Is a waiting period (Iddah) obligatory for a woman divorced after private seclusion (Khalwa) but before consummation?
General Chapter
Al-Mughni
Book of Waiting Periods ('Iddah)
Primary text
The obligation of the waiting period (Iddah) applies to every woman with whom her husband secluded himself, even if no physical consummation occurred. This is the established view of Imam Ahmad, and it is narrated from the Rightly Guided Caliphs, Zayd, Ibn Umar, Urwah, Ali ibn al-Husayn, Atā, al-Zuhri, al-Thawri, al-Awza'i, Ishaq, the Ashab al-Ra'y, and the old position of Al-Shafi'i. The evidence is the consensus of the Companions (Sahaba). It is narrated that the Rightly Guided Caliphs ruled that whoever drew a curtain or closed a door incurs both the Mahr (dower) and the Iddah. These rulings were widely known and unrefuted, thus establishing consensus (Ijma'). Furthermore, the marriage contract deals with benefits, and granting access (Tamkin) functions similarly to full enjoyment (Istifa') in related legal matters, akin to a lease contract.
Supporting text
Al-Shafi'i, in his new position, holds that no Iddah is required. The basis for this view is the explicit text of the Quran: "O you who have believed, when you marry believing women and then divorce them before you have touched them, then there is not for you upon them any waiting period to count." (Quran 33:49). They argue that since she was divorced without being touched, she is analogous to a woman with whom there was no seclusion.