What is the ruling on L'ian (mutual imprecation) for a spouse who is mute (akhras/kharasa)?
General Chapter
Al-Mughni
Book of Mutual Imprecation (Li'an)
Primary text
If the mute spouse is not known for established signs or writing, they are treated as insane concerning L'ian, as imprecation, accusation of adultery (qadhf), and demand for its proceedings cannot be established from them. If they are known for established signs or writing, the established view is that the mute woman does not perform L'ian because her demand cannot be ascertained. This is attributed to Ahmad, Ibn al-Mundhir, Abu Ubaid, Ishaq, and the Companions of Ray (Ahl al-Ra'y). The reasoning is that L'ian is a speech act requiring testimony, and thus it is invalid from the mute person, analogous to real testimony. Furthermore, prescribed punishments (hudud) are averted by doubts, and signs are not as explicit as speech, thus carrying potential for doubt. Therefore, the punishment is not established based on signs, just as testimony from a non-party is not accepted.
Supporting text
The opinion of Al-Qadi and Abu al-Khattab holds that the mute person is treated like a speaking person regarding accusation and L'ian. This is also the madhhab of Al-Shafi'i, who reasons that since divorce issued by a mute person is valid, their accusation and L'ian should also be valid, unlike testimony, which can be obtained from others. However, the first opinion is preferred because the consequence of accusation is the obligation of the prescribed punishment, which is averted by doubt. The primary purpose of L'ian is to negate lineage, which is established by possibility, and since its negation is apparent, one should not legislate that which negates it or mandates a punishment in the face of great doubt, which is why their testimony is not accepted. The counter-argument regarding testimony being obtainable from others is rebutted by noting that sometimes testimony can only be obtained from the mute person due to their specific observation or hearing of the matter.