Question:

What do the scholars and experts of shari’ah say in regard to my situation? A few days ago, I was in a state of intoxication. In that condition, when I came home, I had some harsh words with my wife, and I said “divorce, divorce” to her several times. When I came out of the intoxicated state, I was informed that I had divorced my wife. I felt very sorry because I did not intend to divorce her. This all happened while I was intoxicated. I want to know whether the divorce is valid or not according to Shariah.

Khalid, Leeds

Answer:

There is a difference of opinion among the Companions of the Prophet ﷺ regarding the validity of a divorce given in a state of intoxication (ṭalāq al-sukrān), and the same difference exists among the scholars. The Imams of the Hanafi school hold that if a person intoxicates himself voluntarily, a divorce by him is valid, whereas if the intoxication is caused by deceit (someone administering intoxicants without the person’s knowledge), then the resulting divorce is not valid.

However, given the widespread prevalence of intoxicants today, it is recommended to adopt the position that the divorce is not valid, because issuing a divorce while one’s intellect is impaired is contrary to reason (khilāf al-qiyās).

There is evidence from the Hadith that a divorce given by a person whose intellect is overcome does not take effect: “Every divorce is valid, except the divorce of a mentally incapacitated person whose reason is overpowered.” (Al-Tirmidhi)

Imam Bukhari, in the translation of the chapter, narrates a statement of Ibn ‘Abbas: “The divorce of a drunkard or coerced person is not permissible.” (Al-Bukhari)

Imam Kasani mentions that according to most Companions and scholars, the divorce of a drunk person is valid, but according to Sayyiduna ‘Uthman it is not valid. Similarly, Imam Tahawi, Imam Karkhi, and one opinion of Imam Shafi‘i hold that intoxicated divorce is not valid. Imam Kasani further writes:

“If a drunk person’s intellect is lost, and intellect is a condition for legal capacity. Then the divorce of an insane person, a child who is not of sound mind, or one whose reason has been impaired by drugs or medicine is not valid. The evidence is that their apostasy would not be valid, so their divorce should not be valid.” (Bada’i‘ al-Sana’i‘)

From the above, a divorce given in a state of intoxication does not take effect. Therefore, if you issued divorce(s) while under the influence of intoxicants and did not confirm them after regaining sobriety, the divorce did not occur, and you can remain as husband and wife. However, for the future, refrain from such wrongful actions.

And Allah and His Messenger ﷺ know best

This Fatwa is written By Dr Musharraf Hussain Al Azhari