2584. The ‘iddah of a widow begins the moment the wife becomes aware of her husband’s death.
2585. If a woman states that her ‘iddah period has come to an end, her word is to be accepted, with the condition that a sufficient amount of time should have elapsed from the time of the divorce or the death of her husband, that it would be possible for her ‘iddah to have culminated.
2586. An irrevocable divorce is one wherein the husband does not reserve the right to return to his wife after the divorce, or in other words be married to her without a new marriage contract. These are of five types:
a. the divorce of a girl who has not completed nine lunar years.
b. the divorce of a woman who is a y¡’isah.
c. the divorce of a woman whose marriage has not been consummated by her husband.
d. the third divorce of a woman who has been divorced three times.
e. the divorce of khul‘ and mub¡r¡t.
The precepts of these types will be elaborated later. Besides these five, all other divorces are revocable, in the sense that as long as the wife is in her period of ‘iddah, her husband can return to her.
2587. A person who has granted a revocable divorce to his wife is prohibited from expelling his wife from the house in which she resided during the divorce. However, in certain cases, such as foul-mouthedness and adultery, there is no problem in expelling her from the house. In addition, it is prohibited for the wife to leave the house without the consent of her husband for a non-essential task.
2588. In a revocable divorce, a man may return to his wife in two ways:
a. He utters a statement by which he intends to re-establish a spousal relationship with her, and it should not merely be a declaration of re-establishing the spousal relationship.
b. He performs an action with the intention of re-establishing a spousal relationship, by which it is understood that he wishes to do so, such as touching or kissing her. A return is also established through consummation even if he does not have the intention of returning to her.
2589. It is not necessary for a person to have a witness for his return, however it is better to do so. He also does not have to inform the wife; rather, even if he returns to her without anyone’s knowledge, his return will be valid. If he claims that he has returned to her, and she is still within the ‘iddah period (when he makes the claim), he does not have to substantiate his claim. However, if he claims it after the ‘iddah has culminated, he will have to substantiate it.
2590. If a person who has granted his wife a revocable divorce, takes some property from her and reaches a compromise with her that he would not return to her, it is obligatory upon him to act according to the terms of the compromise. However, if he does return to her nonetheless, his return will be valid.
2591. If a person divorces a free-woman twice, and returns to her after each divorce, or divorces her twice and after each divorce marries her again, or returns to her after one divorce and marries her after the other, then that woman becomes unlawful for him after the third divorce.
However, if she marries another person after the third divorce, she becomes lawful for the first husband (to marry) given certain conditions:
1. The marriage to the second husband is a permanent marriage. However if it is a time specific marriage, such as one month or one year, then the first husband will not be able to marry her after she separates from the latter.
2. The second husband engages in vaginal intercourse with her in a manner that both of them take pleasure from the act.
3. The second husband divorces her or he passes away.
4. The ‘iddah of divorce or the ‘iddah of a widow with respect to the second husband should come to an end.
5. Based on obligatory precaution, the second husband should be b¡ligh.
2592. The divorce of a wife who has an aversion to her husband and there is a fear that she may not fulfill her husband’s obligatory rights, and may commit a forbidden act, and therefore gifts her mahr or some other property to him so that he divorces her is known as a khul‘ divorce.
2593. If the husband himself wishes to pronounce the formal expression of a khul‘ divorce, then if—for example—the name of his wife is F¡§imah, then he may pronounce after the property has been gifted:
زَوْجَتِي فاطِمَةُ ، خَلَعْتُها عَلى ما بَذَلَتْ
I have divorced my wife F¡§imah in return for what she has gifted to me.
Recommended precaution dictates that after pronouncing the statement that comprises the khul‘, he should also state:
هِيَ طالِقٌ
She is a divorcee.
In the case that the wife is specified, it is not necessary to mention her name.
2594. If the wife deputizes someone to gift her mahr to her husband, and the husband deputizes the same person to divorce his wife, then if for example the name of the husband is Muhammad and the wife is F¡§imah, then the deputy should pronounce the formal expression of the divorce in the following manner:
عَنْ مُوَكِّلَتِي فاطِمَةَ بَذَلْتُ مَهْرَها لِمُوكِّلِي مُحَمَّد لِيَخْلَعَها عَلَيْهِ
Thereafter, based on precaution, the deputy should pronounce the following statement without disturbing the consecutiveness in the common sense:
زَوْجَةُ مُوَكِّلِي خَلَعْتُها عَلى ما بَذَلَتْ
If the wife deputizes someone to gift something other than her mahr to her husband so that he divorces her, then instead of saying “مَهْرَها”, the deputy should mention that property. For example, if it is 100 dollars, he should state:
بَذَلْتُ مِائَةَ دلار
2595. If both the husband and wife have an aversion to each other, and the wife gives some property to her husband so that he divorces her, it is known as a mub¡r¡t divorce.
2596. If the husband wishes to pronounce the formal expressions of a mub¡r¡t, then given that his wife’s name is Fatima, he should state:
بارَأْتُ زَوْجَتِي فاطِمَةَ عَلى ما بَذَلَتْ فَهِيَ طالِقٌ
I and my wife Fatima have separated from each other in return for what she gifted (me). Therefore she is released.
If he deputizes another person, the deputy should state:
بارَأْتُ زَوْجَةَ مُوَكِّلِي فاطِمَةَ عَلى ما بَذَلَتْ فَهِيَ طالِقٌ
He may also state:
عَنْ قِبَلِ مُوَكِّلِي بارَأْتُ زَوْجَتَهُ فاطِمَةَ عَلى ما بَذَلَتْ فَهِيَ طالِقٌ
In the above expression, the obligation to include the statement فَهِيَ طالِقٌ is based on obligatory precaution. There is no problem if he states عَلى ما بَذَلَتْ in lieu of بِما بَذَلَتْ.
2597. The formal expression of the khul’ or mub¡r¡t divorce must be pronounced in correct Arabic. However, if the wife wishes to gift her property to her husband and hence states in English, “I have gifted the following property to you so that you may divorce me,” there will be no problem in it. If the husband is unable to divorce her by pronouncing the formal expressions in Arabic, then obligatory precaution dictates that he deputize a person for this task. If however he is also unable to deputize someone, then if he grants her a khul‘ or mub¡r¡t divorce by pronouncing the formal expressions using words which are synonymous to the Arabic statement, it will be valid.
2598. If during the ‘iddah of a khul‘ or mub¡r¡t divorce, the wife declines to gift the property to her husband, the husband may return to her, and without a new marriage he may re-establish a spousal relationship with her.
2599. The property which the husband acquires in a mub¡r¡t divorce should not be greater than the mahr. However in a khul‘ divorce, there is no problem if it is greater than the [mahr] dowr.
2600. If a person has intercourse with a non-ma¦ram lady, thinking that she is his wife, the lady must observe an [‘iddah] waiting period, regardless of whether she knows that he is not her husband, or thinks that he is her husband.
2601. If a person commits adultery with a woman who is not his wife, she does not have to observe an ‘iddah, regardless of whether she knows that he is not her husband, or thinks that he is her husband.
2602. If a man deceives a woman to divorce her husband and marry him instead, then the divorce and the marriage will be valid. However, both of them will have committed a grave sin.
2603. If a woman stipulates within the marriage contract that if her husband travels or fails to pay her expenses for six months, as an example, then she reserves the right to divorce him, then such a condition will not be valid.
However, if she stipulates that whenever the man travels or fails to pay her expenses for six months, as an example, she would become his deputy in divorcing herself, and the divorce is conditional and not the deputyship, so the condition will be valid. In the event that the condition is realized, and she divorces herself, the divorce will be valid.
2604. If a lady’s husband disappears and she wishes to marry another man, she must refer her case to a just mujtahid and act according to his instructions.
2605. The father and paternal grandfather of a man who is permanently insane, may divorce his wife on his behalf given that it is in their best interests.
2606. The father or paternal grandfather of a minor cannot divorce his permanent wife. However, if the father or the paternal grandfather of a minor marries him to a girl in temporary marriage, they may gift the remaining period of the marriage to the girl if it is in the best interests of the minor, even if a part of the period falls within a time when the boy would be b¡ligh. An example of this would be a father who marries his fourteen year old son to a girl for a period of two years.
2607. If a person establishes two people to be just in the manner prescribed by the shari’a, and he divorces his wife in their presence, another man may marry that lady to himself or to another person even if he has not established the witnesses to be just. The recommended precaution in this case is that he should avoid marrying the lady to himself or marrying her to someone else.
2608. If a person divorces his wife without her knowledge, but pays for her expenses in the same manner as he used to when she was his wife, and then—for example—mentions to her after a year that he had divorced her a year ago, and he proves it according to the shari’a, then he may take the things that he had given her during the period when her expenses were not incumbent upon him, given that she has not used it. However, if she has used it already, he cannot reclaim it.
Usurpation is defined as the act of acquiring control over the property or right of another individual by coercion. It is one of the major sins, and the one who perpetrates it will be subject to a painful punishment on the Day of Judgment.
It has been narrated from the Holy Prophet (sawas), that “whoever usurps (even) one yard of land from another, on the Day of Judgment seven layers of that land will be shackled around his neck.”
2609. If a person does not allow people to make use of a mosque, a school, a bridge, or any construction that has been dedicated for public use, he will have usurped their right. The same applies if a person reserves an area of the mosque for himself, and does not allow others to make use of it.
2610. The item that a person places in the possession of his creditor as mortgage must remain in the latter’s possession, so that he may be able to claim the debt from it in the event that the person fails to pay it. Hence, if he takes the item back before paying off the debt, he will have usurped the creditor’s right.
2611. If the mortgaged item is usurped by a third party, both the owner of the property and the creditor may demand it from the usurper. Should they be successful in reclaiming the item, it will retain the status of a mortgaged item. However, if the thing perishes and they acquire a replacement for it, the replacement—like the original item—will also retain the status of a mortgaged item.
2612. If a person usurps an item, he must return it to its owner. If the item perishes, he must give its replacement to the owner.
