Ibn `Umar divorced his wife while she was having her menses. `Umar asked the Prophet (ﷺ) who said, "Order him (your son) to take her back, and then divorced her before her period of the 'Iddah has elapsed." I asked Ibn `Umar, "Will that divorce (during the menses) be counted?" He replied, "If somebody behaves foolishly (will his foolishness be an excuse for his misbehavior)?"
Sahih al-Bukhari 5333: Commentary on Divorce During Menstruation
This narration from Ibn Umar (may Allah be pleased with him) establishes a fundamental principle in Islamic divorce law. The Prophet (ﷺ) commanded the retraction of a divorce pronounced during menstruation because such timing violates the prescribed Islamic etiquette for divorce.
Legal Analysis of the Prohibition
Scholars unanimously agree that divorcing a woman during her menstrual period is unlawful (haram) and constitutes an innovation (bid'ah) contrary to the Sunnah. The wisdom behind this prohibition is to ensure the divorce occurs during a state of purity when conjugal relations could potentially reconcile the couple.
The jurists classify this as a "reprehensible divorce" (talaq al-bid'ah) that must be immediately revoked. The husband remains obligated to take his wife back and wait until she becomes pure from menstruation before considering divorce.
Ibn Umar's Response: Theological Significance
When asked whether this improper divorce counted, Ibn Umar's rhetorical response "If somebody behaves foolishly..." indicates that sinful actions don't nullify legal consequences. This reflects the principle that religious rulings take effect regardless of the actor's intention to disobey.
Classical scholars explain that although the act was sinful, the divorce technically occurred and was recorded. However, the Prophet's command to retract it served both as a correction of the error and a means to avoid the finality of the divorce count.
Practical Juridical Implications
The majority of scholars hold that such a divorce counts toward the triple talaq if the husband intended it. The Malik school considers it invalid and not counted. All schools agree the husband must immediately revoke it and wait for the proper time.
This hadith establishes that divorce should only occur during tuhr (purity period) when no intercourse has occurred, allowing for the possibility of reconciliation during the waiting period and maintaining the dignity of the marital process.