Source: Fatawa Aman Puri by Sheikh Ghulam Mustafa Zaheer Aman Puri
Question:
Does divorce occur during the menstrual period or not?
Answer:
Divorce during the specified days is disliked, but it does occur. Nafi' (may Allah have mercy on him) narrates from Sayyidina Abdullah bin Umar (may Allah be pleased with him):
إنه طلق امرأته وهى حائض، فذكر ذلك عمر للنبي صلى الله عليه وسلم، فقال: مره، فليراجعها، ثم ليطلقها طاهرا، أو حاملا.
He divorced during menstruation. Sayyidina Umar (may Allah be pleased with him) asked the Prophet Muhammad (peace be upon him), and he said: "Command him to return, then if he wants to divorce, let him do so during purity or pregnancy."
Reference: (Sahih al-Bukhari: 5252, Sahih Muslim: 1471, and the wording is from him)
فليراجعها clearly indicates the occurrence of divorce; if the divorce had not occurred, then what is the need for a return? Imam Bukhari (may Allah have mercy on him) has categorized these words as follows:
باب إذا طلقت الحائض تعتد بذلك الطلاق
The divorce given to a menstruating woman will be counted.
❀ Sayyidina Abdullah bin Umar (may Allah be pleased with him) narrates:
I divorced during menstruation. (My esteemed father) Sayyidina Umar (may Allah be pleased with him) went to the Messenger of Allah (peace be upon him) and asked, and he said: Command him to return, then if he wants to divorce, let him do so during purity. Sayyidina Umar (may Allah be pleased with him) asked: O Messenger of Allah! Will this divorce be counted? He replied: Yes.
Reference: (Sunan al-Daraqutni: 5/4, Sunan al-Kubra by al-Bayhaqi: 326, Chapters on Husband's Waiting Period/7, and its chain is good)
❀ Sayyidina Abdullah bin Umar (may Allah be pleased with him) narrates:
I divorced during menstruation. Sayyidina Umar (may Allah be pleased with him) informed the Prophet Muhammad (peace be upon him), and he (peace be upon him) counted it as one divorce.
Reference: (Musnad al-Tayalisi: 68, Musnad of Umar bin al-Khattab by Ibn al-Najjad: 1, and its chain is authentic)
❀ Sayyidina Abdullah bin Umar (may Allah be pleased with him) narrates:
حسبت على بتطليقة.
This was counted as one divorce.
Reference: (Sahih al-Bukhari: 5253)
❀ He also said:
فراجعتها، وحسبت لها التطليقة التى طلقتها.
I returned and counted it as a divorce.
Reference: (Sahih Muslim: 1471)
❀ Anas bin Sirin (may Allah have mercy on him) narrates:
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 Sayyidina Abdullah bin Umar (may Allah be pleased with him) say: I divorced during menstruation. (My esteemed father) Sayyidina Umar (may Allah be pleased with him) informed the Prophet Muhammad (peace be upon him), and he (peace be upon him) said: Return. I (Anas bin Sirin) asked: Will this divorce be counted? Ibn Umar (may Allah be pleased with him) said: What else?
Reference: (Sahih al-Bukhari: 5252, Sahih Muslim: 1471)
❀ Hafiz Ibn Hajar (may Allah have mercy on him) states:
فمه Originally it was "فَمَا". This is an interrogative that suffices. The meaning is that if the divorce is not counted, then what will happen? It is also possible that "ما" is original and this word is used for reprimand, meaning do not say this, because in this case, the occurrence of divorce is a necessary matter.
Hafiz Ibn Abd al-Barr (may Allah have mercy on him) states that the meaning of Sayyidina Ibn Umar's (may Allah be pleased with him) statement was that if the divorce given during menstruation is not counted, then what will happen? This is the answer to the question of whether this divorce will be counted. It is as if he said that there is no doubt about the occurrence of this divorce.
Reference: (Fath al-Bari: 352/9)
❀ Yunus bin Jubair (may Allah have mercy on him) narrates:
I asked Sayyidina Abdullah bin Umar (may Allah be pleased with him): What if someone divorces during menstruation? He said: Do you know Abdullah bin Umar (may Allah be pleased with him)? He divorced during menstruation.
Sayyidina Umar (may Allah be pleased with him) went to the Messenger of Allah (peace be upon him) and said, you (peace be upon him) commanded to return and said that if he intends to divorce again, let him do so during purity. I asked: Did the Messenger of Allah (peace be upon him) count the divorce during menstruation? He said: Their helplessness and ignorance have nullified the divorce?
Reference: (Sahih al-Bukhari: 5258, Sahih Muslim: 1431)
❀ Hafiz Ibn Abd al-Barr (may Allah have mercy on him) states:
أرأيت لو عجز بمعنى تعاجز عن فرض آخر من فرائض الله، فلم يقمه، أو استحمق فلم يأت به، أكان يعذر فيه؟
If he is negligent in any other obligation from the obligations of Allah, does not perform it correctly, or acts foolishly and does not perform it at all, will his excuse be accepted in this regard?
Reference: (Al-Tamheed: 66/5)
The commentator of Sahih Muslim, Hafiz Nawawi (may Allah have mercy on him)
Reference: (631-676 AH)
writes: The meaning of these words is that will the ruling of divorce be annulled due to their negligence and misunderstanding? This is a negative interrogative. It is essentially like this: Yes, the divorce will be counted; the enforcement of divorce cannot be stopped due to their negligence and misunderstanding.
Reference: (Sharh Sahih Muslim: 66/10)
