Case: Is the innovative divorce effective in terms of time?
Scholars have differed in this regard into two views:
The first view is: the view of the majority of scholars (1) that innovative divorce is effective and the divorcee is sinful, and they hold the following as proofs:
- The Hadith of Ibn `Umar (may Allah be pleased with them) in which the Prophet (peace be upon him) said: (Command him to take her back in marriage) and taking her back in marriage is a proof that divorce is effective. It was reported in Sahih Muslim on the authority of Salim ibn `Abdullah from Ibn `Umar (may Allah be pleased with him) that he said: "`Abdullah divorced her one time and it was counted then `Abdullah took her back in marriage as the Prophet (peace be upon him) commanded." (2)
- It is a divorce that is pronounced by a fully competent person concerning his wife, so divorce is effective such as the divorce of the pregnant.
- As it is not recognized by the Sunnah, it is considered effective according to the Sunnah because it is a termination of possession, so occurring in the time of Bedi`ah (innovative divorce) is more entitled to be effective as a punishment for him.
- Forbidding such divorce does not prevent its impacts as in the case of Zhihar (a man likening his wife to an unmarriageable relative), so despite it is forbidden and deniable, it is effective likewise is the innovative divorce.
- As in the case of the divorce of the one who mocks at divorce, it is effective even if he does not mean to divorce his wife.
The second view is: Innovative divorce is not effective (3) which is the view of Sheikh Al Islam, Ibn Taymiyah, (4) and his student Ibn Al Qayyim (5) (may Allah bestow mercy upon them), they hold the following as proofs:
- They said: If divorce had been effective, the Prophet (peace be upon him) would not have commanded him to take her back in marriage to divorce her again because that would bring about harm to both of them. Therefore, a husband may divorce his wife after taking her back in marriage according to the Qur'an, the Sunnah, and the consensus thus a second divorce will cause a harm to her by increasing her waiting period and torturing both spouses. The Prophet (peace be upon him) did not demand him to have sexual intercourse with her before divorce, but if he divorces her, it will not be permissible for him to divorce her until he makes sure she is not pregnant or waits for her purification. Perhaps he does not want to have sexual intercourse with her in order not to be pregnant, so how would he have sexual intercourse with her?! Therefore, none of the Four Imams (Abu Hanifah, Malik, Al-Shafi`y, and Ahmad) and other Muslim scholars entailed having sexual intercourse with her but a divorcee should delay divorce until she is purified.
- If her husband does not have sexual intercourse with her during that purification, then he divorces her in the second purification period, it indicates that he needs to divorce her and he does not have the will to divorce her because if he had the desire, he would have had sexual intercourse with her in the first period of purification.
- Scholars said: The Prophet (peace be upon him) did not command Ibn `Umar to bring witnesses to taking his wife back in marriage as it is the Sunnah and if divorce was effective, he would command him to bring witnesses.
- When Allah (Glory be to him) mentioned divorce in more than one Ayah, he did not command anyone to take his wife back in marriage after divorce, but He said: "Then when they are about to attain their term appointed, either take them back in a good manner or part with them in a good manner." So, Allah gave the choice to the husband when the waiting period is about to end to take her back in marriage or release her when the waiting period is over. He has no right to hold her after the end of the waiting period as she was confined during her waiting period. Allah (Glory be to Him) says: "And turn them not out of their (husband's) homes nor shall they (themselves) leave, except in case they are guilty of some open illegal sexual intercourse."
If forbidden divorce is effective, corruption which Allah and His Messenger hate will take place and that corruption will not end by taking the wife back in marriage then he divorces her again, so there is no use of that. If a husband desires his wife, he may take her back in marriage but if he does not want her, he may not take her back in marriage, therefore there is no benefit for him to take her back in marriage while he does not like her, but that will achieve more harm and the Prophet (peace be upon him) is glorified to command with corruption.
They refuted the proofs of those who adopt the view that innovative divorce is effective as follows:
- As for the Hadith of Ibn `Umar (may Allah be pleased with him), they refuted it as follows:
First, the clear saying of: "He returned her to me and did not count it (the pronouncement) as divorce." (6)
Second: It was authentically reported from Ibn `Umar (may Allah be pleased with him) with his chain of transmission from the narration of `Ubayd Allah on the authority of Nafi` concerning the man who divorced his wife while she was menstruating. He said: It is not counted. (7)
Third: As for his saying: (I thought) means that Ibn `Umar divorced her one time not three times i.e., Ibn `Umar divorced his wife one time during the lifetime of the Messenger of Allah (peace be upon him), so he mentioned it.
Fourth: As for his saying: (he must take her back in marriage) because he separated from her by body and left the place as usually happens between a man and his wife. So, the Messenger of Allah (peace be upon him) said to `Umar: (Command him to go back to her) and did not say: (Command him to take her back in marriage) and the meaning is: Let her go back to him and he goes back to her because divorce is not effective, and when the permissible time comes, he may divorce her if he wants.
- They refuted their analogy that divorce is like Zhihar as follows:
First, this analogy is impossible according to the Hadith (did not count it (the pronouncement) as divorce) and all other proofs which is more correct.
Second, this is opposed by the following: Its prohibition prevents its impacts like marriage because corrupted marriage does not have any impacts.
Third, Zhihar does not have two sides: Permissible and impermissible, but it is forbidden and deniable, so it cannot be divided into permissible and forbidden, but it is like false accusation and apostasy, so when it exists, it exists with its corruptions. It is not imagined to say: It contains something permissible and forbidden, unlike marriage, divorce, and sale. Measuring divorce to marriage, sale, hire, and other contracts which are divided into permissible and impermissible, valid and invalid is more entitled.
- As for comparing that to the divorce of the one who mocks at marriage, it is effective because he divorced his wife during purification without having sexual intercourse with her. As for being just mockery, and he does not mean it or does not have an effect, the matter is not to him to decide the ruling but to the Lawgiver who decided that, unlike the one who divorces his wife in a time which is not permissible to divorce her because he does not follow the reason which Allah set for divorce but he invented up something from his own imagination. The most correct view, Allah know the best, is that divorce shall not be effective because of the previous proofs.
(1) See: Al Bahr Ar-Ra'iq 3/311, Al `Inayah Sharh Al Hidayah 5/166, Al Istidhkar 6/142, Al Mudawanah 2/3, Al Majmu` Sharh Al Muhadhdhab 17/78, and Al Mughny 8/238.
(2) Chapter on the prohibition of divorcing a menstruating woman without her consent 3730 - 4/180.
(3) This is the view of Sheikh Ibn `Uthaymain (may Allah be merciful with him), see Islamic Fatwas 3/204, the Fatwas of Islam Q & A 1/5893, and the Fatwas and messages of Ibn `Uthaymain 11/235.
(4) see Majmu` Al Fatawa 33/22.
(5) See: Zad Al Ma`ad 5/227 and the following papers.
(6) Reported by Abu Dawud in the book of the Sunnah divorce, Hadith No. 2187 - 2/222, and Ahmad, Hadith No. 5524 - 2/80.
(7) Reported by Ibn Abu Shaybah in his compile, chapter on the views on a man who divorces his wife during her period, Hadith No. 18051- 5/5.