Chapter Two: Distinguishing the Sunnah-Compliant Divorce from the Innovative
The scholars are unanimously agreed that, once a marriage has been consummated, divorce in accordance with the Sunnah is for a husband to pronounce a single revocable divorce during a period of purity in which he has not had intercourse with his wife. By contrast, a husband who divorces her while she is menstruating after sexual relations is not divorcing according to the Sunnah.
This consensus rests on the ḥadīth of Ibn ʿUmar:
“He divorced his wife while she was menstruating in the lifetime of the Messenger of Allah—peace and blessings be upon him. The Prophet said: ‘Tell him to take her back, then let her wait until she becomes pure, then menstruates, then becomes pure again. After that, if he wishes he may keep her, and if he wishes he may divorce her before touching her. That is the waiting period for which Allah has commanded that women be divorced.’”
Within this topic the jurists differed on three points:
- Is it a condition of Sunnah divorce that he not follow the first pronouncement with another during the same waiting period?
- Is a man who utters three divorces in a single statement divorcing according to the Sunnah or not?
- What is the ruling on one who divorces during menstruation?
First issue. Mālik, Abū Ḥanīfah, and their respective schools disagreed. Mālik maintained that a further pronouncement during the waiting period violates the Sunnah procedure, whereas Abū Ḥanīfah held that if the husband issues one divorce in each period of purity he is still acting in accordance with the Sunnah.
The root of the difference is whether Sunnah divorce must occur while the marital bond still subsists after a revocation. Whoever says it must so occur forbids a further pronouncement; whoever denies that condition allows it. All, however, agree that any subsequent pronouncement is legally effective.
Second issue. Mālik judged that pronouncing three divorces in one expression is contrary to the Sunnah; al-Shāfiʿī considered it Sunnah-compliant.
The dispute turns on a tension between the Prophet’s approval—peace be upon him—of a man who uttered three divorces before him in a single phrase and the Qur’anic implication concerning the legal effect of the third pronouncement.
The ḥadīth cited by al-Shāfiʿī is the authenticated report that “al-ʿAjlānī divorced his wife three times in the presence of the Messenger of Allah—peace and blessings be upon him—after completing the procedure of mutual imprecation (liʿān).” He argued: “Had that been an innovation, the Messenger of Allah—peace be upon him—would not have endorsed it.”
Mālik, by contrast, observed that uttering three divorces at once abolishes the concession Allah has granted in allowing the number to be spread out; hence he deemed it contrary to the Sunnah. His followers explained the ḥadīth by saying that, in his view, the separation between the two litigants of liʿān had already taken effect between them beforehand