سوال

My husband suffers from a serious mental illness. He has bipolar disorder which means that he goes into both manic and depressive episodes. He was diagnosed by a psychiatrist in December 2018 and is on medication for it. We have been married for 4 years, and we have twins together. Our marriage was very good, alhamdullilah, until about a year ago when signs of his illness began. When he is manic, he has lots of rage, he has no impulse control and behaves in a way completely out of character. He says strange things and treats everyone very badly. He can hallucinate and become paranoid. His condition has been getting worse. He had 5 bike accidents in 2 weeks. On chandrat (Day before Eid) we had a big fight because he was saying terrible things to me, so I was very upset. Suddenly, he said he would divorce me, then he slapped me. This was the first time in my life he raised his hand on me then after he said sorry, I didn't mean to do that and later He started yelling he has never said anything about divorce before. I was so upset. At the time he was sitting with his mother, who said that he was saying strange things to her before which did not make any sense and she had been trying to calm him. He was highly agitated, screaming at everyone and swearing at me going crazy saying things he has never said before. He went crazy with all his family and continued to act manic and agitated. I went straight to his mother. She said you should go to your mother’s house; he is not conscious he can say that word (Talaq) then I called my father and he came to pick me up. Since then, in the last few days his behavior and psychosis got so much worse he was having delusions and going completely crazy. He lost his bike, his phone, his wallet, he broke a mirror with a punch and got injured very badly. Now I'm here at my mother's place. He used to call me daily and say stupid things. One night at 4am he called me and said tell me if you have affairs with my father, brother, don't lie or I'll divorce you. I started to calm him down and said “we have a family, think about our kids, but he didn't listen and said I divorce you 2 times. Then I gave the phone to my mother, and she tried to make him understand. After that his family consulted a doctor. They found out that he had stopped taking his medication about a week ago because he believed it was killing him, and that his medicine dosage has been massively insufficient, so they immediately doubled it. He has now gone into a depressive state and is crying constantly and talking about self-harm. The doctor said he has bipolar disorder. Now he has started taking medication. Yesterday I asked him why he did that? He said I don't remember exactly what happened, you should have shut my mouth when I was saying these words, I said we were on a phone call. How could I stop you? He said I don't remember. He is not fully conscious, but he is now in control anger. Now I need to know if our divorce is valid or not. He was very obviously not in his right mind when he said it, he was enraged, off his medication and having an extremely psychotic manic episode at the time. He also previously never expressed any desire for divorce, but if it was a valid divorce then I need to know.

Clarification (Tanqeeh): The petitioner (Sa'ilah) was contacted three times to submit the husband's medical records; however, no response was received.

اَلجَوَابْ بِاسْمِ مُلْہِمِ الصَّوَابْ

In the stated case, if at the time of pronouncing the words of divorce, the husband’s mental state due to Bipolar Disorder or the omission of medication was such that he was not in his senses, lacked any perception (Idraak) of his words or their consequences, and now has no memory of the incident, then according to Islamic Law, he falls under the ruling of the mentally unsound (Majnun). According to the Jurists, a divorce pronounced in such a state of unconsciousness, where the intellect is overpowered (Maghloob-ul-Aql), does not take effect.

Since the wife is also satisfied that he had lost his mental equilibrium (Zehni Tawazun) at that time, the divorce has not occurred and the Nikkah remains intact as before.

However, if the reality is contrary to this and the husband had the perception (Idraak) of his words and speech at the time of pronouncing divorce, then in such a case, two divorces (Talaq-e-Raj’i) have occurred. Now, if the waiting period (Iddah) has not expired, the husband can perform a revocation (Ruju). If the waiting period (Iddah) has been completed, then a new Nikkah with a new dower (Mahr) in the presence of witnesses will be mandatory. It must be clarified that after this, the husband will only retain the right of only one divorce, the exercise of which would result in total separation (Talaq-e-Mughallazah).

Therefore, the requirement of precaution (Ihtiyat) is that for the satisfaction of both parties and to avoid doubts, a renewal of marriage (Tajdid-e-Nikkah) should be performed, so that the future Marital life (Azdawaji Zindagi) can be spent without any ambiguity.

الاختيار لتعليل المختار (4/ 149):

ومن غلب على عقله بوجه من الوجوه كالمبرسم والمعتوه ومن سقى شيئا فزال عقله لما بينا، ومن يجن ويفيق ففي حال جنونه له أحكام المجانين، وفي حال إفاقته أحكام العقلاء، وردة السكران ليست بشيء استحسانا، وإسلامه صحيح لأنه يحتمل أن يكون عن اعتقاد أو لا.

الأصل للشيباني (4/ 553):

وإذا خلع المعتوه امرأته أو طلقها فذلك باطل لا يجوز، وهو بمنزلة الصبي في ذلك، وهي امرأته. وكذلك المجنون الذي يجن ويفيق إذا فعل ذلك في حال جنونه. وإذا فعل ذلك في حال إفاقته فهو جائز عليه. وكذلك المغمى عليه من مرض أو ذهاب عقل من مرض أو غيره فإنه لا يجوز عليه خلع ولا طلاق.

رد المحتار على الدر المختار(452/4):

مطلب في طلاق المدهوش : وقال في الخيرية: غلط من فسره هنا بالتحير، إذ لا يلزم من التحير وهو التردد في الأمر ذهاب العقل. ‌وسئل ‌نظما ‌فيمن ‌طلق‌زوجته ثلاثا في مجلس القاضي وهو مغتاظ مدهوش، أجاب نظما أيضا بأن الدهش من أقسام الجنون فلا يقع، وإذا كان يعتاده بأن عرف منه الدهش مرة يصدق بلا برهان. اهـ. قلت: وللحافظ ابن القيم الحنبلي رسالة في طلاق الغضبان. قال فيها: إنه على ثلاثة أقسام: أحدها ... والثاني أن يبلغ النهاية فلا يعلم ما يقول ولا يريده، فهذا لا ريب أنه لا ينفذ شيء من أقواله.الثالث ... والذي يظهر لي أن كلا من المدهوش والغضبان لا يلزم فيه أن يكون بحيث لا يعلم ما يقول، بل يكتفى فيه بغلبة الهذيان واختلاط الجد بالهزل، كما هو المفتى به في السكران على ما مر ولا ينافيه تعريف الدهش بذهاب العقل، فإن الجنون فنون ولذا فسره في البحر باختلال العقل وأدخل فيه العته والبرسام والإغماء والدهش.