Chapter One
Divorce
At-talāq
Islam has legislated for divorce to end marital relationship on the basis that marriage is a human relationship that is founded on mutual agreement and love, aiming to establish a common happy life, so if something happens to the relationship between the married couple that tarnishes the love between them and prevents the establishment of a happy family, the spouses have the option to separate.
(A) Conditions of divorce
1462. Divorce is one of the declarations that do not need the acceptance of the other party, who is the wife. The husband alone has the right to declare divorce, even if the wife does not accept it. It has two fundamental pillars:
1- The form, and this can be done using any words that mean divorce in Arabic, and even in a language other than Arabic as long as it is the language of the country in which the divorce takes place, and even if the husband has the ability to carry it out in Arabic; it is valid in both classical and colloquial Arabic, also in both correct and error-laden language. That said, divorce is not valid if it is declared using sentences that have been prohibited from use by the Shari’ah, since such sentences are regarded as descriptions, such as saying: ‘Anti khaliyyah’ (You are free/without a husband), ‘Anti bariyyah’ (You are relieved), ‘habloki ‘alā ghāribik’ (Your rope is on your back – i.e. like an untied camel) or ‘ilhaqi bi-Ahlik’ (Go and join your family.)
The best form for divorce in correct classical Arabic is: ‘Zawjati folānah tāliq’ (My wife so-and-so is divorced.) And just as divorce is established using words, it is also established by using writing that is coupled with the intention of declaring it, even from someone who is able to say it in words. That said, a sign that shows the intention is not sufficient except from someone who is unable to talk, such as the dumb, although it is better to give preference to writing when he is capable of writing.
2- Witnessing, for it is obligatory to declare divorce in front of two male, just witnesses. However, if divorce is declared by someone who does not believe in the obligatory ruling of witnessing - who follows a school of thought other than ours, in this case the divorce goes through and is binding on him.
1463. It is an obligatory precaution not to make divorce dependant on a future matter that is known to be going to happen or is expected to happen, such as the birth of the new moon, the return of a traveller and so on.
1464. It is valid to authorise a proxy to declare divorce; it is even valid to make the woman a proxy for her husband to divorce herself in the way dictated in the authorisation.
1465. If the two witnesses are proven to be not just, the divorce is invalidated, even if the husband, his proxy or both of them believed that they were just at the time; if the matter is reversed, i.e. if the protagonists believed that they were not just but they are in fact just, the divorce is valid.
(B) Conditions of the two parties
1466. The following conditions are required of the person carrying out the divorce:
1- Age of bolūgh, so if a young man (who has not reached the Islamic legal age) wants to divorce his wife, it is not valid, even if he authorises other adults to divorce her; also, his guardian has no right to divorce her, but rather it is obligatory to wait for his bolūgh and roshd. However, a young man (not bāligh) may be authorised by another person to divorce the wife of that other person.
2- Sanity, so it is not valid for the insane to declare divorce. But it is in the interest of the insane to divorce, his guardian can carry it out on his behalf. The insane whose insanity strikes him in phases, however, has to wait for a time when he is sane – since it is not valid to declare a divorce when he is insane, nor to have it declared it on his behalf.
3- Serious intention to declare divorce, so it is not valid from someone who is joking, unaware or asleep.
4- Free will, so divorce is not valid from someone who is forced into it except when rightful, such as if the Islamic authority forces the husband to divorce, as may occur in some situations.
1467. Conditions for the divorced wife are:
1- Being contracted to a permanent marriage; separation through divorce is not applicable to a term marriage.
2- Purity from haid (menses) and nifās (blood seen after giving birth), especially if she has not washed it from herself yet; this is if she is not pregnant (or pregnancy has not yet been discovered), has had sexual intercourse with the husband, and her husband is currently around. But if she has not had sexual intercourse with him, or has had intercourse but she is pregnant, or she has had intercourse and is not pregnant but her husband is away from her, in this case her divorce is valid during the menses or nifās.
3- She must be in a state of purity, after the last menses, and after which her husband has not (yet) had sexual intercourse with her neither in the vagina nor the anus, if she is not pregnant, not very young (i.e. pre-menstrual), or has not reached menopause. Otherwise divorcing her in the period between two consecutive menses in which she has had intercourse with him is allowed.
4- Specifying the divorced woman when applicable, such as if the husband has more than one wife; but if he has only one wife, it is sufficient for him to say: ‘Zawjeti tāliq’ (my wife is divorced.)
1468. It is obligatory for a valid divorce from an absent man, if taking place during the menses or nifās, that he does not know of her state of the menses or nifās, and unable to get information about her and that a period of time has elapsed since his absence in which it is known – according to the norm – that she has moved from one purity period to the next; (but) it is better that this period is not less than one month if satisfaction took place before it.
1469. If the woman was someone who does not have a monthly period despite being of an age in which women have the menses - such women are called ‘al-Mostarābah’ (the doubtful - her absent husband must not divorce her until three months have elapsed after having sexual intercourse with her (the first time), after which period her divorce will be valid.
1470. If the husband intentionally declares the divorce during her menses or nifās, then he discovers that she was pregnant when declaring divorce, in this case the divorce is valid and goes through.
(C) Types of divorce
Divorce takes two forms: revocable (rej’i) and irrevocable (bā’in). Each has its own rulings as follows:
First: Revocable divorce
1471. With revocable divorce (rej’i) , 'the husband – himself or acting through his proxy or guardian, out of his own free will divorces his wife, who must be neither young (i.e. bālighah) nor have reached menopause; she must have had sexual intercourse with him actually or what regarded as such, which is if the wife gets pregnant by letting semen flow in her vagina. ‘I It was called ‘rej’i’ because it is allowed for the husband to retract (rej’i) from it in a certain way during the marriage-abstention period (‘iddah) without the need for a new contract.
1472. The husband has the right to return to his revocably-divorced wife, as long as this is still during the marriage-abstention period – even without her acceptance, unless she has had made it conditional on him in a binding contract not to come back to her, in which case he must abide by this, but if he violates this, both of them must observe the obligatory precaution regarding the consequences of such a reunion that is contradictory to the condition. This means that the marital consequences of sexual intercourse - touching and looking - must be abstained from, as too the consequence of divorce that allows her to marry another man (i.e. she cannot do that.)
Returning to her is established by using any wording that shows this, including if he retracts her divorce and emphasises her staying as his wife, or if he does anything that shows his aim to return to her, such as dealing with her as a wife and indulging in pleasure with her through sexual intercourse or less than that, intending (with such acts) to have her back; but if he does not intend this – even if sexual intercourse occurs – the restitution of marriage will not have taken place, although it is better and more precautionary for he who has had sexual intercourse with his wife without the intention of returning to her to renew his divorce of her; thus she starts after this divorce a new marriage-abstention period.
1473. The divorcee who was divorced revocably is regarded as a wife in most matters as long as she is still in the marriage-abstention period, except for having sexual pleasure with her, so her husband is not allowed to make her leave his house and leave her without a house prepared for her, unless she commits a proven fornication in her house of residence, such as adultery. Also, it is not allowed for her to go out when this violates his right of pleasure with her, except with his permission; she must allow him to have pleasure with her in the way he likes – even if this results in returning to him (in marriage) – if his intention is to return to her, but if she knows that he does not want to return to her, she is not allowed to allow him (to have pleasure with her) since this is forbidden for him at this time. Her maintenance is his responsibility, and each of them inherits from the other if one of them dies during the marriage-abstention period, along with other marital consequences and rulings. However, the husband is not obliged to respond to her request of sexual pleasure if she asks for it, if he does not want to return to her, since this is forbidden for him.
1474. If the marriage-abstention period elapses and the separation is finalised, he cannot return to her except with a new contract.
1475. It is not conditional for the validity of a reunion (after a revocable divorce) to declare it in front of witnesses, although witnessing it is better to avoid disputes. Also it is not conditional that the husband himself carries it out, but it may be done be the proxy, or the guardian if insanity befell the husband and he had an interest in reuniting with his wife, or it was the guardian himself who had divorced her then changed his mind and decided to restore her to the person to whom he is the guardian.
Second: Irrevocable divorce
1476. Irrevocable (bā’in) divorce is: ‘Divorce after which the husband has no right to return to his wife except with a new contract even if during her marriage-abstention period if she has one, not to mention if she has no marriage-abstention period’; an irrevocable divorce takes place in the following cases:
1- The divorce of the young girl who has not reached the Islamic legal age, even if he has had sexual intercourse with her.
2- The divorce of a woman who has reached menopause, and completed fifty lunar years.
3- Divorce before sexual intercourse.
And there is no marriage-abstention period (‘iddah) for these three.
4- The third divorce which had been preceded by two divorces with two reconciliations in between, or what is similar to them.
5- The divorce established by the Islamic authority of the wife of someone who is refusing to divorce after this has become binding on him due to his failure to provide her with maintenance.
6- The khol’ or mobārāt divorces; divorce taking place through them is irrevocable unless the wife forgoes the money/asset that she gave to the husband, in which case it becomes revocable.
1477. An irrevocably-divorced woman is like a non-unmarriageable woman regarding the removal of the consequences of the marital ties from the moment the divorce takes place; so there is no living together or maintenance payable to the wife unless she is pregnant by him, in which case maintenance is due from him until she gives birth.
(D) Mutiple divorces
1478. Divorce does not take place more than one time through the mere repetition of the number, such as saying: ‘tallaqtoki thalāthan or marratain’ (I am divorcing you three times or twice), and if the man divorces his wife in this fashion, only one divorce takes place and the rest is regarded as meaningless speech.
1479. If the husband divorces his wife then returns to her back one time after the other up to three times, the situation may be as follows:
1- If he divorces her revocably with all its conditions, then returns to her during the marriage-abstention period, has sexual intercourse with her in the vagina or the anus, then divorces her – after a short or long time – a second time, then returns to her as the first time, then divorces her a third time, here the third divorce is established as irrevocable and she cannot return to him until she marries another man in a permanent marriage with a valid contract and with sexual intercourse in the vagina not the anus. It is better if the second husband is bāligh (has reached the Islamic legal age), although it is valid if he is a teenager upon his guardian’s permission; it is also better that the sexual intercourse involves ejaculation. Now, if the second husband divorces her, she is then allowed to marry the first husband with a new contract; the scholars have called this divorce ‘at-talāq al-‘Iddi’ (a marriage-abstention-period-type divorce).
2- If he has divorced her revocably, then returns to her during her marriage-abstention period, but does not have sexual intercourse with her, then divorces her likewise a second time, then returns to her during her marriage-abstention period but does not have sexual intercourse with her, then he divorces her a third time, the divorce is established as irrevocable and she becomes forbidden to him unless she marries another man as in (1) above; the scholars have called this divorce ‘at-talāq as-Sonnī’ (the Sonneh-type divorce).
3- If he has divorced her revocably but abstains from returning to her until her marriage-abstention period elapses, then marries her with a new contract, then does this one time after the other, then divorces her a third time, she is then irrevocably divorced from him (and becomes forbidden to him) unless she marries another man as previously described; this is ‘at-talāq as-Sunni bil-Ma‘nā al-Akhass’ (the-more-specific-meaning Sunnah-type divorce).
1480. If the man divorces his wife then returns to her during the marriage-abstention period, has sexual intercourse with her, then divorces her, and does this repeatedly until this reaches nine divorces with another man marrying her after each three divorces, in this case she becomes permanently forbidden to him after the ninth divorce.
(E) The ‘iddah
A ‘iddah (marriage-abstention period) is: ‘A period of time which the Shari’ah specified in which the woman spends after separation from her husband through divorce, death or the like, so that she is not allowed to marry another man until after the elapse of it’. The situations in which this is obligatory are:
1- Separation from the wife through divorce.
2- Separation of the wife through an invalidation of a marriage on account of a defect or other reason, or forced invalidation through desertion from Islam (irtidād) or the like, as explained before.
3- The husband’s death.
4- Sexual intercourse of questionable legitimacy (shobhah), whether with or without a contract.
5- The elapse of the period of term marriage, or abandoning it up, as explained before.
The rulings of the marriage-abstention period differ according to the situation of the divorced woman regarding being pregnant or not, whether she has had sexual intercourse with the husband or not, the reasons for the separation (death or otherwise), and whether the marriage is permanent or term. This we shall detail in parts:
Part 1: The non-pregnant (hā’il) marriage-abstention period
1481. The non-pregnant woman observes a marriage-abstention period only if she has had sexual intercourse with the husband who is divorcing her, and she is neither young nor has reached menopause; otherwise she does not have to observe a marriage-abstention period, as mentioned before. Sexual intercourse takes place when the (penis) glans (hashafah) – at least – penetrates the woman’s vagina, even if with no ejaculation; observing a marriage-abstention period with sexual intercourse in the anus is based on precaution, so no importance is attached to the question of whether his semen entered the vagina without ejaculation. As for the period of the marriage-abstention period, it differs as follows:
1- If she has a period (menses) and between each two consecutive periods a time period of not less than three months, in this case her marriage-abstention period is three purity times, starting to count them from the purity in which she was divorced, if there was still something left of it, even if just one moment. Then when the menses arrives again she becomes pure; this is her second purity time. Then when the menses comes again and she becomes pure, this is her third purity time, but her marriage-abstention period is not complete until the next menses arrives; her marriage-abstention period is complete the moment this next menses starts again.
2- If she has a period, but her purity between each two consecutive periods is more than three months, in this case her marriage-abstention period is three lunar months from the moment of her divorce. So if the divorce took place at the beginning of the month; then counting it is straightforward, but if she is divorced during it, her marriage-abstention period will last the rest of that month plus two lunar months plus what had elapsed from the first month before the divorce; but she must regard the month other than the two months in the middle as thirty days, as an obligatory precaution.
This is if her monthly period is has an extended cycle, i.e. she has her menses every three months or more; but if this occurs in different ways, so that the menses arrives like this only for part of the year, while it arrives in less than three months in other times of the year, in this case the ruling is that she starts her marriage-abstention period after her divorce, then if her purity lasts for three months, then this is her marriage-abstention period, but if the menses arrives (earlier), then she observes a marriage-abstention period counting the number of (three) purity times – as an obligatory precaution – even if this takes a long time. That said, if she is used to having her period in less than three months, then when her husband divorced her, she saw the blood once then it stopped, unlike her period, in this case it is sufficient to observe a marriage-abstention period counting months, although it is better to do this counting the times of purity.
3- If she has no period, although she has reached the age of menses, due to an illness, breastfeeding or the like, in this case her marriage-abstention period is three months as explained in (2) above.
Part 2: The marriage-abstention period for the pregnant
1482. The marriage-abstention period of the divorcee who is pregnant from her husband is the duration of her pregnancy, so her marriage-abstention period ends when she gives birth, even if one hour only after the divorce. However, if she is pregnant with twins, triplets or more, her marriage-abstention period does not end until she gives birth to all the babies.
1483. A condition for the marriage-abstention period for the pregnant divorcee, which ends after giving birth, is that her pregnancy must be from her husband who is divorcing her – even if the pregnancy was as a result of adultery or intercourse of questionable/erroneous legitimacy –; but if the pregnancy was by someone other than her husband, whether in adultery or intercourse of questionable/erroneous legitimacy, in this case her marriage-abstention period is either counted by purity times or months as explained before. That said, if she became pregnant as a result of intercourse of questionable/erroneous legitimacy, she must observe a marriage-abstention period from this this intercourse until giving birth, then to observe (another) marriage-abstention period of purity times or months after the husband’s divorce, as will be explained.
Part 3: Rulings for the divorce marriage-abstention period
1484. Counting for the divorce marriage-abstention period starts from the moment the divorce takes place, not when she receives the divorce news, so if a period has elapsed after the divorce without her knowing it, then she counts her marriage-abstention period from the time the divorce took place; and if some time is left, she waits until it elapses, but if the whole of the marriage-abstention period has elapsed, in this case she is free now and is allowed to marry someone else, regardless of whether the husband was absent or present.
And if when she learns about the divorce she does not know its date, then if she can be certain that she has been divorced at least a month ago, for example, but with the possibility that the divorce might have taken place even earlier, she is allowed to start counting her marriage-abstention period from the time that is certain, otherwise she will have to observe a marriage-abstention period starting from the moment she received the news, which is the best in all cases.
1485. If the husband divorces his wife with whom he has had sexual intercourse in a revocable divorce, then it happens that he returns to her with sexual intercourse, then divorces her again, in this case the ruling for a divorcee who did not have sexual intercourse (regarding her need to observe a marriage-abstention period) will not apply, but it is her first ruling (as one who has had sexual intercourse) that will continue to apply, and she has to start a new marriage-abstention period starting from her second divorce, without counting what had elapsed from her marriage-abstention period after the first divorce. This ruling also applies to the marriage-abstention period for an irrevocably divorced woman, one of the cases of which is: he separates from her after sexual intercourse either by giving up the term or reaching the end of it, if he entered into a contract with her during her marriage-abstention period then separated from her before sexual intercourse; however, in this case (i.e. she is in her irrevocable divorce marriage-abstention period) it is sufficient for her to complete what is left from her marriage-abstention period after the first divorce without the need to start a new marriage-abstention period after separating from him again.
1486. If the married couple dispute the elapse of the marriage-abstention period, the claim of the wife under oath is given preference, whether she claims that the elapse of the marriage-abstention period has taken place or not, and whether her marriage-abstention period was calculated by counting purity periods or months. That said, if her claim is doubtful, such as if she claims that she had three menses in one month and so her marriage-abstention period has ended, her claim cannot be accepted without proof.
It must be noted regarding accepting or rejecting her claim on account of a doubt over her claim that the nature of the norm should be considered, and whether her claim seems unlikely should be judged against this; but if the claim is likely and normal – such as in cases like the example where she is taking a medicine that brings on her menses early – in this case her claim can be accepted.
1487. If a non-imāmite (a non-follower of the imāmi ithnā-‘ashari Shi‘ite school of thought) divorces his wife in a way that conforms to his school of thought but contradicts ours, an imāmite is allowed to marry that divorcee after the elapse of her marriage-abstention period if that conforms to her divorcing husband’s school of thought; it is also allowed for the imāmite woman divorced from her non-imāmite husband to marry another, in conformity to what the Muslim who follows a school of thought other than ours adheres to in himself and all his affairs. It is also allowed for someone who has not previously followed our school of thought, when he starts following it, to observe the consequences of his past divorce on followers of our school of thought where they do not conform to the requirements and conditions that we observe. This is also the case with his imāmite wife if he divorces her then he starts following our school of thought.
Part 4: The marriage-abstention period relating to intercourse of erroneous legitimacy (shobhah; the error is discovered later, hence here it is erroneous rather than questionable)
1488. Just as a marriage-abstention period is to be observed after divorce in which the marriage contract ties and covenant are broken, a marriage-abstention period might become necessary after sexual intercourse that takes place between the married couple in in circumstances of erroneous legitimacy.
The criterion that sexual intercourse may be one of erroneous legitimacy is: the (erroneous) belief of the man that the woman is a wife of his, whether this circumstance arises when he enters a contract with her then the marriage is discovered to be invalid because she is forbidden to him through breastfeeding, blood ties or marriage kinship; or the belief of the man that she is free then it is found that she is not because she is married, or for other reasons; or the error arises in the absence of a contract, such as if he thought that she was his wife because it was dark or the like. In such cases, it is obligatory on her to observe a marriage-abstention period, even if she had no knowledge of the situation and, like him, made this error believing in her marriage to him, or had knowledge of it. The important thing in this is that the error is on the side of the husband, even if on his side alone. However, if the error was on the side of the woman only, with the knowledge of the man and his awareness that she was not his wife, if she went along with him believing that he was her husband, then here as well she must observe a marriage-abstention period – as an obligatory precaution.
1489. The marriage-abstention period for intercourse of erroneous legitimacy is like the divorce marriage-abstention period previously explained, so it becomes obligatory to be counted in term of purity time periods or months or giving birth, if the wife is not young nor has reached menopause; otherwise no marriage-abstention period is obligatory. All this is in accordance with the details given previously, whether she was married or free, so if intercourse of erroneous legitimacy took place with a married woman, her husband will be obliged to abstain from having sexual intercourse with her until her marriage-abstention period elapses; however indulgence in pleasures other than sexual intercourse is allowed. It seems that her maintenance is not cancelled during the days of the marriage-abstention period, despite this.
As for the free (unmarried) woman, it is allowed for the man who had sexual intercourse with her to enter a marriage contract with her during her marriage-abstention period, in contrast to other men, who will have to wait until the elapse of her marriage-abstention period to be able to marry her.
1490. The start of the count of the marriage-abstention period for intercourse of erroneous legitimacy when there is no contract with the woman whose her marital status was the centre of the problem is the moment at which the sexual intercourse ended, not when the situation is uncovered; so if it happened that he had sexual intercourse with her then went away from her for a month then the erroneous legitimacy of the intercourse was found out, in this case the marriage-abstention period should be counted from the sexual intercourse, not when they discovered the matter. The same ruling applies if the intercourse of erroneous legitimacy occurred in the presence of a contract with her and his belief in the validity of his marriage to her; here, if he had sexual intercourse with her then went away from her for a while then the matter was discovered, her marriage-abstention period would start from the day he had sexual intercourse with her.
1491. Another marriage-abstention period might become obligatory for a woman who becomes involved in sexual intercourse of erroneous legitimacy during her marriage-abstention period after intercourse that is legitimate or of erroneous legitimacy; this is in these four cases:
1- When she is in a divorce or death marriage-abstention period, then a man other than her husband has intercourse of erroneous legitimacy with her during the marriage-abstention period.
2- When she has had intercourse of erroneous legitimacy, then her husband divorces her or dies during her marriage-abstention period relating to intercourse of erroneous legitimacy.
3- When she had intercourse of erroneous legitimacy with a man, then again had intercourse of erroneous legitimacy with another man during her marriage-abstention period, after the first one.
4- When she is in an irrevocable divorce marriage-abstention period, then her husband has intercourse of erroneous legitimacy with her during her marriage-abstention period.
The ruling regarding these cases above takes two different forms:
First: When the man who had the intercourse of erroneous legitimacy with her was the husband, as in case (4), the ruling of this is that she must neglect what has elapsed from the divorce marriage-abstention period and starts a new marriage-abstention period for the intercourse of erroneous legitimacy.
Second: When the man who had the intercourse of erroneous legitimacy with her is not the man with whom she is observing his marriage-abstention period, whether the first was a husband or not, as in the cases (1), (2) and (3), the ruling of this is that the two marriage-abstention periods do not overlap, but implementing this is different, as follows:
a- When one of her two marriage-abstention periods is a pregnancy marriage-abstention period, whatever its reason, in this case she must give preference to the pregnancy, so when she gives birth she looks into the situation: if the pregnancy came first, in this case she must start with the other marriage-abstention period after giving birth; but if the other marriage-abstention period came before the pregnancy marriage-abstention period, such as if she was observing a marriage-abstention period and after the elapse of some of it she became pregnant, in this case it is sufficient for her to complete what is left of it (only) after giving birth.
b- When she has no pregnancy marriage-abstention period, then her ruling is to complete the marriage-abstention period that she was observing, then to start another marriage-abstention period for the second.
Part 5: The death marriage-abstention period
1492. If the husband dies, the wife has to observe a death marriage-abstention period, whether she is young or adult, sane or insane, Muslim or non-Muslim, has had sexual intercourse with her husband or not, or is a permanent or term wife; also no distinction is made between the husband being young or adult, or sane or otherwise. Her marriage-abstention period is four lunar months and ten days.
This is if she is not pregnant; however, if she is pregnant, her marriage-abstention period is the longer of the two terms: giving birth or this period. Giving birth must be waited for in any case, then if the time elapsed between his death and giving birth was equal to (or more than) this period (4 lunar months and 10 days), then her marriage-abstention period has ended, otherwise she must complete this period after giving birth.
1493. If the husband dies during his wife’s marriage-abstention period following their divorce, here if the marriage-abstention period is following a revocable divorce, it is invalidated and she must start a new marriage-abstention period for his death as explained earlier; but if the marriage-abstention period is following an irrevocable divorce, then she only needs to complete the divorce marriage-abstention period without adding to it.
1494. The start of the marriage-abstention period for the death of the present husband is from the moment the death took place; however if the husband was absent from the wife’s country or regarded as absent, such as if he was present in her country but the news of his death did not arrive to her for reasons of illness, imprisonment or other obstacles, in this case the start of her marriage-abstention period is from the moment she receives the news of his death. However, applying this ruling to the wife of the absent person is not clear-cut if she is young (not bālighah) or insane, although it is likely that it is sufficient for them to start counting it from the moment of death.
1495. It is obligatory on the wife observing the death marriage-abstention period to observe what is known as ‘hidād’ (mourning), which is: to abstain from anything that is regarded as make-up according to the social norms of the place in which she lives, something which differs according to the time, the place and the customs, in both the body and clothes. hidād does not mean that the wife stays in the home in which she was living when her husband died, nor that going out is forbidden to her during the marriage-abstention period. In addition, if she violates her obligations during the marriage-abstention period, this does not affect the marriage-abstention period, although she will have sinned.
(F) The wife whose husband is missing
1496. What is meant by ‘missing’ refers to someone whose family has no news of him and his whereabouts, whether it is known or not known if he is alive or dead, whether he is a traveller, a fighter in a battle, or if his ship sunk in the sea, or if he has been detained by government authorities who have issued neither any news of him, nor given details of his place of detention, or any other reasons for going missing.
1497. If the husband goes missing, here are several scenarios:
1- The wife withstands what she is losing in terms of her rights, such as maintenance, and does not fear succumbing to forbidden acts; in this case she may do so without any problem and her marital tie with him continues as long as she does not know that he has died.
2- The wife claims her maintenance; in this case if her husband has assets that can be accessed and used to provide maintenance, or else his guardian or someone in his position provides this so she does not fear succumbing to forbidden acts. She must keep to this path and uphold her marital ties with him, however long it takes.
3- The wife cannot bear the deprivation of her sexual needs and starts to fear that she will succumb to adultery and other forbidden acts, despite receiving maintenance; or that she can bear the deprivation of her sexual needs but her husband does not have assets which can be used for her maintenance, nor does the guardian provides this; in this case the ruling is as follows:
a- If her missing husband is known to be alive but his whereabouts is unknown in a way in which reaching him and agreeing with him on the matter is not possible, in this case she is allowed to turn to the Islamic authority to request divorce from him, and after the Islamic authority ascertains that he is missing in this manner and after it is proven to the authority that her maintenance is not being met, it will be appropriate for the authority to call the husband's guardian and order him to grant her a divorce. If he responds positively the matter is solved; otherwise the authority will force him to divorce her, but if forcing him is not possible, the Islamic authority will divorce her; the divorce is irrevocable and she must observe the previously described divorce marriage-abstention period. The same ruling applies when she fears succumbing to forbidden acts; so if she claims that she fears succumbing to forbidden acts, her claim is to be believed, since knowing her situation cannot be ascertained except from her. If the guardian or the Islamic authority divorces her, her husband will have no right over her when he returns.
b- If it is not known if the missing husband is alive or dead, here the ruling is that his wife turns to the Islamic authority in the case when she fears succumbing to forbidden acts, even when her maintenance is provided, and in the case where her maintenance is not provided, the Islamic authority sets a waiting period of four years starting from the moment of her claim, searching during these years for her husband; if the four years elapse without learning of his situation, the Islamic authority orders his guardian to divorce her, but if he refuses and forcing him is not possible, the Islamic authority divorces her and she must observe a marriage-abstention period like a death marriage-abstention period. However, it is a revocable marriage-abstention period in which her maintenance is confirmed for her and her husband can have her back if he returns during that marriage-abstention period; each of them inherits the other if dies during the marriage-abstention period; when the marriage-abstention period finishes, she is allowed to marry someone else.
1498. If she knows that her husband is alive, or that he has returned to his house, after searching for him and the elapse of the time period that the Islamic authority has set for her, here if this takes place before the divorce, then she is still his wife, but if this takes place during the marriage-abstention period, he is given the choice of having her back or leaving her until she finishes her marriage-abstention period and becomes forbidden to him; and if this takes place after her marriage-abstention period has finished, in this case she becomes forbidden to him and he has no right to her unless with a new contract.
1499. If the wife learns of the death of her missing husband, then if this is during the period (set by the Islamic authority), or after it but before the divorce, she must observe a death marriage-abstention period; but if this is during the marriage-abstention period, she must start a new death marriage-abstention period, and if this is after finishing the marriage-abstention period, then it is sufficient.