The husband's states: language, intoxication, coercion, anger

This part completes the discussion of the jester by citing the voices that judge his repudiation ineffective, then examines in eight sections the special repudiations: that of the non-Arab (al-ajami), the liar, the one whose tongue slipped, the drunkard (permissible then forbidden intoxication), the one who takes banj, a medicine or opium without need, the one beset by satanic insinuations (muwaswis), the dazed man (madhush), the coerced man and the angry man. Each school position is reported with its Quranic and prophetic evidences, its takhrij (Bukhari, Muslim and report numbers), and its classical references in parentheses.

Question 4 (continued): the jester's repudiation judged ineffective

After the schools that make the jester's repudiation effective, the text cites those who annul it: al-Lakhmi among the Malikis, Ibn al-Qasim, and one of the two narrations from Ahmad reported by Ibn al-Qayyim. The common rule is that the jester may deny he was joking only regarding another man's repudiation, since he is himself bound by his own jest.

Al-Lakhmi said: I hold that if the proof of joking is established, no repudiation is imposed on him. Ibn al-Qasim said: whoever says to his wife: "I have entrusted your matter to you if Allah wills", and she answers: "I part from you if Allah wills", both of them playing and not intending repudiation, nothing weighs upon them. Ibn al-Qasim also said, concerning a man whom another asked: "Have you repudiated your wife?", and who answered: "Yes, as you repudiated yours", while the other had repudiated his wife without his knowledge: nothing weighs upon him, for he did not intend repudiation; he may swear that he did not know of the other's repudiation, but he must not swear that he was joking, for the jester is himself bound by repudiation (al-Taj wa-l-Iklil 3/42, Mawahib al-Jalil 5/265).

This is also a narration transmitted from the Hanbalis. The imam Ibn al-Qayyim, may Allah have mercy on him, said: some jurists annulled the jester's repudiation, and this is one of the two narrations transmitted from Imam Ahmad, reported by Abu Bakr Abd al-Aziz and others; and some companions of Malik hold the same when the proof of joking is established: neither manumission, nor marriage, nor repudiation is imposed on him. Without any doubt, the angry man has even more right than this one to have his repudiation not take effect (Ighathat al-Lahfan fi hukm talaq al-ghadban p. 41).

Question 5: the repudiation of the non-Arab (al-ajami)

The non-Arab who utters a formula of repudiation in Arabic necessarily falls into one of three cases: he knows its meaning, he is ignorant of it without intending its effect, or he is ignorant of it while intending its effect. The schools differ especially on the third case, and the discussion extends to repudiation in Persian among the Hanafi masters.

The non-Arab who says to his wife: "You are repudiated", falls into three situations.

First situation: he knows the meaning: repudiation is imposed on him, whether he intended it or not, like the Arab, and this is a point of agreement among the people of knowledge. Imam Ibn al-Mundhir, may Allah have mercy on him, said: they agreed that if the non-Arab repudiates in his language and intends repudiation, it is imposed on him (al-Ijma' p. 400). Imam Ibn Battah, may Allah have mercy on him, said: Bukhari's statement, "the repudiation of every people is in their language", means that the scholars are unanimous: if the non-Arab repudiates in his language and intends repudiation, it is imposed on him, for they are like the rest of mankind before the rulings of Allah (Sharh Sahih al-Bukhari 7/416-417). And Imam al-Kharshi, may Allah have mercy on him, said: whoever is made to repeat the formula of repudiation in a foreign language or in reverse, and utters it without knowing its meaning, nothing is imposed on him, neither in fatwa nor in judicial ruling, for lack of the intent which is a pillar of repudiation; if he understands it, it is imposed on him unanimously (Sharh Mukhtasar Khalil 4/33 ; see al-Taj wa-l-Iklil 3/42, Mawahib al-Jalil 5/265, al-Sharh al-Kabir ma'a Hashiyat al-Dasuqi 3/247, Tahbir al-Mukhtasar 3/138).

Second situation: he does not know its meaning and does not intend its effect according to Arab usage: no repudiation weighs upon him, and this utterance becomes idle speech on his part, as if he had uttered the word of disbelief without knowing its meaning or intending its effect; this is what the Malikis, Shafi'is and Hanbalis declared.

Third situation: he does not know its meaning, but he intends its effect according to Arab usage, that is, he intended to apply this formula whose meaning he does not know: the scholars differed over this. The Shafi'is, according to one of the two opinions (the one recalled by Abu Hamid al-Isfara'ini from the school), and the Hanbalis according to the madhhab, hold that repudiation is not imposed on him until he knows the meaning of the formula, for it produces repudiation; just as he does not become a disbeliever if he utters the word of disbelief intending its effect in Arabic.

In the Musannaf of Waki', it is reported that Omar ibn al-Khattab judged the case of a woman who said to her husband: "Name me"; he named her "the good one", she said: no; he said to her: "What do you want me to name you?" She said: "Name me khaliyya taliq (released and repudiated)"; he said: "You are khaliyya taliq". She went to Omar ibn al-Khattab and said: my husband has repudiated me. Her husband came, the story was told to him; then Omar struck the woman's head and said to the husband: "Take her by the hand and strike her head." Ibn al-Qayyim said: this is the living fiqh that enters hearts without asking permission, and yet he had uttered an explicit repudiation. It was mentioned earlier that the one who, upon recovering his mount, said in the excess of joy: "O Allah, You are my servant and I am your Lord", did not disbelieve despite the explicit utterance of disbelief, because he did not intend it (I'lam al-Muwaqqi'in 3/63).

Imam al-Mawardi chose, and the Hanbalis according to one view, that repudiation takes effect in this situation, for he uttered repudiation intending its effect: it therefore occurs as if he had known it. Al-Mawardi said: in my view, repudiation is imposed on him, for he intended the effect of the formula even though he did not know its meaning; repudiation occurs by the mere formula as soon as the speaker is endowed with volition, even if he has no specific volition in it; for although he does not know its meaning, he was capable of ascertaining it. And if we waived the repudiation from him, we would make equal the one who intends its effect and the one who does not, yet they are not equal. Likewise the Arab who repudiates through an explicit foreign formula without knowing its meaning falls into these three situations. If the non-Arab's wife claims that he knows repudiation in Arabic, the word is the husband's with his oath; likewise the Arab's wife who would claim that he knows repudiation in a foreign language: the word is his with his oath (al-Hawi al-Kabir 10/227, al-Muhadhdhab 2/78, al-Bayan 10/74).

Imam Ibn Qudama, may Allah have mercy on him, said: distinction: if the non-Arab says to his wife "You are repudiated" without understanding its meaning, she is not repudiated, for he did not choose repudiation: his repudiation is like that of the coerced man. If he intends its effect according to Arab usage, it still does not occur, for choosing what one does not know is not valid from him; this is why one who utters the word of disbelief without knowing its meaning does not disbelieve. It is possible that it occurs if he intends its effect, for he uttered repudiation intending its effect, which makes him resemble the Arab. The same ruling applies if the Arab says "bihishtam" without knowing its meaning (al-Mughni 7/303-304, al-Kafi 3/166, al-Muharrar fi al-fiqh 2/54, al-Mubdi' 7/275, al-Insaf 8/475-476, Kashshaf al-Qina' 5/286, Sharh Muntaha al-Iradat 5/389).

As for the Hanafis, Ibn Nujaym, may Allah have mercy on him, said: his indication that this does not depend on intention means that knowledge of the meaning is not required: if someone is made to repeat the formula of repudiation and utters it without knowing its meaning, it occurs judicially (qada') but not in conscience (diyanah). The masters of Uzjand said: it does not occur at all, to protect people's property from loss through deception, as in the Bada'i' (al-Bahr al-Ra'iq 3/277). Ibn Abidin said: if someone is made to repeat the formula and utters it without knowing its meaning, it does not occur at all according to the fatwa of the masters of Uzjand, out of protection against deception; others retain that it occurs judicially only (Hashiyat Ibn Abidin 3/250).

Imam al-Kasani, may Allah have mercy on him, said: as for repudiation in Persian, it is reported from Abu Hanifa, may Allah be pleased with him, his statement concerning one who says to his wife in Persian: "bihishtam in-zan", or "in-zan bihishtam", or simply "bihishtam": this constitutes repudiation only if he intends repudiation by it; for the meaning of this formula in Arabic is "I have released myself from her", and "I have released myself" is among the allusions (kinaya) of repudiation in Arabic: so it is with this formula. Abu Hanifa nevertheless distinguished the two formulas in two respects.

The first: if he intends repudiation by saying "I have released myself", it occurs as irrevocable (ba'in); if he intends repudiation through the Persian formula, it occurs as revocable (raj'i), for that formula may be explicit in their language or constitute an allusion, and irrevocability is not established in doubt. The second: the word "I have released myself", uttered in anger or while discussing repudiation, constitutes repudiation, to the point that it cannot be denied in court that he intended to repudiate; this Persian formula, in those two situations, does not constitute repudiation, to the point that if he says "I did not intend to repudiate by it", he is denied in court: this formula stands in place of release and is therefore weaker than it, so that indication by circumstance (dalalat al-hal) does not operate in it; no other distinction was made between the two, to the point that he said: if he intends irrevocability, it occurs irrevocable, and if he intends three repudiations, three occur, as if he had said "I have released myself" intending irrevocability or the triple; if he intends two, only one occurs, as with "I have released myself", except that here the single repudiation leaves the right of taking back, unlike the formula of release, for what we have explained.

Abu Yusuf said: if he says "bihishtam in-zan" or "in-zan bihishtam", she is repudiated, whether he intended repudiation or not, and it is a revocable repudiation; for Abu Yusuf mingled with the Persians, entered Jurjan and knew that this formula is explicit in their language. He said: if he says only "bihishtam" without adding "in-zan": if he says it at the moment repudiation is asked of him or in anger, it is a single revocable repudiation, and it cannot be denied in court that he intended repudiation; if he says it outside anger and the discussion of repudiation, it is denied in court. For their "bihishtam" means "I have released myself", and "I have released myself" carries no reference either to marriage or to the wife, so that it is applied to repudiation only through intention or through indication by circumstance; but anger and the discussion of repudiation are manifest evidence of the will to repudiate, which one does not accept to set aside in favor of his statement. He said: if he intends irrevocability, it is irrevocable; if three, three; for this formula, although explicit in Persian, means in Arabic release and can therefore carry irrevocability and the triple like the formula of release: it can thus be loaded through intention.

Muhammad said, concerning "bihishtam in-zan" or "in-zan bihishtam": it is an explicit repudiation, as Abu Yusuf said; and concerning "bihishtam" alone: if it is uttered while discussing repudiation, it is the same and it is not denied that he intended repudiation; if it is not uttered while discussing repudiation, it is denied, whether uttered in anger or in contentment; for the meaning of this formula in Arabic is: "you are released", or "I have released you".

Zufar said: if he says "bihishtam" intending irrevocable or revocable repudiation, it is irrevocable; if he intends three, three; if two, two; he gave this formula the role of "I have released myself". If he says "khalaytuki" intending repudiation, it is a single irrevocable repudiation, whether he intended irrevocability or not; if he intends three, three; if two, two according to the original: so it is here. This is what is transmitted from our companions concerning repudiation in Persian.

The basis held by the fatwa of our time for repudiation in Persian is that, if there is in it a formula used only for repudiation, that formula is explicit and repudiation occurs through it without intention as soon as it is referred to the woman, as in saying, according to the usage of our lands: "daha konom", or according to the usage of Khurasan and Iraq: "bihishtam"; for the explicit does not vary with the variation of languages. As for the Persian formulas used for repudiation as well as for other things, they are allusions: their ruling is therefore that of the Arabic allusions in all the rulings, and Allah knows best (Bada'i' al-Sana'i' 3/102).

Question 6: the repudiation of the liar

The jurists differed concerning the husband who acknowledges having repudiated while lying, for example when he is asked: "Have you repudiated your wife?" and answers: "Yes": does his repudiation occur or not? Or does it occur judicially without counting in conscience? The divergence here is between the judicial and the religious effect of the acknowledgment.

The Hanafis and the Shafi'is hold that the one who acknowledges repudiation while lying, it occurs judicially without counting in conscience: his wife therefore remains inwardly his wife, while judicially she is repudiated; for acknowledgment does not stand in place of utterance (insha'): acknowledgment is an information admitting of truth or lie, for which its author is held accountable externally; as for what is between him and Allah, informing of a lie does not make it a truth through that information: this is why his repudiation does not occur inwardly.

Ibn Nujaym, may Allah have mercy on him, said: if he acknowledges repudiation while lying, it occurs judicially. He declared explicitly in al-Bazzaziyya that he may retain her in conscience if he says: "I intended thereby to report a past fact, lying"; if he did not intend to report the past, or if he intended to lie or to joke, the repudiation occurs judicially and in conscience. He excepted in the Quniyya, from the judicial effect, the case where he produced testimony beforehand, for the judge suspects him of intending to lie; if he calls witnesses beforehand, the suspicion disappears; and acknowledgment of manumission is like acknowledgment of repudiation. Al-Bazzazi conditioned it on the wronged one who, during the oath extorted by the oppressor upon the triple repudiation, testifies that he swears falsely: he is believed, both for freedom and for repudiation, and this is sound (al-Bahr al-Ra'iq 3/264).

He said further: in the Quniyya: it was thought that the triple repudiation had occurred upon his wife through the fatwa of someone unqualified to give fatwa; the judge ordered it written in the deed and it was written; then he consulted someone qualified, who issued the fatwa that it does not occur; the repudiations being written in the deed as a presumption, he may return to her between him and Allah, but he is not believed in court. This belongs to the chapter of acknowledging repudiation while lying, and we have stated that it occurs judicially without counting in conscience. In al-Bazzaziyya: he said to her: "You have only one act of repudiation left"; he repudiated her once; he can no longer marry her, and his acknowledgment stands as proof against him. Had he said to her: "One act of repudiation remains for you" while the situation was otherwise, he could have married her; for specifying the number one does not indicate the non-existence of another remaining: the numbered text does not negate the surplus, as in the names of genera. The first matter therefore occurs judicially only; as for conscience, only what he actually uttered occurs there (al-Bahr al-Ra'iq 3/278).

Ibn Abidin said: if he acknowledges repudiation lying or joking, it occurs judicially without counting in conscience (Hashiyat Ibn Abidin 3/236). Ibn Abidin was asked in Tanqih al-Fatawa al-Hamidiyya (1/283) about a man who, asked about his wife, answers: "I have repudiated her and counted it", while he had not repudiated her but had lied in reporting: answer: he is not believed judicially, and he is held regarding what is between him and Allah. In al-Ala'i from Sharh Nazm al-Wahbaniyya: he says "You are repudiated" or "You are free" intending thereby a lying report: repudiation occurs judicially, unless he produces testimony of it. In al-Bahr: acknowledging repudiation while lying occurs judicially without counting in conscience. Shaykh Isma'il and the learned al-Khayr al-Ramli issued the same fatwa.

As for the Shafi'is, the shaykh al-islam Zakariyya al-Ansari, may Allah have mercy on him, said: if he acknowledges repudiation while lying, his wife does not repudiate inwardly: she repudiates only outwardly (Asna al-Matalib 3/276). The Shafi'is add a nuance: if he is asked by way of inquiry: "Have you repudiated your wife?" and answers "yes", or a synonym like ajir, ajal, i (with the hamza with kasra) or bala, this is an explicit acknowledgment, the implied meaning being "yes, I have repudiated her"; if he is lying, she remains his wife inwardly. If he says: "I intended a past repudiation and then revoked it", he is believed with his oath, for what he claims is possible.

If this is said to him as a request, that is, if he is asked to enact the repudiation, as appears when, the two disputing over it, he is told: repudiation is acquired by you, you have done it, and he answers "yes" or the like, it is explicit and produces repudiation immediately, for the "yes" and its equivalent stand in place of "I have repudiated her". It was said that this is an allusion requiring intention, for "yes" is not among the explicit formulas; it was answered that, although it is not explicit in that, it reports what precedes it and implies the information, so that in such a position it means "yes, I have repudiated her"; and through its explicitness in reporting, it takes the questioner's intent, so that it is at times explicit as acknowledgment, at times as utterance, following his aim.

If he says: "Yes, I have repudiated", it is explicit without ambiguity; if he limits himself to "I have repudiated", it was said that this is an allusion, for "yes" is necessary to the answer, while "I have repudiated" stands alone: it is as if he had said from the outset "I have repudiated" and stopped there, and had he said it from the outset, nothing would have occurred against him. It was also said that it is like the "yes". If he is unaware of the situation of the question, the apparent is that it is an inquiry, for utterance is not what is asked about.

Qadi al-Shirbini said: if a person says to another: "You did such a thing" and he denies it, then one says to him: "If you did such a thing, your wife is repudiated", and he answers "yes" while he had done it, the repudiation does not occur, as in the qadi's fatwas; al-Baghawi made it a solicitation of repudiation, so that it is as if he were told: "Have you repudiated your wife?" seeking her repudiation from him, and he answered "yes"; the first opinion is the most plausible. If one says to him: "If Zayd comes, your wife is repudiated", and he answers "yes", this does not constitute a condition. If one says to him: "Do you have a wife?" and he answers "no", she does not repudiate even if he intends it, for it is pure lie; and this is reported in the original of the Rawda from the text of the Imla', and many companions (of the school) ruled on it.

He then explained with discernment that it is an allusion according to the soundest opinion, which the author (of the commentary) declared in his correction; its oath is that he did not intend her repudiation; al-Asfahani and al-Hijazi, in their abridgments of the Rawda, followed this path, and it is the most plausible, as did Ibn al-Muqri in his Rawda. If one says to him: "Have you repudiated three times?" and he answers: "Part of that took place", it is not an acknowledgment of repudiation, for it can mean a condition, a promise or a quarrel that is interpreted to it: if he explains it by something of that, it is accepted. If he says to his wife: "You are nothing to me", it is idle speech that produces no repudiation, even if he intends it. If he says: "My wife has been repudiated by her husband" and she has not married another, she is repudiated (Mughni al-Muhtaj 4/530-531 ; see al-Najm al-Wahhaj 7/585-586, Tuhfat al-Muhtaj 9/570-572).

The position of the Malikis resembles that of the Hanafis and the Shafi'is. Shaykh Muhammad Aliysh, may Allah have mercy on him, said: if he acknowledges what is sworn against him and then retracts, he is believed in matters of fatwa; among this is his retraction of the acknowledgment of repudiation or of the oath (Fath al-Ali al-Malik 2/54). Imam al-Kharshi, may Allah have mercy on him, said: if he acknowledges a deed and then swears "I did not do it", he is believed with an oath; that is, if he acknowledged before his wife, for instance, that he had married or had committed adultery with her, and she disputed it with him, then swore to repudiate her three times that he did not do it and "I was lying in my statement", he is believed judicially, with an oath by Allah, that he lied in his acknowledgment, and nothing weighs upon him; for his speech first warranted the suspicion; if he was asking for a fatwa, he does not swear; and if he evades the oath, he is compelled to it, as some commentators held (Sharh Mukhtasar Khalil 4/64).

The Hanbalis hold that the one who lies concerning repudiation, being asked of the husband: "Have you repudiated your wife?" or being told: "Your wife is repudiated", and answering "yes" intending the lie, his wife is repudiated even if he did not intend repudiation; for the "yes" is explicit in the answer, and the explicit answer through the explicit formula is explicit. Do you not see that if he is told: "Does so-and-so have authority over you?" and he answers "yes", this is an acknowledgment? If he is told: "Do you have a wife?" and answers: "I have repudiated her" intending the lie, she is repudiated, for it is explicit and requires no intention. If he is told: "Do you have a wife?" and answers "no" intending the lie, she is not repudiated, for it is an allusion; the one who intends the lie did not intend repudiation, even if he swore by Allah of it, that is, that he has no wife, without intending repudiation thereby; otherwise, if he did not intend the lie but intended repudiation, his wife is repudiated like the other allusions.

If he is told: "Have you repudiated your wife?" and answers: "Part of that took place": if he thereby intended the enactment, it occurs like the allusion; if he says: "I intended a repudiation under condition and the condition was not fulfilled", that is accepted from him, for his formula bears it. If the husband is asked: "Have you released her?" or a similar allusion, and he answers "yes", it is an allusion that does not produce repudiation by that until he intends it; for the question is embedded in the answer, which is an allusion. Likewise: "I have no wife", "she is not my wife", "I have no wife at all": this is an allusion that produces nothing without intention; if he means "I have no wife who serves me" or "there is no wife who pleases me", or if he intends nothing, his repudiation does not occur.

Whoever is covered by a proof, that is, a testimony established against him, of his acknowledgment that a triple repudiation occurred upon him, that is, he acknowledged that the triple repudiation had occurred upon him, while a previous oath of his had given rise to the assumption that it was nothing, then asked about his oath and given the fatwa that nothing weighs upon him: he is not held by his acknowledgment of the triple repudiation, because he knows the basis of his acknowledgment; and his statement is accepted with his oath that such is his basis, if he is among those ignorant of the like: Shaykh Taqi al-Din mentioned it with his oath.

If he is told: "Have you not repudiated your wife?" and answers "bala" (yes, on the contrary), she is repudiated, for it is the answer to negation; if he answers "yes", the wife of the one who is not a grammarian is repudiated, for he does not distinguish between the two in the answer, unlike the grammarian, whose wife does not repudiate, for "yes" is not the answer to negation (al-Furu' 5/302, al-Insaf 8/426, Kashshaf al-Qina' 5/283-284, Sharh Muntaha al-Iradat 5/384-385, al-Muharrar fi al-fiqh 2/55, Manar al-Sabil 3/95).

Shaykh al-islam Ibn Taymiyya went so far as to say that the liar's repudiation never occurs. He said: whoever swears repudiation while lying and knowing his lie, his wife does not repudiate, and the expiation of the oath is not imposed on him (al-Fatawa al-Kubra 4/567).

Question 7: the repudiation of the one whose tongue slipped

The repudiation of the mistaken man is that of the one who did not at all intend to utter repudiation, but aimed at another formula and whose tongue slipped into repudiation without intention, like the one who wants to say to his wife: "O you who ask", and finds himself saying by mistake: "O you repudiated". The mistaken man differs from the jester: the jester aims at the formula without aiming at separation through it, while the mistaken man did not aim at the formula, his tongue preceding him.

The jurists differed over his ruling: the one who wanted to pronounce other than the formula of repudiation and whose tongue slipped and pronounced it, does his repudiation occur or not? The majority of jurists, Malikis, Shafi'is and Hanbalis, hold that it does not occur, according to the word of the Prophet, may the peace and blessings of Allah be upon him, who made the three situations equal in pardon.

"Allah has pardoned my ummah for error, forgetfulness and what they are coerced into."authentic hadith, reported by Ibn Majah 2043

The Malikis said: the one who wanted to speak of other than repudiation and whose tongue slipped into it is excused thereby, and nothing weighs upon him if the slipping of the tongue is established, neither in fatwa nor in judicial ruling, for lack of intention to pronounce the formula signifying the lifting of the impediment, which is a pillar of repudiation. If the slip is not established, nothing weighs upon him in fatwa, but he is held in the judicial ruling.

Al-Mawwaq, may Allah have mercy on him, said, cited from the Mudawwana: if he wanted to pronounce the letters of repudiation and pronounced others by mistake, as in saying "You are free" or "Eat", nothing weighs upon him, unless he intended that she is repudiated by what he utters: repudiation is then imposed on him. The slipping of the tongue is idle speech if established, otherwise it has effect only in matters of fatwa (al-Taj wa-l-Iklil 3/42 ; see Mawahib al-Jalil 5/265, Sharh Mukhtasar Khalil 4/32-33, al-Sharh al-Kabir ma'a Hashiyat al-Dasuqi 3/247, Tahbir al-Mukhtasar 3/138, Hashiyat al-Sawi ala al-Sharh al-Saghir 5/297).

The Shafi'is said: the one whose tongue slipped into the formula of repudiation in conversation, while he wanted to pronounce another word, and likewise if he uttered repudiation reporting the speech of another, as well as the jurist who repeats the formula in his exposition and teaching: his repudiation does not occur; but the claim of the tongue's slip is not accepted outwardly unless a convergent indication supports it. If he says "I have repudiated you" and then claims: "My tongue slipped, I meant: I asked you", al-Shafi'i declared that his wife cannot accept this claim from him. Al-Ruyani reported from the author of the Hawi and others that this applies when the husband is suspect; if she believes his sincerity on the basis of an indication, she may accept his word and not dispute with him; and the one who heard him may, if he knows the situation, accept his word and not testify against him. Al-Ruyani said: and this is the choice (of the school).

If his wife is named Taliqa and his slave Harr, and he says to her: "O Taliqa", or to the slave: "O Harr": if he intended the call, there is neither repudiation nor manumission; if he intended repudiation and manumission, both occur. Al-Nawawi said: if he repudiated intending nothing, to which of the two is it interpreted? Two opinions, the sounder being the call, and on it al-Baghawi ruled. If the letters of his wife's name are close to the letters of "taliq", like Tal'a, Talib or Tariq, and he says: "O Taliqa", then claims: "I meant O Tariq or O Tal'a, and my tongue rolled the letter", his word is accepted outwardly, because of the clarity of the indication. Among the forms of the tongue's slip: when she has become pure from menses or he assumed her purity and he wanted to say: "You are now pure", his tongue slipped and he said: "You are now repudiated" (Rawdat al-Talibin 5/353-354 ; see al-Najm al-Wahhaj 7/499-500, Kanz al-Raghibin 3/815-816, Mughni al-Muhtaj 4/468, Tuhfat al-Muhtaj 9/367-368, Nihayat al-Muhtaj 6/510-511, al-Dibaj 3/413-414).

Shaykh al-islam Zakariyya al-Ansari, may Allah have mercy on him, said: likewise the tongue's slip into the formula of repudiation is idle speech, for he did not intend the formula; but he is held by it in fatwa, and his claim of the slip is not admitted outwardly without an indication, for the right of another is attached to it, unlike the case with an indication, as when he calls her after her purification to his bed intending to say: "You are now pure", but his tongue slipped into: "You are now repudiated". If she believes his sincerity in his claim of the slip on the basis of an indication, she may confirm it, that is, accept his word; and likewise the witnesses who heard the repudiation from him and knew the sincerity of his claim through an indication may refrain from testifying against him of the repudiation: this is what the original text mentioned here. The original text also mentioned, at the end of the chapter of repudiation, that whoever hears a man's formula about repudiation and ascertains that his tongue slipped cannot testify against him of repudiation in any way; and what is here concerns assumption, while there it concerns ascertainment, as their statement suggests; yet this case is examined: if her name is Taliqa, Tariqa or Talib, or a name close to the letters of "taliq", and he calls her: "O Taliqa", she is repudiated; but if he alleges the tongue's slip from those formulas, it is accepted from him outwardly, because of the clarity of the indication. If her name is Taliqa and he calls her by that name, she does not repudiate, even if he did not intend to call her by her name, unless he intended repudiation: then she repudiates. The form of non-repudiation upon the utterance is that the naming by "taliqa" be customary at the call; if it lapses, the indication weakens, by analogy with what they said in the similar case of calling his slave named Harbi "free", which al-Isnawi and others noted. Al-Zarkashi said: al-Nawawi specified in the Minhaj "O taliq" with the qaf in sukun, as if indicating that if he says "O Taliqa" with the damma, repudiation does not occur, for the construction with the damma indicates the will of the proper name; and if he says "O taliqa" in the accusative, it is necessarily directed to repudiation. Yet this statement is examined, for a grammatical fault does not affect the occurrence of repudiation or its absence (Asna al-Matalib 3/280-281).

The Hanbalis said: if he says: "I meant: I asked you, my tongue slipped and I said: I repudiated you", and the like; or if he meant "you are freed" and his tongue slipped into "you are repudiated"; or if he alleges that he meant to say "pure" and his tongue slipped into "repudiated"; or if he alleges that by his word "you are repudiated" he meant a repudiation from a previous husband: nothing weighs upon him in conscience, for he knows his intention better; but it is not accepted from him in the judicial ruling, for it is contrary to what apparent custom requires, so far-fetched is the willing of that. Likewise if he says to her: "You are repudiated" and claims: "I meant: if you stand", abandoning the condition without intending repudiation; or if he says: "You are repudiated if you stand", then claims: "I meant to sit, I left the condition and did not intend repudiation": he is held and it is not accepted judicially (I'lam al-Muwaqqi'in 4/41, al-Mubdi' 7/270, al-Insaf 8/465-466, Kashshaf al-Qina' 5/283, Sharh Muntaha al-Iradat 5/383).

Imam Ibn Qudama, may Allah have mercy on him, said: or he says: "I meant: I asked you, my tongue slipped and I said: I repudiated you", or the like: he is held regarding what is between him and Allah; as soon as he knows it of himself, nothing occurs against him before his Lord. Abu Bakr said: no disagreement, according to Abu Abdillah (Ahmad), that if one wants to say to his wife: "Give me water to drink", and the tongue slips into "You are repudiated" or "You are free", there is no repudiation in it. Ibn Mansur reported from him that he was asked about a man who swore and whose tongue made run other than what was in his heart: I hope the matter is broad; is his claim accepted in the judicial ruling? It is examined: if he was in anger or she was asking him for repudiation, his claim is not accepted judicially, for his formula is manifest for repudiation and the indication of his state confirms it, so that his claim contradicts the apparent from two sides and is not accepted. If he was not in these situations, the apparent of Ahmad's speech in the narration of Ibn Mansur and Abu al-Harith is that his word is accepted, and this is the view of Jabir ibn Zayd, al-Sha'bi and al-Hakam, which Abu Hafs reported from them, for he explained his speech by an interpretation not far-fetched: as if he had said "You are repudiated, you are repudiated" claiming: "By the second, I meant to make her understand".

The qadi said: there are two narrations on this: the one we have mentioned, which is the apparent of Ahmad's speech; and the second: that it is not accepted, and this is the madhhab of al-Shafi'i, for it is contrary to what apparent custom requires: it is therefore not accepted judicially, as if he acknowledged ten (lashes) and then said: "guests, minors, or for a month". As for if he declared it explicitly in the formula, saying: "I have repudiated you from my bond", or "I have parted from you with my body", or "I have sent you away from my hand", there is no doubt that repudiation does not occur, for what is attached to the speech diverts it from its requirement, like the exception and the condition. Abu Bakr mentioned, concerning his word "you are freed", that if he meant that she is repudiated by a past repudiation or from a previous husband, nothing weighs upon him; if he intended nothing, two opinions: one, that repudiation occurs; the other, that it does not, which implies that the formula is not explicit according to one of the two views. The qadi said: what is textual from Ahmad is that it is explicit, and this is the sound view, for this formula is derived from the formula of repudiation and is therefore explicit in it, like his word "you are repudiated" (al-Mughni 7/295).

The Hanafis hold that the repudiation of the mistaken man occurs. Imam al-Sughdi, may Allah have mercy on him, said: the repudiation of the careless and the mistaken is not a repudiation according to al-Sha'bi, Waki' and Abu Abdillah (Ahmad), that is, when a man speaks and utters that his wife is repudiated: it is not a repudiation. But according to Abu Hanifa and his companions, it is a repudiation (Fatawa al-Sughdi 1/349). What is sound with them is that it occurs judicially without counting in conscience. Imam al-Kasani, may Allah have mercy on him, said: likewise being voluntary is not a condition, to the point that the repudiation of the mistaken man occurs, he who wanted to speak of other than repudiation and whose tongue slipped into repudiation; for what is missing through error is only the intention, and it is not a condition of occurrence, as with the jester and the player, and likewise for manumissions, according to what we said of repudiation. Al-Karkhi mentioned that there are two narrations concerning manumission: Hisham reported from Muhammad from Abu Hanifa that the one who wants to say to his wife: "Give me water to drink", and says to her: "You are repudiated", the repudiation occurs; and if he intended that for the slave and said: "You are free", it does not occur. Bishr ibn al-Walid al-Kindi reported from Abu Yusuf and Abu Hanifa that they are equal, and this is the sound view according to what we said (Bada'i' al-Sana'i' 3/100).

Imam Ibn Nujaym, may Allah have mercy on him, said: it follows that the repudiation of the jester, the player and the mistaken man occurs, as we have stated, but judicially; as for what is between him and Allah, it does not occur against the mistaken man. What is in the Khulasa, that the repudiation of the mistaken man occurs, means judicially: the proof is that he says afterwards: and if it were manumission, he is held; for there is no difference between manumission and repudiation, and this is the apparent of the Imam's speech, as in the Khaniyya, contrary to Abu Yusuf. There is no disagreement that the involuntary is imposed on him, nor that if the word of disbelief ran on his tongue by mistake, he does not disbelieve, as in the Khaniyya likewise; and likewise if he utters it without knowing its meaning: it occurs judicially only. The proof is what is in the Khulasa: she says to her husband: "Recite upon me: I count you repudiated three times", and he did it: she is repudiated three times judicially, not in conscience, if the husband did not know nor intend; unlike the jester, against whom repudiation occurs judicially and in conscience, for he defies with the formula and therefore deserves severity.

What is in the Khulasa, citing the Asl: he has two wives, Zaynab and Amra; he says: "O Zaynab", and Amra answers him; he says: "You are repudiated three times": the one who answered is repudiated. If he says: "I aimed at Zaynab", this one is repudiated by the indication and that one by the acknowledgment: this is carried to the judicial ruling; as for conscience, repudiation occurs against neither of them. What is in the Hawi, citing the Jami' al-Saghir: Asad was asked about the one who wanted to say "Zaynab is repudiated" and whose tongue ran "Amra": upon which of the two does repudiation occur? He said: judicially, the one he named is repudiated; and in conscience, neither of them repudiates: the one he named, because he did not intend her; the other, because if she repudiated, she repudiated by mere intention. It is said in the Fath al-Qadir: as for what Nusayr reported from them, that the one who wanted to speak and whose tongue ran the repudiation, it occurs in conscience and judicially, one does not rely on it.

In sum: their statement "the explicit does not require intention" holds only judicially; as for conscience, it requires one; but its occurrence judicially without intention holds only on condition that he intends it while addressing her. The proof is their statement: if he repeats the matters of repudiation before his wife saying "You are repudiated" without intending it, she does not repudiate. Likewise the student who copies, transmitting from a man's book, who says and then stops and writes: "My wife is repudiated", each time joining the writing to the utterance with the intention of narration: nothing weighs upon him. What is in the Quniyya: a woman wrote: "You are repudiated", then said to her husband: "Recite it upon me", and he recited: she does not repudiate.

As for what is in the Fath al-Qadir: one must address the interlocutor with the formula of repudiation knowing its meaning, or the reference to the absent one as the branches indicate: this is not sound. For if it were a condition of occurrence judicially and in conscience, it would not be sound, since he declared the occurrence judicially for the one whose tongue slipped; and if it were a condition of occurrence in conscience only, the same applies, for it would imply occurrence judicially in the case of repetition before her and of the student, and it is not so. The sound view is what we limited (al-Bahr al-Ra'iq 3/277-278, al-Ashbah wa-l-Naza'ir p. 24, al-Nahr al-Fa'iq 2/325 ; see Sharh Fath al-Qadir 4/4).

Imam Ibn Abidin, may Allah have mercy on him, said: if his tongue slips from "You are menstruating" to "You are repudiated", repudiation occurs judicially only (Hashiyat Ibn Abidin 3/250). Imam al-Tahawi, may Allah have mercy on him, said: the one whose tongue slipped into repudiation, our companions said: it occurs judicially regarding what is between him and Allah; likewise manumission; and Bishr ibn al-Walid reported from Abu Yusuf and Abu Hanifa the like. He said concerning the one who says to his wife "Taliq" meaning "if you enter the house", then a distraction came over him and he fell silent: repudiation occurs judicially and in conscience according to Abu Hanifa and Abu Yusuf; and if he swore a pilgrimage or something else, or an offering, a walking, a vow or other than repudiation and manumission, then was distracted before completing his speech and his oath, nothing is imposed on him; and if he wanted to speak of other than repudiation and his tongue preceded him saying: "You are repudiated", she repudiates judicially and in conscience (Mukhtasar Ikhtilaf al-Ulama 2/430).

The hafiz Ibn Hajar, may Allah have mercy on him, said: likewise they differed over the repudiation of the mistaken man: the majority hold that it does not occur; and according to the Hanafis, the one who wanted to say something to his wife and whose tongue slipped into "You are repudiated": repudiation is imposed on him. Bukhari alluded by his words "error and forgetfulness" to the hadith of Ibn Abbas raised to the Prophet: "Allah has pardoned my ummah for error, forgetfulness and what they are coerced into"; he made the three equal in pardon. Whoever limits the pardon to the lifting of sin only, without the occurrence in coercion, must say likewise for forgetfulness; and the hadith was reported by Ibn Majah and authenticated by Ibn Hibban (Fath al-Bari 9/390).

Question 8: the drunkard's repudiation, first case: intoxication through a permissible cause

The drunkard necessarily falls into two states. The first is intoxication through a lawful cause: being forced to drink wine, medicine, an innocent drink. The majority of scholars hold that repudiation then has no effect, since reason disappeared without disobedience on his part; the Hanafis introduce the nuance of pleasure obtained.

The drunkard is necessarily in one of two states.

First state: that he becomes drunk through a permitted cause. The majority of the people of knowledge hold that when a man's reason disappears through a lawful intoxication, like the one forced to drink wine until drunk, or who drank a medicine that removes reason, or who drank milk or something being certain or assuming that it would not affect his reason, while his reason vanished through that use: his repudiation does not occur, according to the word of the Prophet, may the peace and blessings of Allah be upon him. And because repudiation is a speech that lifts ownership, reason is therefore taken into account in it as in sale; and because he has the status of the one overcome in his reason: no repudiation weighs upon him, sin being lifted from him (Sharh Mukhtasar Khalil 4/32, Hashiyat al-Dasuqi 3/246, al-Hawi al-Kabir 10/235, al-Mughni 7/228, Matalib Uli al-Nuha 5/321-322).

"Every repudiation is valid, except that of the idiot overcome in his reason."weak hadith, reported by at-Tirmidhi 1191, who said: we do not know it as raised to the Prophet except through the hadith of Ata ibn Ajlan, and Ata ibn Ajlan is weak

Al-Ruhaybani, may Allah have mercy on him, said: the Muslims agreed that the one whose reason disappears without forbidden intoxication, like sleep, fainting, madness, drinking a medicine that removes reason, or illness: his repudiation does not occur (Matalib Uli al-Nuha 5/321-322). And Ibn Qudama, may Allah have mercy on him, said: whether his reason disappeared through madness, fainting, sleep, drinking a medicine, being coerced to drink wine, or he drank what removes his reason without knowing it to be so: all of that prevents the occurrence of repudiation according to a single narration, and we know of no disagreement on it (al-Mughni 7/288).

As for the Hanafis, al-Kasani, may Allah have mercy on him, said: even if his drunkenness comes from a lawful cause, but he derived pleasure from it by drinking wine under coercion until drunk, or by drinking it under the constraint of thirst: they said that his repudiation also occurs; for although his reason disappeared, it disappeared with pleasure, so that he is held valid, and coercion and necessity are attached to non-existence, as if he had drunk voluntarily until drunk.

Muhammad, may Allah have mercy on him, mentioned the one who drank nabidh without his reason disappearing, but whose headache made him lose his reason: his repudiation does not occur, for his reason did not disappear through disobedience nor through pleasure, so that it disappeared in reality and by estimation; and likewise if he drank banj (henbane) or an intoxicating medicine and his reason disappeared: his repudiation does not occur, according to what we said (Bada'i' al-Sana'i' 3/100).

It is said in al-Durr al-Mukhtar: or opium or banj: the fatwa is issued that repudiation occurs, repelled (zajran), 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: his word "or opium or banj": 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, repudiation 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 detail 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. His word "the correction is debated": 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": for 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, al-Jawhara al-Nira 4/398).

Question 8 (continued): second case, intoxication through a forbidden cause

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).

Second case: drinking banj, a medicine, hashish or opium without need

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).

Question 11: the repudiation of the one beset by insinuations (al-muwaswis)

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

Question 12: the repudiation of the dazed man (al-madhush)

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).

Question 13: the repudiation of the coerced man

The people of science differed concerning the one coerced to repudiate his wife and who repudiates her: does his repudiation occur or not? The Hanafis make it occur relying on the generality of the texts; the majority of the schools judge it without effect relying on the verse of coercion; Ibn al-Qayyim then details the place of intention and of equivocation (tawriya).

The Hanafis hold that the one coerced to repudiate his wife, his repudiation occurs and the coercion is not taken into account, by virtue of the generality of the word of Allah the Most High:

"If he divorces her irrevocably, she shall not be lawful to him after that until she marries a husband other than him."

Surah al-Baqara, 230

without distinction between the repudiation of the coerced man and that of the willing one; and His word:

"Repudiation is twice."

Surah al-Baqara, 229

which establishes the taking back after the two repudiations without detail; and the word of the Prophet: "Every repudiation is valid, except that of the idiot": the repudiation of the coerced man therefore enters the generality of validity. And because what is missing through coercion is only natural consent, which is not a condition of occurrence: the jester's repudiation occurs although he does not naturally consent to it; and likewise a man may repudiate his wife of exquisite beauty and grace, charming through her curls and coquetry, for a defect in her religion, although he does not naturally consent to it, and repudiation occurs against her.

And according to what Imam Muslim reported in his Sahih from Hudhayfa ibn al-Yaman, may Allah be pleased with him, who said: "Nothing prevented me from attending Badr except that I went out with my father Husayl. The disbelievers of Quraysh seized us and said: you want Muhammad. We answered: we do not want him, we only want Medina. They took from us the covenant of Allah and His pledge that we would return to Medina and not fight with him. We came to the messenger of Allah and told him the news, and he said: Return; I absolve them by their pledge, and we seek the help of Allah against them" (reported by Muslim 1787). When the messenger of Allah thus prevented them from attending Badr because of the oath extorted by the polytheists who overpowered them, regarding what they had made them swear, it was thereby established that the oath under willingness and coercion is equal; and likewise repudiation and manumission; for the Prophet established the polytheists' oath over them under the aspect of coercion and ranked it with the oath of the willing one: once it is thus established for the oath, repudiation, manumission and marriage are like it, for no one made a distinction between them.

As for his word in the hadith of Ibn Abbas, may Allah be pleased with them both: "Allah has waived for my ummah error, forgetfulness and what they are coerced into"; authentic hadith, reported by Ibn Majah 2045: it concerns association specifically, for those people were fresh in disbelief, in a dwelling that was a dwelling of disbelief; the polytheists, when they overpowered them, coerced them into acknowledging disbelief, and they acknowledged it with their tongues; they did so to Ammar ibn Yasir and other companions of the Prophet whom Allah was pleased with; then descended concerning them the word: "except the one who is coerced while his heart remains serene in faith". And it happens that they forget and utter what was their habit before Islam, and it happens that they err and utter that too; Allah therefore pardoned them for it, for they were neither choosing nor intending. This is the best of what is done with the traditions: when one stands over the meaning of some of them, one carries the rest upon what does not contradict that meaning, as far as possible, so that there be no contradiction. It was therefore established by what we said that the hadith of Ibn Abbas bears upon association, and the hadith of Hudhayfa upon repudiation, oaths and the like.

And according to what Safwan ibn Imran al-Ta'i reported: a man slept beside his wife; she rose, took a knife, sat upon his chest, placed the knife on his throat and said: "You will repudiate me three times absolutely, or I slaughter you"; he appealed to Allah, but she refused; he repudiated her three times. It was mentioned to the messenger of Allah and he said: "There is no nap in repudiation", that is, there is no taking back in it: proof of its occurrence despite coercion; weak and mursal hadith, reported by Sa'id ibn Mansur in his Sunan in mursal form 1130.

And because the Prophet said: "Three things: their seriousness is serious and their jest is serious: marriage, repudiation and taking back"; he made the serious and the jest equal; and the difference between the serious and the jester is that the serious one aims at the formula and at the production of its ruling, while the jester aims at the formula without wanting the production of its ruling: we therefore know that volition has no share in negating repudiation, and that both, through aiming at the word, have their ruling established upon them. Likewise the coerced man aims at the word without wanting the production of the ruling: he is therefore like the jester in equality. If it is said: the jester aimed at the formula without aiming at the occurrence, while the coerced man did not aim at the formula: he is therefore like the sleeper; we answer: the coerced man aims at the formula to repel from himself the greater of two harms by the lesser. Do you not see that were he asked: "Why did you repudiate?", he would say: "I chose repudiation over the loss of my life"; and this is a meaning negating consent to the disappearance of ownership, so that the occurrence of repudiation is not prevented by the soundness of the word, like the condition of option (khiyar). And because it is a meaning coming from outside that removes choice, it did not prevent the occurrence, like anger. And because if he designates the one over whom he was coerced, she is repudiated; and every man whose repudiation occurs against one of his wives, it occurs against all the others, like the non-coerced. And because he directed repudiation toward his wife while he is capable of repudiating: it must therefore occur from him like that of the jester.

And because the coerced man is subject to obligation, the proof being that it is not permitted to him to kill nor to fornicate even if coerced into it; and it is permitted to him to utter the word of disbelief, and it is obligatory upon him to drink wine and eat carrion: once he has been addressed through the forbidden, the permitted and the obligatory, that indicates that he is subject to obligation. And because we found that error is what the man wanted otherwise and did without intention or volition of it; and forgetfulness is what he intended and did with intention, while heedless of the meaning that prevents him from that act; and when the man forgot that this woman was his wife, intended her and repudiated her, all agreed that his repudiation is effective, without invalidating it for his forgetfulness; and such forgetfulness does not enter the pardoned forgetfulness. Since therefore the pardoned forgetfulness does not comprise what we mentioned of repudiation, oaths and manumission, the pardoned coercion is likewise without it.

As for the ruling of this through the path of reasoning: the act of the coerced man falls into one of two cases. Either the coerced man, when he does that act under coercion, has the status of the one who did not do it: nothing is then obligatory upon him. Or he has the status of the one who did it: then what would be obligatory had he done it without coercion is obligatory upon him. We saw that they do not differ concerning the woman whom her husband coerces, while she fasts the month of Ramadan or is on pilgrimage, and he has relations with her: her pilgrimage is invalid, and likewise her fast; they did not take coercion into account to distinguish it from willingness, and the woman was not placed in the status of the one who did nothing, but in the status of the one who did an act upon which the ruling applies, the sin being lifted from her in particular. Likewise, if a man coerces a man into relations with a woman herself coerced: the dowry, in reasoning, weighs upon the one who consummated, not upon the coerced man; and the consummator does not turn back upon the coerced man through that, for the coerced man did not consummate so that a dowry would be obligatory upon him. Once it is thus established in these things that the coerced man is judged according to the status of the agent, as in willingness, they impose upon him in matters of property what would be obligatory upon the willing agent: it is established that it is likewise for the repudiator, the emancipator and the one who takes back under coercion: he is judged according to the status of the agent, and all his acts are imposed on him.

If it is said: why were his sale and his hire not permitted? It is answered: sales and hires may be annulled by defects, the option of inspection and the option of condition; and marriage is not thus, nor repudiation, nor taking back, nor manumission. What can be rescinded by option because of the conditions and original causes it contains, like non-inspection and return for defects, is rescinded by coercion; and what cannot be rescinded by any cause after its establishment is not rescinded by coercion nor otherwise: and this is the view of Abu Hanifa, Abu Yusuf and Muhammad, may Allah have mercy on them. The Sunna came with the like of this: it is the word of the Prophet: "Three things: their seriousness is serious and their jest is serious: marriage, repudiation and taking back"; when the messenger of Allah said that, he prevented marriage from nullity after its occurrence, and likewise repudiation and taking back; and sales were carried to the contrary: whoever sold in play, his sale is void, and likewise whoever hired in play, his hire is void; that was only because sales and hires belong to what can be rescinded by the mentioned causes: they were therefore rescinded by jest as by them; and the other things, namely repudiation, manumission and taking back, are not void by anything of that: they were therefore set as not annulled by jest. Likewise in reasoning: what can be rescinded by the mentioned causes is rescinded by coercion, and what cannot be rescinded by those causes is not rescinded by coercion (Sharh Ma'ani al-Athar 3/95-99, Ahkam al-Qur'an 5/14-17, al-Tajrid of al-Quduri 10/4913-4930, Bada'i' al-Sana'i' 3/100 and 7/182, Sharh Mukhtasar al-Tahawi 5/5-15, Mukhtasar Ikhtilaf al-Ulama 2/429-430, al-Mabsut 24/40-41, al-Ikhtiyar 3/155).

The majority of jurists, Malikis, Shafi'is and Hanbalis, hold that the repudiation of the coerced man does not occur: the one coerced to repudiate his wife by a sultan or otherwise, and who repudiates her, is not imposed what he enacted, and she remains his wife. They argued for it by the word of Allah:

"Except the one who is coerced while his heart remains serene in faith."

Surah an-Nahl, 106

He negated disbelief through the tongue when the heart is serene in faith; likewise repudiation: if he does not want it with his heart, did not have it in view and did not intend it, it is not imposed on him. And because disbelief has rulings: when Allah waived them from him, the rulings of coercion fell away from all speech; for when the greatest falls away from people, what is lesser falls away. And it is reported from Ibn Abbas, Abu Hurayra and Abu Dharr al-Ghifari, may Allah be pleased with them, that the Prophet said: "Allah has waived for my ummah error, forgetfulness and what they are coerced into"; and in a narration: "has pardoned"; authentic hadith, reported by Ibn Majah 2043 and 2045: it therefore follows that the repudiation of the coerced man is waived. If it is said: coercion was not waived, since it can exist; it is answered: what is meant is the ruling of coercion, not its existence, just as what is meant is the ruling of error, not its existence. If it is said: the hadith is carried to the waiving of sin; it is answered: carrying it to the waiving of the ruling is more worthy, for it is more general: what waived the ruling waived the sin.

Aisha, may Allah be pleased with her, reported that the Prophet said:

"There is no repudiation and no manumission under incapacitation (ighlaq)."good hadith, reported by Abu Dawud 2193, Ibn Majah 2046 and Ahmad 26403

Abu Ubayd said: ighlaq is like coercion, that is, his choice is locked like the one upon whom it was locked. Abu Bakr said: I asked Ibn Durayd and Abu Tahir, the two grammarians, and they said: he means coercion, for when one is coerced, his view locks upon him. If it is said: what is meant is madness, for it suspends volition; there are two answers: the first, that the masters of the language are more precise in its meanings than others: carrying it upon what they established is more worthy; the second, that it is carried upon both things: it is therefore more general.

And because it is the consensus of the Companions: five of them said it, without any opponent appearing. Among them Omar: Ibn al-Mundhir and others reported that in the time of Omar ibn al-Khattab, may Allah be pleased with him, a man descended upon a rope to gather honey; his wife came and sat upon the rope, swearing to cut the rope or that he repudiate her three times; he reminded her of Allah and Islam, but she swore to do it or that he do it; he repudiated her three times; when he descended, he came to Omar ibn al-Khattab and told him what had come from his wife to him and from him to her; he said: "Return to your family: this is not a repudiation"; weak hadith, reported by Sa'id ibn Mansur in his Sunan 1128 and by al-Bayhaqi in as-Sunan al-Kubra 14876. Ibn al-Malqin said concerning his word "gathering honey": it is with the shin and the plain ra; one says shiru al-asal ashuru, on the pattern of qultu aqulu; and ishtarta on the pattern of ikhtartu, when one draws it from the bees' place in the mountains or elsewhere; and asharu is a dialectal variant: al-Jawhari mentioned it (al-Badr al-Munir 8/119).

Among them Ali ibn Abi Talib, may Allah be pleased with him: "he did not consider the repudiation of the coerced man as anything". Among them Abdallah ibn Abbas, may Allah be pleased with them both, who said: "The coerced man and the persecuted one have no repudiation". Among them Abdallah ibn Omar and Abdallah ibn al-Zubayr, who viewed likewise. And by analogy: it is a formula imposed upon him without right: no ruling should therefore be established through it, like coercion to the acknowledgment of repudiation.

As for coercion to the act of Islam, it is valid and established only for the one who was a warrior, called to Islam by the sword; for coercing him to it is obligatory and the Law came with it; but the coercion of the dhimmi who pays the jizya is not valid, for the Law approved it over him: his coercion is therefore an injustice and does not occur. And because coercion is a meaning that removes the status of the acknowledgment of repudiation, it must remove the status of the production of repudiation, like madness, sleep and childhood. And because it is a formula to which is attached the distinction between the two spouses: it must not be valid if a right is imposed upon it without reason; its origin is coercion to the word of disbelief. And because it is a word upon one of the two sides of marriage: it must not be valid with coercion, like marriage. And because every carnal relation of which one is not owner through the coerced man's formula is not forbidden by the coerced man's word, like indication in sale and purchase.

As for his word "three things: their seriousness is serious and their jest is serious": we say by virtue of it that the serious and the jest are equal in the occurrence of repudiation, and the coerced man is neither serious nor jesting: he has left it like the madman. For the serious one aims at the formula wanting separation, the jester aims at the formula not wanting separation, and the coerced man aims neither at the formula nor at separation. The difference between the jester's repudiation and that of the coerced man is that the jester aims at the formula and prefers it: its ruling is therefore imposed on him; while the coerced man, although he aimed at the formula, did not prefer it nor choose it: the ruling is therefore not attached to it. And because we found that repudiation is imposed only through a formula and an intention, and the coerced man has no intention: he repudiated with his tongue, not with his heart. When Allah waived from him the disbelief he uttered under coercion without believing it, the waiving of repudiation becomes obligatory through the waiving of the intention in it. The Muslims agreed that if the polytheists coerce a man to disbelief in Allah with his tongue while his heart is serene in faith, and he has a free Muslim wife, she is not forbidden to him, and he is not an apostate by that; yet apostasy is an irrevocable separation: this therefore settles their disagreement concerning the repudiation of the coerced man. And because it is a formula which, if it were cleared of coercion, repudiation would be imposed through it: when it is found together with coercion, repudiation is not imposed through it; its origin is the formula of the acknowledgment of repudiation. And because for every state with which the status of acknowledgment is not established, the status of production is likewise not established, like the child and the madman. And because it is a meaning that affects separation: when the utterance is found together with coercion, it has no ruling; its origin is apostasy. And because for every contract whose coercion negates the binding force of acknowledgment, it likewise negates the binding force of its production, like sale (al-Mudawwana al-Kubra 5/29, Sharh Sahih al-Bukhari 8/292-293, al-Istidhkar 6/201-203, Ikhtilaf al-Ulama of al-Marwazi 1/175-176, Sharh al-Sunna of al-Baghawi 9/221-222, al-Ifsah 2/175, Tafsir al-Qurtubi 10/184, al-Ishraf 3/427-428 no. 1245, al-Ma'una 1/565, al-Taj wa-l-Iklil 3/43-45, Sharh Mukhtasar Khalil 4/33, al-Sharh al-Kabir ma'a Hashiyat al-Dasuqi 3/249, Tahbir al-Mukhtasar 3/139-140, al-Hawi al-Kabir 10/227-229, al-Bayan 10/70-72, al-Muhadhdhab 2/78, Rawdat al-Talibin 5/356-357, Kanz al-Raghibin 3/817-818, al-Najm al-Wahhaj 7/503-504, Mughni al-Muhtaj 4/470-471, Tuhfat al-Muhtaj 9/374-387, Nihayat al-Muhtaj 6/513-516, al-Dibaj 3/416-417, al-Mughni 7/191, Sharh al-Zarkashi 2/465, Kashshaf al-Qina' 5/270-271, Sharh Muntaha al-Iradat 5/366-367, Manar al-Sabil 3/86-87, I'lam al-Muwaqqi'in 4/51-52, Fath al-Bari 9/390, Umdat al-Qari 20/250).

The Shafi'is and the Hanbalis declared (and it is also the madhhab of the Hanafis who make the coerced man's repudiation occur absolutely, and the purport of the Maliki madhhab) that the coercion must be without right: if the coercion has a right, repudiation occurs, like the coercion of the judge guardian to repudiation after the waiting (tarbbus) if he does not return, and his coercion of the two men he married when precedence is unknown: repudiation occurs; for it is a word imposed upon him with right and is therefore valid, like the Islam of the coerced apostate; and because it is only permitted to coerce him to repudiation so that his repudiation occurs: were it not to occur, the aim would not be attained (al-Hawi al-Kabir 10/232, al-Muhadhdhab 2/78, al-Mughni 7/291, Sharh al-Zarkashi 2/465, Kashshaf al-Qina' 5/271).

Imam Ibn al-Qayyim, may Allah have mercy on him, said: distinction: the sound intention in the coerced man's repudiation. They differed concerning the coerced man who assumes that repudiation occurs through his word and wants it: is it imposed on him? Two opinions, and they are two views among the Shafi'is. The one who imposes it saw that intention accompanied the formula, while he was not coerced upon intention: he therefore enacted the intended repudiation by choice, and it is imposed on him. The one who does not impose it saw that the coerced man's formula is idle speech to which no attention is paid: only mere intention remains, and it does not produce repudiation by itself.

Distinction: equivocation (tawriya) in the coerced man's repudiation. They differed over the case where equivocation was possible for him and he did not use it; the sound view is that repudiation does not occur through it, even if he left it aside; for Allah did not make equivocation obligatory upon the one coerced to the word of disbelief while his heart is serene in faith, although equivocation there is more worthy; but the coerced man's formula was only taken into account because he does not intend its meaning nor want its effect, and he uttered this word only to ransom himself from the harm of coercion: his speech is therefore idle speech like the madman's, the sleeper's and the one without intent, whether he used equivocation or not. It is also the case that requiring equivocation is a nullification of the concession of speaking under coercion and a return to the view of the execution of the coerced man's repudiation: had he used equivocation without coercion, his repudiation would not have occurred: the effect would therefore belong to equivocation, not to coercion, and this is void. It is also the case that the user of equivocation is not imposed repudiation despite his intending to speak through the formula only because he did not intend its referent: and this very meaning is established in coercion; the meaning that prevented occurrence in equivocation is the one that prevented occurrence in coercion (I'lam al-Muwaqqi'in 4/53-54 ; see al-Najm al-Wahhaj 7/503-504, Mughni al-Muhtaj 4/470-471, Tuhfat al-Muhtaj 9/374-387, Nihayat al-Muhtaj 6/513-516).

Question 14: the repudiation of the angry man

Anger is a state of nervous disturbance and mental imbalance that seizes a man when someone offends him by speech or otherwise. The scholars divided it into three categories: one produces repudiation by consensus, one does not produce it by consensus, and one is the object of disagreement; the text then unrolls the positions of the schools, the hadith of Khawla and Ibn al-Qayyim's treatise.

First category: that the man receive its beginnings, so that his reason and mind do not change and he knows what he says and intends it: no problem as to the occurrence of his repudiation, his manumission and the validity of his contracts, by consensus of the scholars, especially if it emanates from him after a wavering of his thought (Ighathat al-Lahfan p. 19, Matalib Uli al-Nuha 5/323, Hashiyat Ibn Abidin 3/244).

Second category: that the anger reach its end, so that the door of knowledge and volition closes upon him and he does not know what he says nor intends it. Ibn al-Qayyim, may Allah have mercy on him, said: no disagreement arises over the non-occurrence of his repudiation; anger is the drowsiness of reason: when anger seizes his reason to the point that he does not know what he says, without any doubt nothing of his words is executed in that state; for the words of the one subject to obligation are executed only with the speaker's knowledge of their emanation from him and of their meaning, and his volition to speak. The first situation excludes the sleeper, the madman, the mubrasm, the drunkard and this angry man; the second excludes the one who uttered the formula without knowing its meaning at all and who is not held by its requirement; the third excludes the one who spoke under coercion although he knew the meaning (Ighathat al-Lahfan p. 19, Matalib Uli al-Nuha 5/323, Hashiyat Ibn Abidin 3/244).

Third category: the one who is intermediate in anger between the two degrees, having exceeded its beginnings without reaching its end in which he would be like the madman: this is the place of disagreement and the object of examination among the scholars. The majority of jurists, Hanafis, Malikis, Shafi'is and Hanbalis, hold that the repudiation of the angry man occurs even if his anger is violent, unless his reason disappears and he becomes like the madman; for the repudiation of people occurs most often in the state of anger: were the non-occurrence of the angry man's repudiation permitted, everyone could say: "I was angry, no repudiation weighs upon me", and this is void. It is established from Ibn Abbas and Aisha that the repudiation of the angry man occurs, and a group of Companions issued the fatwa to that effect (Sharh al-Zarqani 3/280).

The Malikis said: the repudiation of the angry man is imposed on him even if his anger is violent, contrary to some of them; the claim that it belongs to coercion is void; and all of this so long as his reason does not disappear to the point that he does not perceive what emanates from him: otherwise he is like the madman (Hashiyat al-Dasuqi on al-Sharh al-Kabir 3/247, Hashiyat al-Sawi on al-Sharh al-Saghir 5/293). Ibn Hajar al-Haytami, may Allah have mercy on him, said: "No repudiation under ighlaq"; many explained it as coercion, as if the door were closed to him or his view locked; and they forbade explaining it as anger, because of the agreement on the occurrence of the angry man's repudiation. Al-Bayhaqi said: a group of Companions issued the fatwa to that effect, with no opponent among them (Tuhfat al-Muhtaj 9/377). Al-Jamal, may Allah have mercy on him, said: his word "no repudiation under ighlaq", that is, coercion; they explained ighlaq as coercion, for the door was closed to the coerced man or his view locked upon him; and they forbade explaining it as anger, because of the agreement on the occurrence (Hashiyat al-Jamal on Sharh al-Manhaj 4/324).

It is reported in Fath al-Mu'in bi-Sharh Qurrat al-Ayn by Imam Zayn al-Din ibn Abd al-Aziz al-Malibari: they agreed on the occurrence of the angry man's repudiation, even if he alleges the disappearance of his consciousness through anger. Ibn Shata said in his commentary: al-Shams al-Ramli was asked about the oath of repudiation in a violent anger that removes consciousness: does repudiation occur or not? Is a distinction made between conditioning and enactment? Is the swearer believed in his claim of the violence of anger and of non-consciousness? He answered: anger is not taken into account in this; yes, if he lost his reason, he is excused. His word "if he alleges the disappearance of his consciousness" means the disappearance of his perception; and his word "through anger" means through its cause, which relates to the disappearance (I'anat al-Talibin 4/11-12).

As for the Hanbalis, Imam Ibn Rajab, may Allah have mercy on him, said: what emanates from the angry man of repudiation, manumission or oath, he is held accountable for all of it, without disagreement. In the Musnad of Imam Ahmad, from Khawla bint Tha'laba, wife of Aws ibn al-Samit: she returned to her husband; he became angry and declared her forbidden (zihar); he was an old man whose character had spoiled and who was weary; she came to the Prophet to complain of what she endured of his bad character; Allah sent down the verse of zihar, and the messenger of Allah commanded him the expiation of zihar in a long account. Ibn Abi Hatim reported it by another way, from Abu al-Aliyya: Khawla's husband became angry and declared her forbidden; she came to the Prophet and told him, saying that he had not intended repudiation; the Prophet said: "I see nothing except that you have become forbidden to him"; the account is related at length, and at its end it is said that Allah transformed the repudiation into zihar. This man had therefore declared his wife forbidden in the state of his anger, and the Prophet then considered that zihar is repudiation, since he said that she had become forbidden to him by it, that is, that repudiation was imposed on him; when Allah made of it an expiable zihar, he imposed the expiation upon him without annulling it.

From Mujahid: a man of Quraysh came to Ibn Abbas and said: O Ibn Abbas, "I repudiated my wife three times while I was angry"; Ibn Abbas said: Ibn Abbas cannot make lawful for you what has been forbidden to you: you disobeyed your Lord and your wife has become forbidden to you; you did not fear Allah so that He might grant you a way out; then he recited:

"When you repudiate the women, repudiate them for their waiting period."

Surah at-Talaq, 1

purified, without relations; reported by al-Darqutni 3927, and narrated by al-Jawzajani and al-Darqutni with a chain fulfilling the condition of Muslim. Qadi Isma'il ibn Ishaq reported in the book Ahkam al-Qur'an with an authentic chain from Aisha, may Allah be pleased with her: "The idle in oaths is what takes place in dispute, jest and mockery, and the speech upon which the heart does not bind itself; and the oath of expiation is upon every oath you swear upon a serious matter, in anger or otherwise: you will do it or leave it; the binding of the oath in it is therefore the expiation"; and Ibn Wahb reported it likewise from Yunus, from al-Zuhri, from Urwa, from Aisha, and it belongs to the most authentic of chains: this indicates that the hadith reported from her raised to the Prophet "There is no repudiation and no manumission under ighlaq", either is not authentic, or its explanation as anger is not correct. It is established from more than one Companion that they issued the fatwa that the angry man's oath binds and that the expiation is due in it; and what was reported from Ibn Abbas contradicting that, its attribution is not authentic. Al-Hasan said: "The repudiation of the sunna is that he repudiate her once, purified, without relations; and he has the choice between that and her three menses; should it appear to him to take her back, he is most worthy of it; if he is angry, there are three menses, or three months if she does not menstruate, so that his anger departs." And al-Hasan said: "Allah has indeed clarified, so that none regret a repudiation, as Allah commanded it"; reported by qadi Isma'il.

Many scholars set the allusions together with anger like the explicit, in that repudiation occurs through them outwardly, and that their explanation as other than repudiation is not accepted together with anger; and among them the one who set anger with the allusions as intention, thereby making repudiation occur inwardly too: how then could anger be set as preventing the occurrence of the explicit?!

Imam al-Bahuti, may Allah have mercy on him, said: the angry man is subject to obligation in the state of his anger for what emanates from him: disbelief, the killing of a soul, taking property without right, repudiation and the rest. Ibn Rajab said in Sharh al-Arba'in al-Nawawiyya (Jami' al-Ulum wa-l-Hikam p. 149): what emanates from the angry man of repudiation, manumission or oath, he is held accountable; and in one copy: all of it without disagreement. He argued for it by sound evidences, among them the hadith of Khawla bint Tha'laba, wife of Aws ibn al-Samit, cited in the chapter of zihar, in which her husband became angry and declared her forbidden; she came to the Prophet and told him, saying that he had not intended repudiation; the Prophet said: "I see nothing except that you have become forbidden to him"; reported by Ibn Abi Hatim; and the account is related at length, and at its end it is said: "Allah transformed the repudiation and made of it a zihar". And among this what was reported from Ibn Abbas, Aisha and others concerning it, and he expounded at length; it is found in the commentary of the sixteenth hadith of the mentioned hadiths, and he disapproved of whoever says otherwise, for he is subject to obligation according to what the traditions indicate. But if he becomes angry to the point of fainting or that the veil of unconsciousness covers him, his repudiation does not occur in that state, because of the disappearance of his reason: assimilated to the madman (Kashshaf al-Qina' 5/270).

Imam al-Ruhaybani the Hanbali, may Allah have mercy on him, said: repudiation occurs from the one who became angry so long as his reason has not disappeared totally, for he is subject to obligation in the state of his anger for what emanates from him: disbelief, killing, taking property without right, repudiation and the rest. Ibn Rajab said in Sharh al-Arba'in al-Nawawiyya: what emanates from the angry man, he is held accountable for it, all of it without disagreement; he argued for it by the hadith of Khawla bint Tha'laba cited in zihar, and by what was reported from Ibn Abbas and Aisha, and he expounded at length. His word "contrary to Ibn al-Qayyim" is examined, for Ibn al-Qayyim did not say that the angry man's repudiation never occurs, but he devoted to this issue a treatise he named "Ighathat al-Lahfan fi hukm talaq al-ghadban" (The relief of the distressed on the ruling of the angry men's repudiation), in which he detailed the three categories of anger described above, and in which the legal evidences indicate the non-execution of the repudiation, the manumission and the contracts of the third category, in which choice and consent are taken into account: it is a branch of ighlaq as the imams explained it. The author seems to have alluded to Ibn al-Qayyim's contrary in this third category, whereas Ibn al-Qayyim did not affirm non-occurrence in it, but inclined to it; he mentioned these three categories likewise in the Hadi al-Nabawi in brief; and in this treatise he expounded and cited many evidences from the Book, the Sunna and the imams' statements. He said: as for consideration and the principles of the Law, they are counted by ways, and he cited twenty-four ways. He said in the Furu': it enters their speech that the one who becomes angry to the point of fainting or that the veil covers him; Shaykh Taqi al-Din said: it enters their speech without any doubt (Matalib Uli al-Nuha 5/322-323).

As for the Hanafis, Imam 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, 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, 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, those described above, 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 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. 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 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; and the definition of the madh by the loss of reason does not contradict it, for madness has kinds: it was explained in the Bahr as derangement of reason, including idiocy, the mubrasm, fainting and the madh; and what confirms it is the word of some: the reasonable man is he whose speech and acts are upright, except rarely, and the madman is his opposite. Some madmen know what they say and intend it, 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, 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, as with the discerning child. Problematic is what is in the hashiya of the Bahr, declared in the Fath and the Khaniyya and others: 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. 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 he is then without any doubt at the highest degree of madness; and what confirms it 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. 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).

Imam Ibn al-Qayyim the Hanbali, may Allah have mercy on him, went, in his penetrating treatise "Ighathat al-Lahfan fi hukm talaq al-ghadban" (which the preceding words of Ibn Abidin indicate), so far as to say that the repudiation of the one whose state is such does not occur, and he devoted a treatise to it. He argued for it by the hadith of Aisha, mother of the believers, may Allah be pleased with her, that the Prophet said:

"There is no repudiation and no manumission under incapacitation (ighlaq)."good hadith, reported by Abu Dawud 2193, Ibn Majah 2046 and Ahmad 26403

Abu Dawud said: "under ghilaq", then said: ghilaq, I think it is anger. Hanbal said: I heard Abu Abdillah, that is, Ahmad ibn Hanbal, say: it is anger; it was mentioned by al-Khallal and Abu Bakr Abd al-Aziz; and Ahmad's wording means anger. Abu Bakr said: I asked Abu Muhammad, Ibn Durayd, Abu Abdillah and Abu Tahir, the grammarians, about his word "There is no repudiation and no manumission under ighlaq"; they said: he means coercion, for when one is coerced, his view locks upon him; and entering into this meaning are the mubrasm and the madman. I said to them: and anger too? He said: anger also enters into it, for ighlaq has two aspects: one is coercion, and the other what befell him through that by which his view locks upon him.

And this is the purport of Bukhari's chaptering, for he said in his Sahih: "Chapter: repudiation under ighlaq, coercion, drunkenness and madness", distinguishing repudiation under ighlaq from these aspects; and it is also the purport of al-Shafi'i's speech, for he names the vow of obstinacy and anger "the oath of ghalaq" and "the vow of ghalaq", this formula meaning the vow of anger; and this is the word of more than one imam of the language; and the view by virtue of it is the purport of the Book and the Sunna, of the Companions' and the tabi'un's statements and of the imams of the jurists, and the purport of sound analogy, consideration and the principles of the Law. Then he mentioned five ways from the Quran, three from the Sunna, two ways from the Companions, and twenty-five ways of consideration and the principles of the Law; and he was the first to divide anger into three categories, and these three categories were transmitted by Ibn Abidin the Hanafi, al-Ruhaybani the Hanbali and others.

Question 14 (continued): Ibn al-Qayyim's detailed evidences in Ighathat al-Lahfan

At the head of the evidences Ibn al-Qayyim places the Prophet's mercy: with the messenger of Allah there were breadth and mercy, whereas with all others there is severity and harshness; whoever came to him distressed found the relief of his affliction, and every suffering man found the aid of his weakness. He never separated two spouses except through deliberate intent and choice, never scattered the union of two lovers except through the will and preference of one of them; he never destroyed the homes of lovers through the tongue's error, nor separated for what ran upon man's tongue without intent: rather he waived accountability for the word the speaker did not intend and which ran upon his tongue through error, forgetfulness, coercion or slip, by consensus; and he said, in what the people of the Sunan reported from Aisha, mother of the believers: "There is no repudiation and no manumission under ighlaq"; reported by Imam Ahmad, Abu Dawud, Ibn Majah, and al-Hakim in his Sahih, who said: authentic hadith fulfilling the condition of Muslim, but they did not report it.

The ways of the Quran. The first: the word of the Most High:

"Allah does not take you to task for the idle in your oaths, but He takes you to task for what your hearts have earned."

Surah al-Baqara, 225

From Ibn Abbas: the idle of the oath is that you swear while you are angry. And Tawus said: every oath a man swears while angry entails no expiation, according to the word: "Allah does not take you to task for the idle in your oaths". And this is one of the opinions of the Maliki school: the idle of the oath is the oath in anger; and it is the choice of the greatest and most eminent of the Malikis absolutely, qadi Isma'il ibn Ishaq, who held that the angry man's oath does not bind. No contradiction between this view and the word of Ibn Abbas and Aisha: "the idle of the oath is that the man say: no, by Allah, and yes, by Allah", nor with the word of Aisha and others: "the man's oath over a thing he believes as he swore it, then the contrary becomes clear"; all of that belongs to the idle, and the one who explained the idle of the oath as the oath of anger intended thereby the two other kinds of the idle. And this is the sound view: for Allah set the idle of the oath opposite the heart's earning; now the angry man and the one swearing over a thing he assumes firmly believe, while the one who says "no, by Allah, yes, by Allah" without binding the oath, his heart earned neither the binding of the oath nor its intent; Allah waived accountability for the formula that ran upon the tongue without the heart earning it or intending it: it is therefore not permitted to hold accountable for what Allah waived accountability for; one even says that the idle of the angry man is more apparent than the idle of the two last oaths.

The second way of the Quran: "If Allah were to hasten for people the evil as they hasten the good, their term would be decreed; so We leave those who do not expect Our meeting wandering in their rebellion" (Surah Yunus, 11). In the tafsir of Ibn Abi Najih from Mujahid: it is man's word over his child and his property when he becomes angry with them: "O Allah, bless him not and curse him"; and were the answer hastened to them in that as it is answered in the good, they would perish. Anger thus stood as preventing the contraction of the cause of supplication, whose effect upon the answer is faster than the effect of causes upon their rulings: Allah answers the supplication of the child, the fool, the mubrasm and the one whose repudiation and contracts are not valid. When anger therefore prevented the supplication from being a cause, it is because the angry man did not intend it with his heart: the reasonable man does not choose the destruction of himself and his family, the loss of his property, the cutting of his hand and leg, nor that by which he supplicates; the mercy of the Mighty therefore required not holding him accountable nor answering his supplication, for it emanates from him without intent, and the one who carries it upon him is anger, which comes from the devil. Of this is His word: "And man supplicates evil as he supplicates good, and man is ever hasty" (Surah al-Isra, 11): it is the man who supplicates evil against himself and his family in the state of anger.

The third way: "Then when Musa returned to his people, angry and grieved, he said: Evil is what you have done after me! Did you hasten the command of your Lord? And he cast down the tablets and seized his brother's head, pulling it toward him" (Surah al-Araf, 150). The meaning of the argument is that Musa, upon him the prayer of Allah, would not have cast down the tablets as a result of anger; Allah therefore excused him and did not blame him for what he did, for its source was an anger exceeding the servant's capacity and choice: what resulted from it is therefore not attributed to his choice nor his consent.

The fourth way clarifies that: His word: "And when the anger subsided from Musa, he took the tablets" (Surah al-Araf, 154). The Most High abandoned the word "settled" for the word "quieted", giving anger the rank of the sultan who commands and forbids and who says to his subject: do, do not; he therefore answers to the caller of anger who speaks within it and speaks upon his tongue: he is thus more worthy of being excused than the coerced man upon whom an anger commanding and forbidding did not seize. When anger is the one speaking upon his tongue, what runs upon his tongue in that state is not attributed to his choice nor his consent: the effect therefore does not complete upon him.

The fifth way: "And if an incitement from the devil incites you, seek refuge in Allah", in three places of the Quran; and what the angry man utters in the violence of his anger, like repudiation, insult and the like, belongs to the incitements of the devil: he drives him to say what he was not choosing to say; when the veil is lifted from him, he knows that it belongs to the devil's casting upon his tongue what was neither of his pleasure nor his choice. And anger comes from the devil and its effect from him; as in the Sahih two men were insulting each other before the Prophet until the face of one of them reddened and the veins of his neck swelled; the Prophet said: "I know a word which, were he to say it, what he feels would leave him: I seek refuge in Allah from the accursed devil." And in the Sunan, the Prophet said: "Anger comes from the devil, and the devil is created from fire, and fire is only extinguished by water; when one of you becomes angry, let him perform ablution." This means and its effect being of the devil's driving, they are therefore not of the servant's choice: the ruling does not attach to it.

The ways of the Sunna. The first is the mentioned hadith of Aisha. The second is what Ahmad and al-Hakim reported in his Mustadrak from Imran ibn Husayn: the messenger of Allah said: "No vow in anger, and its expiation is the expiation of the oath"; authentic hadith, and it has ways. The meaning of the argument: he annulled the obligation of fulfilling the vow when it is uttered in the state of anger, although Allah praised the fulfiller of vows and the Prophet commanded the one vowing obedience to Allah to fulfill his vow and said: "Whoever vows to obey Allah, let him obey Him; and whoever vows to disobey Him, let him not disobey Him." Since therefore the vow whose fulfiller Allah praised, and whose fulfillment His messenger commanded if it is of obedience, anger could affect its contraction, because the angry man did not intend it, but anger carried him to it: repudiation is then, by priority, even more worthy. The third is what is established in the Sahih that he said: "The judge does not judge between two men while he is angry"; and were anger not affecting his intent and knowledge, he would not have forbidden him to judge in the state of anger; and the jurists differed over the validity of the ruler's judgment in the state of his anger into three views.

As for the traditions of the Companions, they are of several ways. One is what Bukhari mentioned in his Sahih from Ibn Abbas: "Repudiation is what is deliberate (an watr), and manumission is what is sought thereby of the face of Allah"; he therefore restricted repudiation to what is deliberate, and the angry man has no deliberate intent; and this, in repudiation, is the parallel of his word and that of his companions: "the idle of the oath is that you swear while angry". The second is that al-Zuhri reported from Aban ibn Uthman from Uthman that he rejected the drunkard's repudiation, with no opponent known among the Companions; and this is the sound view, and it is the one to which Imam Ahmad finally returned: he said in the narration of Abu Talib that the one who does not command repudiation in it 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. And he said in the narration of Abd al-Malik 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. And 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". And this is the choice of al-Tahawi, Abu al-Hasan al-Karkhi, Imam al-Haramayn and shaykh al-islam Ibn Taymiyya, and one of the two opinions of al-Shafi'i. When those do not make the drunkard's repudiation occur because he does not intend repudiation, it is known that the angry man is often in a state worse than the drunkard.

Drunkenness is of two kinds: drunkenness of joy and drunkenness of anger, and now this one is stronger, now that one; when anger becomes exacerbated upon him to the point that he becomes like the drunkard, he is more worthy that his repudiation not occur, for he is excused by what the drunkard is not excused, and anger reaches him to the utmost drunkenness reaches, as is observed in the state of the drunkard and the angry man.

As for consideration and the principles of the Law, they are of several ways. The first: accountability attached to words only because they are proofs of what the heart contains of earning and volition, as the Most High said: "Allah does not take you to task for the idle in your oaths, but He takes you to task for what your hearts have earned"; He made the heart's earning the cause of accountability, and earning is his volition and intent. The one upon whose tongue the word runs without intent or choice, but through the violence of anger or drunkenness or other, his word is therefore not of his heart's earning; this is why Allah did not hold accountable the one whose joy was exacerbated by the presence of his mount after despairing of her: when he recovered her, he erred through the excess of joy and said: O Allah, You are my servant and I am your Lord; that formula ran upon his tongue without intent, and He therefore did not hold him accountable, as error runs upon the reciter's tongue in the Quran. One would however say: this one intended the correct and erred, and he was therefore not held accountable, for he intended the contrary of what he uttered, unlike the angry man when he repudiates, for he intends repudiation. It is answered: there is no dispute concerning the angry man who knows what he says, intending and choosing its ruling to repel the nuisance of living with his wife; the dispute concerns the one whose anger was exacerbated to the point that the devil drove him to speak of what he was not choosing to speak, as he drives him to do what he would not have done without anger.

The second way: his volition is a volition carried to him, to which he is driven like the coerced man; the coerced man is even in a better situation, for he has a true intent and volition, but they are carried to him, while this one has no intent in truth: when the coerced man's repudiation does not occur, this one's is even more worthy of not occurring. The third way: what carries the coerced man to speak of repudiation resembles what carries the angry man to speak by it; for the one who speaks under coercion intends only relief from the expectation of what he is coerced to if he does not do it: he therefore speaks of repudiation intending his relief from the pain of what he is coerced to. Likewise the angry man: when anger becomes exacerbated upon him, bearing it pains him: he says what he says and does what he does to repel from himself the heat of anger and find rest thereby; and likewise he slaps his face, cries out loudly, tears his garments and casts what is in his hand, to repel the pain of anger and unload its burden; and likewise he supplicates evil against himself and against the people dearest to him: he speaks in the form of request and supplication without truly seeking it; likewise he speaks in the form of utterance without intending its meaning. That is why kings and others, in anger, command matters whose intimates know they uttered them to repel the heat of anger and do not want their requirement: their intimates therefore do not execute it but delay it, and they are praised for it when their anger calms. Likewise the man, at the moment of violent anger, rises to assault his child or his friend; another turns him away from it; he praises them afterwards, as the drunkard and the fevered man praise the one who interposes between them and what they aim to do in that state.

The fourth way: the reasonable man does not seek anger nor want it; rather it is the thing he hates most; and it is as the Prophet said: "a burning coal in the heart of the son of Adam; do you not see the reddening of his eyes and the swelling of the veins of his neck?"; and the reasonable man does not intend to cast the coal into his heart: it arises in him without his choice. Once it is therefore the cause carrying to the speech of repudiation and the like, that too is not attributed to his choice nor his volition; and this is like the fact that the will of the cause is will of the caused: the hatred of the cause and loathing of it are hatred of the caused. The fifth way: you say to the angry man when his anger has been exacerbated and he has done what he did not do or uttered what he did not utter before anger: did you want that or intend it? He swears that he neither wanted it nor intended it, and that it was not of his choice; do not find this strange: you find it in yourself. The verification of the matter is that there is in it a volition carried to him, which anger made him carry: it is like the coerced man's volition; the coerced man is even more entered into volition, which indicates that the angry man is more worthy of non-occurrence than the coerced man.

The sixth way: fear in the coerced man's heart is like anger in the angry man's heart; but the coerced man is overpowered by another from outside, while the angry man is overpowered by his anger within him; and the domination of coercion annuls the status of the words he was coerced upon, not the status of acts: he is killed if he kills, and he guarantees if he destroys; likewise the domination of anger annuls the status of the angry man's words, not his acts, to the point that were he to kill in that state or destroy something, he would guarantee it. All of this concerns the angry man who hates in truth what he said; as for the one who wants it, on the estimation that his anger does not require the cause of that, he is not of this chapter: like the one whose wife fornicated and who, angry, repudiated her; he does not see the living together with the fornicator, and he did not therefore intend by the repudiation to extinguish the fire of anger, but to free himself from living with a fornicator: his repudiation occurs. Consider this difference, for it is the letter of the question and its subtle point; and it is contrary to the one with whom his wife quarrels and who knows of himself the will of living with her in quarrel and bad character, but whom anger carried to say that his soul is healed by speaking of repudiation to break her and extinguish the fire of his anger.

The seventh way: the angry man does things like tearing garments, destroying property and other: were he coerced to speak of repudiation, his repudiation would not execute and his words would be idle; when he therefore does these things himself, it is known that what drove him to them is greater than coercion; for the coerced man, were he coerced to them, would not do them, and this one did them: it is therefore known that what requires him to do them is stronger than coercion's requirement; and the coerced man, were he afflicted with that, would be coerced: the angry man is likewise; and this is very clear. If it is said: the coerced man, when he speaks of what he was coerced to, repels harm from himself, while the angry man does not repel by this word a harm: he is therefore not like the coerced man; it is answered: without any doubt they differ in this aspect, but it does not require that the angry man be choosing and seeking what he said or did: rather it is the thing he hates most, and it is something he cannot repel. If it is said: what then carries him to do what he hates and that pains him, without thereby reaching what is dearer to him? It is answered: anger being the enemy of reason, and being to him like the wolf to the sheep, it seldom masters him without seizing his reason; he therefore intended the disappearance of anger and the extinguishing of its fire, and this is a sound aim in itself; but when his reason left him, he intended the disappearance of that, though harmful to him, to lighten what he bears as trial; without that he would not have done what he does not do in pleasure nor uttered what he did not utter: he intended that he rest, calm down and his anger cool through those words and acts, although he did not repel all that violence: it lightens and weakens; the mercy of the Law therefore required that they be annulled in that state, for it may be that their effect does not attach to them, and that they be like the words of the mubrasm and the raging madman and the like; as for acts, their effect cannot be annulled: the requirement of his act therefore attaches.

The eighth way: the Prophet legislated for the angry man that he say: "I seek refuge in Allah from the accursed devil", that he perform ablution and that he change state: if he is standing, let him sit, and if he is sitting, let him lie down; he said: "Anger comes from the devil, and the devil is created from fire, and fire is only extinguished by water: when one of you becomes angry, let him perform ablution"; this indicates that it is carried to him from another, and that the devil makes him angry to carry him through his anger to doing what the devil loves and speaking of it. And what is attributed to the devil among what the servant hates and does not love, man is not held accountable for it, like insinuation and forgetfulness, as the young companion of Musa said to Musa: "It is none but the devil who made me forget to mention it to you" (Surah al-Kahf, 63). Allah does not therefore hold accountable for insinuation nor forgetfulness, for both belong to the effect of the devil's act in the heart; and the Prophet informed that anger comes from the devil: its effect is therefore likewise attributed to him, and the servant is not held accountable for it like the effect of forgetfulness; for had he sworn not to speak of such a thing and then spoke of it forgetting, he would not have violated his oath, for lack of intent and volition to contravene what he bound his oath upon, although he intended the speech: it only occurred from him through his intent and volition. Such is the angry man's situation: he did not intend the reality of what he uttered nor its effect, but it ran upon his tongue as the forgetful man's word ran upon his tongue; the forgetful man's intent to speak is even more apparent than the angry man's intent: that is why the forgetful one says: "I intended to say such and such", while the angry man swears that he did not intend.

The ninth way: intents are taken into account in all contracts; and the angry man has no intent taken into account in dissolving the knot of marriage, just as he has no intent in killing himself, his child and destroying his property: he does this and says this in anger; when he therefore has no intent taken into account, his repudiation is not valid. If it is said: this contradicts you by the jester, for his repudiation is valid although there is no intent in it; it is answered: the difference between them is that the jester intended to speak through the formula and wanted it by his pleasure and choice, without being carried to it; and his limit is that he did not want its ruling nor its effect, and that returns to the Law, not to him: the cause to which he came, he came to it by choice and intent, knowing it, not carried to it; and the cause that returns to the Legislator does not return to him: considering the one by the other is therefore not valid; and how would the angry man be likened to the one who takes the verses of Allah in mockery?! And this is among the most corrupt of analogies.

The tenth way: anger is a disease among diseases and a sickness among sicknesses; it belongs to the sicknesses of hearts as fever, insinuation and epilepsy belong to the sicknesses of bodies; the angry man overcome by his anger is therefore like the sick, the fevered and the epileptic overcome by their illness, and like the mubrasm overcome by his mubrasm; and this is a sound analogy for the angry man whose anger was exacerbated to the point that he does not know what he says. As for the one who knows what he says but speaks of it through pain, constraint and locking without intending the occurrence, he resembles the mubrasm and the raging fevered man on one side, and resembles the coerced man intending to speak on one side, and resembles the chooser intending repudiation on one side: he wavers among these; but the share of choice and intent in him is weak, for he knows of himself that he was not choosing what emanated from him: the ruin of his home, the separation of his beloved, seeing her in another's hand; were he reasonable, he would choose that only to repel thereby what is more hated to him, or for what is dearer to him to be realized; when these two are negated, he was therefore not choosing it. It is a thing every man knows of himself: his wavering is therefore between the overcome sick man, the coerced man and the one upon whom repudiation is carried; and whichever he be, his repudiation does not execute. If it is said: the difference is that the overcome sick man does not possess himself in the state, while the coerced man, although possessing himself, cannot repel from himself what he hates; and the angry man can possess himself, as the Prophet said: "The strong is not the one who wrestles, but the one who possesses himself in anger"; it is answered: there is of anger what permits its subject to possess himself, and that is anger in its beginnings; when it becomes firm and masters him, he does not possess himself in it; likewise the grief carrying to lamentation permits its subject to possess himself at first, but when it becomes firm and dominates, he does not possess himself. Likewise anger permits its subject to possess himself at the beginning; when it becomes firm and its domination seizes the heart, its subject does not possess his heart: he is choosing at the beginning and coerced at the end, as the poet said: "O you who blame me and the matter is in his hand; why not blame, while the matter is in my hand." Likewise the drunkard: the cause of drunkenness is in his power: he can do it and leave it; when he has come through the cause, the matter has left his hand and he does not possess himself in drunkenness. Since therefore the drunkenness whose subject neglected taking its causes, and he can possess himself by avoiding them, the Companions and other jurists excused him when he repudiates in that state, although he is not excused in taking its cause: the excuse of the drunkard of anger who did not neglect, despite the violence of his drunkenness over the drunkenness of wine, is more worthy and more necessary.

The eleventh way: among people is the one whose anger, if not vented, kills him: he dies, falls ill or the veil of unconsciousness covers him, as it is reported of some Arabs that a man was insulted; he wanted to answer the insulter; one of his companions seized his hand upon his mouth; then he raised his hand when he thought his anger had calmed; he said: you killed me, you returned my anger into my belly, and he died on the spot. When such an anger vents itself through killing or injustice toward another, he is not excused by it like the drunkard; as for its venting through a word, the word may be disregarded and its effect may not attach to it, as Allah disregarded his supplication without attaching its effect and without answering it. That is why some jurists held that he is not flogged for slander in the state of quarrel and anger, but that he is flogged only if he came to it by choice and intending slander; and this is a very strong view. It is indicated by the fact that the disputant is not excused for wounding his adversary and attacking him in the state of quarrel by saying: he is a wicked man, an unjust, a cheat, he swears falsely, and the like. Whoever punishes him for it in that state distinguishes between his slander and his repudiation: slander is the right of a son of Adam, a profanation of his honor or an assault upon his person: it runs like the destruction of himself and his property; one is therefore not excused by anger in it, especially since, were one excused, every slanderer could say: I slandered him in the state of anger, and the punishment would fall; unlike repudiation: he may be held regarding what is between him and Allah; and the sound view does not exceed him. The intended meaning is that when he speaks of repudiation, it is a remedy for this sickness and a healing through expelling this word from his chest: it belongs to the perfection of this Law, its beauties and what it contains of mercy, wisdom and interest, that he not be held accountable by it nor imposed its requirement while he did not bind himself to it.

The twelfth way: the principle of the Law is that psychic accidents have an effect upon speech, sometimes disregarding it and not taking it into account, sometimes making it occur and annulling it; and this is like the accident of forgetfulness, error, coercion, drunkenness, madness, fear, grief, heedlessness and bewilderment; one therefore bears from one of them a word one does not bear from another, and one is excused by what one does not excuse others, for lack of the purity of intent and volition, and the presence of what carries to speech. That is why the Companions asked the vower: did you say this in pleasure or in anger? If he was in anger, they commanded him the expiation of the oath, for they argued from anger that his aim was blame and prohibition, like the swearer, not drawing near. Allah made the accident of drunkenness an impediment to taking into account the drunkard's recitation, remembrance and prayer, as the Prophet made it an impediment to the validity of his acknowledgment when he commanded the removal of the foul smell from the one acknowledging before him fornication, and an impediment to the disbelief of the one who said to him and his companions: "You are only the slaves of my father!" Allah made anger an impediment to answering the one who supplicates evil against himself and his family; coercion an impediment to the disbelief of the one speaking the word of disbelief; error and forgetfulness an impediment to accountability through word and act. The accident of anger may be stronger than many of these accidents: when for one of those his word does not require its requirement for lack of intent, the angry man who did not intend it, if he is not more worthy of excuse than them, is not below them.

The thirteenth way: repudiation in the state of anger has three forms. The first: that he be informed by his wife of a matter that exacerbates his anger over her, and he assumes she is truthful: he repudiates her for it, then it becomes clear that she is innocent of it; regarding the occurrence, two opinions, the sounder of the two being that it does not occur, for he only repudiated her for this cause and this ailment; and the cause is like the condition: it is as if he said: if she did that, she is repudiated; when she did not do it, the condition was therefore not fulfilled. This very issue was mentioned by Abu al-Wafa Ibn Aqil, and al-Sharif Ibn Abi Musa mentioned it in his Irshad in the case where he says: "You are repudiated if you enter the house", repeatedly, while he knows Arabic, then it becomes clear that she did not enter: she is not repudiated. It is not said: he here declared the ailment explicitly, unlike the case where he did not declare it: that has no effect, for he made repudiation occur for an ailment; when the ailment was negated, it was known that he did not want its occurrence without it, whether he declared the ailment or not: the ailment is in the rank of the condition; and were he to say: "You are repudiated", then say: "I meant: if you did such and such", he is held regarding what is between him and Allah. The companions of al-Shafi'i and Ahmad mentioned the case where he contracted his slave for a compensation, then paid it to him and said: "You are free", then it becomes clear that the compensation is due: he is not freed, despite his explicit declaration of freedom: repudiation is therefore even more worthy of non-occurrence in this form. The second form: that he became angry over a matter he knew had occurred from her: he utters the word of repudiation intending it, knowing what he says, as punishment against her for it: his repudiation occurs; for were this repudiation not to occur, most repudiations would not occur, for it most often occurs only in displeasure. The third form: that he does not intend a specific matter, but anger carried him to it, changed his reason and prevented him the perfection of conception and intent: he is therefore in the rank of the one in whom there is a kind of drunkenness and madness; he is neither absent of reason to the point of not understanding at all what he says, nor present of reason to the point that his intent is taken into account: repudiation does not occur through him either, as it does not occur through the mubrasm and the madman.

The fourteenth way: the madman, the mubrasm, the obsessive and the raging one may perceive what he said and be ashamed of it; and likewise the drunkard; that is why most jurists did not require, in his drunkenness, that he lose his discernment totally; Imam Ahmad and others said: he is the one who mixes in his speech and does not know his garment from another's nor his act from another's; and the explicit sound Sunna indicates it: the Prophet commanded the removal of the foul smell from the one acknowledging fornication, while he was present of reason and mind, speaking a comprehensible and ordered word, sound in articulation; and despite that he permitted that there be in him a drunkenness preventing the perfection of his reason and knowledge, and commanded its removal. The intended meaning is that those are not totally stripped of discernment, and are not like the people of reason with sound intent: what befell them required the change of reason that prevented the soundness of intent; none of them therefore intends the intent of the people of reason, whose aim is to attract what benefits and repel what harms: none of them conceived the requirement of what he uttered, and his reason was not absent from perceiving it: he is deficient in conception, weak in intent. The angry man, in the state of his anger, may be in a situation worse than theirs and more resembling the mad: he says and does what the madman neither says nor does.

If it is said: is he then interdicted in that state as the madman is interdicted? It is answered: no; the difference between them is that this state does not last: he is like the one who raves rarely then comes back to himself: interdiction is therefore not imposed on him; indeed, were a word to emanate from him in that state without intent from him, it is like the word emanating from the madman in that its effect does not attach to it. And without any doubt fainting and the veil of unconsciousness can befall the angry man: he is in that state absolutely not subject to obligation, as befalls the sick man; it removes his obligation in the state of fainting, to the point that some jurists do not require of him the making up of prayer in that state, assimilating him to the madman, as al-Shafi'i says; and Ahmad requires of him the making up, assimilating him to the sleeper; and Abu Hanifa distinguishes the long one exceeding day and night, whom he assimilates to the madman, and the short one below that, whom he assimilates to sleep. Many people may deny that anger removes reason and carries its subject to that state: they know of anger only what they find in themselves, and they have not known an anger reaching that state; and this is an error: people differ greatly in anger: some is like breath, some like drunkenness, some like madness; some has fast onset and fast departure, and the contrary; some has fast onset and slow departure, and the contrary, as the Prophet divided it into these categories; and people's powers differ greatly in possessing their piety in anger, greed, grief, fear and desire: some possess it and act within it, and some are possessed by it and it acts upon them.

The fifteenth way: the angry man whose intent and view were locked in anger, and who became closer to accidental madness than to firm reason, is more worthy that his repudiation not occur than the jester uttering repudiation in the state of his reason, although his heart does not want it; and some jurists annulled the jester's repudiation, and this is one of the two narrations of Imam Ahmad, reported by Abu Bakr Abd al-Aziz and others; and on this say some companions of Malik when the proof of jest is established: neither manumission, nor marriage, nor repudiation is imposed on him; and without any doubt the angry man is more worthy of non-occurrence than this one. The sixteenth way: a group of our companions did not require, in the madman and the mubrasm, that he not remember his repudiation, although the apparent of Ahmad's text is that as soon as he remembers it, it is imposed on him; for he said in the narration of Abu Talib concerning the madman who repudiates, to whom it was said upon his coming back: "You repudiated your wife"; he said: "I remember that I repudiated and that my reason was not with me"; he said: when he remembers that he repudiated, it occurred. Abu Muhammad al-Maqdisi said: and this is what is transmitted from Imam Ahmad concerning the one whose madness is through the total disappearance of his knowledge and the invalidation of his senses; as for the one whose madness is through dryness or who is mubrasm, that nullifies the status of his transactions although his knowledge did not totally disappear: the memory of repudiation does not harm him therefore, if Allah wills. End of his word. And it is known that the full angry man is in a situation worse than the one whose madness is through dryness or mubrasm, and his states, at the least, are like it. The seventeenth way: the obsessive's repudiation 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 volition: so it is here.

The eighteenth way: no one said that the mere utterance through the formula of repudiation produces its occurrence in any state whatsoever, but another thing is required behind the utterance through the formula. A group required that he come to it only in the state of obligation, whether he intended it or it ran on his tongue without intent, whether he was coerced to it or came to it by choice: this is the madhhab of the one who makes the coerced man's repudiation occur and that which runs on the servant's tongue without intent from him; and it is what is textual from Abu Hanifa in two places. A group required with that that he come to the formula choosing and intending it: this is the view of the majority of those who do not execute the coerced man's repudiation. Then among them the one who required with that that he know its meaning: were he to speak of it by choice without knowing its meaning, its ruling is not imposed on him: this is the view of the one who says that the rulings of words are not imposed on the one subject to obligation until he knows their referents; and this is the sound view. Among them the one who required with that that he want its meaning and intend it: were he not to intend its meaning nor want it, its ruling is not imposed on him: this is the view of the one who requires for the explicit of repudiation the intention, and the view of the one who does not make the jester's repudiation occur; and it is a view in the madhhab of Imam Ahmad and Malik in the two issues: they require the consent of the linguistic utterance, the knowledge of its meaning and the volition of its requirement. Among them the one who requires with that that repudiation be permitted by the Law: this is the view of the one who does not make the forbidden repudiation occur; and it is the view of a group of the early generations among the Companions, the tabi'un and those who came after.

Muhammad ibn Abd al-Salam al-Khushani said: Muhammad ibn Bashshar informed us: Abd al-Wahhab ibn Abd al-Majid al-Thaqafi informed us: Ubaydullah ibn Omar informed us from Nafi', from Ibn Omar, that he said concerning the man who repudiates his wife while she is menstruating: "no account is made of it"; and this chain suffices you if it is authentic; Abu Muhammad Ibn Hazm reported it. And it is the madhhab of the most juristic of the tabi'un absolutely, Sa'id ibn al-Musayyib, which al-Tha'labi reported from him in the tafsir of Surah at-Talaq; and it is the madhhab of the most juristic of the tabi'un among the companions of Ibn Abbas, namely Tawus; Abd al-Razzaq said: from Ibn Jurayj, from Abdallah ibn Tawus, from his father: he did not consider as repudiation what contradicts the face of repudiation and the face of the waiting period; and he used to say: the face of repudiation is that he repudiate her purified, without relations, and that her pregnancy become apparent. And it is the madhhab of Khalas ibn Amr: he said concerning the man who repudiates his wife while she is menstruating: "no account is made of it"; and it is the view of Abu Qilaba: when the man repudiates his wife while she is menstruating, no account is made of it. And it is the choice of Ibn Aqil in his book al-Wadih fi usul al-fiqh, which he declared in the issue that the forbidden requires corruption; and it is the choice of shaykh al-islam Ibn Taymiyya, and one of the two views in the madhhab of Ahmad. Abu Ja'far al-Baqir said: no repudiation except upon the sunna; no repudiation except upon a purification without relations; and every repudiation in anger, oath or manumission is not a repudiation, except for the one who wanted to repudiate. The intended meaning is that those require in the occurrence of repudiation the permission of the Law in it, and what the Law did not permit is void and non-executing according to them. Shaykh al-islam said: their view is the soundest in proof against the view of the one who makes occur the repudiation that Allah and His messenger did not permit, and holds it valid and imposed. The intended meaning is that no one said that the mere utterance of repudiation produces its effect attaching, in whatever way.

The nineteenth way: it is the purport of Ahmad's text, as was the preceding explanation of ighlaq in Hanbal's narration as anger. Abdallah, his son, said in the questions: I asked my father about the madman who repudiates at the time of the disappearance of his reason: is it valid? My father said: whoever was sound of reason then his reason departed from its soundness and he repudiated, his repudiation is nothing. This is therefore its generality, and that is its specification: he made the change of reason from its soundness an impediment to occurrence; and without any doubt the ighlaq of anger changes reason from its soundness.

The twentieth way: the jurists differed over the validity of the ruler's judgment in anger into three views, and they are three aspects in the madhhab of Ahmad. The first: it is not valid and does not execute, for the forbidden requires corruption. The second: it executes. The third: if anger befalls him after understanding the judgment, his judgment executes; and if it befalls him before that, it does not execute, for the ruler must be knowing and just. The one who executes his judgment said: anger does not prevent him from knowledge and justice, and the Prophet judged for al-Zubayr the strap of the free woman while he was angry. The one who does not make his judgment execute said: anger prevents him from the perfection of the aim and the goodness of the aim, it therefore prevents him from knowledge and justice. Analogy to the Prophet is not valid: he is protected in his anger and pleasure: when he became angry, he said only the truth, as it was in his pleasure. And the one who distinguished said: when he knew the truth before anger, anger did not prevent him from knowledge: he can then execute the truth he knew; and when he became angry before understanding, his judgment does not execute, for anger may interpose between him and understanding: they therefore argue by the affair of al-Zubayr, and that anger only came upon the Prophet after the understanding of the judgment. The intended meaning is that anger, when it affects them toward the nullity of judgment, it is known that the angry man's word is not the word of the choosing pleased one, and that anger has an effect in that.

The twenty-first way: the occurrence of repudiation is a legal ruling, it therefore requires a legal proof; and the proof is either the Book, or the Sunna, or consensus, or analogy in which the status of root and branch is equal; and none of that exists in our question; or you would say: the proof is either a text or the reasonable of a text, and both are negated; or you would say: were the occurrence established, its proof would need to exist; but the required is negated, therefore the necessary is like it. The twenty-second way: this man's marriage is established by consensus: it therefore only disappears by a like consensus; or you would say: his marriage before this formula came from him is established by consensus, and the origin is its persistence until what lifts it is established.

The twenty-third way: the majority of the scholars say that the repudiation of the discerning reasonable child does not execute and is not valid; this is the view of Abu Hanifa, Malik and al-Shafi'i, and of one of the two narrations of Imam Ahmad chosen by shaykh Abu Muhammad, and the view of Ishaq; although he knows the formula and its effect through his words, by choice and intent, and he has a sound intent and a sound volition; Allah commanded to try and test him in his transactions; Omar ibn al-Khattab executed his word; and the Prophet took into account his intent and choice in the choice between his two parents. The man violently angry whose door of intent and knowledge was locked is therefore more worthy, without any doubt, that his repudiation not occur than this one. If it is said: the angry man is subject to obligation, and this one is not, for the pen is lifted from him; it is answered: yes, the matter is so, but it does not follow from his being subject to obligation that the ruling attaches through his mere formula, as passed; and how then the coerced man is subject to obligation and his repudiation is not valid, and the drunkard is subject to obligation, and the sick man is subject to obligation? It does not therefore follow from the servant's subjection to obligation that a state not befall him preventing the taking into account of his words and the annulment of his acts.

The twenty-fourth way: the limit of the word of repudiation is that it be a part of a cause; and the status only completes through the existence of its cause and the negation of its impediment; and the mere utterance is not a complete cause, by consensus of the imams, as passed. Then intent, knowledge and obligation are either the remainder of the cause's parts, or conditions within its requirement, or their absence an impediment to its effect; and according to the three estimations, the word of repudiation without them produces no effect. The one who makes occur the repudiation of the angry man, the drunkard, the coerced man and the one on whose tongue it runs without intent has only the mere cause or its part, without its condition nor the negation of its impediment: it is therefore not sufficient for the establishment of the status.

The twenty-fifth way: if his tongue slipped into repudiation without him wanting it, he is held regarding what is between him and Allah; and it is accepted from him judicially according to one of the two narrations from Ahmad, unless an indication denies him; and the second narration: he is held and it is not accepted from him judicially; and likewise said the companions of al-Shafi'i: when repudiation slipped onto his tongue without intent, it is idle speech, but the claim of the tongue's slip is not accepted unless an indication appears: they therefore accept it from him inwardly without the judicial ruling, except with an indication. And likewise said the companions of Malik: the one whose tongue slipped into repudiation, repudiation does not occur against him, and it is accepted in fatwa. And Abu Hanifa does not consider the tongue's slip an impediment to occurrence; and there are from him two narrations in the tongue's slip regarding manumission; and his companions established that the woman is owner of her intimacy through a cause in which intent and its absence are equal, like drunkenness, coercion, jest, and suckling by consensus: the disappearance of intimacy therefore does not differ in its cause according to intent or its absence, unlike manumission, for the cause through which he becomes owner of his soul differs according to intent or its absence. Abu Yusuf reported from Abu Hanifa the equalization between the two, then his companions differed: a group said the two are equal in occurrence, and a group said rather they are equal in non-occurrence. The intended meaning is that the tongue's slip into repudiation without intent from him is an impediment to its occurrence among the majority; and the angry man, if he knows of himself that his tongue slipped into repudiation without intent, he may remain in his marriage, and he is held in fatwa; as for its acceptance judicially, it is debated, and the most apparent is that if an apparent indication attesting the soundness of his word is established, it is accepted judicially, otherwise not; and violent anger is among the strongest of indications, especially as many of those who repudiate in the violence of anger swear by Allah at the utmost of their oaths that they did not intend repudiation, but that their tongue slipped: the majority therefore do not make repudiation occur against him, as the companions of Ahmad, al-Shafi'i and Malik declared explicitly; and as for its acceptance judicially, there are three views, the soundest being that if an apparent indication of the soundness of his word is established, it is accepted, otherwise not.

Distinction: among what shows that the angry man may speak in anger of what he does not want is what Muslim reported in his Sahih from Abu al-Zubayr, who heard Jabir ibn Abdallah say: I heard the messenger of Allah say:

"I am only a human being; I stipulated with my Lord that any servant among the Muslims whom I insult or revile, it be for him a charity and a reward."reported by Muslim

In the Musnad of Imam Ahmad, from Masruq, Aisha said: two men entered upon the Prophet; he treated them harshly and reviled them; I said: O messenger of Allah, good has befallen you, you have been given the good of these two; he said:

"Do you not know what my Lord stipulated with me? O Allah, any believer whom I revile, strike or curse, make it for him a forgiveness and well-being."reported by Ahmad in his Musnad

And in the two Sahihs, from Abu Hurayra, that he heard the Prophet say:

"O Allah, any believing servant whom I revile, make it for You a means of nearness on the Day of Resurrection."reported by Bukhari and Muslim

And in some wordings of the hadith: "I am only a human being: I am pleased as human beings are pleased, and I become angry as human beings become angry; any believer whom I revile or curse, make it for him a charity." Had the Prophet willed, he would not have supplicated by that in anger, nor stipulated with his Lord nor asked that the contrary of it be done to the one supplicated against; for the union of the will of two contraries is impossible; and he declared explicitly the will of one of the two by stipulating it with his Lord: this therefore indicates the absence of his will for what he supplicated in the state of anger. This while he is protected in anger as he is protected in pleasure, and he is owner of his formula through his act: how then the one who is not protected in his anger nor masters his formula, and whose anger acts and upon whom the devil plays?! When the angry man speaks of what he does not want nor wants its content, he is therefore in the rank of the coerced man to whom speech is driven, or who speaks of it by his choice without wanting its content.

If it is said: what you mentioned is contradicted by what indicates the occurrence of repudiation, for the angry man came to the cause by choice, and he wanted in the state of anger that the effect attach to it; the absence of his will does not harm therefore, for the taking into account of will is only in the state of utterance, unlike the coerced man, who is carried to speak of the cause without wanting the effect to attach to it; and unlike the drunkard overcome in his reason, for he is not subject to obligation, while the angry man is subject and choosing: there is therefore no way to the annulment of his word. The answer is to say: if choice means his pleasure and preference, he is not choosing; and if you meant that it occurred through his will with which he is not content nor with its effect, that by itself does not produce the effect attaching; for this choice is established for the coerced man and the drunkard: we do not require of the drunkard that he distinguish the earth from the sky, but what is required for the non-occurrence of the effect of his words is that he raves and mixes in his speech; and likewise the fevered and the sick man.