Divorce After Foreplay Without Penetration Counts
Fatwa No: 390466

  • Fatwa Date:22-1-2019 - Jumaadaa Al-Oula 16, 1440
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Question

Asalamualykum I would like some advice regarding divorce. I have not had intercourse with my husband but we have been intimate since I became pure following post partum bleeding. I am currently breastfeeding and plan to In Sha Allah for the full 2 years and am aware that this may delay the return of my menses for a long time. I wanted to know whether us having been intimate means that this period of purity is voided and I must wait until I become pure following the return of my menses before he can issue talaq. If this is the case, and he cannot issue talaq yet, then from my understanding, I would have to have intercourse with him if he desires it as we would remain married . If I were to become pregnant as a result can he issue talaq then? Please advise. May Allah reward you for your help.

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  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

What we understand is that you are asking about divorce if there is foreplay without penetration when a wife is pure from menses; is this considered as a Bid’i divorce, or is it a divorce that coincides with the Sunnah? Also, whether of not the divorce of a pregnant woman is considered as a Bid’i divorce? If this is what you mean, then if there is no penetration, then the divorce coincides with the Sunnah.

An-Nawawi said in Al-Majmoo’: "All the rulings related to sexual intercourse are conditioned to penetrating the entire top of the penis in the vagina…." [End of quote] One of these rulings is divorce.

If a husband has intercourse with his wife when she became pure from menses, and she became pregnant and then he divorced her while she was pregnant, then her divorce in this case also coincides with the Sunnah.

Ibn Al-Qattan said in his book Al-Iqnaa’ fi Massaa-il al-Ijmaa’:

"I do not know any difference of opinion that the divorce of a pregnant woman if it is confirmed that she is pregnant, is a divorce which coincides with the Sunnah, if he divorces her one divorce. The fact that she is pregnant does not prevent divorce from taking place (i.e. it is permissible to divorce a wife when she is pregnant)."

Finally, we point out to the two following matters:

1- The wife has the right upon her husband to have sexual intercourse with her according to her desire and his ability. Likewise, the wife must answer her husband if he calls her to bed, and it is not permissible for her to refrain without a sound legitimate Islamic excuse.

2- Both spouses should avoid divorce as much as possible and strive to reconcile between them as much as possible when problems occur. Allah Says (what means): {…and settlement is best.} [Quran 4:128]

For more benefit, please refer to Fataawa 84515, 378127, 378277 and 289207.

Allah knows best.

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