In her first question, she states that she is the mother of two children and that her husband divorced her, but at the time of the divorce she was not in a state of ritual purity, and she did not inform her husband of this until when they went
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The questioner : In her first question, she states that she is the mother of two children and that her husband divorced her, but at the time of the divorce she was not in a state of ritual purity, and she did not inform her husband of this until when they went to the judge, she concealed it from him, except from her mother, who told her, "Do not tell the judge, or you will not get the divorce." Then she went to her family, but she wants to return to her husband to protect her children from being lost and neglected. What is the ruling on this divorce that took place while she was menstruating?
The Shaykh : Regarding this divorce that took place while the woman was menstruating, the scholars have differed, and the discussion among them has been long: whether it is a valid divorce or an invalid one. The majority of scholars hold that it is a valid divorce and counts as one of the three divorces, but the husband is ordered to take her back, leave her until she becomes pure from menstruation, then she menstruates a second time, then becomes pure, and then if he wishes, he may keep her, and if he wishes, he may divorce her. This is the position of the majority of scholars, including the four Imams: Ahmad, al-Shafi'i, Malik, and Abu Hanifah. However, the stronger opinion in our view is what Shaykh al-Islam Ibn Taymiyyah (may Allah have mercy on him) chose, which is that a divorce during menstruation does not take place and is not valid. This is because it is contrary to the command of Allah and His Messenger. The Prophet (peace and blessings be upon him) said:Sahih Muslim 1718b The evidence for this in the specific issue is the hadith of 'Abdullah ibn 'Umar, where he divorced her, where he divorced his wife while she was menstruating, so 'Umar informed the Prophet (peace and blessings be upon him) of this, and the Messenger of Allah (peace and blessings be upon him) was displeased with him and said to him: Sahih Muslim 1471a The Prophet (peace and blessings be upon him) said: Sahih al-Bukhari 5251 Therefore, if he divorced her while she was menstruating, he divorced her contrary to the command of Allah (Blessed and Exalted is He), so it is returned. So we see that this divorce that took place on this woman is not a valid divorce and does not count for anything, and the woman is still in the protection of her husband. Yes.
The questioner : Does the man's knowledge that he divorced her while she was pure or not pure have no effect?
The Shaykh : Yes, his knowledge has no effect. But if he knew, then sin is upon him, and the divorce does not take place. And if he did not know, then the occurrence of the divorce is negated, but there is no sin on the husband.
The Shaykh : Regarding this divorce that took place while the woman was menstruating, the scholars have differed, and the discussion among them has been long: whether it is a valid divorce or an invalid one. The majority of scholars hold that it is a valid divorce and counts as one of the three divorces, but the husband is ordered to take her back, leave her until she becomes pure from menstruation, then she menstruates a second time, then becomes pure, and then if he wishes, he may keep her, and if he wishes, he may divorce her. This is the position of the majority of scholars, including the four Imams: Ahmad, al-Shafi'i, Malik, and Abu Hanifah. However, the stronger opinion in our view is what Shaykh al-Islam Ibn Taymiyyah (may Allah have mercy on him) chose, which is that a divorce during menstruation does not take place and is not valid. This is because it is contrary to the command of Allah and His Messenger. 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 ردCommand him ('Abdullah b. 'Umar) to take her back (and keep her) and pronounce divorce when she is purified and she again enters the period of menstruation and she is again purified (after passing the period of menses), and then if he so desires he may keep her and if he desires divorce her
مره فليُراجعها ثم ليتركها حتى تطهر، ثم تحيض، ثم تطهر، ثم إن شاء أمسك بعد وإن شاء طلقand that is the prescribed period which Allah has fixed for the women meant to be divorced.
فتلك العدة التي أمر الله أن تطلّق لها النساءThe questioner : Does the man's knowledge that he divorced her while she was pure or not pure have no effect?
The Shaykh : Yes, his knowledge has no effect. But if he knew, then sin is upon him, and the divorce does not take place. And if he did not know, then the occurrence of the divorce is negated, but there is no sin on the husband.