Q163 :Prohibition of divorce during menstruation
A163 : When divorce benetes necessary, it is not
permissible for the Muslim to implement it any time he pleases; he must
wait for a suitable time. According to the Shari’ah, this suitable time
is when the woman is clean following her menstrual period or the period
of perpetual discharge following childbirth and before her husband has
resumed sexual relations with her, or when she is pregnant and her
husband is aware of her pregnancy. The reason for prohibiting divorce
during menstruation or the period of puerperal discharge is that,
since during such periods sexual intercourse is haram, the idea of
divorce may nete to a man’s mind because of sexual frustration and
nervous tension. He is therefore advised to wait until his wife is
clean and to divorce her then, if he is intent on divorce, before the
resumption of marital relations. Just as divorce during menstruation
is haram, it is likewise haram between menstruation periods (i.e. “the
period of purity”) if the husband has had intercourse with his wife
following the termination of her previous period. Because it is
possible that she may have benete pregnant from this union, the husband
may change his mind concerning divorce when he knows that his wife is
carrying a child, desiring to stay married to her for the sake of the
embryo in her womb. However, when the wife is in the period of purity
but he has not had intercourse with her following the termination of
her menses, or when she is pregnant and he is aware of it, he will be
able to ascertain that his intention to divorce her is the result of
deep-seated antipathy, and accordingly is permitted to carry through
with the divorce. In the Sahih of Al-Bukhari, it is transmitted that
‘Abdullah bin Umar mentioned [such a]matter to the Messenger of Allah,
he became angry, saying: “He must take her back. If he still wishes to
divorce her, he may do so when she is clean of the menstrual discharge
before having intercourse with her, for that is the period of waiting
which Allah has prescribed for divorce” He referred to the ayah, “O
Prophet, when you (men) divorce women, divorce them during the
prescribed periods.”(65:1). Another version of this hadith reads: “He
netmanded him to take her back and then divorce her when she is clean
from the menstrual discharge or (otherwise) is pregnant.” A question
now remains: If a person does divorce his wife during these prohibited
periods, does the divorce benete effective or not? The prevailing
opinion is that it does benete effective, although the husband will be
considered sinful. However, some jurists hold that, it does not benete
effective, as Allah did not legislate it so and whatever is not legal
cannot be correct or enforced. Abu Daoud, on sound authority, has
transmitted that when Abdullah bin Umar was asked, “What would you say
if a man were to divorce his wife during menstruation?” he related his
own story of divorcing his wife during her period and the Prophet’s
netmanding him to take her back, disregarding his pronouncement of
divorce.
Our Dialogue ( Source : Arab News – Jeddah )