If divorce occurs during menstruation or during a period of purity in which he has had intercourse with her, does the divorce take effect or not?
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The questioner : In the two cases you mentioned, where divorce is not permissible.
The Shaykh : Yes, indeed.
The questioner : Namely, the period of purity in which he has intercourse with her.
The Shaykh : Yes.
The questioner : Or during menstruation.
The Shaykh : Yes.
The questioner : If it happens and he divorces her, does the divorce take effect or not?
The Shaykh : The majority of scholars, including the four schools of jurisprudence, hold that the divorce takes effect.
The questioner : It takes effect.
The Shaykh : It takes effect, even if it is in a time when pronouncing it is forbidden. Shaykh al-Islam Ibn Taymiyyah chose the position that the divorce does not take effect in this state, and his choice is the correct one: that it does not take effect in this state. This is because it is contrary to the command of Allah and His Messenger.
The questioner : Yes.
The Shaykh : The Prophet (peace and blessings be upon him) said:Sahih Muslim 1718b The people, meaning the scholars, have a very long discussion and many debates on this issue. However, what has become clear to us from the general principles of the Shari'ah and from some of the wording of the hadith of Ibn 'Umar (may Allah be pleased with him and his father) is that the divorce does not take effect. How can it take effect when it is forbidden? Allah the Exalted does not intend from the forbidden anything other than that it not occur and that its effect not result, if it is of the kind where validity and invalidity are possible. If it is of the kind where validity and invalidity are possible, it cannot take effect validly while being forbidden, just as prayer is not valid in the times of prohibition, and similarly, fasting is not valid on the day of 'Id or on the days of Tashriq in the state where it is forbidden.
The questioner : Yes, and in any case, the person who pronounces the divorce is sinful because he did a forbidden act...
The Shaykh : He is sinful by consensus.
The questioner : Yes.
The Shaykh : But does the divorce take effect and is this count of divorce recorded against him, or does it not take effect? As I told you, the majority of scholars, including the four schools of jurisprudence, hold that it takes effect.
The questioner : Yes.
The Shaykh : And Shaykh al-Islam chose that it does not take effect, and that is the correct view in my opinion, if Allah wills.
The questioner : May Allah reward you with good. This questioner debated Karim Muhammad 'Abd al-Mannan from Sudan.
The Shaykh : Yes, indeed.
The questioner : Namely, the period of purity in which he has intercourse with her.
The Shaykh : Yes.
The questioner : Or during menstruation.
The Shaykh : Yes.
The questioner : If it happens and he divorces her, does the divorce take effect or not?
The Shaykh : The majority of scholars, including the four schools of jurisprudence, hold that the divorce takes effect.
The questioner : It takes effect.
The Shaykh : It takes effect, even if it is in a time when pronouncing it is forbidden. Shaykh al-Islam Ibn Taymiyyah chose the position that the divorce does not take effect in this state, and his choice is the correct one: that it does not take effect in this state. This is because it is contrary to the command of Allah and His Messenger.
The questioner : Yes.
The Shaykh : The Prophet (peace and blessings be upon him) said:
He who did any act for which there is no sanction from our behalf, that is to be rejected.
من عمل عملاً ليس عليه أمرنا فهو ردThe questioner : Yes, and in any case, the person who pronounces the divorce is sinful because he did a forbidden act...
The Shaykh : He is sinful by consensus.
The questioner : Yes.
The Shaykh : But does the divorce take effect and is this count of divorce recorded against him, or does it not take effect? As I told you, the majority of scholars, including the four schools of jurisprudence, hold that it takes effect.
The questioner : Yes.
The Shaykh : And Shaykh al-Islam chose that it does not take effect, and that is the correct view in my opinion, if Allah wills.
The questioner : May Allah reward you with good. This questioner debated Karim Muhammad 'Abd al-Mannan from Sudan.