New contemplation on the right of lien of the wife in Imamieh jurisprudence and Iranian legal-judicial system

Document Type : Original Article

Authors

1 Lecturer, Department of Jurisprudence and Principles of Islamic Law, Payam Noor University,Iran

2 Assistant Professor of Jurisprudence and Principles of Islamic Law Department, Sistan and Baluchestan University.

3 Associate Professor of Jurisprudence and Principles of Islamic Law Department, Tehran University.

4 Associate Professor of Jurisprudence and Principles of Islamic Law Department, Sistan and Baluchestan University.

Abstract

Dowry is one of the financial effects of marriage contract, whose limit has not been clearly determined in the Holy Quran and Islamic narrations although in narrations and hadiths, the dowry has been recommended and emphasized to be specified in low amounts. In the Civil Code of Iran, determining the amount of dowry is dependent on the couple’s mutual consent. Inspired by the rules of bilateral contracts in the Islamic jurisprudence and according to Article 1085 of the Civil Code, the right of lien has been specified for the vindication of the wife’s dowry. Accordingly, if the dowry is payable on demand and the husband avoids paying the dowry, the wife can refuse to perform marital duties and require the man to pay it. Based on the aforesaid article indicating the cancellation or continuance of the mentioned right, if it is determined that the husband is in hardship, the dowry is paid in installments based on the court order. In this respect, there are different views on the part of courts. Ultimately, this difference of opinions led to the issuance of the judicial procedure unity vote ‎No. 708 dated 8/12/2008 of the General Board of the Supreme Court. This study which was conducted through a descriptive-correlational method and library tool aims to investigate the jurisprudential and legal foundations of the mentioned vote. Contrary to critics’ viewpoints, it seems that the issued vote which is according to the opinions of some contemporary jurisprudents and is backed by legal standards

Keywords

Women's Strategic Studies
Volume 20, Issue 80 - Serial Number 80
.
December 2018
Pages 117-141

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