Divorce during menstruation
Question:
(The questioner) is a mother of two children. Her husband divorced her, but she was not in a state of purity at the time of the divorce, and she did not inform her husband of her impurity. When they went to the qadi for a decision, she concealed it from the qadi as well. She only told her mother that she was not in a state of purity at the time of the divorce. Her mother said to her, “Do not inform the qadi of this, otherwise no divorce will fall upon you.” (In any case, after obtaining a divorce decision from the qadi,) she then went to her parents’ home. Later, fearing that the children would be neglected and lost, she intended to return to her husband. Therefore, what is the ruling on the aforementioned divorce given to a woman during her menstruation?
Answer:
Regarding a divorce given to a woman during her menstruation, the scholars differ, and they have engaged in lengthy discussion on whether a divorce pronounced during menstruation takes effect or is void and invalid. The majority of scholars hold that this divorce takes effect and counts as one divorce from the husband, but the husband is ordered to take his wife back and leave her until she becomes pure from menstruation. Then, when she menstruates again and becomes pure, he may, if he wishes, keep her with him, or, if he wishes, divorce her. This is the position of the majority of scholars, including the four imams: Imam Ahmad, al-Shafi’i, Malik and Abu Hanifah, may Allah have mercy on them.
However, in our view the preferred position is the one adopted by Shaykh al-Islam Ibn Taymiyyah, may Allah have mercy on him, that a divorce given during menstruation indeed does not take effect or continue, because pronouncing divorce during menstruation is a violation of the command of Allah and His Messenger ﷺ. The Prophet ﷺ said:
من عمل عملا ليس عليه أمرنا فهو رد
“Whoever does an action that is not part of our religion, that action is rejected.”
The evidence that this particular matter is contrary to the Shari’ah is the hadith of Abdullah ibn Umar, may Allah be pleased with them both, when he divorced his wife during her menstruation. When Umar, may Allah be pleased with him, informed the Prophet ﷺ of this act of his, the Messenger of Allah ﷺ became angry and said:
مرہ فليراجعها ثم يتركها حتى تطهر ثم تحيض ثم تطهر ثم إن شاء أمسك وإن شاء طلق ، قال النبى صلى الله عليه وسلم: فتلك العدة التى أمر الله أن تطلق عليها النساء
“(O Umar!) Order him to take back his wife, then leave her until she becomes pure, then she menstruates and becomes pure again; then, if he wishes, he may keep her, and if he wishes, he may divorce her.” The Prophet ﷺ then said: “This is the waiting period by which Allah has commanded that women be divorced.”
The waiting period in which Allah has commanded that women be divorced is that a person divorces them in a state of purity in which he has not had intercourse with them. On this basis, if he divorces them during menstruation, then he has not divorced them in accordance with Allah’s command, and therefore it is rejected. Thus, the divorce given to the aforementioned woman, in our view, did not take effect, and the woman remains in the marriage with her husband. The husband’s knowledge or lack of knowledge at the time of divorce of whether she was pure or impure is not considered.
Yes, his knowledge is of no consequence. However, if he knew that the woman was impure and then divorced her, he is merely sinful in doing so, and the divorce does not take effect. And if he did not know that the woman was impure, then he is free of responsibility for the divorce taking effect and there is no sin upon him.
