نوع مقاله : علمی - پژوهشی
عنوان مقاله English
نویسندگان English
Introduction
Family jurisprudence constitutes a large part of Islamic jurisprudence. In different periods, jurists, by examining Qur’anic verses and traditions, have expressed various opinions on the subsidiary issues related to the aforementioned fields. The dissolution of a marriage contract is possible for two reasons, namely divorce and faskh (annulment). Annulment of marriage has specific conditions and is limited to particular cases such as tadlīs (deception), ifḍāʾ(Obstetric fistula), khiṣāʾ (castration), and ʿanan (impotence). Divorce, too, has different classifications according to its conditions, one of which is the classification of divorce into rajʿī and bāʾin. In rajʿī divorce, unlike bāʾin divorce, the husband is permitted, under specific conditions and within a specified period, to return to the wife without a new marriage contract. Rujūʿ (revocation) may be verbal or actual. One of the most fundamental conditions considered valid for the realization of rujūʿ is the existence of the husband’s intention to revoke, because rujūʿ belongs to the category of inshāʾ (constitutive act), and the basis of inshāʾ is intention.
The principle of the validity of the intention to return for the realization of the husband’s rujūʿ is, in general terms, a settled matter and is agreed upon by jurists. However, by distinguishing between the intention of the act and the intention of the title of rujūʿ, it becomes clear that this issue involves subtle considerations. At times, the husband is asleep or in a state of forgetfulness and therefore lacks volition regarding the act itself; and at times, while possessing volition regarding the act, he lacks the intention of the title of rujūʿ in relation to that act. Considering the various acts that may indicate rujūʿ, such as taking the hand, touching, kissing, or sexual intercourse (waṭʾ), it becomes clear that the realization of rujūʿ in some of these cases is subject to consideration and discussion.
Now, if the husband, during the ʿiddah, performs acts such as removing the wife’s headscarf, kissing, touching, or even sexual intercourse, which apparently indicate actual rujūʿ, but subsequently claims that he did not intend rujūʿ, the question arises: Are all these acts equally regarded as rujūʿ? Or should a distinction and difference be made between acts such as touching and kissing, on the one hand, and sexual intercourse, on the other hand? The present research seeks to examine, from a jurisprudential perspective, the realization of the husband’s actual rujūʿ during the ʿiddah of rajʿī divorce where there is no intention of the title of rujūʿ, and to answer the aforementioned questions.
Research Background
Various studies have examined rujūʿ during the ʿiddah and its different aspects. These include “An Examination of Whether the Husband’s Option of Revocation in Rajʿī Divorce Is a Right or a Ruling” by Rahimi and Soleimani (2018/1397), “The Jurisprudential-Legal Nature of Revocation in Rajʿī Divorce and Some of Its Effects” by Gharibpour and Velayati-Nejad (2022/1401), “The Husband’s Right of Revocation in Rajʿī Divorce in Islam and Judicial Practice” by Yousefi Sadeghlou and Karimi (2022/1401), and “An Examination of the Indication of the Qur’anic Verses Regarding the Conditioning of the Husband’s Right of Revocation in Rajʿī Divorce upon the Intention of Reconciliation” by Jafari and Dehghan (2018/1397).
As is evident from the titles of the aforementioned studies, these articles have discussed aspects such as whether rujūʿ is a right or a ruling, the examination of the nature of rujūʿ, and how rujūʿ occurs in Islam and judicial practice. However, the examination of the requirement of the intention of rujūʿ in actual rujūʿ, and whether rujūʿ without intention in its various instances, including touching, kissing, and sexual intercourse, while distinguishing between the absence of intention of the act and the intention of the title of rujūʿ, at the two levels of maqām al-thubūt and maqām al-ithbāt, has been?
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