Question:
Assalamualaikum ustaz. A husband has pronounced talaq on his wife. However, they still live together. Is this permissible? Hope for an explanation.
Answer:
Waalaikumussalam wrt. wbt.,
Alhamdulillah, praise and gratitude to Allah SWT for His countless blessings for us all. Praise and salutations to our beloved Prophet Muhammad PBUH, his family, companions, and all those who follow his footsteps until the Final day.
The definition of iddah and its duration
We’ll begin with the definition of iddah. ‘Iddah lexically means calculation, count or number. The reason is it includes the number of pure from menstruation and also the number of months.
The ‘iddah terminology is named for certain periods of time for a woman to wait, solely obeying the commandment of Allah (ta’abbudi) or as a sign of mourning for the loss of one’s husband or ensuring her womb is clean from pregnancy.[1]
Iddah is a time undergone by a woman after a divorce or death of her husband, where she cannot remarry. Its purpose is to ensure that her womb is empty and she isn’t pregnant and its duration depends on how many times she experiences menstruation. Usually, the duration of iddah for a woman after a divorce is three times of her being pure after her menstruation and for a widow whose husband died, her iddah is for 4 months and 10 days (calculated according to the Hijrah year).
During the iddah duration, the former wife is prohibited from marrying another man. The purpose of iddah is to ensure that the woman’s womb is pure from any fetus and prevent ambiguity of the lineage of a child if a new marriage with another man occurred. During iddah, the husband can reconcile with his wife on the condition that the wife is in iddah raj’ie.
Iddah for a divorced woman whose husband is alive and still menstruates is three times of her being pure following the statement of Allah SWT:
وَالْمُطَلَّقَاتُ يَتَرَبَّصْنَ بِأَنفُسِهِنَّ ثَلَاثَةَ قُرُوءٍ
“Divorced women remain in waiting for three periods,” [2]
Meanwhile, the duration of iddah for a menopause woman or a woman who never menstruated who is divorced is for 3 months according to the statement of Allah SWT:
وَاللَّائِي يَئِسْنَ مِنَ الْمَحِيضِ مِن نِّسَائِكُمْ إِنِ ارْتَبْتُمْ فَعِدَّتُهُنَّ ثَلَاثَةُ أَشْهُرٍ وَاللَّائِي لَمْ يَحِضْنَ
“And those who no longer expect menstruation among your women – if you doubt, then their period is three months, and [also for] those who have not menstruated.” [3]
Definition of talaq
Lexically, talaq means letting go or missed. Whereas, according to syarak, it means letting go of the marriage bond with a declaration and others. To put it more clearly, the meaning of talaq is mentioned in al-Qamus al-Fiqhi (pg.230) and it can be understood as the following:
- Removing the bonds of marriage.
- Letting go of the authority over one’s wife with a clear or connotative declaration or with a certain utterance accompanied with the intention. This is as stated by al-Dusuqi.
- Removing the bonds of marriage at the time or in the future with a specific declaration that takes its place. This is stated in the book Dur al-Mukhtar(3/226). Also, see al-Mughni (16/192) and Mughni al-Muhtaj (3/279).
Talaq or divorce is one of the methodologies that separate the relationship of marriage between a husband and wife sanctioned in Islam. When a woman is divorced, then she should undergo iddah for three times of her being pure from menstruation, or for those who don’t menstruate or no longer menstruate for three Qamariyyah months. During the period of iddah, there are rights and responsibilities that should be considered by the former couple. Among the matters is the obligation of the husband to provide sustenance and a place to live during iddah.
Sustenance of a place to live
It is obligatory for a former husband to provide the sustenance of a place to live for his former wife, regardless of whether the wife is divorced through raj’i[4] or ba’in[5], or whether she is pregnant or not.
This is based on the statement of Allah SWT:
أَسْكِنُوهُنَّ مِنْ حَيْثُ سَكَنتُم مِّن وُجْدِكُمْ وَلَا تُضَارُّوهُنَّ لِتُضَيِّقُوا عَلَيْهِنَّ ۚ وَإِن كُنَّ أُولَاتِ حَمْلٍ فَأَنفِقُوا عَلَيْهِنَّ حَتَّىٰ يَضَعْنَ حَمْلَهُنَّ ۚ فَإِنْ أَرْضَعْنَ لَكُمْ فَآتُوهُنَّ أُجُورَهُنَّ ۖ وَأْتَمِرُوا بَيْنَكُم بِمَعْرُوفٍ ۖ وَإِن تَعَاسَرْتُمْ فَسَتُرْضِعُ لَهُ أُخْرَىٰ
“Lodge them [in a section] of where you dwell out of your means and do not harm them in order to oppress them. And if they should be pregnant, then spend on them until they give birth. And if they breastfeed for you, then give them their payment and confer among yourselves in an acceptable way; but if you are in discord, then there may breastfeed for the father another woman.” [6]
Al-Tabari said: “(It means), give a place to live for the wives you’ve divorced from the place that you live and prepare for them from what you’re capable of; This is His commandment to men to provide a residence in accordance with his capability until their wives’ iddah is completed.” [7]
Likewise, it is stated in Allah SWT’s statement in the first verse:
يَا أَيُّهَا النَّبِيُّ إِذَا طَلَّقْتُمُ النِّسَاءَ فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ وَأَحْصُوا الْعِدَّةَ ۖ وَاتَّقُوا اللَّـهَ رَبَّكُمْ ۖ لَا تُخْرِجُوهُنَّ مِن بُيُوتِهِنَّ وَلَا يَخْرُجْنَ إِلَّا أَن يَأْتِينَ بِفَاحِشَةٍ مُّبَيِّنَةٍ ۚ وَتِلْكَ حُدُودُ اللَّـهِ ۚ وَمَن يَتَعَدَّ حُدُودَ اللَّـهِ فَقَدْ ظَلَمَ نَفْسَهُ ۚ لَا تَدْرِي لَعَلَّ اللَّـهَ يُحْدِثُ بَعْدَ ذَٰلِكَ أَمْرًا
“O Prophet, when you [Muslims] divorce women, divorce them for [the commencement of] their waiting period and keep count of the waiting period, and fear Allah, your Lord. Do not turn them out of their [husbands’] houses, nor should they [themselves] leave [during that period] unless they are committing a clear immorality. And those are the limits [set by] Allah. And whoever transgresses the limits of Allah has certainly wronged himself. You know not; perhaps Allah will bring about after that a [different] matter.” [8]
Al-Tabari stated in his commentary: “(It means), you should fear Allah, o men, your God, be careful as to not sin towards Him by transgressing His limitations. Don’t turn out your wives after you’ve divorced them, for they have iddah in their homes that you have provided before the talaq until their iddah is complete.” [9]
In madhhab Syafie, it is impermissible for the former husband to live together with his wife that he has divorced in the iddah house, regardless of whether it is talak raj’ie or ba’in. It is prohibited for the husband to enter the iddah house, for it could lead to khalwat (being alone) and disturbs her. This is in line with the previous verse that states:
وَلَا تُضَارُّوهُنَّ لِتُضَيِّقُوا عَلَيْهِنَّ
“…means and do not harm them in order to oppress them.”
However, if there is a mahram of the former husband or wife, whether it is a man or woman or ajnabi woman, then it is permissible for the former husband to live together with his former wife in the iddah house. The reason is the reason for the prohibition is no longer applicable, except that it now becomes makruh, for there is a possibility for him to see his former wife – who is now prohibited for him due to talaq. Likewise, it is also permissible if the house has several rooms or levels where they can each live in each of their own living quarters. [10]
The reason is a wife who has been pronounced with talaq is now an ajnabi woman (stranger) towards the former husband. This is the final opinion as stated by Imam al-Nawawi.[11]
Furthermore, scholars of madhhab Syafie are severely against the opposite opinion, according to the words of Imam Taqiuddin Abu Bakr al-Hisni: “Many of the ignorant didn’t consider the matter of living together as prohibited saying: (Why is it wrong when) she is the woman I divorced? When he actually knows the true situation. If the person is firm on of its permissibility after he learns of its prohibition, then he has disbelieved. If he repents, (then he isn’t punished), however, if he refuses to repent, then hit his neck!” [12]
However, there are madhhabs that don’t prohibit a former husband to live together with his former wife who is in iddah for talak raj’ie.
The opinions of other madhhabs
We cite the statement from the book al-Mausu`ah al-Fiqhiyyah al-Kuwaitiyyah (25/117):
“Madhhab Maliki and Syafie are of the opinion that it is impermissible for a former husband to live together with his former wife who is undergoing her iddah. They didn’t differentiate the ruling between talaq raj’ie or ba’in in this matter, except that there must be a mahram living with them. Syafie scholars also set a condition that the mahram must be mumayyiz and see, regardless of whether it is a man or woman. It is also invalid if the mahram is a man from the former husband’s side.
Maliki scholars stated: It is impermissible for a man to enter the house of his wife that he has divorced through raj’ie even if there is someone taking care of her and it is impermissible to live together in a huge house where his wife and other people reside in.
Their argument for prohibiting it is that there is a possibility of khalwat. The reason is talaq is the antonym of marriage, where marriage is the reason for the permissibility of the prohibited matter and it will result in the existence of the situation of consequence.
While according to the opinion of Hanafi scholars, if the iddah is obligatory to be done in the house fo the husband, then it is fine for them to live together in the house, if the man pronounced talaq fairly, regardless of whether it is talaq raj’ie, ba’in or three. However, it is prioritized to build or erect a divider between them. If the former husband is a fasiq, then he must be prevented with the presence of a tsiqah (trustworthy) woman who accompanies them. If there is difficulty to live together, then the woman can undergo her iddah in another house. Likewise, if the house is too cramped (then she should undergo her iddah in another house.) However, it is prioritized for the man to leave the house…
Whereas, according to madhhab Hanbali, the same as what is apparent from their words, indeed the man has talaq his rights to live together with his former wife with talak raj’ie, just as his wife is permissible for the woman to adorn herself for him, and it isn’t considered rujuk (reconciled) if the former husband was friendly towards her with kisses and others, however, if intercourse occurs, then rujuk (reconciliation) is sabit. As for a woman with talak ba’in, there is no sustenance for a place to live for her and she can undergo her iddah wherever she so wishes.”
Imam Manzur al-Buhuti al-Hanbali Rahimahullah when explaining the matan of al-Iqna’ by Imam Musa al-Maqdisi Rahimahullah said:
“(And it is permissible for the husband – which means the former husband for talak raj’I – to have intercourse with his wife) and it is permissible for him (to khalwat) with her (and) it is permissible to (travel together and adorn herself even if it is excessive) for indeed, the wife in terms of her rulings is the same as before (before talaq). (And rujuk happens when intercourse occurs without needing any witness or intention) to reconcile.” [13]
According to the above statement, we understand that certainly, there is a muktabar khilaf since previous scholars regarding this issue. The difference of opinions is observed to be focused on the issue of women who is divorced with talaq raj’ie, of whether she is still considered a wife or otherwise.
Conclusion
After analyzing the discussion of scholars regarding the ruling of a former husband to live together with his ex-wife during iddah, our opinion is as the following:
- According to the final opinion of madhhab Syafie, a man has to the house he lives in during his marriage to let his wife complete her iddah and it is impermissible for him to live together with her, for it is a form of harm to himself. An exemption is given if there is the presence of mahram that can prevent khalwat from happening or that they live separately in their own separate room or level, but it is makruh.
- According to the information from the Federal Territories Religious Department (JAWI), it is under the jurisdiction of the JAWI authorities to arrest any newly-divorced couples if they are found to be in khalwat because the khalwat between two ajnabi is a shariah offence in Federal Territories.
- Considering this matter is a muktabar khilaf, we don’t deny that there are couples who hold the opposite opinion. Especially when this opinion permits it is so that the marriage relationship can be saved with rujuk (reconciliation) during the iddah period.
- However, the implementation of this opinion will lead to fitnah for the community living in the Federal Territories of those who practise madhhab Syafie. One should be mindful of the difference of opinions not to cause any misunderstandings in the public society. An Islamic legal maxim states:
حُكْمُ الحَاكِمِ يَرْفَعُ الخِلَافَ
“The decision of a judge resolves khilaf.”
Hence, divorced couples who reside in Malaysia, especially in the Federal Territories should avoid khalwat throughout the iddah period.
Wallahu a’lam.
[1] See al-Fiqh al-Manhaji, 3/77-85
[2] Surah al-Baqarah: 228
[3] Surah al-Thalaq: 4
[4] Talaq raj’ie permits the former husband to reconcile with his formwe wife without a new solemnization like like the wife who is divorced the first or second time
[5] Taalq ba’in means that it is impossible for the former husband to reconcile with his former wife without a new solemnization whether it is because the iddah period is over or she has been divorced thrice. (See al-Mu`tamad, 4/150)
[6] Surah al-Talaq: 6
[7] See Jami` al-Bayan, 23/456
[8] Surah al-Talaq: 1
[9] See Jami` al-Bayan, 23/413
[10] See al-Mu`tamad fi al-Fiqh al-Syafie, 4/268
[11] See Raudhah al-Talibin, 8/418
[12] See Kifayah al-Akhyar, 2/130
[13] See Kasysyaf al-Qina’, 3/343