Establishing right to Khul' divorce for wife (A comparative study in Islamic jurisprudence, Iran law and some Islamic Jurisdictions)

Document Type : Original Article

Authors

1 Assistant Professor, Department of Law, Faculty of Literature and Humanities, University of Birjand , Birjand, Iran.

2 Assistant Professor, Department of Theology, Faculty of Humanities, University of Gonbad Kavos , Gonbad Kavos, Iran

3 Assistant Professor, Theology Department, Human Sciences Faculty, University of Gonbad Qavous, Gonbad Qavous, Iran

4 M.A. in Private Law, Faculty of Humanities, Azadshahr Branch, Islamic Azad University, Azadshahr, Iran.

Abstract

The legitimacy of Khul' divorce for the wife is an issue that has a precedent in Islamic jurisprudence and has been accepted in some Muslim jurisdictions based on some circumstances. Accepting this right in Iran law can prevent abuse of the right to divorce and the suspension of marriage. In this research, based on a library effort the possibility and requirements of such a divorce has been examined from a comparative point of view. The findings of the research indicate that the wife's strong hatred form her husband is the base of conferring a thing to him and disobeying from him due to the mental and emotional pressures that applied over her. In this assumption, obligating wife to this marriage despite her inner desire is considered a harm to her. In this regard, we cannot confer the right of divorce to husband as a special right for man so that even in cases which the wife is afraid of falling into sin, which that, leds her to a wandering situation. In such a situation, the law of many Islamic jurisdictions gives the wife a right to divorce without the husband's consent.the law of many Islamic jurisdictions gives the wife a right to divorce without the husband's consent.

Keywords

Main Subjects

References

The Holy Quran.
Abdul Salam, Abdul Qadir, (2008). "Al-Khul'a fi Fiqh al-Islami and Qanun al-Asra", al-Ahiya Journal, Vo. 10, Issue 12 (in Arabic).
Ahmad Hassan, Amjad Abdul Fattah; Musa Fallah, Hassan Fallah, (2018). "Al-Khula' Taht Al-Ein Al-Zoja", Journal of Al-Qunun and Al-Uloom al-Siyasiyah, Volume 4, Issue 2 (in Arabic).
Ali Ibrahim, Harith, (2021). "The Judge Right in Divorce without the Consent of the Husband, a Study of Comparison in Islamic Jurisprudence and Law", Ain al-Shams Journal of Morals, Vol. 49, No.3. (In Arabic).
Alkhasht, Mohammad Othman, (1987). Dalil Al-Fiqhia lel-Emreate Al-Muslim fi Al-Ibadat va Al-Moa'melat and Transactions, Cairo, Al-Qur'an Library (in Arabic).
Al-Khonin, Abdullah bin Muhammad, (2009) Al-Khol' by the Request of a Wife for Lack of Intimacy, Riyadh, Dar Ibn Farhoun (in Arabic).
Ardabili, Ahmed bin Mohammad, Zabdeh al-Bayan fi Akhmat al-Qur'an, Tehran, Al-Mortazawieh School (in Arabic).
Ashqar, Omar Suleiman, (2015) Al-Vazeh fi Sharh Al-Qanun of Al-Ahval Al-Shakhsia No. 36 of 2010, Jordan, Dar Al Nafais (in Arabic).
Bahrani, Yusuf, (1984) Al-Hadaiq al-Nadrah in Akhmat al-Atrah al-Tahirah, Qom, Islamic Publications Office (in Arabic).
Bahrul Uloom, Ezzeddin, Bohoth Al-Feqhiyyah, Qom, Al-Manar Institute.
Benassi, Shoghi, (2008). "Divorce without the Consent of the Husband in Islamic Jurisprudence and the Algerian Law of Marriage and the Law of Marriage", Algerian Journal for Legal Sciences and Economics and Politics, Vol. 45, No. 2 (in Arabic).
Berishi, Ismail, (2009). "Al-Qada'i between Islamic Jurisprudence and the Jordanian Law of Personal Status", Al-Jordaniyah Journal in Islamic Studies, V. 5, Issue 4 (in Arabic).
Bhuti Hanbali, Mansour, (1989). Sharh Mantahi al-Iradat al-Msami Munakt Uli al-Nahi for Shahrh al-Muntahi, Beirut, Alam al-Katb (in Arabic).
Davodi, Karim, (2016). "Reza al-Husb fi al-Makhali'a bein Al-Sharia va Al-Qanun Algerian ", Al-Hadarah al-Islamiya Journal, Vol. 17, No. 29 (in Arabic).
Faiz Kashani, Hilmasan, (1985). Al-Wafi, Isfahan, Amir al-Momenin Library (in Arabic).
Faiz Kashani, Hilmasan, (1997). Al-Nakhba fi al-Hikma al-Amaliya and al-Ahakam al-Sharia, Tehran, Publishing Center of Islamic (in Arabic).
Fazel Lankarani, Mohammad, (2004). Jame' Al-Masal, Qom, Amir al-Alam Publishing (in Arabic).
Fazil Moqdad, Moqdad bin Abdullah, (2004). Kenz al-Irfan fi Fiqh al-Qur'an, Qom, Mortazavi Publications (in Arabic).
Formerly, Sayyid, (1969). Fiqh al-Sunnah, Beirut, Dar al-Kitab al-Arabi (in Arabic).
Ghazali, Mohammad, (2005). Human Rights between the Teachings of Islam and the Declaration of the United Nations, Cairo, Nahda Misr for printing, publishing (in Arabic).
Ghitabi Hanafi, Abu Muhammad, (1420 AH). Al-Baynah fi Sharh Al-Hidayah, Beirut, Dar Al-Kutub Al-Alamiya (In Arabic).
Hedayat Nia, Farajullah, (2011). "Examining the Limits of the Husband's Authority in Divorce", Fiqh and Family Law Journal, No.56 (in Persian)
Hekmatnia, Mahmoud, et al., (2008). Philosophy of Family Law: Principles and Rules, Tehran, Public Relations of the Social Cultural Council of Women and Family (in Perian).
Helli, Hassan bin Yusuf, (1968). Tazkerat Al-Foqaha, Qom, Al-Bayt Institute (in Arabic).
Helli, Hassan bin Yusuf, (1992). Mokhtalef Al-Shi'ites fi Al-Ahkam Al-Saria'a, Qom, Islamic Publications Office (in Arabic).
Hisheri, Hagar, (2014). "Haq al-marah fi al-talaq", Al-Siyaseh and Al-Qunun magazine, issue 10 (in Arabic).
Horr Ameli, Muhammad bin Hassan, (1988). Vasael Al-Shi'ite Fi Tashri' Al-Masae'l Al-Shari'ah, Qom, Al-Bayt Institute (in Arabic).
Ibn Hajar Asqlani, Ahmed bin Ali, (2005). Fath al-Bari fi Sharh Sahih al-Bukhari, Riyadh, Dar al-Taiba (in Arabic).
Ibn Hamzah, Muhammad bin Ali, (1987). Al-Wasilah al-Nil al-Fadilah, Qom, Ayatollah Murashi Najafi Library Publications (in Arabic).
Ibn Hazm, Ali Ibn Ahmad, (1933). Al-Mahalli Bal-Atar, Egypt, Al-Muniriyeh edition (in Arabic).
Ibn Majah, Muhammad ibn Yazid, Sunan Ibn Majah, Beirut, Revival of Al-Kitab al-Arabiya (in Arabic).
Ibn Qudama, Abdullah bin Ahmad. Al-Mughani, Cairo, Al-Cairo school (in Arabic).
Ibn Rushd, Muhammad bin Ahmad, (1995). Bedaiat Al-Mujtahad and Nahaiat Al-Maqtasad, Beirut, Dar al-Fekr (in Arabic).
Ibn Zohra, Hamza bin Ali, (1996). Ghaniyyah al-Nizwa al-Illami al-Asul wa al-Faroo, Qom, Institute of Imam Sadiq (in Arabic).
Imami, Seyed Hassan, (2022). Civil Law, Tehran, Islamic Publications (in Persian).
Jabai Ameli (the second martyr), Zain al-Din bin Ali, (1989). Al-Rawza al-Bahiyyah in Sharh al-Lama' al-Damashqiyya, Qom, Davari bookstore (in Arabic).
Jabai Ameli (the second martyr), Zain al-Din bin Ali, (1993). Masalak al-Afham Ela Tanqih Al-Sharai' Al-Islam, Qom, Institute of Al-Maarif al-Islamiya (in Arabic).
Jaziri, Abd al-Rahman, (2003). Fiqh Ali al-Mahabh al-Araba, Beirut, Dar al-Kutub al-Alamiya (in Arabic).
Jozjani, Abu Othman, (1982). Al-Tafseer Man Sunan Saeed Ibn Mansoor, India, Dar al-Salfiyya (in Arabic).
Kashkul, Mohammad Hassan; Saidi, Abbas, Description of the Iraqi Personal Status Law No. 188 of 1959 and its amendments, Baghdad, Al-Maktabeh al-Qanuniyyah (in Arabic).
Katouzian, Nasser, (2015). Civil rights: Family, Tehran, publishing company (in Persian).
Khansari, Seyyed Ahmad, (1984). Jame al-Madarak fi Sharh Al-Mokhtase Al-Nafi', Qom, Ismailian Institute (in Arabic).
Khoei, Saydabul al-Qasim, (1989). Minhaj al-Salehin, Qom, Madinah Al-Alam publication (in Arabic).
Khomeini, Seyed Ruhollah, Tahrir al-Wasilah, Qom, Dar Al-E'lm Press Institute (in Arabic).
Malik bin Anas, Ibn Amer, (1994). Al-Maduna Al-Kabari, Beirut, Dar Al-Katb Al-Alamiya (In Arabic).
Marafet, Mohammad Hadi, (2010). "Women in the eyes of the Qur'an and in the culture of the time of descent (2)", Journal of Qur'anic Research, Vol 7, No.27 (in Persian).
Mehrpour, Hossein, (2000). "Jurisprudential Snalysis of the Situation of Deceased Man and Woman in Divorce", Nam-e-Mofid Journal, No. 21 (in Persian).
Mohaghegh Damad, Mustafa, (1386). Jurisprudential review of family law - marriage and its dissolution, Tehran, Islamic Sciences Publishing Center (in Persian).
Mohammad al-Shaer, Naser al-Din, (2010). "Mashrouiyyah Khul'a and Sahib al-Haq fiyyah between the text and jurisprudence and jurisprudence", Al-Jordaniyah magazine in Islamic studies, Vol.6, No.4 (in Arabic).
Mostrihi, Mohammad Ahmad, (2019). "Al-Khl'a al-Riza'i and Al-Ahkama in Islamic Jurisprudence and the Jordanian Law of Personal Status "Comparative Study"", Journal of Studies: Islamic Sciences and Law, Vol.46, No.1(in Arabic).
Motahari, Morteza, Jurisprudence and Law (collection of works), Tehran, Sadra Publishing House (in Persian).
Mughniyeh, Mohammad Javad, Fiqh al-Imam al-Sadiq, Kitab al-Talaq, Qom, Ansarian Institute (in Arabic).
Muhaddith Nouri, Hossein bin Muhammad, (1987). Mustardak al-Wasil and Mustanbat al-Masal, Qom, Al-Al-Bait Institute (In Arabic).
Mutawa, Amir Mohammad, (2016). Disruption between Shari'ah and Law, Egypt, Center for Research and Islamic Studies (in Arabic).
Najafi, Mohammad Hassan, (1983). Jawaharlal Kalam in the interpretation of the laws of Islam, Beirut, Dar Ahyaya al-Tarath al-Arabi.
Qomi, Mirza Abul Qasim, (2006). Al-Mirza al-Qami's letters, Qom, Islamic Propaganda Office.
Rashidreza, Mohammad, (1990). Tafsir al-Manar, Cairo, Al-Masriyyah al-Masriyyah al-Katab (in Arabic).
Razavi, Seyyed Mohammad; Razavi, Seyyed Ali, (2016). "The Extent of the Permissibility of Azl in the Assumption of Infidelity and its Effect on the Legal Relations of Couples", Women's Research Journal, Issue 2 (in Persian).
Sabouni, Abdurrahman, (1994). Description of the Al-Ahwal al-Al-Souri law, Damascus, Damascus community charters.
Sanani, Abdul Razzaq, (1982). Al-Musnaf Fi Ahadith and Al-Athar, India, Majlis Al-Alami.
Sarghsi, Muhammad bin Ahmad, (1993). Al-Massut, Beirut, Dar Al-Marafa.
Saudawi, Sediq, (2011). "Changes in the origin of consent according to the Algerian judicial ijtihad in divorce with divorce", Journal of Research and Legal and Political Studies, Volume 1, Number 1
Shabiri Zanjani, Seyed Moussa, (1999). Book of Marriage, Qom, Rai Pardaz Research Institute.
Shafi'i, Muhammad bin Idris, (1973). Al-Alam, Beirut, Dar al-Marafa.
Sistani, Seyed Ali, (1997). Minhaj al-Salehin, Qom, office of Hazrat Ayatollah Sistani.
Sobhani Tabrizi, Jafar, (1996). Nizam al-Nakah fi al-Sharia al-Islamiyya al-Ghara, Qom, Imam Sadiq Institute.
Tabarsi, Amin al-Islam, (1995). Al-Bayan Forum in Tafsir al-Qur'an, Beirut, Al-Alami Press Institute.
Tabatabai, Mohammad Hossein, (1367). Translation of Tafsir al-Mizan, translated by Nasser Makarem Shirazi and others, Qom, Allameh Tabatabai Scientific and Cultural Foundation.
Tabatabayi, Seyyed Ali, (1998). Riyad al-Masail, Qom, Al-Bayt Institute, peace be upon them.
Tarihi, Fakhr al-Din, (1996). Bahrain Assembly, Tehran, Mortazavi bookstore.
Tawahrieh, Kameleh, (2015). "The Rules of Divorce in Islamic Jurisprudence and Algerian Law", Al-Ma'yar Magazine, Volume 20, Issue 39 (in Arabic).
Tousi, Mohammad bin Hassan, (1967). Al-Massut fi fiqh al-Imamiyah, Tehran, Al-Murtazawieh Library (in Arabic).
Tousi, Muhammad bin Hassan, (1979). Al-Nahiya fi majart al-fiqh and al-fatawi, Beirut, Dar al-Kitab al-Arabi (in Arabic).
Tousi, Muhammad bin Hassan, (1981). Al-Khalaf, Qom, Islamic Publications Office (in Arabic).
Yazidi Tabatabayi, Seyyed Mohammad Kazem, (1414 AH). Takmela al-Arwa al-Wathqi, Qom, Davari bookstore.
Zibari, Amer Saeed, (1987). Rulings of Khula in Shari'ah al-Islamiyya, Beirut, Dar Ibn Hazm (in Arabic).
Zilai Hanafi, Jamal al-Din, (1998). Installation of al-Raya for hadiths of al-Hidaya with the cover of Baghey al-Ma'i in Takhrij al-Zailei, Beirut, Al-Ryan Institute for Printing and Publishing.
Zilai Hanafi, Jamal al-Din, (1895). Explanation of the truths of the commentary of Kunz al-Daqaeq and Hashiyyah al-Shalabi, Cairo, Al-Muttabah al-Kubra Amiriyya (in Arabic).
Zubaydi, Morteza, (1993). Taj al-Arus Man Javaher al-Qamoos, Beirut, Dar al-Fakr Publication (in Arabic).
 
 

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History

  • Receive Date: 12 April 2023
  • Revise Date: 06 September 2023
  • Accept Date: 08 November 2023

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