Identifying the Legal Nature of Shirbaha with Emphasis on Judicial Procedure

Document Type : Scholarly Article

Authors

1 Assistant Professor in Department of Law in University of Guilan, Rasht, Iran

2 PhD Student in Private Law in University of Guilan, Rasht, Iran

Abstract

Preparation of essentials for common life is one of the legal duties of man; However, in some regions, according to the custom, dowry is provided by the wife. Meanwhile, the man prepares a few items of necessary accessories for common life, which usually have significant material value, to be included in the list of dowry and along with the other items, is sent to the common house. In custom, such items are called Shirbaha. In the dowry restitution lawsuit, the court will face the challenging question of who is considered the owner of this property? The answer to the question depends on the explanation of the nature of the agreement. There is a difference regarding the nature of the Shirbaha from a jurisprudential and legal point of view. Some have interpreted it in the form of specific contracts such as gift, granted and peace, and others consider it in the form of a private agreement. A group has also interpreted its nature as a condition in the contract as well as an obligation for the benefit of a third party. These disputes have also affected the judicial procedure. Referring to the formats which is mentioned and according to the interpretation of the permissibility or necessity of the Shirbaha, some jurists consider these items to belong to the husband and some others to the wife. This research shows that the above- mentioned formats have obvious distinctions with the Shirbaha despite having some proportion. The Shirbaha has a special nature that according to its characteristics and the silence of the law, custom determines the scope of its effects.

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References

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Biannual Journal of Family Law And Jurisprudence
Volume 29, Issue 80
April 2024
Pages 281-303

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