Hadith 3358

(1) The statement: “Let him take her back…”: In Hidayah, if a man divorces his wife during menstruation, the divorce occurs, and it is recommended to take her back. This Hadith indicates occurrence and encourages revocation. Some scholars say revocation is recommended, but the most correct view is that it is obligatory to act on the command’s reality and mitigate sin by lifting its effect (the waiting period) and avoiding harm from extending it. When she becomes clean, menstruates, then becomes clean, he may divorce or keep her. Hidayah cites Muhammad in Al-Asl (Al-Mabsut). At-Tahawi says he divorces her in the clean period following the first menstruation. Abu al-Hasan al-Karkhi says At-Tahawi’s view is Abu Hanifah’s, while Al-Asl’s is Abu Hanifah’s and his companions’. Al-Asl’s rationale is that Sunnah divorce requires a menstruation between divorces. Here, part of a menstruation separates, completed by the second, ensuring the second clean period is Sunnah-compliant. The other view holds that revocation nullifies the divorce’s effect, as if it did not occur during menstruation, so divorce in the following clean period is Sunnah. In Radd al-Muhtar, Al-Asl is the apparent narration, per Al-Kafi and the apparent school view. All agree that if he takes her back during menstruation, he withholds divorce until she becomes clean, menstruates, then becomes clean, not divorcing in the clean period of the menstruation divorce, as it is innovated, per Bahr and Minh. The author’s wording allows this. The statement: “That is the waiting period…”: For Ash-Shafi‘i, the reference is the clean period, and “laha” means “in”, supporting his view that the waiting period is by clean periods. If by menstruations, divorce would be commanded during menstruation, which is not so. We respond: For us, the reference is menstruation, and we do not concede “laha” means “in”. It indicates consequence (future), as in “Prepare for winter” or “Three days remain of the month,” meaning future. Az-Zamakhshari says on “So divorce them at their prescribed periods” [At-Talaq: 1], it means facing their waiting periods, as in Al-Marqah and Umdat al-Qari (summarized).

(2) The statement: “Then divorce her while clean or pregnant”: Ash-Shafi‘i say this Hadith indicates menstruation and pregnancy can coincide, and a pregnant woman’s divorce is permissible if menstruating, as her waiting period (delivery) is not extended. For us, a pregnant woman does not menstruate; any blood is istihadah (non-menstrual bleeding). I say: The Hadith does not prove a pregnant woman menstruates but suggests she does not, equating divorce permissibility for clean and pregnant women. Since divorcing a menstruating woman is innovated, it indicates a pregnant woman does not menstruate, thus equated with the clean, as in Bazl al-Majhood.