Does the conditional divorce take effect if the person whose will is stipulated is mute?
Chapter on Explicit Divorce and Others
Al-Mughni
Book of Divorce
Primary text
If the person whose will is stipulated is mute and expresses their will through signs, the divorce takes effect because their sign language stands in the place of the speaker's utterance; thus, their divorce (in other contexts) is valid through signs.
Supporting text
If the husband was capable of speech when imposing the condition but became mute afterward, there are two views: one holds that divorce occurs via the sign because his divorce (in other contexts) would occur via sign; the second holds that it does not occur via sign because, at the time of the condition's imposition, divorce required utterance, and thus it cannot take effect through anything else, similar to if he had stipulated: 'If so-and-so speaks his will, she is divorced.'