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Background reading material by Professor Omar Hasan Kasule Sr. for Year 2 Semester 2 PPSD Session on 2nd April 2007
1.0 DIAGNOSIS OF PREGNANCY
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 for waiting three months is to ensure that the wife is not pregnant. We however do not know the wisdom, hikmat, behind the ordaining of ‘iddat. Any vaginal bleeding during pregnancy is treated as DUB and is not a reason for stopping salat or puasa.
2.0 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. These include delivery after divorce with disputed parenthood and accusation of zina. Bleeding or spotting in early pregnancy 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. The ancient jurists had set the minimum period for gestation as 6 months. The legal minimum period of gestation is getting shorter because pre-mature babies can now survive due to advanced medical technology. There is a need to review the legal minimum duration of pregnancy in view of modern medical knowledge and the availability of sophisticated diagnostic procedures.
3.0 PHYSICAL ACTS OF IBADAT
Standing up, bowing, prostration, 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. Bleeding in early pregnancy and the bleeding of threatened abortion are not considered haidh. Post abortal bleeding is considered nifaas. A pregnant woman may be excused from fasting. 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
4.0 OTHER PHYSICAL ACTIVITIES IN PREGNANCY
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. There is no ruling against breast-feeding in pregnancy. It is a medical necessity since breast milk is the best food for a baby.
5.0 LEGAL PROCEEDINGS IN PREGNANCY
A pregnant woman can be divorced but cannot be forced out of her house until after delivery. Legal punishments cannot be carried out in pregnancy until after delivery and suckling of the baby.