I have been told by some people that if the woman is menstruating then the divorce does not count. Is this correct?
It is unlawful and sinful for a man to divorce his wife while she is in her menstrual period (haydh), but if he does so, the divorce is valid and comes into effect. However, it will be necessary for him to take her back (raj’a) if her waiting period (idda) has not come to an end until she becomes pure from her menses, then menstruates a second time and becomes pure. Thereafter, if he wishes, he may keep her and if he wishes he may issue a second divorce to her. (See: Radd al-Muhtar ala ‘l-Durr al-Mukhtar 3/233-234)
Sayyiduna Abdullah ibn Umar (Allah be pleased with him) relates that in the time of the Messenger of Allah (Allah bless him and give him peace), he (Abdullah ibn Umar) divorced his wife while she was menstruating. [His father] Umar ibn al-Khattab (Allah be pleased with him) asked the Messenger of Allah (Allah bless him and give him peace) about it. The Messenger of Allah (Allah bless him and give him peace) said: “Command him to take her back. Then he should keep her until she becomes pure and then menstruates and becomes pure. Then, if he wishes, he can keep her, and if he wishes, he can divorce her before having sex with her. That is the prescribed period which Allah has fixed for the women to be divorced.” (Sahih al-Bukhari no: 4953)
After recording the above Hadith in his Sahih, Imam al-Bukhari (may Allah be pleased with him) forms another chapter-heading, “Chapter: When a menstruating woman is divorced, it is counted as a divorce” in which he records the following narrations:
Anas ibn Sirin (Allah be pleased with him) says that I heard Ibn Umar (Allah be pleased with him) say, “Ibn Umar divorced his wife while she was menstruating. Umar (Allah be pleased with him) mentioned it to the Messenger of Allah (Allah bless him and give him peace), and he said: “Take her back.” Anas asked, “Is the divorce counted?” Ibn Umar said, “Yes, of course.” (Sahih al-Bukhari no: 4954)
Sa’id ibn Jubayr (Allah be pleased with him) relates that Ibn Umar (Allah be pleased with him) said, “It [divorcing the wife whilst she is menstruating] is counted as a divorce for me.” (Ibid)
Imam al-Daraqutni (may Allah have mercy on him) records the same narration of Ibn Umar with a further addition that Umar ibn al-Khattab (Allah be pleased with him) then asked the Messenger of Allah (Allah bless him & give him peace), “Is the divorce counted?” The Messenger of Allah (Allah bless him & give him peace) replied: “Yes.” (See: Ibn Hajar, Fath al-Bari, 9/438)
Based on the above narrations, bar a few scholars such as Imam Ibn Taymiya and Ibn Hazm, almost all of the classical scholars are of the view that divorce during menstruation, despite being unlawful, counts and comes into effect. This is the position taken by the Companions, vast majority of their followers (tabi’un) and the four Sunni Schools of Islamic law (madhdhabs).
The renowned Hadith master (hafiz), al-Imam Ibn Hajar al-Asqalani (may Allah have mercy on him) states in his colossal commentary of Sahih al-Bukhari, Fath al-Bari:
“Imam Nawawi [the great Hadith scholar and Shafi’i jurist] said, “Some of the literalists (ahl al-Zahir) deviated and said that divorce is not effected when a man divorces a menstruating woman because he does not have the permission to do so, and as such, it is similar to divorcing a strange woman (ajnabiyya). Al-Khattabi related this position from the Khawarij and Rawafidh sects. Imam Ibn Abd al-Barr [a renowned Hadith scholar and Maliki jurist] said, “No one opposes this position [of divorce being valid] except the people of innovation and deviation, meaning now.” (Fath al-Bari, 9/438)
Similar to pronouncing two or three divorces at once, making a pronouncement of divorce during the woman’s menstrual period (hayd) is considered a divorce of innovation (talaq al-bid’a), and hence both forms of divorce are unlawful and sinful, but effective if carried out.
It is stated in Al-Hidaya, a renowned classical Hanafi work:
“If a man divorces his wife during the period of menstruation, the divorce will count, because the prohibition is due to an external reason…” (Al-Hidaya 2/357. Also see for the Hanafi School: Al-Fatawa al-Hindiyya 1/349 and Bada’i al-Sana’i 4/205, for the Maliki School: Hashiyat al-Dasuqi al ‘l-Sharh al-Kabir 2/570, for the Shafi’i School: Al-Majmu’ sharh al-Muhadhdhab 18/153, and for the Hanbali School: Al-Mughni 8/237)
The wisdom behind this is that divorcing the wife in her menstrual period prolongs her waiting period (idda), because the menstrual period in which divorce is given will not be counted, and as such, her Idda will begin from the next menstrual period, resulting in unnecessary hardship for her. Another reason is that a man is generally less inclined towards his wife when she is menstruating; hence, it is possible that he may hasten in divorcing her without thinking properly of the consequences. (See: Bada’i al-Sana’i and Al-Mughni)
In conclusion, divorcing one’s wife during her menstrual period is considered an innovation, and as such, unlawful and sinful. However, this does not mean that the divorce will not count. Killing someone unjustly is totally forbidden, but that does not mean the one killed will not die! The act being unlawful does not prevent death. The great Imam Zahid al-Kawthari (Allah have mercy on him) explains in his Al-Ashfaq ala Ahkam al-Talaq that the act of likening one’s wife to one’s mother in prohibition (zihar) is described in the Qur’an as “evil and false”, yet if one was to do Zihar, it will come into effect according to all the scholars. (Al-Ashfaq, P: 13)
In light of the mentioned evidences, divorce during menstruation, without doubt, counts and comes into effect. However, one must avoid issuing a divorce in this period, since it is unlawful and sinful.
And Allah knows best
[Mufti] Muhammad ibn Adam
Leicester , UK