Fatwas Regarding Women

Question: My husband wants to marry a second wife and informed me of that. I refused. My reasoning was that he is not in need of that since I have given him children and fulfill his rights. So I said to him, "In that case, divorce me." Am I in the right?

Response: You do not have the right to prevent him from marrying again no matter what your actions are toward him. He may desire more children or he may feel that having only one wife does not keep him completely chaste. In any case, the wife does not have the right to keep him from marrying another. However, if she fears that she will treat the other wife unfairly or she believes that she will not be able to live with a co-wife, then she may seek divorce due to that need. It is not allowed to seek a divorce without the presence of a necessity.

Shaikh ibn Jibreen

Question: A woman was married for many years and did not have any children. After an examination, it was determined that the problem was from her husband and it would be impossible for the two of them to have children. Does she have the right to seek a divorce?

Response: That woman has a right to ask for divorce from her husband if it is shown that the infertility problem is from him alone. If he divorces her, that is final. If he does not divorce her, a judge may dissolve her marriage. This is because the woman has the

right to have children and many women do not even get married except to have children. If the man she is married to is impotent or sterile, she has the right to ask for divorce and have her marriage dissolved. This is the stronger opinion among the scholars.

Shaikh ibn Uthaimin

Question: My older brother married me off without my approval. Even though, I stayed with my husband for six years. I am still with him now and we do not have any children. However, I do not love him and I would like for him to divorce me. But I heard a hadith whose meaning is, "If a woman seeks a divorce due to no harm, she will not enter Paradise." What is the solution?

Response: Since you permitted the actions of your brother and went with your husband without preventing it and then stayed with him for that lengthy period of time, the marriage contract is valid. It is valid due to the implicit permission given. However, since you have found that you find no happiness or tranquillity with him, in fact, you have felt unhappiness and dislike and fear that you may not fulfill his rights and you have not had any child with him, due to those reasons, it is allowed for you to seek a separation.

Shaikh ibn Jibreen

Question: A mother of two children was divorced by her husband but at the time of the divorce she was not in a state of purity. However, she did not tell her husband that until the time that they went to the judge. She hid that information from him but not from her mother. The mother told her not to tell the judge for, if she did, the judge would not pronounce the divorce. Afterwards, she stayed with her family and then she wanted to be reunited with her husband out of fear that her children would grow up lost and un-cared for [since their father would not be present]. What is the ruling concerning that divorce that took place while she was menstruating?

Response: Divorce that takes place while the woman is menstruating is disputed among the scholars. Indeed, the discussion over it is quite lengthy. The question is whether it was a divorce that took place or a divorce with no meaning to it whatsoever. The majority of the scholars say that it is a divorce that takes place and has legal effect. That is, it is considered a divorce but, at the same time, the person is ordered to take her back and to not touch her until she becomes pure from the menses and then gets her menses a second time. Then when she becomes pure after that second period, he may either keep her or he may divorce her. This is the approach of the majority of the scholars, including the four Imams, Imams Ahmad, al Shafi'i, Malik and Abu Hanifah. However, the strongest opinion, we feel, is the conclusion of Shaikh al-Islam ibn Taimiya. This is that the divorce said during the menses does not take place and has no legal effect. This is because it goes against what Allah and His Messenger (peace be upon him) have ordered. The Prophet (peace be upon him) has stated,

"Whoever does a deed that is not in accord with our affair shall have it rejected."¹

The evidence for the particular case of the menstruating woman is the hadith of Abdullah ibn Umar. He had divorced his wife when she was menstruating. The Prophet (peace be upon him) was informed of that and he became angry. He said,

"Order him to return to her and then leave her until she becomes pure and then has her menses again and then becomes pure again. At that time, he may keep her or he may divorce her."²

The Prophet (peace be upon him) said,

"That is the period during which Allah has ordered the women to be divorced."³

So the period in which Allah has ordered women to be divorced is for her to be divorced while she is pure and not having had sexual intercourse with her husband. If he divorces her while she is menstruating, he did not divorce her according to the command of Allah. Therefore, the act is rejected. The divorce that occurred to the woman in this question, in our opinion, is a divorce that did not exist. The woman is still under the marriage contract of her husband. It is regardless of whether he knew that he divorced her while she was pure or not pure. His knowledge is not taken into consideration. However, if he knew that she was menstruating, he would be sinful and the divorce would not take effect. If he was unaware of that fact, the divorce would not have taken effect but there would be no sin upon the husband.

Shaikh ibn Uthaimin

Footnote

1. Recorded by al-Bukhari and Muslim.--JZ

2. Recorded by al-Bukhari and Muslim.--JZ

3. This is part of the previous hadith.--JZ