Question:
Assalamualaikum Datuk, I have a question regarding a friend of mine. Her husband divorced her on 1.1.2018 and on 30.1.2018 the Syariah Court ruled their divorce as valid. However, for the whole month of January, they still lived together and in early February they move to different houses, but, they still come to work on the same motorcycle. They feed each other during meals and always joke together. Hence, we as her colleagues and friends are confused with the situation. It seems as if their status is still the same as when they are married, however, when advised to get back together with her husband (ruju’), she refuses completely. According to her, she does not want to get back together with her husband, but during her iddah she can be with her husband just as when they are still married, and there’s no problem with aurah between them, the only thing that is prohibited is intercourse. Hope to get a clarification from Dr Datuk.
Answer:
Alhamdulillah, praise and thanks to Allah for the many countless blessings He has blessed us all with. Blessings and salutations to the Prophet Muhammad PBUH, his wives, his family, companions and all those that follow his teachings to the day of judgement.
Mukadimah
Talak or divorce is a method of separation of the husband and wife relationship that has been sanctioned in Islam. When a woman is divorced, she must complete her iddah duration of three times being pure from her menses, or for those that do not experienced menstruation, three qamariyyah months. During her iddah, she has her own rights and these responsibilities must be fulfilled by her ex-husband. Among the things her ex-husband must provide is a place to stay during her iddah.
Providing for a Place to Stay
It is obligatory for her ex-husband to provide a place to stay for his ex-wife during her iddah, whether she is divorced through talak raj’i [1] or ba’in [2], and whether she is pregnant or not.
This is in accordance to a statement by 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 the acceptable way; but if you are in discord, then there may breastfeed for the father another woman.”
Surah al-Talaq (6)
Imam Ibn Jarir Rahimahullah said: “Lodge your wives that you have divorced from which you dwell in and within your means; this is His commandment, a man is to provide a place to say within his means, until the iddah duration for the wife ended.” Refer Jami` al-Bayan (23/456)
In another verse, Allah SWT states:
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.”
Surah al-Talaq (1)
Ibn Jarir states in his commentaries: “Fear Allah, O humans, He is your god, hence, take caution when committing sins towards Him by transgressing His commandments. Do not turn out the wives that you have divorced, for they have their iddah in the houses of where you have provided for them before the talak, until their iddah ends.” Refer Jami` al-Bayan (23/413)
In mazhab Syafie, it is prohibited for the ex-husband to live with the wife he has divorced, in the house where she’s completing her iddah, whether it is talak raj’ie or talak ba’in. It is prohibited for the ex-husband to enter the house of iddah, for it may lead to khalwat (seclusion or be in suspicious proximity) and it may disturb her. This is in accordance to the verse stated previously:
وَلَا تُضَارُّوهُنَّ لِتُضَيِّقُوا عَلَيْهِنَّ
“And do not harm them in order to oppress them.”
However, if there is another mahram, whether a man or a woman, or another ajnabi woman, thus, it is permitted for the ex-husband to live and enter the house of iddah. This is due to the fact that the reason for prohibition is no longer applicable, but the ruling is undesirable (makruh), for there is a possibility that he may be able to look at his ex-wife, which is prohibited for him, now that he has divorced her. It is better if the house has many rooms or levels where they are permitted to stay in the house together. Refer al-Mu`tamad fi al-Fiqh al-Syafie (4/268)
This is because the divorced wife is now considered as an ajnabi women to the ex-husband. This is the final opinion as stated by Imam al-Nawawi Rahimahullah in Raudhah al-Talibin (8/418). Furthermore, Syafie scholars strongly opposed any contradicting opinion, through the words of Imam Taqiuddin Abu Bakr al-Hisni Rahimahullah in Kifayah al-Akhyar (2/130): “And many of the ignorant people do not consider this cohabitation as a prohibition while saying: (Why is it wrong) when it is his own choice to divorce her? While he knows the real situation. If someone still believe of its permissibility when he already knows of its prohibition, then he is a disbeliever. If he repents (then there is no punishment), but if he doesn’t, then strike his neck!”.
However, there are other mazhab that do not prohibit the cohabitation of ex-husband and his wife that is in her iddah for talak raj’ie.
Opinions from Other Mazhab
We quote the statements from a book entitled al-Mausu`ah al-Fiqhiyyah al-Kuwaitiyyah (25/117):
“Mazhab Maliki and Syafie hold the opinion that it is prohibited for a husband to cohabitate with his ex-wife while she is in her iddah period. They do not have different rulings for either talak raj’ie or ba’in in this issue, unless if there’s a mahram living with the couple. Scholars from mazhab Syafie sets conditions for the mahram, that the mahram must be mumayyiz (able to distinguish between right and wrong) and are not blind, whether they are a man or a woman. It is invalid if the mahram is a man mahram for ex-husband.
Maliki scholars said: It is prohibited for a man to enter the house of his wife that he has divorced through talak raj’ie, even with the presence of another person caring for her, and he is also prohibited from cohabitating with his ex-wife in a large house where many people live in the house.
They argue that it is prohibited, for it can lead to khalwat. This is due to the fact that talak is the antonym to marriage, whereas marriage is the reason for the permissibility of what was prohibited previously, and this will create an opposite situation.
Scholars from Hanafi hold the opinion, if iddah is obligatory to be completed in the house of the husband, then it is permitted for them to cohabitate, if the husband is an honest man, whether the divorce is through talak raj’ie or ba’in or three. However, the best way is to build a separation between them. If her ex-husband is fasiq, it must be prevented with the presence of a trustworthy woman to keep them company. If there is any difficulty in living together, then the woman can complete her iddah in a separate house. The same applies if the house is too small (then she can complete her iddah in another house). However, it is a priority for the man to leave the house.
According to mazhab Hanbali, as what is apparent in their words, a husband that has his right to talak his wife is permitted to cohabitate with his ex-wife that has been divorced through talak raj’ie, and the woman is permitted to adorn herself for her ex-husband, and it is not considered as them returning back together or the husband has taken his wife back (rujuk) if they flirt with each other by kissing and others, but if intercourse happens then the husband taking his wife back (rujuk) is established. However, if the divorce is through talak ba’in, then there is no provision of a place to stay for the ex-wife and she can complete her iddah anywhere she likes.”
Imam Mansur al-Buhuti al-Hanbali Rahimahullah in explaining matan al-Iqna’ by Imam Musa al-Maqdisi Rahimahullah said:
“(It is permitted for the husband – which is the ex-husband in talak raj’ie to have intercourse with his wife) and it is permitted for him (to khalwat) with her (and) it is permitted to (bring her for travels together and adorn oneself excessively), because the wife is (ruled the same as the previous wife) the same as before talak. (And the taking back of his wife (rujuk) happens when there is an intercourse without the need of witnesses, with or without the intention) to take his wife back.” Refer Kasysyaf al-Qina` (3/343)
From these statements, we understand there is a great khilaf among the scholars regarding this issue. The difference in opinion is focused on whether the woman that was divorced with talak raj’ie is still considered as his wife or not.
Opinion and conclusion
After looking at all the facts and reviewing the debate of the scholars regarding the ruling for an ex-husband to live with his wife during her iddah, we hold the following opinions:
- According to the final opinion in mazhab Syafie, the man has to leave his residence to let his ex-wife to complete her iddah and he is prohibited from living with her, for it is a form of harm for him. An exception is given if there is a mahram that can prevent khalwat from happening or if they live in separate rooms or levels, then it is ruled as makruh.
- According to Federal Territory Islamic Religious Department (JAWI), JAWI officers has the authority to arrest any couple that has just divorced, if found committing khalwat, for it is a khalwat between two ajnabi and it is a Syariah offence in Federal Territories.
- Considering that this is a great khilaf since the era of the salaf, we are not saying that couples who hold this opinion is wrong. Especially when there is an opinion that permits it. This is to help save the marriage and the husband can take back his wife (rujuk) before the duration of iddah ends.
- However, the practise of this opinion would lead to fitnah in the society of Federal Territories who follows mazhab Syafie. The manners of adhering to different opinions from different mazhab should be observed in order to prevent confusion in society. An Islamic legal maxim states:
حُكْمُ الحَاكِمِ يَرْفَعُ الخِلَافَ
A judge’s ruling is to undo the khilaf
Thus, divorced couples living in Malaysia, especially in Federal Territories should avoid khalwat during the process of iddah.
Wallahua’lam.