Hadith 3405

(1) The statement: He said, "This is a woman whose inheritance Allah has preserved for you, so take it": Know that Umar (may Allah be pleased with him) issued a fatwa in a similar case, as narrated by Malik, that she waits nine months, then observes a waiting period of three months. Malik followed Umar’s view, and Ash-Shafi’i (may Allah be pleased with him) initially followed this in his old opinion, then retracted in his new opinion to follow Ibn Mas’ud’s view, which comes later. He interpreted Umar’s statement as possibly applying to a woman who reached the age at which women typically cease menstruation, so it does not contradict Ibn Mas’ud’s view, and this is our perspective. Know that Ibn Mas’ud (may Allah be pleased with him) issued a fatwa, as narrated by Muhammad and Al-Bayhaqi, that the waiting period is not completed even after eighteen months from the divorce if she does not menstruate. Abu Hanifah and most of our jurists adopted Ibn Mas’ud’s fatwa due to its preference, as the waiting period mentioned in Allah’s Book is of four types for four categories: First, the waiting period for a pregnant woman, whether divorced or widowed, which is delivery, as in Allah’s statement: And for those who are pregnant, their term is until they give birth [At-Talaq: 4]. Second, the waiting period for a postmenopausal woman whose menstruation has ceased due to age. Third, the waiting period for a young girl who has not reached the age of menstruation, which is three months, as in Allah’s statement: And those who no longer expect menstruation among your women, if you doubt, then their waiting period is three months, and [also for] those who have not menstruated [At-Talaq: 4]. Fourth, the waiting period for a divorced woman who menstruates, which is three quru’, as in Allah’s statement: And divorced women shall wait for three quru’ [Al-Baqarah: 228], and these are all for divorced women. A fifth aspect is the waiting period for a non-pregnant woman whose husband has passed away, as in Allah’s statement: And those who die among you and leave wives behind, they [the wives] shall wait four months and ten days [Al-Baqarah: 234]. Umar’s fatwa for a divorced woman whose menstruation ceased after one or two cycles, to wait nine months and then observe three months, does not align with the waiting period of a menstruating woman or others. Thus, the correct view is that of Ibn Mas’ud, as Abu Hanifah stated, meaning she is not permissible until three quru’ pass or she reaches the age of menopause, then observes three months. [At-Ta’liq Al-Mumajjad, Al-Musawwa, and Sunan Al-Bayhaqi, excerpted from them] It is stated in Ad-Durr Al-Mukhtar and Radd Al-Muhtar: As for a young woman observing her waiting period by purity, if she menstruates and then her purity extends, she observes the waiting period by menstruation until she reaches the age of menopause. [Jawhara and others] In Sharh Al-Wahbaniyyah: Her waiting period is completed with nine months—six for menopause and three for the waiting period. I saw in the handwriting of our Shaykh As-Sayhani that the relied-upon view among the Malikis is that the waiting period requires a full year: nine months for menopause and three months for the waiting period. This is strange and contradicts all narrations, so it is not to be followed. In Nikah Al-Khulasah, if a Hanafi is asked about Ash-Shafi’i’s view on a matter, he must say: Abu Hanifah said such-and-such. However, if a Maliki judge rules by it, it is valid, as he is a mujtahid in it. The scholar stated that the fatwa in our time follows Malik’s view. In Jami’ Al-Fusulayn: If a judge rules that her waiting period ends after nine months, it is valid, as the relied-upon view is that a judge’s ruling is only valid according to his madhhab, especially for judges of our time. As for a woman with prolonged purity, the fatwa—as stated in Hidayat Al-Fath—is to estimate her purity as two months, so six months for periods of purity and three menstrual cycles as one month for precaution.