Praise be to Allaah.
The ‘iddah of a woman who has been revocably divorced lasts
for three menstrual cycles if she menstruates, and three months if she is
past the age of menopause or she is a minor who does not menstruate, because
Allaah says (interpretation of the meaning):
“And divorced women shall wait (as regards their marriage)
for three menstrual periods”
“And those of your women as have passed the age of monthly
courses, for them the ‘Iddah (prescribed period), if you have doubt (about
their periods), is three months; and for those who have no courses [(i.e.
they are still immature) their ‘Iddah (prescribed period) is three months
likewise, except in case of death]”
The husband may take his wife back during the ‘iddah, whether
she agrees to that or not.
Taking the wife back is done by means of words indicating
that, according to scholarly consensus, such as his saying “I take you
But the fuqaha’ differed as to whether taking back is done by
means of actions, such as intercourse and that which leads to it of touching
and kissing. There are four opinions:
The Hanafis are of the view that taking back is done by means
of intercourse and kissing with desire on any part of the body, and by
touching even if it is through a barrier through which the heat of desire
may be felt. They regarded all of that as an indication of taking back the
wife, as if by having intercourse he has agreed for her to become his wife
The Maalikis are of the view that taking back the wife by
actions such as intercourse and the things that lead to it is valid, so long
as the husband intends by means of these actions to take her back. If he
kisses her or touches her with desire, or he looks at the site of
intercourse with desire, or he has intercourse with her without intending to
take her back, then the taking back by means of doing these things is not
valid, and he has committed a haraam action.
The Shaafa’is are of the view that taking back is not valid
unless done verbally, and it is not valid by means of actions at all,
whether it is by means of intercourse and the things that lead to it and
regardless of whether the action was accompanied by the intention to take
her back or not.
The Hanbalis are of the view that taking back by means of
intercourse is valid whether the husband intended to take her back or not.
As for the things that lead to intercourse, they cannot be a means of taking
her back, according to the correct view of this madhhab.
See: Tabyeen al-Haqaa’iq (2/251), Haashiyat Ibn
‘Aabideen (3/399), al-Kharshi ‘ala Khaleel (4/81), Haashiyat
al-Bujayrimi (4/41), al-Insaaf (9/156) and Mataalib Ooli
The most likely to be correct is the second view, that
intercourse counts as taking the wife back if it is done with the intention
of taking her back.
Shaykh Ibn ‘Uthaymeen (may Allaah have mercy on him) said:
The second view is that intercourse does not count as taking her back unless
there is the intention of taking her back, because simply having intercourse
may be done by a man with a non-mahram woman, as in the case of zina. This
man’s desire may have been provoked, or he may have seen her adorned and
been unable to control himself, so he had intercourse with her, without
intending or wanting to take her back as his wife and without having any
intention of going back to her. According to this view, having intercourse
does not count as taking her back unless there was the intention to do so.
This is the correct view and it was the view favoured by Shaykh al-Islam Ibn
Taymiyah (may Allaah have mercy on him) because intercourse may take place
with the desire to take her back, so it is done with the intention of taking
her back, or it may be simply intercourse as the result of desire, so it
does not indicate that he is taking her back.
The correct view is that taking the wife back is not done
merely by having intercourse, unless it is his intention to take her back,
and he regards it as permissible on the basis that she is his wife. If that
is the case, then it is taking her back, but according to this view, if he
has intercourse with her without intending to take her back, and she has a
child as the result of this intercourse, is it to be regarded as his child?
The answer is yes, it is his child, because this case of intercourse is not
clear-cut, and because she was his wife as her ‘iddah had not yet ended. So
he is not subject to the hadd punishment for zina, rather he should be given
a disciplinary punishment (ta’zeer). End quote from al-Sharh al-Mumti’
The fuqaha’ regarded it as mustahabb to bring witnesses to
his taking back his wife, because Allaah says (interpretation of the
“Then when they are about to attain their term appointed,
either take them back in a good manner or part with them in a good manner.
And take as witness two just persons from among you (Muslims). And establish
the testimony for Allaah. That will be an admonition given to him who
believes in Allaah and the Last Day. And whosoever fears Allaah and keeps
his duty to Him, He will make a way for him to get out (from every
If a divorced woman refuses to have intercourse with her
husband until his taking her back has been witnessed, some of the fuqaha’
regarded that as a sign of her being smart and mature. Al-Kharashi said in
his Sharh ‘ala Mukhtasar Khaleel (4/87): If a man divorces his wife
recovably [i.e., first or second talaaq], then he takes her back and wants
to have intercourse with her, and she refuses to do that until after the
taking-back has been witnessed, it is her right to do so, and it is
indicative of her wisdom, and she is not being disobedient towards her
husband, rather she will be rewarded for this refusal. End quote.
This husband has to repent to Allaah, may He be exalted, from
having had intercourse with his divorced wife without intending to take her
back, and he should acknowledge the child as his if pregnancy resulted from
that. He should think again about the divorce, because it may be better for
him to take his wife back and look after her and the child he has from her.
If the matter is referred to the shar’i judge and he rules as
he sees fit, then his ruling is binding on both partners, because the ruling
of the qaadi overrides any difference of scholarly opinion.
As you are in a western country where there are no shar’i
judges, we think that a man who has knowledge of Islam and fiqh should judge
between you. [You can get in touch with such a person through an Islamic
centre], and he may judge on the basis of what he knows of the rulings on
this issue, and his ruling will be binding like that of a shar’i judge.
And Allaah knows best.