Recently there was a report from India that a man had a fight with his wife and while sleeping, he pronounced three divorces. The news reached a cleric and he issued a Fatwa stating that his wife was divorced. What is the Islamic ruling in this regard? Is it true that divorce takes place even if pronounced during sleep according to any of the four Madhabs? This matter is very important, as many non-Muslims have started to say that there is injustice in Islam. Please can you explain this matter in detail?
ANSWER
In the name of Allah, Most Compassionate, Most Merciful,
1) Sayyiduna Abu Hurayra (Allah be pleased with him) narrates that the Messenger of Allah (Allah bless him & give him peace) said: “Every divorce is effected except the divorce of an insane person and the one who has lost his senses.” (Sunan al-Tirmidhi, no: 1191)
2) Sayyiduna Ali (Allah be pleased with him) narrates that the Messenger of Allah (Allah bless him & give him peace) said: “The pen has been lifted from three: Someone sleeping until he wakes up, a child until he comes of age, and an insane person until he recovers.” (Sunan al-Tirmidhi & Sunan Abi Dawud, see: Mishkat al-Masabih, no: 3287)
3) Sayyiduna Ali (Allah be pleased with him) said: “Every divorce is effected except the divorce of the one who has lost his senses. (Sahih al-Bukhari, Kitab al-Talaq, chapter 10)
4) Sayyiduna Uqba ibn Amir (Allah be pleased with him) said: “A divorce by someone suffering whisperings is not effected.” (Sahih al-Bukhari)
Based on the above and other similar narrations, almost all of the jurists (fuqaha) are unanimous that sanity, sense and having a free will and choice are pre-requisites for a divorce to be considered Islamically valid. Allah Most High does not make one responsible for something that is beyond one’s control. Hence, if divorce was pronounced by someone who had no control whatsoever over the situation, then this divorce will not count. This is the position taken by all four major Sunni Schools of Islamic law.
The Hanafi School
Imam al-Mawsili (Allah have mercy on him), one of the School’s jurists, states:
“The divorce of every sane, mature and awake husband will be effected because of the Messenger of Allah’s (Allah bless him & give him peace) statement: “Every divorce is effected except the divorce of a child and insane person…Hence, divorce issued by a child or an insane person will not be valid due to what we have narrated. And because they (the child and insane) are void of intellect and perception…If a child or a sleeping person was to pronounce divorce and then (the child) after reaching puberty or (the sleeping person) after awakening said: “I uphold the previous divorce, divorce will not be effected. However, if they were to say: “I enforce the divorce, it will come into effect.” (al-Ikhtiyar li Ta’lil al-Mukhtar, 2/154)
Imam al-Haskafi (Allah have mercy on him) states:
“The divorce of a sleeping person will not come into effect because of the absence of free will. It is for this very reason; a sleeping person’s statement cannot be described with truth, falsehood, notification and creativity. And if he (the sleeping person after being awake) said: “I uphold the (previously pronounced) divorce, divorce will not come into effect since he would be referring to something not considered as valid. However, if he said: “I enforce and put into effect that divorce, it will be effected.” (Radd al-Muhtar ala- al-Durr al-Mukhtar, 3/243-245)
Therefore, in the Hanafi School, whenever the husband has lost his senses and does not have a free will and choice over his statements, his pronouncement of divorce will not be considered as valid. As such, divorce pronounced by a man who is insane (majnun), unconscious (mugma alayh), disoriented (madhush), asleep (na’im), extremely angry to the point of insanity (see the fiqh of “divorce in anger”) shall not be effective. Similarly, divorce pronounced by a child will not count.
The reason behind this ruling is that a sleeping person and all those mentioned above do not have control over themselves. They are void of free will, perception and intellectual capacity. Islam does not allow an individual to suffer the consequence of something that was beyond his control. (See: Bada’i al-Sana’i, 3/99-100, Radd al-Muhtar, 3/242-245 & al-Ikhtiyar, 2/154-155)
As far as the divorce of an intoxicated person (sakran) is concerned, it is valid and effected except in certain situations, such as when one is forced into consuming an intoxicating substance, one had no prior knowledge that it was an intoxicating substance or one was dying out of hunger/thirst. However, if one willingly and knowingly consumed an unlawful intoxicating substance, the divorce pronounced in the resulting state of intoxication will come into effect.
In spite of the intoxicated person not having any control over his situation, his pronouncement of divorce is held by the jurists to be valid, due to the fact that he had a free will and choice not to consume an intoxicating substance. He chose to become intoxicated, which in itself was a crime; hence he should suffer the consequences if he was to utter divorce to his wife. (Bada’i al-Sana’i, 3/100)
As for the one who is forced into divorcing his wife, the judgment (ijtihad) of the Hanafi Fuqaha is that his pronouncement of divorce is effected. The reason being that an individual forced to divorce his wife (mukrah) has a free will and intends the divorce, although he does not want it to occur. It is similar to issuing a divorce in jest, which is held to be effective in the Hadith of the Messenger of Allah (Allah bless him & give him peace).
Imam Zafar Ahmad Uthmani (Allah have mercy on him) elaborates on this in his exceptional encyclopaedic work, I’la al-Sunan. He states:
“In this Hadith, there is signification that divorce pronounced by an individual in jest is valid. This implies that divorce will be effective in every situation where the one pronouncing the divorce has a free will and choice in speech (m: as opposed to someone who was overcome by sleep, insanity, etc where he has no will and choice in his action), even though if he does not intend the outcome. Hence, an individual forced to pronounce a divorce is like the above, in that he pronounces the divorce with his free will but does not intend the outcome, as the one divorcing in jest does the same.” (I’la al-Sunan, 11/176-177)
Therefore, in the Hanafi School of Islamic law, divorce pronounced in a state of sleep is undoubtedly ineffective, invalid and does not count.
The Maliki School
The Maliki School is very similar to the Hanafi School, in that it clearly stipulates being legally responsible (mukallaf) as a condition for a divorce to be effective. Divorce must be pronounced with intent (qasd) having full control over the situation. As such, divorce pronounced by a man who is a non-Muslim, child, insane, unconscious, asleep or forced will not come into effect in the Maliki School. (See: Hashiyat al-Dasuqi ala al-Sharh al-Kabir, 2/575-576)
The Shafi’i School
Imam Muhammad ibn al-Khatib al-Shirbini (Allah have mercy on him) states:
“If a sleeping person or the one who lost his senses due to a cause that is not Haram (m: which excludes losing one’s senses due to consuming a unlawful intoxicating substance) pronounced divorce, it will be invalid, even if he said after waking up or after regaining consciousness: “I uphold the (previously pronounced) divorce”. The reason for this is the Hadith in which it states: “The pen has been lifted from three…” and in it the Messenger of Allah (Allah bless him & give him peace) mentioned the sleeping person until he wakes up…” (Mughni al-Muhtaj, 3/379)
Similarly, divorce pronounced by a man who is insane or forced will not come into effect. The divorce of a child is also not valid. As for the divorce pronounced by an intoxicated person, if he became intoxicated due to him willingly consuming an unlawful intoxicating substance, divorce will stand. If, however, he became intoxicated by taking a medicine and he had no other alternative, or he was forced into consuming an intoxicating substance, then the divorce will not be effected. (See: al-Fiqh al-Manhaji, 2/124-126)
The Hanbali School
Imam Ibn Qudama (Allah have mercy on him) states:
“The Scholars are unanimous that if a man pronounced divorce whilst asleep, there will be no divorce. It is established that the Messenger of Allah (Allah bless him & give him peace) said: “The pen has been lifted from three: someone sleeping until he wakes up, a child until he comes of age, and an insane person until he recovers”. (al-Mughni, 7/113)
Similarly, divorce pronounced by a man who is insane, unconscious or forced will not come into effect. As far as intoxication is concerned, the Hanbali stance is similar to that of the other Schools, as elaborated above. However, the Hanbali School considers the divorce of a child to be effective if he has reached an age of understanding and comprehends the meaning of divorce. (See: al-Mughni, 7/113-120)
As we can see, all the four major Sunni Schools of Islamic law are unanimous on the point that a divorce pronounced in one’s sleep is invalid and futile. So much so that even if after awakening one made a statement that the previously pronounced divorce was to be upheld and maintained, divorce will not come into effect. One will need to actually enforce and put into effect the divorce in order for it to be valid.
The recent report to which you have referred, if established to be accurate, is truly deplorable and upsetting. The local community leaders have erred in their verdict and their ordering of the couple to separate. They should be explained and made aware by learned Ulama of the community or from a nearby community that pronouncement of divorce during sleep in invalid according to all the Sunni Schools of Islamic law. They would be committing a sin if they were to socially boycott the couple upon their refusal to obey the order of separation.
Having said that, one should first really determine what actually has taken place. It could be so that the local religious leaders were not satisfied with the husband’s claim that he was asleep. There could be some other explanation to this whole episode. Nevertheless, the Islamic and Shar’i ruling is quite clear from the above, hence there is no room for arguing that in Islam divorce occurs even when one is asleep. May Allah Most High guide us all to the truth, Ameen.
And Allah knows best
[Mufti] Muhammad ibn Adam
Darul Iftaa
Leicester , UK