This fatwa is not just bad in law but also bad in theology, as it is not based on the Quran, the locus classicus of Islam. The Deoband muftis have been honest enough to concede that their recent articulation is grounded in the Hanafi law. It is common knowledge among Muslims that the Hanafi fiqh contains many provisions that are repugnant to reason. For instance, according to Al-Marghinani’s Hedaya, one of the most celebrated treatises of Hanafi legal thought, the wife of a missing or absconding husband can remarry only after a minimum of 90 years have elapsed from the day of his birth.
Not surprisingly, on the issue of divorce by a drunken husband, the Hedaya and other Hanafi books, including the oft-cited Al Radd al Muhtar of Ibn Abideen, state that if the liquor consumed has reached the prohibited level of intoxication [which is again a subjective issue] then the talaq uttered in such a state shall be held valid. It may be pointed out here that Ibn Abbas and Caliph Usman were of the view that talaq under the influence of drink was not effective because of the incapacity of the drunken person to exercise reason [see Bukhari]. But Hanafi jurists of the medieval period, in a weak attempt to bypass this opinion, justified their ruling, claiming that it was only aimed at discouraging the use of liquor. The question is, should the dissuasion of alcoholism be at the cost of a marriage where in most cases the affected party is the hapless wife and her innocent children?
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3:03 AM
Moderate Islamist here
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