Chapter: Divorce Pronounced by an Intoxicated Person and Others in a Similar State

Shaykh al-Islām—may Allah have mercy on him—was asked:

Concerning “an intoxicated man who has lost his reason”: if he swears an oath of divorce, is he held liable for breaking it or not?

He replied:

Praise be to Allah, Lord of all worlds. The scholars hold “two views” on this issue. The sounder view is that his divorce does not take effect. Thus, an intoxicated person’s oath is not binding, nor does his pronouncement of divorce take effect. This position is established from the Commander of the Faithful, Uthmān ibn Affān. To my knowledge, no contrary position has been established from any of the Companions.

It is the view of many earlier and later scholars, including Umar ibn Abd al-Azīz and others. It is also one of the two positions reported from Ahmad, adopted by a group of his followers. It is al-Shāfiʿī’s earlier position, which a group of his followers also adopted, and the view of a group of Abū Hanīfah’s followers, such as al-Tahāwī. Other scholars likewise held this position.

This view is correct, for it is established in an authentic report that:

“When Māʿiz ibn Mālik came to the Prophet, may Allah bless him and grant him peace, and confessed to having committed unlawful sexual intercourse, the Prophet, may Allah bless him and grant him peace, ordered them to smell his breath.”

This was to determine whether he was intoxicated. Had he been intoxicated, his confession would not have been valid. If his confession was not valid, this establishes that his statements have no legal effect, like those of an insane person; and because