تحلیل فقهی - حقوقی تاثیر مرگ مغزی بر رابطه زوجیت (مطالعه موردی آثار وضعی)

The emergence of brain death has given rise to new jurisprudential issues concerning the stability of the marital bond. This study examines the legal consequences of brain death for the marital relationship through a descriptive-analytical method, based on three theories: the theory of life, the theory of death, and the third-state theory (unstable life). The findings indicate that brain death constitutes a form of unstable somatic life. Under the theory of life, the marital bond is not automatically dissolved. However, if the husband’s brain-death condition persists for an extended period, the wife may, by invoking tanqīḥ al-manāṭ (analogy based on legal priority) with reference to the defect of insanity, or by relying on principles such as the negation of hardship (nafī ʿusr wa ḥaraj) and the no-harm principle (lā ḍarar), petition the religious judge for annulment or divorce, on the grounds that maintenance cannot be claimed or marital cohabitation has become impossible. Furthermore, in this situation, the wife’s status as muḥṣana becomes legally unsettled, and its criminal consequences are no longer applicable. Conversely, the husband may exercise the right of annulment only if the defect of insanity arose before he had sexual access to his wife. A determination of the husband’s status as muḥṣan likewise depends on whether sexual intercourse occurred before brain death; if it did, he cannot be regarded as having lost his status as muḥṣan. According to the theory of death, all consequences of marital dissolution, including inheritance and the permissibility of marrying certain relatives by affinity, take effect from the moment brain death is declared. Under the third-state theory, only the legal effects of life continue to apply. Accordingly, regarding the consequences of brain death, the theory of life is better supported.