Critique of Judicial Procedure in Exercising the Wife's Imprisonment Right in the Light of Jurisprudential background

Forotan, Yousef; Moghadam, Isa; Dadashiniaki, Mohammadreza; Maghsoudi, Reza

doi:10.30497/flj.2021.239304.1585

Critique of Judicial Procedure in Exercising the Wife's Imprisonment Right in the Light of Jurisprudential background

Document Type : Scholarly Article

Authors

¹ Rasht azad university

² guilan university

³ Assistant Professor of Law, Islamic Azad University, Rasht Branch, Gilan, Iran

⁴ Associate Professor, Department of Law, University of Guilan, Guilan, Iran

10.30497/flj.2021.239304.1585

Abstract

The right to imprisonment is an option for each party in marriage contract and the couples postpone the performance of their obligation to the performance of another obligation according to this right. The question of whether the wife's imprisonment right is a refusal of general and specific obedience or includes only specific obedience, and also, the effect of the wife's knowledge of the husband's insolvency on her imprisonment right, has been controversial in jurisprudence, and also led to conflicting judicial procedure and the issuance of two votes of unity of procedure. In this article, which is done by descriptive- analytic method, the jurisprudential background and the judicial procedure on this issue and its critique have been studied. The results have been shown the marriage is a contract that creates reciprocal obligations, and it cannot be accepted that the woman without any kind of obedience can request the fulfillment of a man's obligations regarding dowry and alimony, especially where the couple has been declared insolvent by the court. Such an approach would be contrary to the mutual obligations of the parties. The necessity of general obedience of a woman and the assignment of her imprisonment right to special obedience is based on the jurisprudential background of this subject and judicial procedure of the subsequent courts (Tali Courts), and prevents the abuse of the imprisonment. At the same time, the vote of unity of Procedure No. 718 severely limits the scope of imprisonment right, so that any kind of obedience of a woman to her husband can lead to the cancel of the wife's imprisonment right.

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