Question:
What is the Islamic legal status of a divorce pronounced during menstruation? Some scholars say that divorce takes effect during menstruation, while others deny its occurrence at that time. Please clarify with evidence which position among the two parties is correct.
Answer:
According to the authentic texts of the Book and Sunnah, a divorce given during the state of menstruation is valid, and this is the view of the majority of the Imams and Muhaddithin. The evidences are as follows:
① Abdullah ibn Umar (may Allah be pleased with them) divorced his wife while she was menstruating. Umar (may Allah be pleased with him) asked the Messenger of Allah (peace be upon him) about this, and he (peace be upon him) said:
“Order him to take her back, then keep her in that state until she becomes pure, then menstruates again, then becomes pure again. Then if he wishes, he may keep her, or if he wishes, he may divorce her before touching her. This is the ‘iddah in which Allah has commanded women to be divorced.”
The majority of the Muhaddithin and jurists base their reasoning on the words “فليراجعها” in this hadith, where the Prophet (peace be upon him) ordered reconciliation. If the divorce had not taken place, there would be no reconciliation. Some people have taken the word “reconciliation” here in its literal sense, meaning to return her to the previous state, not counting it as a divorce. This is incorrect for two reasons: first, it is preferable to interpret the word according to its legal reality rather than its literal meaning, as stated in the principles of jurisprudence; second, Abdullah ibn Umar (may Allah be pleased with them), who gave the divorce, himself clarified that it was counted as a divorce. Therefore, interpreting it in the literal sense without evidence is incorrect. Imam Abu Dawood Tayalisi narrated from Ibn Abi al-Dhi’b from Nafi’ from Ibn Umar (may Allah be pleased with them):
إنه طلق امرأته وهى حائض فأتى عمر النبى صلى الله عليه وسلم فذكر ذلك له، فحسبها واحدة
“Ibn Umar (may Allah be pleased with them) divorced his wife while she was menstruating. Umar (may Allah be pleased with him) came to the Prophet (peace be upon him) and explained the whole matter, and the Prophet (peace be upon him) declared it as one divorce.”
Hafiz Ibn Hajar Asqalani (may Allah have mercy on him) said:
هذا نص فى موضع الخلاف فيجب المصير إليه
“This hadith is a clear text regarding the occurrence of divorce of a menstruating woman, and it is obligatory to return to it.”
From this authentic hadith, it is understood that when a woman is divorced during menstruation, it counts as one divorce, and this authentic hadith serves as a clear text on the occurrence of such a divorce.
② Imam Nasa’i (may Allah have mercy on him) narrated from Kathir ibn Ubaid from Muhammad ibn Harb from Zubaidi that Imam Zahri (may Allah have mercy on him) was asked how a woman is divorced during ‘iddah. He said that Salim ibn Abdullah ibn Umar (may Allah be pleased with them) informed him that Abdullah ibn Umar (may Allah be pleased with them) said:
طلقت امرأتي فى حياة رسول الله صلى الله عليه وسلم وهى حائض فذكر ذلك عمر لرسول الله صلى الله عليه وسلم فتغيظ رسول الله صلى الله عليه وسلم فى ذلك فقال ليراجعها ثم يمسكها حتى تحيض حيضة وتطهر فإن بدا له أن يطلقها طاهرا قبل أن يمسها فذاك الطلاق للعدة كما أنزل الله عز وجل، قال عبد الله بن عمر فراجعتها وحسبت لها التطليقة التى طلقتها
“I divorced my wife during the blessed life of the Messenger of Allah (peace be upon him) while she was menstruating. My father Umar (may Allah be pleased with him) mentioned this to the Messenger of Allah (peace be upon him), and he became angry and said: Let him take her back, then keep her in that state until she has a menstrual cycle and becomes pure. Then if he wishes to divorce her, he should do so before touching her while she is pure. This is the divorce for ‘iddah, as Allah Almighty revealed by revelation.” Abdullah ibn Umar (may Allah be pleased with them) said: “I took her back, and the divorce I gave her was counted.”
In other narrations of this hadith, these words also appear:
وكان عبد الله طلقها تطليقة فحسبت من طلاقها، وراجعها عبد الله كما أمره
“Abdullah ibn Umar (may Allah be pleased with them) gave his wife one divorce, and it was counted as a divorce, and Abdullah ibn Umar (may Allah be pleased with them) took her back as the Prophet (peace be upon him) commanded.”
This authentic hadith clarifies that the divorce of Ibn Umar (may Allah be pleased with them) was counted.
③ Yunus ibn Jubayr (may Allah have mercy on him) said:
قلت لابن عمر رجل طلق امرأته وهى حائض فقال أتعرف ابن عمر إن ابن عمر طلق امرأته وهى حائض فأتى عمر النبى صلى الله عليه وسلم فذكر ذلك له فأمره أن يراجعها فإذا طهرت فإن أراد أن يطلقها فليطلقها قلت فهل عد ذلك طلاقا قال أرأيت إن عجز واستحمق
“I asked Abdullah ibn Umar (may Allah be pleased with them): ‘A man divorced his wife while she was menstruating; what is the ruling on this?’ He said: ‘Do you know Ibn Umar? Ibn Umar also divorced his wife during menstruation, so Umar (may Allah be pleased with him) came to the Prophet (peace be upon him) and asked, and he ordered him to take her back, then when she becomes pure from menstruation, if he wishes, he may divorce her.’ I asked: ‘Did the Messenger of Allah (peace be upon him) count that divorce?’ Ibn Umar (may Allah be pleased with them) said: ‘Tell me, if someone is incapable and commits a mistake, does that excuse remove the obligation? Certainly not! Meaning, that divorce is counted.'”
Yunus ibn Jubayr (may Allah have mercy on him) said he asked Ibn Umar (may Allah be pleased with them):
افتحتسب بها فقال ما يمنعه
“Did you count it as a divorce?” He said: “What prevents me from counting it?”
④ Anas ibn Sirin (may Allah have mercy on him) said:
سمعت ابن عمر قال طلق ابن عمر امرأته وهى حائض فذكر عمر للنبي صلى الله عليه وسلم فقال ليراجعها قلت تحتسب قال فمه
“I heard Ibn Umar (may Allah be pleased with them) say: ‘Ibn Umar divorced his wife during menstruation, so Umar (may Allah be pleased with him) went and informed the Messenger of Allah (peace be upon him), who said: “Let him take her back.”‘ I asked: ‘Will this divorce be counted?’ He said: ‘Be silent (what else could it be counted as)?'”
It is in Sahih Muslim
, Anas ibn Sirin (may Allah have mercy on him) said:
فاعتددت بتلك التطليقة التى طلقت وهى حائض قال ما لي لا أعتد بها وإن كنت عجزت واستحمقت
“Did you count the divorce you gave her during menstruation?” Ibn Umar (may Allah be pleased with them) said: “Why would I not count it? If I become incapable and prove foolishness, will that obligation be lifted?”
In the narrations of Sunan Dar Qutni and Al-Bayhaqi, Umar (may Allah be pleased with him) said:
يا رسول الله أتحسب تلك التطليقة ؟ قال نعم
“O Messenger of Allah! Will you count this divorce?” He said: “Yes!”
⑤ Sa’id ibn Jubayr (may Allah have mercy on him) narrated that Ibn Umar (may Allah be pleased with them) said:
حسبت على تطليقة
“It was counted against me.”
⑥ Imam Amir Shabi (may Allah have mercy on him) said:
طلق ابن عمر امرأته وهى حائض واحدة فانطلق عمر إلى رسول الله صلى الله عليه وسلم فأخبره فأمره إذا طهرت أن يراجعها ثم يستقبل الطلاق فى عدتها ثم تحتسب بالطلاقة التى طلق أول مرة
“Ibn Umar (may Allah be pleased with them) divorced his wife during menstruation, so Umar (may Allah be pleased with him) went and informed the Messenger of Allah (peace be upon him), who ordered him to take her back until she becomes pure from menstruation, then divorce her at the beginning of her ‘iddah, and count the first divorce.”
Allama Al-Albani (may Allah have mercy on him) said:
هذا إسناد صحيح رجاله ثقات على شرط الشيخين
“This chain of narration is authentic; its narrators meet the conditions of Bukhari and Muslim and are trustworthy and reliable.”
⑦ Imam Dar Qutni (may Allah have mercy on him) narrated from Abu Bakr from Abbas ibn Muhammad from Abu Asim from Ibn Jurayj from Nafi’ from Ibn Umar (may Allah be pleased with them):
أن رسول الله صلى الله عليه وسلم قال هي واحدة
“The Messenger of Allah (peace be upon him) said: This is one divorce.”
All the narrators are trustworthy, except there is a suspicion of tadlis (concealment) by Ibn Jurayj because he did not specify the hearing.
⑧ Similarly, Imam Dar Qutni (may Allah have mercy on him) narrated from Abu Bakr from Muhammad ibn Ali al-Sitri from Ali ibn Asim from Khalid and Hisham from Muhammad from Jabir al-Hudha:
قلت لابن عمر رجل طلق حائضا قال أتعرف ابن عمر فإنه طلق حائضا فسأل عمر النبى صلى الله عليه وسلم فقال قل له ليراجعها فإذا حاضت ثم طهرت فإن شاء طلق وإن شاء أمسك قلت احتسبت بتلك التطليقة قال نعم
“I asked Ibn Umar (may Allah be pleased with them): ‘A man divorced a woman during menstruation; what is the ruling on this?’ He said: ‘Do you know Ibn Umar? He also divorced his wife during menstruation, so Umar (may Allah be pleased with him) asked the Messenger of Allah (peace be upon him) about it, and he said: “Tell him to take her back, then when she becomes pure, he may divorce her or keep her.” I asked: Did you count that divorce? He said: ‘Yes!'”
Warning:
① In the original Dar Qutni, it is Khalid Al-Hadha, whereas Sheikh Al-Albani, may Allah have mercy on him, states it is Jabir Al-Hadha, and this is authentically established from Ibn Hibban’s Al-Thiqat and Al-Ansab by Al-Sam’ani, and it is not known except through this chain.
② In its chain is Ali bin Asim Al-Wasti, whom many hadith scholars have declared weak. (Al-Kashif by Al-Dhahabi, etc.)
From the above authentic hadiths, it is understood that from Abdullah bin Umar, may Allah be pleased with them both, his servant Nafi, his son Salim, Yunus bin Jubayr, Anas bin Sirin, Saeed bin Jubayr, Amir Al-Shu’bi, and through the weak narration of Jabir Al-Hadha, may Allah have mercy on them, it has been stated that the divorce given during menstruation is counted. Indeed, through the narration of Nafi and Amir Al-Shu’bi, this matter reaches the Messenger of Allah, peace and blessings be upon him, in a raised (marfu’) form, that he counted and considered the divorce of Ibn Umar, may Allah be pleased with them both, as valid. There is no authentic hadith that contradicts this clear and authentic text. Therefore, this position is strong and correct according to authentic and explicit evidence.
Now, below is the analysis of the arguments of those who do not count the divorce during menstruation.
First Argument:
Abu Dawood narrated from Ahmad bin Salih from Abdul Razzaq from Ibn Jurayj from Abu Al-Zubair that Abdul Rahman bin Abi Al-Zinad, the freed slave of Urwah, was asking Abdullah bin Umar رضي الله عنهما while Abu Al-Zubair was listening. He said: “What do you think about a man who divorces a woman during her menstruation?” Abdullah bin Umar رضي الله عنهما said: I divorced my wife during her menstruation in the time of the Messenger of Allah صلی اللہ علیہ وسلم, so my father Umar رضي الله عنه asked the Messenger of Allah صلی اللہ علیہ وسلم and said: Abdullah has divorced his wife during her menstruation. Ibn Umar رضي الله عنهما said: فردها على ولم يرها شيئا “Then the Messenger of Allah صلی اللہ علیہ وسلم returned that woman to me and did not consider that divorce valid,” and he said: “When a woman becomes pure from menstruation, then divorce her or keep her.” Ibn Umar رضي الله عنهما said that then the Messenger of Allah صلی اللہ علیہ وسلم recited:
“O Prophet! When you divorce women, divorce them at their prescribed waiting time.”
Explanation:
① This narration is not explicit in stating that the Prophet ﷺ did not count this divorce, whereas the aforementioned hadiths explicitly state that the Messenger of Allah ﷺ counted it as one divorce.
② Abdullah ibn Umar رضي الله عنهما himself, who gave the divorce during menstruation, admits that this divorce was counted, and trustworthy scholars of hadith have transmitted this from Ibn Umar رضي الله عنهما.
③ Imam Abu Dawood رحمه الله, after narrating this hadith, says: “This hadith from Abdullah ibn Umar رضي الله عنهما has been narrated by Yunus ibn Jubayr, Anas ibn Sireen, Saeed ibn Jubayr, Zaid ibn Aslam, Abu Al-Zubair, and Mansur ibn Abi Al-Dayl. All of them mean that the Noble Prophet ﷺ commanded Abdullah ibn Umar رضي الله عنهما to take back his wife until she becomes pure, then if he wishes, he may divorce her, and if he wishes, he may keep her.” Then he says:
والأحاديث كلها على خلاف ما قال أبو الزبير
“And all these hadiths are contrary to the statement of Abu Al-Zubair.”
④ Imam Ibn Abdul Barr رحمه الله, Imam Khattabi رحمه الله, and Imam Shafi’i رحمه الله have explained the meaning of “لم يرها شيئا” as something indirect, because it did not occur according to the Sunnah, it was not considered a valid act, rather the person was commanded not to persist in it and to take back his wife. It is like when a person commits a mistake or error in an action and is told: “لم يصنع شيئا” “He has done nothing,” meaning he has not done the correct thing.
Therefore, there is no explicit text negating the occurrence of divorce during menstruation.
⑤ Hafiz Ibn Hajar Asqalani رحمه الله wrote in Fath al-Bari
that the statement of Abdullah ibn Umar رضي الله عنهما: إنها حسبت على تطليقة “The divorce was counted upon me,” although it does not explicitly state that this was a report raised to the Prophet ﷺ, it is established that Ibn Umar رضي الله عنهما said this divorce was counted.
So how can his statement be reconciled with “لم يرها شيئا” in the sense understood by the opposing party that the divorce is not counted? Because if the pronoun in “لم يرها شيئا” is referred to the Prophet ﷺ, meaning that he did not count this divorce, then it would necessarily imply that the Prophet ﷺ contradicted the specific ruling he gave to Ibn Umar رضي الله عنهما in this matter, since Ibn Umar counted the divorce and counting this divorce contradicts “لم يرها شيئا“. How can it be imagined that Abdullah ibn Umar رضي الله عنهما asked the Prophet ﷺ carefully about this issue to act according to his command? And if the pronoun in “لم يرها شيئا” is referred to Abdullah ibn Umar رضي الله عنهما, meaning he considered it nothing, then a contradiction arises in the same story. Therefore, preference is needed, and undoubtedly the statement narrated by the majority of narrators and Hafiz is more appropriate and better according to the majority. Some have used analogy here, like Ibn Qayyim رحمه الله and others, but analogy is invalid compared to the text.
⑥ In the principles of preference, just as the narration of the most trustworthy and memorizing narrators is preferred, so is the majority preferred. There is contradiction in Abu Al-Zubair’s narration according to the opposing party. Therefore, the narration of the majority of trustworthy narrators will prevail.
⑦ Similarly, there is possibility in Abu Al-Zubair’s narration and explicitness in the narration of the trustworthy narrators, so the explicit narration will prevail.
If someone objects that Abu Al-Zubair is not unique in this narration, rather there are follow-up narrations of Abu Al-Zubair, as narrated in Sunan Saeed ibn Mansur
through Abdullah ibn Malik from Ibn Umar رضي الله عنهما:
إنه طلق امرأته وهى حائض فانطلق عمر إلى رسول الله صلى الله عليه وسلم فقال إن عبد الله طلق وهى حائض فقال رسول الله ليس ذلك بشيء
“He divorced his wife, so Umar رضي الله عنه went to the Messenger of Allah ﷺ and said: ‘Abdullah has divorced his wife while she is menstruating.’ The Messenger of Allah ﷺ said: ‘That is nothing.'”
The answer to this is that its chain contains Khadij ibn Muawiyah, about whom Yahya ibn Ma’in said: “ليس بشيء” “He is utterly insignificant.” Imam Bukhari رحمه الله said: يتكلمون فى بعض حديثه “Hadith scholars criticize some of his narrations.” Imam Nasai رحمه الله said: “Weak.” Ibn Sa’d said: كان ضعيفا فى الحديث “This hadith is weak.” Imam Abu Dawood رحمه الله said: “Zuhair does not like Khadij.” Imam Dar Qutni said: “غلب عليه الوهم” “There is doubt about him.” Imam Bazzar said: “سيي الحفظ” “His Hafiz deteriorated.”
Similarly, Abu Zur’ah al-Razi رحمه الله and Ibn Ma’in رحمه الله also declared him weak.
On the other hand, Imam Ahmad رحمه الله and Abu Hatim رحمه الله considered him truthful; Abu Hatim رحمه الله said: محله الصدق فى بعض حديثه وهم يكتب حديثه
“His status is truthful, though some of his narrations contain doubt, and his hadith will be written (i.e., in follow-up).”
From this detail, it is clear that Khadij ibn Muawiyah is weak according to the majority of hadith scholars, was a patient of memorization, and despite narrating few hadiths, was full of doubt. And abundant doubt, even if explained by criticism, remains doubt. Moreover, in this narration, Khadij ibn Muawiyah’s teacher is Abu Ishaq al-Subayi, who are mudallis narrators and narrate with ‘an an’ (from from), meaning they did not explicitly state that they heard from their teacher directly. The rule of hadith scholars regarding tadlis is:
من ثبت عنه التدليس إذا كان عدلا أن لا يقبل منه إلا ما صرح فيه بالتحديث
“When tadlis is proven from a just narrator, only the narration in which he explicitly states hearing will be accepted.”
Therefore, their narration will be rejected due to being mere narration.
Another reason is that Abu Ishaq al-Subayi and Amr ibn Abdullah became muddled in their old age.
The principle of hadith regarding a muddled narrator is that narrations before muddling are accepted, but those narrated during muddling or when it is unknown whether before or after muddling are not accepted.
The fourth reason for weakness is that the conditions of Abu Ishaq’s teacher Abdullah ibn Malik al-Hamdani are unknown. Therefore, this narration is weak and not authoritative due to these four reasons.
Note:
In the published commentary of Sahih Bukhari by Maktaba Qudusiya
, Ibn Malik has been mistakenly printed instead of Ibn Mubarak.
This narration is not explicit about the non-occurrence of divorce given during menstruation; rather, this narration can also mean ليس ذلك بشيء صواب that is, this divorce is not valid, it is against the Sunnah, it should be revoked, and when the woman becomes pure from menstruation, then divorce her in that purity in which there was no intercourse.
Second Evidence:
Sheikh Muhammad Nasir al-Albani, may Allah have mercy on him, says:
أما دعوى أبى داود أن الأحاديث كلها على خلاف ما قال أبو الزبير فيرده ط طريق سعيد بن جبير التى قبله فإنه موافق لرواية أبى الزبير هذه فإنه قال فرد النبى صلى الله عليه وسلم ذلك حتى طلقتها وهى طاهر
“The claim of Imam Abu Dawood that all the hadiths are contrary to the statement of Abu al-Zubair is refuted by the narration transmitted through Saeed bin Jubair, which is in agreement with the narration of Abu al-Zubair. It states that Abdullah bin Umar, may Allah be pleased with them both, said: ‘The Prophet, peace be upon him, returned it to me until I divorced her while she was in a state of purity.'”
The answer to this is that Sheikh al-Albani, may Allah have mercy on him, mentioned the chain through Saeed bin Jubair as evidence supporting Abu al-Zubair’s narration, but it neither supports Abu al-Zubair’s narration nor implies that a divorce given during menstruation does not take effect. Rather, this narration is silent about the occurrence or non-occurrence of divorce during menstruation. Meanwhile, in Sahih al-Bukhari, in the narration of Abdullah bin Umar, may Allah be pleased with them both, through Saeed bin Jubair’s chain, there is clarification: لا تحسب على تلك الطلقة meaning “This divorce was counted against me.” This narration is explicit and a definitive ruling from Ibn Umar, may Allah be pleased with them both, that a divorce given during menstruation is counted. Therefore, it is not correct for Sheikh al-Albani, may Allah have mercy on him, to consider the ambiguous narration of Saeed bin Jubair as evidence supporting Abu al-Zubair’s narration; his misconception is that he alone is correct on this issue. The correct position is what Imam Abu Dawood said and what Imam Ibn Abd al-Barr, Imam Khattabi, Imam Shafi’i, and others have explained, and Imam Bukhari also agrees with Imam Shafi’i and others regarding the occurrence of divorce during menstruation. He has titled the chapter in his Sahih as follows:
باب إذا طلق الحائض تعتد بذلك الطلاق
“When a menstruating woman is divorced, it will be counted as a divorce.”
Third Argument:
Imam Ibn Hazm narrated from Yunus bin Ubaidullah from Ahmad bin Abdullah bin Abdul Rahim from Ahmad bin Khalid from Muhammad ibn Abdus Salam Al-Khashani from Muhammad bin Bashar from Abdul Wahhab bin Abdul Majeed Al-Thaqafi from Abdullah bin Umar from Nafi from Ibn Umar, may Allah be pleased with them.
أنه قال فى الرجل يطلق امرأته وهى حائض قال ابن عمر لا يعتد بذلك
“Ibn Umar, may Allah be pleased with him, said about the man who divorces his wife during her menstruation that he should not count it for her.”
The answer to this is that this narration cannot be used as evidence by the opposing party, because the statement of Abdullah bin Umar, may Allah be pleased with him, لا يعتد بذلك does not mean that he should not count the divorce given during menstruation, rather it means that the menstruation during which the divorce was given should not be counted in the ‘iddah (waiting period). The rule is: إن الحديث يفسر بعضه بعضا that one hadith explains another. Imam Ibn Abi Shaybah narrated this same narration from Abdul Wahhab Al-Thaqafi from Ubaidullah bin Umar from Nafi from Ibn Umar, may Allah be pleased with him: “If a man divorces his wife during menstruation, then that menstruation should not be counted in the ‘iddah.”
Similarly, Imam Abu Saeed Al-A’rabi narrated
from Abbas Al-Duri from Yahya bin Mu’in from Abdul Wahhab Al-Thaqafi from Ubaidullah from Nafi from Ibn Umar, may Allah be pleased with him.
إذا طلقها وهى حائض لم تعتد بتلك الحيضة
“When a man divorces a woman during menstruation, that menstruation should not be counted in the ‘iddah.”
This narration transmitted through Abdul Wahhab Al-Thaqafi clarifies that the meaning of Ibn Umar’s statement, may Allah be pleased with him, is that this menstruation should not be counted in the ‘iddah, not that the divorce itself should not be counted. Also, the narrator of this hadith, Ubaidullah, said:
وكانت طلقته إياها فى الحيض واحدة غير أنه خالف السنة
“Ibn Umar, may Allah be pleased with him, gave a divorce during menstruation but he gave it contrary to the Sunnah.”
Fourth Argument:
Imam Ibn Abdul Barr, may Allah have mercy on him, states that those who believe that divorce does not take effect during menstruation rely on the statement of Imam Shafi’i, may Allah have mercy on him:
اذا طلق الرجل امرأته وهى حائض لم يعتد به فى قول ابن عمر
“When a man divorces his wife while she is menstruating, according to the opinion of Ibn Umar, it should not be counted.”
The response to this is that Imam Ibn Abdul Barr, may Allah have mercy on him, says that this does not mean what the opposing party claims; rather, it means that the woman will not count that menstruation in her ‘iddah (waiting period). It is established from Imam Shafi’i that the divorce does take effect, but that menstruation is not counted in the ‘iddah.
You have seen the analysis of the arguments of those who deny the occurrence of divorce during menstruation. These people do not have any authentic and explicit hadith indicating that divorce does not take effect during menstruation, whereas the majority of the Imams have numerous evidences that serve as clear texts on this matter. Therefore, divorce given during menstruation does take effect, and this is the correct and strong doctrine.
