the Messenger of Allah, peace be upon him, who is most deserving of my good treatment? He, peace be upon him, said:
"أُمَّكَ وَأَبَاكَ, وَأُخْتَكَ وَأَخَاكَ "
“Your mother, your father, your sister, and your brother.”
Reference: Sunan Abi Dawood, Al-Adab, Chapter: On kindness to parents, Hadith 5140
And He said:
"وَابْدَأْ بِمَنْ تَعُولُ: أُمَّكَ وَأَبَاكَ, وَأُخْتَكَ وَأَخَاكَ, ثُمَّ أَدْنَاكَ أَدْنَاكَ"
“Start with those whom you are responsible to provide food and maintenance for, that is, your mother, your father, your sister, and your brother, then after that give to the close relatives.”
Reference: Sunan an-Nasa'i, Zakat, Chapter: Giving the Upper Hand, Hadith 2533
It is obligatory on the father to bear the full expenses of his children alone. This is clear from the Hadith of Sayyida Hind (may Allah be pleased with her) and the verse:
"وَعَلَى الْمَوْلُودِ لَهُ رِزْقُهُنَّ وَكِسْوَتُهُنَّ بِالْمَعْرُوفِ"
Reference: Al-Baqarah: 2/233
And Allah Almighty said:
"فَإِنْ أَرْضَعْنَ لَكُمْ فَآتُوهُنَّ أُجُورَهُنَّ ۖ "
“If they breastfeed your children by your wish, then give them their due payment.”
Reference: At-Talaq: 65:6
From this, it is evident that the cost of the child's breastfeeding is also the responsibility of the father, not the mother.
If a poor person has several wealthy relatives and among them there is no father, then all of them will spend on him in proportion to the share they inherit. Allah Almighty said:
"وَعَلَى الْوَارِثِ مِثْلُ ذَٰلِكَ"
“The heir also has the same responsibility.”
Reference: Al-Baqarah: 2/233
For example, if a person's grandmother and full brother are wealthy, then the grandmother will pay one-sixth and the brother will pay the remaining part, because this is the same proportion as in inheritance.
As far as the maintenance and clothing of slaves, maidservants, and animals are concerned, all of this is the responsibility of their master. The Messenger of Allah, peace be upon him, said:
"لِلْمَمْلُوكِ طَعَامُهُ وَكِسْوَتُهُ بِالْمَعْرُوفِ , وَلا يُكَلَّفُ مِنَ الْعَمَلِ مَا لا يُطِيقُ "
“The food and clothing of a servant are the responsibility of his master in a customary manner, and no burden beyond his capacity should be placed upon him.”
Reference: Sahih Muslim, Al-Iman, Chapter: Food of the servant from what he eats, Hadith 1662; Musnad Ahmad 2/247, wording as above
And in the narration of Sayyiduna Abu Dharr, may Allah be pleased with him, the Messenger of Allah, peace be upon him, said:
"إِخْوَانُكُمْ خَوَلُكُمْ جَعَلَهُمُ اللَّهُ تَحْتَ أَيْدِيكُمْ، فَمَنْ كَانَ أَخُوهُ تَحْتَ يَدِهِ فَلْيُطْعِمْهُ مِمَّا يَأْكُلُ، وَلْيُلْبِسْهُ مِمَّا يَلْبَسُ، وَلاَ تُكَلِّفُوهُمْ مَا يَغْلِبُهُمْ، "
“Your servants are your brothers whom Allah has put under your authority. If you have a brother under your authority, then feed him with what you eat and clothe him as you clothe yourself, and do not burden them with tasks that are beyond their capacity.”
Reference: Sahih al-Bukhari, Al-Iman, Chapter: Sins from the matters of ignorance, Hadith 30
Allah Almighty said:
"قَدْ عَلِمْنَا مَا فَرَضْنَا عَلَيْهِمْ فِي أَزْوَاجِهِمْ وَمَا مَلَكَتْ أَيْمَانُهُمْ"
“We know well what We have appointed for them concerning their wives and maidservants.”
Reference: Al-Ahzab 33:50
If a slave demands marriage, the owner should either marry him/her off or sell him/her. Allah Almighty said:
"وَأَنكِحُوا الأَيَامَى مِنْكُمْ وَالصَّالِحِينَ مِنْ عِبَادِكُمْ وَإِمَائِكُمْ"
“Marry those among you who are single, and the righteous among your male and female slaves.”
Reference: An-Nur: 24:32
And if a slave girl also demands this due to her natural needs, the owner has the option to either have intercourse with her himself, marry her off, or sell her.
A person who owns an animal is obliged to provide it with fodder and water and take care of all its necessities. The Messenger of Allah (peace be upon him) said:
"عُذِّبَتِ امْرَأَةٌ فِي هِرَّةٍ سَجَنَتْهَا حَتَّى مَاتَتْ فَدَخَلَتْ فِيهَا النَّارَ، لَا هِيَ أَطْعَمَتْهَا وَسَقَتْهَا، إِذْ حَبَسَتْهَا، وَلَا هِيَ تَرَكَتْهَا تَأْكُلُ مِنْ خَشَاشِ الْأَرْضِ"
“A woman was punished because she tied a cat until it died of hunger; she neither fed it nor let it go to eat the insects of the earth.”
Reference: Sahih al-Bukhari, Al-Masāqāt, Chapter on Watering, Hadith 2364, 2365; Sahih Muslim, Al-Salam, Chapter on Prohibition of Killing Animals, Hadith 2242; Manar al-Sabeel, Hadith 2182, and the wording is his
If there is a threat of Hell for causing harm to a cat, then it is even more so for other animals.
The owner should not place a burden on the animal beyond its capacity, because this is also oppression and harm, and causing unnecessary pain is not permissible in Shariah.
Similarly, the animal's milk should not be milked to the extent that it harms its offspring, because the Messenger of Allah, peace be upon him, said:
" لا ضرر ولا ضرار "
“Do not cause pain nor suffer pain.”
Reference: Sunan Ibn Majah, Al-Ahkam, Chapter on What is Harmful to Neighbors, Hadith 2340
Cursing an animal, hitting it on the face, or disfiguring its face is forbidden. And if the owner becomes unable to meet the needs of the animal, he will be compelled to sell it, rent it out, or if its meat is consumed, to slaughter it, because keeping it hungry and thirsty in one's possession is oppression, and ending oppression is necessary.
