عبدالصمد مرتضوی

Although, Islamic jurisprudence scholars agree on the permissibility of divorce in Islam, they adopt different views on what type of Islamic ruling it should be assigned. A close analysis of the scholars’ stances reveals that their lack of consensus on this issue is mostly based on the popular hadith of “ابغض الحلال…” and other related hadiths. These hadiths mostly have issues with their chain of narrators. Moreover, they are paradoxical in nature due to considering divorce both ḥalāl and at the same time a much-hated act. Such a paradox defies logic. Still another point that defies logic and wisdom is to consider the same type of Islamic ruling for a divorce based on whims and a divorce which is well-justified in Islam. Needless to say that the first one lacks any Islamic justification. The present study, which adopts a descriptive-analytical approach, first scrutinizes the narrations related to divorce from both content and their chain of narrators’ points of view, and then concludes that in different situations, different types of Islamic rulings should be considered for divorce and it is too simplistic to consider it as makrũḥ or mubāḥ in all cases without taking their situational conditions into account.

The divorce decree for an intoxicated individual, who has lost will, sensibility, and consciousness, has always been a matter of debate among Islamic jurists. The divorce decree for intoxication because of wine drinking is an appropriate analogy for the divorce decree for an addict that is intoxicated as a result of opium consumption. There is consensus among the jurists that non-volitional intoxication does not validate the divorce decree; however, there is disagreement about the divorce verdict for volitional intoxication. A group of the Companions of the Prophet Muhammad, their successors, major Ḥanafī and Shāfiʿī scholars, jurists like Qasim, Tawus, Rabia, Lais, Isḥāq, Abu Thawr, Ibn Taymiyyah, Ibn Qayyim, Shawkani, and most of the contemporary Sunni  and Jaʿfari jurists have invalidated volitional intoxication divorce decree. In the present study, which has been conducted based on descriptive-analytical method, while there will be a comparison between “the divorce decree for an addict intoxicated due to opium consumption” and “divorce decree due to volitional intoxication,” the opinions of the proponents and opponents of the above-mentioned issue will be analyzed. Finally, it will be argued that the reasoning of the opponents of volitional intoxication divorce decree is stronger in maintaining that a volitional intoxicated individual lacks the ability to utter the words solemnizing the divorce or comprehend its meaning, and therefore, that individual is regarded as demented. In addition, as the decrees based on dementia cases are not diversified according to the difference in their causes, the validity of divorce due to volitional intoxication is not established. Consequently, the decree for non-establishment of the divorce that is resulted from opium intoxication is regarded as the dominant viewpoint.

In narratives quoted by holy prophet (pbuh) and the Imams (pbut), divorce is considered as a hateful subject and those who divorce their wives with no sufficient reasons are seriously criticized. Several narratives in Shiite or Sunnite texts and many other references suggest Imam Hassan (pbuh) as a Mitlaq (The Divorcer) who had gotten married with several women but divorced them consequently without any specific reasons. Such narratives are in conflict not only with the narratives which call him the chief of the youth of Eden, but also with his highly religious rank and adorable piety. A close investigation through Sunni narratives indicates that being Mitlaq has never been mentioned in any of the six main Sunni books and there are only two narratives in this regard in Musnnaf Ibn Abi Shaybah, the narrator of one of which is accused of negligence and hallucination. On the other hand, though there seems to be a rather large number of such narratives among Shia narratives, they can’t be counted on due to their anonymous and weak narrators or the undependability of the documents. Not only are the accounts narrated in history books written with a large temporal distance from the life time of Imam Hassan (pbuh), but also due to discontinuity of the document, narrator’s weakness and other such deficiencies none of them can be relied on. Therefore, it can be concluded that with regard to the accurate narratives regarding commitment of Imam Hassan (pbuh) to religious commands and his avoidance of illegitimacy or even Makruhat on the one hand, and the inaccuracy of the narratives regarding his being Mitlaq on the other, attributing being Mitlaq to Imam Hassan (pbuh) contradicts the reality and, though noted, has no scientific basis.

Abu Hanifeh believed that Hadith after Qur’an is the most important source for understanding Ahkam of Islam, and in this case, he had a specific categorization for Hadith. He in the case of Motevater and Mashhur Hadith was submission and didn’t use analogy (Ghiyas) for them. Abu Hanifeh was considerate in hearing Akhbar Ahad but he didn’t deny them at all. Abu Hanifeh also preceded all type of Hadith to analogy (Ghiyas) and if there wasn’t any reliable Nas, he would use analogy (Ghiyas). The analogy (Ghiyas) that Abu Hanifeh used it was an analogy which depends on Qur’an and Sonnah, and this analogy weren’t only relying on logic and desires.