The ruling on a man divorcing his wife during a period of purity in which he had intercourse with her
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Question:
A man divorced his wife during a period of purity in which he had intercourse with her, but he was prevented from breaking her virginity. Does the divorce take effect or not? This situation occurred three times, and he took her back after the first and second divorces. Has she been separated from him or not?
Answer:
This issue is a matter of disagreement among the scholars. The majority of scholars hold that if he divorces her, even during a period of purity in which he had intercourse with her, the divorce takes effect, whether the divorce occurs during a period of purity in which he had intercourse with her, or during menstruation, or during post-natal bleeding.
Others among the scholars held that if he divorces her during menstruation, or during post-natal bleeding, or during a period of purity in which he had intercourse with her while she is not pregnant, the divorce does not take effect. This is based on a report from Ibn 'Umar regarding this matter, in which he divorced his wife while she was menstruating. The Prophet (peace and blessings be upon him) became angry with him and rebuked him, saying to him: Then the Messenger of Allah said: Sahih al-Bukhari 5251.
This indicates that the divorce performed by Ibn 'Umar did not take effect, because the Messenger of Allah (peace and blessings be upon him) ordered him to take her back, and did not ask him whether it was one, two, or three divorces, but rather ordered him to take her back. This indicates that the divorce did not take effect because he was disobedient to Allah in divorcing her during menstruation, or during post-natal bleeding, or during a period of purity in which he had intercourse with her. Therefore, he must return her and take her back, and then if he wishes to divorce her, he should divorce her after that, once she has become pure, before he has intercourse with her.
As for if he divorces her while she is pregnant, her divorce is valid. Or if he divorces her during a period of purity in which he did not have intercourse with her, her divorce is valid. However, if he divorces her during the period of purity in which he had intercourse with her, and she is not pregnant, or during menstruation, or during post-natal bleeding, a group of scholars say that the divorce does not take effect because it is a sin.
Question: Does breaking the virginity not count as a condition?
Answer: No, it is not a condition.
A man divorced his wife during a period of purity in which he had intercourse with her, but he was prevented from breaking her virginity. Does the divorce take effect or not? This situation occurred three times, and he took her back after the first and second divorces. Has she been separated from him or not?
Answer:
This issue is a matter of disagreement among the scholars. The majority of scholars hold that if he divorces her, even during a period of purity in which he had intercourse with her, the divorce takes effect, whether the divorce occurs during a period of purity in which he had intercourse with her, or during menstruation, or during post-natal bleeding.
Others among the scholars held that if he divorces her during menstruation, or during post-natal bleeding, or during a period of purity in which he had intercourse with her while she is not pregnant, the divorce does not take effect. This is based on a report from Ibn 'Umar regarding this matter, in which he divorced his wife while she was menstruating. The Prophet (peace and blessings be upon him) became angry with him and rebuked him, saying to him:
Take her back and keep her until she menstruates, then becomes pure, then menstruates, then becomes pure, and then if he wishes, he may divorce her, and if he wishes, he may keep her.
ارجعها، وأمسكها حتى تحيض، ثم تطهر، ثم تحيض، ثم تطهر، ثم إن شاء طلق، وإن شاء أمسكand that is the prescribed period which Allah has fixed for the women meant to be divorced.
فتلك العدة التي أمر الله أن تطلق لها النساءThis indicates that the divorce performed by Ibn 'Umar did not take effect, because the Messenger of Allah (peace and blessings be upon him) ordered him to take her back, and did not ask him whether it was one, two, or three divorces, but rather ordered him to take her back. This indicates that the divorce did not take effect because he was disobedient to Allah in divorcing her during menstruation, or during post-natal bleeding, or during a period of purity in which he had intercourse with her. Therefore, he must return her and take her back, and then if he wishes to divorce her, he should divorce her after that, once she has become pure, before he has intercourse with her.
As for if he divorces her while she is pregnant, her divorce is valid. Or if he divorces her during a period of purity in which he did not have intercourse with her, her divorce is valid. However, if he divorces her during the period of purity in which he had intercourse with her, and she is not pregnant, or during menstruation, or during post-natal bleeding, a group of scholars say that the divorce does not take effect because it is a sin.
Question: Does breaking the virginity not count as a condition?
Answer: No, it is not a condition.
Source
binbaz.org.sa
The Arabic text is copied verbatim from the original source, without any edits.