#275: Divorcing a Pregnant Wife

Question:

Assalamualaikum ustaz. What is the ruling of divorcing a pregnant wife?

Answer:

Waalaikumussalam wrt. wbt.,

Alhamdulillah, praise and gratitude to Allah SWT for His countless blessings for us all. Praise and salutations to our beloved Prophet Muhammad PBUH, his family, companions, and all those who follow his footsteps until the Final day.

Scholars have agreed regarding the sanctioning of divorce as stated by Allah SWT:

يَا أَيُّهَا النَّبِيُّ إِذَا طَلَّقْتُمُ النِّسَاءَ فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ وَأَحْصُوا الْعِدَّةَ

“O Prophet, when you [Muslims] divorce women, divorce them for [the commencement of] their waiting period and keep count of the waiting period,” [1]

Talaq is the last resort by a husband in resolving an issue if it is unavoidable. However, if this is used only to fulfil his desires, then the talaq is considered permissible, however, it is the most disliked matter by Allah SWT. [2]

This is as stated in a hadith narrated by Ibn Umar R.Anhuma, the Prophet PBUH said:

أَبْغَضُ الْحَلَالِ إِلَى اللَّهِ الطَّلَاقِ

“The lawful thing which God hates most is divorce.” [3]

The author of the book al-Fiqh al-Manhaji [4] has divided talaq into three parts:

  1. Talaq Sunni: Free from menstruation and nifas and didn’t have intercourse with her husband during this time. It is permissible and talaq is valid. This talaq is in line with the teachings of syara’ for a husband who has to divorce his wife with one or three talaq at a time.
  2. Talaq Bid’i: When the wife is menstruating or experiencing nifas or she is in a pure state but has had intercourse with her husband, talaq in this situation is talaq bid’i. It is prohibited and sinful even if the talaq contradicts the sanctioned talaq. This is based on a hadith narrated by Abdullah bin Umar RA:

أَنَّهُ طَلَّقَ امْرَأَتَهُ وَهِيَ حَائِضٌ عَلَى عَهْدِ رَسُولِ اللَّهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ فَسَأَلَ عُمَرُ بْنُ الْخَطَّابِ رضي الله عنه رَسُولَ اللَّهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ عَنْ ذَلِكَ، فَقَالَ رَسُولُ اللَّهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ: مُرْهُ فَلْيُرَاجِعْهَا، ثُمَّ لِيُمْسِكْهَا حَتَّى تَطْهُرَ ثُمَّ تَحِيضَ، ثُمَّ تَطْهُرَ، ثُمَّ إِنْ شَاءَ أَمْسَكَ بَعْدُ وَإِنْ شَاءَ طَلَّقَ قَبْلَ أَنْ يَمَسَّ، فَتِلْكَ الْعِدَّةُ الَّتِى أَمَرَ اللَّهُ أَنْ تُطَلَّقَ لَهَا النِّسَاءُ

“He had divorced his wife while she was menstruating during the lifetime of Allah’s Messenger (ﷺ). `Umar bin Al-Khattab asked Allah’s Messenger (ﷺ) about that. Allah’s Messenger (ﷺ) said, “Order him (your son) to take her back and keep her till she is clean and then to wait till she gets her next period and becomes clean again, whereupon, if he wishes to keep her, he can do so, and if he wishes to divorce her, he can divorce her before having sexual intercourse with her; and that is the prescribed period which Allah has fixed for the women meant to be divorced.” [5]

The reason talaq Bid’I is prohibited is that it harms the wife for the prolonged duration of ‘iddah, for the time for menstruation is not included in ‘iddah. Likewise, it is prohibited to divorce one’s wife who is pure but he has had intercourse with because there is a possibility that she is pregnant.

Talaq that is not characterized as sunni and bid’i are:

  • A young girl who has yet reached puberty.
  • Menopause
  • Clearly pregnant
  • Never had intercourse with her husband
  • Asked for divorce through khulu’

Talaq in these conditions are neither sunni or bid’i. It is permissible and the talaq is valid. It is not prohibited for it doesn’t harm his wife. For a young girl and menopause woman, they worship according to the calculation of the month. Thus, they don’t bear the long ‘iddah period. A pregnant woman, her iddah ends after she gives birth. Likewise, for a woman who redeems herself from her husband with her wealth, it shows her determination to get divorced and willingness to undergo a long iddah period.

The majority of scholars ruled it permissible to divorce a pregnant wife. This is as stated in a hadith narrated by Ibn Umar R.Anhuma, he said:

أَنَّهُ طَلَّقَ امْرَأَتَهُ وَهِيَ حَائِضٌ فَذَكَرَ ذَلِكَ عُمَرُ لِلنَّبِيِّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ فَقَالَ مُرْهُ فَلْيُرَاجِعْهَا ثُمَّ لِيُطَلِّقْهَا طَاهِرًا أَوْ حَامِلًا

“He divorced his wife while she was in the state of menses. ‘Umar (Allah be pleased with him) made mention of it to Allah’s Apostle (ﷺ) and he said: Command him to take her back, then divorce her when she is pure or she is pregnant.” [6]

This hadith explained two rulings, the time it is prohibited to divorce one’s wife who is menstruating and the permissibility of divorcing one’s wife when she is pregnant.

Imam al-Nawawi stated in his commentary: This hadith is evidence of the permissibility of divorcing a pregnant woman and this is the opinion of madhhab Syafi’e. Ibn al-Mundzir said: This opinion is held by the majority of scholars, among them are Thawus, Al-Hasan, Ibnu Sirin, Rabiah, Hammad bin Abi Sulaiman, Malik, Ahmad, Ishaq, Abu Tsur, and Abu Ubaid. However, Ibn Mundzir also added that there are some scholars of madhhab Maliki who prohibited it while al-Hasan al-Basri ruled it makruh (discouraged). [7]

Talaq when the wife is pregnant is categorized under talaq syar’ie, which is neither sunniy nor bid’iyy. Thus, divorcing a pregnant wife is permissible. This is due to the fact that her ‘iddah is subject to the birth of her baby and not her menstrual cycle. [8]

However, if he has had intercourse and there are no apparent signs that the wife is pregnant, then it becomes talaq bid’iy. [9]

However, the opinion that is considered strong and agreed by the majority of scholars is that it is permissible to divorce a pregnant woman. And the iddah of a pregnant woman is until she gives birth to her child as stated by Allah SWT:

وَأُولاتُ الأحْمَالِ أَجَلُهُنَّ أَنْ يَضَعْنَ حَمْلَهُنَّ

“And for those who are pregnant, their term is until they give birth.” [10]

While according to the law, if a wife is divorced when she is pregnant, she reserves the right to get the same facilities of a woman divorced through talaq rajie, which are food, clothing, place to live and any appropriate expenses.

To close, we hold unto the opinion of the majority of scholars which state the ruling of a pregnant wife who is divorced is permissible and it is neither prohibited nor makruh.

However, we’d like to remind you that a pregnant woman, she’ll face fatigue and emotional pressures thinking about the development of her baby in her womb. When divorce occurs, it’ll increase the various sufferings and burdens which will surely affect the development of the child and the health of the mother. A good husband will surely consider all aspects and try to make every effort possible before deciding and uttering the talaq towards his wife.

Likewise, we’d like to emphasize every matter related to divorce should be referred to the Shariah court which has the final say as well as the body of authority in the matters of Islamic family law.

May Allah SWT grant us all the correct understanding in religion and protect
the collapse of household institutions as well as bless us with mawaddah and rahmah in our family. Amin.

Wallahu a’lam.

 

[1] Surah al-Talaq: 1

[2] See al-Fiqh al-Manhaji ala Mazhab al-Imam al-Syafie, 4/120

[3] Narrated by Abu Dawud (2178), and Ibn Majah (2018). Al-Khattabi in Ma’alim al-Sunan (3/199) this hadith is famous through mursal.

[4] See al-Fiqh al-Manhaji ala Mazhab al-Imam al-Syafie, 4/125

[5] Narrated by al-Bukhari (4953)

[6] Narrated by Muslim (1471)

[7] See Syarh al-Nawawi ‘ala Sahih Muslim, 10/65

[8] See al-‘Inayah Syarh al-Hidayah, 3/478

[9] See Hasyiyah Bujairimi ‘ala al-Khathib, 3/505

[10] Surah al-Thalaq: 4

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