Jurisprudential - legal studies of woman and family

Jurisprudential - legal studies of woman and family

A Jurisprudential and Legal Study of the Criterion of Thaybubah in Women

Document Type : Original Article

Author
Professor in Higher Level Seminary and Level 4 Graduate in the Seminary, Qom, Iran,
Abstract
There are differences of opinion as to the criterion of thayyebah (a widow or a divorcee), and basically, as to the women who are referred to as thayyebah and the group of girls who are called bakerah (virgin). Since these two terms are used opposite each other, many scholars in jurisprudential and legal books have explained only the criterion of bakerah, which consequently clarifies the meaning of thayyebah. Undoubtedly, this criterion has a great impact on how to choose a spouse, on the scope of spouses' authority, the amount of the wife's dower, the health of individuals, marital life, and society. In the law books that have dealt with this concept, marriage along with the removal of virginity has been mentioned as a sign of thaybubah, and the words of the jurists and their various references in different chapters imply four theories in this regard. Accepting each of these opinions in applying them to the controversial examples of virginity will have different effects and rulings. However, for the meaning of thaybubah as a characteristic that, with its existence, the guardian's permission is revoked in marriage, one cannot find any common ground between the chapter on the guardianship of father and grandfather and other jurisprudential chapters. Hence, we have to admit that the jurisprudential concept of thaybubah has different meanings; in the chapter on the guardianship of the fathers, the removal of virginity due to sexual intercourse causes thaybubah, and in other jurisprudential chapters, the removal of virginity is the criterion of thaybubah.
Keywords
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Aameli Jobai (Shahid Thani), Zayn al-Din ibn Ali. 1993. Masalek al-Afham ela Tanghih Sharae al-Islam (Paths of Understanding towards Revising the Laws of Islam), Qom: Islamic Teachings Institute, First Edition.  [in Arabic]
Aameli Nabti (Shahid Awwal), Mohammad ibn Makki. 1980. Al-Ghawaed wa al-Fawaed (Rules and Benefits), Qom: Mofid Bookstore, First Edition. [in Arabic]
Aameli, Mohammad ibn Hoseyn; Sawoji, Nezam ibn Hoseyn. 2008. Jame Abbasi wa Takmil An, Qom: Islamic Publications Office, First Edition. [in Arabic]
Bayat, Farhad; Bayat, Shirin. 2020. Sharh Jame Ghanun Madani (Comprehensive Description of Civil Law), Tehran: Arshad. [in Farsi]
Dayyani, Abd al-Rasul. 1999. Hoghugh Khanewadeh: Ezdewaj wa Enhelal An (Family Law: Marriage and Its Dissolution), Tehran: Balance. [in Farsi]
Farahidi, Khalil ibn Ahmad. 1990. Ketab al-Ayn (The Book of Eye), Qom: Hejrat Publication, Second Edition. [in Arabic]
Ghazwini, Ibrahim. 2011. Barresi Feghhi wa Hoghughi Khanewadeh (Jurisprudential and Legal Study of the Family), Tehran: New Way, First Edition. [in Farsi]
Gorji, Abu al-Ghasem. 1999. Barresi Tatbighi Hoghugh Khanewadeh (Comparative Study of Family Law), Tehran: University of Tehran. [in Farsi]
Helli, Hasan ibn Yusof. 2009. Tazkerah al-Foghaha (Notes for Jurists), Qom: Al al-Bayt (AS) Foundation, First Edition. [in Arabic]
Hemyari, Nashwan ibn Said. 1999. Shams al-Olum wa Dawa Kalam al-Arab men al-Kolum (Sun of Sciences and Medicine of Arab Speech from the Wound), Beirut: Contemporary Thought House, First Edition. [in Arabic]
Horr Aameli, Mohammad ibn al-Hasan. 1989.  Wasael al-Shiah (The Means of the Shiites), Qom: Al al-Bayt (AS) Institute, First Edition. [in Arabic]
Hoseyni Waseti Zobeydi, Seyyed Mohammad Morteza. 1994. Taj al-Arus men Jawaher al-Ghamus (Bride Crown from Dictionary Jewels), Beirut: Institute of Thought for Printing, Publishing and Distribution, First Edition. [in Arabic]
Ibn Barraj Terablosi, Abd al-Aziz; Tusi, Mohammad ibn Hasan; Seyyed Morteza. 1991. Jawaher al-Feghh wa Talih Resalatan le Sayyed al-Mortaza wa al-Sheikh al-Tusi (The Jewels of Jurisprudence Followed by Two Treatises by Sayyed Mortaza and Sheikh Tusi), Collected by Ibrahim Bahadori, Qom: Islamic Publications Office, First Edition. [in Arabic]
Ibn Edris Helli, Mohammad ibn Mansur. 2008. Ajwabah Masael wa Rasael fi Mokhtalaf Fonun al-Marefah (Answers to Questions and Treatises in the Various Ways of Knowledge), Qom: Dalil Ma, First Edition. [in Arabic]
Ibn Manzur, Mohammad ibn Mokarram. 1993. Lesan al-Arab (Language of Arabs), Beirut: Institute of Thought for Printing, Publishing and Distribution, Sader House. [in Arabic]
Imami, Seyyed Hasan. 2012. Hoghugh Madani (Civil Law), Tehran: Islamiyeh. [in Arabic]
Jafari Langerudi, Mohammad Jafar. 2012. Mabsut dar Terminoloji Hoghugh (Detailed in Legal Terminology), Tehran: Treasure of Knowledge. [in Farsi]
Johari, Ismail ibn Hammad. 1990. Al-Sehah: Taj al-Loghah wa Sehah al-Arabiyah, Beirut: Institute of Knowledge for Millions, First Edition. [in Arabic]
Katuziyan, Naser. 2015. Doreh Hoghugh Madani (Family Civil Rights), Tehran: Enteshar Joint-Stock Company. [in Farsi]
Musawi Khoyi, Seyyed Abu al-Ghasem. 1989. Mabani al-Orwah al-Wothgha, Qom: Knowledge House Publication- Lotfi, First Edition. [in Arabic]
Musawi Khoyi, Seyyed Abu al-Ghasem. 1990. Mojam Rejal al-Hadith wa Tafsil Tabaghat al-Rejal, Qom: The Office of the Grand Ayatollah Khoyi. [in Arabic]
Najafi, Mohammad Hasan. 1984. Jawaher al-Kalam fi Sharh Sharae al-Islam (Jewelry Words in the Explanation of the Islamic Law), Beirut: Arab Heritage Revival House, Seventh Edition. [in Arabic]
Naraghi, Ahmad ibn Mohammad Mahdi. 1995. Mostanad al-Shia fi Ahkam al-Shariah (Evidence of Shiism in the Rules of Sharia), Qom: Al al-Bayt (AS) Foundation, First Edition. [in Arabic]
Nuri, Mirza Hosayn. 1988. Mostadrak al-Wasael wa Mostanbat al-Masael, Beirut: Al al-Bayt Institute, First Edition. [in Arabic]
Sabzewari, Mohammad Bagher ibn Mohammad Momen. 2002. Kefayah al-Ahkam (Self-sufficiency of Rulings), Qom: Islamic Publications Press, First Edition. [in Arabic]
Sadi, Abu Jayb. 1988. Al-Ghamus al-Feghhi: Loghatan wa Estelahan (Jurisprudence Dictionary: Verbally and Technically), Damascus: Thought House, Second Edition. [in Arabic]
Sadr, Seyyed Mohammad. 1999. Mawara al-Feghh (Beyond Jurisprudence), Beirut: Al-Azwa House for Printing, Publishing and Distribution, First Edition. [in Arabic]
Safayi, Hoseyn. 1999. Hoghugh Khanewadeh (Family Law), Tehran: University of Tehran
Shams, Abdollah. 2017. Ghanun Madani wa Masuliyat Madani (Civil Law and Civil Liability), Tehran: Darak. [in Farsi]
Sharif Morteza, Ali ibn Hosayn. 1995. Al-Entesar fi Enferadat al-Imamiyyah (Victory in the Distinctions of Imamiyyah), Qom: Islamic Publications Office, First Edition. [in Farsi]
Shobeyri Zanjani, Seyyed Musa. 1998. Ketab al-Nekah (Book of Marriage), Qom: Raypardaz Research Institute, First Edition. [in Arabic]
Tabatabayi Haeri, Seyyed Ali ibn Mohammad. 1997. Riyaz al-Masael, Qom: Al al-Bayt Institute, First Edition. [in Arabic]
Tabatabayi Hakim, Sayyed Mohsen. 1996. Mostamsak al-Orwah al-Wothgha, Qom: Exegesis Institute. [in Arabic]
Tabatabayi Yazdi, Sayyed Mohammad Kazem. 1998. Al-Orwah al-Wothgha fima Taommo behi al-Balwa, Prepared by Ahmad Mohseni Sabzewari, Qom: Islamic Publications Office, First Edition. [in Arabic]
Tabatabayi Yazdi, Sayyed Mohammad Kazem. 2007. Al-Orwah al-Wothgha ma al-Talighat, Qom: Imam Ali ibn Abi Talib School Publications, First Edition. [in Arabic]
Toreyhi, Fakhr al-Din. 1996. Majma al-Bahrayn (The Union of the Two Seas), Tehran: Mortazawi Bookstore [in Arabic].
Tusi, Mohammad ibn Hasan. 1987. Al-Khelaf, Qom: Islamic Publications Office, First Edition. [in Arabic]
Tusi, Mohammad ibn Hasan. 2008. Al-Mabsut fi Feghh al-Emamiyyah (Detailed in Imami Jurisprudence), Tehran: Mortazavi Publication for the Revival of Jafari Works, Third Edition. [in Arabic]]
Volume 4, Issue 8
February 2022
Pages 135-156

  • Receive Date 29 November 2021
  • Revise Date 07 December 2021
  • Accept Date 25 December 2021