The second type: the recommended divorce (mustahabb)

This passage completes the examination of the first ruling: the husband is permitted to endure the harm caused by his wife without even attaining the intended purpose through her; he is then permitted to repel that harm from himself (al-Mughni 7/277; Sharh az-Zarkashi 2/458; Kashshaf al-Qina' 5/266; Sharh Muntaha al-Iradat 5/363; Manar as-Sabil 3/81).

The second type is the recommended (mustahabb).

The Hanafis said: divorce is recommended when she causes him harm, to himself or to others, by her word or by her deeds, and likewise when she neglects the prayer or neglects obligations other than the prayer. Ibn Mas'ud said: 'Meeting Allah while her dowry stands as my debt is better than living with a woman who does not pray.' He may then strike her for abandoning the prayer, and there is no sin upon him in living with a woman who does not pray (Hashiyat Ibn Abidin 3/229).

The Malikis said: divorce is recommended when an impediment arises, as when the woman is abusive of the tongue to the point that he fears, should she persist with him, falling into the unlawful: for example if he beats her severely (darb mubarrih), or she insults him and insults his parents, or she is of little modesty and adorns herself to go out before men; most of them curse the husband's mother when she is at her son's home, and the like (Hashiyat ad-Dasuqi on al-Sharh al-Kabir 3/239; Hashiyat as-Sawi on al-Sharh as-Saghir 5/280).

The Shafi'is said: divorce is recommended when dispute arises between the spouses and they fear they cannot uphold the limits of Allah; it is then recommended for the husband to divorce her, for if he did not divorce her it might lead to discord. Likewise when the woman is immodest: it is then recommended for him to divorce her, as reported from Jabir, may Allah be pleased with him:

A man said: 'O Messenger of Allah, my wife does not repel the hand of anyone who touches her.' He said: 'Divorce her.' The man said: 'But I love her.' He said: 'Then keep her.'Sound chain: reported by an-Nasa'i (3465) and al-Bayhaqi in 'al-Kubra' (5339, 5659)

Likewise when the condition of the woman is not upright, as when she has an evil character (al-Bayan 10/77; Mughni al-Muhtaj 4/498).

The Hanbalis said: the divorce of the wife is recommended when she neglects the rights of Allah that are obligatory upon her, such as the prayer and the like, and he cannot compel her to them. If the husband abandons a right of Allah, the woman is, in that respect, in the same position as he: it is therefore recommended for her to free herself from him by khul' and similar means, on account of his abandonment of the rights of Allah.

According to Imam Ahmad, divorce becomes in this case obligatory, for he said: I fear that it is not lawful for a man to remain with a woman who does not pray.

Divorce is likewise recommended in the situation that permits the woman to seek separation in case of discord and the like, in order to remove harm. It is also recommended when she suffers harm from the continuation of the marriage, due to his aversion for her or for any other reason. It is likewise recommended to divorce her when she is immodest, according to the sound position of the school, for keeping her diminishes his religion and is degrading, and she might corrupt his bed and attach to him a child that is of another man.

From him likewise: divorce is here obligatory; he said: it is not fitting for a man to keep an immodest woman.

The obligatory divorce according to the schools, and the fourth type: the disliked divorce

'Third [ruling]': the Hanafis said: divorce becomes obligatory when kindly retention is no longer possible, as in the case of the eunuch (khasi), the man whose organ cannot become erect (majbub), the man with undescended testicles ('innin), the shakkaz, or the bewitched (musahhar).

The shakkaz, written with an open emphatic shin, a doubled kaf and a zay, is the man whose organ goes flaccid toward the woman before he has had relations with her, then does not become firm afterwards for intercourse. The musahhar, written with an open doubled ha', is the bewitched (mashur), called 'marbut' in our time (Hashiyat Ibn Abidin 3/229).

The Malikis said: divorce becomes obligatory when an impediment arises, as when he knows that keeping her brings him into the unlawful, in the matter of maintenance or otherwise; for example when he maintains her with unlawful wealth. Apart from maintenance, there is severe beating (darb mubarrih) or confirmed, established insult. Divorce becomes obligatory when he maintains her with unlawful wealth so long as he does not fear, if she leaves him, fornication, and so long as he lacks the ability to marry another; otherwise no divorce is obligatory upon him and he must be moderate as far as he can, and the apparent meaning of the statement is that [this obligation stands] even if maintaining her with unlawful wealth becomes unavoidable for him (Hashiyat ad-Dasuqi on al-Sharh al-Kabir 3/239; Hashiyat as-Sawi on al-Sharh as-Saghir 5/280, 282).

The fourth type: the disliked (makruh).

The Shafi'is and the Hanbalis explicitly stated in the school that divorce is disliked without need, that is, when the situation between the spouses is upright and he dislikes nothing of her character, of her creation, or of her religion: it is then disliked for him to divorce her, by virtue of the hadith:

'The most hateful of lawful things to Allah is divorce.'Weak hadith: reported by Abu Dawud (2178), Ibn Majah (2018) and al-Hakim (2/214)

And because it removes the marriage that contains recommended benefits (al-Bayan 10/78; Mughni al-Muhtaj 4/498; al-Mughni 7/277; al-Insaf 8/430; Kashshaf al-Qina' 5/266; Sharh Muntaha al-Iradat 5/363; Manar as-Sabil 3/82).

Imam Ibn Qudama, may Allah have mercy on him, said: '(And it is disliked)': that is divorce pronounced without need for it. The qadi said: the question carries two narrations:

The first: it is unlawful, for it is a harm inflicted upon himself and upon his wife, and a destruction of the benefit they draw from the marriage without need for it; it is therefore unlawful like the destruction of property, according to the saying of the Prophet: 'No harm and no inflicting of harm.'

The second: it is lawful, according to the saying of the Prophet: 'The most hateful of lawful things to Allah is divorce', and in a wording: 'Allah has not made anything lawful more hateful to Him than divorce', reported by Abu Dawud. It is disliked only when pronounced without need for it; the Prophet called it lawful, and because it removes the marriage that contains the recommended benefits, it becomes disliked (al-Mughni 7/277; al-Kafi 3/159).

The fifth type: the forbidden divorce

Divorce is condemned (mabghud) among the Hanafis on the sound position, by virtue of the preceding hadith and because it cuts off benefits (al-Ikhtiyar 3/151; Hashiyat Ibn Abidin on ad-Durr al-Mukhtar 3/227). Its being the contrary of the most preferable course (khilaf al-awla) is found among the Malikis, as has passed (Hashiyat as-Sawi on al-Sharh as-Saghir 5/280, 282; al-Sharh al-Kabir 3/239).

The Malikis said: divorce is disliked likewise when the repudiation cuts off a recommended act of worship, as when the woman assists him in the recommended pursuit of knowledge (Hashiyat as-Sawi on al-Sharh as-Saghir 5/282).

The fifth type: the forbidden (haram).

The jurists mentioned several situations in which divorce is forbidden. They are:

First situation: divorce during menstruation, or in a purity during which he has had intercourse with her. The people of knowledge are unanimous that divorcing a woman with whom he has consummated the marriage during her menstruation, or in the purity during which he had intercourse with her before her pregnancy is established, is forbidden; it is called 'the innovated divorce (bid'i)', by the word of Allah:

'O Prophet, when you divorce women, divorce them for their waiting period, and count the waiting period, and fear Allah, your Lord.'
Surah at-Talaq, 1

Allah commanded the men who wish to divorce their wives to divorce them while pure, without having had intercourse with them, and to divorce them at the onset of their waiting period, which is only conceivable after the purity that follows the bleeding, whether in menstruation or in postpartum bleeding; whoever contravenes this is not among those who fear Allah (Ahkam al-Qur'an of Ibn al-Arabi 4/249; Matalib uli an-Nuha 5/331).

From Nafi' from Abdallah ibn Umar, may Allah be pleased with him and his father: he divorced his wife while she was menstruating, during the lifetime of the Messenger of Allah. Umar ibn al-Khattab asked the Messenger of Allah about that, and the Messenger of Allah said: 'Order him to take her back, then keep her until she becomes pure, then menstruates, then becomes pure; then if he wishes he may keep her, and if he wishes he may divorce her before having intercourse with her; that is the waiting period which Allah commanded for the divorcing of women.'Reported by al-Bukhari (4953) and Muslim (1471)

In the narration of Salim: Abdallah ibn Umar, may Allah be pleased with him and his father, informed him that he had divorced his wife while she was menstruating. Umar mentioned it to the Messenger of Allah, and the Messenger of Allah became angry with him, then said: 'Let him take her back, then keep her until she becomes pure, then menstruates and then becomes pure; then if it seems good to him to divorce her, let him divorce her while pure, before he has intercourse with her: that is the waiting period, as Allah commanded.'Reported by al-Bukhari (4625) and Muslim (1471)

His anger with him was only over the commission of a forbidden act (Tarh at-Tathrib 7/82). A great number of scholars have transmitted the consensus on the prohibition of divorce during menstruation or in the purity during which he has had intercourse with her.

Imam al-Mawardi, may Allah have mercy on him, said: the innovated divorce, during menstruation or in a purity in which he has had intercourse, is prohibited and forbidden by unanimous agreement (al-Hawi al-Kabir 10/115). Imam Ibn al-Qayyim, may Allah have mercy on him, said: as for the prohibited, it is divorce during menstruation or in a purity in which he has had intercourse with her: the scholars of all lands and all ages have been unanimous on its prohibition, and it is called 'innovated divorce', because the one who divorces has opposed the Sunna and abandoned the command of Allah and of His Messenger (al-Mughni 7/277). The vizier Ibn Hubayra, may Allah have mercy on him, said: they agreed that divorce during menstruation for a woman with whom he has consummated the marriage, and in the purity in which intercourse occurred, is forbidden, yet it takes effect (al-Ifsah 2/167; Jawahir al-Uqud 2/103).

The majority of scholars hold that the woman in postpartum bleeding (nufasa') has the same ruling as the menstruating woman, and that her divorce is forbidden and innovated. Imam Ibn al-Arabi al-Maliki, may Allah have mercy on him, said: there is no disagreement in the umma that the ruling of the woman in postpartum bleeding, in this matter, is that of the menstruating woman ('Aridat al-Ahwadhi 5/36). The two imams Ibn Hajar and ar-Ramli said: the innovated divorce is forbidden, that is, divorcing her during her menstruation or postpartum bleeding when she has been touched, that is, consummated; this is established by consensus (Tuhfat al-Muhtaj 9/462-463; Nihayat al-Muhtaj 7/3).

Secondly: the innovated divorce (talaq bid'i)

The innovated divorce has two forms:

First form: divorcing her during her menstruation or postpartum bleeding.
Second form: divorcing her in a purity during which he has had intercourse with her.

The people of knowledge are unanimous that divorcing a woman with whom he has consummated the marriage during her menstruation, her postpartum bleeding, or in the purity of intercourse before her pregnancy is established, is forbidden; it is called 'innovated divorce', by the word of Allah:

'O Prophet, when you divorce women, divorce them for their waiting period, and count the waiting period, and fear Allah, your Lord.'
Surah at-Talaq, 1

Allah commanded the men who wish to divorce their wives to divorce them while pure, without intercourse, and at the onset of their waiting period, which is only conceivable after the purity that follows the bleeding, whether in menstruation or in postpartum bleeding; whoever contravenes this is not among those who fear Allah (Ahkam al-Qur'an of Ibn al-Arabi 4/249; Matalib uli an-Nuha 5/331).

From Nafi' from Abdallah ibn Umar, may Allah be pleased with him and his father: he divorced his wife while she was menstruating, during the lifetime of the Messenger of Allah. Umar ibn al-Khattab asked the Messenger of Allah about that, and the Messenger of Allah said: 'Order him to take her back, then keep her until she becomes pure, then menstruates, then becomes pure; then if he wishes he may keep her, and if he wishes he may divorce her before having intercourse with her; that is the waiting period which Allah commanded for the divorcing of women.'Reported by al-Bukhari (4953) and Muslim (1471)

In the narration of Salim: Abdallah ibn Umar, may Allah be pleased with him and his father, informed him that he had divorced his wife while she was menstruating. Umar mentioned it to the Messenger of Allah, and the Messenger of Allah became angry with him, then said: 'Let him take her back, then keep her until she becomes pure, then menstruates and then becomes pure; then if it seems good to him to divorce her, let him divorce her while pure, before he has intercourse with her: that is the waiting period, as Allah commanded.'Reported by al-Bukhari (4625) and Muslim (1471)

Imam al-Mawardi, may Allah have mercy on him, said: the innovated divorce, during menstruation or in a purity in which he has had intercourse, is prohibited and forbidden by unanimous agreement (al-Hawi al-Kabir 10/115). Imam Ibn Hazm, may Allah have mercy on him, said: there is no disagreement among any of the people of knowledge whatsoever, including all those who oppose us in this, that divorce during menstruation or in the purity of intercourse is an innovation which the Messenger of Allah forbade (al-Muhalla 10/164). Imam Ibn al-Qayyim, may Allah have mercy on him, said: as for the prohibited, it is divorce during menstruation or in a purity in which he has had intercourse with her: the scholars of all lands and all ages have been unanimous on its prohibition, and it is called 'innovated divorce', because the one who divorces has opposed the Sunna and abandoned the command of Allah and of His Messenger (al-Mughni 7/277). The vizier Ibn Hubayra, may Allah have mercy on him, said: they agreed that divorce during menstruation for a woman with whom he has consummated the marriage, and in the purity in which intercourse occurred, is forbidden, yet it takes effect (al-Ifsah 2/167; Jawahir al-Uqud 2/103).

Ibn Abd al-Barr, may Allah have mercy on him, said: the scholars agreed that divorce during menstruation is disliked for the one who pronounces it, and that whoever did so did not divorce for the waiting period which Allah commanded; the evidence for that, from the reports of trustworthy narrators, is the anger of the Messenger of Allah with Ibn Umar when he did that (al-Istidhkar 6/146). Imam al-Qurtubi, may Allah have mercy on him, said: the consensus was reached that divorce during menstruation is forbidden, while divorce in the purity [without intercourse] is permitted therein (Tafsir al-Qurtubi 18/153). Imam an-Nawawi, may Allah have mercy on him, said: the umma agreed on the prohibition of divorcing the menstruating woman who is thereby prevented without her consent: if he divorced her he would sin and the divorce would take effect, and he would be commanded to take her back, according to the hadith of Ibn Umar (Sharh Sahih Muslim 10/60).

Shaykh al-Islam Ibn Taymiyya, may Allah have mercy on him, said: divorce during menstruation is forbidden by the Book, the Sunna and the consensus: no disagreement is known over its prohibition, and it is an innovated divorce (Majmu' al-Fatawa 33/75-76). He also said: if he divorced her while she was menstruating, or had intercourse with her and then divorced her after that intercourse before her pregnancy was established, it would be a divorce forbidden by the Book, the Sunna and the consensus of the Muslims; the scholars disputed whether it is binding or not: two positions; the more apparent is that it is not binding (Majmu' al-Fatawa 33/72). Al-Kamal Ibn al-Humam, may Allah have mercy on him, said: when a man divorces his wife during her menstruation, the divorce takes effect... and by this pronouncement he is disobedient, by the consensus of the jurists (Sharh Fath al-Qadir 3/480).

The majority of scholars hold that the woman in postpartum bleeding has the same ruling as the menstruating woman, and that her divorce is forbidden and innovated. Imam Ibn al-Arabi al-Maliki, may Allah have mercy on him, said: there is no disagreement in the umma: the ruling of the woman in postpartum bleeding, in this matter, is that of the menstruating woman ('Aridat al-Ahwadhi 5/36). The two imams Ibn Hajar and ar-Ramli said: the innovated divorce is forbidden, that is, her divorce during her menstruation or postpartum bleeding when she has been touched, that is, consummated; this is established by consensus (Tuhfat al-Muhtaj 9/462-463; Nihayat al-Muhtaj 7/3).

If the divorce is suspended on a condition fulfilled while she is menstruating

The Shafi'is said: if he suspends the divorce of his wife upon entering a house, for example, or upon any attribute, the divorce is not innovated, even if it occurs during menstruation; but the time of entry is considered: if she is in a state of purity, it takes effect according to the Sunna; if she is in a state of menstruation, it takes effect as an innovated divorce and the rulings of the innovated apply, yet there is no sin [upon the husband]. It may, however, be said: if the attribute occurs by his choice, he sins by pronouncing it during menstruation, as if he pronounced the divorce in that state.

If he says to a woman of regular menstruation (dhat al-aqra'): 'You are divorced if you enter the house, or if so-and-so arrives: [divorce] according to the Sunna', or 'when the month begins you are divorced according to the Sunna': if the condition occurs while she is in the state proper to the Sunna, she is divorced; if it occurs while she is in the state of innovation, she is not divorced until she reaches the state proper to the Sunna, and then she is divorced; for the divorce is suspended upon two circumstances whose joint fulfillment is required. Likewise if he says: 'If you enter the house you are divorced according to the innovation': if she enters in the state of innovation, she is divorced; if she enters in the state of the Sunna, she is not divorced until she reaches the state of innovation.

If he addresses a woman for whom there exists neither divorce according to the Sunna nor innovated divorce, such as one who has not been touched: 'You are divorced if you enter the house and if so-and-so arrives: [divorce] according to the Sunna', she thereby becomes of the Sunna and of the innovation; then the condition occurs: if it occurs in the state of the Sunna, she is divorced; if it occurs in the state of innovation, she is not divorced until she reaches the state of the Sunna; and if the condition occurs before her state changes, she is divorced, for there is no Sunna in her divorce.

If the divorce is suspended upon something that depends on her choice and she carries it out by her own will, it may be said that it is as if he had divorced her at her request (Rawdat at-Talibin 5/306-307; Mughni al-Muhtaj 4/498, 500).

The Hanbalis said: if he suspends the divorce upon her rising, or upon the arrival of Zayd, and she rises or Zayd arrives while she is menstruating, she is divorced as an innovated divorce, for the divorce occurred during menstruation; yet there is no sin upon the one who divorced her, for he did not intend to pronounce the divorce at the time of the innovation.

If he says: 'You are divorced when Zayd arrives: [divorce] according to the Sunna', and Zayd arrives in a purity in which he has not had intercourse with her, she is divorced, the attribute being fulfilled; if Zayd arrives during the time of innovation, the divorce does not take effect at his arrival, for she is then not among the women belonging to the Sunna: the complete condition was therefore not fulfilled; when she reaches the time of the Sunna, the divorce takes effect, the condition being present.

If he says to her: 'You are divorced upon the arrival of Zayd' while he has not consummated the marriage with her, she is divorced at his arrival, whether she is menstruating or pure; for she has neither Sunna nor innovation [in her divorce]. If he said that to her before consummation and Zayd arrives after he has consummated the marriage in a purity in which he has not had intercourse, she is divorced at his arrival, the attribute being present, for she then belongs to the women of the Sunna; if Zayd arrives during the time of innovation, she is not divorced until the time of the Sunna comes and the condition is fulfilled (al-Mubdi' 7/261; al-Insaf 8/450-451; Kashshaf al-Qina' 5/276-277; Matalib uli an-Nuha 5/333).

The cause of the prohibition of divorce during menstruation and in the purity of intercourse

The jurists differed over the cause of the prohibition of divorce during menstruation and in the purity during which he has had intercourse with her: is it the lengthening of the waiting period, or is it a purely devotional prescription?

The majority of the jurists of the four schools, namely the Hanafis, the Malikis according to one position, as well as the Shafi'is and the Hanbalis, hold that the cause of the prohibition is the lengthening of the waiting period imposed upon the wife: for the menstruation during which she was divorced does not count toward her waiting period, nor the purity that follows, according to those who say that 'women of regular menstruation count menstruations as their waiting period'; and because it is permitted to divorce the pregnant woman, as well as the woman not consummated, during her menstruation, since no lengthening occurs in these two cases. If he divorces her in a purity in which he has had intercourse with her, he cannot be certain that she is not pregnant from that intercourse, and he would regret having divorced her; and because she is in doubt: it is unknown whether she conceived by the intercourse, in which case her waiting period is the pregnancy, or did not conceive, in which case her waiting period is the menstruations (al-Jawhara an-Nayra 4/394; at-Taj wal-Iklil 3/38; Sharh Mukhtasar Khalil 4/29; al-Sharh al-Kabir with the Hashiyat ad-Dasuqi 3/242; Tathbir al-Mukhtasar 3/133; al-Hawi al-Kabir 11/174; al-Muhadhdhab 2/79; al-Bayan 10/78; Mughni al-Muhtaj 4/498; al-Mughni 7/278; Sharh az-Zarkashi 2/462; Matalib uli an-Nuha 1/242).

The Malikis according to another position hold that the cause is devotional (ta'abbudi), that is, it belongs to the acts of worship whose cause is unknown (at-Taj wal-Iklil 3/38; Sharh Mukhtasar Khalil 4/29; al-Sharh al-Kabir with the Hashiyat ad-Dasuqi 3/242; Tathbir al-Mukhtasar 3/133).

Shaykh al-Islam Ibn Taymiyya, may Allah have mercy on him, said: they disputed over the cause of the prohibition of the divorce of the menstruating woman: is it the lengthening of the waiting period, as the companions of Malik, of ash-Shafi'i and most of the companions of Ahmad say; or is it because he is in a state of aversion to intercourse with her, so that she should not be divorced except in a state of desire for intercourse, divorce being prohibited and permitted only for need, as the companions of Abu Hanifa and Abu al-Khattab among the companions of Ahmad say; or is it a devotional prescription whose meaning is not graspable by reason, as some Malikis say: three positions (Majmu' al-Fatawa 33/99).

As for Ibn al-Qayyim, may Allah have mercy on him, he said: you say: that constituted a lengthening upon her, as if he had divorced her during her menstruation. It is answered: this rests on the notion that the cause of the prohibition of divorcing the menstruating woman is the fear of lengthening upon her; yet many jurists do not accept this reasoning and refute it, saying: if she consented to the divorce in that state and chose the lengthening, it would not be permitted [to divorce her]; if the prohibition were on account of the lengthening, the divorce would not be permitted with her consent, just as the waiving of the right of return (raj'a) belonging to the divorcer is permitted by their mutual agreement, with compensation by consensus, and without compensation according to one of the two positions: this is the madhhab of Abu Hanifa, of one of the two narrations from Ahmad, and of Malik. They say: the divorce of the woman during her menstruation was forbidden only because he divorced her at a time when she felt aversion toward him. And even if we conceded that the prohibition is on account of the lengthening, the harmful lengthening is to divorce her while menstruating, so that she waits for the end of the menstruation and of the following purity, and only then does her waiting period begin, not counting its term from the divorce; whereas if she is divorced while pure, she begins her waiting period right after the purity ends, and no lengthening occurs (Zad al-Ma'ad, 634).

Imam Wali Allah ad-Dahlawi, may Allah have mercy on him, said: the secret of this, that is, of the prohibition of divorce during menstruation, is that a man may feel toward the woman a natural aversion without any ground of obedience, as when she is menstruating and of weakened appearance; and he may feel aversion toward her on account of a benefit that sound reason judges should be established, while natural desire is present: that is the one to be followed, and regret occurs mostly in the first case, and in it return takes place; this is an inclination whose taming of the soul depends on neglecting it and abandoning its pursuit. The two states may be mingled for many people, and a boundary must then be drawn that realizes the distinction: purity was thus made the presumed sign of natural desire, menstruation the presumed sign of natural aversion, the daring to divorce at a moment of desire toward her the presumed sign of rational benefit, and remaining long in that state, with circumstances changing from menstruation to purity, from weakness to adornment, from withdrawal to openness, the presumed sign of clear reason and sound deliberation. That is why divorce during menstruation was disliked, and the command given to take the wife back while intercalating new menstruations.

Likewise: if he divorced her during her menstruation, if that menstruation were counted in the waiting period, its duration would be diminished; and if it were not counted, the woman would suffer harm from the length of the waiting period, whether the 'periods' (quru') mean the purities or the menstruations: in every case this would contradict the limit that Allah fixed in His decisive Book, namely three periods.

And if the command was given to pronounce the divorce in the purity, before having had intercourse with her, that is for two reasons:

The first: the preservation of natural desire toward her, for by intercourse the ardor of desire subsides.

When the woman asks for divorce while menstruating

The second reason: that it be farther removed from the confusion of lineages (Hujjat Allah al-Baligha 1/717-718).

When the woman asks for divorce while menstruating: we have mentioned that the cause of the prohibition of divorce during menstruation, according to the majority of jurists, is the lengthening of the waiting period for the woman. The jurists nevertheless differed over the case where the wife asks her husband to divorce her during her menstruation: is it forbidden or not?

The Shafi'is according to one position, the Hanbalis in the school, as well as some Malikis, hold that if the woman asks her husband for divorce while menstruating, it is not forbidden and he may answer her request: for the prohibition aims to protect her from the harm of the length of the waiting period; yet by asking him she has herself brought harm upon herself, since the prohibition of divorce during menstruation concerns her own right; divorce is therefore permitted at her request, with or without compensation, on the sound position among the Hanbalis, for it is she who has brought harm upon herself by her request.

Al-Bahuti mentioned that it is permitted only with compensation, such as khul'. He said: '(As long as she does not ask him for a divorce in exchange for compensation, or for a khul'), for she has then herself brought harm upon herself; (if she asks him) for a divorce (without compensation, it is not permitted).' I say: perhaps the consideration of the compensation is explained by the fact that she may show the contrary of what she conceals: the granting of the compensation therefore indicates her true intention (Kashshaf al-Qina' 1/233 and 5/280; Sharh Muntaha al-Iradat 1/222).

Ar-Ruhaybani, may Allah have mercy on him, said: '(And) the eleventh [case]: (divorce is recommended)', for during menstruation it is a forbidden innovated divorce, as will be explained in its chapter; '(as long as she does not ask him)', that is, as long as the menstruating woman does not ask him '(for a khul' or a divorce)': he may then answer her request, for the prohibition aims to protect her from the harm of the length of the waiting period, and by her request she has brought harm upon herself. '(And it is directed: even if) her request to the husband for a khul' or a divorce (was without compensation, contrary to the two of them)', that is, contrary to 'al-Iqna'' and 'al-Muntaha', which restricted her request to compensation: this position is weak. He said in 'Sharh al-Iqna'': I say: perhaps the consideration of the compensation is explained by the fact that she may show the contrary of what she conceals: the granting of the compensation therefore indicates the true intention (as comes) in the book of divorce, in detail. '(The cause)' mentioned by the companions [of the school]: the prohibition of divorce during menstruation concerns the right of the woman; divorce is therefore permitted at her request, with or without compensation, on the sound position of the school, and the majority of scholars follow it; for it is she who has brought harm upon herself by her request. '(This entails it)', that is, it entails the permissibility of the khul' and of the divorce at her request, with or without compensation: this is the most probable position (Matalib uli an-Nuha 1/242).

The Malikis according to the well-known position, as well as the Shafi'is according to the soundest position, hold that divorce during menstruation is not permitted, even if the woman consents to it and asks him for it, by virtue of the absolute character of the word: 'divorce them for their waiting period'; and because the Prophet, when he disapproved divorce during menstruation, made no exception.

However, Imam Ibn Hajar al-Haytami said: his words '(if she asks him, it is not forbidden)', that is, with her consent to the lengthening; and the soundest position is the prohibition, for she may lie in her request, as is their habit; hence, if her wish were truly fulfilled, it would not have been forbidden (Tuhfat al-Muhtaj 9/463-464; see Sharh Mukhtasar Khalil 4/29; al-Sharh al-Kabir with the Hashiyat ad-Dasuqi 3/242; Tathbir al-Mukhtasar 3/133; Jami' al-Ummahat, p. 292; an-Najm al-Wahhaj 7/550; Mughni al-Muhtaj 4/498).

Does divorce during menstruation, postpartum bleeding or the purity of intercourse take effect?

The jurists differed over the man who divorces his wife while she is menstruating, in postpartum bleeding, or in the purity in which he has had intercourse with her: does the divorce take effect or not, after their consensus on its being forbidden?

The jurists of the four schools and others, consensus even having been reported on this, hold that when the man divorces his wife during her menstruation, her postpartum bleeding, or in the purity in which he has had intercourse with her, it is forbidden to him and the divorce takes effect. They adduced the following proofs:

1. The hadith of Ibn Umar, may Allah be pleased with him and his father (al-Bukhari 4953; Muslim 1471): the Messenger of Allah ordered Ibn Umar to take back his wife although he had divorced her while she was menstruating; yet the taking back (muraja'a) can only occur after the divorce has become final. If divorce during menstruation had neither taken effect nor become final, he would not have said to him 'take her back': the one who has not divorced, upon whom no divorce has taken effect, cannot be ordered 'take her back'; for it is impossible to say to a man whose wife is still under his marital bond and whom he has not left: 'take her back'. Consider the word of Allah concerning the divorced women:

'And their husbands have the better right to take them back during that period.'
Surah al-Baqara, 228

that is, during the waiting period; and this cannot be said of wives who have not been divorced (at-Tamhid 15/58-59; Sharh Sahih al-Bukhari of Ibn Battal 7/384). And because if the divorce had not taken effect, the taking back would not have been necessary and would not be valid; for one cannot say 'he took his wife back' without having divorced her: the taking back occurs only after divorce (Ahkam al-Qur'an 2/86-87).

2. Imam al-Bukhari entitled a chapter in his Sahih: 'Chapter on the menstruating woman who is divorced, whose divorce is counted'. (4954) Sulayman ibn Harb narrated to us, Shu'ba narrated to us, from Anas ibn Sirin who said: I heard Ibn Umar say: 'Ibn Umar divorced his wife while she was menstruating; Umar mentioned it to the Prophet, who said: let him take her back. I said: Is it counted? He said: So what?' And from Qatada, from Yunus ibn Jubayr, from Ibn Umar: 'Order him to take her back. I said: Is it counted? He said: What do you think if he was helpless and foolish?' Abu Ma'mar said: Abd al-Warith narrated to us, Ayyub narrated to us, from Sa'id ibn Jubayr, from Ibn Umar who said: 'It was counted against me as one divorce.' (Reported by al-Bukhari, 4954)

3. In the wording of Muslim: from Anas ibn Sirin: I asked Ibn Umar about the wife he had divorced; he said: I divorced her while she was menstruating; this was mentioned to Umar, who mentioned it to the Prophet, who said: 'Order him to take her back; then when she is pure, let him divorce her for her purity.' He said: So I took her back, then divorced her during her purity. I said: Did you count that divorce which you pronounced while she was menstruating? He said: 'Why should I not count it, I who was helpless and foolish?'

The import of this: when Ibn Umar, the protagonist of the story, was asked about divorce during menstruation and whether the Prophet had counted it against him, he answered in the affirmative: this proves that divorce during menstruation takes effect despite its being forbidden.

4. And because every state in which the marital bond is valid renders the pronouncement of divorce valid, such as the state of purity; and because divorce is the removal of a bond founded upon gravity and permanence of the act, without being specific to one moment over another, like manumission (al-Ishraf 'ala nukat masa'il al-khilaf 3/399).

Imam Ibn Battal, may Allah have mercy on him, said: divorce takes effect during menstruation according to the mass of scholars, although it is disliked in their view and is not in accordance with the Sunna; no one opposes this mass except a group of the people of innovation whose opposition cannot be taken into account. They said: 'Divorce does not take effect during menstruation nor in a purity in which intercourse has occurred': this is the view of the Zahiris, a deviation that the scholars did not deign to address, for Ibn Umar, to whom the event occurred, counted that divorce and issued a fatwa accordingly. The command of the Messenger of Allah to Ibn Umar to take back his wife is a manifest proof that divorce during menstruation is final and takes effect; for the taking back occurs only after the validity of the divorce and its final character; the one who has not divorced is not told 'take back'; it is impossible to say to a man whose wife is under his marital bond and whom he has not left: 'take her back'; rather one would say to him: 'your divorce has produced nothing'. Consider the word of Allah:

'And their husbands have the better right to take them back during that period.'
Surah al-Baqara, 228

that is, during the waiting period, and this cannot be said of the wives whom divorce has not reached.

Al-Muhallab said: his words 'what do you think if he was helpless and foolish' mean: what do you think if he was helpless to perform the taking back with which he was charged after pronouncing the divorce; and 'foolish', that is, deprived of his reason, so that the taking back became beyond him: would she remain suspended, without husband and without divorce? Allah has forbidden leaving the woman in this state, so that irregularly pronounced divorce must be counted, just as if he proved incapable of performing another obligation of Allah and became foolish without performing it: would he be excused and discharged of it? This is a rebuke of the one who thought that this divorce would not be counted. Qatada reported, from Yunus ibn Jubayr: I said to Ibn Umar: does that count as a divorce? He said: 'If Ibn Umar was helpless and foolish, what prevents it from being a divorce?' His words 'and so what?' are a question, as if he said: what would happen if he did not count that divorce? (Sharh Sahih al-Bukhari 7/384-385; see Fath al-Bari 9/351, 353).

Imam al-Mawardi, may Allah have mercy on him, said: our proof is what ash-Shafi'i reported, from Malik, from Nafi', from Ibn Umar: he divorced his wife while she was menstruating, during the lifetime of the Messenger of Allah; Umar ibn al-Khattab asked the Messenger of Allah, who said: 'Order him to take her back, then keep her until she becomes pure, then menstruates and then becomes pure; then if he wishes he may keep her, and if he wishes he may divorce her before having intercourse with her; that is the waiting period which Allah commanded for the divorcing of women'; an authentic hadith, mentioned previously. The locus of the proof is that the command to take her back entails that the divorce took effect, the taking back occurring only after divorce.

If it is said: this command to take her back is only a command to return her to him. We answer: this interpretation is invalid, for several reasons: the first, the taking back mentioned after the mention of divorce refers to the taking back of the divorce; the second, he did not mention expelling the woman, which would have warranted a command to return her, but he mentioned the divorce: the statement therefore refers to her being taken back; the third, the Muslims made this divorce of Ibn Umar a foundational reference for the divorce with right of return, the ruling of the waiting period, and the taking effect of divorce during menstruation, without resorting to this interpretation: it is therefore invalid by consensus.

Al-Hasan reported, from Abdallah ibn Umar: 'I divorced my wife while she was menstruating, and I intended to follow it with two more divorces; I asked the Prophet about that, who said: take her back. I said: and if I divorced her three times? He said: you would have finally dismissed your wife and disobeyed your Lord'; a report declared anomalous (munkar), reported by ad-Daraqutni (3974) and al-Bayhaqi in 'as-Sunan al-Kubra' (14716): it is an explicit text on the taking effect of divorce during menstruation, to which the preceding weak interpretation cannot apply.

The analogy derives from the fact that it is the divorce of a legally responsible person falling upon a bond: it must take effect as for the pure wife; and because the lifting of the divorce constitutes a leniency, whereas its taking effect constitutes a severity: the divorce of the insane does not take effect as a leniency, whereas that of the drunkard takes effect as a severity, for the insane is not disobedient whereas the drunkard is; the one who divorces during menstruation is therefore more worthy, as a severity, of seeing the divorce take effect than of seeing it lifted as a leniency. And because a prohibition that bears upon a meaning and does not return to the thing prohibited does not entail the nullity of the thing prohibited, like the prohibition of selling during the call of the Friday prayer, which does not entail the nullity of the sale (al-Hawi al-Kabir 10/115-116).

A great number of scholars have transmitted the consensus on the prohibition of divorce during menstruation or in the purity during which he has had intercourse with her.

Imam Ibn al-Mundhir, may Allah have mercy on him, said: Ibn Umar divorced his wife while she was menstruating, and the divorce was counted. Among those whose madhhab is that the divorce of the menstruating woman takes effect are al-Hasan al-Basri and 'Ata' ibn Abi Rabah; and Malik, ath-Thawri, the adherents of rational opinion, al-Awza'i, al-Layth ibn Sa'd, ash-Shafi'i, Abu Thawr, and everyone whose word we preserve among the people of knowledge said the same, except for a few people of innovation who are not to be followed (al-Ishraf 5/187).

Imam an-Nawawi, may Allah have mercy on him, said: the umma agreed on the prohibition of divorcing the menstruating woman who is thereby prevented without her consent: if he divorced her he would sin and the divorce would take effect, and he would be commanded to take her back, according to the hadith of Ibn Umar mentioned in this chapter. Some Zahiris deviated by saying: 'His divorce does not take effect, for it is not permitted to him, and it is then like the divorce of a woman not his wife.' The correct view is the first, and all the scholars hold it; their proof is the command to take her back: had it not taken effect, there would have been no taking back. If it is said: the intended taking back is the taking back in the linguistic sense, that is, the return to the initial state, without a divorce being counted; we answer: this is an error, for two reasons: the first, giving the word its legal meaning takes precedence over its linguistic meaning, as is established in the principles of fiqh; the second, Ibn Umar explicitly stated, in the narrations of Muslim and others, that this divorce was counted against him; and Allah knows best (Sharh Sahih Muslim 10/60).

The vizier Ibn Hubayra, may Allah have mercy on him, said: they agreed that divorce during menstruation for a woman with whom he has consummated the marriage, and in the purity in which intercourse occurred, is forbidden, yet it takes effect (al-Ifsah 2/167; Jawahir al-Uqud 2/103). Imam Abu Bakr al-Jassas, may Allah have mercy on him, said: the indication of the verse, of the Sunna and of the agreement entails the taking effect of divorce during menstruation, although it is a disobedience (Ahkam al-Qur'an 2/86). Ibn Abd al-Barr, may Allah have mercy on him, said: divorce during menstruation is final for the one who pronounces it, although its author did what was disliked for him, having abandoned the proper course of divorce and its Sunna. The proof that divorce is final during menstruation is the command of the Messenger of Allah to Ibn Umar to take back his wife although he had divorced her while she was menstruating; yet the taking back occurs only after the divorce has become final; had divorce during menstruation neither taken effect nor become final, he would not have said to him 'take her back', for the one who has not divorced cannot be told 'take her back'; it is impossible to say to a man whose wife is under his marital bond and whom he has not left: 'take her back'. Consider the word of Allah concerning the divorced women:

'And their husbands have the better right to take them back during that period.'
Surah al-Baqara, 228

He did not say this of the wives whom divorce has not reached. Such is the position of the mass of the jurists of the lands and of the scholars of the Muslims, although divorce during menstruation is, according to all of them, an innovation that is not in accordance with the Sunna: it is final according to all of them, and none opposes this except the people of innovation, error and ignorance, who say that divorce contrary to the Sunna does not take effect; this has been reported from some of the successors, a deviation that the people of knowledge, in fiqh as in tradition, did not deign to address in any land of the Muslims, for what we have mentioned. And because Ibn Umar, to whom the matter occurred, counted that divorce and issued a fatwa accordingly, and he is among those whose knowledge cannot be repelled by the account of his own story. And from the standpoint of examination, we know that divorce is not among the acts by which one draws near to Allah, which take effect only according to their Sunna: it is the removal of a bond in which a human being holds a right; however he pronounces it, it takes effect: if he pronounces it according to the Sunna, he is guided and does not sin; if he pronounces it otherwise, he sins and the divorce becomes final for him; it is impossible that it become final for the obedient without being so for the disobedient; if the divorce were final for the obedient one who pronounces it according to the Sunna without being so for the disobedient, the disobedient would be in a lighter state than the obedient. Some of the people of knowledge also argued that divorce during menstruation is final by the word of Allah:

'And whoever transgresses the limits of Allah has certainly wronged his own soul.'
Surah al-Baqara, 229

meaning that he disobeyed his Lord and separated from his wife; and Ibn Umar suffices you: he censured the one who thought that divorce during menstruation was not counted (at-Tamhid 15/58-59; al-Istidhkar 6/146).

Imam Badr ad-Din al-Ayni, may Allah have mercy on him, said: when the woman is divorced while menstruating, that divorce is counted, and the imams of fatwa among the successors and others agree on this; the Zahiris, the Khawarij and the Rafidis said: 'it does not take effect'; it was also reported from Ibn 'Ulayya (Umdat al-Qari 20/227).

Imam Ibn Qudama, may Allah have mercy on him, said: if he divorced in an innovated manner, that is, divorcing her while she was menstruating or in a purity in which he has had intercourse with her, he would sin and his divorce would take effect, according to the view of the majority of the people of knowledge. Ibn al-Mundhir and Ibn Abd al-Barr said: none opposed this except the people of innovation and error; Abu Nasr reported it from Ibn 'Ulayya, Hisham ibn al-Hakam and the Shia, who said: his divorce does not take effect, for Allah commanded it before the waiting period; if he divorced otherwise, it would not take effect, like the agent who pronounces it at a moment other than the one his principal ordered him. Our proof is the hadith of Ibn Umar: he divorced his wife while she was menstruating, and the Prophet ordered him to take her back. In the narration of ad-Daraqutni, he said: 'I said: O Messenger of Allah, do you see, if I had divorced her three times, would it have been permitted to me to take her back? He said: no; she would have been finally separated from you and it would have been disobedience.' Nafi' said: 'Abdallah had divorced her one divorce, and it was counted among his divorces, and he took her back as the Messenger of Allah had commanded him.' And according to the narration of Yunus ibn Jubayr, from Ibn Umar: 'I said to Ibn Umar: is it counted against you, or attributed to you? He said: yes; what do you think if he was helpless and foolish?' These are all authentic hadiths; and because it is the divorce of a legally responsible person pronounced in the locus of divorce, it takes effect like the divorce of the pregnant woman; and because it is not an act of worship for which conformity to the Sunna is considered in its taking effect: it is the removal of a bond and the severing of ownership, and its pronouncement at the time of the innovation is then more worthy of being effective, as a severity against him and as a punishment; as for one who is not the husband, he does not possess the divorce, whereas the husband possesses it by virtue of his ownership, which is its locus (al-Mughni 7/279).

The majority of scholars hold that the woman in postpartum bleeding has, in this matter, the ruling of the menstruating woman. Imam Ibn al-Arabi al-Maliki, may Allah have mercy on him, said: there is no disagreement in the umma: the ruling of the woman in postpartum bleeding, in this matter, is that of the menstruating woman ('Aridat al-Ahwadhi 5/36). The two imams Ibn Hajar and ar-Ramli said: the innovated divorce is forbidden, that is, her divorce during her menstruation or postpartum bleeding when she has been touched, that is, consummated; this is established by consensus (Tuhfat al-Muhtaj 9/462-463; Nihayat al-Muhtaj 7/3).

Shaykh al-Islam Ibn Taymiyya, Ibn al-Qayyim, the Zahiris, Ibn 'Ulayya and others held that divorce during menstruation is forbidden, but that it does not take effect. Imam al-Mawardi, may Allah have mercy on him, said: it was reported from Ibn 'Ulayya, 'the seven' (I think, and Allah knows best, that this is a scribal error and that it should read 'the Shia'), and some of the Zahiris that it does not take effect (al-Hawi al-Kabir 10/115-116).

These scholars adduced the following proofs:

1. By the word of Allah:

'When you divorce the women, divorce them for their waiting period.'
Surah at-Talaq, 1

This verse requires the distinction, with regard to the taking effect, between what is commanded and what is forbidden, just as it requires it with regard to the prohibition.

2. From Nafi', the freed slave of Ibn Umar, from Ibn Umar, may Allah be pleased with him and his father: 'Regarding the man who divorces his wife while she is menstruating, Ibn Umar said: it is not counted'; reported by Ibn Hazm in 'al-Muhalla' (10/163), whose chain was authenticated by Ibn al-Qayyim in his Hashiya on 'Sunan Abi Dawud' (6/171), and by al-Hafiz Ibn Hajar in 'Talkhis al-Habir' (3/206).

3. From Khallas ibn 'Amr: 'Regarding the man who divorces his wife while she is menstruating, he said: it is not counted'; reported by Ibn Hazm in 'al-Muhalla' (10/163), authenticated by Imam Ibn al-Qayyim in 'as-Sawa'iq al-Mursala' (2/629).

4. And what Sa'id ibn Mansur reported in his 'Sunan': Hudayj ibn Mu'awiya narrated to us, Abu Ishaq narrated to us, from Abdallah ibn Malik, from Ibn Umar, that he divorced his wife while she was menstruating; Umar went to the Messenger of Allah and said: Abdallah divorced his wife while she was menstruating; the Messenger of Allah said: 'that is nothing' (Sa'id ibn Mansur, Sunan, 1552).

5. And Abu Dawud reported, from Ibn Jurayj: Abu az-Zubayr informed me that he heard Abd ar-Rahman ibn Ayman, the freed slave of Urwa, asking Ibn Umar while Abu az-Zubayr was listening: 'What do you say about a man who divorced his wife while she was menstruating?' He said: 'Ibn Umar divorced his wife while she was menstruating, during the lifetime of the Messenger of Allah; Umar asked the Messenger of Allah and said: Abdallah ibn Umar divorced his wife while she was menstruating. Ibn Umar said: he returned her to me and saw nothing in it, and said: when she becomes pure, let him divorce her or keep her.' Ibn Umar added: 'The Prophet recited: O Prophet, when you divorce women, divorce them before their waiting period (fi qubul iddatihinna).' Authentic hadith: reported by Abd ar-Razzaq in his 'Musannaf' (10960) and by Abu Dawud (2185).

This verse belongs to what was recited, then the phrase 'before their waiting period' (fi qubul) was removed from the recitation and Allah revealed 'for their waiting period' (li'iddatihinna); this chain is of the highest authenticity, admitting no interpretation: it is an explicit text that the divorce does not take effect; had it taken effect, he would have seen something in it.

6. And because marriage can be forbidden at a given moment, namely during the waiting period or the state of ihram, just as divorce is forbidden at a moment, namely the menstruation and the purity in which intercourse occurred; yet the marriage contract in a moment of prohibition is void: divorce must therefore be likewise if it occurs in a moment of prohibition.

7. And because if he had deputized an agent to divorce his wife in the purity and the agent divorced her during menstruation, she would not be divorced, for that would not be permitted to the agent; how then could the permission of a creature be taken into consideration for the validity of divorce, and not the permission of the Lawgiver? Moreover it is known that the legally responsible person disposes only by permission: when Allah and His Messenger did not permit it, the act cannot be a locus of legal disposition at all.

8. And because the Lawgiver interdicted the husband from divorcing during menstruation, or after intercourse in the purity; were the divorce valid, the interdiction of the Lawgiver would be devoid of meaning; yet the interdiction of the judge upon one he has barred from disposition is stronger than the interdiction of the Lawgiver, since the disposition becomes valid again with his interdiction. They say: thus do we declare void the sale during the call of the Friday prayer, for it is a sale for which the Lawgiver forbade this moment to the seller: it cannot therefore be executed nor validated.

9. And because it is a forbidden and prohibited divorce, and the prohibition entails the nullity of the thing prohibited; were we to validate it, there would no longer be any difference, as regards validity and nullity, between what is forbidden and what is permitted.

10. And because the Lawgiver only forbade it and made it forbidden because He hates it and does not love its taking effect: its occurrence is hateful to Him; He therefore forbade it so that what He hates and dislikes should not occur; yet its validation and execution run counter to this purpose.

11. And when forbidden marriage is not valid on account of the prohibition, what difference is there with divorce? How do you annul what Allah forbade of marriage and validate what He made forbidden and prohibited of divorce? The prohibition entails nullity in both places.

12. And the general ruling of the Messenger of Allah suffices us, a ruling without restriction that rejects everything contradicting his command, declaring it null and abolishing it; as in the Sahih, from the hadith of 'Aisha, may Allah be pleased with her:

'Every deed that is not in accordance with our command is rejected.' And in another wording: 'Whoever performs a deed that is not in accordance with our command, it is rejected.'Reported by Muslim (1718)

This is explicit: this forbidden divorce, which is not in accordance with the command of the Prophet, is rejected and void; how then can it be said to be valid, final and effective? Where is that in relation to its declaration of nullity?

13. And because it is a divorce that Allah never legislated, a rejected and void divorce, like the divorce of a woman not one's wife; the distinction that the other woman is not a locus of divorce, unlike the wife, is of no avail to you: this wife is not a locus of forbidden divorce, and it is not among what the Lawgiver granted her.

14. And Allah commanded the release only with kindness; and nothing is worse than the release that Allah and His Messenger forbade. What warrants the marriage contract is one of two things: retention with kindness or release with kindness; the forbidden release is a third thing, foreign to both: it can carry no consideration whatsoever.

15. Allah said:

'O Prophet, when you divorce women, divorce them for their waiting period.'
Surah at-Talaq, 1

And it is authentically established that the Prophet, who explains the word of Allah, specified that the legislated, permitted divorce is the one occurring at the time of purity without intercourse, or after the pregnancy is established; whatever exceeds these two cases is not a divorce opening the waiting period for the woman with whom the marriage was consummated: it is therefore not a divorce; how then could the woman become forbidden by it?

16. They say: Allah said:

'Divorce is twice.'
Surah al-Baqara, 229

It is known that He intended only the permitted divorce, the one that opens the waiting period: this proves that what exceeds these cases does not belong to divorce; He indeed restricted the legislated, permitted divorce, by which man holds the right of return, to two repudiations: what exceeds is therefore not divorce. They say: for this reason the companions, may Allah be pleased with them, said that they could not manage to issue fatwas on the forbidden divorce; as Ibn Wahb reported, from Jarir ibn Hazim, from al-A'mash, that Ibn Mas'ud said: 'Whoever divorces as Allah commanded, Allah has made it clear to him; whoever contravenes, we cannot follow his contravention'; had the divorce of the contravener taken effect, issuing fatwa on it would not have been impossible, and the distinction would have lost its meaning had both types been effective.

17. And because this contradicts piety (wara'): you permit her intimacy to a stranger without clarification; yet piety consists in this, that the wife of a Muslim, of whom we are certain that Allah made her lawful to him and forbidden to anyone other than him, should not become forbidden except on the basis of certainty, not on the basis of conjectures and probabilities.

18. As for your argumentation by the hadith of Ibn Umar, here is the answer: the taking back (muraja'a) in the speech of Allah and of His Messenger is used in three senses: it serves the initial contract, the retention of the divorced woman, and the retention of the one upon whom no divorce has taken effect.

The first: the initiation of marriage, as in the word of Allah:

'If he divorces her, she shall not be lawful to him afterwards until she marries another husband; and if he divorces her, there is no sin upon both of them if they return to one another, if they think they can uphold the limits of Allah.'
Surah al-Baqara, 230

No scholar of the Qur'an disagrees: the one who divorces here is the second husband, and the taking back is understood between her and the first husband: it is a new marriage. The second: the taking back of the divorced woman, in the word of Allah: 'And their husbands have the better right to take them back during that period': that is the taking back of the divorced woman. The third: the sensory return to the initial state: 'he returned her to me'; like his word to Abu Nu'man ibn Bashir, when he had gifted a slave boy to his son, favoring him over his other children: 'return it': this is the return of a lawful gift that the Messenger of Allah called injustice, informing that it cannot stand and that it contradicts equity. Likewise his word to the one who had separated a slave girl from her child in a sale: he forbade him and annulled the sale; this return does not entail the validity of the sale, for it is a void sale: it is the return of two things to their state of being joined as they were. The same applies to the command given to Ibn Umar to take back his wife: it is a return to the state of being joined as they were before the divorce; nothing of this requires that divorce during menstruation take effect.

Likewise: had the divorce taken effect, the return that would lead to divorcing her in the first or second purity would constitute an excess and a harm to her, and an increase in the disliked divorce; there is no benefit in that, neither for him nor for her; and had the divorce taken effect, his return in order to divorce her a second time would constitute an additional harm; yet the Prophet did not prevent him from divorcing, he permitted it to him at the onset of the purity, although he desired the divorce; it is thus known that he only commanded him to keep her and to postpone the divorce to the moment in which it is permitted, just as the one who did a thing before its time is commanded to undo what he did and to do it, if he wishes, at its time, according to his word: 'Whoever performs a deed that is not in accordance with our command, it is rejected': the forbidden divorce is not in accordance with the command of Allah and of His Messenger, it is therefore rejected. The Prophet commanded him to postpone the divorce to the second purity so that he could have intercourse in the first: had he divorced her in it, he would have been permitted to divorce her only before intercourse; the command to keep her would therefore have entailed only an additional harm to her had he divorced her in the first purity.

As for his words 'what do you think if he was helpless and foolish': glory be to Allah! Where is the clarification, in this wording, that the Messenger of Allah counted that divorce against him? Legal rulings are not derived from such words; had the Messenger of Allah counted it and attributed it to him, he would not have forsaken the answer by his act and his law to say 'what do you think'; and Ibn Umar would have hated 'what do you think' more than anything: how could the one questioned forsake the explicit Sunna for the phrase 'what do you think', which indicates a kind of opinion born of the helplessness and foolishness of the divorcer to pronounce the divorce in the manner Allah permitted him? What is most apparent for such a divorce is that it is not counted and that it falls away from its doer; for in the religion of Allah there is no effective ruling whose cause is helplessness and foolishness in complying with the command, unless it be an act that cannot be undone, unlike forbidden contracts: whoever concludes them in a forbidden manner is helpless and foolish; it is then said: this indicates rejection more than validity and finality: it is the contract of a helpless fool, contrary to the command of Allah and of His Messenger; it is therefore rejected and void. This opinion and this analogy therefore indicate the nullity of the divorce of the one who is helpless and foolish more than its validity and its counting.

As for his words 'it was counted among his divorces', it is a passive form whose agent is not named: when the agent is named, it will be known whether his counting constitutes proof or not; the counting of an unnamed agent constitutes no proof at all, whether the one who said 'it was counted' was Ibn Umar, or Nafi', or less; nothing in it indicates that the Messenger of Allah is the one who counted it, so that proof would follow from it and opposition to it be forbidden. It thus appears that the other hadiths do not contradict the hadith of Abu az-Zubayr, which is explicit that the Messenger of Allah saw nothing in it; the other hadiths are concise, without clarification.

As for the claim of consensus, it is invalid because of the existence of opponents; the consensus that establishes proof, cancels all excuse and renders opposition forbidden is the definitive, known consensus.

As for your claim that the forbidden divorce falls under the texts on divorce and their general coverage of both types, as in the word: 'if he divorces her, she shall not be lawful to him afterwards until she marries another husband', which covers every divorce; likewise 'the divorced women wait for three periods', without distinction; likewise 'divorce is twice' and 'and for the divorced women': we ask you: what do you say of the one who claims that the types of forbidden sales and forbidden marriages fall under the texts on sale and marriage, asserting that the noun covers the valid and the void alike, and likewise for all forbidden contracts that would fall under the terms of the legislated contracts, and for the forbidden, prohibited acts of worship that would fall under the legislated terms, granting them validity by the general coverage of the noun: is such a claim valid or void? If you say 'valid' (which is impossible), it would be a view whose corruption is known by necessity of religion; if you say 'the claim is void', you would have abandoned your view and returned to what we said; and if you say 'it is accepted in one place and rejected in another', it will be said to you: then distinguish by a valid, general and reciprocal criterion, which the proof of Allah establishes in your favor, between what, among the forbidden contracts, falls under the terms of the texts and obtains validity, and what does not fall under them and obtains nullity.

They say: your argumentation by the hadith of Ibn Umar is closer to being a proof against you than for you, for several reasons: the first, his explicit words 'he returned her to me and saw nothing in it', whose authenticity has been set out; this explicit, authentic text escapes you, and you cannot withstand it in either place; all those wordings are either authentic without being explicit, or explicit without being authentic, as you shall see. The second: it is authentically established from Ibn Umar, may Allah be pleased with him, by a chain like the sun, according to the narration of Ubayd Allah, from Nafi', from him: 'regarding the man who divorces his wife while she is menstruating, he said: it is not counted', as has passed. The third: had there been something explicit on the counting, he would not have shifted to mere opinion in saying to the questioner 'what do you think'. The fourth: the wordings reported from Ibn Umar in this matter varied greatly, all authentic from him: this indicates that he had no explicit text from the Messenger of Allah on the taking effect and the counting of that divorce; when those wordings conflicted, we considered the madhhab of Ibn Umar and his fatwa, and we found his statement explicit on the non-taking of effect, as well as one of the wordings of his hadith: his explicit narration and his fatwa thus agreed on the non-counting, opposed by concise and varying wordings, as has been set out.

As for the words of Ibn Umar, may Allah be pleased with him: 'why should I not count it', and his words 'what do you think if he was helpless and foolish': at the very most it is an explicit narration from him of the taking effect, and he would then have two narrations.

As for your words: 'how does he issue a fatwa on the taking effect when he knows that the Messenger of Allah returned her to him without counting it against him?': this is not the first hadith that its narrator contradicted, and he has, along with other hadiths contradicted by their narrators, an excellent precedent in preferring the narration of the companion and of those who follow him over his own opinion.

As for your words: 'marriage is a blessing, so its cause can only be obedience, unlike divorce, which belongs to the removal of blessings, so that its cause may be disobedience': it may be said that divorce is among the greatest of blessings by which the divorcer unfastens the collar from his neck and the chain from his foot: not every divorce is a scourge; it belongs to the perfection of the blessing of Allah upon His servants that He enabled them to separate by divorce, when one of them wishes to replace a wife with a wife and to free himself from one he does not love or who does not suit him: nothing has been seen for lovers like marriage, nor for those who hate one another like divorce. How could it be a scourge while Allah says:

'No blame shall attach to you if you divorce women so long as you have not touched them.'
Surah al-Baqara, 236

and He says:

'O Prophet, when you divorce women, divorce them for their waiting period.'
Surah at-Talaq, 1

As for your words: 'the private parts must be safeguarded': yes, and that is what we said likewise: we safeguarded by keeping both spouses upon the certainty of marriage until there comes what destroys it with certainty. If we err, our error lies in one direction; if we are right, our correctness lies in two directions: that of the first husband and that of the second. You, you commit two things: the forbidding of intimacy to the one for whom it was certainly lawful, and its permitting to another; if there is error, it lies in two directions: it thus appears that we are the most worthy of precaution. Imam Ahmad said, in the narration of Abu Talib, regarding the divorce of the drunkard, a precaution of the same kind: the one who does not command divorce committed only one trait; the one who commands it committed two: he made it forbidden to him and lawful to another; this is therefore better than that.

All of the above is to be consulted in: Majmu' al-Fatawa (33/98, 101); Jami' al-Masa'il (1/338, 340); Zad al-Ma'ad (5/223, 240); the Hashiya of Ibn al-Qayyim on 'Sunan Abi Dawud' (6/165, 178); 'as-Sawa'iq al-Mursala' (2/628, 631); al-Hawi al-Kabir (10/115-116); 'al-Muhalla' (10/163, 166). What is authentically established from the Messenger of Allah must be followed, and no other hadith abrogates it: it is our duty, and that of the umma, to follow his hadith and to abandon everything that contradicts it, without abandoning it for the opposition of anyone among the people. The completion of this research is found in 'I'lam al-Muwaqqi'in' and 'Ighathat al-Lahfan' of al-Hafiz Ibn al-Qayyim, in an independent treatise of al-Matini, and in our book 'Misk al-Khitam': let the seeker refer to them for the details and the verification. And success comes from Allah (ar-Rawda an-Nadiya 2/250-257).

Imam Ibn Rushd, may Allah have mercy on him, said: as for the third locus, the ruling of the one who divorces during menstruation: the people differed over it in several positions. The majority said: his divorce stands; a group said: it is not executed and does not take effect. The majority indeed held that divorce, if it occurs during menstruation, is counted and constitutes a divorce, by the word of the Prophet, in the hadith of Ibn Umar: 'order him to take her back'; the taking back, they say, occurs only after a divorce (Bidayat al-Mujtahid 2/48-49).

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بسم الله الرحمن الرحيم Fri 12 Rabi' al-Thani
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