'Iddah in the View of Islam and Feminists

: 'Iddah in the View of Islam and Feminists . This study examines Islamic concepts of 'iddah (waiting period for a divorced wife) and how the Feminists view it. The aim is to comprehend the different perspectives and try to put the problem in the right position . This research is purely library research using a socio-philosophical approach. Data were obtained from literature, books, and available documents. Based on the results of the study, it can be concluded that in Islamic teachings 'iddah is intended to determine the status of the womb, whether pregnant or not, to avoid mixing the lineage of the expecting baby. This is different from the view of the feminists who think that the provision regarding 'iddah is a product of a patriarchal culture that marginalizes women as it only applies to women, and not to men. This feminist view is based on the spirit of equality before the law which demands equal rights and obligations. The view, however, needs to be reviewed as the provision of 'iddah does not necessarily mean ignoring the principle of equality between men and women. Men and women by nature are created with different physical and emotional characters according to their respective roles. Even if such a view is applied, new problems will arise and damage the order of human culture universally.


Introduction
'Iddah (waiting period for divorced women) in Islam is the time given to women whose marriage ties end, either because of divorce by her husband in revocable or irrevocable divorce (ṭalāq raj'ī, ṭalāq bāin), or because her husband died, or because the marriage was broken (fasakh) as her husband apostatized, etc. The provisions regarding 'iddah only apply to women and not to men.
There is controversy among Islamic historians about the existence of the practice of ' iddah in pre-Islamic Arab society. Some writers argue that ' iddah did not exist in the Jahiliyah era. They base their opinion on an atsar narrated by Abū Dawud and Ibn Hatim from a prophet's friend named Asma' bint Yazīd. In the atsar it is stated that Asma' had been divorced by her husband and at that time there was no ' iddah provision for divorced women. Then Allah sent down the verses about ' iddah and since then ' iddah has come into effect. It was also added in another source that during the Jahiliyyah period a pregnant widow could immediately marry another man, and give birth at her new husband's house. The status of the child born later is considered as the child of her new husband even though she is pregnant because of her previous husband. 1 Some other scholars argue that the ' iddah was known by the Arabs before the coming of Islam. They refer to books written by 'ulama in classical times, including the book "al-Um" by Imam Shāfi'i and the book "Al-Jāmi' Li Ahkām Al-Qur`ān" by al-Qurtubi. 2 Based on the descriptions written in these books, the practice of ' iddah in the Jahiliyyah era was very inhumane and degraded the dignity of women. 3 At this time, a woman who had just lost her husband had to isolate herself in a place separated from her family for a whole year. During the period of exile, the woman was not allowed to wear perfume, cut her nails, comb her hair, and change clothes. She will be given an animal such as a donkey, goat, or bird to rub against his skin. The ostracism was so inhumane that when the exile ended the woman's appearance resembled the appearance of an insane person with a thin, dirty body, stout, and matted hair. It is also illustrated that the smell of the woman who is performing ' iddah is so foul, that no one dares to approach her, and if she leaves her place of exile immediately the crows will ambush her, because of the stench it gives off. 4 After the coming of Islam, however, such tradition was changed and replaced with more humane rules, at the same time, elevating the dignity of women. They are no longer considered "treasures" that can be passed on to their heirs and are allowed to remarry after the waiting period expires. 5 Although the concept of ' iddah in Islam is very different from the traditions of pre-Islamic Arab society, the provision of ' iddah, which only apply to women and not to men, is seen by Indonesian feminists as a form of discrimination against women and marginalizes them at the level of equality before the law. Their views are in line with what was written by Kate Millett in her book entitled "sexual politics", where she shows how the position of men is more dominant than women in a patriarchal society. The demonstration of the supremacy of men over women, families, and society, which started in the private sphere and then has an impact on the public sphere, has created structured power relations in which one group controls another group and breeds racial, political, and economic inegalitarianism. 6 Men are seen as strong masculine and leader figures, while women are oppressed, feminine people. In the institution of marriage, which is a financial union and the highest institution of the patriarchal system, womenonly act as complements. Therefore, Kate Millett argues, that gender must be removed, including status, roles, and sexual temperament. 7 If the acceptance of male supremacy as a birthright is not eliminated, DOI: https://doi.org/10.24042/al-'adalah.v18i2.8515 all systems of oppression will continue to operate only by logical and emotional mandate in the primary human situation. 8 This article tries to provide a detailed description of how the concept of ' iddah in Islam is, and, at the same time, presents arguments for why ' iddah is established in Islam. With this explanation, it is hoped that the misunderstanding of ' iddah can be straightened out while opening the possibility of developing legal products that are in line with the development of modern technology.

'Iddah in Islamic Law and Positive Law
Terminilogically, ' iddah, according to Wahbah az-Zuhaili, is a waiting period for a woman after separating from her husband in which she is not allowed to marry until that period is over. 9 The waiting period applies to all women whose marital ties are broken, either because they are divorced, or because their husband dies or disappears, or because of something that causes their marriage to be null and void. 10 The legal basis for the provisions of 'iddah in the Qur'an is contained in a number of verses, particularly in: QS. According to some commentators, the revelation of God's Word about ' iddah was to respond to contemporary social phenomena. At that time, many widows were dishonest and covered up their pregnancy status so as to remarry to another man, and, not long after that, she gave birth. This woman's dishonesty can eventually lead to a dispute between herself and her new husband, as well as give a negative impact on the status of the newly born child. Another case is where the wife lied that her 'iddah time had not yet expired with the aim of making her husband continue to give her sustenance while she was in the iddah period. Under such a situation the revelation came down to forbade a divorced wife to hide what was happening in her womb. 11 The mufassirūn (the Qur'anic interpreters) in understanding the QS. Al-Baqarah [2]: 228 argue that women whose marriage bonds end are obliged to carry out ' iddah for three quru' (period). The obligation is based on the meaning of the word ‫"یتربصن"‬ which is the khabariyah (affirmative) but also insyāiyah (command) which means ‫."لیتربصن"‬ With the understanding of the command, the verse becomes dilālah al-āyah lil wujūb (the obligatory proposition) on the ' iddah for all women whose marriage ties end. 12 Although the Mufassirūn agrees on the obligation of ' iddah, they have various opinions on understanding the meaning of the word ‫"قرء"‬ as the word contains multiple meanings (musytarak) which can be interpreted as the period of menstruation or out of the period.
The jurists also agree that ' iddah is an obligation for women whose marital ties are broken and they are not justified in neglecting it. 13 The length of the 'iddah period in Islamic law can be divided into three types: (i) 'Iddah with the measure of menstruation or clean ‫;"قرء"‬ (ii). 'Iddah with the measure of months; and (iii) 'Iddah with a count to giving birth. The grouping of this ' iddah period is adjusted to the condition of the divorced woman with the following provisions: 14 1. Women whose marital ties end due to ṭalāk (divorce) or fasakh (null and void) and have not had sexual intercourse with their husbands (qabla al-dukhūl), then there is no obligation to carry out ' iddah (QS. al-Ahżāb [33]: 4).

2.
A woman whose marriage bond has ended and has had sexual intercourse with her husband (ba' da al-dukhūl), is obligatory to carry out ' iddah, (QS. Al-Baqarah [2]: 228). The length of the ' iddah period is as follows.
3. A woman whose marriage bond ends because of ṭalāk or fasakh (almuthallaqah) while she is still menstruating, is required to complete the ' iddah for three quru' (QS.

5.
A woman whose marriage bond ends due to the death of her husband (al-mabtūtah), while she is not pregnant, her ' iddah period is four months and ten days (QS. Al-Baqarah [2]: 234).
In Indonesian Civil Law 15 and Islamic Civil Law 16 applicable in Indonesia, the issue of ' iddah is also regulated in several provisions as follows: 1. In the Indonesian Civil Code Articles 33 and 34 it is stipulated that "Between persons whose marriage has been dissolved following 15 Indonesian Civil Law (Burgerlijk Wetboek voor Indonesie), also known as the Civil Code (BW), is actually a rule of law made by the Dutch East Indies government aimed at groups of non-native citizens, namely from Europe, China, and the foreign east. This law was promulgated on April 30, 1847, through Staatsblad No. 23 and entered into force in January 1848. After Indonesia's independence, based on the provisions of Article 2 of the transitional rules of the 1945 Constitution, the Civil code is still declared valid before being replaced by a new law (concordance principle). 16  f. 'Iddah for women who experience menstruation and when they do not menstruate because of breastfeeding, then the period of ' iddah is three times of menstruation.
g. 'Iddah for women who have menstruation and they do not menstruate because of menopause, then the ' iddah is one year.
From the various provisions above, it can be understood that the issue of ' iddah is also known in the legal regulations that apply in Indonesia; however, it's just in the Civil Code that the waiting period applies to both men and women, while in the UUP and KHI the waiting period only applies for women.

Attitudes of Indonesian Feminists Towards Marriage Law and the Issue of 'Iddah'
Feminists argue that Islamic family law in Indonesia (UUP No. 1 of 1974 and KHI) is still full of discrimination against women. According to their opinion, Islamic law, which is understood, believed, and practiced every day, is born in a patriarchal society and culture where men are always the center of power. 17 They also assert that several weaknesses in the KHI material should be corrected which include. First, the formulation of the vision and mission, along with several articles of KHI that contradict the basic principles of universal Islam such as al-musawwah, al-ukhuwah, al-'adālab, and others. Second, articles that are not in accordance with the prevailing laws, regulations, and international conventions that have been  Indonesia. 19 Feminists in Indonesia view that al-Ahwāl al-Syakhṣiyah, UUUP, and KHI are products of a patriarchal culture that permanently marginalizes and subordinates women in various public roles so they need to be harmonized with the spirit of equality before the law. For this reason, the steps that need to be taken are to reinterpret arguments both sourced from the Qur'an and Sunnah that are not in harmony with the spirit of feminism. Regarding 'iddah, they want a revision of the law so that the provisions for the waiting period for women are at least the same as those in the Civil Code. 20 18  The following table shows the difference in content between KHI and CLD-KHI which also shows points they want to change:

a. 'Iddah as a form of dehumanization of women
Feminists point out that ' iddah is a form of dehumanization in the name of a tradition, religion, or the superiority of certain groups. This view needs to be clarified by referring to the meaning contained in the term humanization/dehumanization. Humanization means humanizing humans, eliminating material dependence, violence, and hatred from other humans by fighting three things. First, bad treatment of human entities due to technological, economic, cultural, or state factors. Second, aggressiveness and criminality due to collective factors. Third, marginalization or losing of one's rights. The opposite of humanization is dehumanization which is the potential to not treat humans as humans by abandoning moral values, kindness, tolerance, or demeaning others without any sense of care, sympathy, or even empathy. If the two definitions above are related to the phenomenon of 'iddah, the claim of dehumanization is only suitable to be applied to the traditions of Arab society during the Jahiliyah period. This is because at that time women were considered goods that could be transacted, inherited, and even given away. Therefore, when her husband dies, the widow will be exiled from her husband's family to a place for one year and receive very inhumane treatment. But if it is associated with the phenomenon of ' iddah in Islam, the claim of dehumanization is not at all correct. This is due to several arguments as follows: 1) The rules of ' iddah in Islam are completely different from pre-Islamic Arab tradition. With the coming of Islam, women are no longer considered "treasures" that can be passed on to their heirs. Islam elevates the dignity of women by abolishing all inhumane treatments suffering them during the Jahiliyyah era.
2) The rules regarding ' iddah are not to discriminate against women. This is evidenced by the fact that not all women whose marriages break up must perform ' iddah. Only married couples who have had sexual intercourse before the divorce is subject to this rule. For those who have not, they are not required to perform ' iddah.
2) The main purpose of determining the ' iddah in Islamic Law is to know whether the woman is pregnant or not, and, at the same time, to prevent the lineage obscurity of the to-be-born child as it can be determined based on valid and convincing evidence.
3) 'Iddah is also intended to provide an opportunity for divorced married couples to reflect and review the decisions they made. It is very often that divorced couples decide to divorce spontaneously and under emotional influences, away from clear, rational, and wise considerations. With the opportunity time to think again, it is very possible that they regret the decision and finally decide to re-knit their marriage which had been cut off (rujū'). 4) 'Iddah, for a wife who has been abandoned by her deceased husband, can also be viewed as a period of mourning. In this world, there is hardly anyone who does not grieve when their loved ones leave them forever. The feeling of mourning then can be expressed in the form of delaying the desire to remarry for some time until the end of the ' iddah period because it is culturally unethical for a woman whose husband has just died too suddenly marries another man. Besides, the attitude of the wife not remarrying immediately also shows respect for relatives of the deceased.
5) The rule regarding 'iddah is also a form of respect for the institution of marriage. Marriage, in the view of Islam, is not simply an agreement between a man and a woman to live together in a family or merely a means to legalize the husband and wife relationship. More than that, it is a sacred covenant and a means of worshiping Allah. In addition, the institution of marriage can also be seen as part of human society's identity that can elevate their dignity, and, at the same time, differentiate them from animal society. Such is the importance and sacredness of the marriage institution that every married couple must do all efforts to maintain its continuity throughout their life. For this reason, married couples who have already separated due to a divorce are still encouraged to return to marriage; This effort will certainly be easier to realize if both parties, especially the wife, have not married someone else.

b. Feminists Offer to Reinterpret the Islamic Marriage Law
Indonesian Feminists propose that Islamic jurists carry out ijtihād to formulate new Islamic marriage rules, which are free from the confines of classical fiqh which they view as very patriarchal. The proposal is worth considering. However, making changes to religious law is not as easy as changing a man-made law. There are several requirements that must be met so that the changes made do not go out of the corridor of religion and fall into the abyss of fatal mistakes.
One of the requirements that must be met by someone to carry out ijtihād is related to ṭuruq al-istinbāṭ al-Ahkām (law-making methodology). The Fiqh scholars always stick firmly to a principle: there is no gap in ijtihad against the law of worship, muāmalah, and i'tiqādiyah based on the qaṭ' i argument. This principle refers to a fiqh qāidah which reads: There is no place for ijtihad on clear and definite texts." 22 The above rule explicitly states that ijtihād can only be done in two circumstances, namely when there are no nas at all or there is a nas but the meaning is obscure. 23 This is in line with what was stated by al-Syātibī that the area of ijtihād is only in matters that have not been explained by the qaṭ' i naṣ. 24 Qaṭ' i naṣ, is a legal basis having seven criteria, as follows: a. The text in question has not had multiple meanings (musytarak).
b. The text is also not a metaphorical sentence (majāz).
c. The text does not contain a transition of meaning (ta'wīl).
d. The text does not contain special meaning (takhṣīṣ).
e. The text does not contain abrogation (nāsikh and mansūkh).
f. The text does not contain elements of connection with certain conditions in its application (taqyīd).
g. The text does not contradict logic or manthīq. 25 In the science of ushūl fiqh, there are two kinds of Qaṭ'i (legal certainty) namely Qaṭ' i al-Wurūd or al-ṡubūt, and Qaṭ' i dilālah. Qaṭ' i al-Wurūd or al-ṡubūt are naṣ (legal basis) that reach us with certainty, no doubt because they are accepted mutawātir (valid/free from mistakes or lies). The Qur'an, in terms of its existence, is included in the category of qaṭ' i al-wurūd or al-ṡubūt because the Qur'an reaches us in a way that cannot be doubted. 26  Another criterion of qaṭ'i al-dilālah includes two things, namely: 1) The text contains Islamic aqīdah values, such as: Believing in God in His Oneness, believing in His angels, believing in His books, believing in His Apostles, believing in the afterlife, and believing that fate/destiny has been determined by Allah.
2) The text contains universal values and does not conflict with the main moral principles or al-Akhlāq al-Karimah such as: upholding justice, doing good to both parents, maintaining a friendship, and keeping promises. Concerning legal issues governed by legal basis with the status of qaṭ'i dilālah, then there is no room at all for the use of reason and, thus, does not become the area of ijtihād. 27 Mahmūd Shalṭūt has the same thought as other uṣūliyūn that the Qur'anic texts stated in the text have a definite and definite meaning, and there is no other meaning, then ijtihād is not applied there, such as the verses of the Qur'an which contain the commandment to pray, paying zakat, prohibiting adultery and prohibiting enjoying wealth unlawfully, etc. He also emphasized that anyone who denies or refutes the status of the qaṭ' iyah verses, then his actions can lead to disbelief or apostasy. 28 Turning to the issue of ' iddah, the three verses that become the legal basis for ' iddah, (QS. Al-Baqarah [2]: 228-234, QS. Al-Ahzāb [33]: 49) meets the seven criteria as a Qaṭ' i dilālah proposition, except for a small part of the QS. Al-Baqarah [2]: 228 concerning the word ‫"قروء"‬ which has multiple meanings (musytarak) between menstruation and purity. This fact shows that ijtihād cannot be carried out in the case of ' iddah because the arguments are so unequivocal. This means that the reform of the ' iddah law as proposed by Indonesian feminists cannot be carried out including the idea of imposing ' iddah on husbands for reasons of equality, which violates the basic principles of legal norms, as it is tantamount to forbidding something permissible or allowing something that is prohibited.

Conclusion
The provisions regarding ' iddah for widows in Islam cannot be seen as a form of discrimination, or marginalization, let alone dehumanization of women. Because the main purpose of establishing ' iddah for widows is to find out the status of a divorced woman's womb, whether she is pregnant or not. This method is chosen to prevent the mixing of lineages of the being conceived baby, if any, that will lead to unclear genealogical status. Apart from that, ' iddah also has a mission to reunite something that has been separated while at the same time supporting the continuity of the household. Islam highly values the institution of marriage because this institution is one of the characteristics distinguishing human society from animal society. This is different from the view of the feminists who consider that the provision regarding ' iddah is a form of discrimination because it only applies to women, and not to men. This view needs to be reviewed because the issue of ' iddah does not necessarily mean ignoring the principle of equality between men and women, because by nature they are created with different physical and emotional characters according to their respective roles. Precisely if it is forced, new problems will arise that undermine the universal order of human culture.