alireza hooshyar

In Islamic and Iranian legal systems, divorce in cases where the husband is dying of an illness is distinct from other forms of divorce. Article "944" of the Iranian Civil Code stipulates that the wife could take inheritance from his dead husband within a year of her husband's death in cases where she has been divorced by her ill husband before his death, provided that she has not taken another husband and that her husband has died of the same disease. The references for this judgment are some seemingly contradictory and conflicting hadiths whose authenticity and the unification method needs to be investigated jurisprudentially.  The article makes no difference between different kinds of divorce, and the wife is absolutely worthy of the inheritance. However, the Shiite jurists (Faqihs) have different judgments regarding the wife's inheritance in irrevocable divorce. Supporting the wife is said to be the wisdom behind the judgment mentioned above. Nonetheless, it raises this question whether such potentially deadly situations as snakebite, accident and those cases where the person is sentenced to blood-vengeance could be annexed to the judgment regarding the inheritance of wife in a divorce of the dying patient? Moreover, as the Islamic jurists differ in opinion concerning whether the judgment could exclusively be assigned to the wife or not, the issue needs to be carefully examined. Referring to the Shiite jurists' fatwas and comments regarding the judgment, the researchers of this study seek to resolve the ambiguities in the article, arguing that the death of the patient in less than a year of the same disease, and the fact that the illness led to the death are the primary requisites for the inheritance of the wife from her dead husband, provided that she has not remarried.  This is an exceptional judgment specific to the divorce of the dying male patient and could be extended to the divorce of the dying female patient, i.e., The husband does not take inheritance from his ill wife. According to some hadiths, the inflication of harm stipulation has no particularity; therefore, the wife takes inheritance from her sick husband in all types of divorce, including the revocable and irrevocable divorce, the divorce by mutual agreement, and the divorce at the wife's instigation. Furthermore, the hadiths narrated in this regard are specific to the divorce of a dying male patient and do not include potentially deadly situations and conditions. Keywords: Patient, Wife, Inheritance, Revocable Divorce, Irrevocable Divorce, Dying Patient.

The issue of the permissibility of togetherness of command and forbiddance is considered among the most complex and oldest issues in the knowledge of oṣūl which has jurisprudential and practical benefits such as the truth or wrongness of saying prayers in a usurped place. Having investigated the lexicon and clarifying the subject matter, the researchers have proposed three opinions in this regards such permissibility, refusal, and intellectual permissibility and customary refusal. In the next phase, the researchers have raised the most important issue of negating and confirming reasons and the issue of compulsion due to the lack of freewill. There are to six opinions and principles about the person who have doomed himself obliged due to lack of freewill among which the absolute command wavier, taking the obligation, affirming the forbiddance of act, and lack of obligation could be mentioned. Having explained and expanded these opinions, the researchers have investigated the weaknesses of these opinions using the Qur'an verses and the Imam's traditions and have proved that proposing the issue of compulsion by the shariah legislator from the viewpoint of ruling the society is narrowed; therefore, any kind of compulsion cannot remove the illegality. Ultimately, they have proved the opinion to the permissibility of gathering the command and forbiddance using other jurisprudential chapters.

In Islamic sect’s jurisprudence, the people whose illnesses may lead to their death would enjoy shaky capacity and their contributive appropriations and marriage and divorce make them distinctive from others. Imamiyeh Jurisprudents’ disagree with each other with respect to this issue, and based on the meaning they get from some traditions and their reasoning, they have proposed different opinions and points. With respect to the proposed points and indices, the most challenging issue is whether the illness is a fatal one or not fatal enough. Some of these jurisprudents believe that an illness is deemed to be leading to death while it is considered to be among the fatal and dangerous ones. Believing that such a condition is not mandatory, some other jurisprudents contend that any kind of illness leading to death or may be the reason to death is categorized under the illnesses leading to death, may it be fatal or not. Other reasons for an illness to be named fatal are being too much dangerous, an illness which leads to death less than one year, and if the illness is called an illness by the common. These reasons are among the ones the jurisprudents consider for the ones leading to death. The method of this research is a fundamental study method and data collection using library references.

In Islamic legal system and Iran's regulations, an ill person's marriage who is about to die is distinct from other people's marriage. Article 945 of Iran Civil Law has made the maid's inheritance in marriage to an ill person subject to sexual intercourse or achieving recovery and inheritance without sexual intercourse is void and null. Imamiyeh jurists have interpreted the above-mentioned decree based on the related traditions and there is no contradiction in the main decree. As stipulated in traditions, given a near-to-die patient dies before any sexual intercourse, the marriage contract is void and null and the wife does not inherit her deceased husband. The nature of marriage nullity, enforcing or revoking decree to the ill, the wife's death earlier her husbands, and the nature of near-to-die illness are all considered among obscurities in this issue and Imamiyeh scholars disagree on it. Among other sects, only the jurists of Maleki sect issued the fitwa for nullity of a patient's marriage. Other sects consider the patient's and healthy's marriage authentic and issued a fitwa to the authenticity of patient's marriage and couple's inheritance. Using library references to state the jurisprudential principles of this article, the researcher has endeavored to alleviate the obscurities and to identify the origins of disagreements among Sunni Sects jurisprudents.