Nasai

(1) The state of menstruation (hayd) is a condition of foul odor and impurity. Sexual intercourse (jima‘) is prohibited during this period; therefore, in such a state, a man does not feel inclined toward his wife. It is possible that someone may hasten to pronounce divorce (talaq) in this condition, so the Shari‘ah has prohibited giving divorce during this period. If someone commits this mistake, then he must perform revocation (ruju‘); however, the divorce will still be counted, whether he revokes or not. But if it is not the third divorce, the marriage will not be terminated. If it is the third, then revocation will not be permitted and the marriage will be terminated.

(2) It is understood that the correct time to give divorce is during a period of purity (tuhr) in which no sexual intercourse has taken place.

It is understood that giving divorce (talaq) during pregnancy (haml) is also permissible, although generally divorce is not given in such a state.

(1) [فِي قُبُلِ عِدَّتِهِنَّ] According to the recitation (qira’ah) of Abdullah ibn Umar and Abdullah ibn Abbas, this phrase is part of the first verse of Surah at-Talaq; that is, they would recite it in place of “li-‘iddatihinna.” However, this recitation is shaadh (anomalous), yet this phrase is authentically established as marfu‘ (attributed) from the Prophet (sallallahu alayhi wa sallam) and is a proof by which the meaning of the verse is determined; that is, when you intend to divorce women, then divorce them at the beginning of their waiting period (‘iddah), meaning in a state of purity (tuhr).

(2) Since the waiting period (‘iddah) is counted from menstruation (hayd), therefore, by divorcing in the state of menstruation, the ‘iddah cannot properly begin. If they count the menstruation, the ‘iddah will be shortened, and if they do not count it, the ‘iddah will be prolonged. Therefore, divorce should be given in a state of purity (tuhr) so that the ‘iddah can begin from menstruation (hayd).

“Returned it” means that this divorce was not considered valid according to the Shari‘ah, and the command was given to take her back. This does not mean that the divorce was not regarded as valid or that it was not counted, as some people have argued.

Urdu footnote:
"He has disobeyed"—that is, by issuing a divorce during the state of menstruation (hayd), but the divorce will still take effect. Since this is the third divorce, therefore, there will be a permanent separation between them.

“When she becomes pure”—in other narrations, it is explicitly stated that she should become pure, then menstruate again, then become pure; now, if he wishes, he may divorce her, or if he wishes, he may keep her. And this intermediate period of purity (tuhr) is for practical reconciliation (ruju‘). During menstruation (hayd), only verbal reconciliation is possible. (For further details, see Hadith: 3418)

The consensus of the majority of scholars is that although divorce during menstruation is sinful and prohibited, and it is necessary to revoke it (i.e., to take the wife back), such a divorce will still be counted as one divorce. Two further divorces remain. However, some researchers have declared such a divorce null and void, because it is necessary to revoke it, and also because the Messenger of Allah (sallallahu alayhi wa sallam) could not have advised Ibn Umar (radi Allahu anhu) to issue two divorces instead of one. Intellectually, although this view appears strong, the wording of the relevant hadiths, the statements of the Companions and Followers, as well as the positions of the hadith scholars and jurists, are contrary to it. Only a few isolated individuals have adopted this view. Allamah Ibn Taymiyyah (rahimahullah) holds this rational position. And Allah knows best.

The consensus of the majority of scholars is that a divorce (talaq) given during menstruation (hayd), although not permissible, will still be counted. The greatest evidence in this regard is the statement of Ibn Umar radi Allahu anhu himself, that my divorce was counted as one: "Husibat alayya bi talaqatin" ("It was counted against me as one divorce"). Similarly, the fact that the Prophet sallallahu alayhi wa sallam instructed him to take his wife back (ruju‘) and to wait for a period of purity (tuhr) in between also supports this position. If the divorce had not actually taken effect, then what would be the meaning of taking her back and waiting for a period of purity? In the aforementioned narrations, Ibn Umar radi Allahu anhu also gave this same fatwa to his students; therefore, this is the correct position. The opinion of Imam Ibn Hazm and Shaykh al-Islam Ibn Taymiyyah rahimahullah on this issue is rare (shadh).

(1) The related issue has already been clarified earlier: that after a divorce given during menstruation (hayd), it is necessary to take her back (ruju‘); then, when the second menstruation comes and the woman becomes pure and performs the ritual bath (ghusl), he may divorce her without having intercourse.

(2) "Leave her in her state"—that is, do not divorce her.

Explanation:
1:
That is, if in the case of being unable to take her back (raj‘ah) or in the case of becoming insane or mad, this divorce is counted, then after taking her back (raj‘ah) it will certainly also be counted.
From this hadith, it is understood that a divorce given during menstruation (hayd) will take effect, because if it did not take effect, then the Prophet’s (sallallahu alayhi wa sallam) statement “Command him to take her back” would be meaningless.
This is the position of the majority (jumhur) that although giving divorce during menstruation is forbidden (haram), the divorce will still take effect, and the command will be given to take her back (ruju‘).
However, the Zahiris (Zahiriya) hold the view that divorce does not take effect.
Ibn al-Qayyim (rahimahullah) has discussed this at length in Zad al-Ma‘ad and has established that the divorce will not take effect.
The wording of one narration in Abu Dawud (no. 2185) is: “He did not consider it anything.”
The cautious approach is that, in the matter of divorce during menstruation, the Zahiri position should be adopted so that divorce does not become a plaything.

Hadith Commentary: Benefits and Issues: From this hadith, it is understood that it is permissible to give divorce even after relations in the case of pregnancy. Al-Himam Hanafi, Abu Ishaq Shirazi, and Ibn Qudamah Hanbali have adopted this view. However, according to some Malikis, it is not permissible to give divorce during pregnancy.

Hadith Commentary:
Vocabulary of the Hadith:
Aṭ-Ṭalāq:
If this is from the form (n. k), then its meaning will be the woman’s separation or becoming distinct. And if it is from the causative form (taf‘īl), then its meaning will be the husband releasing the wife from the bond.

Benefits and Issues:
Among the Jews, divorce can only be given in writing, and after divorce, the woman can marry anyone, but under no circumstances can she ever become the wife of her first husband again. The husband has complete freedom to give divorce, but now some restrictions have been imposed.

According to the original religion of the Christians, a man cannot divorce a woman under any circumstances. But now, the issue of divorce among Christians has become a child’s play; both men and women can divorce each other over trivial matters. And in the southern regions of India, most people have now accepted the concept of divorce, and its beginning has also occurred in the northern region.

According to the religion of Islam, in unavoidable circumstances, the husband may give one divorce (ṭalāq) in the purity (ṭuhr) during which he has not approached his wife, but the wife does not have the right to give divorce. If the husband wishes to divorce, he should give only one divorce in the state of purity, and then if he does not take her back (rujū‘), the woman will be separated from him after the waiting period (‘iddah: three menstrual cycles, or delivery of a child, or if menstruation does not occur, then three months).

Some people, without taking her back, give one divorce in every purity, thus completing three divorces; this is against the command of the Noble Qur’an:
﴿فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ﴾ .
It is not permissible to give three divorces at once. Likewise, it is not permissible to give divorce during menstruation. If divorce is given during menstruation, then according to Imam Malik rahimahullah, the Hanafis, and Dawud al-Zahiri, it is obligatory to take her back (rujū‘), and one narration from Imam Ahmad rahimahullah is also the same. According to Imam Shafi‘i rahimahullah, taking her back is recommended (mustahabb), and this is the preferred view among the Hanbalis.

Similarly, if the husband gives divorce in every purity, then according to the majority, the divorce will take effect, because she is not yet completely free from the husband’s bond.

Hadith Commentary:

Benefits and Issues:
➊ If the divorce (talaq) is given during the first or second menstrual period (hayd), then since it is possible to take the wife back (ruju') after these, the husband will have to perform ruju'.
➋ However, if the third divorce is given during menstruation (hayd), then after the third, there is no possibility of ruju'. Therefore, although this is a crime and a sin, he will not be able to take her back (ruju'), and his wife, after the completion of her waiting period ('iddah), will marry someone else.
➌ He will not be able to marry her again.

Hadith Commentary: Benefits and Issues: Except for Imam Layth, the general narrators have overlooked the number of divorces that Ibn Umar radi Allahu anhuma gave, and some have mistakenly considered it to be three. However, Imam Layth neither overlooked it nor made a mistake; rather, he correctly remembered the number and mentioned it.

And the Prophet sallallahu alayhi wa sallam did not permit giving divorce (talaq) in the period of purity (tuhr) after menstruation (hayd), so that it would not be assumed that the return (ruju‘) is only for the purpose of giving divorce, and it is also possible that by staying together for a period, mutual love and affection may develop, and due to improved circumstances, the need for divorce may not arise.

It is also possible that this is as a punishment for the crime and sin of giving divorce during menstruation (hayd). Therefore, according to Imam Abu Hanifah rahimahullah and Imam Shafi‘i rahimahullah, it is not permissible to give divorce in the period of purity (tuhr) immediately following menstruation.

However, according to the Malikis and Hanbalis, it is preferable (mustahabb) but not obligatory (wajib).

And this is also the opinion of Imam Tahawi rahimahullah, and according to the majority (jumhur), it is not permissible to give divorce in the period of purity (tuhr) in which intimacy (qurbat) has occurred.

Hadith Commentary: Benefits and Issues: Ibn Umar radi Allahu anhu and Ibn Abbas radi Allahu anhu, for the explanation and clarification of (li-‘iddatihinna) [], would instruct their students with (qubuli ‘iddatihinna) — thus, this word is for the purpose of explanation; it is not a part or portion of the Qur’an. Therefore, Ibn Mas‘ud, for the sake of explanation, would recite it as (qubuli) (at the beginning of the period of purity).

Benefits and Issues:
(1)
Allah Ta'ala has made the bond of marriage permanent, meaning that marriage is contracted with the intention of spending the entire life together. To make this relationship enduring, Allah Ta'ala has revealed many rulings and etiquettes, some of which are as follows:

(a)
At the time of marriage, it is commanded to seek a righteous, religious wife. (See Hadith: 1858)

(b)
The relationship of marriage is not made individual but collective, meaning it is not just a connection between a man and a woman, but a relationship established between two families. For this purpose, rulings such as the permission of the woman's guardians, the presence of witnesses, and the invitation of the wedding feast (walimah) have been prescribed.

(c)
The woman is commanded to obey the man, and the man is commanded to bear the mistakes and shortcomings of the woman. (See Hadith: 1851, 1853, 1855, etc.)

(d)
For the reformation of the woman, instead of immediately resorting to harshness, a gradual method of correction has been suggested, i.e., verbal advice and admonition, expressing displeasure, separation in bed, and finally, a light physical punishment. (al-Nisa, 4:34)

(e)
If matters deteriorate to such an extent that intervention by others becomes necessary, then arbitration, i.e., the method of a council, is prescribed, where the complaints of both the man and the woman are heard, the one at fault is advised, and reconciliation is effected. (al-Nisa, 4:35)

(f)
If divorce becomes necessary, instead of ending the relationship all at once, it is commanded to give a single revocable divorce (talaq raj‘i), after which there remains the possibility of restoring the relationship.

(g)
It is prohibited to give divorce during menstruation (hayd) or in the purity (tuhr) in which intercourse has taken place. The purpose of this is also that if there is temporary anger, it may subside, and if separation is decided, there is an opportunity for reflection, thus increasing the chances of maintaining the relationship.

(h)
Even after the second divorce, permission for reconciliation (ruju‘) has been granted.

(i)
After the third divorce, the right of reconciliation is not kept, so that the man gives this divorce with full consideration, knowing that after this, there will be no way to restore the relationship.

(2)
If divorce is given during menstruation or in the purity in which intercourse has taken place, this is an incorrect method of divorce, which in the terminology of the scholars is called "innovated divorce" (talaq bid‘ah) or "bid‘ah divorce." There is a difference of opinion regarding whether such a divorce takes effect or not; many scholars hold that it does take effect, but consider the one who gives divorce in this manner to be sinful. Other scholars say that this divorce does not take effect at all because it was not given according to the Sunnah. Imam Ibn Hazm and Imam Ibn Taymiyyah rahimahum Allah, among others, hold this view. (Hashiyah Sunan Ibn Majah, by Nawab Waheeduz Zaman Khan)

Benefits and Issues:
➊ The Prophet (sallallahu alayhi wa sallam) commanded to take her back. From this wording, it is deduced that the divorce had indeed taken effect, because taking back (ruju‘) only occurs after a divorce. Those scholars who do not accept that this divorce took effect interpret it to mean that marital relations should be re-established as they were before.

➋ The meaning of “if he is incapable” is that if he does not know the correct way to give divorce, and he has acted foolishly, then what could be the consequence of this? Another interpretation is that divorce is still divorce—it has indeed occurred; or it means that since he was unable to give divorce in the correct manner, it is as if he did not give it at all. Imam al-Bukhari rahimahullah has stated the meaning that the divorce has taken effect. (: Sahih al-Bukhari, Book of Divorce, Chapter: If a woman is divorced during menstruation, she must observe the waiting period for that divorce, Hadith: 5252) This meaning is the most correct.

Benefit:
When pregnancy becomes apparent, divorce can be given.
There is no need to wait until childbirth, because in this case there is no doubt regarding lineage.
In this situation, the waiting period (‘iddah) of the woman is until childbirth, during which the man can take her back (perform ruju‘).

Benefits and Issues:
Divorce during the days of menstruation (hayd) is contrary to the Sunnah, but it will still be counted.
It is neither futile nor invalid (for details, see: Irwa’ al-Ghalil, Hadith: 2059).

Benefits and Issues:
➊
Divorce during menstruation is in clear contradiction to the Sunnah, but if someone does give it, there have been two opinions among the earlier and later scholars regarding whether it takes effect or not, and on both sides there are groups of eminent scholars, jurists, and hadith scholars—radi Allahu anhum wa ardaahum. Among the later scholars, especially Imam Ibn Taymiyyah and his distinguished student Imam Ibn al-Qayyim rahimahullah, are of the strong opinion that such a divorce is invalid, whereas the majority hold that it does take effect. Imam al-Bukhari rahimahullah has established a chapter in al-Jami‘ al-Sahih: (If you divorce women during their menstruation, that divorce will be counted), and there are lengthy discussions on this topic, centered around the incident of the divorce of Ibn ‘Umar radi Allahu anhu. He says, “It was counted against me as one divorce” (Sahih al-Bukhari, Book of Divorce, Hadith: 5253). And another phrase which is in our narration: (wa lam yaraha shay’an) “and he did not consider it anything” or “did not count it as anything.” But this phrase is not an explicit text for non-counting. As Imam al-Shafi‘i or other hadith scholars and jurists have considered it to be open to interpretation, meaning its implication could also be that the Prophet sallallahu alayhi wa sallam did not consider the act correct or valid, or did not consider it an impediment to taking her back, etc. The hadith scholar of our era, Shaykh al-Albani rahimahullah, after comparing the chains and texts of various hadiths on this subject, has concluded that divorce during menstruation does take effect, although there is no doubt that it is against the Sunnah.

➋
If divorce was given during menstruation and then the husband took her back, should the next divorce be given in the immediately following period of purity (tuhr) or in the one after that? Imam Abu Dawud rahimahullah, by presenting several corroborating narrations and supporting evidence for this hadith, has established that divorce can be given in the immediately following period of purity, i.e., before intercourse. But in the narration of Nafi‘ and al-Zuhri, it is mentioned that Ibn ‘Umar radi Allahu anhu was commanded to divorce or retain her in the second period of purity. And this addition is from a trustworthy narrator, which does not contradict the first scenario, so it is acceptable. And there were several wisdoms behind this delay: (a) It would become clear that this taking back was not merely for the sake of issuing a second divorce. (b) It would be clear to the woman in what state she was divorced—during purity or pregnancy. (c) If pregnancy became apparent, perhaps the husband would hesitate to give divorce.

➍
And from this delay, it is also possible that the discord arising in the minds may turn into harmony, and the husband may formally take her back as his wife.

➌
(wa al-ahadith kulluha ‘ala khilaf ma qabila Abu’l-Zubayr) “And all the narrations are contrary to what Abu’l-Zubayr has reported.” The author of ‘Awn rahimahullah has taken this to refer to the phrase (wa lam yaraha shay’an), meaning that Abu’l-Zubayr is alone in narrating this phrase.

Hadith Commentary:
In jurisprudential terminology, a valid (shar‘i) divorce is that which is given during three periods of purity (tuhr), that is, in a state of purity when the woman is not menstruating. In this manner, if a man gives his wife three divorces over three consecutive months, then that woman is completely removed from his marriage, and under the verse (حَتَّى تَنْكِحَ زَوْجًا غَيْرَهُ) she cannot return to his marriage unless she marries another husband. These three divorces, which according to the prevalent custom a man pronounces three times in a single sitting to his wife and then seeks a legal verdict (fatwa), are, according to the scholars of Ahl al-Hadith, considered as only one divorce, and she can return to her husband during the waiting period (‘iddah). However, most Hanafi jurists consider them as three divorces and separate the woman from the man, and then prescribe the ruling of halalah (intervening marriage). Yet, those who arrange such halalah are cursed in the Shari‘ah.

This fatwa of the Hanafi jurists is, according to the scholars of Ahl al-Hadith, completely incorrect.

During his caliphate, ‘Umar radi Allahu anhu, due to political expediency, issued such an order which was merely temporary. The scholars who nowadays separate such divorced women in this manner should reflect on how much oppression they are committing against women in this way. May Allah grant them sound understanding (Amin).

Today, on the last day of Dhu al-Qa‘dah 1393 AH, this note was written in connection with the continuation of the Surah, by way of reference. Alhamdulillah, in December 1973, a joint fatwa of some Hanafi and Ahl al-Hadith scholars was published in the journal Nur al-Iman, which was written at the seminar held in Ahmedabad, in which a mutually agreed solution was reached.

Hadith Commentary:
1.
In one narration, it is stated that he should divorce her in a state of purity (tuhr) or in a state of pregnancy.
(Sahih Muslim, al-Talaq, Hadith: 3659(1471))
If a wife is divorced during her menstrual period (hayd), whether that divorce will be counted or not is a matter of disagreement among the scholars.
Our inclination is that such a divorce will be counted.

2.
Imam al-Bukhari rahimahullah has established a chapter in his Sahih with these words:
(Bab: If a menstruating woman is divorced, she will observe her waiting period (‘iddah) due to that divorce.)
(Sahih al-Bukhari, al-Talaq, Chapter: 2)
Some of the reports and indications regarding the counting of this type of divorce are as follows:
➊
The Messenger of Allah sallallahu alayhi wa sallam commanded Abdullah ibn Umar radi Allahu anhu to take his wife back (ruju‘), and ruju‘ always occurs after a divorce.
➋
In some chains of this hadith, it is mentioned that the Messenger of Allah sallallahu alayhi wa sallam said:
“The divorce you have given counts as one.”
(Sunan al-Daraqutni: 9/4)
➌
In one narration, the Messenger of Allah sallallahu alayhi wa sallam said:
“The divorce that he has given will be counted.”
(al-Sunan al-Kubra lil-Bayhaqi: 236/7)
➍
Abdullah ibn Umar radi Allahu anhu himself says that this divorce was counted against him.
(Sahih al-Bukhari, al-Talaq, Hadith: 5253)
Ibn Sirin says: I asked Abdullah ibn Umar radi Allahu anhu, “The divorce you gave your wife during her menstrual period, was it counted?” He replied, “Why would I not count it, even though I had shown weakness and foolishness?”
(Sahih Muslim, al-Talaq, Hadith: 3666(1471))
Al-Allamah al-Albani rahimahullah, after mentioning the various chains of this hadith, has established that a divorce given during menstruation will be counted.
(Irwa’ al-Ghalil: 133/7)
For more on this subject, refer to our fatwas in “Fatawa Ashab al-Hadith.”

Benefits and Issues
A divorce given to a menstruating woman takes effect, as:

❀ Nafi‘ rahimahullah narrates that Sayyiduna Abdullah bin ‘Umar radi Allahu anhuma divorced his wife while she was menstruating. Sayyiduna ‘Umar radi Allahu anhu asked the Prophet sallallahu alayhi wa sallam about this matter, so the Prophet sallallahu alayhi wa sallam said:
«مره فليرا جعها، ثم ليطلقها أو حاملا .»
“Order him to take her back, then divorce her while she is pure (not menstruating) or pregnant.” [صحيح بخاري : 5251، صحيح مسلم : 1471، واللفظ له]
↰ The wording of «فليرا جعها» clearly indicates the occurrence of divorce; if the divorce had not taken effect, then what would be the point of taking her back?

● Imam Bukhari rahimahullah titled this narration as follows:
“The statement that if a menstruating woman is divorced, it will be counted.”

↰ Further support for our position comes from the fact that:
❀ When Sayyiduna ‘Umar radi Allahu anhu asked the Messenger of Allah sallallahu alayhi wa sallam whether this divorce should be counted, he sallallahu alayhi wa sallam replied: “Yes.” [سنن الدارقطني : 5/4، سنن الكبري للبيهقي : 326/7، وسنده حسن]

❀ Also, Sayyiduna Ibn ‘Umar radi Allahu anhuma himself narrates that he divorced his wife while she was menstruating, and Sayyiduna ‘Umar radi Allahu anhu related this incident to the Prophet sallallahu alayhi wa sallam, who counted it as one divorce. [مسند الطيالسي : 68، مسند عمر بن خطاب لابن النجاد : 1، وسنده صحيح]

↰ The person involved, Sayyiduna Ibn ‘Umar radi Allahu anhuma, himself says:
“This was counted as one divorce for me.” [صحيح بخاري : 5253]

↰ The hadith narrator, ‘Ubaydullah bin ‘Umar al-‘Umari, says:
“The divorce that Sayyiduna Ibn ‘Umar radi Allahu anhuma gave to his wife during her menstruation was counted as one, even though this divorce was not in accordance with the Sunnah.” [سنن الدارقطني : 6/3، مسند عمر بن الخطاب، تحت حديث : 3وسنده حسن]

● Imam ‘Ata bin Abi Rabah [مصنف ابن ابي شيبة : 5/5، وسنده صحيح],
● Imam Zuhri [ايضا، وسنده صحيح],
● Imam Ibn Sirin [ايضا، وسنده صحيح],
● Imam Jabir Zayd [ايضا، وسنده صحيح],
● and all the hadith scholars and Imams of the religion rahimahullah considered divorce during menstruation to be effective.

Although divorce during menstruation is not in accordance with the Sunnah, the Messenger of Allah sallallahu alayhi wa sallam himself enforced it, so there remains no doubt about its occurrence.

❀ In Sunan Abi Dawud [2185], the wording is:
«فردها رسول الله صلى الله عليه وسلم، ولم يرها شيا . . .»
“The Prophet sallallahu alayhi wa sallam returned her to him and did not consider it (a Sunnah divorce).”
This means that the Prophet sallallahu alayhi wa sallam counted the divorce given during menstruation, but did not consider it preferable.

❀ In Sunan an-Nasa’i [3427], with an authentic chain, the wording is:
“When Sayyiduna Ibn ‘Umar radi Allahu anhuma divorced his wife while she was menstruating, the Prophet sallallahu alayhi wa sallam returned her to him (ordered him to take her back) until he divorced her while she was pure.”
↰ This means that after the first divorce took effect, he took her back, and then divorced her again while she was pure. In this way, all the narrations can be reconciled, because it is established from the authentic hadith and the statement of Sayyiduna ‘Umar radi Allahu anhu himself that divorce during menstruation is effective.

Takhrij al-Hadith: [واخرجه البخاري 5251، و مسلم 1471، من حديث مالك به]
Jurisprudential Points:
➊ It is not permissible to divorce a woman during her menstrual period (hayd), but if it is done, it is still counted.
Sayyiduna Ibn Umar radi Allahu anhu divorced his wife while she was menstruating with one divorce. [صحيح بخاري : 5332، صحيح مسلم : 1471، دارالسلام : 3653]
Sayyiduna Ibn Umar radi Allahu anhuma said: This divorce (which I gave to my wife during her menstruation) was counted as one divorce. [صحيح بخاري : 5253، صحيح مسلم : 1471، دارالسلام : 3658]
It is thus understood that divorcing a wife during her menstrual period is prohibited, but if it is done, the divorce is counted. It is clear that an innovated (bid‘i) divorce does take effect, even though giving such a divorce is wrong.
➋ Sayyiduna Ibn Umar radi Allahu anhu used to say: If a man divorces his wife (with one divorce), then she enters her third menstrual period, she becomes separated from her husband and the husband becomes separated from her. [الموطأ 2/578 ح1258، وسنده صحيح]
➌ No matter how great a scholar is, he is not free from error or slip.
➍ The Messenger of Allah sallallahu alayhi wa sallam said: «ابغض الحلال الي الله عزوجل الطلاق .»
Among the lawful things, the most disliked by Allah is divorce. [سنن ابي داؤد : 2178 وسنده حسن لذاته وأخطأ من ضعفه]
➎ If a person is unaware of a certain issue, he is not sinful, but after gaining knowledge, it is necessary to repent for previous shortcomings.
➏ The explanation of the Noble Qur’an is known from the authentic hadiths of the Messenger of Allah sallallahu alayhi wa sallam (and the reports of the pious predecessors).

Hadith Footnote:
So will that obligation be lifted from him? Never.

Hadith Commentary:
That is, after this, only the option of two divorces remained.
The four Imams and the majority of jurists have taken evidence from this and have said that when Ibn Umar (radi Allahu anhuma) himself says that this divorce will be counted, then what doubt remains regarding its occurrence.
We say that the mere statement of Ibn Umar (radi Allahu anhuma) cannot be a proof, because he did not clarify that the Messenger of Allah (sallallahu alayhi wa sallam) ordered it to be counted.
I (Waheed al-Zaman) say that Sa'id ibn Jubayr narrated this from Ibn Umar (radi Allahu anhuma), and Abu al-Zubayr narrated contrary to this.
Abu Dawud and others have reported that Ibn Umar (radi Allahu anhuma) did not consider this divorce to be anything, and al-Sha'bi said that according to Abdullah ibn Umar (radi Allahu anhuma), this divorce would not be counted.
Al-Abd al-Barr has reported this, and Ibn Hazm has narrated with a sound chain from Nafi', who narrated from Ibn Umar (radi Allahu anhuma) likewise, that this divorce would not be counted. And Sa'id ibn Mansur narrated from Abdullah ibn al-Mubarak, who narrated from Ibn Umar (radi Allahu anhuma) likewise, that he divorced his wife during her menstruation, so the Messenger of Allah (sallallahu alayhi wa sallam) said that this divorce is nothing.
Hafiz said that all these narrations support the narration of Abu al-Zubayr, and the narration of Abu al-Zubayr is authentic.
Its chain is according to the condition of Imam Muslim.
Therefore, the statement of Khattabi and Qastallani and others that the narration of Abu al-Zubayr is munkar (rejected) is not acceptable, and the statement of Imam Shafi'i that Nafi' is more reliable than Abu al-Zubayr and that Nafi's narration is that this divorce will be counted is not correct, because Ibn Hazm himself has narrated from Nafi' in agreement with Abu al-Zubayr.
(Waheedi)

Hadith Commentary:
There is a difference of opinion regarding the validity of a divorce given during menstruation—whether it takes effect or not. The majority of scholars hold the view that although giving divorce in this manner is contrary to the Sunnah, the divorce still takes effect.

In contrast, some scholars believe that a divorce given during menstruation will not be valid because it is contrary to the Sunnah, and any action contrary to the Sunnah is rejected.

Imam Bukhari rahimahullah’s position is in accordance with the majority of scholars: that a divorce given during menstruation does take effect.

The evidences for this are as follows:
➊ Ibn Umar radi Allahu anhuma himself says that the divorce was counted against me, as is explicitly stated in the above narration.
➋ The Messenger of Allah sallallahu alayhi wa sallam ordered Ibn Umar radi Allahu anhuma to take his wife back, and taking back (ruju‘) always occurs after divorce. To consider this ruju‘ as merely linguistic is mere sophistry and obstinacy.
➌ In some chains of this hadith, the Messenger of Allah sallallahu alayhi wa sallam said: “The divorce you have given counts as one.” (Sunan al-Daraqutni: 4/9)
➍ In another narration, the Messenger of Allah sallallahu alayhi wa sallam said: “The divorce that he has given will be counted.” (Al-Sunan al-Kubra lil-Bayhaqi: 7/236)
In one narration, it is stated that the Messenger of Allah sallallahu alayhi wa sallam did not consider it at all. (Sunan Abi Dawud, Book of Divorce, Hadith: 2185)
The hadith scholars have declared this addition in the hadith to be “munkar” (rejected). (Fath al-Bari: 9/439)
If it were authentic, its meaning would be that the Messenger of Allah sallallahu alayhi wa sallam did not consider this method (of giving divorce) to be correct.
And Allah knows best.

Hadith Commentary:
(1)
Ibn Umar (radi Allahu anhuma) says that I had great love for one of my wives, but Umar (radi Allahu anhu) did not approve of her. He ordered me to divorce her, but I did not comply with his instruction. So he went to the Messenger of Allah (sallallahu alayhi wa sallam) and mentioned me to him. I came to the Messenger of Allah (sallallahu alayhi wa sallam), and he said to me:
"Obey your father."
So I divorced her.
(Musnad Ahmad: 20/2)
It is possible that this is the same woman whom Ibn Umar (radi Allahu anhuma) divorced while she was menstruating, because Umar (radi Allahu anhu) had come to the Messenger of Allah (sallallahu alayhi wa sallam) to ask about the ruling concerning her.
(Fath al-Bari: 448/9) (2)
In any case, Imam Bukhari (rahimahullah) has established from this that divorce can be given after marriage, and that it is not necessary to address the wife directly for the divorce.
And Allah knows best.

Hadith Commentary:
There are two types of return (ruju’):

➊ The first type is to return (to the wife) during the waiting period (‘iddah).
In this case, there is no need to renew the marriage contract (nikah), as is evident from the incident of Ibn ‘Umar radi Allahu anhuma, where the Messenger of Allah sallallahu alayhi wa sallam instructed him to return (to his wife), but did not command him to perform a new marriage contract.

➋ The second type is to return after the completion of the waiting period (‘iddah).
For this, it is necessary to arrange a new marriage contract (nikah) and to observe all the conditions and requirements of marriage, as is understood from the hadith of Ma’qil bin Yasar radi Allahu anhu.

And there is consensus (ijma’) that when a free man gives his free wife the first or second divorce (talaq), he has more right to return to her, even if the woman dislikes it.

And it is clear regarding return (ruju’) that it can be effected by both statement and action, in every manner.

Hadith Commentary:
(1)
To divorce a menstruating woman, although contrary to the Sunnah, will nevertheless be counted as a valid divorce, and taking her back (ruju‘) will be correct, as is understood from this hadith in which the Messenger of Allah (sallallahu alayhi wa sallam) ordered Ibn ‘Umar (radi Allahu anhuma) to take her back.
If the divorce were not valid, then what would be the meaning of taking her back?
(2)
Some individuals at this point take the literal meaning of ruju‘ (return), but this holds no more weight than mere wordplay.
And Allah knows best.

Hadith Commentary:
You gave a legal verdict (fatwa) while in a state of displeasure.
This is among the unique characteristics specific to you, sallallahu alayhi wa sallam.

Hadith Commentary:
Imam Bukhari rahimahullah previously established through a hadith that a judge should not make any decision while in a state of anger. Now, from these two hadiths, it is proven that the Messenger of Allah sallallahu alayhi wa sallam himself made decisions and issued legal verdicts (fatwa) while in a state of anger. The reconciliation (tatbiq) between these hadiths is as follows: if the anger is for the sake of Allah, then in such a state, it is permissible to make decisions and issue fatwas.

Another scenario is that if the truth became clear before the onset of anger, and then anger occurred afterwards, then in such a situation, anger does not become an obstacle to making a decision or issuing a fatwa. However, according to our inclination, the better reconciliation is that the Messenger of Allah sallallahu alayhi wa sallam is exempt from this principle and rule, because no matter how angry he sallallahu alayhi wa sallam became, his awareness and consciousness always remained intact, and even in a state of anger or displeasure, his decisions and fatwas were based on truth and correctness.

Due to his infallibility (ismah), he sallallahu alayhi wa sallam was free from error and the like.
(Fath al-Bari: 13/171)

Can a pregnant woman menstruate?

There are two opinions among the jurists on this issue:

(Malikis, Shafi'is) Sometimes a pregnant woman can also menstruate. The evidence for this is the general applicability of «آيتِ محيض», and also that menstruation (hayd) is a natural condition of a woman. [بداية المجتهد 15/1، الشرح الصغير 211/1، مغنى المحتاج 118/1]

(Hanafis, Hanbalis) Undoubtedly, a pregnant woman cannot menstruate. The evidence for this is the hadith in which the Prophet sallallahu alayhi wa sallam, in response to the question of Umar radi Allahu anhu, prescribed divorce only in two states: «ثم ليطلقها طاهرا أو حاملا» "Then he should divorce her either in a state of purity (tuhr) or in a state of pregnancy (haml)."

[بخارى: 7160، كتاب الأحكام: باب هل يقضى القاضى أو يفتي وهو غضبان، مسلم 1090، كتاب الطلاق: باب تحريم طلاق الحائض بغير رضاها، أبو داود 500/1، عارضة الأحوذى 123/5، دارمي 120/2، موطا 576/2، أحمد 43/2-51]

The point of evidence here is that the Prophet sallallahu alayhi wa sallam considered pregnancy itself as a sign of not being in menstruation (hayd), just as he considered purity (tuhr) as its sign.

[الدر المختار 263/1، المغني 361/1، كشاف القناع 232/1]

(Shaykh Abdur Rahman bin Nasir al-Sa'di) There is another narration from Imam Ahmad rahimahullah that sometimes a pregnant woman can also menstruate, and this is the correct view... and this is what we have chosen. [الفتاوى السعدية ص/ 134، فتاوى المرأة المسلمة 266/1]

. . . For the original article, see . . .
Fiqh al-Hadith by Imran Ayub Lahori, Volume 1, p. 287

Benefits and Issues
A divorce given to a menstruating woman does take effect, as:

❀ Nafi‘ rahimahullah narrates that Sayyiduna Abdullah bin ‘Umar radi Allahu anhuma divorced his wife while she was menstruating. Sayyiduna ‘Umar radi Allahu anhu asked the Prophet sallallahu alayhi wa sallam about this matter, so the Prophet sallallahu alayhi wa sallam said:
«مره فليرا جعها، ثم ليطلقها أو حاملا .»
“Order him to take her back, then divorce her while she is pure (not menstruating) or pregnant.” [صحيح بخاري : 5251، صحيح مسلم : 1471، واللفظ له]
↰ The wording of «فليرا جعها» clearly indicates the occurrence of divorce; if the divorce had not taken effect, then what would be the point of taking her back?

● Imam Bukhari rahimahullah titled this narration as follows:
“The statement that if a menstruating woman is divorced, it will be counted.”

↰ Further support for our position comes from the following:
❀ When Sayyiduna ‘Umar radi Allahu anhu asked the Messenger of Allah sallallahu alayhi wa sallam whether this divorce should be counted, he sallallahu alayhi wa sallam replied: “Yes.” [سنن الدارقطني : 5/4، سنن الكبري للبيهقي : 326/7، وسنده حسن]

❀ Also, Sayyiduna Ibn ‘Umar radi Allahu anhuma himself narrates that he divorced his wife while she was menstruating, and Sayyiduna ‘Umar radi Allahu anhu related this incident to the Prophet sallallahu alayhi wa sallam, who counted it as one divorce. [مسند الطيالسي : 68، مسند عمر بن خطاب لابن النجاد : 1، وسنده صحيح]

↰ The person involved, Sayyiduna Ibn ‘Umar radi Allahu anhuma, himself says:
“This was counted as one divorce for me.” [صحيح بخاري : 5253]

↰ The hadith narrator, ‘Ubaydullah bin ‘Umar al-‘Umari, says:
“The divorce that Sayyiduna Ibn ‘Umar radi Allahu anhuma gave to his wife during her menstruation was counted as one, even though this divorce was not in accordance with the Sunnah.” [سنن الدارقطني : 6/3، مسند عمر بن الخطاب، تحت حديث : 3وسنده حسن]

● Imam ‘Ata bin Abi Rabah [مصنف ابن ابي شيبة : 5/5، وسنده صحيح],
● Imam Zuhri [ايضا، وسنده صحيح],
● Imam Ibn Sirin [ايضا، وسنده صحيح],
● Imam Jabir Zayd [ايضا، وسنده صحيح],
● and all the hadith scholars and Imams of the religion rahimahullah considered divorce during menstruation to be effective.

Although divorce during menstruation is not in accordance with the Sunnah, the Messenger of Allah sallallahu alayhi wa sallam himself enforced it, so there remains no doubt about its occurrence.

❀ In Sunan Abi Dawud [2185], the wording is:
«فردها رسول الله صلى الله عليه وسلم، ولم يرها شيا . . .»
“The Prophet sallallahu alayhi wa sallam returned her to him and did not consider it (a Sunnah divorce).”
This means that the Prophet sallallahu alayhi wa sallam did count the divorce given during menstruation, but did not consider it preferable.

❀ In Sunan an-Nasa’i [3427], with an authentic chain, the wording is:
“When Sayyiduna Ibn ‘Umar radi Allahu anhuma divorced his wife while she was menstruating, the Prophet sallallahu alayhi wa sallam returned her to him (ordered him to take her back) until he divorced her while she was pure (not menstruating).”
↰ This means that after the first divorce took effect, he took her back, and then divorced her again while she was pure. In this way, all the narrations can be reconciled, because it is established from the authentic hadith and from the statement of Sayyiduna ‘Umar radi Allahu anhu himself that divorce during menstruation is effective.

Hadith Commentary:
(1)
Imam Bukhari rahimahullah, through the chapter heading and the mentioned hadith, has explained the Sunnah method of divorce: that the husband, if he wishes to divorce, should do so in a period of purity (tuhr) in which he has not had intercourse with his wife, then consider a single pronouncement of divorce sufficient, and allow the entire waiting period (‘iddah) to pass.
In this way, an irrevocable (bain) divorce will take effect upon the woman.
Other than this, the following are forms of non-Sunnah (irregular) divorce:
➊ Divorce is given during menstruation (hayd).
➋ Divorce is given in a period of purity (tuhr) in which intercourse has taken place.
➌ Three divorces are given at once.
➍ Three divorces are given at separate times within a single period of purity (tuhr).
The jurists (fuqaha) are unanimous that these methods of divorce are forbidden (haram).
The husband will be sinful for this, however, the divorce will still take effect, even though the husband has committed a sin and an unlawful act.

(2)
It should be clear that the instruction to appoint witnesses for divorce and taking back (ruju‘) is not such that testimony is a condition for the validity of divorce or ruju‘—that is, without witnesses, divorce and ruju‘ do not become invalid. Rather, the command to appoint witnesses is as a precaution, so that later neither party can deny the occurrence of the event, and in case of dispute or disagreement, a decision can be easily reached. Furthermore, this closes the door to doubts and suspicions.
Wallahu a‘lam (And Allah knows best).