Case: The divorce of the insane (1)

All people of knowledge held consensus that the divorce of the one who loses mind without drinking alcohol or the similar cases, is not effective.

It was authentically reported that the Prophet (peace be upon him) said: "There are three whose actions are not recorded: A lunatic whose mind is deranged till he restores consciousness, a sleeper till he awakes, and a boy till he reaches puberty." Because his word removes his power over his wife, so reason is considered as the case in sale.

Case: The divorce of the drunk (2)

Anyone drinks wine without a legitimate reason then he became drunk or drinks medication without a reason then his reason became absent, his divorce is of two views:

1- The view of Ash-Shafi`i and one of the two narrations of Imam Ahmad which is also the view of Sheikh Al Islam Ibn Taymiyah and his student Ibn Al Qayyim that the divorce of the drunk is not effective exactly as his sale, emancipation, marriage which are ineffective. However, such people are held responsible for killing and stealing others, and they held the following as proofs:

•   `Uthman (may Allah be pleased with him) narrated: There is no power of divorce for an insane nor a drunk.

•   Because he is absent-minded, so he is similar to the insane and the sleeping.

•   Because he has no will, he takes the same ruling of a forced person.

•   And because reason is a condition in holding a person accountable to execute a command or a prohibition, moreover the command or prohibition should be directed to the one who understands it. There is no difference between the removal of the condition (of holding a person accountable for his action) by a sin or something else because the one who breaks his legs may offer Salah while sitting. If a woman hits her belly and she gushed blood, Salah is overlooked. If a person hits his head in the wall and became insane, the charge will be overlooked. (In the previous cases the condition of holding a person accountable was removed by a sin, and still a person is accountable).

The second is the view of the Hanafis, the Malikis, Ash-Shafi`is, and one of the two narrations of Imam Ahmad that the divorce is effective provided that a person knows that he drinks something covers his mind or even doubts that it covers the mind. In such case, there is no difference between drinking alcohol, milk, or others. If he is sure that drunkenness is not ascertained then he drank it and divorced his wife, his divorce is not effective because of Allah's Saying: "O you who believe! Approach not As-Salât (the prayer) while you are in a drunken state," so He addressed them in the state of drunkenness which indicates that they are fully competent.

- If we believe that the drunk is not charged in the state of drunkenness, he is still fully competent to compensate the missed acts of worship by a new command.

- The Prophet's saying: "Every divorce is permissible, except the divorce by an insane or an imbecile man." (3)

- The Companions of the Prophet (peace be upon him) considered the drunk as the attentive-minded person in the prescribed punishment of false accusation according to the following proof: Abu Wabarah Al Kalby narrated: Khalid sent me to `Umar, so I went to him when he was in the masjid with `Uthman, `Abdur-Rahman, Talhah, and Az-Zubair, so I said: Khalid says: People indulged in wine drinking and belittled the punishment. Thereupon, `Umar said: Ask those Companions. Ali said: When a person drinks wine, he loses mind, and when he does so, he accuses people falsely, and a false accuser should be lashed 80 lashes. `Umar said: Tell your friend what they have said. So, they considered him exactly as the attentive-minded person.

- Because the divorce was uttered by a fully competent person without any compulsion, so divorce must be effective like the divorce of the attentive-minded person. The proof that he is responsible for his actions is that he kills and steals and that is a proof to his attentive mind.

- Coarsening the punishment for his disobedience.

- A drunk is punished for committing major sins, so his divorce is effective because the prescribed punishment is desirably disabled by all means and divorce is not, so when the matter which is meant to be disabled by all means becomes obligatory, the lesser rulings are more entitled to be applied too.

(1) See: Al Bahr Ar-Ra'iq 3/268, Mawahib Al Jalil 5/307, Al Mughny 8/255, and Ash-Sharh Al Kabir 8/237.

(2) See: Al Bahr Ar-Ra'iq 3/266, Mawahib Al Jalil 5/307, Al Fawakih of Ad-Duwany 3/1003, Al Majmu` 17/62, Mughny Al Muhtaj 3/279, Al Mughny 8/156, Al Mubdi` Sharh Al Muqni` 7/232, Ash-Sharh Al Kabir 8/238, and Ighathat Al Lahfan in the ruling on the divorce of the angry man p. 45.

(3) Reported by At-Tirmidhy in the chapter of the divorce of the mad, Hadith No. 1191 - 3/496. At-Tirmidhy said: We do not know this Hadith except from the way of `Ata' ibn `Ajlan, and `Ata' ibn `Ajlan is not a trustworthy narrator according to the Companions of the Prophet (peace be upon him) who hold consensus that the divorce of a mad person is not permissible except if he awakes sometimes and he divorces his wife in that time. Sheikh Al Albany said: The Hadith is very weak, and the authentic Hadith was not attributed to the Prophet.



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