on his behalf in accordance with the Quran, and he is compelled to take her back in accordance with the Sunnah. Abū Ishāq al-Tūnisī held that a divorce pronounced by the ruler on behalf of a husband suffering from insanity, leprosy, or vitiligo is only a revocable divorce; that the spouses retain their mutual inheritance rights until the waiting period expires; and that, should these husbands recover from their conditions during the waiting period, they would have the right to take their wives back. This contradicts the established position of the school: every divorce decreed by the ruler is irrevocable, except in the case of a husband who has sworn to abstain from intercourse or one divorced on grounds of inability to provide maintenance. According to his view, therefore, if the ruler mistakenly pronounces divorce on behalf of one of these husbands during menstruation, the husband is compelled to take his wife back if he recovers from his condition during her waiting period. As for an impotent husband, there is no disagreement that a divorce pronounced on his behalf by the ruler is irrevocable, because it is a divorce before consummation, both spouses acknowledging that intercourse has not taken place.
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Any marriage that must be annulled after consummation because of its invalidity is to be annulled whenever that invalidity is discovered, even during menstruation or postnatal bleeding, and even if the annulment takes the form of divorce. This differs from a marriage in which someone has the choice of annulling or upholding it. Likewise, a slave woman who is freed while married to a slave must not exercise her choice during menstruation. If she does, however, her husband is not compelled to take her back, because the divorce is irrevocable. Yet in al-Mustakhraja, ʿĪsā reported from Ibn al-Qāsim something indicating that it is a revocable divorce. This is also the view transmitted by Ibn Nāfiʿ from Mālik. On this view, the husband is compelled to take her back if he is freed during her waiting period.
No husband should confer upon his wife the authority to divorce herself during menstruation. If he does, she must not exercise that choice during it. The authority remains in her hands until she becomes free of menstruation, even if the allotted period has expired. Mālik’s differing opinions on whether this authority is restricted to the same sitting do not apply here. If she hastens to exercise her choice during menstruation, her husband is compelled to take her back, provided fewer than three divorces have taken effect.
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Allah has prescribed and commanded the waiting period to safeguard lineage. It is of two kinds: a waiting period following a husband’s death and a waiting period following divorce. If the woman is pregnant, her waiting period ends when she gives birth, whether following death or divorce. There is no disagreement about this among the scholars, because Allah, Almighty and Majestic, says: