Imam Al-San'ani's Stance on the Issue of Divorce during Menstruation: An Analytical Jurisprudential Study in Light of the Book Subul Al-Salam 10.35781/1637-000-143-001

Abstract

Abstract Imam Muḥammad ibn Ismail Al-San'ani is regarded as one of Yemen’s foremost scholars in the twelfth century AH. He is distinguished by his encyclopedic mastery of jurisprudence, his strong orientation toward hadith, and his independence in deriving legal rulings away from rigid adherence to any particular juristic school of thought . Among his most prominent works is Subul Al-Salam, his commentary on Bulugh Al-Maram, which is considered one of the foundational texts of comparative jurisprudence. In this work, he combines transmission with analysis, and legal evidences with critical evaluation of juristic opinions. Al-San'ani elaborates extensively on the rulings derived from prophetic traditions, clarifying the evidentiary foundations of jurists and the reasoning behind their deductions, with a noticeable inclination toward weighing views based solely on evidence rather than on popularity or sectarian affiliation. Among the issues addressed by Al-San'ani in Subul al-Salam is the ruling on divorce during menstruation, a contentious matter over which jurists have differed. They unanimously agreed that issuing divorce in a state of menstruation is prohibited and constitutes defenite divorce (bid'i) form of divorce, yet they disagreed regarding its legal effect. The majority held that such a divorce takes effect despite being sinful, whereas the Ẓahiria, Ibn Taymiyyah, Ibn al-Qayyim, and those who followed them maintained that it does not take effect. Al- San'ani explored this issue with meticulous detail, presenting the opinions of the jurists and their evidences, then analyzing them with a critical method that demonstrates his deep familiarity with hadith-based and juristic reasoning. He ultimately expressed clear hesitation between the two positions, noting the strength of the evidences presented by both sides. The study shows that Al- San'ani initially issued fatwas deeming such a divorce invalid, even composing a treatise on the subject. He then retracted this view and adopted the majority position that it does take effect, before returning once more to favor the view of non-occurrence, as he stated in Subul Al-Salam: “Then what I used to issue fatwas with at first — that it does not take effect — has become strong in my view.” This hesitation reflects the nature of his ijtihad (Jurisprudential judgment), which is built on continual re-evaluation of the evidence and avoiding rigidity in previous conclusions. The study adopts a comparative analytical methodology by tracing Al- San'ani’s statements in Subul al-Salām, analyzing his expressions, comparing his preferred positions with those of the majority, and clarifying the principles underlying his reasoning and the extent of his influence by Ibn Taymiyyah and the Ẓahiri's school. The study concludes that Al- San'ani represents a model of the independent jurist who begins with hadith-based evidence and then applies juristic reasoning without binding himself to any particular legal school. Keywords: Sunni (proper) divorce, defenite (bid'i)divorce, Subul Al-Salam