CHAPTER-11

Family Laws
Marriage
Please keep in view the following verses of the Quran: 2(221, 232,
234); 4(22-25); 5(5); 24(3, 26); 24(32-33).
Law of marriage as evolved from the Quran and the Sunnah is briefly
discussed as follows:
1. In the Arabic, the Quran has used the word Nikah or Aqd for
marriage. It means uniting or union. It is, as its literal meanings go, carnal
conjunction of the union of sexes. For facility of discussion in English
language we would use the word marriage instead of Nikah or Aqd
2. Marriage is essential. The Prophet of Islam is reported to have
remarked: Nikah (marriage) is my Sunnah and whosoever rejects my
Sunnah is not from me. The Quran says: Marry those among you who
are single (24:32). The Arabic word Ayyama means single or solitary. A
single person, may be a man or a woman, should be married. He or she
may be single on account of having not yet married or on account of
dissolution of his or her marriage by divorce or by death of the other
spouse. Whatever may be the reason for being single, he or she is
supposed to marry or remarry. Even poverty is no excuse or justification to
abstain from marriage, as the Quran says in this very verse If they are in
poverty, Allah will give them means out of His grace. Monasticism which
is considered to be an ideal way of life in some religions is discouraged by
Islam. Similarly, life of celibacy is not encouraged as the Prophet of Islam
strongly objected to one of his companions living such life. According to a
Hadith, one makes his religion half perfect by marrying and he would
meet Allah pure and purified. There is consensus of Muslim jurists that
marriage is Sunnat muwakkidah. Institution of marriage embraces in
itself the character of Ibadah as well as character of Muamlat. Marriage
in Islamic society though essentially civil contract is also devotional act.
3. Islam permits marriage of widows and divorced women unlike certain
other religions which do not allow such women to remarry. However,
virgins (unmarried women) may be preferred for the first marriage of a
young man since virgins are generally more prolific, more affectionate and
are easily satisfied with little means of income of the husband (according
to a Hadith).
4. Islam, as the religion of nature, understands human nature thoroughly
and, therefore, it allows a man and a woman, who want to marry, to look
at each other before marriage. Apparently it may look rather a liberal and
progressive approach which is rejected by many creeds and customs, but
actually it is the correct approach. Would-be spouses should see each
other and should exercise their right of choice. On the contrary if they are

herded together forcibly by their parents or guardians, their union is likely

to break apart.
5. Islamic law has made it compulsory that a womans consent must be
obtained before she is married. According to the Ahadith of the Prophet,
the consent of the women, whether previously married or virgin, is
essential for marriage. A virgin may feel shy and keep quiet. If she
remains silent that shall be considered her consent, but if she declines
there shall be no compulsion on her. Thus Islamic law provides clearly a
right to a woman to exercise her choice for marriage by saying yes or no.
This idea of obtaining consent has led to the legal concept that for the
completion of a marriage contract there must be proposal from one side
and acceptance from other side. No compulsion or coercion can, therefore,
be exercised to force a woman into marriage against her will.
6. Marriage contract like anyother civil contract is to be evidenced by two
competent witnesses. This has been emphasised by the Prophet of Islam
and is established by the common practice among his followers. The verse
number 2 of chapter 65 of al-Quran also enjoins upon the believers to call
to witness two just men from among them at the time of marriage as well
as divorce.
7. A minor girl, when given in marriage by her guardian, has the option to
repudiate the marriage when she attains puberty. The Prophet of Islam
annulled the marriage of a girl who had been given in marriage by her
father, since she disliked it. However, repudiation must be made
immediately after she attains puberty and before cohabiting with the
husband.
8. Females prohibited to a man for marriage have been mentioned in
detail by the Quran in its verses 22, 23 and 24 of Chapter 4. The following
women are forbidden to you as commanded by the Quran:
I) Your mothers (real mothers). II) Women whom your father married (step
mothers). III) Your daughters. IV) Your sisters. V) Your fathers sisters. VI)
Your mothers sisters. VII) Your brothers daughters. VIII) Your sisters
daughters. IX) Your foster-mothers. X) Your foster-sisters. XI) Your motherin-law. XII) Your step-daughters born of your women unto whom you have
gone-in. XIII) Wives of your real sons. XIV) Two sisters together. XV) All
married women save those captives whom your right hands possess.
Certain unions have also been prohibited specifically by Prophet
Muhammad (PBUH). According to Prophet: A woman and her paternal aunt
cannot be united, nor a woman and her maternal aunt can be united.
Prophet Muhammad (PBUH) also told one of his followers not to marry a
prostitute.
9. The Quran in its verse number 221 of chapter number 2 has strongly
forbidden its followers (Muslim males as well as females) to marry
idolatresses and idolaters till they believe. Thus, the marriages of Muslims
with non-Muslims have been prohibited. However, there is one exception
and that is in the case of a Muslim male who has been permitted by the

Quran (5:5) to marry a virtuous woman of the people of the Scripture i.e.
the Jews and Christians. But a Muslim woman cannot marry a male
scripturalist (a kitabi man i.e. a Jew or a Christian).
10. According to well-reported Ahadith, Prophet Muhammad (PBUH)
prohibited Muta marriages (temporary marriages) and Shigar marriages
(exchange marriages without fixing dower for the females).
11. Proclamation and publicity of marriage is very important in Islam as it
dislikes secret marriage. Hosting of Waleema (marriage feast) is an
obligatory Sunnah of the Prophet which should be performed by the
bridegrooms to entertain their relatives and friends in order to celebrate
their marriages. Even Daf beating and singing is allowed on the occasion
of marriage for the purpose of celebration and jubilation.
12. The solemnisation of marriage requires certain formalities and
conditions which briefly speaking are:
(i)

Proposal and acceptance (Ijab-o-Kabul)

(ii) The words conveying proposal and acceptance be uttered in

each others presence or in the presence of their agents called
vakils.
(iii) Transaction must be completed in one meeting.
(iv) The parties to marriage must be competent i.e. they must have
capacity to marry. The capacity to marry depends on
understanding, puberty, free will and consent. Puberty is
presumed in respect marriage at completion of the fifteen years
of age. A minor under 15 years can, however, be validly married
through guardian. But even in this case he must not be below 7
years because marriage below that age is void in all cases.
(v) Under sunni law, there must be two witnesses on the occasion of
marriage.
(vi) There must be no legal bar to the union i.e., the couple must not
be related to each other within prohibited degrees.
13. Views differ regarding the age of puberty. Abu Hanifa fixes the age of
puberty in case of boys at 18 years and in case pf girls at 17 years.
According to Abu Yusuf, it is 15 years for both. Hedaya places the earliest
period of puberty in respect of a boy at 12 years and in respect of a girl at
9 years. The Child Marriage Restraint Act,1929. has fixed the age of
puberty for male at 18 years and for female at 16 years.
Dower
Please keep in view the following verses of the Quran: - 2(236-237);
4(4, 20, 24); 33(50); 60(10);
The Arabic word Mahr is translated into English as dower. It has been
defined in various ways. According to a popular definition, dower is a sum

of money or other property which a wife is entitled to get from her

husband in consideration of marriage in Islam. It is a bridal gift which a
Muslim husband is obliged to pay to his bride.
The Quran and the Sunnah have laid down the following rules and
regulations regarding Haq Mahr or dower:
1. Payment of Haq Mahr (dower) to his wife is obligatory on the husband.
It is an essential part of marriage. The Quran says: O Prophet! We have
made lawful to you your wives to whom you have paid their dowers
(33:50). At another place the Quran says: And there is no blame on
you to marry them when you give them their dower. (60:10). However,
the marriage is not invalid if dower is not paid or fixed before marriage. It
is apparent from verse 236 of chapter 2 of Al-Quran which reads: There
is no sin for you if you divorce women when you have not yet touched
them nor fixed their dower. But provide for them, the rich according to his
means and the poor according to his means, a fair provision. This is a duty
for those who do good.
2. The amount of dower which the bridegroom has to pay to his bride has
not been fixed by the Quran or the Sunnah. It depends entirely on the
agreement of the contracting parties. The Quran says: .The wealthy
according to his means and the poor according to his means, a fair
provision. This is a duty for those who do the right things. (2:236)
There is no minimum or lower limit of dower prescribed by law, though
some jurists say that it should not be less than ten dirhams. It may be in
the form of cash or in kind. The Prophet (PBUH) did not fix any minimum.
According to the well reported Traditions of the prophet of Islam, even a
handful of barley or dates or even an iron ring may be sufficient provided
the bride agrees to accept it. The Messenger of Allah himself married
Hadrat Safiyyah and her emancipation was her dower. Omme Solaim
agreed to marry Abu Talha on the condition that he should embrace Islam.
Abu Talha fulfilled the condition and his acceptance of Islam was declared
to be mahr or dower of Omme Solaim. In another case, the teaching of
one or two verses of the Holy Quran by the husband to the wife was
declared to be an adequate Mahr for the bride.
Similarly no maximum or upper limit of mahr or dower has been fixed by
Islam either. The Quran says: But if ye decide to take one wife in place of
another, even if you had given the latter a whole treasure for dower, take
not the least bit of it back (4:20). From this verse it has been deduced
that the right of a woman to demand any amount of dower as a condition
of her agreeing to marriage is not restricted by the Islamic Law. Hadrat
Umar, the second pious caliph of Islam, once thought of fixing the upper
limit of dower on the complaint of men that women were demanding huge
amounts; but he was dissuaded by a woman who drew his attention to
verse of the Holy Quran quoted above.
3. If a person divorces his wife before touching her and before appointing
any amount of dower for her, he has been directed to make provision for

her according to his means. But if he divorces her before touching her and
after fixing the amount of dower for her, he is bound to give half of the
amount of dower which has been fixed. However, if the woman agrees to
forgo her right of accepting this half dower or the man shows generosity in
giving her full dower, such an accord is permitted. (Al-Quran 2:237)
4. The men should give to their wives their dower willingly. But if the
women of their own accord agree to remit the whole or part of their
dower, the husbands must welcome this gesture (Al-Quran 4:4). Hadrat
Umar and Qadi Shuraih have decreed that if a wife remits the dower but
later on demands it, the husband shall be compelled to pay it because the
very fact that she demands it is a clear proof that she did not remit it of
her own free will.
5. According to verse 24 of Surah An-Nisa, dower has to be paid as a duty.
6. Dower can consist of either a sum of money or certain property or thing
or article of use. But there are certain goods or objects which are not
allowed by Fiqh to form the subject of dower. For example
(i)

Things forbidden to a believer, like pork, wine, etc.

(ii)

Things not yet in existence such as fruit crop of next year.

(iii)

Personal service of husband.

Any thing over which the dominion or the right of property can be
exercised or anything which comes within the meaning of mal and has a
value, may according to Hanafi law, form the subject of dower.
7. The object of dower is three-fold. Firstly, it would be a check on the
arbitrary exercise of the power of divorce by the husband. Secondly, it
would restrain the husband to indulge in polygamy. Thirdly, it would work
as an obligation imposed upon the husband as a mark of respect to the
wife. It has been rightly observed: The marriage contract is easily
dissoluble, and the freedom of divorce and the rule of polygamy place the
power in the hands of the husband which the Law-giver intended to
restrain by rendering the rules as to payment of dower stringent on the
husband.
8. Dower according to Jurists is of two types: one is called prompt dower
(Mahr-i-Muajjal) which is payable on demand and the other is called
deferred dower (Mahr-i-Muwajjal) which is payable on dissolution of
marriage by death or divorce. The jurists are unanimous on the point that
the wife can refuse to perform her marital obligations unless prompt
dower is paid.
9. If the amount of dower is fixed in the marriage contract, the dower is
called specified dower. When the amount is not fixed, the wife is entitled
to proper or customary dower (Mahr-i-Misl), which is determined
keeping in regard the amount of dower settled upon other females of her
fathers family. Dower is a debt and the widow is entitled alongwith other
creditors of her deceased husband, to have it satisfied out of his estate.

However, this debt is an unsecured debt and ranks after secured creditors.
But it has priority over legacies and rights of heirs.
Divorce
Please keep in view the following verses of the Quran:- 2(226-227);
2(229); 2(230-232); 2(236-237); 2(241); 4(35); 24(6-9); 58(2-4); 65(1-2):
The Arabic word Talaq which is translated into English as divorce
means freeing or undoing the knot or dismission or rejection. Under
Islamic Fiqh it is a release from marriage tie. It is the dissolution of
marriage between the husband and the wife by the pronouncement of
certain words. Any adult Muslim of sound mind can divorce his wife
whenever he desires, without assigning any reason.
The law regarding divorce as emanating from the Quran and the
Sunnah and Fiqh is outlined as under:
1. The divorce is the most hated and unpleasant thing in Islam. According
to a well reported Tradition, the Messenger of Allah said: The most
detestable of lawful things near Allah is divorce. Despite that, Islam
permits divorce because it becomes inevitable in some extreme situations
when it is not possible for the husband and the wife to pull on together. It
is allowed normally when all the efforts for reconciliation have proved
abortive and there are no chances left for the couple to live together
amicably.
2. To resolve the differences between the husband and the wife, resort can
be made to arbitration. The Quran in its verse 35 of chapter 4 instructs its
followers to appoint arbiters, one from husbands family and one from
wifes family for making reconciliation and rapprochement. If the parties
wish for settlement and peace, the efforts of the arbiters shall be
successful and Allah would effect harmony between the spouses.
3. The method of divorce as propounded by the Quran and the Sunnah is
briefly described in these words: If the husband intends to divorce his
wife, he can do so by making a single pronouncement of divorce within
Tuhr during which he has not had sexual intercourse with her, and then
leave her to observe Iddah. After expiry of Iddah (three monthly courses)
the divorce would attain finality. The other method is that the husband
would pronounce divorce thrice in three successive Tuhrs, and in this way,
the divorce would become irrevocable after the third pronouncement. In
case of one or two divorces, the husband retains the right of Rajuah or
reunion within period of Iddah by resuming sexual intercourse or by verbal
retraction. However, after the expiry of Iddah, divorce becomes
irrevocable and the husbands right of Rajuah stands forfeited. Now, the
couple has the right to remarry if they desire to live together. But when a
husband has given three divorces, he has no right of revocation, neither
the couple can remarry. In this situation, the parties can remarry only
when the woman marries another husband and the latter dies or divorces
her after actual consummation of marriage.

Tuhr is period of purity between two monthly courses and Iddah is the
waiting period which a divorcee has to undergo before she can contract a
second marriage.
4. The procedure of divorce enunciated by the Quran and Sunnah, as
stated above, is spread over a period of almost three months, during
which the husband has a right to revoke the divorce. It has been done
with a view to check hasty, rash or an arbitrary action on the part of the
husband and also to leave the door open for the parties to reconcile
during the period. During Iddah the wife cannot be expelled from the
house and she would be entitled to full maintenance and also to good
treatment.
5. Those who pronounce three divorces at a single sitting, they have been
condemned by the Holy Prophet. According to an authentic Tradition, the
Prophet of Islam, when he heard of a man who had given three divorces to
his wife at one time, got up enraged and said: Are you playing with the
Book of Almighty and Glorious Allah, while I am still amongst you? So, the
simultaneous pronouncement of three divorces was treated as a single
divorce during the time of the Prophet and of Abu Bakr and even in the
early days of the caliphate of Umar. Umar reportedly used to whip such
persons who gave three divorces in one sitting. However, later on, Umar
changed his mind when he found that people frequently divorced by three
pronouncements. He, therefore, ordered to treat three pronouncements as
three divorces and made them operative as a matter of punishment upon
those who used this sinful method. This form of Talaq is called Talaqul
Biddat or irregular divorce and is sinful being against the teachings of the
Quran and Hadith. However, it dissolves the marriage irrevocably and
immediately in the opinion of some jurists. But other jurists take it as
single divorce which is not irrevocable. Shafii and Hanfi Law recognize this
form of divorce though they consider it as sinful, but the Shias and Malki
do not recognize this mode of Talaq.
6. When a husband has repudiated his wife by making three divorces, the
divorce becomes irrevocable. He cannot after that remarry her until after
she has married another husband and that other husband has divorced
her. This has been further explained by the Prophet in his traditions.
According to the Prophet, marriage in such situation with the first husband
is lawful only when the wife has consummated her marriage with the
second husband, and the second husband has voluntarily divorced her or
he has died.
The method of making a woman lawful for her first husband in common
parlance is called Halalah. Prophet of Islam has condemned the man who
makes a woman lawful for her first husband intentionally, and the first
husband, has also been cursed for whom she was made lawful. Thus,
Halalah is abominable and the most unpleasant method. Those who
indulge in this practice intentionally are the most cursed persons.
7. In case of divorce, the husband is not entitled to take back anything out
of the dower which he has given to her, however great it may be (Al-

Quran 4:20). If he has not given her dower already, he is obliged to make
the payment of dower immediately at the time of divorce. For the divorced
woman, the husband is required to make some provision as the Quran
(2:241) deems it a duty for the righteous.
8. Al-Quran has given the right of obtaining divorce to a wife if she agrees
to pay some ransom or compensation. This is called Khula. If the husband
and wife are not able to keep the limits of Allah and they agree to dissolve
the marriage on the condition that the wife gives some compensation, it is
permitted by the law (The Quran 2:229). The jurists are generally of the
opinion that such compensation should not exceed the dower given by the
husband to the wife. Thus Khula is a kind of facility provided to the woman
to secure divorce from her husband by returning a part of or full amount of
the bridal gift or Mahr. According to a tradition the Apostle of Allah
permitted the wife of Sabet-b-Qais to get divorce from her husband by
surrendering a garden which had been given to her in Mahr.
So the Islamic law stipulates that whenever a marriage is dissolved at
the instance of the wife and there is no fault of the husband regarding his
performance of marital obligations, the wife is the contract-breaking party
and must, therefore, return the part or full of dower which she has
received from the husband.
9. There was an evil custom in the Days of Ignorance, according to
which a man would swear that he would not go to his wife for carnal
connection. By this means he would put away his wife for indefinite
period. He would keep her in suspense by neither divorcing her nor
resuming cohabitation. This practice was resorted to as many times as a
husband wished and, thus, the life of the wife became miserable. This
custom is known as Ieela. The Quran abolished this custom by warning
such persons to take decision within four months about their course of
action. They should either resume their conjugal relations and take back
their wives or give them divorce (Al-Quran 2:226). In case the husband
does not decide, the woman can take her case to a Qadhi who would order
the husband to take her back or divorce her.
10. There was yet another evil practice which was abolished by the
Quran. The man would say to his wife: Thou are to me as back of my
mother, and thus separate her indefinitely. It was called Zihar. It was held
to imply a divorce and freed the husband from any responsibility for
maintenance of wife and children and other conjugal duties, but the wife
was not allowed to leave the husbands home or to contract another
marriage. So this custom was not only degrading to a woman but also
fatal to the lives of the children. Al-Quran abolished this custom by
saying: Such of you who put away their wives (by saying they are as their
mothers) they are not their mothers; none are their mothers except
those who gave them birth-they indeed utter an absurd word and lie.-(58:2). Such person who is guilty of Zihar has been commanded by the
Quran in the subsequent verses to set free a slave or to fast for two
consecutive months or to feed sixty needy persons as a mater of
expiation. After undergoing this penalty he can touch his wife. But if he

does not perform this prescribed penance, his wife has a right to apply to
a court of law for judicial divorce.
11. If the husband charges his wife of adultery and has got no witness, the
couple has to undergo what is called Lian. The procedure of Lian has been
prescribed by the Quran in the verses from 6 to 9 of chapter 24. The
Prophet of Islam used to separate such spouses who had preformed Lian.
It has been held by the jurists that if the charges are false, the wife is
entitled to sue for and obtain divorce from a court of law.
The procedure of Lian or imprecation as stated in the Quran is briefly
described thus: If a husband charges his wife of adultery and has no
witnesses, he shall swear by Allah four times saying that he is speaking
the truth, and a fifth time he would invoke curse of Allah on him if he is
liar. If the wife wants to deny the accusation and save herself from
punishment, she would swear by Allah four times saying that her husband
is telling lie, and a fifth time she would invoke wrath of Allah on her if the
husband speaks the truth.
Lian literally means mutual cursing, while technically it signifies a form
of divorce which is performed in the court and after mutual cursing, the
Qadi separates the husband and the wife.
12. From verse 2 of Chapter 65 of the Quran, some jurists have made the
presence of two witnesses compulsory for divorce, while the others
consider it optional. Sunni Law makes the presence of two witnesses
essential at the time of marriage but not at the time of divorce. On the
other hand, the Shiah doctors hold the presence of two witnesses as
necessary at the time of divorce but not at the time of marriage.
There is a difference of opinion among scholars about calling witness to
revocation of divorce and taking the wife back. According to Imam Malik
and Shafii it is essential to call witness to the revocation of divorce. But
Imam Abu Hanifa and Shafii (in one of his statements) do not think it
necessary to call witness for revocation.
13. Upon divorce, the wife becomes entitled to deferred dower, and
prompt dower if not paid. If the marriage was not consummated, she is
entitled to only half dower.
14. There is almost a consensus of opinion among the scholars that a
divorce pronounced in jest is valid and operative. This unanimous opinion
of the learned is based on the tradition of the Prophet who is reported to
have said: There are three things which, whether undertaken seriously or
in jest, are treated as serious: marriage, divorce and taking back a wife
(after a divorce which is not final). Thus, if an adult and sane person
pronounces divorce in joke, that is valid. It is of no use saying afterwards
that he was just joking. This rule is based on the rationale that if such
divorce is not taken seriously, people would begin to play with the
injunctions of the religion like a sport. However, divorce of the idiot is not
lawful whether pronounced in joke or seriously.

15. Divorce under force, compulsion or duress is not valid. Even divorce in
anger is unlawful. This is the view of three Sunni Imams Malik, Shafi and
Ibn Hanbal who quote Hadith reported by Ayesha that the Messenger of
Allah said: There is no divorce and no emancipation by force. However,
Imam Abu Hanifa differs with them and maintains that divorce under force
is valid.
16. Islam gives right to a woman to get divorce from her husband by the
following means:
(a) Talaq-i-Tafweez: If a husband has delegated the power of
divorce to his wife, she can exercise the delegated power and
can pronounce divorce.
(b) Khula or Redemption: If she agrees to pay some consideration
or compensation to her husband for her release from the
marriage tie, the divorce would be known as Khula. (Please
refer to serial No. 8 above).
(c) Mubarat or Mutual Release: If the husband and wife, by
mutual consent, agree to dissolve marriage conditionally or
unconditionally, the woman would be released.
(d) Lian or Imprecation: If the husband falsely accuses her of
adultery, the wife has right to sue him and obtain divorce.
(Please see serial No.11)
(e) Zihar: In case of Zihar, if the husband does not expiate
himself from prescribed penance, the wife has a right to apply
to court for divorce. (Please see No.10 above).
(f) Ieela: If in case of Ieela or vow of abstinence the husband
does not resume conjugal relations, the wife can apply to the
court for divorce. (Please see No.9 above).
(g) Judicial divorce: A Muslim woman can also obtain judicial
divorce from her husband under the Dissolution of Muslim
Marriages Act, 1939, on the grounds mentioned in that Act
such as absence of husband, imprisonment of husband,
impotency or insanity of husband, his cruelty, husbands
failure to maintain her or his failure to perform marital
obligations, etc.
(h) Talaq-e-Taliq: it means contingent divorce. A divorce may be
pronounced to take effect on the happening of a future event.
For example, a husband agrees to pay his wife maintenance
allowance within a specified time and in case of his default the
divorce would take place. Thus, the failure to honour the
agreement would operate as valid divorce.
17. Effect of apostasy: Apostasy from Islam of the husband operates as a
complete and immediate dissolution of the marriage. If a woman
converted to Islam from some other faith, re-embraces her former faith,

the marriage would stand dissolved. But mere renunciation of Islam by a

married woman or her conversion to any other religion does not, ipso
facto dissolve the marriage. However, she may sue for dissolution on any
of the grounds mentioned in Section 2 of the Dissolution of Muslim
Marriage Act, 1939.
Iddah
Kindly keep in view the following verses which deal with this
subject: 2(228); 2(234); 2(235); 33(49); 65(4); 65(5);
The rules of law made by the jurists in the light of Quran and the
Sunnah are discussed as under:
1. Iddah is the period of waiting or probation during which it is incumbent
upon a woman, whose marriage has been dissolved by divorce or death of
her husband, to remain in seclusion and abstain from marrying another
man. Syed Ameer Ali calls it interval which a woman is bound to observe
between the termination, by death or divorce, of one matrimonial alliance
and the commencement of another. Thus, Iddah is the period during which
a divorced woman or a widow is not permitted to remarry.
2. Period of Iddah in case of a divorced woman with whom marriage has
been consummated and who is still in the age of menstruation is three
monthly courses. In case of a divorcee who is past the age of
menstruation and in the case of a divorcee who has no menstruation
(because it has not yet started), the period is three months. In the case of
a pregnant woman the Iddah is up to her delivery. In the case of a widow,
the waiting period is 4 months and 10 days. In case of a marriage which
has not been consummated, there is no iddah to be observed. In the case
of a pregnant widow, if delivery or miscarriage takes place before 4
months and 10 days, the remaining period will have to be observed,
according to some jurists. The period of Iddah when husband dies after
divorce would run from the day of his death.
3. The primary purpose of the Iddah is two fold: firstly the ascertainment
of possible pregnancy and thus preventing the confusion of parentage of
the would-be baby; secondly to provide opportunity to the husband and
wife to resolve their differences and reconcile if the divorce is revocable.
4. During the period of Iddah, the woman, who has been divorced by less
than three pronouncements and is pregnant, shall be entitled to have both
dwelling and maintenance. A woman separated by revocable divorce shall
also have dwelling and maintenance, even if not pregnant, during the
period of Iddah. As for a woman whose husband has died, she will have no
maintenance but will have dwelling during the Iddah. In the case of a
woman who has been divorced irrevocably but is pregnant, both
maintenance and lodging are almost unanimously approved by the jurists.
However, there is some difference of opinion amongst the scholars
about maintenance and lodging for a woman who has been divorced
irrevocably by three pronouncements but is not pregnant. According to

Imam Abu Hanifa, such a woman is entitled to dwelling and maintenance

during the period of her Iddah. He and his followers base their opinion on
verse 6 of chapter 65 of the Holy Quran.
Maintenance
The meaning of Nafqah, which is the Arabic, equivalent of
maintenance, is what a person spends on his family. Maintenance
includes food, clothing and lodging. Under Islamic law, a person is bound
to maintain his wife and children and in certain circumstances his parents.
The law regarding maintenance is briefly discussed as below:
According to some well known Traditions reported in authentic books of
Hadith, the Prophet (may Allahs peace be upon him) required his
followers to accord their wives the best possible treatment. He impressed
upon men the rights of women regarding food, clothing and lodging. Even
in his famous Farewell Address at Arafat, the Apostle of Allah did not
forget to exhort the believers to fulfil their obligations regarding the
proper maintenance of their women. The Quran also enjoins upon the
believers to accord proper treatment to their wives.
Duty of providing maintenance to the wife is so important that the
Quran makes even a divorced wife entitled to it during the period of Iddah
when the husband would provide her food, clothing and lodging and
cannot expel her from his house (Al-Quran 65:1 and 65:6). If she is
pregnant, the husband is bound to maintain her till delivery and in case
she suckles the child she would be entitled to receive the due payment for
this service. (Al-Quran 65:6)
The Quran makes it a duty for the pious and God-fearing persons to
make some provision even for those women who have been divorced by
them. (2:241)
No scale or standard has been fixed for maintenance by the Quran or
by the Sunnah. However, a lot of guidance has been provided to
determine it in the given circumstances. The Quran says: No one should
be charged beyond ones capacity (2:233). At another place, the Quran
directs: Provide for them, the rich according to his means and the
straitened according to his means, a fair provision. (2:236)
Please refer to verses 2:215; 2:233; 2:236; 2:241; 4:34; 65:6-7;
Polygamy
Islam permits a male Muslim to have more than one wife at a time
although number of wives has been restricted to maximum four. The
rights of a woman in case of multiple or plural marriages of her husband
have also been protected. The relevant verses of the Quran are as
follows:
1) And if you fear that you will not be able to deal fairly with the
orphans, then marry the women (having orphan children with
them) who seem good to you, two or three or four. But if you

consider that you will not be able to do justice with them, then
marry only one or (marry) a slave girl who is in your possession.
Thus it is more likely that you will not do injustice. (4:3)
2) You will not be able to do full justice between your wives even if
you earnestly wish to do so. Hence, do not incline towards one of
them to the extent that you leave the other hanging (as in
suspense). And if you make reconciliation (with them) and keep
away from evil, then Allah is ever Forgiving, Merciful. (4:129)
The relevant Traditions of the Prophet of Islam are as follows:
1) Ibn Umar reported that Gailan-b-Salamah al-Saqafi accepted
Islam while he had ten wives of the Days of Ignorance. They also
embraced Islam with him. The Holy Prophet said: Keep four and
be separate from the rest. (Ahmad, Tirmizi and Ibn Majah)
2) Naufal-b-Muwayiah reported: I accepted Islam while there were
five wives with me. I asked the Prophet who said: Separate one
and keep four. (Sharhi Sunnat)
3) Ayesha reported that the Messenger of Allah used to have turns
among his wives and do justice. He used to say: O Allah! this is
my division in what I can control. So dont blame me in what
Thou dost control and I cannot control. (Tirmizi, Abu Daud, Ibn
Majah)
4) Abu Hurairah reported from the Holy Prophet who said: When a
man has two wives and he does not deal equitably between
them, he will come on the Resurrection Day with a side hanging
down. (Tirmizi, Abu Daud, Nisai)
In the light of the above mentioned verses of the Quran and the
Traditions of Prophet Muhammad (PBUH) the subject of polygamy i.e. the
permission to man of having wives upto four at a time is discussed as
under:
1. The Quran, in its verse 3 of chapter 4 permits polygamy and the
following hard and fast rules have been laid down about it:
a. If you fear that you would not be able to deal fairly and
equitably with the orphans, you should marry the women who
(have these orphans with them and) seem good to you.
b. You are permitted to marry even two, three or four women
but not more at a time provided you can treat them justly and
equitably.
c. If you have reason to fear that you cannot do justice with as
many wives, you should marry only one.
Adl or justice has not been defined in this verse. However all the
commentators of the Quran unanimously hold that justice in this verse
means equality of treatment in food, clothing and lodging. Mutazilite

doctors, however, hold that in addition to food, clothing and lodging there
must be equal treatment in love and affection also.
2. The Quran in its verse 129 of chapter 4 holds that you cannot deal (in
matter of love and affection) equally with all of your wives however much
you wish. Therefore, you are directed not to incline towards one so much
that you leave the other in suspense. There may be so many factors on
account of which it would be difficult for the husband to deal equally
between them. For example, difference in temperament, appearance,
education, family background, age, ability to look after the household
affairs, etc., may cause the husband to prefer one above the other.
However, the husband must try his best to keep balance and accord them
equal treatment in the things on which he has control like food, clothing
and lodging. On the things on which he has no control like love and
affection, even there he should not display by his outward behaviour that
he loves one wife and hates the other one. The husband should not incline
towards his favourite one altogether and neglect the other one
completely. On the basis of this verse (4:129) some people try to establish
that monogamy is the only form of marriage which is right because
polygamy is permitted with the condition of justice and in this verse, Allah
has Himself pointed out that maintaining justice between wives is
impossible. However this assumption is nor correct when we look at the
second sentence of this verse which reads: But turn not altogether away
(from one), leaving her as in suspense.
3. There is almost consensus of opinion among all the scholars of the
Quran that verse 3 of chapter 4 of the Quran permits polygamy.
However, the injunction is in the nature of permission and not in the
nature of order or command. The Quran simply permits its followers to
contract plural marriages but it does not command them to essentially do
so. It also restricts the maximum number of wives at four and makes the
permission subject to the condition that the husband must do justice with
all the wives and deal with them equally. In my view there is another
condition or proviso also and that is that the choice of wives for plural
marriages must be from among the widows. It is only in this sense that
the relevance of the opening sentence of this verse (4:3) is justified which
reads: And if you fear that you will not be able to deal fairly with the
orphans.. If this sentence of the verse under discussion is read and
considered with the preceding verse (4:2), the meanings become more
clear. Give unto orphans their wealth. Exchange not the good for the bad
(in your management thereof), nor absorb their wealth into your wealth.
Lo! That would be a great sin. And if you fear that you will not deal fairly
by the orphans, marry of the women, who seem good to you, two or three
or four.. (4:2 and 4:3). It is clear from this that the Quran is exhorting
its followers to do justice with the orphans who are under their care. It is
against this background that polygamy has been permitted so that they
may be able to do justice with the orphans and treat them fairly by
marrying the mothers or the sisters of the orphans and thus becoming
their close relations. In that way they would feel and develop love,

affection and tenderness towards the orphans and would treat them kindly
as if the orphans were their own children.
4. The Quran did not, in fact, introduce polygamy. That existed in preIslamic Arabia and also in the neighbouring communities. Al-Quran
actually limited the number of wives, which was unrestricted among the
pagans, to four and also subjected polygamy to a very strict condition of
doing justice between the wives. Traditions of the Prophet of Islam also
support this interpretation.
5. The jurists have justified the need of polygamy in the following
situations:
a) In case of war men are generally killed in large numbers. Thus
the number of men is decreased while the number of females
increases specially of helpless widows and orphans. If
polygamy is not permitted to support the widows and the
orphans and also to bring the unmarried women into marriage
bond, it would lead not only to economic misery of many
families but also to immoral practices like prostitution,
adultery, sexual anarchy etc. Such a social disintegration can
be averted only if a man is permitted by law to have more
than one wife.
b) The wife may be sterile and the natural desire for progeny
may lead the husband to contract another marriage, who does
not want to divorce the first wife but at the same time wants
to have children.
c) Some men may, by nature, be sexually very strong. So they
cannot remain content with one wife. A woman is disabled on
account of menses for almost a week in every month and
besides that, pregnancy, delivery and weaning of the child is
spread over almost a period of more than two years. During
these periods, she is unable to meet the husbands biological
needs. Hence the need of the husband for the second wife is
necessary.
d) The wife may be chronically diseased and unable to satisfy
the sexual urge of her husband. In certain cases she may be
able to perform marital obligations but her fragile health may
not withstand pregnancies and child births. Hence a second
marriage in such a situation may become a necessity to keep
the husband away from indulging in immorality.