What do the scholars of the Dīn and muftīs of the Sacred Law state regarding the following issue: Does the divorce of a partially sane person occur i.e. such a person who is not classified or medically diagnosed as mentally ill in total, but he behaves like a mentally ill person, he is possibly suffering from depression and he has been given treatment and medicine; if he gives divorce in such a state, then will it have occurred or not?
Questioner: Sister from UK
بسم اللہ الرحمن الرحیم
الجواب بعون الملک الوھاب اللھم ھدایۃ الحق والصواب
If he really truly actually is somewhat mentally ill, so the divorce of a somewhat mentally ill person is not considered because it is a condition for the occurrence of divorce for the husband to be in the state of sense, being pubescent, awake, conscious and aware.
It is narrated from Lady ‘Ā’ishah – may Allāh be content with her – that the Noble Messenger ﷺ stated,
“رُفِعَ الْقَلَمُ عَنْ ثَلَاثَةٍ: عَنِ النَّائِمِ حَتَّى يَسْتَيْقِظَ، وَعَنِ الْغُلَامِ حَتَّى يَحْتَلِمَ، وَعَنِ الْمَجْنُونِ حَتَّى يُفِيقَ”
‘Rulings are not applied to three kinds of people: A sleeping person until he awakens, a child until he becomes mature [i.e. pubescence], and a mentally ill person until he recovers.’
[al-Sahīh li Ibn Hibbān, vol. 1, p. 355, Hadīth no. 142]
[Sunan Abī Dāwūd, vol. 4, p. 141, Hadīth no. 4403]
It is stated in another blessed Hadīth that the Noble Messenger – countless peace and blessings be upon him – stated,
“كُلُّ الطَّلَاقِ جائز إلَّا طَلَاقَ الْمَعْتُوهِ”
‘Every divorce occurs other than that of a mentally ill person.’
[Musannaf Ibn Abī Shaybah, vol. 4, p. 72, Hadīth no. 17914]
[Musannaf ‘Abd al-Razzāq, vol. 6, p. 409, Hadīth no. 11415]
The author of Bahr – ‘Allāmah Ibn Nujaym – has actually included and regarded the divorce of a partially mentally ill person as that of a fully medically diagnosed mentally ill person, just as it is stated in al-Bahr al-Rā’iq,
“اراد بالجنون من فی عقله اختلال، وَيَدْخُلُ فِيهِ الْمَعْتُوهُ. وَأَحْسَنُ الْأَقْوَالِ فِي الْفَرْقِ بَيْنَهُمَا أَنَّ الْمَعْتُوهَ هُوَ الْقَلِيلُ الْفَهْمِ الْمُخْتَلِطُ الْكَلَامِ الْفَاسِدِ التَّدْبِيرِ، لَكِنْ لَا يَضْرِبُ وَلَا يَشْتُمُ بِخِلَافِ الْمَجْنُونِ”
‘The meaning of mentally ill is that there is an issue and hardship in the mental capacity of said person – a partially mentally ill person is also included in this as well. The best statement in differentiating between the two is that a partially mentally ill person means a lack of understanding, whose speech and conversation is mixed and muddled up with some correct words and some incorrect [i.e. part of it makes sense and some (of it does) not]. However, a partially mentally unstable person is neither abusive, nor does he utter any words of profanity, as compared to a medically diagnosed mentally ill person.
[al-Bahr al-Rā’iq li-Ibn Nujaym al-Hanafī, vol. 3, p. 268]
Likewise, it is stated in Durr Mukhtār alongside Radd al-Muhtār,
“وَأَهْلُهُ زَوْجٌ عَاقِلٌ احْتَرَزَ ۔۔۔ بِالْعَاقِلِ وَلَوْ حُكْمًا عَنْ الْمَجْنُونِ وَالْمَعْتُوهِ وَالْمَدْهُوشِ”
‘“The only kind of husband who is able to give divorce is one that is sane minded”… by mentioning sane minded, this excludes people who are not sane minded, even those who are classified as such, for instance, the one who is medically diagnosed as mentally ill, the one who is partially mentally unstable, and someone unable to think properly or clearly.’
Hence, it is established that the divorce of a partially mentally unstable person does not occur, regardless of whether it was given verbally or in written form.
واللہ تعالی اعلم ورسولہ اعلم صلی اللہ علیہ وآلہ وسلم
کتبہ ابو الحسن محمد قاسم ضیاء قادری
Answered by Mufti Qasim Zia al-Qadri
Translated by Haider Ali Madani
Read the original Urdu answer here: [Q-ID0835] If my mentally ill husband gives me a divorce, is it valid?