A man had an argument with his wife and told her,"You are divorced."
She swore at him so he kickedher in the stomach and pushed her down
the stairs. She was five months pregnant and she lost the baby. Then
he regretted it and went to her family's house to take her back. Her
father askedme for advice and I asked him to wait until I consulted
one of the 'ulama' (scholars) because maybe her 'iddah ended when she
miscarried. What is the ruling on that?
Praise be to Allaah.
The scholars are agreed that the 'iddah of a divorced woman who is
pregnant ends when the pregnancy ends, because Allaah says
(interpretationof the meaning):
"And for those who are pregnant (whether they are divorced or their
husbands are dead), their 'Iddah (prescribed period) is until they lay
down their burden"
[al-Talaaq 65:4]
They are also agreed that if a woman miscarries a foetus in which
human features are apparent, her'iddah ends at that point. (al-Mughni
11/229). The human features start to appear after eighty days, and are
usually very clear by ninety days.
Based on this, if a womanmiscarries in the fifth month of pregnancy,
her 'iddah ends at that point, according to all the scholars, and her
husbandhas no right to take her back after her 'iddah has ended.
But he may make a new marriage contract with her if he wants to, but
that has to be with her approval and in the presence of her wali
(guardian) and two witnesses, and with a dowry (mahr).
There are two things which this man who caused this miscarriage has to do.
1 – He has to expiate for killing by mistake, which is by freeing a
believing slave; if he cannot do thatthen he must fast for two
consecutive months, because Allaah says (interpretation of the
meaning):
"and whosoever kills a believer by mistake, (it is ordained that) he
must set free a believing slave and a compensation (blood money, i.e.
Diya) be given to the deceased'sfamily unless they remit it…
And whoso finds this (the penance of freeing a slave) beyond his
means, he must fast for two consecutive months in order to seek
repentance from Allaah. And Allaah is Ever All-Knowing, All-Wise"
[al-Nisa' 4:92]
2 – He must also pay the diyah (blood money) for the foetus, which is
one-tenth of the diyah forthe mother. The diyah for a Muslim woman is
fifty camels, which is equivalent in modern terms to 60, 000 Saudi
Riyals. So the father must pay 6,000 riyals or its equivalent in
another currency to the heirs of the foetus, and it should be shared
out among them as if the foetus had died and left that behind, but the
father does not inherit anything, because the killer does not inherit
from the one whom he killed. Ibn Qudaamah said:"If the person who
causedthe miscarriage was the father of the foetus or oneof the other
heirs, then hemust give a slave and we have stated above that the
equivalent is to pay 6,000 Saudi riyals or an equal amount in another
currency and he does not inherit anything of that, and he should free
a slave. This is the view of al-Zuhri, al-Shaafa'i and others."
(al-Mughni, 12/81).
And Allaah knows best. May Allaah send blessings and peace upon our
Prophet Muhammad.
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'' Our Lord ! grant us good in this world and good in the hereafter and save us from the torment of the Fire '' [Ameen]
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{in Arab} :->
Rabbanaa aatinaa fid-dunyaa hasanatan wafil aakhirati hasanatan waqinaa 'athaaban-naar/-
(Surah Al-Baqarah ,verse 201)
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