Islamic Fiqh > Marriage and family > Talak (divorce): definition and forms > Question 8 (continued): second case, intoxication through a forbidden cause
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Updated on 25 September 2026 at 3:23 PM
This part belongs to the full section: All sections of this part.
The second state is that of the drunkard who transgressed: he drank an intoxicant he knew to be intoxicating, by choice and without coercion, then repudiated in his drunkenness. The majority of the schools hold the repudiation effective, for he remains subject to obligation; an early tradition, from Uthman and Ibn Abbas, judges it however without effect.
The people of science differed concerning the one who transgresses through his drunkenness, by drinking an intoxicant he knows to be intoxicating and that removes reason, by choice and without coercion, and who repudiates in his drunkenness: does his repudiation occur or not? The majority of jurists, Hanafis, Malikis according to the famous opinion, Shafi'is according to the madhhab and Hanbalis according to the madhhab, hold that the repudiation of the drunkard who transgressed through his drunkenness occurs, whether he has discernment or not; for the rulings of obligation connected to severity apply to him, like retaliation if he killed, the hadd if he fornicated or slandered, and the obligation of making up the prayer: repudiation is likewise. And because whoever can be punished with the hadd of slander for the presence of the formula with him, if he repudiates, his repudiation executes like that of the sober man: his state does not prevent the hadd of slander, so it does not prevent the execution of repudiation. And because in every state where he owes making up missed prayers and incurs the hadd of slander, repudiation uttered in that state is imposed on him, its origin being the state of sobriety (al-Ma'una 1/565).
And because he is subject to obligation; the proof is the word of Allah the Most High:
"O you who believe, do not approach the prayer while you are drunk, until you know what you say."
Surah an-Nisa, 43
The verse indicates their subjection to obligation through two ways: the first is that He names them believers and addresses them by faith, and none but they are so addressed; the second is that He forbids them, in the state of drunkenness, to approach the prayer, and none but one subject to obligation is forbidden.
And because Omar consulted the Companions about the punishment of wine and said: "I see that people exaggerate in drinking it and take its punishment lightly; what do you see?" Ali, may Allah be pleased with him, said: "If he drinks, he gets drunk; if he gets drunk, he raves; if he raves, he invents lies; I see that the punishment of the slanderer be inflicted on him: eighty lashes." And Omar, Uthman and Ali inflicted eighty lashes on him. The proof is that the increase beyond forty is the cause of his lying in his drunkenness: were he not subject to obligation, he would not have been punished for what he committed; and his being held accountable for it is a proof of his subjection to obligation. Once it is established that he is subject, his repudiation must occur like that of the sober man.
And because he is held accountable for his drunkenness, he must therefore be held accountable for what results from it. Do you not see that the one who inflicts a wound that spreads until threatening life is held accountable for that spread? One might object: drunkenness is not his deed, but the deed of Allah upon him; how then is it attributed to him and is he accountable for it? It is answered: its cause, which is drinking, is his deed: what results from it, although it comes from the deed of Allah, is therefore attributed to him, just as the spread of the wound occurring from his deed is attributed to him and he is accountable for it although it comes from the deed of Allah upon him. For lifting repudiation is leniency and concession, while making it occur is severity and strictness; if it occurs from the sober man who is not disobedient, it is even more fitting that it occur from the drunkard, with disobedience. For the drunkard cannot prove his drunkenness by manifest knowledge that would excuse him: it is known only from his side; he is a sinner, his testimony is rejected, and he may get drunk by affect: it is therefore not permitted to replace, in his case, the certainty of the previous ruling by the doubt that arises.
It is not permitted to liken him to the coerced man nor to the madman for two reasons. The first: with the coerced man and the madman there is manifest knowledge indicating the loss of volition, and both are excused by it, unlike the drunkard. The second: the coerced man and the madman are not held accountable for the coercion and the madness, hence not for what results from them; just as the one who cuts a thief's hand and the wound spreads until threatening life is not held accountable for the spread, for he is not accountable for the cutting; and were he transgressing by the cutting, he would be accountable for the spread as he is for the cutting. The drunkard differs from the child in that he is subject to obligation, while the child is not (al-Hawi al-Kabir 10/236-237 ; see al-Bayan 10/69-70, Sharh Sahih al-Bukhari by Ibn Battah 7/410-414, al-Istidhkar 6/205-207, Sharh al-Sunna 9/222-223, Tuhfat al-Fuqaha 2/195, Bada'i' al-Sana'i' 3/99-100, al-Mabsut 6/176, al-Ifsah 2/174-175, al-Ishraf by Ibn al-Mundhir 5/226-227, al-Mughni 7/289-290, Kashshaf al-Qina' 5/268-269, al-Insaf 8/433, Manar al-Sabil 3/85).
It is reported in the Muwatta' of Imam Malik: Malik informed me that it reached him that Sa'id ibn al-Musayyib and Sulayman ibn Yasar, asked about the repudiation of the drunkard, said: when the drunkard repudiates, his repudiation is valid; and if he kills, he is killed for it. Malik said: such is the command among us (al-Muwatta' 2/588, al-Mudawwana al-Kubra 5/24, al-Ma'una 1/565, Tafsir al-Qurtubi 5/204, al-Taj wa-l-Iklil 3/41-42, Mawahib al-Jalil 5/264, Sharh Mukhtasar Khalil 4/31-32, al-Sharh al-Kabir ma'a Hashiyat al-Dasuqi 3/246, Tahbir al-Mukhtasar 3/137).
Imam al-Shafi'i, may Allah be pleased with him, said: whoever drinks wine or nabidh that intoxicates him, then repudiates: repudiation is imposed on him, likewise all the punishments and the obligations; disobedience does not fall away through drinking wine, nor the disobedience of drunkenness through nabidh, whether it be obligation or repudiation. If someone says: this one is overcome in his reason, as the sick man and the madman are overcome: it is answered that the sick man is rewarded and compensated for his illness, and the pen is lifted from him when his reason departs; while this one is a sinner, punished for his drunkenness, without the pen being lifted from him: how would the one who incurs punishment be likened to the one who has the reward? Prayer is lifted from the one overcome in his reason, but it is not lifted from the drunkard; and likewise the obligations of pilgrimage, fasting and the rest (al-Umm 5/253, al-Hawi al-Kabir 10/235-238).
Abu al-Walid al-Baji and Ibn Rushd, among the Malikis, hold that the repudiation of the drunkard occurs if he has discernment; as for the drunkard who no longer knows the earth from the sky nor the man from the woman, there is no disagreement that he is like the madman in all his acts and states, both with respect to people and with respect to Allah, except for the prayers whose time has lapsed (Tafsir al-Qurtubi 5/204, al-Taj wa-l-Iklil 3/41-42, Mawahib al-Jalil 5/264, Sharh Mukhtasar Khalil 4/31-32, al-Sharh al-Kabir ma'a Hashiyat al-Dasuqi 3/246, Tahbir al-Mukhtasar 3/137).
Imam Abu Ja'far al-Tahawi, al-Karkhi among the Hanafis, the Malikis according to an isolated narration, al-Muzani and Abu Thawr among the Shafi'is, the Hanbalis according to a narration, and it is reported from Uthman ibn Affan (and it is authentic from him), from Ibn Abbas, Ata, Tawus, al-Qasim and Rabi'a, and it is the view of al-Layth and Ishaq, hold that the repudiation of the drunkard does not occur: he is deprived of volition, so his repudiation does not occur like that of the coerced man. Since the repudiation of the coerced man fell away through the disappearance of his aim, the repudiation of the drunkard must likewise fall away, he having no aim. And because the drunkard, when he comes back to himself, is not called to repentance in his drunkenness and is not killed: this indicates that his speech has no ruling. And it is not permitted to annul a marriage whose validity was agreed upon by a repudiation whose obligation is disputed. And because reason is a condition of obligation, which is the address through command or prohibition, not directed to the one who does not understand it; and there is no difference between the disappearance of the condition through disobedience or otherwise: the proof being that the one who broke his legs may pray sitting; and if the woman strikes her belly and miscarries, prayer falls away from her; and if he strikes his head and becomes mad, obligation falls away (al-Mughni 7/289).
"The madman and the drunkard have no repudiation."statement of Uthman ibn Affan, authentic hadith, reported by al-Bayhaqi in as-Sunan al-Kubra 7/359
"The repudiation of the drunkard and the coerced man is not valid."statement of Ibn Abbas, authentic hadith, reported by Ibn Abi Shayba in al-Musannaf 5/39, no. 18275; and Bukhari reported it in suspended form in his Sahih 9/343 in the decisive wording
Bukhari mentioned both in his Sahih. Ibn al-Mundhir, may Allah have mercy on him, said: it is established from Uthman that his repudiation does not occur, and we know of no Companion who contradicted him.
Imam al-Tahawi, may Allah have mercy on him, said: the repudiation of the drunkard is not valid, and this is the madhhab of Uthman ibn Affan; and they do not differ concerning the one who drinks banj and loses his reason: his repudiation is not valid, and likewise the drunkard of drink; nor concerning the fact that the rulings of the one who lost his reason do not vary according to whether the loss of his reason has a cause from his side or from the side of Allah. Do you not see that there is no difference between the one unable to stand in prayer through a cause from the side of Allah or through his own cause, by breaking his leg, regarding the falling away of the obligation of standing? If it is said: it is reported from Ali: "Every repudiation is valid, except that of the idiot", it is answered: the drunkard is idiotic through his drunkenness, as the madman is through his madness and the obsessive through his insinuations (Mukhtasar Ikhtilaf al-Ulama 2/431-432).
He said in Sharh Mushkil al-Athar: someone would object: the drunkard, even though he lost his reason through his drunkenness, is the one who brought drunkenness upon himself by his own act; he is therefore not like the madman upon whom madness came without his act. Our answer, by Allah's success and help, is that the madman's rulings do not vary within his madness according to the variety of the causes of his madness, whether through his acts, through consuming things that were causes of the loss of his reason, or through a madness befalling him without any cause: the rulings of the mad necessarily follow him, regarding the falling away of obligations and the lifting of intent in their offenses of homicide, to the point that there is no retaliation against them and the blood-wits of their victims weigh upon their guardians. What is taken into account in the loss of reason of sound people is therefore the loss of their reason itself, not the causes of that loss: so it is with the drunkard, whose loss of reason applies, not the cause through which it occurred; he therefore has, through the loss of his reason, the status of the one who has no reason. The same applies to the sound man able to pray standing: if he breaks his leg, he is commanded to pray sitting according to what he can bear, and making up the prayer standing is not obligatory upon him even if he recovers the capacity. In what we mentioned there is a proof that the repudiation of the drunkard, as well as all his speech and all his acts, falls under the rulings of those who lost their reason; and it is contrary to what Abu Hanifa and his companions and al-Shafi'i said, and contrary to what Malik said, who permitted it. Malik however said: "If I knew he was not sensible, I would not permit his repudiation": as if he were more excused than the others in that, not that he should doubt until knowing with certainty the obligation of repudiation; for what is known with certainty is lifted only by what lifts it with certainty; likewise the obligations of Allah upon His servants in their prayers and the rest of their worship. We have seen no jurist whose reasoning is claimed, among the people of the schools, in disagreement with what we said: it is our view, which may not be contravened, and the one who understands cannot grasp another; we ask Allah for success (Sharh Mushkil al-Athar 12/246-247 ; see the previous sources).
Imam Ibn al-Qayyim, may Allah have mercy on him, said: the repudiation of the one who lost his reason. First outlet: that the repudiator or the swearer has lost his reason, whether through madness, fainting, drinking a medicine, drinking an intoxicant that excuses him or not, or through insinuation. This summary is agreed upon in the ummah, except drinking an intoxicant that does not excuse: the later jurists differed over it; and what is established from the Companions, with no known disagreement among them, is that his repudiation does not occur (I'lam al-Muwaqqi'in 4/48-49).
Bukhari said in his Sahih: chapter on repudiation in incapacitation (ighlaq), coercion, drunkenness, madness, their ruling, error and forgetfulness in repudiation and doubt, according to the word of the Prophet: "Deeds are only by intentions, and each person shall have what he intended." Al-Sha'bi recited: "Our Lord, take us not to task if we forget or err". And what is not permitted among the acknowledgment of the obsessive; and the Prophet said to the one who acknowledged a sin against himself: "Are you mad?". And Ali said: "Hamza gored my she-camel; the Prophet set about blaming him, and behold Hamza was drunk, his eyes red; then Hamza said: You are only the slaves of my fathers. The Prophet knew that he was drunk and went out, and we went out with him." Uthman said: "The madman and the drunkard have no repudiation"; and Ibn Abbas said: "The repudiation of the drunkard and the coerced man is not valid"; and Uqba ibn Amir said: "The repudiation of the obsessive is not valid." Such is the wording of the heading, then he unrolled the rest of the chapter.
No man among the Companions is known who contradicted Uthman and Ibn Abbas in that; for that reason Imam Ahmad returned to this view, after having issued the fatwa of the execution of repudiation. Abu Bakr Abd al-Aziz said in the book al-Shafi wa-l-Zad: Abu Abdillah said, in the narration of al-Maymuni: I used to say that the repudiation of the drunkard is valid, until I examined it; then it appeared preponderant to me that his repudiation is not valid, for were he to acknowledge, he would not be held, and were he to sell, his sale would not be valid; he said: I impose the homicide on him, and everything other than that is not imposed on him. Abu Bakr said: and this is what I say.
In the questions of al-Maymuni: I asked Abu Abdillah about the repudiation of the drunkard, and he said: most of what I hold is that repudiation is not imposed on him. I said: did you not once fear that it would be imposed on him? He said: yes, but most of what I hold in it is that it is not imposed on him, for I saw him among those who have no reason. I said: drunkenness is something he brought upon himself, that is why it is imposed on him. He said: it happens that a man drinks banj or a medicine and loses his reason. I said: and his sale, his purchase, his acknowledgment? He said: it is not valid. He said in the narration of Abu al-Harith: what I count as highest is the hadith of al-Zuhri from Aban ibn Uthman from Uthman: "The madman and the drunkard have no repudiation". He said in the narration of Abu Talib: the one who does not command repudiation came with only one trait, while the one who commands repudiation came with two: he forbade it to himself and permitted it to another; this one is therefore better than that one, and I guard against all of it.
Among those who adopted the non-execution of the drunkard's repudiation: of the Hanafis, Abu Ja'far al-Tahawi and Abu al-Hasan al-Karkhi; and the author of the Nihaya reported it from Abu Yusuf and Zufar; and of the Shafi'is, al-Muzani, Ibn Surayj and a group of those who followed them; and this is what al-Juwayni chose in the Nihaya. Al-Shafi'i declared explicitly the occurrence of his repudiation, and declared in one of his two opinions that his zihar is not valid; some of his disciples therefore shifted from the zihar view to the repudiation view and posed the issue upon two opinions; others established the ruling of the two texts without distinction. The sound view is that his statements have no weight for repudiation, nor manumission, nor sale.
Imam Ibn Battah, may Allah have mercy on him, said: the imams of fatwa agreed that the stray object, if it is made known for a year, its benefit is taken and it is spent, and then its owner comes: its price is returned to him and it is guaranteed to him; and his word "do with it as you see fit" does not permit taking it nor waive its guarantee, according to what is established from him: "If its owner comes after the year, return it to him"; for it is a deposit with the one who found it. A man to whom knowledge was ascribed, known as Dawud ibn Ali, broke the consensus saying: if its owner comes after the year, the one who found it does not guarantee it, for the Prophet absolved him of its ownership by his word "do with it as you see fit"; he has no precedent in that except following desire and daring against the community consensus whose interpretation may not be tampered with nor erred in; may Allah protect us from following desire and innovation in His religion without authorization (Sharh Sahih al-Bukhari 6/552).
He said also: chapter: if the owner of the stray object comes after the year, it is returned to him, for it is a deposit with him. In the hadith: a man asked the Prophet about the stray object, and he said: "Make it known for a year, then know its container and its tie, then announce it; if its master comes, return it to him", until the end of the hadith. The imams of fatwa agreed that when the owner comes after the year, the one who found it must return it to him, according to his word: "If its owner comes, return it to him"; and we mentioned before that some of those to whom knowledge was ascribed, whose lot was to be marked by contradicting the imams, broke their consensus by following this hadith.
The one who said that the difference is that the drunkard brought corruption upon his reason by his will while the madman otherwise, imposed repudiation on the drunkard, and that belongs to severity toward him. The jurists differed over what is imposed on the drunkard as a whole and what is not imposed on him. Malik said: repudiation, manumission and retaliation for wound and homicide are imposed on him, but neither marriage nor sale. Abu Hanifa imposed everything on him. And al-Layth said: every word of the drunkard is set aside; neither repudiation, nor manumission, nor marriage, nor sale, nor the punishment of slander is imposed on him; and whatever his limbs committed is imposed on him: the punishment is inflicted on him for drinking, homicide, fornication and theft. It is established from Uthman ibn Affan, may Allah be pleased with him, that he did not hold the repudiation of the drunkard valid, and some people of knowledge claimed that no Companion contradicted him in that. The word of the one who said "every repudiation is valid except that of the idiot" is not a text imposing repudiation on the drunkard, for the drunkard is partly an idiot: on this said Dawud, Abu Thawr, Ishaq and a group of the tabi'un, meaning that his repudiation is not imposed on him. Al-Shafi'i had two opinions on this, and most of his companions chose the opinion agreeing with the majority, while al-Muzani among them chose that his repudiation does not occur (Bidayat al-Mujtahid 2/61-62).
The question arises for the one who takes substances that remove reason without needing them: is his repudiation assimilated to that of the drunkard who transgressed, or to the madman? The Shafi'is and Hanbalis liken it to forbidden intoxication, the Hanafis and others exclude it, except hashish and opium among the late Hanafis.
The Hanafis said: if he drank banj or a sweet thing and his reason was lost, or an intoxicating medicine and his reason disappeared, his repudiation does not occur in that state, for he is like the idiot in his transactions (al-Mabsut 24/34, Bada'i' al-Sana'i' 3/100, al-Muhit al-Burhani 3/412, al-Jawhara al-Nira 4/398, al-Ikhtiyar 3/156, Ghumz Uyun al-Basa'ir 2/118, Ibn Abidin 3/240).
The jurists differed concerning the one who drinks banj or what removes reason without need: does his repudiation occur like that of the drunkard through a forbidden cause, or not? The Shafi'is according to the madhhab and the Hanbalis according to a narration chosen by Ibn Qudama and others hold that the one who drinks what removes his reason without need, like banj or the medicine that removes reason, so that his reason disappears, has the status of the drunkard through a forbidden cause: his repudiation occurs if he repudiates in that state, for his reason disappeared through disobedience: he is like the one who drank wine or nabidh. Al-Amrani, may Allah have mercy on him, said: if he drinks a medicine or a drink other than wine and nabidh and becomes drunk: if he drank it for a need, he has the status of the madman; if he drank it to remove his reason, he is like the drunkard who drinks wine, for his reason disappeared through disobedience, so he is like the one who drank wine or nabidh (al-Bayan 10/70, al-Tanbih p. 173, al-Mughni 7/288).
The Hanafis, the Shafi'is according to one opinion and the Hanbalis according to the madhhab hold that the one who drinks what removes his reason without need and repudiates, his repudiation does not occur, whether for treatment or otherwise, for there is no pleasure in it (al-Mabsut 24/34, Bada'i' al-Sana'i' 3/100, al-Muhit al-Burhani 3/412, al-Jawhara al-Nira 4/398, al-Ikhtiyar 3/156, al-Tanbih p. 173, al-Kafi 3/164, Sharh al-Zarkashi 2/462, Kashshaf al-Qina' 5/269, Sharh Muntaha al-Iradat 5/365, Matalib Uli al-Nuha 5/231-232). But this excludes hashish and opium among the late Hanafis.
It is said in al-Durr al-Mukhtar: or hashish, opium or banj: the fatwa is issued that repudiation occurs, repelled, the correction of al-Quduri; the correction is debated for the one made drunk by coercion or necessity; but if his reason disappeared through headache or through a lawful cause, it does not occur. In al-Quhistani, citing al-Zahidi: if he cannot discern what permits addressing him, his transactions are void. Ibn Abidin, may Allah have mercy on him, said: a matter concerning hashish, opium and banj. His word "hashish": it is said in the Fath that the masters of the two schools, Shafi'i and Hanafi, agreed on the occurrence of repudiation for the one whose reason disappeared through consuming hashish, called cannabis leaves, in virtue of their fatwa of its prohibition after having differed over it: al-Muzani issued the fatwa of its prohibition, and Asad ibn Amr of its lawfulness, for the early generations said nothing of it, its importance not having appeared among them; when many corruptions of its matters appeared and spread, the masters of the two schools returned to its prohibition and issued the fatwa of the occurrence of repudiation for the one whose reason disappeared through it.
Opium is what comes from the poppy, and banj (with fath) is a cultivated plant. He declared explicitly in the Bada'i' and elsewhere that repudiation does not occur through its consumption, explaining it by the fact that the disappearance of his reason had no disobedient cause. The sound view is the distinction: if it was for treatment, it does not occur, for lack of disobedience; if there was intent of amusement and of inflicting harm, one must not hesitate about occurrence. In the correction of al-Quduri, citing al-Jawahir: in this era, if he becomes drunk from banj and opium, repudiation occurs, repelled, and the fatwa is based on it; the full text is in al-Nahr. His word "repelled" indicates the mentioned distinction: if it was for treatment, he is not repelled, for lack of intent of disobedience. The Tuhfa and others corrected non-occurrence, and the Khulasa affirmed occurrence. It is said in the Fath: the first is finer, for what causes occurrence upon the disappearance of reason is only being its cause through a forbidden means, which is absent here. In al-Nahr, from the correction of al-Quduri: this is the verification. His word "if his reason disappeared through headache": the cause of the disappearance of reason is the headache, and drinking is the cause of the cause, and the ruling is not attached to the cause of the cause except when the cause is not fit; the full text is in the Fath.
The case was posited in the Fath and the Bahr for the one who drank wine and then had a headache, contrary to what is in the Multaqat: if the nabidh is mild and he had a headache until losing his reason, his repudiation does not occur; and if the nabidh is strong, forbidden, and he had a headache until losing his reason, his repudiation occurs: he distinguished the forbidden path from the lawful one, consider it and ponder. His word "or through a lawful cause": as if he became drunk from pomegranate leaves: neither his repudiation nor his manumission occurs; the author of the Tahdhib reported consensus on it, as in the Hindiyya. I say: likewise if he became drunk through banj or opium taken not in disobedience but for treatment, as passed. His word on al-Quhistani rests on the definition of the drunkard whose transactions are valid among us: the one who has of reason what suffices for obligation; and one marveled at it in the Fath: without any doubt, on that estimation, no one can say that his transactions are not valid (Hashiyat Ibn Abidin 3/239-240).
Ibn Qudama, may Allah have mercy on him, said: as for the one who drinks banj and the like of what removes his reason, knowing it and taking it in play, he has the status of the drunkard regarding his repudiation, and on this said the companions of al-Shafi'i. The companions of Abu Hanifa said: his repudiation does not occur, for he has no pleasure in drinking it. For us: his reason disappeared through disobedience, so he resembles the drunkard (al-Mughni 7/288).
Al-Zarkashi, may Allah have mercy on him, said: among what enters the speech of al-Khirqi: the one who takes what removes his reason without need, like banj and the like; the school divided over it: Ibn Hamid, Abu al-Khattab in the Hidaya and Abu Muhammad assimilated him to the drunkard; Ahmad distinguished them and assimilated him to the madman; and the qadi explained the difference by the fact that most people drink without disobedience, unlike the intoxicant, and the ruling attaches to the majority; and because many of those who drink the intoxicant see their reason disappear while it is present: the occurrence of repudiation was ruled to close the way (sadd al-dhari'a), unlike the taker of banj and the like. What may be assimilated to banj is the wicked hashish; Abu al-Abbas holds that its status is that of the intoxicating drink, even to the obligation of the punishment; he distinguishes it from banj by the fact that it is desired and sought, so like wine, unlike banj: the ruling with him depends on the soul's desire for it and its seeking, and Allah knows best (Sharh al-Zarkashi 2/462).
Imam al-Mirdawi, may Allah have mercy on him, said: his word "whoever drinks what removes his reason without need: the validity of his repudiation has two narrations". Know that many companions (of the school) assimilated to the drunkard the one who drinks or eats what removes his reason without need, like the substances that remove reason other than wine among the forbidden, and banj and the like; they therefore placed in it the disagreement that exists in drunkenness: among them Ibn Hamid and Abu al-Khattab in the Hidaya, the author of the Mudhhab, of the Masbuk al-Dhahab, of the Mustaw'ib, of the Khulasa, and the author of this book; and in the Kafi, the Mughni, the commentator, Ibn Munajja in his commentary, the author of the Tashih and others; he advanced it in the Ri'ayatayn and the Zubda. Whoever generalized the disagreement in drunkenness generalized it here, except the author of the Khulasa, who affirmed occurrence in drunkenness and generalized the disagreement here; and the Tashih corrected occurrence in both. Shaykh Taqi al-Din chose that he is like the drunkard, saying: for he intended the removal of his reason through a forbidden means. He said in the Wadih: if he treated himself with banj and became drunk, repudiation does not occur; he corrected it in the second rule after the hundred. He said in the Furu': and it is the apparent of the speech of a group. He said in the Jami' al-Kabir: if his reason disappears through banj, examine: if he treated himself with it, he is excused and his status is that of the madman; if he took what removes his reason without need, his status is that of the drunkard, and treatment is a need. End of quote. I say: the apparent of the author's (of the Mughni) speech is that if he took it for a need, repudiation does not occur, and the author declared it in the Mughni and elsewhere.
Know that the sound view of the school is that taking banj and the like without need, if reason disappears through it, is like the madman: the repudiation of the one who took it does not occur, declared explicitly, for there is no pleasure in it. Imam Ahmad distinguished it from drunkenness and assimilated it to madness; he advanced it in the Nazm and the Furu', and it is the apparent of what he advanced in the Muharrar, and he inclined to it. It is said in the Munawwar: the repudiation of the one who lost his reason does not occur except through a forbidden intoxicant, and this is the apparent of al-Khirqi's speech, for he said: the repudiation of the one who lost his reason without drunkenness does not occur; al-Zarkashi said: this may enter the speech of al-Khirqi. And he said in the Ri'ayatayn and the Hawi al-Saghir: if he sins through drunkenness or the like, two narrations, then he mentioned the status of banj and the like. Two benefits follow. The first: al-Zarkashi said that the wicked hashish is assimilated to banj; and Abu al-Abbas holds that its status is that of the intoxicating drink, even to the obligation of the punishment, and this is the sound view: if it intoxicates or if much of it is taken; otherwise it is forbidden and only discretionary punishment (ta'zir) is applied to it according to the most apparent view, even when purified. Abu al-Abbas distinguished it from banj by the fact that it is desired and sought, so like wine, unlike banj: the ruling with him therefore depends on the soul's desire for it and its seeking (al-Insaf 8/437-438).
Al-Bahuti, may Allah have mercy on him, said: or if he drank what removes his reason without knowing that it removes reason, or ate banj and the like, even without need; for there is no pleasure in it; and Imam Ahmad distinguished it from drunkenness and assimilated it to madness (Kashshaf al-Qina' 5/269, Sharh Muntaha al-Iradat 5/365).
As for the Malikis, al-Kharshi, may Allah have mercy on him, said: if he became drunk with a forbidden drink; is it only lack of discernment or absolutely? Hesitation. This is an exaggeration in imposing repudiation upon the Muslim subject to obligation, for his drunkenness does not remove him from obligation: his repudiation is therefore imposed on him even if he became drunk with a forbidden intoxication like wine, nabidh, mead or hashish according to the one who holds it intoxicating, provided he intended that forbidden thing. If he did not intend it, assuming it was milk or water, no repudiation nor punishment of slander is imposed on him: he has the status of the madman and the fainted one, and he is believed in his assumption as long as he is not suspect in his religion. Al-Adawi said in his hashiya: his word "mead" (with the kasra of the mim and the zay) is the intoxicating brew; and his word "hashish according to the one who holds it intoxicating": its apparent is that, according to the one who does not hold it intoxicating, repudiation does not occur against him even if he knows that it removes reason; yet it is not so: for if he knows that hashish removes his reason, uses it, his reason disappears and he repudiates, repudiation occurs against him; and he meant by "knowledge" what includes assumption, as is apparent (Sharh Mukhtasar Khalil 4/31-32).
The obsessive (muwaswis) is the one whose reason abandons him under satanic insinuations, to the point that his speech becomes disordered. Most scholars judge his repudiation without effect, for the insinuation is the speech of the soul, for which there is no accountability; the text cites the lexicographers, Bukhari, the Malikis and Ibn al-Qayyim.
The insinuation (waswasa) is the hidden sound; one says "the jingling of ornaments" for its noises; and one says "the man whispered" according to the proper form of its verb: when he utters a hidden speech that he repeats; it is a durative verb, like the woman clinking her jewels and the wolf howling. "A muwaswis man" (with kasra, and it is not said with fath, but muwasas for him): the one upon whom the insinuation is cast. Abu al-Layth, may Allah have mercy on him, said: the insinuation is the speech of the soul; he was called muwaswis because he relates what is in his innermost self. And according to al-Layth, may Allah have mercy on him: the repudiation of the obsessive is not valid; he said: he means the overcome one, that is, the one overcome in his reason, who, when he speaks, speaks in disorder. And the waswas is a noun meaning waswasa, like zilzal meaning zalzala; and what is intended thereby is the devil in the word of the Most High: "from the evil of the sneaking whisperer", as if he were an insinuation in himself (al-Maghrib fi tartib al-mu'rib 2/353).
Most of the people of science declared that the repudiation of the obsessive overcome in his reason does not occur, for he has the status of the madman. Imam Ibn al-Qayyim, may Allah have mercy on him, said: the repudiation of the one who lost his reason; first outlet: that the repudiator or the swearer has lost his reason, whether through madness, fainting, drinking a medicine, drinking an intoxicant that excuses him or not, or through insinuation. This summary is agreed upon in the ummah, except drinking an intoxicant that does not excuse, over which the later jurists differed. Ibn al-Qayyim said: the repudiation of the obsessive does not occur; the companions of Abu Hanifa and others declared it explicitly, and that is only due to the invalidity of his reason and his volition (Ighathat al-Lahfan p. 42).
Imam al-Shafi'i, may Allah be pleased with him, said: the one who is overcome in his reason through a natural disposition or an accidental illness of which he was not the cause through disobedience, repudiation, prayer and the punishments are not imposed on him; and this is the case of the idiot, the madman, the obsessive, the mubrasm and every sick man who overcomes his reason as long as he is overcome. When his reason returns to him and he repudiates in that state, or a punishment is applied against him, the obligations are imposed on him; likewise the madman who raves and comes back to himself: if he repudiates in his madness, repudiation is not imposed on him; and if he repudiates upon his awakening, it is imposed on him.
If two witnesses testify against a man that he repudiated his wife and he says: "I repudiated in my madness or in an illness that overcomes my reason": if he has a proof of an illness that overcame his reason at the time he repudiated, his repudiation falls away, and he is made to swear over what he repudiated while sane. If his wife says: "On such a day, in the morning, he was overcome in his reason", and the two witnesses testify to the repudiation and establish that he was sane at the time he repudiated, the repudiation is imposed on him; for he may be overcome in his reason during the day and come back to himself, and within the hour and come back to himself. If the two witnesses of the repudiation do not establish that he was sane at the time he repudiated, or if they testify to the repudiation knowing that he was that day overcome in his reason, he is made to swear over what he repudiated while sane, and this is his view. If the two testify against him of the repudiation without establishing whether he was sane or not, and he says: "I was overcome in my reason", he is held sane until a proof establishes that he was at such a time struck by what removes his reason, or that what removes his reason befalls him frequently during the day and the days: his word is then accepted, for he has a cause indicating his sincerity (al-Umm 5/253).
Bukhari reported in suspended form in his Sahih from Uqba ibn Amir:
"The repudiation of the obsessive is not valid."statement of Uqba ibn Amir, Sahih al-Bukhari 5/2019
The hafiz Ibn Hajar, may Allah have mercy on him, said: that is, it does not occur; for the insinuation is the speech of the soul, and there is no accountability for what occurs in the soul (Fath al-Bari 9/392). Likewise said Imam Badr al-Din al-Ayni, may Allah have mercy on him: he said "is not valid" because the insinuation is the speech of the soul, and there is no accountability for what occurs in the soul (Umdat al-Qari 20/253).
Imam Bukhari reported (no. 4968): Muslim ibn Ibrahim informed us, Hisham informed us, Qatada informed us from Zurara ibn Awfa, from Abu Hurayra, may Allah be pleased with him, that the Prophet said:
"Allah has waived for my ummah whatever their souls whisper, so long as they do not act upon it or speak of it."reported by Bukhari 4968
Qatada said: if he repudiates within his soul, it is nothing. The hafiz Ibn Hajar, may Allah have mercy on him, said: this hadith is a proof that the repudiation of the obsessive does not occur, and the idiot and the madman are even more worthy of it (Fath al-Bari 9/393).
Imam Ibn Nujaym the Hanafi, may Allah have mercy on him, said: as for the obsessive, he specified him in the Zahiriyya in the chapter of discretionary punishment (ta'zir); and in the Mughrib: "a muwaswis man" with kasra, and it is not said with fath, but muwasas for him, that is, the one upon whom the insinuation is cast. Al-Layth said: the insinuation is the speech of the soul; he was called muwaswis because he relates what is in his innermost self. From Abu al-Layth: the repudiation of the obsessive is not valid, he means the one overcome in his reason. And according to al-Hakim: he is the one afflicted in his reason, who, when he speaks, speaks in disorder (al-Bahr al-Ra'iq 5/51, Hashiyat Ibn Abidin 4/224).
It is reported in the Mudawwana al-Kubra: Uqba ibn Amir al-Juhani used to say: "The repudiation of the obsessive is not valid" (al-Mudawwana al-Kubra 5/30). Abu al-Walid Ibn Rushd al-Qurtubi, may Allah have mercy on him, said concerning the man whom his soul makes doubt, who says: "I have repudiated my wife", or who utters repudiation without wanting it or doubting: he diverts from it and says to the wicked one, that is, the devil: "You spoke the truth", and nothing weighs upon him. Muhammad ibn Rushd said: it is like what is in the Mudawwana: the obsessive is not imposed repudiation, and this belongs to what admits no disagreement; for it comes only from the devil: one must therefore distract oneself from it and not turn to it, like the insinuation in ablution and prayer; if he acts thus, the devil despairs of him, and it becomes a cause of his ceasing, if Allah wills (al-Bayan wa-l-Tahsil 6/161).
Imam al-Mawwaq, may Allah have mercy on him, said: Izz al-Din said: the insinuation is not part of man's soul; it rather emanates from the deed of the devil, and there is no sin upon man in it, for it is not part of his earning and his doing; but man imagines that it comes from his soul, because the devil speaks to the heart through it without casting it into the hearing: man therefore imagines that it emanates from him, is troubled by it and hates it. And in Lata'if al-Minan: shaykh Abu al-Abbas made the one beset by insinuations repeat: "Glory to the King, the Creator", then the verses:
"If He wills, He does away with you and brings a new creation; and that is not hard for Allah."
Surah Fatir, 19-20
The dazed man (madhush) is the one whom derangement dominates in his words and acts outside his habit, following an anger that seized him. The Hanafi jurists judge his repudiation without effect; the text then discusses the boundary between the dazed man, the angry man and the madman, together with the question of the two men's testimony about the exception.
The Hanafi jurists declared explicitly that the repudiation of the dazed man does not occur (Bada'i' al-Sana'i' 3/100, al-Bahr al-Ra'iq 3/268, Hashiyat Ibn Abidin 3/243). Imam al-Kasani, may Allah have mercy on him, said: among the conditions, that he be neither idiot, nor dazed, nor mubrasm, nor fainted, nor asleep: the repudiation of those does not occur, according to what we said of the madman. He said also: their zihar is not valid like their repudiation; and the zihar of the drunkard is like his repudiation, according to the distinction we mentioned in the book of repudiation (Bada'i' al-Sana'i' 3/100 and 3/230).
Ibn Abidin, may Allah have mercy on him, said: a matter concerning the repudiation of the dazed man. He said in the Khayriyya: he erred who explained it here as perplexity (tahayyur), for perplexity, that is, wavering in the matter, does not imply the loss of reason. Nazm was asked about the one who repudiated his wife three times in the judge's session while he was angry and dazed; Nazm answered: the madh belongs to the kinds of madness, so repudiation does not occur; and if he is accustomed to being seized by it, to the point that a madh is known of him, he is believed without proof. I say: the hafiz Ibn al-Qayyim the Hanbali has a treatise on the repudiation of angry men, in which he says they fall into three categories. The first: that the beginnings of anger come upon him, so that his reason does not change and he knows what he says and intends it: this poses no problem. The second: that the anger reach its end, so that he does not know what he says nor intends it: without any doubt, nothing of his words is executed. The third: the one who is intermediate between the two degrees, without having become like the madman: this is the place of examination, and the evidences indicate the non-execution of his words; summarized from the Sharh al-Ghaya al-Hanbaliyya. He however indicated in the Ghaya the contrary in this, saying: the repudiation of the one who became angry occurs, contrary to Ibn al-Qayyim. This conforming view accords with our school (the Hanafi one) according to what passed concerning the dazed man; but it is objected that we do not take the idiot's words into account, although it is not required thereby that he reach a state in which he does not know what he says nor intends it.
It can be answered that the idiot, being permanent in a single state that can be delineated, was taken into account and one contented himself in him with the mere deficiency of reason, unlike anger, which occurs in some states; but the madh is objected, for it is likewise. What appears to me is that neither the dazed man nor the angry man need be at the point of not knowing what they say, but it suffices in them that delirium predominate and that the serious be confused with the jest, as is the fatwa for the drunkard according to what passed; and the definition of the madh by the loss of reason does not contradict it, for madness has kinds: that is why it was explained in the Bahr as derangement of reason, including idiocy, the mubrasm, fainting and the madh. What confirms our statement is the word of some: the reasonable man is he whose speech and acts are upright, except rarely, and the madman is his opposite. It also happens that some madmen know what they say and intend it, and recall what the ignorant observe of their sanity, then display in their session what contradicts it; if the true madman can know what he says and intend it, the others are more worthy of it. What one must rely upon concerning the dazed man and the like is therefore the attachment of the ruling to the predominance of derangement in his words and acts outside his habit; and it is said likewise of the one whose reason became deranged through old age, illness or a sudden trial: as long as he is in the predominance of derangement in his words and acts, his words are not taken into account, even if he knows them and intends them; for this knowledge and this volition are not taken into account, lacking sound perception, just as they are not taken into account in the discerning child.
Indeed, what comes in the hashiya of the Bahr, declared in the Fath and the Khaniyya and others, is problematic, namely: if he repudiated and two witnesses testify before him "you made an exception", while he does not remember it: if he is at the point that, when he becomes angry, he does not know what he says, adopting their testimony is feasible; otherwise not. What follows is that if he does not know what he says, his repudiation occurs, otherwise there is no need to adopt their word "you made an exception"; and this is very problematic, unless one answers that what he means by his not knowing what he says is that, through the strength of his anger, he may forget what he said and not remember it afterwards, not that he makes run on his tongue what he does not understand or does not intend; for without any doubt he is then at the highest degree of madness. What confirms this interpretation is that, in this branch, he knows that he repudiated and intends it, but does not remember the exception because of the violence of his anger. Such is what appeared to me in verifying this place, and Allah knows best the truth of the aim. Then I saw what confirms that answer: he said in the Waluwaljiyya: if he is in a state such that, if he becomes angry, what he will not remember afterwards runs on his tongue, it is permitted him to rely on the word of the two witnesses; and his word "which he will not remember afterwards" is explicit for what we said (Hashiyat Ibn Abidin 3/244).
Ibn Abidin, may Allah have mercy on him, was asked in Tanqih al-Fatawa al-Hamidiyya (1/272) about a man seized by a madh through which his reason disappeared and who had no more consciousness, following an event that befell him: the loss of his property and the killing of his maternal cousin; and he said in that state: "O Lord, You bear witness that I have repudiated such daughter of such, that is, his designated wife, by the triple according to the four schools of the Muslims: each time she remarries, she is forbidden": does his repudiation not occur? Answer: the madh is the loss of reason through astonishment or bewilderment; it was declared explicitly in the Tanwir and the Tatarkhaniyya and others that the repudiation of the dazed man does not occur. It follows that if the man was seized by a madh that made his reason and consciousness disappear, his repudiation does not occur; and his word is taken with his oath if the madh is known of him; if it is not, his word is not accepted judicially without proof, as the Hanafi scholars, may Allah have mercy on them, declared (Tanqih al-Fatawa al-Hamidiyya 1/272).