Question Summary:
A person is effected with Sihr/Magic and in such condition gives Talaq. Does the Talaq occur?

Question Detail:

A person is effected with sehar (magic) and his body is possessed by a jin (devil) and his mental capabilities are not proper or normal as normal people. He is under spiritual treatment.

He divorced his wife a few years ago for the first time and then they lived together. After a year, on the phone he said divorce for the second time while his wife did not hear it and again they lived together. Then after a year he said divorce for the third time while texting his wife when she asked to be separated. He said, “You consider it to be Talāq”? Then, on the same day they got into a fight and he said Talāq for the fourth time.
This person did not know that it will separate his wife from him. He thought Rujū (taking the wife back) cancels the utterance of Talāq. Now the husband and the wife want to live together.
Kindly tell us what Shari’āh says regarding this matter since some of the ulamā have said that in this condition, the Talāq of such a person is not valid.

 

Answer :

In the Name of Allah, the Most Gracious, the Most Merciful. 
As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.
In principal, giving three Talāqs constitutes a Talāq Al-Mughalladhah (an irrevocable Talāq). Regarding an insane person, there are two types of situations:
 
1.      Majnoon (insane)
2.      Mā’tūh (mental instability), which means that at times he is insane and at times he is sane.
 
The ruling for the second type of a person (Mā’tūh) is that, if he utters the words of Talāq in the state of insanity, the Talāq will not take place. If he utters the words of Talāq in the state of sanity, it will constitute a Talāq.[i]
According to what you have mentioned in your query, it seems like this person is a Mā’tūh. You have stated that this person did not know that giving Talāq will separate him from his wife. This clearly shows that, at the time of uttering the words of Talāq, he was aware of what he was saying. You have also stated that he thought Rujū (taking the wife back) cancels the Talāq.[ii] This also proves that he was sane since he constantly uttered the words of Talāq thinking that Rujū will cancel the Talāq. Ignorance is not an excuse in Shari’āh.
Furthermore, texting the words of “Talāq” to his wife also prove that he was sane at the time of texting since an insane person does not have the ability to go to the text option and precisely type the words of Talāq.
In your case, Talāq Al-Mughalladhah (an irrevocable Talāq) of this person has clearly taken place which means that after the third Talāq, his wife had become Al-Mughalladhah and she was no longer his wife. Hence, it is not permissible for him to marry her until she marries someone else and the marriage has been consummated. Only then it will be permissible for him to marry her.

And Allah Ta’āla Knows Best
Mawlana Abdul Hannan Nizami,
Student Darul Iftaa
USA
 
Checked and Approved by,
Mufti Husain Kadodia.
www.daruliftaa.net