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Likewise, swearing an oath by divorce is disliked. It is reported that the Prophet ﷺ said: “Do not swear by divorce or manumission, for these are among the oaths of the wicked.” He also said: “Whoever wishes to swear an oath should swear by Allah or remain silent.” Ziyād related from Mālik that anyone who swears by divorce should be disciplined. Mutarrif and Ibn al-Mājishūn said: “Habitually swearing by divorce is grounds for impugning a person’s uprightness, even if he is not known to have broken such an oath.”
It is disliked for two reasons. First, the Prophet ﷺ forbade swearing by divorce and swearing by anything other than Allah. Second, a man may break his oath while his wife is menstruating, experiencing postnatal bleeding, or in a period of purity during which he has had intercourse with her. Divorce may not lawfully be effected in any of these circumstances. If his wife does not menstruate or has reached menopause, it is disliked solely because it contravenes the Sunnah.
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If a man swears by divorce and breaks his oath while his wife is menstruating or experiencing postnatal bleeding, he is compelled to take her back, just as a man who divorces his wife during menstruation is compelled to take her back. According to Mālik and his companions, this applies so long as her waiting period has not ended. Ashhab alone holds that he is compelled to take her back until she has become pure, then menstruated, then become pure again, reaching the point at which divorce is permitted. Some scholars hold that he is compelled to take her back only until she becomes pure from the menstrual period during which he divorced her, but this is not a position within the school.
If he refuses to take her back, he is threatened; if he still refuses, he is imprisoned; and if he continues to refuse, he is beaten. All of this is to take place in quick succession, in a single setting, because he is persisting in disobedience. If he persists, taking her back is imposed upon him, and she is his wife. Ibn al-Mawwāz related this from Ibn al-Qāsim and Ashhab. Asbagh related from Ibn al-Qāsim in al-ʿUtbiyya that, if he refuses, a ruling requiring him to take her back is issued and imposed upon him; he made no mention of imprisonment or beating.
Al-Shāfiʿī and Abū Hanīfa held that he is ordered to take her back but is not beaten to compel him to do so. The correct position is that of Mālik—may Allah Most High have mercy on him—for commands are understood to impose an obligation unless accompanied by evidence indicating that they convey a recommendation. This is the position of the discerning scholars.