Ruling on the Divorce of a Pregnant Woman and a Woman in Menstruation

Question:
The first issue in this episode, Shaykh Abdul Aziz, concerns divorce. The person with the case says: I divorced her three times. The first time, she was pregnant, and I took her back while she was with me, and the taking back happened on the same day as the divorce. The second time, she was menstruating, and I also took her back on the same day while she was with me, and the divorce was two times. He now has five children from her, and she is in his house. He complains of an illness that controls him and says: If asked about his mental state during the divorce, he would say: he was in a state of disturbed consciousness. He asks the Shaykh to guide him. May Allah reward you with good?

Answer:
In the name of Allah, the Most Gracious, the Most Merciful. Praise be to Allah, and may Allah send prayers and blessings upon the Messenger of Allah, and upon his family and his Companions, and upon those who follow his guidance.
As for what follows: Allah (Mighty and Majestic) legislated divorce for many interests that a husband may need and a wife may need. Among His blessings, Exalted is He, is that He legislated divorce, as He, Glorious and Exalted, said: [Surat al-Baqarah: 229], the verse. If a Muslim needs divorce because the woman is not suitable for him or for other reasons that necessitate divorce, it is prescribed for him to pronounce only one divorce. This is the Sunnah: only one divorce; because it may appear to him that he will take her back, and then he finds himself in a state of ease. So he pronounces only one divorce in a state of purity in which he did not have intercourse with her, or in a state of pregnancy, as He, Exalted is He, said: [Surat al-Talaq: 1]. The scholars of exegesis said: Its meaning is pure women without intercourse, meaning in a state of purity from menstruation or post-natal bleeding, before he touched her, or in a state of pregnancy. As established in the authentic hadith of Ibn Umar (may Allah be pleased with them both), that the Prophet (peace and blessings be upon him) said to him when he divorced his wife while she was menstruating: , and in another wording he said: . This is what is prescribed: that the husband divorce his wife, if he needs to do so, with one divorce in one of two states:
Either in the state of her being pregnant, or in the state of her being pure in a period of purity in which he did not have intercourse with her, and she is in a state of separation. This is the Shari'ah divorce. It is disliked to pronounce two divorces without need; rather, he pronounces only one. It is not permissible for him to divorce her in the state of menstruation, nor in the state of post-natal bleeding, nor in a state of purity in which he had intercourse with her. This is because the Messenger (peace and blessings be upon him) disapproved of Ibn Umar doing that and made this an interpretation of the saying of Allah, the Exalted: [Surat al-Talaq: 1]. The meaning is: in a state of purity in which he did not have intercourse with her. Thus, it is known by this that divorce during menstruation or post-natal bleeding, or in a state of purity in which he had intercourse with her, contradicts the explicit text of the noble verse and contradicts the Prophetic instruction that he (peace and blessings be upon him) directed to Ibn Umar, which is for the entire Ummah; because his (peace and blessings be upon him) instruction to one person is instruction for the entire Ummah.
Then the scholars differed regarding its occurrence: does it take effect if it happens in a state where it is not prescribed, such as menstruation, post-natal bleeding, or the period of purity in which he had intercourse with her? The majority of scholars, and most of them, held that it takes effect along with the sin; the husband sins and the divorce takes effect. A group of scholars held that it does not take effect, because it is a divorce that is not prescribed, and therefore it does not take effect, based on the saying of the Prophet (peace and blessings be upon him): Also, because the Messenger (peace and blessings be upon him) returned the woman to Ibn 'Umar when he divorced her while she was menstruating; the Prophet (peace and blessings be upon him) returned her to him and did not consider it a divorce, as established in the authentic collections, and he said:, and Ibn 'Umar was asked about thatHe said: Even though hecounted what occurred of the divorce as one count based on his own ijtihad, counting it as one divorce, and the Prophet (peace and blessings be upon him) did not count it against him.
This opinion is stronger in terms of evidence: that the divorce does not occur in the state of menstruation or post-natal bleeding, nor in the state of purity in which he had intercourse with her. Even though it is contrary to the opinion of the majority, it is more apparent in evidence. The original state is the continuation of the marriage and the non-occurrence of the divorce that was not prescribed. Allah (Mighty and Majestic) legislated for His servants what is in their interest and forbade them from what harms them. There is no doubt that the occurrence of divorce in the state of menstruation or post-natal bleeding, and in the state of purity in which he had intercourse with her, harms the husband and harms the woman in most cases. So it is among the beauties of Islam and the mercy of Allah (Mighty and Majestic) the opinion that it does not occur. Those who do not consider it to occur said: And what supports this is that a person, in the state of his wife being menstruating or in post-natal bleeding, finds it easy for him to divorce; because she is not suitable for intercourse, and he is forbidden from intercourse with her, so it is easy for him to divorce. Likewise, if he has satisfied his desire and had intercourse with her, it is easy for him to divorce. So it is from the mercy of Allah that He forbade him from that and made it haram upon him. So whenever he proceeds to the prohibition, that does not occur from him because it is contrary to the command of Allah.
This questioner divorced the first time while she was pregnant, so the divorce occurred because the divorce of a pregnant woman is a prescribed matter. As for the second divorce, if it was during menstruation by the agreement and confession of both of them, then it does not occur according to the correct opinion, unless a judge rules with it. If a judge rules with its occurrence, it occurs; because the ruling of the judge removes the disagreement. If the judge, who is from those who consider the divorce to occur, as is the opinion of the majority, rules against him with the occurrence of the divorce, then the disagreement is removed and the divorce occurs and is executed. And it is not permissible for any mufti to annul that; because the issue is one of scholarly disagreement in which ijtihad is permissible.
As for his being in a state of disturbed consciousness, this requires that he seek a fatwa from the judge of his land if something occurs from him. He should seek a fatwa from the judge of his land so that he looks into the matter, and so that he demands the evidence indicating what he said. Not everyone who claims something is granted it. The Chosen One (peace and blessings be upon him) said: . So the one who claims that he divorced in a state of loss of reason is demanded to provide evidence for what he said. If that is established, the divorce does not occur. And if the wife confesses that it occurred from him in a state of unconsciousness, like the drunkard who divorced in a state of loss of reason by consuming what Allah has forbidden, then the correct opinion is that it does not occur, like the insane person. Even if he is sinful, the sinful person must repent to Allah, and the one in authority must establish the hadd upon him if he is brought to the one in authority. It is not among the punishment of the drunkard that the divorce occurs.
The correct opinion, upon which the precise scholars of knowledge are, and with which the Rightly Guided Caliph Uthman (may Allah be pleased with him) issued a fatwa, is that the divorce of the drunkard who has lost his reason does not occur, even if he is sinful. As for the one who is not sinful, it does not occur according to all of them, like the insane person. So if a person is given something that intoxicates him and changes his reason without his knowledge, or is forced and compelled to it, his divorce does not occur according to the scholars of knowledge. The disagreement is only regarding the one who drinks intoxicants intentionally. This is the place of disagreement. He is sinful, and the hadd must be established upon him if he is brought to the ruler. But the divorce does not occur if he is in a state of loss of reason at the time of divorce, like the imbecile and the insane person. And Allah is the Helper. Yes.
The presenter: May Allah reward you with good.