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Is
the marriage contracting valid if the woman is menstruating?
Question:
I am a young woman who finalised my marriage contract with
a young man some time ago. It happened that it occurred on
a day in which I was having my menses. I did not agree to
the contract until I asked the official about this matter
and he said that such a marriage is valid and legal. However,
I am not satisfied with that contract. I want you to help
me by telling me if that contract was correct or not? Is it
a must that I repeat the contract at a time when I am not
on my menses?
Response:
Performing a marriage contract with a woman while she is menstruating
is permissible and valid. There is no harm in it. The basic
ruling concerning contracts is that of permissibility and
legality unless there is evidence to show that it is not allowed.
There is no evidence to show that one may not finalize a marriage
contract while the woman is menstruating. Therefore, the aforementioned
contract is sound. There is no harm in it.
One
must also understand and know the difference between the marriage
contract and divorce. Divorce is not permissible while the
woman is menstruating. In fact, it is forbidden. The Messenger
of Allaah (sal-Allaahu
`alayhe wa sallam)
became angry when it reached him that 'Abdullaah ibn 'Umar
ibn al-Khattaab had divorced his wife while she was menstruating.
The Prophet (sal-Allaahu
`alayhe wa sallam)
ordered that he go back to her and not touch her until she
became pure, had her menses again and then became pure again.
Then he could afterwards remain with her or divorce her. Furthermore,
Allaah has stated:
{O
Prophet! When you divorce women, divorce them at their prescribed
periods (iddah) and count (accurately) their periods. And
fear Allaah your Lord. And turn them not out of their [husband's]
homes, nor shall they [themselves] leave, except in cases
where they are guilty of open illegal sexual intercourse.
Those are the set limits of Allaah. Whosoever transgresses
the set limits of Allaah, then indeed he has wronged himself},
[Soorah
at-Talaaq, Aayah
1].
So
it is not allowed for a man to divorce his wife while she
is menstruating. He also cannot divorce her during a time
of purity in which they had had sexual intercourse, unless
it is clear that she is pregnant. If it is clear that she
is pregnant, he may divorce her whenever he wishes and that
divorce will take effect. It is very strange that among the
masses there is a common misconception that a divorce stated
while the woman is pregnant does not take effect. This is
not correct. The divorce of a pregnant woman does take effect.
In fact, the rules are more liberal concerning it. For example,
it is permissible for a man to divorce his pregnant wife even
if he had just recently had sexual intercourse with her. This
is not so for woman who is not known to be pregnant. If he
has intercourse with her, he must wait until her next menses
and their finishing or it becomes clear that she is pregnant
before he pronounces divorce. In Soorah
at-Talaaq, Allaah states:
{For
those who are pregnant, their waiting period is until they
deliver}, [Soorah
at-Talaaq, Aayah
4].
This
is a clear indication that such a divorce does take effect.
Furthermore, in some of the hadeeth of ibn 'Umar, it is narrated
that the Prophet (sal-Allaahu
`alayhe wa sallam)
said:
((Order
him to return to his wife and then divorce her when she is
pure [of her menses] or she is pregnant)).
If
it is clear that the marriage contract done while the woman
is menstruating is a sound marriage contract, I still feel
that the man should not enter upon the woman [be with her
alone] until her menses come to an end. This is because if
he does join her before she becomes pure, it is feared that
he may engage in an act which is forbidden while she is menstruating,
especially if he is not able to control himself. Especially
if he is a young man, he should wait until she becomes pure,
at a time when he is able to enjoy her company by sexual intercourse.
Allaah
knows best.
Shaykh
Ibn 'Uthaymeen
Fataawa al-Mar.ah
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