جستجوی مقالات مرتبط با کلیدواژه « duress » در نشریات گروه « علوم اجتماعی »

Avoidance of a husband of paying the marriage portion (mehr) when he can afford it is not acceptable, for many authentic traditions prohibit it. Also commitment to a marriage portion which is not affordable by husband is prohibited and impermissible. On the other hand, a wife is not entitled to ask for marriage portion during the time of duress and when her husband cannot afford it. According to the Quran and traditions, an indebted person who cannot afford to pay the debt should be given enough time to pay it. Since the husband is also committed to pay marriage portion to his wife, this rule applies to him as well. In case the husband can afford to pay the marriage portion but refrains from it, there are certain mechanisms in Sharia and the law to make him pay. One of these mechanisms is to imprison the husband, but imprisonment of the husband who does not pay the marriage portion is not legal if he cannot afford to pay. But if he can afford and at the same time declines to do so, he is imprisoned to pay.Another mechanism is to sell the properties of the husband. If the husband has some properties other than what has been excluded by Sharia as basic necessities, they are sold on the verdict of the court to pay the marriage portion to wife. If the husband is capable of working and earning income, he should work and pay the marriage portion on installment.

The divorce of wife of a missing absent husband is among the intangible (non-financial) rights of the wife. In some cases due to the absence of husband, the wife faces hardship and duress with regard to financial issues and alimony as well as non-financial demands such as fulfillment of natural, sexual and emotional needs. According to the prevailing viewpoints of jurisprudents and the civil code, if the husband remains missing absent for four years his wife can move to court and appeal for divorce. The present paper is an attempt to study this issue. Some contemporary jurisprudents like Tabatabi Yazdi maintain that if the wife’s commitment to the marriage bond during the absence of the husband causes her to commit sin, either out of compulsion or by will, divorce in necessary in order to protect her from sins. In case of missing of husband, if going through the legal process of search and investigation about the missing husband causes the wife to commit sin, the religious ruler can get her divorced before waiting for the expiry of four years. This decree can be a new individual inference (ijtihad) in the light of requirements of time, space and new issues. Some examples of this kind of individual inference are seen in Imam Khomeini’s decrees.