Re- Examining Three Theories Presented by Jurisprudents on the Nature of Matrimony Contract and the Effects of Views on Marriage Issue

Document Type : Scholarly Article

Author

Assistant Professor in Department of Jurisprudence and Principles of Islamic Law, Torbat-e Heydarieh Branch, Islamic Azad University, Torbat-e Heydarieh, iran

Abstract

One of the main issues on matrimony contract is the nature of this contract. Three well-known theories have presented among Shi’a jurisprudents, and even Jurists in this regard. While some jurisprudents consider it as mutual interest contract, some others consider it as non-mutual interest contract. However, the great men, such as Na’eini, knew it semi-mutual interest nature. Also, some jurists describe it as partnership contract. The writer argues that it is a “special contract”.  It seems that the differences between these theories are rooted in various aspects of marriage, i.e. contractual aspect and devotional and ethical aspect. The purpose of this research is to critically examine the above-mentioned theories. In this regard, first the theoretical bases of these theories are examined, then the effect of these views on certain marriage issues such as “contract by conduct”, “The wife’s right of lien”, and “option of cancellation of marriage” has been studied by descriptive- analytical method and by collecting data from library. The most important findings are the following: matrimony is not a mutual interest contract; it is a “special contract”. Those who believe in the former do not exercise the decrees related to most marriage related issues including contract by deed, and means of marriage cancellation. The legislation of the wife’s right of lien, affected by the famous theory by Shi’a jurisprudents on the nature of matrimony contract, considers it a mutual interest contract.

Keywords

Main Subjects

References

A group of authors (1428 AH) margin of the encyclopedia of children's rulings and laws (Vol. 3), Qom, Fiqh center of Imams of Athar
Adhari, Saeed Kazem (1388) Al-Talaqih al-Sana'i between science and law, Qom, Al-Mustafa International Translation and Publishing Center
Ansari, Morteza (1392) Mahrasab Muharmah, (Vol. 1 and 2) Qom, Dar Al-Hikma Irvani, Ali (2004) Marjih al-Makasab, Tehran, Kia
Fazil Mohadi Lankarani (1383) Mohammad, Jame Al-Masail (Vol. 1) Qom, Amir
Fazil, Mohammad Javad (1387) jurisprudence study of artificial insemination, Qom, Jurisprudence Center of Imams of Athar
Fazil, Mohammad Javad (2016) Makasab Mahramah (Vol. 2), Qom, Jurisprudence Center of Imams Athar
Gharavi, Ali (1377) Revisions in Sharh al-Uruwa al-Waqhi (Vol. 8), Institute for the Revival of Imam Khoi's Works
Golpaygani, Seyyed Mohammad Reza (1409 AH) Majmam al-Masail, Qom, Dar al-Qur'an al-Karim
Hakim, Mohsen (Bita) Mustamsk Al-Arwa Al-Wathqi (Vol. 4) Revival of Arabic Heritage
Har Ameli, Muhammad bin Al-Hassan (Bita) Wasal al-Shi'ah, (Vol. 1, 14, 15, 18, 20), Qom, Al-Bayt Institute, peace be upon them, for the revival of heritage.
Khoei, Abu al-Qasim (2010), The Book of Men (Vol. 13), Islamic Culture Publishing Center in the World
Khoei, Abulqasem (1375) Masbah al-Faqah (Vol. 1 and 2), Qom, Ansarian Institute
Khomeini, Ruhollah (1368) Tahrir al-Wasila (Vol. 1), Tehran, Imam Khomeini Works Editing and Publishing Institute
Khomeini, Ruhollah (1373), Makaseb (Vol. 1), Tehran, Institute for editing and publishing the works of Imam Khomeini
Khomeini, Ruhollah (1421 AH), Kitab al-Bai (Vol. 3), Tehran, Imam Khomeini Editing and Publishing Institute
Mohseni, Mohammad Asif (1426 AH) Jurisprudence and Medical Issues, Qom, Bostan Kitab
Moini Far, Muhaddith (2013) Examining the child's right to identity in Islam and international documents (jurisprudence and family law (56)
Momin, Muhammad (1415 AH) Sadidah's words in new issues, Qom, Jama'at al-Madrasin in Al-Hawza Al-Alamiya
Naibzadeh, Abbas (1380) A legal review of modern methods of artificial insemination, Tehran, Majed.
Naini, Mohammad Hossein (1373) Menieh al-Talib (Vol. 1), Tehran, Al-Muhammadiya School
Najafi, Mohammad Hassan (1392) Jawaharlal Kalam in the Explanation of Islamic Laws (Vol. 22) Islamia
Nouri, Hossein (1368) Mustardak Al-Wasail (Vol. 14) Qom, Al-Al-Bayt Institute
Qaini, Muhammad (1430 A.H.) Al-Massut Medical Problems (Vol. 1) Qom, Center of Jurisprudence of Imams Athar
Qommi, Ali Ibn Ibrahim (1404 AH) Tafsir Qommi (Vol. 2) Qom, Dar al-Kitab
Biannual Journal of Family Law And Jurisprudence
Volume 28, Issue 79
August 2023
Pages 109-137

Files

Share

How to cite

Statistics