A man saw deviation in his wife and swore by divorce if she returned to it, so she returned; does the divorce take effect, or does he owe an oath expiation?

The Shaykh : But if we extend the question to another scenario: a man discovers that his wife has a moral deviation and that she deceives him by contacting some of the young men in the neighborhood. Her behavior aroused suspicion in him, so he warned her and forbade her from it, again and again, to no avail. Finally, he despaired of her and said to her: "I swear by divorce if I see you a second time going to so-and-so's house, for example." Here, it is more likely—I say "more likely" because it could be with the same meaning as the first case, but this incident is different from that one. Here, the matter relates to honor and reputation, so we can imagine that he truly intends to divorce her to be rid of her moral deviation. In this case, we do not say that its ruling is that of an oath and its expiation is an oath expiation; rather, it is a divorce because he truly intended divorce. However, we should note the other conditions of divorce, one of which is witnessing, which we believe is part of the Sunnah. So if he witnesses it, the divorce takes effect; otherwise, it does not. But this does not involve an expiation. There is a difference from another aspect: from one side, there is strictness, and from another, there is facilitation. The facilitation is in that it does not result in an expiation, because he did not intend an oath, but the divorce of his wife resulted from it. However, this is conditional on his having witnessed it before those who obligate witnessing, and conditional on her being in a state of purity, according to those who obligate purity. So it is not permissible for him to divorce a woman who is in a state of menstruation. Thus, whoever conditions that she be in a state of purity also conditions this requirement in this case.
And so on.

The questioner : If he did not witness it and she was not in a state of purity, and the divorce took place, does the divorce proceed, or is it contrary to the norm, considered an innovation, such that the divorce does not take effect?

The Shaykh : This is what I referred to. There is scholarly disagreement on this issue. Regarding the menstruating woman, the divorce takes effect. Regarding the menstruating woman, yes. But as for the one who did not witness it, the divorce does not take effect. It remains suspended until he witnesses it. So if he witnesses it, it is executed; otherwise, it is not.

The questioner : That is to say, without witnessing, there is never a divorce.

The Shaykh : Like marriage.

The questioner : What is meant by witnessing?

The Shaykh : Like marriage. It is well known what is meant by witnessing.

The questioner : That is, an official, righteous witness, and so on. Come, witness the divorce. It does not mean if any person is present...

The Shaykh : A real witness.

The questioner : It is not the presence of any person for the sake of saying it.

The Shaykh : He does not say, "I witnessed that I divorced my wife."

The questioner : And if he did not witness it, he does not sin by not executing the divorce.

The Shaykh : No, he does not sin; rather, he may be rewarded.

The questioner : He may be rewarded. Ah, but you are saying that it takes effect for the menstruating woman.

The Shaykh : Yes, exactly.

The questioner : The last time the session opened, I understood from your words that if she is menstruating, it does not take effect. If she is in a state of purity and he had intercourse with her, it does not take effect until she becomes pure.

The Shaykh : No, you understood incorrectly. At that time, we were talking about the Sunnah divorce and the innovative divorce, and we were not talking about what takes effect or does not take effect. The Sunnah divorce requires that she be in a state of purity, that she be in a period of purity in which he did not have intercourse with her, and that she be in a period of purity in which he did not have intercourse with her. But this is all to clarify the Sunnah divorce and the innovative divorce. However, is there an innovative divorce that takes effect, or does it not exist? The answer is yes. If he divorces her while she is menstruating, this divorce is forbidden and innovative, but it takes effect.

The questioner : How?

The Shaykh : I am saying how? How? What do you mean by how?

The questioner : How can the divorce be forbidden and yet take effect, and what does "take effect" mean? It means it takes effect legally.

The Shaykh : It is so. That is, he committed a forbidden act and executed the divorce.

The questioner : That is, he divorces his wife.

The Shaykh : Yes, he divorces his wife if the conditions of divorce are met. For example, if he divorces her while she is in a state of purity—excuse me, while she is menstruating—but we mentioned earlier that if he did not witness it, it does not take effect. So what you understood from your previous words is... Yes, that is right. Now, if he divorces her, for example, in a state of anger, it does not take effect.

The questioner : This is what they call...

The Shaykh : By Allah, I do not know. The jurists say "divorce of the angry man," and there are two opinions on this issue. Some execute it despite his objection. Similarly, the divorce of the coerced man: the Hanafis execute it, while the Shafi'is and others do not execute it. And this is the correct view. Yes, that is right.