henbane and the like, which removes his intellect, while being aware of it and doing so playfully, then his ruling is the ruling of the intoxicated person regarding his divorce. This is the opinion of the companions of al-Shafi'i. The companions of Abu Hanifah said: His divorce does not occur, because he does not derive pleasure from drinking it. Our argument is that his intellect departed due to an act of disobedience, so he is like the intoxicated person.

Section: Ahmad said regarding a person who fainted, if he pronounced a divorce and then upon regaining consciousness realized he had fainted and remembered it: If he is remembering that, then he was not in a state of fainting, and his divorce is valid. In a narration by Abu Talib regarding a mentally ill person who pronounces a divorce, he was told after recovering: You divorced your wife. He replied: I remember that I divorced, but my intellect was not with me. He said: If he remembers that he divorced, then she is divorced. He did not consider him mentally ill if he remembers the divorce and is aware of it. This, and Allah knows best, applies to one whose insanity involves a complete loss of awareness and invalidation of his senses. As for one whose insanity is due to a seizure or who is delirious, the ruling on his actions is nullified, even if his awareness is not completely gone; thus, his remembering the divorce does not affect him, if Allah the Almighty wills.

1253- Issue: He said: (And from Abu Abd Allah, may Allah have mercy on him, there are narrations regarding the intoxicated person; one narration states that the divorce occurs, another states that it does not occur, and a third that he refrains from answering, saying: The Companions of the Messenger of Allah, may Allah bless him and grant him peace, differed on this).

As for refraining from answering, it is not a legal opinion on the issue; rather, it is leaving the matter without an opinion, refraining from it due to the conflict of evidence and the obscurity of its proof. The issue remains with two narrations. The first is that his divorce occurs. This was chosen by Abu Bakr al-Khallal and al-Qadi. This is the school of Sa'id ibn al-Musayyib, 'Ata', Mujahid, al-Hasan, Ibn Sirin, al-Sha'bi, al-Nakha'i, Maymun ibn Mihran, al-Hakam, Malik, al-Thawri, al-Awza'i, al-Shafi'i [in one of his two opinions] (1), Ibn Shubrumah, Abu Hanifah, his two companions, and Sulayman ibn Harb, due to the saying of the Prophet (may Allah bless him and grant him peace): "Every divorce is permissible, except the divorce of the mentally deficient" (2). Something similar is narrated from Ali, Mu'awiyah, and Ibn Abbas. Ibn Abbas (3) said: The divorce of the intoxicated person is permissible; if he committed an act of disobedience among the acts of disobedience to Allah, that will benefit him! This is because the Companions treated him like the sober person in applying the penalty for slander (qadhf), evidenced by what Abu Wabrah al-Kalbi narrated: Khalid sent me to Umar, and I came to him in the mosque while Uthman, Ali, Abd al-Rahman, Talhah, and al-Zubayr were with him. I said: Khalid says that people have indulged in wine and taken the punishment lightly. Umar said: These are before you, ask them. Ali said: We believe that when he gets intoxicated, he raves, and when he raves, he slanders, and upon the slanderer is eighty [lashes]. Umar said: Inform your master of what he said (4). So they treated him like the sober person. Furthermore, because it is a pronunciation of divorce by a mukallaf (legally responsible person) who is not coerced, acting upon his own property, it must necessarily occur, like the divorce of the sober person. Evidence of his legal responsibility is that he is subject to execution for murder and amputation for theft; in this, he differs from the insane person. The second narration is that his divorce does not occur. This was chosen by Abu Bakr Abd al-Aziz. It is the opinion of Uthman (5), may Allah be pleased with him. It is also the school of Umar ibn Abd al-Aziz, al-Qasim, Tawus, Rabi'ah, Yahya al-Ansari, al-Layth, al-Anbari, Ishaq, Abu Thawr, and al-Muzani. Ibn al-Mundhir said: This is established from Uthman, and we know of no one among the Companions who opposed him. Ahmad said: The hadith of Uthman is the most elevated thing on this subject and the most authentic. He means compared to the hadith of Ali, and the hadith of al-A'mash, for Mansur does not attribute it to Ali. Furthermore, because he is one whose intellect has departed, he is like the insane person and the sleeper, and because he is devoid of...