Jurisprudential - legal studies of woman and family

Jurisprudential - legal studies of woman and family

Theory of "Wife's Pervasive Distress and Constriction" in Ruler's Divorce from the Point of View of Jurisprudence and Civil Law

Document Type : Original Article

Authors
hamid negaresh 1
ali karshenas 2
1 Associate Professor, Department of Islamic Philosophy and Theology, Imam Sadegh (AS) Research Institute of Islamic Sciences, Qom, Iran
2 Assistant Professor, Department of Jurisprudence and Law, Imam Sadegh (AS) Research Institute of Islamic Sciences, Qom, Iran
Abstract
The background of the research on the ruler's divorce goes back to the jurisprudential book al-Moghnaah by Sheikh Mofid. Among the problems of today's society is the increase in the number of wives turning to the ruler for divorce petitions, a problem that is caused by the reduction of the wife's tolerance of the hardships of life. According to narrations, divorce is the most hated divine law and also a threat to the existence of the family. The theory of "Wife's Pervasive Distress and Constriction" aims to limit this social problem to specific examples that have not been considered in current research studies. From the point of view of jurisprudence and civil law, divorce is firstly and independently the right of the husband, but in cases where the wife is in severe distress and the husband refuses to have good company or divorce her, or divorce is impossible on his part, the ruler takes charge of the divorce. Therefore, the main question of our research is: What is the theory of "Wife's Pervasive Distress and Constriction" in the ruler's divorce from the point of view of jurisprudence and civil law? The method of this research is descriptive and analytical. The findings of the paper show that according to some verses of the Holy Quran as well as authentic narrations and other reasons, the two concepts of "mis-association" and "harmful retention" are related to the ruler's divorce, and the right of the wife to refer to the ruler is reserved for the time of pervasive (severe) distress and constriction
Keywords
Divorce
Pervasive Distress and Constriction
Ruler
Retention
Release
Subjects
The Holy Quran. 2013. Translated by Naser Makarem Shirazi, Tehran: Aabedzadeh.
Al Kashef al-Gheta, Mohammad Hosayn. n.d. Tahrir al-Majallah, Najaf: Mortazawi Press. [in Arabic]
Alawi Ghazwini, Seyyed Ali. 1997. "Barresi Nazariyeh Talagh Hakem wa Mahiyat Hoghughi An (Examining the Ruler's Divorce Theory and Its Legal Nature)", in: Mofid Letter, no. 11, pp. 109-144. [in Farsi]
Alawi Ghazwini, Seyyed Ali; Gheshlaghi, Soheyl. 2016. "Athar Noshuz Zoj dar Talagh be Darkhast Zojeh, az Manzar Feghh wa Hoghugh (The Effect of the Husband's Recalcitrance in Divorce at the Request of the Wife from the Point of View of Jurisprudence and Law)", in: Jurisprudence and Family Law, no. 65, pp. 107-130. [in Farsi]
Amini, Ali Reza; Ayati, Mohammad Reza. 1999. Tahrir al-Rawzah fi Sharh al-Lomah, Tehran: Commercial Publishing Company. [in Arabic]
Azhari, Mohammad ibn Ahmad. 2001. Tahzib al-Loghah (Refinement of Language), Beirut: Arab Heritage Revival House. [in Arabic]
Bahrani, Yusof ibn Ahmad. n.d. Al-Hadaegh al-Nazerah fi Ahkam al-Etrah al-Taherah (Fresh Gardens on the Rulings of the Pure Family), Qom: Islami. [in Arabic]
Farahidi, Khalil ibn Ahmad. 1989. Ketab al-Ayn (Book of Eye), Tehran: Hejrat. [in Arabic]
Fazel Meghdad, Abdollah. 1994. Kanz al-Erfan fi Feghh al-Quran (The Treasure of Mysticism in the Jurisprudence of the Quran), Qom: Nawid Islam. [in Arabic]
Feyz Kashani, Mohammad ibn Hasan. 1990. Al-Wafi, Isfahan: Imam Amir al-Momenin Press. [in Arabic]
Firuzabadi, Majd al-Din Mohammad ibn Yaghub. 1991. Ghamus al-Mohit (Comprehensive Dictionary), Beirut: Arab Heritage Revival House. [in Arabic]
Hedayatnia, Farajollah. 2012 a. "Barresi Hodud Ekhtiyar Zoj dar Talagh Khul (A Study on the Husband's Rights in Khul Divorce)", in: Jurisprudence and Family Law, yr. 17, no. 56, pp. 75-96. [in Farsi]
Hedayatnia, Farajollah. 2012 b. "Man Emsak Ezrari dar Rawabet Khanewadegi ba Takid bar Didgah Ostad Motahari (Prohibition of Harmful Retention in Family Relationships with Emphasis on Professor Motahari's Point of View)", in: Motaharpajuhi, no. 2, pp. 113-132. [in Farsi]
Horr Aameli, Mohammad ibn Hasan. 1988. Tafsil Wasael al-Shiah ela Tahsil Masael al-Shariah (The Means of the Shiites to Achieve the Issues of Sharia), Qom: Al al-Bayt Foundation for the Revival of Heritage. [in Arabic]
Ibn Dorayd, Abu Bakr Mohammad ibn Hasan. 1987. Jamharah al-Loghah, Beirut: The House of Knowledge for Millions. [in Arabic]
Ibn Fares, Ahmad. n.d. Mojam Maghayis al-Loghah (Dictionary of Comparative Language), Qom: Islamic Dignitaries Library. [in Arabic]
Irawani, Bagher. 2007. Dorus Tamhidiyah fi Tafsir Ayat al-Ahkam (Introductory Lessons in the Interpretation of the Verses of Rulings), Qom: Jurisprudence House for Printing and Publishing. [in Arabic]
Isfahani, Sayyed Abu al-Hasan. 2001. Wasilah al-Nejat (The Means of Survival), Qom: Institute for Compilation and Publication of Imam Khomeini's Works. [in Arabic]
Jafarzadeh Kuchaki, Ali Reza. 2016. "Mabnay Qurani Elzam Zoj be Talagh (Quranic Basis for Forcing a Couple to Divorce)", in: Jurisprudence and Family Law, no. 64, pp. 109-126. [in Farsi]
Jawhari, Ismail ibn Hammad. 2005. Mojam al-Sehah, Beirut: Knowledge House. [in Arabic]
Jobai Aameli (Shahid Thani), Zayn al-Din ibn Ali. 1989. Al-Rawzah al-Bahiyah fi Sharh al-Lomah al- Demashghiyyah, Qom: Dawari. [in Arabic]
Khoi, Sayyed Abu al-Ghasem. 1989. Menhaj al-Salehin (Path of the Righteous), Qom: City of Knowledge. [in Arabic]
Makarem Shirazi, Naser. 2001. Al-Ghawaed al-Feghhiyah (Jurisprudential Rules), Qom: Imam Ali (AS) School. [in Arabic]
Makarem Shirazi, Naser; et al. 1995. Tafsir Nemuneh (Ideal Commentary), Qom: Imam Ali (AS) School. [in Arabic]
Mofid, Mohammad ibn Noman. 1992. Al-Moghneah, Qom: Islamic Publishing Corporation. [in Arabic]
Mohaghghegh Damad, Seyyed Mostafa. 1988. Barresi Feghhi Hoghugh Khanewadeh: Nekah wa Enhelal An (Jurisprudential Study of Family Law: Marriage and Its Dissolution), Tehran: Ministry of Culture and Islamic Guidance. [in Farsi]
Motahari, Mortaza. 1997. Nezam Hoghugh Zojeh dar Islam (Wife's Rights System in Islam), Tehran: Sadra. [in Farsi]
Musawi Khomeini, Ruhollah. 1989. Tahrir al-Wasilah, Qom: Islami. [in Arabic]
Musawi Khomeini, Ruhollah. 1994. Al-Bay (Book of Trade), Qom: Ismailiyan. [in Arabic]
Najafi, Mohammad Hasan. 1988. Jawaher al-Kalam (Jewelry Words), Tehran: Islamic Book House. [in Arabic]
Ragheb Isfahani, Hosayn ibn Mohammad. 1991. Al-Mofradat fi Gharib al-Quran (Glossary of Quranic Terms), Beirut: Al-Shamiyah Institute.  [in Arabic]
Zobaydi, Mohammad Mortaza. 1888. Taj al-Arus (Bride Crown), Beirut: Life Library House. [in Arabic]

  • Receive Date 17 April 2022
  • Revise Date 22 June 2022
  • Accept Date 24 June 2022