❀ Ruling on Divorce During Menstruation ❀
Source:
This article is derived from the book “500 Questions and Answers for Women” based on the fatwas of the scholars of the Haramain, translated by Hafiz Abdullah Saleem.
A woman, who is a mother of two children, was menstruating when her husband divorced her. However, she did not inform her husband of this fact. They went to court, but she concealed this matter from the judge as well. Only her mother was aware of it, and she had advised her daughter not to disclose this to the court, warning that otherwise the divorce would be deemed invalid. Subsequently, the woman returned to her parents’ home. Later, fearing the loss of her children, she wanted to reconcile with her husband.
What is the Shar’i ruling on a divorce given during menstruation?
There is extensive scholarly disagreement regarding the validity of a divorce issued during menstruation. The question is whether such a divorce is effective or should be considered null.
The Majority Opinion (Jumhoor):
Most scholars, including the four Imams—Imam Ahmad, Imam Shafi’i, Imam Malik, and Imam Abu Hanifah—hold that a divorce given during menstruation is valid and counts as one divorce. However, the husband will be instructed to reconcile with his wife and allow her to complete her menstrual period and her subsequent purification (ṭuhr). After that, if he wishes, he may divorce her without engaging in marital relations, or he may choose to retain her as his wife.
The Stronger Opinion (Preferred View):
According to Shaykh al-Islam Ibn Taymiyyah (رحمه الله), the more correct opinion is that a divorce given during menstruation is invalid and ineffective, as it opposes the command of Allah and His Messenger ﷺ. The Prophet ﷺ said:
"من عمل عملا ليس عليه أمرنا فهو رد"
[Agreed upon]
"Whoever performs an act which is not in accordance with our command, it will be rejected."
A clear evidence for this ruling is the hadith of Abdullah ibn Umar (رضي الله عنهما), who divorced his wife during her menstruation. When the Prophet ﷺ was informed, he expressed displeasure and said:
"مره فليراجعها ثم ليتركها حتى تطهر ثم تحيض ثم تطهر، ثم إن شاء أمسك بعد وإن شاء طلق قبل أن يمس، فتلك العدة التى أمر الله عزوجل أن يطلق لها النساء"
[Agreed upon, wording by Muslim – Book of Divorce, Hadith 1]
"Command him to take her back, then leave her until she becomes pure, then menstruates again and becomes pure again. After that, if he so wishes, he may retain her, or if he wishes, he may divorce her before having intercourse. That is the waiting period in which Allah has commanded that women be divorced."
Hence, the prescribed method of divorce as ordained by Allah is that a man should divorce his wife while she is in a state of ṭuhr (purity) and before any marital relations have occurred during that period.
Based on this, if a husband divorces his wife while she is menstruating, and he is aware of her condition, then:
① The divorce is invalid (mardood) as it does not conform to the Divine method.
② He also bears sin for violating the prescribed ruling.
If, however, he was unaware of her menstruation, then:
① He is not sinful, and
② The divorce is still not valid.
Thus, in our view, the divorce given to the woman in question is invalid, and she remains lawfully wed to her husband.
(By: Shaykh Muhammad ibn Salih al-‘Uthaymeen حفظه الله)
Source:
This article is derived from the book “500 Questions and Answers for Women” based on the fatwas of the scholars of the Haramain, translated by Hafiz Abdullah Saleem.
❖ Question:
A woman, who is a mother of two children, was menstruating when her husband divorced her. However, she did not inform her husband of this fact. They went to court, but she concealed this matter from the judge as well. Only her mother was aware of it, and she had advised her daughter not to disclose this to the court, warning that otherwise the divorce would be deemed invalid. Subsequently, the woman returned to her parents’ home. Later, fearing the loss of her children, she wanted to reconcile with her husband.
What is the Shar’i ruling on a divorce given during menstruation?
❖ Answer:
There is extensive scholarly disagreement regarding the validity of a divorce issued during menstruation. The question is whether such a divorce is effective or should be considered null.
The Majority Opinion (Jumhoor):Most scholars, including the four Imams—Imam Ahmad, Imam Shafi’i, Imam Malik, and Imam Abu Hanifah—hold that a divorce given during menstruation is valid and counts as one divorce. However, the husband will be instructed to reconcile with his wife and allow her to complete her menstrual period and her subsequent purification (ṭuhr). After that, if he wishes, he may divorce her without engaging in marital relations, or he may choose to retain her as his wife.
The Stronger Opinion (Preferred View):According to Shaykh al-Islam Ibn Taymiyyah (رحمه الله), the more correct opinion is that a divorce given during menstruation is invalid and ineffective, as it opposes the command of Allah and His Messenger ﷺ. The Prophet ﷺ said:
"من عمل عملا ليس عليه أمرنا فهو رد"
[Agreed upon]
"Whoever performs an act which is not in accordance with our command, it will be rejected."
A clear evidence for this ruling is the hadith of Abdullah ibn Umar (رضي الله عنهما), who divorced his wife during her menstruation. When the Prophet ﷺ was informed, he expressed displeasure and said:
"مره فليراجعها ثم ليتركها حتى تطهر ثم تحيض ثم تطهر، ثم إن شاء أمسك بعد وإن شاء طلق قبل أن يمس، فتلك العدة التى أمر الله عزوجل أن يطلق لها النساء"
[Agreed upon, wording by Muslim – Book of Divorce, Hadith 1]
"Command him to take her back, then leave her until she becomes pure, then menstruates again and becomes pure again. After that, if he so wishes, he may retain her, or if he wishes, he may divorce her before having intercourse. That is the waiting period in which Allah has commanded that women be divorced."
Hence, the prescribed method of divorce as ordained by Allah is that a man should divorce his wife while she is in a state of ṭuhr (purity) and before any marital relations have occurred during that period.
❖ Final Ruling:
Based on this, if a husband divorces his wife while she is menstruating, and he is aware of her condition, then:
① The divorce is invalid (mardood) as it does not conform to the Divine method.
② He also bears sin for violating the prescribed ruling.
If, however, he was unaware of her menstruation, then:
① He is not sinful, and
② The divorce is still not valid.
Thus, in our view, the divorce given to the woman in question is invalid, and she remains lawfully wed to her husband.
(By: Shaykh Muhammad ibn Salih al-‘Uthaymeen حفظه الله)
