Bismillah al-Rahman al-Rahim.

Alhamdulillahi alladhi yuhibbu l-tawwabina wa yuhibbu l-mutatahhirina wa l-salatu wa l-salamu 'ala Muhammadin al-qa'ili isna'u kulla shay'in illa l-nikaha wa 'ala alihi wa sahbihi wa l-tabi'in.

Allahumma hidayatan li-s-sawab!

!!Tanbih!! The following answer was written for someone I assumed to be an intermediate student of fiqh in mind and therefore should be used to navigating in Arabic and/or skipping back and forth between the parenthetical detail of the qualified and sometimes explanatory clauses in the form of 'brackets' found throughout our yellow books; I therefore seek forgiveness from Allah for butchering the accepted norms of modern English punctuation and if it turns out to be too technical for some and if it falls short of being beneficial to others and ultimately, if it fails to be a useful exercise for students.

All the right answers pertaining to your various queries are here. If you read them carefully, and make time to understand them, you should not have to ask further, in sha' Allah. A number of your questions appear to be somewhat hypothetical and lacking the relevant details (in particular, questions III and IV) as if it were posed by a troubled student, instead from the suffering patient. It would be preferable for the mustafti to use detail (insofar as all the relevant dates are mentioned). Our method has always been to give a short example (in the form of the tables below), but one that is detailed albeit containing only the necessary elements for the purposes of teaching the furu' (and that is how our legal books preserve the School's tradition of teaching, and that is why the same old topos and examples always seem to find their way around our manuals, which might appear 'monotonous' for the modern reader). And because fatwas and responsa should always be based on something that have actually taken place, the questions posed should likewise be based on something that have happened and not on what might happen. There is hikma to be gained from this medieval method of sitting on the shoulders of giants [Bernard of Chartres': "quasi nanos gigantum umeris insidentes"], as the baraka and story of our Mujtahid Imam's own Istiqra' and his real-life surveys on things Mahid show, al-hamduliLlah!

 

I. As for: "In her book, she says that if the fetus was 40 days old or less, then the miscarriage is considered a menstrual period and treated like one. If the fetus was older, then the blood, etc. after it is considered Nifas."

I am not familiar with the author of the book mentioned nor is the book studied in a typical Shafi'i madrasa, but yes, the author of Fiqh al-'Ibadat 'ala al-Madhhab al-Shafi'i (originally published in Damascus in 1975) is correct because the 'illa and the legal basis of what the author said - "if the fetus was 40 days old or less, then the miscarriage is considered a menstrual period and treated like one" - is based on the case of a miscarriage [isqat] happening during the Nutfa stage (i.e. normally, during the first 40 days of pregnancy as the Prophet himself may Allah's blessings and peace be upon him!) specified in the famous Hadith of Ibn Mas'ud (may Allah be well pleased with him!) which is related by al-Shafi'i, Ahmad, the Famous Six except al-Nasa'i, and many others (may Allah be pleased with them all!), and is the fourth Hadith in the Arba'in Nawawiyya).

The asl [basic question] of this mas'ala [legal case] revolves around the consideration of whether a 'delivery' [Wilada] has taken place or not. Whereas the statement 'if the foetus is older' refers either to the least developed stage of Mudgha (mudgha - and not 'Alaqa as specified in the Hadith - is the technical term adopted by our fuqaha' to mean that which comes out during pregnancy after 40 days; therefore the earliest Mudgha stage of the fuqaha' does include the 'Alaqa stage of the Hadith) or the more advanced stages of pregnancy and so on, which, according to our school, as well as the Hanbalis (as opposed to the Hanafis, for instance) means that what comes out after 40 days can be considered to be either the child [walad] or the foetus [janin] or at its bare minimum, the human flesh [lahm Adam], even if the latter is still in embryonic form or is not fully developed yet [al-Nawawi, Majmu', 2:490; Amin Kurdi, Tanwir, 118-9; al-Turmusi, Mawhiba, 1:554; cf. al-Nawawi, Rawda, 7:373 (what al-Nawawi meant by 'alaqa in the Rawda is the Nutfa-to-'Alaqa blood)]. ('Walad' is used technically here by our jurists in its most abstract sense to mean: that which the mother carries in her womb, whether dead or alive, perfect or defective in form, (which is) in one or in several parts, immature or mature (i.e. it becomes mature after having reached the point of Nafkh or the 120 days of pregnancy)).

If in the extreme borderline case, during the pregnancy week of somewhere in and around the 40th day, the miscarried foetus is not fully developed yet (and because of the resulting shubuhat it will cause as to whether it should be considered a delivery or not, and by extension, whether Nifas will therefore be possible or not), then our school requires two or more midwives [qawabil] or their equivalents, to judge whether the undeveloped foetus [mudgha] is the beginning of a human form or is human flesh. If it is neither, then what came out is only dam [blood: and it can be either Hayd or Fasad depending on whichever conditions are fulfilled]. So even in its most premature and still undeveloped state, as long as the expert witnesses agree that the mudgha that came out is indeed human flesh, then this will be legally considered a delivery by the school (which for the benefit of fiqh students, is the sabab [legal reason] for Nifas, therefore the bleeding that occurs following the delivery cannot be Dam Hayd or even Dam Fasad). (It goes without saying that the considerations of miscarriage here will also meet the shart [condition] of delivery as required in Bab 'Idda for the wife to be considered a mother (i.e. acquiring the legal status of umm al-walad.))

Now, because the legal terminology of Nifas for the Shafi'is is: "ad-damu al-khAriju ba'da l-waladi" [the bleeding occurring AFTER the delivery (not during or before it)], then only when there is an additional bleeding following the miscarriage or 'delivery' (but not during the delivery itself), even if for a moment [lahza/sa'a] or a drop [majja], then, she would have started her Dam Nifas (provided that the period of purity or non-bleeding between the point of the total completion of the walad's delivery, on the one hand, and the subsequent bleeding on the other, does not exceed, according to the Qawl Asahh, 15 days and nights). (While, and I may be wrong here, the Hanafis do not consider Nifas for miscarriages that occur before 120 days of pregnancy.)

Do not confuse however, the author's '40 days' here, either with the well known 'normal' or 'expected' [ghalib] 40 days period of Nifas that our jurists mentioned, or even with entertaining the idea that '40 days' there refers to the maximum limit of Nifas (which incidentally is not the position of our school but of the Hanafis). What is meant by our author here regarding '40 days' is the duration of the pregnancy itself and NOT the duration of the Nifas (of course, as it is also the answer to the following question below: the first day of Nifas is counted from the day when the walad is completely out of the womb); because it seems to me, from the statement below in your last question, "before 40 or 60 days have lapsed", that you might here be confusing the two 40-days.

 

II. Unfortunately, the following two questions are somewhat sloppy if written by a student of fiqh (the two questions are in fact alternatives of the same issue and only one of them can be right): "1. Does the woman begin counting her days from the first day that she began spotting (even if it was a drop or small spots off and on)? 2. Or does she begin counting her days from the day she had the surgical procedure (D&C) to remove the rest of the tissue, etc. from her uterus?"

This mas'ala, strictly speaking, is no longer related to the above genuinely difficult issue students normally face. Instead, this issue deals with the simple question in Bab Nifas of when should one begin counting the 'period' or 'day(s)' of Nifas? The answer is, as I have alluded to above (and one can easily find this in any one of our basic manuals such as Imam al-Bajuri's Hashiya to Fath al-Qarib [1:111]): certainly not with the first of the alternatives you provided but that the period of Nifas is counted using the second alternative (i.e. the point when ALL of the walad (including its separated parts, if applicable, for example) is successfully out of the mother's womb, even if no Dam Nifas has occurred yet).

 

III. I am afraid that the third question is not at all clear to me (and the qualification "OR" made there does not help) and this is more likely a result of the student not understanding the rules of Nifas properly: "3. If the fetus was app. 63 days old at the time the spotting began [I am sorry but this is completely unintelligible: what is 'spotting' here and above?], OR if it was about 70 days old at the time the remaining tissue, etc. was removed via surgical procedure, is it considered as a period [Hayd] or as a nifas?"

I take it that 63 and 70 days here refer to the days of pregnancy (and not the days of Nifas) and that the miscarriage or 'delivery' occurred on those respective days (but why 63 OR 70 and why not 63 AND 70?): if I am reading you correctly (reading OR), then you are drawing a superficial alternative between these two choices. The question of whether it will be Hayd or Nifas in this case is no more to do with considering the number of days of pregnancy (because it has passed 40 days) - but rather, it is the consideration of the number of days that separate the first bleeding which usually occurs during the delivery [i.e., the Dam Hamil] and a future second bleeding, (which is the expected Dam Nifas), whether interrupted by a period of purity or not. If 63 and 70 days here do refer to the days of pregnancy and the respective days in which the walad came out completely, then on what day did the 'spotting' (or in other words, the second bleeding) begin? (However, if by 'spotting' you mean the bleeding occurring as a result of the delivery itself and maybe even slightly before it (and that the bleeding stops so there is no other bleeding involved in this scenario), then I have been making a fuss about nothing, since in this case the respective bleedings are of course Hayd, if it is more than 24 hours.)

I hope you can see for yourself the many problems arising from this question, because among the basic rules of Nifas to be learnt in our fiqh is that the blood that accompanies the walad during the delivery (if there is any) is NOT Nifas, and that this blood, the Dam Hamil, is either Dam Hayd or Dam Fasad (if it fulfils all the conditions of Hayd it is Hayd, and if not, it is Dam Fasad). (The same criteria of distinguishing between a Hayd from a Dam Fasad also applies also to any bleeding that occurs before the delivery, that is to say, during the pregnancy. Indeed, medical students may find it absurd if they hear Shafi'is saying that there can be 'menstruation' during pregnancy; even when it makes medical sense to consider the pregnancy-bleeding as a 'Dam Fasad' so to speak. Legally however, our jurists may treat this pre-and-upto-delivery bleeding as Hayd (if all the conditions of it are fulfilled), and if so, one has to observe the consequences of being in the state of Hayd, which is the point of this whole exercise). On the other hand, Dam Nifas starts only after Dam Hamil, provided that this second bleeding occurs within 15 days and nights of the delivery; it is this new bleeding that is the period of Nifas.

So, I have tried my best but I cannot really answer your question because it is not altogether clear what you meant by 'spotting'. Again, if by 'spotting' you mean the blood that came out together with the walad during the delivery, or before it whether on the 63rd or the 70th day of pregnancy, then this is undoubtedly Dam Hayd or Dam Fasad. If instead, by 'spotting' blood you intended - but forgot to specify - a future time AFTER the delivery (by my estimation from your current question, and if we replace the "OR" there by "AND": the day the delivery is finally completed will be from the 70th day of pregnancy (and therefore the counting of the day of delivery begins from this point onwards and only then can Nifas begin) and from the previous question II, we now know that the 63rd day cannot in any case be the first day of Nifas) - but before reaching the 15th day of delivery - then, the bleeding starting from that unspecified day is the beginning of the period of Nifas (even when it might not be counted as the first day out of the 60 maximum days of Nifas (if it does not fall on the same day as the delivery), since the maximum number of days of (what the) Nifas is, is counted from the point of the successful Wilada and not from the first day of the bleeding of Nifas). So if the delivery occurs on the 1st of Ramadan and only from the 5th did she begin to bleed, then the 60 days and nights will be completed from the 1st of the month (and not from the 5th). While the hukm of her Nifas begins when she started bleeding on the 5th, so that during the period between the Wilada and the Nifas, she is considered pure, which means that she must (Wajib) perform the Ghusl for Wilada and thereafter perform the usual 'ibada; and that all of her fasting and prayers done during this period of purity is completely valid [Sah Haqiqi] and there will be no need for her to make any Qada' later (unlike in the case of Naqa' interrupting Hayd or Nifas below).

 

IV. Finally, as for your: "4. If it is considered nifas, and she passes the last of the colored tissue, mucus, etc. and then begins her *regular, normal* menstrual period before 40 or 60 days have lapsed, is that period considered part of nifas, or is it acknowledged to be a new, normal menstrual cycle?"

There is Tafsil and further details arising from this rather general and unspecified question. However, in order to best answer this question, it would be worthwhile for us to be reminded of the limits and days of the Nifas (that the 'awamm or the ordinary person must know):

Maximum: 60 days and nights

Normally: 40 days and nights (Hence, the '40 days' limit found in this last question is not a legal mahdud, for it is legally superfluous or of no consequence. Alas, I hope you can clearly see why the '40 days' of question IV is totally different from the '40 days' talked about in question I.)

Minimum: a moment

(It is taken for granted here that the student already knows that all activites unlawful for someone in a state of Janaba are unlawful for someone bleeding in a Nifas period, just as it would be for someone bleeding in a Hayd period, and that the women in both these states must (Wajib) observe Tarabbus [abstinence from the various 'ibadas that require complete ritual purity].)

The Tafsil:

A. Assuming that the woman has fulfilled the conditions of Nifas and she is in Nifas: if within 60 days and nights the non-bleeding is for 15 days or more, and another bleeding begins again, then the second bleeding is Dam Hayd (as long as it meets the conditions of Hayd, namely that this bleeding in turn does not exceed 15 days and nights and that it is more than 24 hours, if not, it is Dam Fasad). [al-Bajuri, Hashiya, 1:111]

B. Assuming that the woman has fulfilled the conditions of Nifas and she is in Nifas: if within 60 days and nights, the non-bleeding does not reach 15 days, and another bleeding begins again, then the second bleeding is still Dam Nifas (as long as the total days of bleeding + period(s) of purity (i.e. technically known as the Naqa period(s)), together, do not exceed 60 days and nights; counted from the point when the delivery of all of the walad is completed and successfully out (whether dead or alive). [ibid.]

So therefore, just as in the case of Hayd, whenever the first Nifas bleeding stops (i.e. the Naqa' [a period of non-bleeding after a given bleeding]) before reaching the maximum limit of its period (i.e. 60 days in this case), then it is Wajib for the woman to perform Ghusl, offer Salat and fast Ramadan. If then there is a second bleeding after the Naqa', as in Tafsil B, then just like in the case of Hayd, tarabbus is to be observed again during this second bleeding, and that now, any salat/sawm done during this Naqa' period - zadahaLlahu hirsan - is not valid and there is no blame/sin. Rather, they will be rewarded for their takbirs, tasbihs, and the adhkar performed during their now defunct prayer. Nevertheless, there is no need to qada' the salat but only the fast. This is the Qawl Mu'tamad of our school (following Qawl Sahb [the applicable position] instead of Qawl Laqt/Talfiq [the accumulative position]). Whereas in Tafsil A, the Nifas period has actually come to an end when the Naqa' begins and that this period of purity is instead a real one (for it acts as the separation, between Dam Nifas and Dam Hayd/Fasad); the second bleeding which occurs is the start of a completely new period of, and this time, the Hayd/Fasad.

(Assuming that in all of the examples below, the day of delivery is on the 1st of Ramadan.)

Example of Tafsil A:

Bleeding: 20 days
Non-bleeding: 15 days
Bleeding: 10 days

Sequence = Delivery with bleeding, 20 days tarabbus, then 1 Ghusl Janaba (for both Wilada and Nifas), then 15 days of purity, then 10 days of tarabbus, then 1 Ghusl Janaba (for Hayd).

Delivery = Single delivery with bleeding, and continuing into Nifas
Tarabbus = 30 days
Ada' = 0 days
Purity = 15 days
Nifas = 20 days (20 + 0)
Hayd = 10 days (10 + 0)
Istihada = 0 days
Ghusl Janaba = 2
Qada' Salat = 0
Qada' Fast = 20 days

Example of Tafsil B:

Bleeding: 10 days
Non-bleeding: 5 days
Bleeding: 25 days
Non-bleeding: 10 days
Bleeding: 10 days

Sequence = Delivery with bleeding, 10 days tarabbus, then 1 Ghusl Janaba (for both Wilada and Nifas), then 5 days of purity, then 25 days of tarabbus, then 1 Ghusl Janaba (for Nifas), then 10 days of purity, then 10 days of tarabbus, then 1 Ghusl Janaba (for the second Nifas).

Delivery = Single with bleeding, and continuing into Nifas
Tarabbus = 45 days
Ada' = 0 days
Purity = 15 days (5 + 10 during the days of Nifas)
Nifas = 60 days (10 + 25 + 10 between 15 days of purity)
Hayd = 0 days
Istihada = 0 days
Ghusl Janaba = 3
Qada' Salat = 0
Qada' Fast = 29/30 days (depending on the new moon of Shawwal)

 

=Jumla=

A. If the miscarriage occurred after the 40th day of pregnancy, or more accurately, if what came out is confirmed to be human flesh and is not merely blood, and if the bleeding after the delivery starts during the first 15 days and nights of the delivery, then she will be in Nifas. If, apart from the bleeding occurring during the delivery, there is no bleeding at all within the first 15 days of the delivery, then there is no Nifas whatsoever. If the bleeding occurs only on the 17th day after the delivery, for example, then according to the Qawl Asahh, the woman is in Hayd (if all its conditions are met, if not, it is Dam Fasad).

B. If on the other hand, the miscarriage occurred early on in the pregnancy, such as on the 20th day of pregnancy, then the bleeding can only be either Dam Hayd or Dam Fasad (depending on whichever conditions are met) and if the bleeding ends up exceeding 15 days and nights, she will then be considered a Mustahada (so look therefore under Bab Istihada), but at any rate, during the Nutfa stage, she certainly cannot be in Nifas.

 

++Fa'ida++ The following are some comforting prophetic traditions related by Shaykh Jibril Haddad [a.k.a. al-Hajj Gibril Haddad] (may Allah reward him!) [my comments are in square brackets below]:

 

The least we should have learnt from our exercise is that formulating the questions correctly will help us understand the right answers; so all you have to do now is to adjust your questions appropriately so you may be rightly guided!

May this be of benefit,

O Allah, we seek your divine wisdom and protection for the next 40 days and nights, wa-ila akhiri!

al-haqir wa l-da'if,

Muhammad Afifi al-Akiti ©
Oxford
28 Dhu l-Hijja 1424
19 II 2004.

Select Bibliography:

Amin al-Kurdi. Tanwir al-Qulub fi Mu'amalat 'Allam al-Ghuyub. Edited by Najm al-Din Amin al-Kurdi. Cairo and Surabaya: al-Hidaya, 1383 H.

al-Bajuri. Hashiya 'ala Fath al-Qarib. 2 vols. Bulaq, 1288 H.

Ibn Nasir al-Din. Bard al-Akbad 'an Faqd al-Awlad. Edited by 'Abd al-Jalil al-'Ata al-Bakri. Damascus: Dar al-Basha'ir, 1992.

al-Nawawi. al-Majmu' Sharh al-Muhadhdhab. Edited by Mahmud Matraji. 22 vols. Beirut: Dar al-Fikr, 1996.

al-Nawawi. Rawdat al-Talibin wa-'Umda al-Muftin. Edited by 'Abdullah 'Umar al-Baduri. 10 vols. Beirut: Dar al-Fikr, 1995.

al-Turmusi. Mawhibat Dhi al-Fadl Sharh Muqaddimat Bafadl. 4 vols. Cairo: al-Babi al-Halabi, n.d.