A Useful Discussion on Innovated Divorce (Ṭalāq Bidʿī)

Answer—and Allah is the One who grants success: Divorce during menstruation and during post-partum bleeding is prohibited and is called “innovated divorce (ṭalāq bidʿī).” They adduced as evidence His—Exalted is He—saying: "So divorce them at [the commencement of] their waiting period." [At-Talāq:1], and the ḥadīth of Ibn ʿUmar, in which it is [reported that the Prophet (May Allah bless him and his family and grant them peace)] said: “This is not how your Lord commanded you; He commanded you to face the period of purity.” Ibn ʿUmar had divorced his wife while she was menstruating, so the Prophet (May Allah bless him and his family and grant them peace) ordered him to take her back, then keep her until she became pure, then she menstruated once more with him, then keep her until she became pure a second time with him; then, if he wished to divorce her, he should divorce her when she becomes pure—before having intercourse with her. That is the waiting period for which Allah commanded that women be divorced.
As for whether innovated divorce takes effect or not, the scholars differed: the majority held that it does take effect.
Al-Nāṣir, al-Bāqir, al-Ṣādiq, the Imāmiyyah, and many others held that it does not take effect. What may indicate the soundness of their view includes the following:
1. The statement reported from Ahl al-Bayt (May Allah bless them), from the Prophet (May Allah bless him and his family and grant them peace): “There is no word nor deed except with intention; and there is no word, nor deed, nor intention except by conformity to the Sunnah.”
2. His statement (May Allah bless him and his family and grant them peace) as reported by the ḥadīth scholars: “Whoever’s matter is not in accordance with our affair is rejected.”
3. The Ummah’s agreement on calling that divorce “innovated (bidʿī),” and the well-known ḥadīth: “Every innovation is misguidance, and every misguidance is in the Fire.”
4. Innovated divorce is forbidden; and a command to do something entails a prohibition of its contrary. It is established in uṣūl that “a prohibition of a thing implies its invalidity.”
5. If a man appoints another to divorce his wife with a legally valid divorce, and the agent pronounces an innovated divorce, it does not take effect—so said the jurists. The case at hand is analogized to that.
If it be said: It is established that the Prophet (May Allah bless him and his family and grant them peace) commanded Ibn ʿUmar to take his wife back, keep her until she menstruates and becomes pure, then if he wishes he may divorce her during that period of purity without intercourse… as he (May Allah bless him and his family and grant them peace) said. This ḥadīth is well-known.
The Prophet’s (May Allah bless him and his family and grant them peace) order to Ibn ʿUmar to “take her back” indicates that divorce had occurred.
We say: What is meant is linguistic “taking back”—i.e., “restore her to yourself”—not that she had exited the bond of marriage. The evidence:
1. Sin is not remedied by revocation, but by repentance.
2. It is far-fetched that the Prophet (May Allah bless him and his family and grant them peace) would order him to take her back merely so that her husband could inflict upon her a second divorce in accordance with the Sunnah—given the report: “The most detestable of lawful things to Allah is divorce,” and His—Exalted is He—saying: "But perhaps you dislike a thing and Allah makes therein much good." [Al-Nisāʾ:19].
3. Ibn ʿUmar’s objective had already occurred, and cannot be undone.
Hence, what is more likely is that what is meant by “take her back” is: restore to her what is due to her of provision and conjugal rights until the time arrives in which Allah has permitted that women be divorced.
Moreover, “revocation (murājaʿah)” in the language is returning to something, whether after a divorce or not.
If it be said: Some narrations of the ḥadīth of Ibn ʿUmar state that the Prophet (May Allah bless him and his family and grant them peace) counted that pronouncement as a divorce.
We say: There are also narrations of the ḥadīth of Ibn ʿUmar stating that the Prophet (May Allah bless him and his family and grant them peace) did not regard it as anything.
Al-Muʾayyad Billāh narrated in Sharḥ al-Tajrīd, with his chain to Ibn ʿUmar: “I divorced my wife while she was menstruating, so he returned her to me until I divorced her while she was pure.”
Yes, this may receive some corroboration from what occurred regarding ẓihār: ẓihār was a form of divorce in the Jāhiliyyah. Aws ibn al-Ṣāmit performed ẓihār against his wife Khawlah based on that pre-Islamic custom; she came to seek a ruling from the Prophet (May Allah bless him and his family and grant them peace) regarding that matter, and Allah Most High revealed the rulings of ẓihār at the beginning of Sūrat al-Mujādilah.
The point of corroboration is that Allah Most High did not treat that pre-Islamic form of “divorce” as a divorce in Islam; rather, He made expiation obligatory for it, due to the sin involved in the repugnant and false statement.
This also finds general corroboration in what the Noble Qurʾān relates concerning divorce: when Allah Most High mentioned divorce and the rulings consequent upon it, He intended thereby the legislated divorce which He permitted. Hence the Prophet (May Allah bless him and his family and grant them peace) became angry with Ibn ʿUmar when he contravened that, and ordered him to restore his wife until the time in which Allah has permitted that women be divorced—if he so wished.
Had the divorce of Ibn ʿUmar had binding legal effect in the Prophet’s (May Allah bless him and his family and grant them peace) law, he would have acknowledged it, obliged him to repent and seek forgiveness, and there would have been no benefit in commanding “revocation”: such a command would either be to effect a divorce (and that had already occurred), or to nullify it (which would not be valid), or to repeat it in a more perfect form—something that applies only in acts of worship, whereas divorce is not an act of worship. Nor is it fitting for the Messenger (May Allah bless him and his family and grant them peace) to compel him to effect a second divorce, given the established dislike of divorce in the Sacred Law.
Al-Hādī (peace be upon him) adduced a similar line of reasoning for the invalidity of temporary marriage (mutʿah) and the invalidity of marrying a woman of the People of the Book, based on the verse of inheritances.
What we have set forth is also corroborated by His—Exalted is He—saying: "And their husbands have more right to take them back in that [period] if they intend reconciliation." [Al-Baqarah:228]. The purport is that Allah Most High conditioned the husband’s priority in revocation upon intending reconciliation.
Accordingly, the husband has no right to revocation if his intent by it is to double the divorce; thus it is far-fetched that the Prophet (May Allah bless him and his family and grant them peace) would command Ibn ʿUmar to “take her back” for the sake of divorcing her.
What is then more likely is that the “revocation” intended in the ḥadīth is revocation in the linguistic sense.
Yes: the contextual indications in the ḥadīth of Ibn ʿUmar point to what we have said, namely:
1. The Prophet (May Allah bless him and his family and grant them peace) stood up and became angry.
2. His statement: “Is he playing with the Book of Allah while I am present?” or words to that effect.
3. His statement: “Order him to take her back, then leave her until… then if he wishes, let him divorce her…” etc., or words to that effect—this all but states explicitly what we have said: that what is intended is linguistic revocation; that his “divorce” was frivolous and not to be regarded; and that the valid divorce is that to which the Prophet (May Allah bless him and his family and grant them peace) guided.
As for what is narrated from ʿAlī (peace be upon him): “Whoever divorces according to the Sunnah does not regret,” and his statement: “If people took Allah’s command in divorce, no man would ever pursue a woman [after her]; he divorces her one pronouncement, then leaves her until she menstruates three times; whenever he wishes, he takes her back”—it may be understood from the first that whoever divorces in an innovated way will regret, which might imply that the divorce occurs; likewise the other narration might imply the same.
We say: What you have cited relies upon implication, while it is also open to other interpretations—as in the second narration, where “what Allah commanded” is explained as divorcing her one pronouncement, then leaving her, etc. Our case here concerns divorce during menstruation and post-partum bleeding.
The Arguments of Those Who Hold That It (Bidʿī Divorce) Takes Effect
In Sharḥ al-Aḥkām, with its chain, from ʿAlī (peace be upon him), that he used to say: “Divorce within the waiting period is as Allah commanded; whoever divorces not according to the waiting period has disobeyed and separated from his wife.”
Al-Hādī (peace be upon him) narrated in al-Aḥkām from al-Qāsim (peace be upon him) that he was asked about one who divorced a menstruating woman; he said: “He missed his portion, and what he bound upon himself is binding upon him.” Among that is the ḥadīth of Ibn ʿUmar, in which: “Then let him take her back,” and also: “and that counts as one.”
And in al-Aḥkām: “Know—may you be guided—that divorce takes effect in all cases for every woman whose marriage bond is possessed by her husband, if the one who holds her bond utters her divorce—even if the divorcer has erred against the discipline of his Lord and deviated from what He directed him to of right guidance. That is the statement of my forefather, the Chosen One (the Prophet—May Allah bless him and his family and grant them peace), and the statement of ʿAlī ibn Abī Ṭālib, my grandfather, and the statement of my forefathers before me, and my own statement.”
And in the Amālī of Aḥmad ibn ʿĪsā: from ʿAlī (peace be upon him) concerning a man who divorces his wife while she is menstruating: “She does not count that menstruation; rather, she begins (a new count of) three menstruations.”
Everything cited in this discussion from the Prophet (May Allah bless him and his family and grant them peace) is the ḥadīth of Ibn ʿUmar, and His saying—Exalted is He: “So divorce them for [the commencement of] their waiting period.” [At-Talāq:1], as in al-Baḥr and its transmission from Ibn Bahrān, and in al-Iʿtiṣām and the Amālī of Aḥmad ibn ʿĪsā and its transmission in Raʾb al-Ṣadʿ, and what is narrated from ʿAlī (peace be upon him) in Sharḥ al-Aḥkām, and what al-Hādī (peace be upon him) mentioned, as above, and what is in the Amālī of Aḥmad ibn ʿĪsā.
And it appears that the principal proof therein is what came from the Prophet (May Allah bless him and his family and grant them peace) in the ḥadīth of Ibn ʿUmar. Hence al-Hādī (peace be upon him) narrated from his grandfather al-Qāsim ibn Ibrāhīm (peace be upon him) concerning a woman divorced while menstruating: “Her divorce binds her; then he (the husband) takes her back until he separates from her with the Sunnah-separation, in a purity from her without intercourse or approach.” It is as if this is an explanation of the ḥadīth of Ibn ʿUmar, and al-Hādī narrated it, as in the Yaḥyāwī chains. Thus it becomes clear to us that the main reliance is the ḥadīth of Ibn ʿUmar.
As for the ḥadīth in Sharḥ al-Aḥkām from ʿAlī (peace be upon him), and the ḥadīth of Ibn ʿUmar, there is in them what we have previously mentioned of possibility, along with the evidencing of it; and, as we have also mentioned, there is disagreement among narrators over whether the Prophet (May Allah bless him and his family and grant them peace) counted his pronouncement as a divorce or not—this variance is mentioned in Minḥat al-Ghiffār.
And there is also, as in the transmission of al-Baḥr, that Ibn ʿUmar divorced his wife three times, so the Prophet (May Allah bless him and his family and grant them peace) commanded him to take her back… etc.
As for the report from ʿAlī (peace be upon him), it may have a sound chain among the Zaydīs; but the ḥadīth scholars do not judge such a chain to be sound.
Yes: the view of those who hold that divorce (bidʿī) takes effect—like al-Hādī (peace be upon him) and the majority of Ahl al-Bayt (peace be upon them) and others—is strengthened by precaution, especially concerning private parts. Hence the Prophet (May Allah bless him and his family and grant them peace), when a questioner asked him—having wished to marry a woman—saying: “A black bondwoman has claimed that she suckled me and her; and I think she is lying,” the Prophet (May Allah bless him and his family and grant them peace) said: “What of it, given that it has been said?” (or as he said).
And it is strengthened by the fact that it is the madhhab of most of the ʿitrah and of the Ummah.
As for the statement of the minority among the ʿitrah and the Ummah—those who hold that it does not take effect—their statement is bolstered by accepted and agreed-upon principles: such as the ḥadīth reported among Ahl al-Bayt (peace be upon them): “…there is no word, nor deed, nor intention except by conformity to the Sunnah,” and the ḥadīth reported among Ahl al-Sunnah: “Whoever’s matter is not in accordance with our affair is rejected,” and by the agreement of the disputants on calling it “innovated divorce,” that it is forbidden divorce, that its doer is sinful and disobedient, and that the default—according to all—is the continuance of the marriage.
The uṣūlīs say: a prohibition indicates the invalidity of the prohibited act—in the sense that the effects intended from it do not attach to it—meaning that it is not to be given legal consideration. Among its examples in the Qurʾān is His saying—Exalted is He: “And do not resolve on the tie of marriage until the decree reaches its term.” [Al-Baqarah:235], and many others. And in the Sunnah are many examples, such as: “The muḥrim does not marry, nor is he married,” “A woman is not to be married over her paternal or maternal aunt,” and “Do not sell wheat for wheat except equal-for-equal, hand to hand,” and many others.
Yes: it is established that the laws are (set for) benefits, as the scholars of uṣūl have stated. So when a prohibition comes in the Sharīʿah, it is only because the prohibited matter entails some harm; such harms Allah Most High does not want nor approve—by His proof: “Allah intends for you ease and does not intend for you hardship.” [Al-Baqarah:185]. From this, the prohibition of innovated divorce is due to the harm it entails; therefore bidʿī divorce and what ensues from it are not what Allah intends—namely, the lengthening of the waiting period or the like, such as harm to the spouses. If that is not intended by Allah, how would He obligate it? It is established among the people of truth that Allah does not command what He does not will.
Now, divorce is a legal cause to which legal rulings are attached. The proof that divorce is a legal cause is that, in the Jāhiliyyah, divorce had causes—among them ẓihār, and among them divorce itself; and a man in the Jāhiliyyah would divorce, then take back, then divorce, then take back—without limit. When Islam came, it invalidated divorce by ẓihār, placed in the husband’s hand three pronouncements of divorce, and forbade divorce during menstruation or during a purity in which the woman had been cohabited with, etc.
Yes: the ruling of divorce pronounced upon a woman during a purity in which she was cohabited with is the ruling of divorce during menstruation; there is no disagreement that it is innovated. Likewise, pronouncing triple divorce at once is an innovated divorce. Thus, if a man says to his wife, “You are divorced three (times),” divorce takes place and separation occurs.
If it be said: Why then do you rule that the divorcer who pronounces three—which is an innovated divorce—has effected divorce?
We say: Divorce took effect by his saying, “You are divorced,” while his saying, “three,” is futile speech; thus one pronouncement takes effect. This is the madhhab upon which the evidences stand and are consistent. Here is its explanation and clarification:
Allah—Glorified is He—has placed in the husband’s hand three pronouncements of divorce, without dispute, as indicated by the Noble Book.
And divorce is the untying of the marriage bond. When a man divorces his wife, he has untied the marriage bond. Allah Most High has granted the husband that he may untie this bond three times. So if a man says to his wife, “You are divorced three (times),” he has untied this bond once, releasing his wife from his confinement once. He has not untied—by that statement—except one bond, while Allah Most High has granted him three separate untyings; and there is no untying except after there has been a (new) tying.
Hence, the innovation in a man’s saying to his wife, “You are divorced three (times),” lies in the “three”; thus his mention of “three” is an invalid innovation, with no ruling and no effect to its mention; and it is not permissible for the husband to mention it—due to its contravention of the discipline of Allah Most High and His Messenger, and due to what results from that of confusion, obfuscation, dispute, disagreement, supposition, and illusion. The spouses then fall into bewilderment; the muftīs differ concerning them; and perhaps the situation leads to strife and even fighting and outcomes whose end is not praiseworthy. The woman’s family might marry her off while the husband insists that she is still his wife by virtue of the fatwā he has received—then discord ensues. All of this follows from contravening the etiquettes of Islam and the law of the Qurʾān.
If it be said: Many narrations have been transmitted—as in the Amālī of Aḥmad ibn ʿĪsā and others—indicating that all three take effect.
We say: Many narrations have also been transmitted indicating that only one divorce takes effect by the triple pronouncement, as is mentioned in al-Iʿtiṣām and its supplement—along with the Qurʾān’s corroboration of that, as we have set forth.
Source : Min Thimār al-ʿIlm wa al-Ḥikmah vol.1