Does divorce by non-verbal expression, such as gesture, count for a mute person?

Chapter on Explicit Divorce and Others

Al-Mughni

Book of Divorce

Book 39 · Issue 1 · Bab 2

Open in Qurani

Primary text

Divorce occurs through the gesture of a mute person (Al-Akhras). This is the position of Malik, Al-Shafi'i, and the Companions of the Opinion (Ahl al-Ra'y). Their evidence is that gesture is the only means available to the mute person for divorce, thus substituting speech, and it requires no intention, similar to marriage. If the mute person gestures with three fingers for divorce, the divorce is threefold, as this gesture stands in the place of another person's speech.

Supporting text

Divorce does not occur via gesture if the speaker is capable of speech, just as marriage by gesture is invalid for one who can speak.