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Iddat in Islam and Pakistani Jurisprudence

Iddat in Islam and Pakistani Jurisprudence

Iddat or Iddah is the legally mandated waiting period that follows a Muslim marriage dissolution by either divorce or the death of the husband. In the Islamic framework, iddat is not a set number of days for all women in all cases. Rather, it is a regulated time period with various purposes: establishing pregnancy, ensuring clarity of lineage, creating an opportunity for reconciliation, managing transitions between marital statuses, and, in the event of widowhood, marking a period of mourning. Those functions are visible across the central Qur’anic verses: divorced women are told to wait for “three quru”[1]; widows are told to wait for four months and ten days[2]; pregnant women wait until delivery[3] and women divorced before consummation have no iddat at all[4].

This basic architecture of Islamic law plays a crucial role in answering questions about iddat under Pakistani law since the regulation of this topic does not rest in any statutory framework that covers the entire scope of issues regarding it. Rather, the subject sits at the intersection of Qur’anic doctrine, classical fiqh, colonial-era Muhammadan-law categories, the Muslim Family Laws Ordinance, 1961 (MFLO), penal-law provisions such as section 496 of the Pakistan Penal Code (PPC), and an uneven/inconsistent line of superior-court decisions. Therefore, iddat in Pakistan can be seen as a provision of family law, a possible source of maintenance or inheritance claims, an obstacle to remarriage, and, in certain criminal prosecutions, even a means of prosecuting people.

It is important to note here first and foremost that under Islamic law, failure to observe the prescribed iddat period is not necessarily grounds for declaring a later marriage void in the sense that it did not exist in any form of the law (as is laid down in Mullah’s Muhammaden Law Section 253). Classical Hanafi doctrine, as applied in Pakistani case law, usually regarded the marriage of a woman in her iddat as an irregular or invalid marriage because the prohibition here was temporary rather than permanent in nature. Here an example can be quoted of Muhammad Arif vs Shahid Mehmood and another[5], which also upholds the principle of s. 253, Mullah’s Muhammaden Law. This is crucial. It means that marriage during the prohibited period is considered irregular or imperfect due to the presence of a flaw which can be removed and is not void ab initio.

However, Pakistani jurisprudence does not speak in one voice here. Thus, while s. 7 MFLO establishes a 90-day-long mandatory waiting period after giving a notice of divorce to the Chairman of the Union Council. The Shariat Appellate Bench of Pakistan in Allah Dad v. Mukhtar[6] concluded that, based on Hanafi teachings regarding menstruation, the minimum length of the Qur’anic iddat for a menstruating divorced woman can be as low as 39 days.[7] Lower Courts in Pakistan then followed both of these approaches in order to protect the women’s rights and sometimes even to police their sexuality. This juxtaposition of a more permissive statutory provision against the fiqh-based view on iddat as a tool of controlling women’s actions is the story of the relevant jurisprudence in Pakistan.

This paper, therefore, aims to analyze two issues simultaneously. First, it describes the concept of iddat under Islamic law, with regard to Hanafi doctrines, the bases for it in the Qur’an, the types of iddat, and their breach. Followed by the exploration of how Pakistani law adopted and adapted the doctrine of iddat: under s. 7 MFLO, in cases relating to maintenance and inheritance, through classification of valid/irregular/null marriages, and finally, through the iddat-related litigation culminating in the prosecution of Imran Khan and Bushra Bibi, and how the idea of iddat was used to criminalize a marriage.

Qur’anic framework of iddat and the Hanafi fiqh tradition

The Qur’an lays down the core rules. The operative verse for an ordinary divorce is Qur’an 2:228, which directs divorced women to wait for “three quruʾ” and adds that during this period their husbands have the better right to take them back if reconciliation is sought.

“Divorced women must wait three monthly cycles ‘before they can re-marry’. It is not lawful for them to conceal what Allah has created in their wombs, if they ‘truly’ believe in Allah and the Last Day. And their husbands reserve the right to take them back within that period if they desire reconciliation. Women have rights similar to those of men equitably, although men have a degree ‘of responsibility’ above them. And Allah is Almighty, All-Wise.”

The above verse makes it abundantly clear that the notion of iddat cannot be reduced to mere reproductive biology in Islam. On the contrary, iddat is both an evidentiary device and a relation.

In case of a widow’s iddat, Qur’an 2:234 stipulates another rule: her iddat period will be four months and ten days. The point to be noted here is that in case of widowhood, the iddat period does not serve merely to ensure that paternity is not disputed if she is pregnant, but according to the Holy Qur’an, widows are to wait for the specified period even in the absence of pregnancy.

The Prophetic hadith reported in Sahih al-Bukhari reinforces this by linking a husband’s death to a distinct period of mourning in which a widow does not adorn herself as she otherwise might. That is why classical jurists treat a widow’s iddat as combining waiting and ihdad, which means mourning observances. The Hadith is as follows

The Prophet (P.B.U.H) said,

“It is not lawful for a Muslim woman who believes in Allah and the Last Day to mourn for more than three days, except for her husband, for whom she should mourn for four months and ten days.”[8]

It is worth noting here that in a well-known authentic hadith (Sahih al-Bukhari, Book of Divorce, Hadith 5318), Subaiʿa al-Aslamiyya establishes that, in the case of pregnancy, the widow does not have to wait until the end of four months and ten days. The Prophet (P.B.U.H) reportedly allowed her to marry right after delivering the baby.[9] Thus, the above example demonstrates one of the cases when Islamic law does not apply a general formula and recognizes the importance of pregnancy for calculating the iddat period, since the woman gives birth to her child and thus determines its paternity.

The opposite situation arises in the case of women whose marriages have not been consummated. According to Qur’an 33:49, divorced women whose marriages were not consummated with their husbands do not have to count a certain period. Hence, Islamic law distinguishes among various marital situations and imposes a waiting period when there is an underlying rationale for such a practice.

Another crucial moment in iddat is the interpretation of quruʾ as either menstrual periods or pure menstrual periods, i.e., without including impure intervals between menstrual bleedings. Whereas Sunni classical schools used to hold different views on this matter, Hanafi jurists followed the opinion of Hanbalis and considered quruʾ as menstruation periods. This interpretation has a practical implication for determining the shortest and longest possible duration of iddat, and it underpins the reasoning of Pakistani judges in Allah Dad v Mukhtar.[10]

It follows, therefore, that the Hanafi approach to iddat is not only interpretative in nature but also highly technical. Once quruʾ is considered menstruation, the following question arises as to how long the period of menstruation and purity is. For this reason, in Pakistani jurisprudence, we can encounter a statement that the Qur’an does not envisage a fixed period of waiting for all divorced women. Besides, as the Hanafi method suggests, Iddat can last for less than 90 days if the shortest possible cycle is considered.[11]

The two main purposes that underline all the discussed iddat rules are worth mentioning here. First, it is the establishment of lineage. Second, iddat plays an instrumental role in the dissolution procedure since Qur’anic divorce cannot be regarded as an instantaneous procedure. It is rather a carefully thought-out procedure during which rujūʿ can take place within a specified period.

Therefore, the most appropriate way of describing iddat in Islam is to speak of it as an interval charged with a juridical meaning rather than just a waiting period.

The types of iddats and their basis

The first and perhaps most common type of iddat is the iddat of a divorcée who menstruates. In Qur’an 2:228, read under the Hanafi interpretation, the wife waits for three periods of menstruation. As noted above, Pakistani legal doctrine has famously applied this doctrine in the case of Allah Dad v Mukhtar.[12] In that precedent, the Shariat Appellate Bench ruled that the Qur’anic command is to wait three menstrual cycles, not to wait for a fixed statutory period of ninety days – and that assuming Hanafi rules on period length, the minimum possible waiting time could theoretically be as little as thirty-nine days.[13] Later, Pakistani courts have referred back to this proposition when awarding maintenance during Iddat following a Khula divorce[14]. It should be emphasized, however, that thirty-nine days is not the norm, universal or otherwise; it is only a juridically minimal calculation based on the assumed possibilities of Hanafi jurisprudence.

A second class are wives who no longer menstruate because they have entered menopause. Qur’an 65:4 instructs such wives to have a waiting period of three months. Classical Islamic law follows suit and, in these cases, replaces the menstruation period with three months. In Pakistani commentaries on section 7 of MFLO, this fact has been stressed as one of the reasons why one-size-fits-all ninety-day iddats diverge from the architectural structure of the Qur’anic law.

A third class are wives “who have not yet menstruated”. In classical fiqh, such wives also fell into the iddat category, even though the Qur’an mentions them separately. Whether that rule continues to apply ethically today is the subject of vigorous debate among contemporary Muslim scholars, particularly because it seems to clash with modern statutes defining the legal age of marriage and human rights law.[15] From the perspective of traditional jurisprudence, however, the relevant rule was again three months of iddat per the Qur’anic directive.

A fourth category, which is especially relevant to the case question, is pregnancy. Qur’an 65:4 specifies that the waiting period lasts until delivery. Hadith traditions add further weight to this by stressing that even the widow’s four months and ten days iddat period ends upon childbirth. In effect, pregnancy trumps both the “three quru’” and “four months and ten days” categories and terminates the waiting period. At a doctrinal level, childbirth becomes the determining factor because of its reliability in addressing the core lineage question.

A fifth category applies to the case of widowhood without pregnancy. According to Qur’an 2:234, the widow has a waiting period of four months and ten days. In tradition, the waiting period acquires another element specific to widows: ihdad or mourning.[16] That is why the widow faces particular issues regarding her appearance, perfuming, and residence arrangements.

A sixth category of women is divorced before consummation. According to Qur’an 33:49, a waiting period does not apply in that case. Strictly speaking, if the marriage is........

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