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Ruling
concerning divorcing a menstruating woman and its legal effect
Question:
A mother of two children was divorced by her husband but at
the time of the divorce she was not in a state of purity.
However, she did not tell her husband that until the time
that they went to the judge. She hid that information from
him but not from her mother. The mother told her not to tell
the judge for, if she did, the judge would not pronounce the
divorce. Afterwards, she stayed with her family and then she
wanted to be reunited with her husband out of fear that her
children would grow up lost and un-cared for [since their
father would not be present]. What is the ruling concerning
that divorce that took place while she was menstruating?
Response:
Divorce that takes place while the woman is menstruating is
disputed among the scholars. Indeed, the discussion over it
is quite lengthy. The question is whether it was a divorce
that took place or a divorce with no meaning to it whatsoever.
The
majority of the scholars say that it is a divorce that takes
place and has legal effect. That is, it is considered a divorce
but, at the same time, the person is ordered to take her back
and to not touch her until she becomes pure from the menses
and then gets her menses a second time. Then when she becomes
pure after that second period, he may either keep her or he
may divorce her. This is the approach of the majority of the
scholars, including the four Imaams, Imaams Ahmad, ash-Shaafi'ee,
Maalik and Abu Haneefah. However, the strongest opinion, we
feel, is the conclusion of Shaykh
al-Islaam Ibn Taymiyyah. This is that the divorce said
during the menses does not take place and has no legal effect.
This is because it goes against what Allaah and His Messenger
(sal-Allaahu
`alayhe wa sallam) have ordered. The Prophet (sal-Allaahu
`alayhe wa sallam) has stated:
((Whoever
does a deed that is not in accord with our affair shall have
it rejected)).
The
evidence for the particular case of the menstruating woman
is the hadeeth of 'Abdullaah ibn 'Umar. He had divorced his
wife when she was menstruating. The Prophet (sal-Allaahu
`alayhe wa sallam) was informed of that and he became
angry. He said:
((Order
him to return to her and then leave her until she becomes
pure and then has her menses again and then becomes pure again.
At that time, he may keep her or he may divorce her)).
The
Prophet (sal-Allaahu
`alayhe wa sallam) said:
((That
is the period during which Allaah has ordered the women to
be divorced)).
So
the period in which Allaah has ordered women to be divorced
is for her to be divorced while she is pure and not having
had sexual intercourse with her husband. If he divorces her
while she is menstruating, he did not divorce her according
to the command of Allaah. Therefore, the act is rejected.
The divorce that occurred to the woman in this question, in
our opinion, is a divorce that did not exist. The woman is
still under the marriage contract of her husband. It is regardless
of whether he knew that he divorced her while she was pure
or not pure. His knowledge is not taken into consideration.
However, if he knew that she was menstruating, he would be
sinful and the divorce would not take effect. If he was unaware
of that fact, the divorce would not have taken effect but
there would be no sin upon the husband.
Shaykh
Ibn 'Uthaymeen
Fataawa al-Mar.ah
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