Is divorce issued during the wife's menses or during a period of purity in which intercourse occurred valid?
General Chapter
Al-Mughni
Book of Divorce
Primary text
Divorce issued in contravention of the Sunnah, specifically while the wife is menstruating or during a period of purity where coitus took place, is sinful, yet the divorce takes effect. This is the position of the general body of scholars. The evidence for this is the narration of Ibn Umar, where the Prophet, peace be upon him, commanded him to revoke the divorce issued while his wife was menstruating. In one narration, when asked if divorcing three times would prevent reconciliation, the Prophet replied, "No, she would be irrevocably separated from you, and it would be an act of disobedience." Ibn Umar subsequently counted that single pronouncement against his total allowed divorces and revoked the decision as commanded. This divorce is effective because it is pronounced by a legally responsible individual concerning the subject matter of divorce, similar to the divorce of a pregnant woman. Moreover, divorce is not an act of worship requiring adherence to the Sunnah for validity; rather, it is the removal of a binding tie and the termination of ownership, making its occurrence in a time of innovation a stronger ground for its validity as a means of severe admonishment and punishment for the husband.
Supporting text
A minority view, attributed to the people of innovation and misguidance, specifically by Ibn al-Mundhir and Ibn Abd al-Barr, holds that such a divorce does not take effect. This view was attributed by Abu Nasr to Ibn Ulayyah, Hisham ibn al-Hakam, and the Shia sect, who argue that since God commanded divorce to occur before the waiting period (Iddah), its pronouncement outside of that prescribed time is invalid, analogous to an agent exceeding the scope of his principal's authorization.