QUESTION:
As Salaamu Alaikum,
Can a man divorce his wife while she is on her menses?
ANSWER:
Wa Alaikum As Salaam,
It is totally discouraged and strongly reprehensible for a man to divorce his wife in her period/menses, however, if he divorces her, it will occur and take effect.
The reprehensibility of divorcing one’s wife in her menses is evident from the narration of Abdullah bin Umar (R.A) who said, ‘I divorced my wife while she was in the sate of menses and Umar (R.A) came to the Messenger of Allah (S.A.W) and ask him about it. He (the Prophet) said, ‘Order him to return to her, and when she becomes pure (of her menses), let him divorce her if he wishes’. Umar (R.A) said, ‘O Messenger of Allah would she count that divorce? He said, ‘Yes’. (Sunan Dar Qutni Hadith No. 3848 Dar Al Kitab Al Ilmiya Beriut 2003; Tirmidhi Had No. 1176).
Other narrations recorded by Imams Bukhari and Muslim regarding the above matter states that when the Prophet (S.A.W) heard what Abdullah bin Umar did, he became very angry. This goes to show that it is extremely reprehensible for a man to divorce his wife while she is in the state of her menses.
However, it must be understood that once a divorce is issued even in that state of menses, it will take effect. The Hadith quoted above in the Sunan of Dar Qutni itself shows that when Umar (R.A) asked if that divorce will be counted, the Prophet (S.A.W) said yes.
This is the official ruling/verdict of the four Imams of Fiqh, namely Imams Abu Hanifah, Malik, Ash Shafi’ee and Ahmad (A.R).
Regarding this, the great scholar, Dr. Wahba Az Zuhaili writes, ‘When a husband pronounces/gives a divorce (to his wife) in the state of her menses or in Nifas or in a state of purity in which he had sexual relations with her, then this divorce according to the overwhelming majority of scholars is regarded as Haram in the Shariah, and according to Imam Abu Hanifah, it is regarded as Makrooh Tahreemi.
It is also referred to as an innovated divorce (Bidah Talaq). This is because of what has been narrated regarding the incident of Abdullah bin Umar (R.A) when he divorced his wife while she was in her menses.
Dr. Az Zuhaili further writes, ‘Divorce takes place according to the agreement and unanimous verdict/ruling of the four schools of thought (Madhahib), when given in the state of menses or in a state of purity in which the husband had sexual relations with his wife’.
‘This is so because the Messenger of Allah (S.A.W) ordered Abdullah bin Umar to take back his wife whom he had divorced while she was in her menses. The act of ‘taking back’ occurs only after a divorce had taken effect’.
The narration quoted about this incident also supports this, since it is stated in (the narration), “Abdullah bin Umar divorced his wife with a divorce and it was counted as her divorce’ (Al Fiqh Al Islami Wa Adilatuhu Vol. 9 Page. 6922 – 6924 Maktaba Rasheediya Queta; Kitab An Nawazil Vol. 9 pgs 320,321 Darul Ishaat Karachi 2016).
And Allah Knows best
Mufti Waseem Khan
26/10/2023