A Jurisprudential View to the Lawful Clause of the Prohibited Remarriage (Polygamy) within the Marriage Contract

The clause of the prohibited remarriage (polygamy) within the marriage contract is one of the new controversial propositions in the Islamic law. The prior majority of the Islamic jurists (according to the reasons of the decrees) believe that this provision is void. But with considering the documentation of the traditions which prove the validity and authenticity of this provision and absence of opposition to the Islamic law (sharia) and contract obligation, some other Islamic jurists especially the majority of the contemporary ones believe the validity and enforceability of this stipulation. But they argue over the executive guarantee and law effects of the validity of this provision. The present note criticizes and examines these two opinions and lastly criticizes both opinions (the opinion of the most famous Islamic jurists who chose the invalidity absoultly and those of the Islamic contemporary jurists who believe the validity of it absolutely without time condition. It announces a new attitude which is the invalidity in the aspect of the unrestricted provision of the prohibited remarriage and the validity in the aspect of the qualification to time. They believe that the violation of this stipulation causes the right of recession for the spouse. In the assumption of the invalidity of the provision does not follow the invalidity of the contracts and solely does the invalidity and ineffectiveness of the stipulation.