Divorce By a Temporarily Insane Person, Valid or Invalid in Islam?
By
Kaniz Fatma, New Age Islam
13
September 2023
Is A
Temporary State of Insanity Legitimate and Valid Grounds for Divorce?
Main
Points
1. A person who is temporarily mentally
ill is also considered to be mentally ill because there is a problem and
struggle with their mental capacity.
2. The insane person is exempt from the
law until he regains mental capacity.
3. The prohibition against applying
religious laws to infants, people who are asleep, and those who are mad is a
definite rule of religion.
-----
If a person
temporarily loses his intellect and then acts like a madman, the divorce issued
during that period will be invalid.
The
ultimate honour for humanity is intelligence. He can be considered accountable
for religious obligations given his intelligence. The prohibition against
applying religious laws to infants, people who are asleep, and those who are
mad is a definite rule of religion. The Holy Quran has the following verse on
patients:
“...There
is not upon the ill [any] constraint...” (24:61)
The
commentators of the Quran state the following in their analysis of this blessed
verse:
“When
unwell, people are no longer required to handle difficulties or
responsibilities. As long as they are mentally ill, they are no longer held
accountable. [Tafsir Qurtubi/Tafsir Tha’labi)
Allama
Qurtubi further elaborates: It was made very evident by this verse that people
with mental disabilities are free from liability and responsibility. [Tafsir
Qurtubi 8:226]
Allah says
in the Quran, “...and He has not placed upon you in the religion any
difficulty.” (22:78)
Imam Jassas
Razi Hanafi comments on this blessed verse:
“Haraj is Arabic for [mental or physical]
suffering; according to Ibn Abbas (may Allah be pleased with him). Similar to
what Hazrat Mujahid (RA), his student, says: it is clear through different
instances and happenings that the law that imposes restriction and hardship
does not exist, and the law that imposes expansion and ease is the finest. The
text under discussion indicates that there is no religious challenge that
cannot be overcome.” [Jassas, Ahkam al-Quran, 5/90]
Additionally,
it is demonstrated by the sayings of the Prophet (peace be upon him) that until
a child grows up, a person in a deep slumber awakens, and a mentally ill
becomes well and wise, they are not responsible for their religious
obligations.
It was
narrated by Ali ibn Abu Talib that the Prophet (peace be upon him) said: There
are three (persons) whose actions are not recorded: a sleeper till he awakes, a
boy till he reaches puberty, and a lunatic till he comes to reason. Abu Dawud
said: Ibn Juraij has transmitted it from Al-Qasim b. Yazid on the authority of
'Ali from the Prophet (peace be upon him). This version adds: "and an old
man who is feeble-minded." (Sunan Abi Dawud 4403)
Hazrat Abu
Hurairah (may Allah be pleased with him) reported that the Messenger of Allah
(peace be upon him) said: "Every divorce is valid except the divorce of
the Ma'tuh person whose reason is overcome." (Jami` at-Tirmidhi 1191)
Just as it
is written in al-Bahr al-Ra'iq, Allama Ibn Nujaym Hanafi included and
considered the divorce of a partially mentally sick person as that of a fully
medically certified mentally ill person. He says,
“A person who is temporarily mentally ill is
also considered to be mentally ill because there is a problem and struggle with
their mental capacity. The best way to distinguish between the two is to say
that someone who is just partially mentally ill lacks comprehension and speaks
and converses incoherently, using both proper and erroneous words (i.e., some
of it makes sense and some of it doesn't). However, a person who is partially
mentally unstable does not mistreat others or use foul language, in contrast to
someone who has been medically diagnosed with a mental illness.” [al-Bahr
al-Ra’iq by Ibn Nujaym al-Hanafī, vol. 3, p. 268]
The authors
of Durre Mukhtar and Raddul Muhtaar writes,
“Only sane-minded husbands have the authority
to give divorces. Referring to people as "sane-minded," excludes
individuals who are not sane-minded, even those who are classified as such,
such as those with a mental disease diagnosis, those who are mentally unstable
to some extent, and those who lack the capacity for clear thought or rational
reasoning.”
Therefore,
it has been determined that, regardless of whether it was delivered verbally or
in writing, a person who is partially mentally unwell cannot divorce.
According
to Hanafis, research demonstrates that even if a person is conscious of what
they are saying and means to do so; their divorce will be invalid if their rage
causes them to lose touch with their nature and habits in such a manner that
futility dominates their words and deeds. This is due to the fact that their
intentions are not based on correct consciousness and comprehension. So even if
he is not insane, he starts to act like an insane person. This is because an
insane person need not always be in a state where they cannot understand what
they are saying. Sometimes they can speak in a rational manner likewise people
and sometimes they start babbling meaningless things. (Abd al-Rahman al-Jaziri,
Islamic Jurisprudence According to the Four Sunni Schools, 4/294-295)
It is clear
from the aforementioned rules that in circumstances of insanity, the insane
person is exempt from the law until he regains mental capacity. The divorce decree issued by the temporarily
insane is null and void since that person is the one from whom the pen of the
religious obligation and liability has been lifted.
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Kaniz Fatma is a classic Islamic scholar and a
regular columnist for New Age Islam.
URL: https://newageislam.com/islamic-q-a/divorce-insane-person-valid-invalid/d/130663
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