Divorce in Menses or Purity After which the Husband Had Intercourse Is Effective
Fatwa No: 378277

Question

Aslamu Alaikum,After C section of my child birth my Nifaas (blood) didn't stop for 65 days. I asked my doctor why my bleeding is not stopping. Doctor checked me and said may be it is due to the Fibroid that you have on your uterus or due to your hormones (I got diagnosed with fibroid before my pregnancy). Doctor also said, let's see if it stopped after wearing a some sphincter but my blood stopped after 10 days without wearing sphincter. After 2 weeks of this 65 days I had again bleeding for 6 or 7 days. Later after 5 days when this 6 or 7 days bleeding stopped we had a sexual contact. Then afte 2 weeks the intercourse I had bleeding for 6 or 1 or 2 days less but it was normal bleeding for a first day and it got light for the rest of the days. This bleeding stopped on may 6. Then 3 days later on may 9 my husband said a conditional divorce; if you did this you are divorced; but I did it (before saying this conditional talaq he questioned me to make sure; is your menses finished?. I said yes. He said now I can say the conditional divorce).Sheikh I know you do count divorce after sexual intercourse but I want to know would it be a sunnah divorce and what would be ruling of those ulima who do not count divorce after intercourse since I had bleeding (or menstration, but I'm not sure) after intercourse but I don't know which bleeding would be my menses and I just said yes to my husband and he said the conditional divorce based off what I said. What if the bleeding I got after intercourse is not my menses OR what if the first bleeding which I got 2 weeks after my 65 days of bleeding and before our intercourse is not my menses? Or both would consider my menses bleeding? Does this talaq would count or no in the opinion of those Ulima who do not consider talaq after sexual intercourse, if I'm unable to figure out so I can't tell or I'm confused which bleeding is my menses like I explained above?Your help would be appreciated. Thank you.

Answer

All perfect praise be to Allah, The Lord of the Worlds. I testify that there is none worthy of worship except Allah, and that Muhammad  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

In principle, the blood that a woman sees during a time which can be a menstrual period is menses as long as it does not exceed fifteen days. If the blood stops for 15 days and then blood came back again, then it is another menstruation; for more benefit, please refer to Fatwa 364681.

Therefore, the blood that lasted six or seven days was menses and the blood that you had after 15 days was another menstruation.

Since, your husband divorced you after you became pure and before he had sexual intercourse with you, then his divorce is in accordance with the Sunnah.

It should be noted, that what is counted in whether the divorce is in accordance with the Sunnah or is it a Bid’ah divorce, is the time the divorce takes place and not the time of conditioning the divorce.

Hence, if the divorce happened when you were pure and your husband did not have sexual intercourse with you, then the divorce is in accordance with the Sunnah.

However, if the divorce occurred at the time of menstruation or purity when there was sexual intercourse, then it is a Bid'ah divorce [not in accordance with the Sunnah], but the husband is not sinful if he did not do it deliberately.

Ibn Qudaamah may  Allaah  have  mercy  upon  him said: "If the husband says: “You are divorced if Zayd comes.” Then Zayd comes when she is in menses, then she is divorced a Bid’ah divorce and he is not sinful because he did not intend it."

The view that we adopt here in Islamweb is that if divorce takes place during menses or during purity (after menses) after which the husband had sexual intercourse with his wife is effective even if it is a Bid’ah divorce; this is the view of most scholars.

Allah knows best.

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