نوع مقاله : پژوهشی
استادیار گروه حقوق، پردیس خواهران، دانشگاه امام صادق (ع)، تهران، ایران
عنوان مقاله [English]
Abstract: The hadith “ Al-Talaq bi-ya-di man ʿakhadha bi-al saḳ)”, renown as “ Hadith Nabawi”(that contains the words that Prophet Muhammad spoke himself), “Jurisprudential Criterion” or “ Jurisprudential Rule” is one of the most important reasons cited by those scholars who believe that the right to terminate the marriage contract is exclusively granted to men. Have been considerably influenced by Islamic rules and Shiʿa scholars, Iranian case law also reflects the abovementioned approach on divorce so that a number of supreme court decisions refer to “al-Talaq”, as an authority that attributes the right of ending marriage contract entirely to the husbands.
Now, given the significance of “al-Talaq”, main questions are that; how compelling is the narrative of aforementioned hadith? is its evidential and substantive background sufficiently strong to make it as a ruling authority?
Studying valuable amount of historical resources shows that for pioneering Shiʿa jurists who had lived immediately after the Islamic legislation era, the right to terminate marriage contract was not an exclusive power for husbands. Additionally, revising “al-Talaq” by means of chronology, Hadithology, semantics and jurisprudential principles demonstrate that “al-Talaq” is based on insufficient and weak evidence. Also, the context of this hadith cannot be adduced as an authority for men’s exclusive right of divorce in Iranian and Islamic courts.