Is a sick person's gesture equivalent to their verbal declaration?
General Chapter
Al-Mughni
Book of Judicial Rulings
Primary text
The gesture of a sick person does not substitute for their verbal statement. This applies whether the person is incapable of speech or capable of speech. This view is held by Al-Thawri. The evidence is that since the speaker's utterance is not despaired of, the gesture does not stand in its place, unlike the speech of a congenitally mute person (Akhras). For the Akhras, despair of his speech is established, which is why if he stutters during prayer, his prayer is invalid without recitation, unlike the situation with the sick person.
Supporting text
Al-Shafi'i accepts the gesture of a sick person if they are incapable of speech, reasoning that it is a declaration by gesture from one unable to speak, resembling the declaration of the congenitally mute. Furthermore, the gesture of a woman in menopause (A'isa) is treated differently than a woman whose menses ceases during her waiting period (Iddah) when renewal is possible. Another difference is that the inability to speak might only be due to hardship and difficulty, not absolute incapacity, and if incapacity is realized, the gesture is not reliable because the underlying illness might have affected the intellect or hearing. Additionally, the mute person's gestures are often repeated until they are certain, resembling speech, whereas the sick person's single gesture may have been intended as a denial or to silence the questioner.