menstrual cycle. I then started my iddah period. I did not have
another cycle until March and then not again until last week. I spoke
to an imam about my situation as my husband has been abusive and
oppressive since the start of our marriage and advised I seek a khula,
which my husband agreed to. I am confused because I was on my menses
when he released me by khul and I was already going through my iddah
from his talaaq. What is the status of my divorce? This is very
stressful for me and I do not know what I am doing.
Praise be to Allah.
Firstly:
When a woman's husband divorces her (talaaq), she should count three
menstrual cycles if she is one of those who menstruate and she is not
pregnant, according to scholarly consensus, because Allah, may He be
exalted,says (interpretation of the meaning):
"And divorced women shall wait (as regards their marriage) for
threemenstrual periods"
[al-Baqarah 2:228].
But if the separation occurs as the result of something other than
talaaq, such as khul' or annulment of the marriage, then she should
observe 'iddah for one menstrual cycle, according to the correct
scholarly view. This has been discussed previously in the answerto
question no. 5163.
Secondly:
If a man divorces his wife (by talaaq), and during her 'iddah she asks
for khul' and he responds to her request, it is valid, because she is
still his wife.
Ibn Qudaamah (may Allah have mercy on him) said: The woman who is
revocably divorced (first or second talaaq) is still a wife and a
subsequent talaaq (divorce), zihaar (a jaahili form of divorce inwhich
the husband says to his wife, 'You are to me like my mother's back'),
eela' (an oath notto have sexual relations with one's wife) and li'aan
(a procedure in which the husband formally accuses his wifeof adultery
and she formally denies the charge, and each invokes the curse of
Allah upon him or herself if he or she is lying) are all valid; and
one of them may inherit from the other, according to scholarly
consensus; and if he separates from her by means of khul', his khul'
is valid.
End quote from al-Mughni, 7/400
The khul' is valid even if she is menstruating, because khul'can only
occur at the request of the wife because of what she is faced with
ofbad treatment on the husband's part. So it is permissible for it to
occur at the time of menses in order to put an end to harm (caused by
the husband's mistreatment).
Ibn Qudaamah (may Allah have mercy on him) said: There is nothing
wrong with khul' at the time of menses or during a period of purity in
which the husband has had intercourse with her. The prohibition on
talaaq at the time of menses is because of theharm that may affect
thewife due to making the 'iddah longer. But khul' is for the purpose
of putting an end to harm that she is suffering because of bad
treatment and staying with one whom she hates and resents, whichis
greater than the harm caused by making the 'iddah longer. So it is
permissible to ward off the greater harm by means of the lesser. Hence
the Prophet (blessings and peace of Allah be upon him) did not ask the
woman who separated from her husband by means of khul' about her
situation, because the khul' that could lead to making the 'iddah
longer happened at her request, which indicates that she gave her
consent and proves that it was in her interests. End quote from
al-Mughni, 7/247
Al-Baghawi (may Allah have mercy on him) said:Khul' at the time of
menses or during a period of purity in which the husband has had
intercourse with heris not bid'ah (an innovation), because theProphet
(blessings and peace of Allah be upon him) gave permission to Thaabit
ibn Qays to separate from his wife by means of khul' without knowing
about her situation (regarding menses etc). Were it not that it is
permissible in all circumstances, he would probably have asked about
her situation.
End quote from Ma'aalimat-Tanzeel, 8/148
It says in al-Mawsoo'ah al-Fiqhiyyah, 8/326: The majority of fuqaha' –
Hanafis, Shaafa'is and Hanbalis – are of the view that khul' at the
time of menses is permissible, because of the general meaning of the
words of Allah, may He be exalted (interpretation of the meaning):
"then there is no sin on either of them if she gives back (the Mahr or
a part of it) for her Al-Khul' (divorce)" [al-Baqarah 2:229].
And because she has a need to put an end to her suffering by
separating from her husband, as she is offering to give up wealth for
that purpose.
The Maalikis, according to their well-known opinion, are of the view
that khul' is not allowed during the woman's period. End quote.
See also Badaa'i' as-Sanaa'i', 3/96; at-Taaj wa'l-Ikleel Sharh
Mukhtasar Khaleel, 5/304; Mughni al-Muhtaaj, 4/498
Once it is established that khul' at the time of menses is
permissible, the woman who has been divorced by means of khul' does
not finish her 'iddah when she becomes pure from the menstrual period
duringwhich the khul' occurred. Rather she must go through another
menstrual cycle, then become pure and do ghusl; then her 'iddah will
have ended, because the period during which the khul' occurred was not
a complete menstrual cycle, and 'iddah has to be a complete
menstrualcycle.
Ibn Qudaamah (may Allah have mercy on him) said: The menstrual cycle
during which she was divorced (talaaq) does not count as part ofher
'iddah, and there is no difference of opinionamong the scholars
concerning that, because Allah, may He beexalted, has commandedthat
she wait for three menstrual cycles, so it includes three complete
cycles; the cycle during which she was divorced does not count because
it is only part of a cycle. End quote.
And Allah knows best
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