Is the divorce pronounced by an insane person who remembers uttering the divorce valid if they recall the utterance but claim their mind was elsewhere?
General Chapter
Al-Mughni
Book of Divorce
Primary text
If an insane person remembers uttering the divorce and is aware of having done so, the divorce is valid. This applies particularly to insanity characterized by a complete loss of knowledge and faculties. This view aligns with the position that the divorce is valid, chosen by scholars such as Abu Bakr al-Khallal, the Qadi, Sa'id ibn al-Musayyib, 'Ata', Mujahid, al-Hasan, Ibn Sirin, al-Sha'bi, al-Nakha'i, Maymun ibn Mahran, al-Hakam, Malik, al-Thawri, al-Awza'i, one opinion of al-Shafi'i, Ibn Shubrumah, Abu Hanifa and his two companions, and Sulayman ibn Harb. The evidence cited is the Prophet's saying: 'All divorces are valid except the divorce of the mentally deficient (al-ma'tuh).' Furthermore, Companions such as 'Ali, Mu'awiya, and Ibn 'Abbas held that the divorce of a drunkard is valid, citing their application of legal penalties (Hadd) for slander against the drunkard as proof they treated him like a sober person in accountability.
Supporting text
A second view states that the divorce of an insane person is not valid, a position chosen by Abu Bakr 'Abd al-'Aziz and attributed to 'Uthman (may Allah be pleased with him). This view is also the school of 'Umar ibn 'Abd al-'Aziz, al-Qasim, Tawus, Rabi'ah, Yahya al-Ansari, al-Layth, al-'Anbari, Ishaq, Abu Thawr, and al-Muzani. The basis is that the person is deprived of full intellect, resembling a sleeper or the insane, and lacks intent, resembling one who is coerced. The ruling of 'Uthman is considered the strongest evidence in this regard.