Does a divorce pronounced during menstruation take effect?

The jurists agree that divorce during menstruation, or in a period of purity in which the husband had intercourse with his wife, is a forbidden innovation; they differ on whether it nonetheless takes effect and counts against him. Ibn Hazm sets out the question in the rulings on divorce in al-Muhalla and concludes that it does not take effect. ^{1 3}

Ibn Hazm argues from al-Talaq 1 that God taught how a wife with whom the marriage was consummated is divorced, namely for her waiting period, and said that these are His limits and that whoever transgresses them wrongs himself; what transgresses God's limits is, for him, void and rejected under the hadith "whoever does a deed not in accord with our matter, it is rejected". ^{5 6} He explains divorce "for the waiting period" by Ibn 'Umar's report through 'Ubayd Allah ibn 'Umar from Nafi': he divorced his wife while she was menstruating, 'Umar told the Prophet ﷺ, and he said, "Tell him to take her back and leave her until she is pure, then menstruates again; when she is pure let him divorce her before touching her, or keep her, for that is the waiting period for which God commanded that women be divorced." He takes this fuller version because an addition from a trustworthy transmitter may not be set aside, and relates that 'Ata' followed it. ^{6 1} He allows divorcing a pregnant wife by the version "then let him divorce her pure or pregnant", and allows divorcing one who has not menstruated or no longer does at any time, since God set no limit for her. ¹

Ibn Hazm says that some who hold the divorce effective claimed consensus, and replies that the disagreement exists, and that whoever asserts something of all Muslims without its reaching him from them all is lying about them. ¹ He relates from Ibn 'Abbas that divorce takes four forms, two lawful and two forbidden, the forbidden being to divorce her while menstruating or right after intercourse, not knowing whether she has conceived, adding that Ibn 'Abbas could not call forbidden what is valid; from Ibn Mas'ud that whoever divorces as God commanded has had it made clear to him, and whoever goes against it, "we cannot undo his going against it"; from Ibn 'Umar, about a man who divorces his wife during her period, "it is not counted"; from Tawus that he recognised no divorce that departed from the proper form of divorce and of the waiting period; and from Khilas ibn 'Amr, "it is not counted". ^{2 3}

He says that those who claim consensus for its taking effect find nothing from any Companion except one report from Ibn 'Umar, contradicted by a better one from him, and two worthless reports from 'Uthman and Zayd ibn Thabit, each through an unnamed man. ³ Indeed he holds that the claim of consensus favours him, since all scholars, his opponents among them, agree that divorce during menstruation or in a period of purity with intercourse is an innovation the Prophet forbade; how then can they rule that what they admit to be an innovation is valid? ^{3 4}

Ibn Hazm reports that they argued from the version of Ibn Abi Dhi'b and Malik from Nafi', ending "and it is one"; from al-Zubaydi's version from al-Zuhri from Salim from his father, "I took her back, and the divorce I had pronounced was counted for her"; from Ibn 'Umar's words in some versions, "what prevents me from counting it?" and "what of it, if he was helpless and foolish?"; from Nafi''s answer to Ibn Jurayj that it was counted; and from a report attributed to Anas, "whoever divorces by innovation, we bind him to his innovation". ^{4 7} The editors note that "and it is one" is Ibn Abi Dhi'b's own wording, as Ibn al-Mundhir's version shows, and that al-Bukhari headed the hadith with the rule that if he goes against the command the divorce takes effect and he is ordered to take her back. ⁴

He replies that the Anas report is fabricated, transmitted only by Isma'il ibn Umayya al-Dhari', who is weak and abandoned or else unknown, and by 'Abd al-Baqi ibn Qani', whose memory changed late in life, and that even if sound it would mean binding him to the sin of his innovation, not giving it effect; that Nafi''s answer is his own word; that "what of it, if he was helpless and foolish?" does not state that the divorce was counted and may be a rebuke for the question; that Ibn 'Umar's "it was counted" and "what prevents me from counting it?" speak of himself and do not say the Prophet counted it, and no one's act below the Prophet's is proof; and that "and it is one" was added by Ibn Abi Dhi'b alone and cannot be affirmed as the Prophet's words. ^{7 8}

The four schools' views from their own books, later scholars who agreed with Ibn Hazm, and the divorce of a woman in post-natal bleeding, which Ibn Hazm treats like that of a menstruating woman, have not yet been added.