the divorce of hardship and the Sunnah. It is like his saying: 'the divorce of innovation and the Sunnah.'

1252- Issue: He said: (And the divorce of one whose intellect is absent without intoxication does not (1) occur)

The scholars have reached a consensus that the divorce of one whose intellect is absent for a reason other than (2) intoxication, or that which is equivalent to it, does not occur. This was stated by Uthman, Ali, Sa'id ibn al-Musayyib, al-Hasan, al-Nakha'i, al-Sha'bi, Abu Qilabah, Qatadah, al-Zuhri, Yahya al-Ansari, Malik, al-Thawri, al-Shafi'i, and the scholars of reasoning (Ashab al-Ra'y). They reached a consensus that if a man divorces while in a state of sleep, there is no divorce for him. It has been established that the Prophet (may Allah bless him and grant him peace) said: "The pen is lifted from three: from the sleeper until he wakes up, from the child until he reaches puberty, and from the insane person until he regains his intellect (3)" (4). It was narrated from Abu Hurayrah, from the Prophet (may Allah bless him and grant him peace) that he said: "Every divorce is permissible, except the divorce of the mentally deficient whose intellect is overcome." Al-Najjad narrated it (5). Al-Tirmidhi said: "We do not know it except from the hadith of 'Ata ibn 'Ajlan, and his hadith is discarded." He also narrated with his chain of transmission from Ali something similar (6). And because it is a statement that removes ownership, intellect is required for it, like a sale. It is the same whether his intellect departed due to insanity, fainting, sleep, drinking medicine, being coerced into drinking wine, or drinking that which removes [his intellect] (7), and he does not know that it removes the intellect; all of this prevents the occurrence of the divorce, based on a single narration, and we know of no disagreement regarding it. As for if he drank