al haml: The minimum
and maximum periods of gestation can be established using modern technology. The physical acts of salat should be accordingly modified for women in advanced pregnancy. Missed fasting for fetal interests is made
up later. Missed fasting in maternal interests is expiated by feeding the poor. Care is needed in hajj, and other physical activities. Coitus is allowed but precautions are needed to prevent infection and fatal
hemorrhage in cases of placenta previa. Breast feeding can continue in pregnancy. A pregnant woman can be divorced but cannot
be forced out of her house until after delivery. Legal punishments, huduud, cannot be carried out in pregnancy until
after delivery and suckling of the baby for 2 years.
Delivery, wadhau al haml : A bloody ‘show’ and any
bleeding during labor and delivery invalidate wudhu? Salat is not physically possible in the perinatal period and has to be made up. Saum in the perinatal period is not recommended. Physical activities of hajj are not recommended in advanced pregnancy.
The rules pertaining to menstruation apply to the period of post-natal bleeding. Salat
is exempted. Fasting is made up later. Touching the Qur’an and sexual intercourse are forbidden. Divorce of a woman
in the post-partum period is prohibited. The fetus has rights to life, inheritance, a good name, general health care and nutrition.
The mother has rights to health care, nutrition, and payment for breast feeding if divorced. The following are done for the
newborn: Adhan and iqamat at birth,
naming, circumcision, shaving the hair, ‘aqiiqah:
Breast-feeding, ridha’a: The Qur'an set the statutory period of breast-feeding as 2 full years. No maximum
period was set. The father has to give financial compensation to a breastfeeding
divorced wife. Breast-feeding of a child not issued from the mother automatically creates a legal relation not different from
the biological one. Milk banks are permitted on the basis of dharurat by records
must be kept of all donors. A nursing mother is allowed to combine 2 prayers and to miss fasting making up later. Suckling while pregnant is allowed. Intercourse with suckling woman
is allowed. New ijtihad is needed on the minimum period of maternal leave
from work since the Qur’an sets a limit of 2 years for suckling.
Disorders of pregnancy: The period
of post-abortion bleeding is recognized as nifaas. In cases of hemostatic disorders and ecclampsia termination of the
pregnancy may be the best way to save the mother’s life but it will adversely affect the fetus who may not yet be viable
extra-uterine. Delivery complication may lead to difficult choices between saving one of the lives: mother or infant. The
Law gives precedence to the mother
1.0 PREGNANCY, haml
Diagnosis of pregnancy: The Qur’an mentioned pregnancy, haml[i]. The traditional diagnosis of pregnancy was based on amenorrhea, signs and symptoms of pregnancy, and abdominal enlargement
in the late stages. Earlier diagnosis of pregnancy based on hormonal and radiological procedures is now available. This earlier
diagnosis cannot lead us to shortening the post-divorce period of waiting, iddat al
talaaq. We know that the material reason, illat, for waiting three months is
to ensure that the wife is not pregnant. We however do not know all the wisdom, hikmat,
behind the ordaining of ‘iddat
Period of gestation: Legal situations arise in which the court must
reach a decision based on knowledge of the minimum and maximum periods of gestation. Bleeding or spotting in early pregnancy[ii] that is thought to be an abortion or a menstruation can be the cause of the confusion
in computing the period of gestation. The early jurists using medical knowledge available in their times had reached conclusions
about the minimum and maximum durations of gestation. These need to be revised in view of modern medical knowledge and the
availability of sophisticated diagnostic procedures.
in pregnancy: Standing up, qiyaam;
bowing, rukuu; prostration, sujuud, and
sitting down in salat may be difficult for a woman in advanced pregnancy. It may also be difficult for her to put her hands
on her abdomen. A pregnant woman may be excused from fasting, saum. If the excuse
is based on fear of nutritional deficiency in the mother or in both the mother and the fetus, the missed fasting must be made
up. If the exemption is based on fear of harm to the fetus alone, expiation is by feeding the poor. The hustles of movement
in hajj may be too strenuous for a pregnant woman. A woman in advanced pregnancy has limited ability to do physical work,
at home or outside the home, and has to be excused. Sexual intercourse is physically cumbersome in advanced pregnancy. It
may also introduce infections in the birth canal. In the rare instance of placenta previa
it may provoke potentially fatal bleeding.
Breast feeding: There is no ruling against breast-feeding in pregnancy. It is a medical
necessity since breast milk is the best food for a baby.
in pregnancy: A pregnant woman can be divorced but cannot be
forced out of her house until after delivery. Legal punishments, huduud, cannot
be carried out in pregnancy until after delivery and suckling of the baby.
2.0 DELIVERY, wadhau al haml
Blood: The show of labor is considered as nifaas and will invalidate wudhu. Salat is not physically possible in the advanced stages of labor and immediately
after delivery. Siyaam in labor
is not recommended. Women in post-natal bleeding are excused from salat like those in menstruation. Post-natal mothers are
excused from fasting but they have to make up later. The rules pertaining to menstruation apply to post-natal bleeding. Touching
the Qur’an is forbidden. Sexual intercourse is forbidden in the perinatal period. It is forbidden post-natally until
the end of nifaas. Divorce of a woman in the immediate post-partum period is not
The newborn: The books of sunnat
have given reasons for the crying of the baby at birth[iii]. Every new born is touched by the shaitan, mass
al shaitan 'inda al wilaadat[iv]. The fetus has rights to life and inheritance. The newborn has the following rights: choice of a good name, general health
care, and nutrition. The rights of the mother are: health care, nutrition, shelter, and payment for breast-feeding if divorced.
The following are done for the newborn: adhan and iqamat at birth, naming, tasmiyat, circumcision, khitaan, shaving the hair, halq al sha’r, and aqiiqah.
Duration: The Qur'an set the statutory period of breast-feeding as 2 full
years, muddat al ridha'a hawlain kaamilain[v]. No maximum period was set. The father has to give financial compensation to a divorced wife who is breast-feeding his
due to breastfeeding: Breast-feeding is not merely nutrition.
Unlike blood transfusion or organ donation, it involves a more intimate biological and psychological interaction between the
infant and the lactating woman. Breast-feeding of a child not issued from the mother automatically creates a legal relation
that in the regard of the Law is no different from that that of a son or a daughter. The relation encompasses the wet nurse,
the children of the wet nurse, and the husband of the wet nurse. The conditions set by the Law for this relation to hold are:
the wet nurse must be a female at least 9 years of age, the baby suckled must be less than 2 years old, suckling must be from
the breast and not milk expressed in a container, and at least 5 separate breast feeding sessions must be held. The legal
relationship thus established leads to marital restrictions between foster brothers and foster sisters. If there is doubt
whether an infant breast-fed or not, we rule that it did not breast-feed because the maxim of the law is certainty cannot
be voided by doubt, al yaqiin la yazuul bi al shakk. Doubts about breast-feeding could arise in situations in which
the baby was out to the breast 5 times but it is not known whether he actually suckled or not.
Physical activity for a nursing mother: A nursing mother is allowed to combine 2 prayers. A nursing mother does not fast and makes
up later. Suckling while pregnant is allowed. Sexual intercourse with suckling woman, al ghayla, is allowed New ijtihad is needed on the minimum period of maternal
leave for working women since the Qur’an sets a limit of 2 years.
[i][i] (Qur’an 3:6, 3:35, 7:189,
13:8, 16:78, 19:22, 22:2, 22:5, 23:14, 31:14, 31:34, 39:6, 46:15, 53:32, 65:4, 65:6)
[ii] (Darimi K1 B97, Muwatta K2 H101)
[iii] (Bukhari K65 S3 B2; Muslim K43 H148; Ahmad 2:233,
[iv] (Bukhari K60 B44; Bukhari K65 S3 B2; Muslim K43 H146, Muslim K43 H147; Ahmad 2:233,
274, 288, 292, 319, 368, 523)
[v] (Qur’an 2:233, 31:14, 46:15)