Divorce: Prohibition of divorce during menstruation

Q163 :Prohibition of divorce during menstruation

A163 : When divorce becomes 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 come 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 become 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 commanded 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 become effective or not? The prevailing opinion is that it does become effective, although the husband will be considered sinful. However, some jurists hold that, it does not become 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 commanding him to take her back, disregarding his pronouncement of divorce.

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