Questionable Third Divorce
31-7-2002 | IslamWeb
Question:
My husband divorced me in front of the judge in a different country during my period. When he came back to my country I told him about that and we started thinking about the possibility of getting back together if the Islamic rules allow that knowing that this is the 3rd divorce. If there are two different opinions about this please let me know. Can I follow either one?
Answer:
All perfect praise be to Allah, The Lord of the Worlds. I testify that there is none worthy of worship except Allah, and that Muhammad 
is His slave and Messenger.
The Muslim scholars have different opinions concerning the divorce issued during the menstruation period of the wife, whether it is valid or not.
The majority of Muslim scholars are of the opinion that this kind of divorce is valid. Ibn Qudaamah 
wrote: “If one divorces his wife by an innovative divorce; i.e., while she is in her period, or while she is pure but he had sex with her in that period of time, he commits a sin but the divorce is valid according to the view of the majority of Muslim scholars.” [Al-Mughni, Vol: 7, P: 99]
The scholars who interpret the texts according to their literal meaning, Shaykh al-Islam Ibn Taymiyyah, his pupil Ibn al-Qayyim, and Imam as-San'aani are all of the opinion that such a divorce is not valid. The contemporary prominent scholar Ahmad Shaakir strongly supported the latter opinion in his book Nidhaam at-Talaaq Fil-Islaam. Every group has proofs and pieces of evidence that support their opinion.
We believe in the situation of the questioner that the divorce is effective since it completes the three divorces. Those who are of the opinion that the divorce during the time of menses is not effective, in this situation, believe that the divorce is effective.
Ibn Hazm wrote in his book al-Muhalla: “It is forbidden to issue a divorce in time of purity in which the husband had sex with his wife; likewise, it is forbidden to divorce her during her menses. So, if one delivers his first divorce or second divorce in her period or during the time of purity but in which he had sex with her, then these divorces are not effective, she remains as his wife. But, if he delivers his third divorce in the same situations or delivers all three divorces at once, then it will be effective.” [Al-Muhalla, Vol: 10, P: 161]
The answer to the second question is as follows:
If a layman (ordinary person) finds different opinions in any matter, he can choose any of them as long as he does not intend to play with the Sharee'ah or to choose the mistakes or what is convenient to him.
Imam Ash-Shawkaani wrote in his book Irshaad al-Fuhool: “If an ordinary man is confused in any rulings of Sharee'ah on the basis of the different opinions of the contemporary scholars, it is said that he can select any of them as reported from the majority of the Shaafi'i scholars and Shaykh Abu Ishaaq ash-Sheeraazi, Al-Khateeb al-Baghdaadi, Ibn al-Sabbagh, al-Qaadhi, Al-Amidi and others supported this opinion. They say that the companions of the Prophet agreed upon that acting according to a lesser opinion is permissible even though there is a superior opinion.” [P: 452]
It is also said that even a common person should spare no efforts to ask the most knowledgeable and most God-Fearing person and to act according to his opinion.
For more benefit on the Sunni divorce and Bid‘i divorce, please refer to Fataawa 289207, 85415, 81864, 367312, 271282 and 378277.
For more benefit on whom a layman should imitate among the scholars, please refer to Fataawa 384031, 202966, 173959, 90479, 313558, 314404 and 365404.
Allah knows best.