Divorce in the state of menstruation

Divorce in the state of menstruation

Question

A husband divorced his wife three times over the past three years. However, he claims that the second divorce was given whilst his wife was in the state of menstruation, and thus he should be able to take his wife back as this divorce does not count. Is this correct? He suggests that ʿAbd Allah ibn ʿUmar (may Allah be pleased with him) divorced his wife in the state of menstruation and it was disregarded.

He also suggests that he loves his wife and that he was angry although he knew and understood what he was saying. He also suggests that he thought that it is permissible to take his wife back within the ʿIddah period. He also suggests that he did not want to divorce her in his heart. In this scenario, is it allowed for him to take his wife back and stay together?

بسم الله الرحمن الرحیم

Answer

If a husband divorces his wife three times over a period of three years, three divorces have occurred. It is therefore unlawful for the husband to take his wife back and stay together.

Divorce in the state of menstruation is not permissible not least because it prolongs the ʿIddah. However, if a divorce is given, it will take effect and the divorce will occur. This is the position of the four schools of thought and is supported by the ḥadīth of ʿAbd Allah ibn ʿUmar (may Allah be pleased with him), as outlined below.

The divorce of an angry person who recollects and understands what he is uttering occurs according to all the scholars. Similarly, the other reasons cited do not prevent the occurrence of divorce, as outlined below.

(1) Position of the four schools of thought regarding divorce in the state of menstruation

The Ḥanafī scholar Imam Abū al-Ḥusayn al-Qudūrī (d. 428/1037) writes in his al-Mukhtaṣar (p. 155):

وإذا طلق الرجل امرأته في حال الحيض وقع الطلاق

“And when the man divorces his wife in the state of menstruation, divorce occurs.”

The Mālikī scholar Imam Ibn Rushd (d. 595/1198) writes in Bidāyat al-Mujtahid (3: 87):

إن الجمهور إنما صاروا إلی أن الطلاق إن وقع في الحيض اعتد به وكان طلاقا لقوله صلی الله علیه وسلم في حدیث ابن عمر: مره فلیراجعها ، قالوا: والرجعة لا تكون إلا بعد طلاق

“Verily, the majority of scholars are of the view that if a divorce is issued during menstruation, it will be regarded [as having occurred] due to the saying of the Prophet ﷺ in the narration of Ibn ʿUmar: Instruct him so that he takes her back. They [scholars] say: And [the instruction of] Rajʿah (to take back) cannot happen except after a divorce [Thus, Ibn ʿUmar’s divorce during menstruation was regarded as a divorce].”

The Shāfiʿī scholar Imam Nawawī (d. 676/1277) writes in his commentary of Ṣaḥīḥ Muslim (10: 60):

أجمعت الأمة على تحريم طلاق الحائض الحائل بغير رضاها ، فلو طلقها أثم ووقع طلاقه ويؤمر بالرجعة لحديث ابن عمر المذكور في الباب ، وشذ بعض أهل الظاهر فقال: لا يقع طلاقه لأنه غير مأذون فيه ، فأشبه طلاق الأجنبية ، والصواب الأول ، وبه قال العلماء كافة

“The Ummah is unanimous on the prohibition of divorcing a menstruating woman who is changed [having spent some time with the husband] without her consent. If he divorces her, he will be sinful and his divorce will occur and he will be instructed to do Rajʿah (take her back) based on the narration of Ibn ʿUmar mentioned in the chapter. And some literalists have deviated and said that his divorce will not occur because it is not permitted, and is therefore similar to divorcing a stranger. And the correct [view] is the first one, and it is the view of all the scholars.”

The Ḥanbalī scholar Imam Ibn Qudāmah (d. 620/1223) writes in his masterpiece al-Mugnī (7: 366):

فإن طلق للبدعة وهو أن يطلقها حائضا أو في طهر أصابها فيه أثم ووقع طلاقه في قول عامة أهل العلم ، قال ابن المنذر وابن عبد البر: لم يخالف في ذلك إلا أهل البدع والضلال ، وحكاه أبو نصر عن ابن علية وهشام بن الحكم والشيعة

“If he divorces [a divorce of] Bidʿah (innovation), and this is that he divorces her in the state of menstruation or in the state of purity in which he had intercourse with her, he will be sinful and his divorce will occur according to the general scholars. Ibn al-Mundhir [see al-Awsaṭ, 9: 149] and Ibn ʿAbd al-Barr [see al-Tamhīd, 15: 58] said: This is not opposed except by innovators and the deviant. And Abū Naṣr has narrated this view from Ibn ʿUlayyah, Hishām ibn al-Ḥakam and the Shiites.”

Thus, it is clear from the aforementioned statements that the vast majority of scholars are of the opinion that divorce in the state of menstruation occurs notwithstanding its unlawfulness. This is also the view of Imam Bukhārī (d. 256/870) who has explicitly stated this in his Ṣaḥīḥ (5252). This is also the view of Imam Ḥasan al-Baṣrī (d. 110/728), Imam ʿAṭāʾ ibn Abī Rabāḥ (d. 114/732), Imam Awzāʾī (d. 157/773-4), Imam Sufyān al-Thawrī (d. 161/778), Imam Layth ibn Saʾd (d. 175/791) as mentioned in al-Awsaṭ (9: 149).

It is true that a minority of scholars such as Imam Ṭāwūs ibn Kaysān (d. 106/724-5) (Fatḥ al-Bārī, 9: 351), Imam Ismāʿīl ibn ʿUlayyah (d. 193/809) (al-Mugnī, 7: 366), Imam Ibn Ḥazm (d. 456/1064) (al-Muḥallā, 9: 374), Imam Ibn ʿAqīl al-Ḥanbalī (d. 513/1119) (al-Furūʿ, 9: 19), Shaykh al-Islām Ibn Taymiyah al-Ḥanbalī (d. 728/1328) (Majmūʿ Fatāwā, 33: 98) and Ḥāfiẓ Ibn al-Qayyim al-Ḥanbalī (d. 751/1350) (Zād al-Maʿād, 5: 201) are of the view that the divorce does not occur. However, this is a minority view that differs from the position of the vast majority of scholars and contradicts with the ṣaḥīḥ (sound) ḥadīths on this issue. The Ḥanbalī scholar ʿAllāmah Mardāwī (d. 885/1480), who is an admirer of Shaykh al-Islām Ibn Taymiyah, has affirmed in his masterpiece al-Inṣāf (8: 448) that the occurrence of divorce is the correct position of the Ḥanbalī school of thought. Likewise, the contemporary ḥadīth expert and Salafī scholar Shaykh Muḥammad ibn ʿAlī ibn Adam al-Ityūbī (b. 1365/1946-7 – ) along with Shaykh Nāsir al-Dīn al-Albānī (d. 1420/1999) concur with the view of the majority of scholars (al-Baḥr al-Muḥīṭ al-Thajjāj Sharḥ Ṣaḥīḥ al-Imām Muslim ibn al-Ḥajjāj (26: 21). Thus, as stated already, the position of the four schools of thought is that divorce in the state of menstruation will occur.

(2) Ḥadīth of ʿAbd Allah ibn ʿUmar (may Allah be pleased with them)

On one occasion, ʿAbd Allah ibn ʿUmar (d. 73/693) (may Allah be pleased with him) divorced his wife in the state of menstruation. ʿUmar (d. 23/644) (may Allah be pleased with him) mentioned this to the Prophet ﷺ. So he said, “He should take her back”. I [Ibn ʿUmar] asked, “Will [the divorce] be counted?” He said, “So what [else] then? [It will definitely be counted] (Ṣaḥīḥ al-Bukhārī, 5252).

In another narration, ʿAbd Allah ibn ʿUmar (may Allah be pleased with him) says:

حسبت علي بتطلیقة

“It [referring to divorce in the state of menstruation] was counted as one divorce” (Ṣaḥīḥ al-Bukhārī, 5253).

Both these narrations are have been transmitted by Imam Bukhārī (d. 256/870) in his Ṣaḥīḥ to affirm that divorce occurs in the state of menstruation. Scholars from all four schools of thought such as Imam Ibn Rushd (d. 595/1198), Imam Ibn Qudāmah (d. 620/1223) and Imam Nawawī (d. 676/1277) have also used this incident to substantiate this position. Both these narrations are undoubtedly ṣaḥīḥ (sound).

In addition, the following narration of Sunan al-Dāraquṭnī (3893) and al-Sunan al-Kubrā (14922) clearly affirms that this understanding of ʿAbd Allah ibn ʿUmar (may Allah be pleased with him) was based on Prophetic guidance:

فقال عمر: یا رسول الله ، أفتحتسب بتلك التطلیقة؟ قال: نعم

“So, ʿUmar said: O messenger of Allah, will that divorce be counted? He said, yes.”

Ḥāfiẓ Ibn Ḥajar al-ʿAsqalānī (d. 852/1449) suggests in Fatḥ al-Bārī (9: 353) that its narrators are trustworthy. Another narration in Sunan al-Darāquṭnī (3974) and al-Sunan Kubrā (14939, 14955) mentions the following question of ʿAbd Allah ibn ʿUmar (may Allah be pleased with him):

فقلت: یا رسول الله ، أرأیت لو أني طلقتها ثلاثا كان یحل لي أن أراجعها ، قال: لا كانت تبین منك وتكون معصیة

“So I said: O messenger of Allah, what is your view if I divorced her thrice would it be permissible for me to take her back? He said: No, she would separate from you and it would be a sin [for divorcing her in the state of menstruation].”

These narrations, along with many others, clearly affirm that divorce in the state of menstruation occurs.

(3) Contradictory ḥadīth of ʿAbd Allah ibn ʿUmar (may Allah be pleased with them)

Scholars who suggest that divorce in the state of menstruation does not occur use the ḥadīth transmitted in several books including Sunan Abū Dāwūd (2185), Musnad al-Shāfiʿī (p. 193), Muṣannaf ʿAbd al-Razzāq (10960), Musnad Aḥmad (5524) in which ʿAbd Allah ibn ʿUmar (may Allah be pleased with him) is reported to have said:

فردها علي ولم یرها شیئا

“So he returned her to me and did not regard it as anything.”

The scholars of ḥadīth have provided several responses to this:

Firstly, this narration has been transmitted by a narrator Abū al-Zubayr Muḥammad ibn Muslim al-Makkī (d. 128/745-6) whose transmission contradicts the narrations of all the other transmitters. Indeed, Imam Abū Dāwūd (d. 275/889) writes after transmitting his narration:

والأحادیث كلها علی خلاف ما قال أبو الزبیر

“And all the ḥadīths are different to what Abū al-Zubayr has said.”

Imam Shāfiʿī (d. 204/820) suggests that Nāfiʿ is a more reliable narrator than Abū al-Zubayr in relation to the narrations of ʿAbd Allah ibn ʿUmar, because Nāfiʿ is his famous student, whose narration has been corroborated by other reliable trustworthy transmitters (al-Sunan al-Kubrā, 14930). It is for this reason that Ḥāfiẓ Ibn ʿAbd al-Barr (d. 463/1071) goes a step further and suggests that this addition of ولم یرها شیئا  is Munkar (unknown; the technical definition is when a trustworthy transmitter contradicts all other trustworthy transmitters). Prior to him, Imam Abū Sulayman al-Khaṭṭābī (d. 383/993) wrote in Maʿālim al-Sunan (3: 235):

قال أهل الحدیث: لم یرو أبو الزبیر حدیثا أنكر من هذا

“The ḥadīth scholars said: Abū al-Zubayr has not transmitted a ḥadīth that is more munkar (unknown) than this.”

It is perhaps for this reason that Imam Muslim ibn al-Ḥajjāj (d. 261/875) has alluded to the addition of Abū al-Zubayr in his Ṣaḥīḥ (1471) without citing it, a point alluded to by Ḥāfiẓ Ibn Ḥajar al-ʿAsqalānī (d. 852/1449) in Fatḥ al-Bārī (9: 353).

Secondly, the narrations of Ṣaḥīh al-Bukhārī and Ṣaḥīḥ Muslim will take precedence over the narrations of other books.

Thirdly, the narration does not explicitly state that the divorce did not occur. If the narration is indeed established with the additional wording of ولم یرها شیئا , scholars have provided two principal explanations:

  • Imam Shāfiʿī (d. 204/820) suggests that it means:لم یصنع شیئا صوابا (he did not do the right thing) (al-Sunan al-Kubrā, 14930). Ḥāfiẓ Ibn ʿAbd al-Barr (d. 463/1071) similarly suggests in al-Tamhīd (15: 66):ولم یرها شیئا مستقیما  (and he did not regard it as the correct thing to do). Likewise, Imam Abū Sulayman al-Khaṭṭābī (d. 383/993) offers two meanings in Maʿālim al-Sunan (3: 235), one of which is similar to this:لم یره شیئا جائزا  (he did not regard it as a permissible thing).
  • Imam Imam Abū Sulayman al-Khaṭṭābī (d. 383/993) also suggests another meaning: لم یره شیئا باتا یحرم معه المراجعة (he did not regard it as a conclusive thing which would prohibit [and prevent] him from taking her back [unless it is the third divorce]. In other words, issuing one divorce in the state of menstruation, although it is a sin, its consequence is not so severe as three divorces that a person is unable to take his wife back, unless it is the third divorce.

(4) “He loves his wife”

Almighty Allah through His wisdom has devised a complete way of life for Muslims. Our faith recognises that sometimes a person may out of anger divorce his wife and regret doing so. It is for this reason that Islam has provided the flexibility of taking the wife back or re-marrying her after the first or second divorce without the wife having to marry anyone else. However, this option does not exist after the third divorce. If Islam allowed the husband to take the wife back without any restrictions, this would result in the proliferation of divorces and cause harm to women. Thus, Islam strikes the correct balance between the rights of the men and women and takes account of human nature. Accordingly, if he loved his wife, he should not have taken divorce lightly and thought carefully before issuing the third divorce.

(5) “He did not want to divorce her in his heart”

Divorce is a serious issue and should not be treated lightly. If he did not want to divorce her in his heart, then he should not have divorced her verbally. Divorce occurs even if a person is joking. The Prophet ﷺ said:

ثلاث جدهن جد وهزلهن جد: النكاح والطلاق والرجعة

“There are three matters that are serious when they are serious and serious when they are in jest: marriage, divorce and taking a wife back” (Sunan al-Tirmidhī, 1184; Sunan Abū Dāwūd, 2194; Sunan Ibn Mājah, 2039).

Thus, this excuse does not prevent the occurrence of divorce.

(6) Divorce in the state of anger

Divorce is more often than not issued in the state of anger. You have mentioned that the husband knew and understood what he said. Accordingly, the scholars are unanimous that the divorce will occur because anger that does not affect the memory wherein a person understands and realises what is he is saying does not prevent the occurrence of divorce. This is the view of all four schools of thought (see Radd al-Muḥtār, 3: 244; Tuḥfah al-Muḥtāj, 8: 32; Ḥāshiyah al-Dasūqī, 2: 366; Iʿlām al-Muwaqqiʿīn, 4: 40; Igāthah al-Lahfān fī Ḥukm Ṭalāq al-Gaḍbān).

Otherwise, if this excuse is deemed to be valid to prevent the occurrence of divorce, it would be used by everyone.

(7) The right to take back the wife

It has been mentioned that the right to take back a wife following divorce is subject to certain rules and conditions. One of these rules is that if a wife is divorced three times, it is impermissible to take her back within the ʿIddah period or indeed re-marry her after the ʿIddah period. This is because as soon as the third divorce is issued, the woman becomes impermissible for the husband. Thus, he is not allowed to take her back or marry her (Badāʾiʿ al-Ṣanāʾiʿ 3: 187; Radd al-Muḥtār, 3: 400).

(8) Conclusion

To conclude, it is not permissible for the husband to take her back or stay with her because three divorces have occurred. The points raised in the question have been addressed including the occurrence of the second divorce in the state of menstruation.

Allah knows best

Yusuf Shabbir

Approved by: Mufti Shabbir Ahmed Sahib

Darul Ifta, Darul Uloom al-Arabia al-Islamia, Bury

16 Shawwāl 1425 / 28 November 2004

Fatwa number: 1763

Revised: 29 Ṣafar 1438 / 29 November 2016