Does a divorce pronounced by the husband apply to a woman who has executed Khul' while she is in her waiting period ('iddah)?

General Chapter

Al-Mughni

Book of Khul' (Redemption Divorce)

Book 38 · Issue 2 · Bab 1

Open in Qurani

Primary text

A divorce pronounced by the husband does not take effect upon a woman who has concluded Khul' while she is in her waiting period. This is the established position of Ibn 'Abbās, Ibn az-Zubayr, 'Ikrimah, Jābir ibn Zayd, Al-Hasan, Ash-Sha'bī, Mālik, Ash-Shāfi'ī, Isḥāq, and Abū Thawr. The evidence for this is the position held by Ibn 'Abbās and Ibn az-Zubayr, regarding whom no contrary opinion is known in their time. Furthermore, she cannot be lawful to him except through a new marriage contract; therefore, his divorce does not apply to her, similar to a woman divorced before consummation or whose waiting period has ended. Since he does not legally possess her private parts (*bid'ah*), his divorce does not take effect, similar to a non-related woman (*ajnabiyyah*). Finally, since an unrestricted divorce (*talaq mursal*) or an implicit divorce does not apply to her, a specific, explicit divorce also should not apply, mirroring the ruling for a woman divorced before consummation. This applies whether he addresses her directly ('You are divorced') or indirectly (e.g., 'So-and-so is divorced').

Supporting text

It is reported that Abū Ḥanīfah held that an explicit, specified divorce applies to her, but an implicit divorce or an unrestricted divorce (such as saying, 'Every wife of mine is divorced') does not apply. Similar views are narrated from Sa'īd ibn al-Musayyib, Shurayḥ, Ṭāwūs, an-Nakh'ī, az-Zuhri, Al-Ḥakam, and Ath-Thawrī, based on the Hadith: 'A woman who has performed Khul' has divorce applied to her as long as she remains in the waiting period.' This latter opinion is refuted based on the primary evidence provided above.