Fatwa n° 135
Category: Fatwas about Family – The End of Marriage Contract – Divorce
The ruling concerning the divorce
during the menstruating period
A woman was divorced by her husband in 1992 during her menstruating period in Ramadân: he uttered the word of divorce then the civil divorce happened the year 1993 and she spent Al-‘Idda (prescribed waiting period) in her father’s house. Now after that the civil divorce has occurred, and that she learnt that the divorce pronounced during the menstruating period is not valid, she asks what would she do? Does the civil divorce take effect or is she still his wife [even] after three years? Benefit us may Allah reward you.
All praise is due to Allah, the Lord of the Worlds. Peace and blessing be upon whom Allah sent as a mercy to the Worlds, upon his Family, his Companions and his Brothers until the Day of Resurrection:
Know that whoever divorces his wife while she is in her menstruating period, or divorces her when being purified and after having sexual intercourse with her, or divorces her by three pronouncements while she is pure, then it is a heretical and forbidden divorce and whoever do it will incur sin, for he is a transgressor of his Lord’s Limits, a disobedient and unjust towards himself. This view is held by the majority of the scholars; yet they diverged over the divorce during the woman’s menses: some scholars among the Predecessors and the Successors(1) held that it takes effect and accordingly it is considered as a divorce, this is the opinion of the four Imams(2), this opinion is based on the strongest [religious] evidence and the most true consideration [analogically and rationally]. Concerning the point of divergence, one text should suffice, which is the hadith reported by Nâfi‘ on the authority of Ibn ‘Umar رضي الله عنهما: “That he divorced his wife during her menses. ‘Umar (Ibn Al-Khttâb) made a mention of it to Allah’s Messenger صلّى الله عليه وسلّم whereupon he considered it one (divorce)”(3); According to this, Ibn ‘Umar رضي الله عنهما delivered his fatwa regarding this issue. Nâfi‘ reported: “When Ibn ‘Umar رضي الله عنهما was asked about the person who divorces his wife in the state of menses, he used to say: “If you pronounced one divorce or two, Allah’s Messenger صلّى الله عليه وسلّم had commanded to take her back, and then allow her respite until she enters the period of the second menses, and then allow her respite until she is purified, and then divorce her (finally) before touching her (having sexual intercourse with her); and if you pronounced three divorces [at one and the same time] you have in fact disobeyed your Lord with regard to what He commanded you about divorcing your wife. And she is, however, finally separated from you” (4).
Therefore, there is no ambiguity over the breakdown of the marriage relationship with the end of Al-‘Idda, established religiously, with three [menstrual] terms, for Allah عزّ وجلّ says:
﴿وَٱلۡمُطَلَّقَٰتُ يَتَرَبَّصۡنَ بِأَنفُسِهِنَّ ثَلَٰثَةَ قُرُوٓءٖۚ ﴾[البقرة: 228.[
The meaning of the verse:
﴾Divorced women remain waiting [i.e.do not remarry] for three periods﴿ [Al-Baqara: 228].
He is recommended to take her back due to the commandment of the Prophet صلّى الله عليه وسلّم according to the soundest of the scholars’ opinions. The basic principle is that the woman observing her ‘Idda from a revocable divorce has to observe it in the marital house where she used to live before she got separated from her husband, and this is from the perspective of Ta‘abbud (as an act of worship). With this in mind, she is not allowed to observe her ‘Idda in her father’s house except out of a religious excuse. Such an obligation concerns even her husband who is not allowed to turn her out of her house until her ‘Idda comes to an end, forasmuch as it is a question of a religious obligation which cannot be waived either by mutual consent or other manner, pursuant to His saying عزّ وجلّ :
﴿وَٱتَّقُواْ ٱللَّهَ رَبَّكُمۡۖ لَا تُخۡرِجُوهُنَّ مِنۢ بُيُوتِهِنَّ وَلَا يَخۡرُجۡنَ إِلَّآ أَن يَأۡتِينَ بِفَٰحِشَةٖ مُّبَيِّنَةٖۚ ﴾[الطلاق: 1.[
The meaning of the verse:
﴾And fear Allah your Lord (Ô Muslim). And turn them not out of their (husband’s) homes nor shall they (themselves) leave, except in case they are guilty of some open illegal sexual intercourse﴿ [At-Talâq: 1].
The period of ‘Idda is counted even if she did not spend it in the marital house; and the sin falls upon he who transgresses Allah’s limits. This being said, if we consider that the divorce did not happen, she would be under no obligation to observe ‘Iddah because it exists only with the presence of divorce which did not happen. But here the judicial divorce is -apparently- valid and three years necessary contain the time of the waiting period so surely she is a stranger (not Mahram) for him and there is no need to take her back. Besides, he can remarry her anew with a marriage contract and a dowry, and accordingly she returns back to him by counting the first divorce.
The perfect knowledge belongs to Allah عزَّ وجلَّ; and our last prayer is all the praises and thanks are to Allah, the Lord of the Worlds, and prayers of Allah are to Muhammad and his Family, Companions and Brothers until the Day of Resurrection.
Algiers on: Safar the 17th, 1417 H.
Corresponding to: July the 2nd, 1996 G.
(1) See: “Al-Kâfî” by Ibn ‘Abd Al-Barr (263), “Badâ’i‘ As-Sanâ’i‘ ” by Al-Kâşânî (3/141), “Al-Mughnî” by Ibn Qudâma (3/99), “Al-Qawânîn Al-Fiqhiyya” by Ibn Juzay (219), “Al-Insâf” by Al-Mardâwî (8/448) and “Mughnî Al-Muhtâj” by Ash-Shirbinî (3/307).
(2) This is contradicted by some Predecessors who hold the view that the divorce does not take effect during the period of menses and it is not counted. This was also held by the jurisprudential School of Adh-Dhâhiriyya, and was adopted by Ibn Taymiyyah, Ibn Al-Qayyim and others. [See: “Al-Muhallâ” by Ibn Hazm (10/161), “Al-Mughnî” by Ibn Qudâma (7/100), “Majmû‘ Al-Fatâwâ” by Ibn Taymiyya (33/66), and “Zâd Al-Ma‘âd” by Ibn Al-Qayyim (5/218)].
(3) Reported by Abû Dâwûd At-Tayâlişî (1/68), and by Al-Bayhaqî in “As-Sunan Al-Kubrâ” (14928), from the hadith of Ibn ‘Umar رضي الله عنهما. Al-Albânî said in “Al-Irwâ’ ” (7/126): “Its chain of narrators is authentic in accordance with the conditions of Al-Bukhârî and Muslim”; and in Muslim (1471) from the way of Sâlim Ibn ‘Abd Allâh who said: “And ‘Abd Allâh (Ibn ‘Umar) had divorced her with one pronouncement [during her menstruating period], and it was counted [as one] of her [three] divorces”.
(4) Reported by Muslim (1471), from the hadith of Ibn ‘Umar رضي الله عنهما.