از حرمت تکلیفی ظهار تا ضمانت اجرای کیفری؛ تحلیلی فقهی ـ حقوقی با تأکید بر حمایت ازکرامت زن و نهاد خانواده

The central issue of this study is the feasibility of establishing a criminal sanction for Ẓihār within the Iranian legal system, grounded in the principles of Imami jurisprudence, with an emphasis on protecting the dignity of women and the institution of the family. This research utilizes a descriptive-analytical methodology, with data collected through library-based research, encompassing a comprehensive review and analysis of jurisprudential and legal sources, statutory texts, and pertinent academic literature.

The findings indicate that although Ẓihār is considered ḥarām (religiously prohibited) based on the opening verses of Surah Al-Mujadila, necessitating an expiatory act (kaffārah), it has not been independently criminalized under Iranian penal codes. This legislative vacuum may lead to the violation of women’s rights and the erosion of the family unit. From a jurisprudential perspective, legal maxims such as “no harm, no harassment” (lā ḍarar wa lā ḍirār fī al-Islām), “discretionary punishment for every prohibited act” (al-taʿzīr li-kulli ʿamalin muḥarram), and the religious obligation of “enjoining good and forbidding evil” (amr bi-maʿrūf wa nahy ʿan munkar) provide the requisite theoretical basis for justifying taʿzīrī (discretionary) criminal sanctions to safeguard women’s dignity and familial integrity.

Within the existing legal framework, the conduct of the muẓāhir (the one who commits Ẓihār) may potentially be prosecuted under general criminal statutes—such as those pertaining to insult, threats, or public commission of a prohibited act. While such judicial interpretation offers a partial remedy, it fails to fully encompass the specific nature and the distinct legal-social dimensions of Ẓihār. Consequently, this study concludes by emphasizing the imperative for legislation and independent criminalization of this behavior to address the current legislative lacuna, ensure social justice, and provide effective protection for the institution of the family.