Fatwa ID: 08056

Answered by Alimah Humairah Badshah

Question:
Assalamualaykum,

Husband and wife divorce once but get back together and then time passes and they have another divorce which they again got back together after but this divorce caused a conflict between them now though as they had gotten their third and final divorce and when asking mufti for verification on all three divorces, both husband and wife agreed that he was half asleep during one of them but then after asking a mufti and receiving verification that one was not valid the husband changed his mind and said he was awake so divorce does count but the wife is certain she remembers her attempts at waking him and that situation is not unlikely to happen because he many times had gone to sleep during arguments etc and even woken up the next day thinking a different situation had happened to the real one.

The wife doesn’t believe the husbands recollection over her own especially since he had previously stated multiple times he was asleep, and the husband has also previously stated that he cannot remember the second divorce either but now says he remembers it to be a different situation than the wife remembers, is there anyway to see who is correct?

In the name of Allah, the Most Gracious, the Most Merciful

Answer:
Wa’alaykumussalaam,

While it is correct that the divorce of a person who was asleep or experiencing a period of insanity does not count as a divorce, that does not appear to be the case here.

In situations of dispute, since the divorce comes from the husband and only he could truly know his own state, it would be his opinion regarding his awareness which will be taken. It is not a problem that he changed his mind from his original stance: his new statement would be considered a confession of divorce and will be accepted. Since you do not believe him you would begin counting your iddah from his confession.

While there is a chance that he was experiencing a state of delusion and a confusion of reality which would constitute insanity, the default assumption would be that he was not experiencing such a state, especially if he is not usually in a state of insanity. Additionally, while he was in a state of sanity, he has professed that he was sane and awake at the time of the divorce. Therefore, the divorce in question will be considered as having taken place unless you can prove your recollection of events to be true.

It would be advisable for you both to consult a qualified mental health professional to determine whether there is any way to prove whether your husband was definitely experiencing a state of insanity during his pronouncement of divorce. You may also wish to return to the mufti you consulted previously and seek his opinion on the updated facts of your case. As sleep or insanity seems unlikely to be provable, it would be better for you to observe the tenants of iddah and afterwards consider yourself fully divorced without the possibility of immediate remarriage. Your ex-husband would be a non-mahram for you and it would not be permissible for you to be alone in seclusion with him.

Only Allah (عز و جل) knows best.
Written by Alimah Humairah Badshah
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham

References:
ويقع الطلاق كل زوج إذا كان عاقلاً بالغاً، ولا يقع طلاق الصبي والمجنون والنائم، وإذا تزوج العبد ثم طلق وقع طلاقه
Al-Lubab Fi Sharh Al-Kitaab (Al-Maktaba Al-‘Ilmiyyah Beirut-Lebanon, https://shamela.ws) v.3 p.40

رَجُلٌ عُرِفَ أَنَّهُ كَانَ مَجْنُونًا فَقَالَتْ لَهُ امْرَأَتُهُ طَلَّقْتَنِي الْبَارِحَةَ، فَقَالَ أَصَابَنِي الْجُنُونُ وَلَا يُعْرَفُ ذَلِكَ إلَّا بِقَوْلِهِ كَانَ الْقَوْلُ قَوْلُهُ
Kitab Al-Bahr Al-Raa’iq (Daar Al-Kutub Al-Islaamiyyah, https://shamela.ws) v.3 p.268

قَوْلُهُ وَالْمَجْنُونُ) قَالَ فِي التَّلْوِيحِ: الْجُنُونُ اخْتِلَالُ الْقُوَّةِ الْمُمَيِّزَةِ بَيْنَ الْأُمُورِ الْحَسَنَةِ وَالْقَبِيحَةِ الْمُدْرِكَةِ لِلْعَوَاقِبِ، بِأَنْ لَا تَظْهَرَ آثَارُهُ وَتَتَعَطَّلُ أَفْعَالُهَا، إمَّا لِنُقْصَانِ جَبَلٍ عَلَيْهِ دِمَاغُهُ فِي أَصْلِ الْخِلْقَةِ، وَإِمَّا لِخُرُوجِ مِزَاجِ الدِّمَاغِ عَنْ الِاعْتِدَالِ بِسَبَبِ خَلْطٍ أَوْ آفَةٍ، وَإِمَّا لِاسْتِيلَاءِ الشَّيْطَانِ عَلَيْهِ وَإِلْقَاءِ الْخَيَالَاتِ الْفَاسِدَةِ إلَيْهِ بِحَيْثُ يَفْرَحُ وَيَفْزَعُ مِنْ غَيْرِ مَا يَصْلُحُ سَبَبًا. اهـ. وَفِي الْبَحْرِ عَنْ الْخَانِيَّةِ: رَجُلٌ عَرَفَ أَنَّهُ كَانَ مَجْنُونًا فَقَالَتْ لَهُ امْرَأَتُهُ: طَلَّقْتَنِي الْبَارِحَةَ فَقَالَ: أَصَابَنِي الْجُنُونُ وَلَا يَعْرِفُ ذَلِكَ إلَّا بِقَوْلِهِ كَانَ الْقَوْلُ قَوْلَهُ
Radd Al-Muhtaar (Halabi ed., Daar Al-Fikr, https://shamela.ws) v.3 p.243

إذَا أَقَرَّ أَنَّهُ طَلَّقَهَا مُنْذُ ثَلَاثَةِ أَشْهُرٍ، فَإِنْ كَانَ تَزَوَّجَهَا مُنْذُ شَهْرٍ لَمْ يَقَعْ عَلَيْهَا شَيْءٌ، وَإِنْ كَانَ تَزَوَّجَهَا مُنْذُ أَرْبَعَةِ أَشْهُرٍ وَقَعَ الطَّلَاقُ عَلَيْهَا إلَّا أَنَّهَا إنْ صَدَّقَتْهُ فِي الْإِسْنَادِ فَعِدَّتُهَا مِنْ حِينِ وَقَعَ الطَّلَاقُ عَلَيْهَا، وَإِنْ كَذَّبَتْهُ فِي الْإِسْنَادِ فَعِدَّتُهَا مِنْ وَقْتِ إقْرَارِ الزَّوْجِ بِهِ، كَذَا فِي الْمَبْسُوطِ
Al-Fataawa Al-Hindiyyah (Daar Al-Fikr, https://shamela.ws) v.4 p.207