Date : 16-04-2014

Question :

Does having Khilwa (A valid privacy with the wife) before being divorced and without having sexual intercourse entails Iddah?


The Answer :

All perfect praise be to Allah, The Lord of The Worlds, and may His peace and blessings be upon our Prophet Muhammad and upon all of his family and companions.


Making divorce after having Khilwa entails Iddah even if they (Spouses) didn't  engage in a sexual intercourse and the period of Iddah is three menstrual cycles.


In this regard, it is stated in [Bada'e As-Sana'e vol.3 pp.191] for Al-Khasanee (May Allah have mercy on his soul):" Iddah is due as soon as Khilwa took place .i.e. having a valid privacy with the wife. In other words, Iddah won't be due without having Khilwa and being engaged with sexual intercourse, for Allah, The Exalted said (What means):" O ye who believe! When ye marry believing women, and then divorce them before ye have touched them, no period of ’Iddat have ye to count in respect of them: so give them a present. And set them free in a handsome manner." [Al-Ahzab/49].


In addition, it is stated:" Iddah is due on whoever had Khilwa with her husband without having sexual intercourse." [Al-Mughni vol.8 pp.99] for Ibn Qudama (May Allah have mercy on his soul).


Furthermore, it is stated:" If divorce or dissolution of marriage took place after the consummation of a valid marriage contract, then Iddah won't be due in this case save if Khilwa or sexual intercourse occurred between spouses." Article (135) of the Jordanian Civil Status Law.


In conclusion, this issue is a controversial one among jurists, since the adopted opinion of the Shafie's doctrine is that Iddah won't be due save if spouses were engaged in a sexual intercourse. The adopted opinion as regards issuing Fatwa and Sharia judicial system in this regard in Jordan is based on the opinion of the Hanafie's doctrine as mentioned above and the Civil Status Law. And Allah knows best.