Must a man separate from his wife whose child from a previous union has died, until she has completed one menstrual cycle?
General Chapter
Al-Mughni
Book of Waiting Periods ('Iddah)
Primary text
A man must separate from his wife whose child from another man has died until she completes one menstrual cycle (hayd). This view is held by Ahmad ibn Hanbal, and is narrated from Ali ibn Abi Talib, his son Al-Hasan, Umar ibn Al-Khattab, Al-Hussain ibn Ali, and As-Sa'b ibn Judhamah. It is also the opinion of 'Ata', Umar ibn 'Abd al-'Aziz, Al-Nakha'i, Malik, Ishaq, and Abu 'Ubaid. The rationale is to ascertain whether she was pregnant by the deceased child's father at the time of his death, as the resultant fetus would inherit if conceived before death. Umar ibn 'Abd al-'Aziz stated that the husband should not approach her until it is known whether she is pregnant or not.
Supporting text
Separation is not required if the deceased child had an heir (child, father, or grandfather), because the fetus would not inherit. Separation is also waived if the pregnancy is already established and apparent. Likewise, it is waived if the woman has reached menopause (a sign of despair of pregnancy). If separation is not observed, and she delivers a child less than six months after the husband consummated the marriage following the death of the child, the child inherits. If the delivery occurs more than six months after the subsequent intercourse, the child does not inherit because the existence of the fetus at the time of the initial death cannot be confirmed. This latter ruling is narrated from Sufyan and aligns with the perspective of Al-Shafi'i.