Guidelines on what constitutes consummation of the marriage and ruling on divorce of one whose husband has been alone with her, at the time of menses

Praise
be to Allah.

Firstly: 

If the vaginismus prevents full intercourse from taking
place, in the sense that the husband is unable to insert the tip of his
penis into his wife’s vagina, then he is not regarded as having consummated
the marriage with his wife, because the intercourse that counts in terms of
consummation is that in which the tip of the penis disappears into the
vagina. 

Ibn Qudaamah (may Allah be pleased with him) said in al-Mughni
(7/156): The rulings that have to do with intercourse are connected to to
the disappearance of the tip of the penis. End quote. 

An-Nawawi (may Allah have mercy on him) said in al-Majmoo‘
(2/152): With regard to all the rulings having to do with intercourse, it is
stipulated that the tip of the penis should disappear completely into the
vagina. End quote. 

If the tip of the penis does not disappear entirely into the
vagina, then it cannot be ruled that the marriage has been consummated with
the woman. 

Secondly: 

If the spouses are alone together (khulwah – seclusion), and
it is possible for intercourse to take place, but there is some factor that
prevents that happening, on the part of both spouses or one of them, then
their being alone together still counts as such, and the consequences are
still applicable, namely the mahr (dowry) and ‘iddah (waiting period
following divorce or death of the husband), according to the correct
scholarly view. This is the view of the Hanbalis (may Allah have mercy on
them), especially if he has been intimate with her in a manner that is not
permissible for a man except with his wife. 

Shaykh Mansoor al-Bahooti (may Allah have mercy on him) said:
The mahr (dowry) is confirmed in the event of seclusion (khulwah) as
mentioned above, even if no intercourse took place, and even if there was a
factor that prevented it in both spouses or if there was a physical
impediment in one of them, such as if the man has no penis or the woman has
no vaginal opening… The same rulings come into effect once seclusion is
established as come into effect once intercourse is established, with regard
to the mahr becoming due in full and the obligation to observe the ‘iddah
(waiting period following divorce or death of the husband).

End quote from Kashshaaf al-Qinaa‘ (5/153) 

Shaykh Ibn ‘Uthaymeen (may Allah have mercy on him) said,
commenting on az-Zaad: 

The ‘iddah is required of every wife who has been separated
from her husband (by divorce or death) if he was alone with her (khulwah)…
and during that seclusion he would have been able to have intercourse with
her, even if there was some factor affecting both of them or one of them
that would prevent that taking place, or there was a physical or shar‘i
factor affecting one of them that prevented it. 

The phrase “was alone with her” means that there was no one
else present of the age of discernment, i.e., he and she were alone in a
place where no one else who had reached the age of discernment was present. 

The phrase “he would have been able to have intercourse with
her” means if he was physically able to have intercourse. If he was alone
with her but was tied with chains, this does not count as the khulwah as a
result of which the rulings on marriage and so on come into effect.

“even if there was some factor that would prevent that taking
place”. This refers to intercourse, i.e. if there was some impediment to
intercourse occurring.

“affecting both of them” i.e., whatever the impediment was,
such as if the man was lacking a penis or the woman had no vaginal opening.
In this case the impediment affects both of them, as the man who lacks a
penis is not able to have intercourse and if the woman has no vaginal
opening it is not possible for penetration to occur

“or one of them” i.e., if the impediment affects either of
them, such as if he is lacking a penis but she is sound, or she is lacking a
vaginal opening but he is sound.

“or there was a physical or shar‘i factor” that is, if there
was a physical or shar‘i impediment on the part of one of them. The physical
factor is what we have discussed above. With regard to the shar‘i factor, an
example would be if one or both of them were observing an obligatory fast,
because if a person is observing an obligatory fast, it is not permissible
for him to have intercourse, although ‘iddah would still become obligatory
(in the event of divorce or death of the husband, following khulwah) even if
there is some shar‘i impediment to intercourse taking place.

End quote from ash-Sharh al-Mumti‘ (13/322-323) 

Once it is established that ‘iddah would be obligatory in the
case of one whose husband has been alone with her, then it is not
permissible to divorce her during her menses.

Shaykh Ibn ‘Uthaymeen (may Allah have mercy on him) said: “If
the husband divorces a wife with whom he has consummated the marriage during
her menses or during a period of purity in which he has had intercourse with
her, this is an innovated divorce (bid‘ah).” 

With regard to the phrase “with whom he has consummated the
marriage”, if the author had said “one for whom ‘iddah has become obligatory
(in the event of divorce or death of the husband)”, that would have been
more general, because the woman becomes subject to the requirement of
observing ‘iddah if the marriage is consummated with her, i.e., if he has
intercourse with her or is alone with her or touches her with desire or
kisses her, according to what is mentioned above in the chapter on the mahr
(dowry). 

“during her menses or during a period of purity in which he
has had intercourse with her” i.e., if he divorces one who is obliged to
observe ‘iddah as a result of consummation or being alone with her, and it
is not established that she is pregnant, during her menses or during a
period of purity in which he has had intercourse with her. 

“this is an innovated divorce (bid ‘ah)” i.e., this is an
innovated divorce which is haraam. 

End quote from ash-Sharh al-Mumti‘ (13/43) 

For more information on the ruling on divorce of a woman when
she is menstruating, please see the answer to question no.
72417 

And Allah knows best.