عقد نکاح

Introduction :

The study explores a complex facet of contract law in Islamic jurisprudence: the binding or discretionary nature of agreements concerning future marital commitments. Specifically, it delves into whether a promise between two individuals to marry in the future constitutes a binding contract enforceable by judicial authorities or remains a discretionary commitment, allowing either party to withdraw from the agreement. This question holds significance as agreements of this nature are increasingly relevant within Islamic societies, where traditional legal principles intersect with evolving societal norms. The paper recognizes that contract law within Islamic jurisprudence contains distinct principles related to legally-binding and revocability, which influence the enforceability of agreements, including those associated with marriage. The scope of this study includes a doctrinal analysis examining authoritative legal texts and juristic opinions on agreements to marry, as well as an evaluation of perspectives within Islamic law that argue for and against the binding nature of these commitments. The findings aim to clarify the role of judicial intervention in enforcing marital commitments and determine whether a right-based or rule-based approach better aligns with foundational Islamic legal principles. This distinction between right-based revocability, which reflects individual discretion, and rule-based revocability, which entails inherent legal obligations, serves as a central framework for analyzing whether an "agreement to form a marriage" constitutes an enforceable contract.

Research Question :

This study addresses the following critical question within Islamic jurisprudence and contract law:  Is an "agreement to form a marriage" between two parties legally binding, allowing for enforceability in an Islamic court, or is it inherently discretionary, permitting either party to retract the agreement without legal repercussions? In answering this question, the paper also examines related considerations, such as the authority of the Islamic ruler to intervene in marital agreements and the potential for a court to act on behalf of a recalcitrant party to formalize a marriage. This inquiry into the scope and limits of bindingness in marital agreements addresses broader concerns regarding personal autonomy, judicial authority, and the interface of religious principles with societal expectations in Islamic contexts.

 Research Hypothesis:

The authors hypothesize that the enforceability of an agreement to marry under Islamic jurisprudence is governed by a rule-based framework of revocability rather than a right-based approach. This hypothesis proposes two key points:     Revocability as Rule-Based: The revocability attached to such agreements is intrinsically connected to the contract’s nature, meaning it is governed by fixed principles of Islamic law rather than individual rights or discretionary powers.Non-Enforceability of Marriage Agreements: Following a rule-based interpretation, a commitment to marry lacks enforceability, implying that the agreement does not grant the other party a right to compel marriage, nor does it empower the court to enforce such a contract through a proxy. The hypothesis suggests that an agreement to marry is not inherently binding, as its enforceability would compromise the individual's "right to refuse marriage," which Islamic law recognizes as a protected right. Thus, the paper posits that any attempt to enforce an agreement to marry contradicts the rule-based understanding of revocability in Islamic contract law and that the autonomy to refuse remains intact under this framework.

 Methodology & Framework, if Applicable:

This study employs a doctrinal methodology, focusing on a detailed analysis of primary Islamic legal texts and interpretations by prominent Islamic jurists. The approach involves reviewing classical jurisprudential sources, including Quranic verses, Hadith, and scholarly commentaries, as well as secondary literature that addresses modern interpretations and applications of Islamic law. The framework is divided into two central concepts: right-based revocability and rule-based revocability, both of which are foundational in Islamic legal theory.Right-Based Revocability: This concept reflects agreements where the revocability or legally-binding is viewed as a right of the individual parties, allowing them to retain discretion over enforcing or withdrawing from the agreement. Such revocability emphasizes personal autonomy, implying that the individual has the liberty to uphold or reject the agreement without legal consequences imposed by an external authority.Rule-Based Revocability: In contrast, rule-based revocability asserts that the nature of the agreement inherently includes obligations, thereby embedding bindingness within the contract itself. This interpretation aligns with principles suggesting that the obligations are inseparable from the contract's nature and must be upheld according to Islamic legal precepts, leaving little room for personal discretion.

Results & Discussion :

The study's findings elucidate the complexity of enforcing marital agreements within the framework of Islamic jurisprudence, distinguishing between rule-based and right-based revocability. Through an analysis of juristic opinions and principles, the research demonstrates that an "agreement to form a marriage" does not constitute a binding commitment in the legal sense, due to its unique position as an agreement with irrevocable revocability. This classification diverges from most contract types, where obligations are often enforceable by law and governed by a right to terminate or fulfill the contract based on mutual consent or legal authority.The research clarifies that while Islamic contract law generally upholds the binding nature of agreements—backed by principles like "fulfill your contracts" and "the faithful are bound by their conditions"—a promise to marry operates outside this paradigm. Marriage agreements are categorized under "rule-based revocability," where the revocability (or non-binding nature) is inherent to the agreement. This type of revocability underscores the autonomy retained by the individuals involved, reinforcing that they possess an unalterable right to refuse the marriage at any stage. This right to autonomy in marital decisions is not only protected but also deemed non-negotiable, emphasizing that neither party can unilaterally, nor can an Islamic court on their behalf, compel the marriage to proceed. The findings also reveal that attempts to enforce marriage agreements may lead to misinterpretations of Islamic legal principles if the hierarchical reasoning and subject-matter relationship are disregarded. Misapplication of the principle "the Islamic ruler has authority over the recalcitrant" risks confusing moral or ethical expectations with enforceable legal duties, particularly where marriage is concerned. Unlike typical contracts that bind parties to fulfill obligations, the promise to marry prioritizes individual discretion and respects the "right to refuse," underscoring that marriage decisions rest firmly within the realm of personal choice. Additionally, the concept of "irrevocable revocability" further defines the nature of a marital promise, indicating that while the agreement may be morally binding in some respects, it remains legally non-binding. This distinction reflects the values embedded within Islamic jurisprudence regarding the sanctity of marital autonomy and freedom of choice. The discussion highlights that marriage agreements fall outside the enforceable scope of Islamic contract law principles, as binding individuals to marry would violate the principle of mutual consent and respect for personal choice in matters of marriage.  The study also suggests an amendment in legal terminology, proposing that the term "promise" be replaced with "commitment" to reduce interpretive errors. This distinction clarifies that a promise to marry, unlike other contractual obligations, lacks enforceability and maintains the individuals' autonomy, emphasizing the importance of precise language in addressing commitments with significant moral but limited legal weight.

Conclusion:

The study concludes that the enforceability of marriage agreements is distinct from most contractual commitments due to the nature of marriage as a personal and discretionary decision in Islamic jurisprudence. The analysis reveals that misinterpretation of key Islamic principles may arise when the hierarchical structure of reasoning or the relationship between legal rulings and specific subject matter is overlooked. Specifically, the principle of irrevocable revocability underlines that individuals retain the right to terminate the agreement, even if made as a commitment, and this right cannot be overridden by external authorities or enforced by a judicial body.  Unlike other contracts where the "right to terminate" is intrinsic and non-revocable, a marital promise holds a unique position. The commitment to marry remains "permissible (revocable)" and operates under a rule-based framework, whereby autonomy and discretion in marital choices are safeguarded. This means that, regardless of whether the agreement is a unilateral or bilateral commitment, or directed at a third party, it does not impose enforceable obligations on the parties involved. Islamic law thereby excludes such agreements from the general rules mandating the fulfillment of commitments, underscoring the significance of maintaining autonomy in decisions related to marriage.The exclusion of marriage agreements from enforceability within Islamic jurisprudence is thus rooted in the importance of preserving the individual's right to choose freely in marriage matters. Attempts to enforce a marriage agreement would undermine personal freedom and autonomy, contrary to the principles of Islamic law that protect individual rights in marital selection. The conclusion emphasizes that the commitment to form a marriage should not be construed as a legally binding contract, reinforcing that the right to withdraw or refuse marriage is inherent and cannot be waived by either party .In response to interpretive ambiguities, the study recommends adopting "commitment" instead of "promise" to clearly delineate non-binding moral obligations from enforceable legal contracts. This precision in terminology could enhance legal clarity in addressing the nuances of agreements within Islamic jurisprudence, avoiding misinterpretations that might otherwise obscure the protective principles surrounding marital autonomy.

As Islam emerged and spread in Iran, many Iranian customs and traditions underwent serious changes in personal and social relations. The marriage contract is one of the social contracts that have taken a new form due to these changes. However, in recent years, some young Iranians returning to their previous traditions replaced the shar‘ī marriage with a new marriage called “Aryan marriage contract” (aqd-i āriyā’ī) to set their marriage bond. After a while, due to the belief that it is illegitimate, it was banned in marriage offices. Using the analytical descriptive method, this article explains and analyzes the content of this contract and its legitimacy based on the teachings of Islam. Through reading this article, it would be clear that the mere emergence of the Aryan marriage contract and some differences in the appearance of its implementation with the shar‘ī marriage are not considered as proof of its illegitimacy; this contract enjoys the basic elements of creating a marriage bond in Islam, that is, it is correct and legitimate

The marriage contract is the initial step in forming a family. Therefore, it is particularly important to scrutinize prenuptial conditions. One such condition pertains to abstaining from vaginal penetration. This article delves into the legal status of this condition and guarantees its fulfillment. Given that the condition is not explicitly outlined in current Iranian laws, Article 167 of the Constitution and Article 3 of the Civil Procedure suggest that judges should refer to valid Islamic jurisprudential sources for guidance. Jurists exhibit divergent views on this condition, rooted in disparities regarding the nature and requisites of marriage. Employing an analytical-descriptive approach and sourcing information from the library, this research critiques various perspectives. It concludes that, since sexual intercourse is not inherently demanded by the nature of marriage, the condition of no vaginal penetration is valid. The guarantee for this condition lies in its obligatory prohibition, and its positive assurance is indemnity in lieu of defloration (arsh al-bikāra).

The principle of sovereignty of the will should be considered as one of the most fundamental principles that ever existed in the world of law, and in fact, it should be considered as a kind of guarantee of the health of relationships between people. This principle, which is often evident in contractual relationships, is used thoroughly except in exceptional cases and forms the basis of contractual relationships. The marriage contract laws, which according to the legislator is considered a contract, despite having several mandatory laws, in many cases were compiled on the basis of this principle and due to the supplementary nature of the rule, it can be done by the will of the persons regarding decision making. In the present study, the influence of the principle of the sovereignty of the will in the two stages of concluding a marriage contract and its effects has been investigated, and the crystallization of this principle has been examined in the light of law, jurisprudence and international rules. some different opinions about the presence or absence of this principle in the marriage contract have also been expressed, and at the end, the conclusion of the said discussion has been discussed.

In some cases, people leave their place of residence for various motives, such as work, travel, family dispute, or any other reason, and after a while there is no news of their existence; such a person is called an absentee in Islamic jurisprudence and law. In this research, the alimony entitlement of the missing man's wife, who has been legally removed from the missing man's marriage contract by the ruler's ruling, has been investigated from the perspective of Khamsa religions, and then, by using the descriptive and analytical method, it tries to give an appropriate answer to the question whether the absent wife who is divorced by the ruling of the ruler is entitled to alimony during the days of Adah? The findings of this research show that if the couple's separation is due to the decree of divorce, the missing man's wife will be entitled to maintenance, because every woman deserves maintenance during the days of divorce, and the missing man's wife is no exception. However, if this separation is the result of assuming the death of her husband, according to jurisprudence, the wife will not be entitled to alimony because a woman is not entitled to alimony during the days of her husband's death.

Marriage is one of the contracts in which the rules regarding the conditions of the contract are current. Therefore, the conditions of the marriage contract have the same characteristics as stipulated in the general rulings. According to famous jurists, some of these conditions are correct and some are invalid. Some of these terms are disputed. In addition to examining the conditions included in the marriage contract, this research has examined and analyzed the controversial cases of the conditions included in the marriage contract from the perspective of Imamia and famous jurists. Some of these disputed conditions are: the condition of couples not remarrying, the condition of choosing housing and residence, the condition of having a special trait in one of the couples. The majority of jurists and jurists consider marriage and privacy to be the essence of marriage. But in many cases, there is a difference of opinion between them due to the conditions contrary to the nature of the contract. According to various aspects, it can be believed that Qadr Motaqeen considered all these marriage issues as necessary for the nature of marriage and agreed. And enjoyment, resolution, etc. are among the effects of the marriage contract, although sometimes, according to the belief of some jurists, it is introduced as a requirement of the nature of marriage. On the other hand, it should be checked that if the couple reaches an agreement contrary to the nature of the contract, what will be the condition and principle of the contract, in other words, it is both a condition and a condition. Is the contract invalid or only the condition is invalid and the principle of the contract is correct? . In the current research, while proving the ineligibility of such conditions, objective and practical examples have been pointed out and the unfortunate examples resulting from them have been mentioned based on the descriptive-analytical method

Annulment as one of the reasons for the dissolution of the marriage contract means that the marriage contract which was first correctly concluded, is destroyed without the intention and will of the parties and according to the law; Therefore, the annulment of the marriage contract is a forced dissolution, which means that the marriage contract is automatically dissolved without the need for any other legal action, leaving no choice for the court or the parties to the contract. Marriage is annulled by the death of one of the spouses; that in the case of discussion, the issuance of a presumptive death sentence, like other cases of annulment of a marriage contract, causes the forced dissolution of the marriage from the date of the issuance of the sentence, and if the invalidity of the presumptive death sentence is determined, the effects of the issuance of the sentence will be nullified as much as possible; Therefore, in the matter of marriage, in the case of proof of the absentee's life and her return, if the absentee woman has not married; The woman remains married to the man and the man has the right to appeal; However, if the absent woman has married a husband, the second marriage will be valid, because it was done according to the law. The principle of applicability of the presumptive death sentence to the marital relationship, which is explicitly accepted in Egyptian law, is also in accordance with legal and jurisprudential principles, and with the issuance of a verdict, its effects and rulings on the relationships of spouses, such as alimony, inheritance, dowry, adah, and custody, and Joint custody of the child will be applied 

Subject of post-matrimonial increase in marriage portion is one of the controversial juristic and legal topics. This subject that is concerned with this point that if such a measure is basically proper and practical or it is exposed to juristic and legal prohibition is a question to which contradictory and different approaches have been proposed as response in the judicial precedent of relevant courts and institutions. The second question that may strike in mind following of the former is that if such an increase has the nature and regulation of the same marriage portion or specific essence and rules will be applicable to it. Difference of opinion and viewpoint is clearly visible between Islamic denominations in Islamic Jurisprudence so that some groups in Shiite jurisprudence believe in lack of absolute permission for such an increase while the minor group argues in favour of this permission. Another group distinguishes among temporary and permanent marriages and has assumed this trend as proper only in temporary marriage. Increase in marriage portion has been accepted in Hanafi, Hanbali and Maliki jurisprudence (Sunnite denominations), but they disputed over nature and rules of this procedure. Shafi‘i jurists do not basically consider increase in marriage portion as proper. There is also such difference of opinions in Iranian legal system so that even uniform award of public board of Justice Administrative Court and comment of Guardian Council, which have been presented in this regard, could not clearly identify this topic. Using analytical-descriptive methodology in this paper, it has been tried to present, criticize and analyse comments of various Islamic denominations (Shiite, Hanafi, Hanbali, Maliki and Shafi‘i denominations) by documents and related evidences. At the end, it was believed that with respect to the existing legal bases, increase in marriage portion may not be assumed as proper, while it was tried to propose appropriate strategy with regard to time and place expediencies and conditions based on current fundamentals throughout this paper.

Annulment as one of the reasons for the dissolution of the marriage contract means that the marriage contract which was first correctly concluded, is destroyed without the intention and will of the spouses. Therefore; based on the law, the annulment of the marriage contract is a forced dissolution which means that the marriage contract is automatically dissolved without the need for any other legal action, and leaving no choice for the court or the parties to the contract. Marriage is annulled by the death of one of the spouses; that in the case of discussion, the issuance of a presumptive death sentence, like other cases of annulment of a marriage contract, causes the forced dissolution of the marriage from the date of the issuance of the sentence, and if the invalidity of the presumptive death sentence is determined, the effects of the issuance of the sentence will be nullified as much as possible. Therefore, in the matter of marriage, in the case of proof of the absentee's life and her return, if the absentee woman has not married; the woman remains married to the man and the man has the right to appeal; however, if the absent woman has married a husband, the second marriage will be valid because it was done under the law. The principle of applicability of the presumptive death sentence to the marital relationship, which is explicitly accepted in Egyptian law, is also in accordance with legal and jurisprudential principles, and with the issuance of a verdict, its effects and rulings on the relationships of spouses, such as alimony, inheritance, dowry, eddeh, and custody, and joint custody of the child will be applied.

Well-known Imami jurists believe that marriage contract, are not permissible  by conduct. in addition to the intention and consent of the parties, requires the form of offer and acceptance. In the form of acceptance, they agree that it is not exclusive to certain words and accept the correct with any word that indicates the consent of the couple, but they have considered the form of offer only in certain specific words. Contrary to this view, Sunni jurists, in marriage, like other contracts, have not considered the word of offer to be limited to the words of the Qur'an and Sunnah, and consider any word that indicates a purpose to be useful in marriage. This view can be considered the flow of this ruling in other contracts and the exception of marriage in the rival view. This article re-evaluates the reasons for the monopoly of the form of offer in marriage and criticizes the famous view of Imami jurists. In this regard, he has benefited from a comparative study of the opinions and fatwas of Sunni scholars and their arguments in this regard.

Al-Mahr (dower) is obligatory as one of the Islamic rights in marriage contract. As soon as the marriage takes place, the property of the dower is proved for the wife and the wife will have the right to take possession of it. According to the wife's property on the dower, the husband is the guarantor to deliver the dower to the wife without any defects, so If the dower is defective before marriage or becomes defective after marriage, the husband is required to pay recompense. According to the publicity saying of the jurists, this guarantee is a kind of warrantor hand, at the same time, some jurists believe in an exchange guarantee. According to popular belief, in case the dower is lost or damaged, the husband is the guarantor of the dower or the price of the dower. But according to the exchange guarantee, the husband is the guarantor of the pseudo-dowry.

Although Iranian legal system has protected family as society’s basic unit in many rules specifically constitutional law, family main issues need study in laws and regulations to recognize the matters that threat it. Lawyers and jurists by studying article 1085 civil Code guide us to that that right of lien and its ways of taking advantages in the family rights and duties often used by law with ignore of the philosophy and root of this right. Supreme Court’s decisions on generality of submission (not sexual submission) for remaining right of lien while insolvency of man, shows the reason of woman’s lien to receive dowry. Using the rule of commutative contracts for marriage without mention the protection of right of women is caused by Remedial Principles which is showing hidden facts of decisive time for paying dowry, avoiding of prevailing a ultra-realistic method on social aspect of family as a important unit of society is on the negative line of materialistic view to the most important contract among people.

The contract is divided into "exchange" and "non-exchange" contracts in terms of the transaction and the validity of the obligation - non-commitment of the parties and the economic purpose of the contract. "Marriage" is one of the most important contracts considered in Islam, some of which are referred to as worship. In marriage, the formation of a common family life is the basis of the contract, and the family is the central nucleus of society. The importance of family rights is largely due to the high value and status of the family. One of the important issues in family law is the issue of marriage and works such as dowry and alimony. This Holy Covenant has legal institutions such as the right to imprisonment and financial measures such as dowry and alimony. The absence of dowry in a permanent marriage, the lack of detailed knowledge of the dowry, and the lack of the need for balance of values ​​in the marriage seem to be the same; There is no doubt that the contract of marriage will not be exchanged because it contradicts the existential philosophy of permanent marriage and its spiritual aspects are damaged. Thus, this article seeks to clarify whether marriage is a transferable marriage or a non-transferable marriage. What issues and debates have created such doubts in this marriage?

In the legal system of Islam, establishment of family’s institution is carried out by marriage. While marrying the lawgiver considers rights and duties for each of the couples. Since the explanation of these rights and duties is directly related to the definition and nature of the marriage, study the position and the nature of the marriage contract is important. The dominant of  Imamieh jurists consider it as a contract based on barter due to the right of imprisonment and dowry and alimony. On the other hand, some consider it as naked contract. This article aims to study the consequences, rights and duties of couples by reviewing the definition of marriage. The findings show that marriage is nothing except couples' commitment to the formation of a common life. Therefore despite the existence of some rules apparently conventional, it has unconventional nature; dowry, alimony and the right to sexual productivity don’t consider as a component of marriage and its nature, but rather they are considered as a part of the mutual commitment of the couple towards each other and it results of the mutual commitment in marriage.