Divorce in a Drunk State: Are Husband and Wife Automatically Divorced?

Divorce in a Drunk State. In family dynamics, separation is a frequent event. It might represent the ultimate step in a drawn-out dispute, yet it can also arise from a hasty choice following a fleeting surge of rage. While Islam permits divorce, it is an action that Allah despises. Hence, it is not surprising that scholars throughout the ages reflect on it with great seriousness, not exclusively focusing on the legalities and when divorce is permissible, but also examining the circumstances and states of a person when declaring divorce.

For instance, divorce under pressure, divorce during insanity, or even the discourse among scholars surrounding divorce in a state of sleep. Beyond these circumstances and conditions, one area that sparks considerable debate in fiqh is when a husband pronounces divorce while inebriated. In this scenario, an individual is in a state of mental impairment and a lack of awareness.

It’s important to note that drunkenness isn’t always a deliberate act; there are rare instances of individuals consuming alcohol unknowingly. More commonly, however, it is the result of intentional behavior. Thus, is the divorce stated by this inebriated individual deemed legitimate? Or is it rendered invalid due to a lapse in consciousness? This article will delve into and examine the various interpretations of scholars concerning the legitimacy of divorce declared while intoxicated.

Divorce in an Inebriated State

Scholars hold differing views on the legitimacy of a divorce declared while intoxicated. Some argue that the divorce stands valid, positing that drunkenness arises from a conscious effort. Conversely, others contend that a divorce uttered in a state of intoxication is invalid, as a person devoid of full awareness cannot grasp the implications of their words, thus aligning their situation with that of someone mentally impaired or coerced.

These differing perspectives are highlighted by Imam Abul Husain Yahya bin Abil Khair al-Umrani (died 558 AH), who elucidated in his writings that an individual who consumes alcohol to the point of inebriation, according to the widely accepted view in the Shafi’i school, renders their statements valid and divorce takes place.

Nonetheless, he notes that Imam Shafi’i, in his earlier stance (qaul qadim), held two views on the matter of a husband’s verbal declaration of dhihar toward his wife while intoxicated: one being that it indeed occurs and requires atonement, while the other being that it does not take place. If there exist two opinions regarding a drunk husband’s words in the case of dhihar, the same reasoning applies to the divorce pronouncement of an inebriated husband. Within his writings, Abul Husain al-Umrani remarks:

وَحَكَى الْمُزَنِيُّ أَنَّهُ قَالَ فِي الْقَدِيْمِ: فِي ظِهَارِ السَّكْرَانِ قَوْلاَنِ. فَمِنْ أَصْحَابِنَا مَنْ قَالَ: إِذَا ثَبَتَ هَذَا، كَانَ فِي طَلاَقِهِ أَيْضًا قَوْلَانِ، أَحَدُهُمَا: لاَ يَقَعُ، وَإِلَيْهِ ذَهَبَ رَبِيْعَةُ وَاللَّيْثُ وَدَاوُدُ وَأَبُو ثَوْرٍ وَالْمُزَنِيُّ، لِأَنَّهُ زَالَ عَقْلُهُ فَأَشْبَهَ الْمَجْنُوْنَ. وَالثَّانِي: يَقَعُ طَلاَقُهُ

Meaning: Al-Muzani reported that Imam al-Shaafa’i stated in his earlier view: “Regarding dhihar declared by an inebriated individual, there are two perspectives. Some of our scholars argue that if these two viewpoints are established, there are also two perspectives regarding the divorce of an intoxicated individual:

Firstly, the divorce is not valid. This opinion is held by Rabi’ah, al-Laits, Dawud, Abu Tsaur, and al-Muzani, as the inebriated person has lost their reason, making them comparable to a lunatic.

Secondly, the divorce is valid.” (al-Bayan fi Mazhabil Imam ash-Shafi’i, [Jeddah: Darul Minhaj, 2000 CE], volume X, pages 69-70).

Of the two contrasting opinions mentioned above, the most favored and accepted stance within the Shafi’i madhhab is the latter, asserting that divorce during intoxication is valid. Imam Abul Husain al-Umrani elaborates on the ‘illat (legal rationale) behind the divorce enacted by a drunken individual.

Some believe that his divorce is valid as a punitive measure or strict sanction (taghlidz) due to his actions. According to this reasoning, any actions that result in a tougher ruling are deemed valid, such as divorce, apostasy, emancipating slaves, and statements that result in the application of hadd punishment.

Others contend that since his intoxication arises from sin, there are no concessions in the ruling, and he should be regarded like a completely sober individual. This is the prevailing view, deeming all his actions, regardless of their weight, to be valid and legally obligatory. If someone becomes intoxicated by the use of medication or something non-alcoholic, the ruling varies based on intent.

If he consumed it out of necessity (hajah), he is considered to be akin to a madman. Conversely, if he ingested it purposely to alter his state of mind, he falls under the same ruling as someone who has consumed alcohol or nabidz. (Abul Husayn al-Umrani, X/70). The stance that divorcing while intoxicated is regarded as valid due to the taghlidz or harsh sanctions is similarly noted by Imam Abul Hasan Ali bin Muhammad al-Baghdadi, more commonly known as Imam al-Mawardi (deceased 450 AH), in his elucidated work.

طَلَاق الْمَجْنُونِ لَا يَقَعُ تَخْفِيفًا وَطَلَاق السَّكْرَانِ يَقَعُ تَغْلِيظًا، لِأَنَّ الْمَجْنُونَ لَيْسَ بِعَاصٍ وَالسَّكْرَانَ عَاصٍ

It means: “The divorce of a madman does not take place as a form of leniency, while the divorce of a drunkard takes place as a form of aggravation, because the madman does not sin, while the drunkard is a sinner.” (al-Hawi al-Kabir fi Fiqhi Mazhabil Imam ash-Shafi’i, [Beirut: Darul Fikr, 1999], volume X, page 268). Meanwhile, Imam Jalaluddin al-Mahalli (d. 864 AH) in one of his books quoted Imam ash-Shafi’i’s opinion that drunk people are divided into three categories, namely:

(1) the appearance of high spirits and passion, which is when the alcohol begins to enter his body but has not fully controlled him;

(2) the state of severe intoxication, which is when he is completely stoned to the point of falling down like a fainting person, unable to speak and barely able to move. And

(3) the middle state between the two, which is when his state begins to be chaotic, his speech and actions are no longer organized but he still has the ability to distinguish, speak, and understand what others are saying and what he himself is saying.

In these three conditions, the scholars differed on the issue of whether the divorce of a drunk person is valid according to his condition and state of intoxication. The difference, as noted by Imam al-Mahalli, states in his book:

فَهَذِهِ الثَّالِثَةُ مَحلُّ الْخِلَافِ فِي طَلَاقِ السَّكْرَانِ، وَأَمَّا الْأُولَى فَيَنْفُذُ الطَّلَاقُ فِيهَا قَطْعًا لِبَقَاءِ الْعَقْلِ. وَأَمَّا الثَّانِيَةُ فَلَا يَنْفُذُ فِيهَا إذْ لَا قَصْدَ لَهُ كَالْمُغْمَى عَلَيْهِ وَمِنْهُمْ مَنْ جَعَلَهُ عَلَى الْخِلَافِ لِتَعَدِّيهِ بِالتَّسَبُّبِ إلَى هَذِهِ الْحَالَةِ

“This third condition is the point of difference of opinion concerning the divorce of a drunk person. In the first case, the divorce is definitely valid, because he still has his mind. In the second case, the divorce is not valid because he has no intention or consciousness, like an unconscious person. However, some of the scholars still regard it as a matter of dispute, because the person has deliberately brought himself into that state (of extreme drunkenness).” (Kanzur Raghibin Syarh Minhajit Thalibin, [Beirut: Darul Kutub Ilmiah, t.t], volume III, page 864).

Apart from the various opinions of the scholars above, it is important to note how this issue is positioned in Islamic law in Indonesia. In the Compilation of Islamic Law (KHI), although it does not explicitly mention the term “drunkenness”, it is emphasized that divorce is only considered valid if it is imposed in a sober and conscious state before a Religious Court session. This is reflected in Article 117 of the KHI, which states that, “Talak is a pledge by the husband before a session of the Religious Court which becomes one of the causes of the dissolution of marriage.” Thus, divorce must go through a formal legal process, so that if the husband is heavily intoxicated (unconscious) due to alcohol and other intoxicating substances, the Religious Court will not grant the request for divorce because it is considered not to fulfill legal awareness. Wallahu a’lam bisshawab.