During this year allotted to the impotent husband, the woman may at times be menstruating. If he claims that he was capable during the days of her menstruation, his claim is not accepted. It may be said: although he cannot have intercourse during her menstrual period, he is able to engage in intimate physical contact, through which the disappearance of his impotence can be known.

Are the days of menstruation counted against him? Yes, they are counted against him. The evidence for this is what has been narrated from Umar, Uthman, Ibn Masud, and al-Mughirah ibn Shubah (1).

Is this a legislative ruling or a judicial ruling? It may be a judicial ruling, in which case it is subject to the judge’s independent reasoning and may differ from one time to another. It may also be a legislative ruling. This rests upon the question of whether the statement of a Companion constitutes proof. The correct view is that the statements of Umar and Abu Bakr constitute proof, due to the Prophet’s statement: “Follow the example of the two who come after me: Abu Bakr and Umar” (2); and his statement: “If they obey Abu Bakr and Umar, they will be rightly guided” (3).

Yet it is possible that it was a judicial ruling, and there is a difference between judicial rulings and legislation,