Culmination of Law

Culmination of Law

Etymology of conflict of judicial procedure in the conditionality of payment of dohr in divorce caused by hardship and presenting its solution.

Document Type : Original Article

Author
Assistant Professor, Department of jurisprudence and Islamic Law, Theology and Islamic Sciences, University of Tabriz, Tabriz, Iran
10.22034/thdad.2024.2003615.2463
Abstract
Difficult divorce is a divorce in which the court forces the husband to divorce the wife due to the hardship of the wife. Since the wife mainly tries to pay her dowry in order to get rid of hardship, this has become a legal rule in such a way that in the judicial procedure, dowry is considered necessary for divorce. In only a few of the judicial opinions, dowry is not considered necessary. Due to the fact that knowing the condition of giving dowry leads to the violation of the wife's rights, it is necessary to analyze the origin of its conditionality and non-conditionality. In the present research, which was done with a descriptive-analytical method and referring to library sources, it was concluded that the unbearable hardship of the person who is acting must be proved for the decree of divorce due to hardship. Therefore, not only giving dowry is not a condition, but knowing it is a condition, it leads to the corrupt result that in some cases, the wife wants to get a divorce with the readiness to give her dowry, without any difficulty or embarrassment. In the following, by quoting the judicial opinions, confusion and conflict in the judicial procedure were explained and the arguments presented were criticized with reference to the teachings of family jurisprudence. In the end, considering the personal nature of difficulty and embarrassment, instead of determining the examples of difficulty and embarrassment, it was suggested to establish an institution consisting of experts related to it, to help the court judges in ascertaining the concept of difficulty and embarrassment, and to prevent differences of tastes. Also, considering the issuance of conflicting opinions from the Supreme Court of the country, it was suggested that the honorable general committee of the Supreme Court of the country,
Keywords

Subjects


Persian sources
Emami, Seyyed Hassan, Civil Law, Tehran, Islamic Publications, Bicha, Beta
Tabrizi, Javad, New Inquiries, Bija, Bina, First Edition, Beta, Vol. 1.
Jafari Langroodi, Mohammad Jafar, Detailed in Legal Terminology, Tehran, Ganj Danesh, 1376, Vol. 4.
A group of authors, Journal of Jurisprudence of the Prophets of Islam (Persian), Qom, Institute of Encyclopedia of Islamic Jurisprudence on the Religion of the Prophets of Islam, First Edition, Beta, Vol. 9.
Roshan, Mohammad, Family Law, Tehran, Jangal Publications, Second Edition, 1396.
Shabiri Zanjani, Seyyed Musa, Marriage Book, Qom, Raipardaz Research Institute, First Edition, 1419 AH, Vol. 18.
Safaei, Seyyed Hossein, Brief Family Law, Tehran, Mizan Publications, Ninth Edition, 1384.
Taheri, Habibollah, Civil Law, Qom, Islamic Publications Office, 2nd edition, 1418 AH, Vol. 3.
Ghanei, Ali and Mohammad Yazdan Mehr, Family Law, Tehran, Majd Publications, 1st edition, 1398 AH.
Katouzian, Naser, Family Law, Tehran, Sahami Publications Company, 1st edition, 1375 AH.
Katouzian, Naser, Civil Law in the Current Legal System, Tehran, Mizan, 34th edition, 1391 AH.
Malekzadeh, Fahimeh, Rules of Family Jurisprudence, Tehran, Majd Publications, 1st edition, 1396 AH.
Montazeri Najafabadi, Hossein Ali, Treatise on Inquiries, Qom, Bina, 1st edition, Bita, Vols. 1 and 3.
Mohaghegh Damad, Seyyed Mustafa, Rules of Jurisprudence, Tehran, Islamic Sciences Publishing Center, 12th edition, 1406 AH.
Yazdani, Gholam Reza, Family Law, Tehran, Majd Publications, first edition, 1397.
Arabic
Araki, Mohammad Ali, Al-Masā’il al-Zālādī, Qom, Publications of the Islamic Propaganda Office of the Qom Seminary, first edition, 1414 AH
Ardebili, Ahmad, Majma’ al-Fada’ wa al-Burhan, Qom, Islamic Publications Office, first edition, 1403 AH, vol. 2.
Ashtiani, Mirza Mohammad Hasan, Al-Rasal al-Tsā’, Qom, Zuhair-Allama Ashtiani Congress Publications, first edition, 1425 AH
Esfahani, Muhammad Hossein, Al-Qasas al-Fiqhiyah and Ijtihad and Al-Tiqlid, Qom, Seyyed al-Shahada Bookstore, peace be upon him, first edition, 1374 AH
Esfahani, Mohammad Hossein, the margin of Kitab al-Makasab, Qom, Anwar al-Hadi, first edition, 1418 AH
Irwani, Baqir, introductory lessons in the rules of jurisprudence.
Bahrani, Mohammad Sanad, Malikiya Daulah, Bi-Ja, Bi-Na, Bi-Ta.
Tabrizi, Javad, Sarat al-Najat, Qom, Dar al-Siddiqah al-Shahida, first edition, 1427 AH, vol.4.
Tabrizi, Javad, Minhaj al-Salehin, Qom, Majma al-Imam al-Mahdi (Ajl Allah Ta'ala Farjah), first edition, 1426 AH.
Haeri Esfahani, Muhammad Hossein bin Abd al-Rahim, al-Fusul al-Gharwiyyah in Usul al-Fiqhiya, Qom, Dar Ahyaya Uloom al-Islamiya, first edition, 1254 AH.
Haeri Tabatabayi, Seyyed Muhammad, Kitab al-Munahil, Qom, Al-Bayt Institute, peace be upon them, first edition, beta.
Hosseini Sistani, Seyyed Ali, The Rule of No Harm and No Harm, Qom, Office of Ayatollah Sistani, first edition, 1414 AH.
Hosseini Rohani, Seyyed Sadiq, Fiqh al-Sadiq, peace be upon him, Qom, Dar al-Kitab - School of Imam Sadiq, peace be upon him, first edition, 1412 AH
Hosseini Rouhani, Seyyed Sadegh, Minhaj al-Faqaha, Qom, Anwar al-Hadi, fifth edition, 1429 AH
Hosseini Rohani, Seyyed Sadegh, Minhaj al-Salehin, Bita, Bija, Bina.
Hosseini Aamili, Seyyed Javad, Miftah al-Karamah fi Sharh al-Qa'aa al-Alama, Qom, Islamic Publications Office, first edition, 1419 A.H.
Hosseini Milani, Seyyed Mohammad Hadi, Lectures on Imamate Jurisprudence - Salat al-Musafr and Qa'idti al-Saheeh and Al-Yid, Mashhad, Ferdowsi University Publishing Institute, first edition, 1395 AH
Khansari, Seyyed Ahmed bin Youssef, Jami al-Madarak fi Sharh Khazrat al-Nafi, Qom, Ismailian Institute, second edition, 1405 AH
Khawansari, Musa bin Muhammad, Risalah fi Qadeaz Nafi al-Ard, Tehran, Al-Muhammadiya Library, 1st edition, 1373 AH.
Sobhani, Jafar, Nizam al-Qadaa and al-Shahadah in Al-Sharia al-Islami al-Ghara, Qom, Institute of Imam Sadiq (peace be upon him), first edition, 1418 AH
Sabzevari, Seyyed Abd al-Ala, Al-Ahkam al-Sharia Jama'i, Qom, Al-Manar Institute, 9th edition, Beta
Sabzevari, Seyyed Abd al-Ala, Mahdzb al-Ahkam, Qom, Al-Manar Institute - Office of Hazrat Ayatollah, 4th edition, 1413 AH
Seifi Maznrani, Ali Akbar, The Basics of Jurisprudence in al-Qa's al-Fiqhiya al-Osadi, Qom, Islamic Publications Office, first edition, 1425 A.H.
Shabiri Zanjani, Seyed Moussa, Al-Masal Al-Sharia, Qom, Al-Fiqahah Publishing House, first edition, 1428 AH.
First Martyr, Ghaya Al Murad, Qom, Publications of the Islamic Propaganda Office of Qom Seminary, first edition, 1414 AH
Safi Golpaygani, Lotf-Allah, Jame Al-Ahkam, Qom, Publications of Hazrat Masoumeh, peace be upon her, 4th edition, 1417 AH, vol.2.
Sadouq, Muhammad Ibn Ali Ibn Babouyeh, Man La Yahdrah al-Faqih, Qom, Islamic Publications Office, second edition, 1413 AH
Tabatabayi Hakim, Seyyed Mohsen, Mastamask al-Arwa al-Wathqi, Qom, Dar al-Tafsir Foundation, print, first, 1416 AH.
Tabatabayi Qommi, Seyyed Taqi, Al-Anwar al-Bahiya fi al-Qasas al-Fiqhiyah, Qom, Mahalati Publications, first edition, 1423 AH.
Tabatabayi Qommi, Seyyed Taqi, Basics of Minhaj al-Salehin, Qom, Qalam al-Sharq pamphlets, first edition, 1426 AH
Allameh Hali, Hasan bin Yusuf, Irshad al-Azhan, Qom, Islamic Publications Office, first edition, 1410 AH
Fazil Lankarani, Muhammad, Salas Rasaila, Qom, Center for Jurisprudence of the Pure Imams, peace be upon them, first edition, 1425 AH.
Fazel Lankarani, Mohammad, Jame Al-Masail, Qom, Amir Qalam Publications, 11th edition, Beta, vol. 2, p. 407.
Fayaz Kabli, Mohammad Ishaq, Minhaj al-Salehin, Bi-ja, Bi-na, Bi-ta
Lari, Seyyed Abdul Hossein, Al-Talaqeeh Ali Al-Makasab, Qom, Al-Maarif Islamic Foundation, first edition, 1418 AH
Mohaghegh Hali, Jafar bin Hassan, Shar'e al-Islam, Qom, Ismailian Institute, second edition, 1408 AH
Maraghy, Seyyed Abdul Fatah, al-Tawsaf al-Fiqhiyah, Qom, Islamic Publications Office, first edition, 1417 AH, vol.1.
Mustafawi, Seyyed Mohammad Kazem, Ma'at al-Qa'ad al-Faqahiya, Qom, Islamic Publications Office, 4th edition, 1421 AH
Makarem Shirazi, Nasser, al-Alfatawi al-Jalidi, Qom, publications of the school of Imam Ali bin Abi Talib, peace be upon him, second edition, 1427 AH, volume 2.
Makarem Shirazi, Nasser, Al-Qasas al-Fiqhiya, Qom, School of Imam Amir al-Momineen - peace be upon him, third edition, 1411 AH, vol.1.
Makarem Shirazi, Nasser, Kitab al-Nikah, Qom, Publications of Imam Ali Ibn Abi Talib (peace be upon him) school, first edition, 1424 AH, vol.5.
Mousavi Bojunordi, C