The Ruling on Divorcing a Menstruating Woman, and Does it Count?

Question :

There is a woman who is the mother of two children and her husband divorced her. At the time of the divorce, she was not purified, but she did not inform her husband of this, and even when they went to the Judge, she hid this fact from him, although she told her mother, who said: "Do not inform the Judge of it, for if you do, you will not be divorced." Then she went to her family, then she wanted to return to her husband, out of fear that the children would go astray and not be taken care of. So what is the ruling on this divorce which occurred when she had her monthly period?

Answer:

Scholars disagree regarding the divorce which takes place while the woman has her monthly period, and the debate about this is lengthy. As to whether the divorce is valid or invalid: The majority of scholars hold the view that it is valid, and the woman is considered to have been divorced once accordingly. But he (the husband) is ordered to take her back and to keep her until she becomes purified from her menses, then she has another menstrual period, then she becomes. purified again. After that, if he wishes, he may take her back and if he wishes, he may divorce her. This is the opinion of the majority of the scholars, including the four Imams, Imam Ahmad, Ash-Shafi'i, Malik and Abu Hanifah.

However, the more authoritative opinion in our view is that which was the choice of Shaikh Al-Islam Ibn Taimiyyah - may Allah have mercy on him which is that divorce at the time of the monthly period is not counted, nor is it valid.

This is because it contradicts the Command of Allah and His Messenger. The Prophet ﷺ said:
"Whoever performs a deed which is not from this matter of ours will have it rejected."

The evidence for this in the very same question is the Hadith of 'Abdullah Ibn 'Umar, may Allah be pleased with them, who divorced his wife during her menstrual period. The Prophet ﷺ was informed of it and he became very angry with him and said:
"Order him to take her back, then leave her until she is purified, then she has a menstrual period, then becomes purified. Then if he wishes, he may keep her after that, and if he wishes, he may divorce her."

The Prophet ﷺ said: "This is the waiting period which Allah has commanded for divorcing women.

So the waiting period which Allah has commanded for divorcing of women, is that the man divorces her while she is in a state of purity, without having sexual intercourse with her. Based upon this, if he divorces her while she is menstruating and he does not divorce her according to the Command of Allah, then it is rejected.

So we consider that the divorce which was pronounced upon this woman is invalid and that the woman remains under her husband's guardianship; and whether the man believed her to be purified or not when he divorced her, it does not matter.
Yes,consideration is not given to his knowledge, but if he knew, he incurs a sin while the divorce is not counted. And if he did not know, the divorce is invalid and there is no sin upon the husband.