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Shiite Personal Status Law of Afghanistan (2009) – 2: Family

PART II: FAMILY

CHAPTER ONE: RELATIONSHIPS

Types of Relationships

Article 71:

Relationship based on its origin is of three types:

1. Blood relationship

2. Breast-feeding relationship

3. Relationship by marriage

Blood Relationship

Article 72:

The blood relationship is:

1. Direct bloodline: a blood relationship which begins at birth; the father is the origin and the child is called (branch).

2. Indirect bloodline: a relationship between at least two persons who come from a joint origin (e.g., the relationship of two brothers).

Breast-feeding Relationship

Article 73:

Breast-feeding relationship is the relationship that occurs when a child is breast-fed by a woman other than the child’s mother, or when at least two children are breast-fed by the same woman in observing the conditions set forth in this law.

Relationship by Marriage

Article 74:page26image4456 page26image4616

Relationship by marriage is the relationship of relatives of both parties as a result of the marriage contract of couples.

Determination of Blood Relationship’s Rank

Article 75:

Blood relationship’s rank shall be determined as follows:

page26image7688

  1. In a direct blood relationship from branch to origin, each generation is counted as one rank and the origin itself shall not be included in this determination.
  2. In an indirect blood relationship from branch to joint origin and from joint origin to another branch, each generation is counted as one rank and the origin itself shall not be included in this determination.

Determination of Breast-feeding Relationship Rank

Article 76:

The Breast-feeding relationship like blood relationship is both a direct and an indirect blood relationship, and its ranking is similar to that of blood relationship.

Determination of Marriage Relationship Rank

Article 77:

In determining the marriage relationship rank, each couple’s relatives’ rank shall be determined and recognized as equal to the other.

CHAPTER TWO: MARRIAGE PROPOSAL AND ENGAGEMENT

Proposal

Article 78:

(1). A proposal is the offer of marriage to a woman by a man observing the following conditions:page26image18040 page26image18200 page26image18360
1. The woman shall be free of any marriage obstructions and edat [waiting period].

2. The man and woman or the person who makes the offer of marriage on behalf of the man, or the person who accepts the offer on behalf of the woman, shall be competent.

3. The proposed woman shall not be someone else’s fiancée, but if the man initiates, and a Nekah [marriage contract] takes place, the contract is valid.

(2). It is prohibited to propose to a woman who is in revocable edat status. Proposal to a woman who is in the irrevocable edat status is allowed, but the proposal shall be or implicit.

Engagement

Article 79:

Engagement or the promise of marriage is an allowable agreement between a man and a woman leading to an agreement for marriage.

Commitment to Marriage

Article 80:

Commitment to marriage either conditionally during the marriage contract or within an independent contract, even if the penal clause has been specified, is not obligatory and the penal clause shall not be binding. In a case where either of the engagement parties (fiancé/fiancée) decline to marry, the other party cannot force him or her to marry or ask for compensation from the other.

Fiancé and Fiancée’s Meetings

Article 81:

Visitation and Sharia-permitted relations (speaking) to learn about each other’s personal status, life and character as allowed by tradition, is permitted.

Payments of Engagement Expenses

Article 82:

Whenever each of the parties without legal or legitimate reasons, after accepting the engagement contract, revokes the engagement contract, he/she is to pay the expenses for the wedding that has been incurred by the other party.

Requesting the Gifts or Its Like

Article 83:

(1). Gifts, their like or the cost of the gifts, if an engagement contract is revoked, are redeemable as follows: page27image16544 page27image16704 page27image16864
1. Consumable gifts on condition that they have not been consumed as of the revocation date.

2. Non-consumable gifts which are not wasted as of the revocation date of the engagement contract.

Non-consumable gifts that are traditionally preserved are redeemable if they were destroyed intentionally.

(2). In the event of either party’s death, consumable gifts that have been consumed shall not be redeemable.

Exchanging Photos

Article 84:

(1). Photos and letters which have been exchanged between parties are considered non- consumable, shall be returned, in its original form, upon demand of either party.

(2). Misuse of letters, photos and recorded sounds in order to blackmail or harm the other party is prohibited.

 

CHAPTER THREE: OBSTACLES TO NEKAH (MARRAIGE CONTRACT)

Marriages Prohibited by Reason of Blood Relationship

Article 85:

Marriages of the following persons who are related by blood (paternal/maternal) are forever prohibited even if the relationship arose out of a mistaken sexual act or adultery:

1. Origins and branches [immediate blood relatives].
2. The origins and branches of parents (grandparents, brothers and sisters). 3. Paternal uncles, aunts and maternal uncles and aunts.
4. Parents’ paternal and maternal uncles and aunts.

Marriage Prohibited by Reason of Marital Relationships

Article 86:

Marriages of the following relatives (who are related to each other by both blood and breast- feeding relationships) are forever prohibited:

1. Wife’s mother and grandparents of wife upon marriage.
2. Wife’s daughters if there has been sexual penetration with wife. 3. The wife of father or of grandfather upon marriage.
4. The sons’ wives upon marriage.

Marriage Prohibited by Reason of Breast-feeding Relationship

Article 87:

Except as listed below, marriages of persons related through breast-feeding as stated in this law are prohibited to the same extent as marriages of persons related through blood relation. As follows:

1. His breast-fed son’s sister.
2. The mother of his breast-fed brother or sister.
3. The grandparent of his breast-fed son or daughter or higher. 4. His breast-fed brother’s sister.

Pre-requisites of Breast-feeding Relationship

Article 88:

(1). The elements of a breast-feeding relationship are as follows:

1. Existence of breast-feeding mother

2. Existence of breast fed child

3. Breast-feeding

(2). During breast-feeding, the breast-feeding mother shall be one person and alive. If two women are breast-feeding the child for a total of less than fifteen times, the breast-feeding relationship will not be established with either woman.

(3). The breast-feeding child should be alive during breast-feeding and the age should be less than two years based on lunar calendar.

(4). The Breast-fed milk should be given under the following conditions:

  1. For the duration of twenty-four hours or fifteen times completely and continuously, or in a quantity that is enough to help the bones of the child to become strong and the muscles to grow.
  2. The [breast-feeding] milk shall be provided from a single source [single source here means the man who is married to the breast-feeding mother], if two children feed from two foster mothers [married to the same husband] they are considered foster -siblings.
  3. The suckled milk should be produced as a result of a lawful pregnancy in a lawful marriage, or doubtful marriage, and/or legitimate insemination.
  4. The milk shall be sucked directly from the breast.
  5. The sucked milk shall be as a result of having given birth.

(5). Where there is knowledge of a breast-feeding relationship but it is unclear as to the numbers of the breast-feeding mothers, or the quantity of milk suckled, the prohibition does not apply.

Proof of breast-feeding

Article 89:

(1). The father of the child who is breast-fed [by another woman who is not the biological mother of that child] cannot marry the children of the woman who breast-feeds that man’s child as well as the children of the husband of the breast-feeding mother.

(2). The breast-feeding relationship shall be proven as follows:

1. Confession to the breast-feeding relationship.
2. Dependable testimony of more than one unfair[dishonest] witnesses.
3. Testimony of two fair men or four fair women or one fair man and two fair women.

Combination of Two Sisters

Article 90:

(1). Combining two sisters in a marriage contract, both blood relationship and breast-feeding relationship is invalid. If the marriage contract of one pre-exists the other, or one of them is in the edat period of rajyee[revocable divorce],it is invalid

(2). Marrying the nieces of a living wife without her permission is not enforceable.

Nullification of the Marriage Contract of the Fifth Wife

Article 91:

While observing justice in the obligatory rights, a man can establish marriage contracts of up to a maximum of four women at a time. Marrying a fifth wife, even if one of the previous wives is in edat period of a rajyee divorce is invalid.

A Married Woman or a Woman who is in (edat) Period

Article 92:

(1). To knowingly marry a woman who is married, or a woman who is in the edat period (with full knowledge of the matter and the prohibition) shall be invalid with the exception of mistaken sexual penetration, and shall cause permanent prohibition between parties.

(2). To unknowingly marry a married woman or a woman who is in the edat period, (while unaware of the fact or the provision) shall be invalid, and in case of sexual penetration shall cause permanent prohibition between parties.

Prohibition of [Nekah while wearing] Ehraam [or the Hajj garb]

Article 93:

(1). Knowingly entering into a marriage contract by a couple or any one of them individually, during the Ehraam period shall be invalid, and will cause permanent prohibition to the parties.

(2). To unknowingly enter into a marriage contract by a couple or any one of them individually during the Ehraam period (while unaware of the fact or the provision) shall be invalid and in case of sexual penetration with the wife, will cause permanent prohibition to the parties.

(3). If proved that the Ehraam was invalid, then the marriage contract shall be considered valid.

Lea’an [when husband accuses his wife of adultery or when he denies affiliation with a child] and Qazaf (false accusation of sexual intercourse by others)

Article 94:

Dissolution of marriage contract due to lea’an in accordance with the prescribed provisions of this law shall cause permanent prohibition between couples.

Adultery and Mistaken Sexual penetration

Article 95:

(1). The act of adultery: is completed sexual penetration with another by a sane adult, not under duress or force, and having the knowledge that there is no marital relationship between the parties.

(2). Mistaken sexual intercourse is completed sexual intercourse by a sane adult, not under duress and force, with a woman not his own wife where sex is unintended due to an inability to distinguish that the other is not his spouse

(3). Marriage is eternally prohibited where a man commits adultery with a married woman during her revocable divorce waiting period. However, marriage is not eternally prohibited where a man has mistaken sexual intercourse with a woman, or has sexual penetration with a woman during her irrevocable divorce waiting period, or during edat of death[four months and 10 days], or edat of dissolution [three menstruation periods] .

(4). Marriage between an adulterer’s father and the adulteress or her ascendants or descendants is not appropriate, however if a paternal or maternal aunt was the adulteress, in this case, marriage with the aunt’s daughters is forbidden.

(5). The marriage of a couple that has taken place before the act of adultery [by any of the above mentioned family members with one person from the couple] is not affected or dissolved [as a result of adultery that has taken place after the marriage contract].

Three Divorces and Nine Divorces

Article 96:

(1). When a man [verbally] divorces his wife in three instances, but he returns to her twice, he shall be prohibited from marrying the same wife unless the woman has married another man and, after sexual penetration, she is divorced or her subsequent husband dies.

(2). Wife will be prohibited permanently from marriage after nine divorces with the same husband, provided, six of them are revocable divorces.

Infidelity

Article 97:

The marriage contract of a Muslim man with a woman who is not a follower of a holy book [the four books recognized as holy in Islam are Quran, Bible, Toara, Zaboor] is invalid. The marriage contract of a Muslim woman with a non-Muslim man is invalid. If a non-Muslim husband and his non-Muslim wife convert to Islam at the same time, their original marriage is valid and shall continue.

Sodomy

Article 98:

Sodomy before marriage may prohibit the sodomizer’s subsequent marriage to the following persons (despite the fact either party is insane, a child, an adult or different):

  1. Mother of the person who is sodomized and all her ascendants (either through blood relationship or through breast feeding)
  2. Daughter of the person who is sodomized and all her descendants (either through blood relationship or through breast feeding)
  3. Sister of the person who is sodomized (through blood relationship or breast feeding)

 

CHAPTER FOUR: CONDITIONS FOR VALIDITY OF MARRIAGE CONTRACT

Validity of Wards’ Marriage

Article 99:

(1). The marriage of an underage (male/female), insane (male/female) is permissible through a natural guardian, who is not Mufsada [devious], authorized guardian or a court.

(2). Minor (male/female) after reaching puberty, and insane (male/female) after again becoming sane, can reject a marriage that has been arranged by a natural or authorized guardian who does not act in the best interests of the ward.

Intercourse with Wife

Article 100: Intercourse with the wife before [she has reached] puberty is prohibited. If virginity is lost due to sexual penetration, the person who has conducted the intercourse shall be responsible to pay the full dia [blood money or compensation to victim] and the woman’s maintenance for the rest of her life, even if she is divorced.

Efza of a Minor Girl

Article 101:

If a man causes Efza (the mixture of urination and menstrual discharge “channels” or menstrual discharge and/or excremental channels, or all three of them) of a minor girl through adultery, the person causing Efza shall pay the equivalent of compensation to an adult woman. This provision does not apply to an adult woman’s loss of virginity either through legal marriage or adultery.

Validation of a Virgin Girl’s Marriage Contract

Article 102:

(1). The enforcement of a virgin girl’s marriage is subject to her own consent and the permission of her natural guardian.

(2). If the following circumstances are proven by the virgin girl before the court, the natural guardian’s permission shall be revoked:

  1. If getting permission of the natural guardian is impossible and the girl is in need of marriage.
  2. If the natural guardian is an imbecile.
  3. If the natural guardian is a non-Muslim.
  4. If the natural guardian prevents the girl from marrying a person of interest, who is not of the equal status, and there isn’t any other person available for marriage of her equal status.

(3). Tribe, nationality and race are not considered to have difference status, so long as the person is Muslim.

Marriage of an Insane Person

Article 103:

The natural guardian has no authority over the marriage of a periodically insane person and his/her marriage contract is valid during his/her sanity. A permanent insane person after becoming sane cannot revoke a marriage contract arranged by his/her natural guardian. Where a permanently insane person has no natural guardians, and when an urgent need is established, the court shall intervene concerning the marriage.

Marriage of an Imbecile

Article 104:

An imbecile is allowed to independently manage his/her marriage, however his/her financial affairs are managed by a guardian. If a guardian fails to perform his/her duties, the court shall intervene and require the guardian to perform those duties.

Intention and Consent of Parties

Articles 105:

(1). Intention and consent of the parties are prerequisite to the marriage contract and it is required to be obtained explicitly by words, action or writing.

(2). Whenever a contract of marriage is carried out without the consent of the parties, or a party, it can be subsequently validated by later consent.

(3). The contract of marriage shall be implemented by verbal offer of a party and verbal acceptance of the other party with the explicit intention to marry [that person].

Wording of Marriage Contract

Article 106:

Offer and acceptance in a marriage contract shall take place as below:

  1. With the couple’s intention to write marriage vows, and create the marriage.
  2. Each offer and acceptance has equal priority.
  3. The customary sequence shall be respected between offer and acceptance.
  4. If possible, the words of marriage performance shall be recited in Arabic.
  5. Offer and acceptance which are cited in Arabic shall be in the past tense.
  6. The words of offer from a male party or the husband and the acceptance using the word Qabelto (accepted) or Razaito (agreed) shall be valid.

Agency (representation) in the Marriage Contract

Article 107:

(1). Each of the marriage parties shall appoint an agent to represent him/her in arranging and facilitating execution of the marriage contract with either a specified person or an unspecified person.

(2). A marriage contract agent shall be mature, sane, willing, competent and Muslim.

(3). If a person assigns an absolute agent for the execution of a marriage contract, the agent cannot marry the person/client.

(4).Where the agent breaches the specific conditions made by the client concerning a third person, or the Mahr [Mandatory gift or dowry from groom to bride], or other conditions, or the agent does not otherwise act in the best interests of the client, the marriage contract shall be deemed to be inoperative.

(5). A marriage agent, without permission from his/her client cannot select another person as his/her client’s agent.

(6). Where the marriage contract is initiated between an authorized agent, and an unauthorized agent, the contract will not be effective unless and until the client of the unauthorized agent agrees to the contract terms.

(7). Where delay in acceptance or rejection of the terms of the contract results in losses to the client of the authorized agent, the client of the authorized agent shall have the right to revoke the terms of the contract.

Dispute over Gender

Article 108:

(1). The essential condition of a marriage contract is that the parties shall be of opposite gender at the inception and throughout the duration of the marriage.

(2). Where the gender of a party is not recognized according to Sharia, or is not capable of determination, the marriage contract shall be invalid.

Determination of the Marriage Contract Parties

Article 109:

(1). Specifying both parties of the contract that is not doubtful to the identification of the parties, is a condition of a valid marriage contract.

(2). If there is any doubt in identifying either party to the marriage contract, the contract shall be deemed invalid.

(3). Where a person with the qualities and title of another person (not him/herself) is a contracting party to a marriage contract, and the other contracting party relies on the description of these qualities and title in agreeing to the marriage contract, the marriage contract shall be deemed invalid.

Definite and Indefinite Terms in the Marriage Contract

Article 110:

Where the validity of the marriage contract depends upon the occurrence of an indefinite condition or event, the contract shall be deemed invalid. Where the validity of the contract depends upon the occurrence of a definite event, such as the marriage is to be performed on a Friday, or the contract is to be between paternal cousins, the contract is valid.

CHAPTER FIVE: EFFECTS OF MARRIAGE CONTRACT

Definition and Types of Mahr [gift offered by the groom to the bride]

Article 111:

(1). Mahr (dowry) is what the man marrying a woman pays to the woman or promises to perform for the woman. A promise to make a payment to a woman’s father or to a third person is unenforceable.

(2). There are four types of Mahr:

  1. Mahr-e-Mosama or specified dowry is the sum that is determined by the couple’s mutual consent.
  2. Mahr-e-Mesel or dowry of women of her status is the sum determined on the basis of the woman’s family’s status in the community, local customs and other criteria.
  3. Mahr-e-Mota’a or dowry is the sum to be determined by the man’s financial ability.
  4. Mahr-e-Sunna or dowry according to Islamic tradition is 500 silver Dirham where one Dirham equals in size 18 peas.

The payment of Mahr-e-Mesel, Mahr-e-Mota’a and Mahr-e-Sunna shall be determined in accordance with the provisions of this law.

(3). Mahr may be determined in two ways (partially as cash and partially as credit) A promise to pay Mahr based on an indefinite condition that could potentially fail to occur shall be deemed invalid.

Conditions of the Mahr

Article 112:

(1). The objects that can be considered as Mahr shall have the following conditions:

  1. It shall have economic value and may include substances, benefits, operations and financial rights and obligations, or waiver of such rights and obligations, such as a waiver of a commitment to build a multi-story commercial building.
  2. It shall be capable of being possessed. Alcohol and pork products may never be deemed acceptable as content of the Mahr. Where the above-mentioned products are determined as Mahr, and after sexual penetration takes place, Mahr-e-Mesel shall be selected.
  3. It shall be known, unless the parties have agreed that its content is to be determined by one of the couple or a third person; or if it is present, in which case seeing it is sufficient, and its weight, quantity or price is not necessary.
  4. It shall be capable of both being given and received [to/by another person].

(2). Where Mahr does not meet the conditions specified in paragraph (1) of this article, in case of divorce after sexual penetration the wife shall be entitled to Mahr-e-Mesel.

(3). Where the property described in the marriage contract is not owned by the husband, and the owner of the property declines to surrender that property, the wife shall be entitled to Mahr that is of equivalent value to the property described.

(4). Where Mahr is a specific item and it is destroyed before execution of the marriage contract or before delivery, the wife is entitled to demand the equivalent or the value of the item. Where the content of Mahr has been damaged, the wife shall be entitled to receive the damaged item and indemnification for the difference between the value of the damaged item and its undamaged value.

Ownership of Mahr

Article 113:

(1). The wife shall demand the full Mahr immediately after Nekah (solemnization of marriage), unless agreed by both parties to be provided in installments.

(2). The wife can refuse to submit to her husband [sexual desire] until the full Mahr is paid by the husband, even if the husband is poor, unless otherwise specified in the marriage contract. Sexual penetration before [wife reaches] puberty cannot prevent the wife from demanding the Mahr.

(3). If the Mahr is Moajal (to be conferred at a later time) and the wife willingly refuses to submit to her husband’s sexual desire until the payment time has arrived, the wife’s refusal shall not be valid.

Determination of Mahr During Solemnization of Marriage Contract

Article 114:

(1). After the Mahr has been specified in the marriage contract, and the woman submits to the husband, the husband is obligated to pay the specified Mahr. Where the wife is divorced prior to sexual penetration, she shall be entitled to half of the specified Mahr.

(2). Where the wife has received the full sum of Mahr and has spent or destroyed it, and the wife is divorced before sexual penetration, the husband may demand return of half of the value of Mahr; where the value of the Mahr at the time of divorce is different from the value at the time it was paid, the amount to be paid to the husband shall be based on the lower of the two values.

(3). Where the Mahr consists of income-producing property, and the wife is divorced prior to sexual penetration, the wife shall be entitled to all of the income attributable to the property; except where Mahr is a pregnant animal or a fruit tree, in which case half of the separate income shall belong to the husband. Where the wife has damaged the property, the husband may demand half of the property as well as half of the Arsh[term referring to the amount of damages to be assessed in such cases as specified by law) to be returned.

Circumstances of the Increase and Decrease of Mahr

Article 115:

Where the value of Mahr increases due to the contribution of the wife between the time it was received and divorce of the wife prior to sexual penetration, such increase shall belong to the wife; but where the value increases or decreases as a result of market rates, that increase or decrease shall belong to the husband.

Husband’s Discharging from the Obligation of Mahr

Article 116:

In a divorce action where, prior to sexual penetration, the wife has waived the husband’s Mahr obligation, or has donated the Mahr to him, the wife shall nonetheless be entitled to half of the dower.

Circumstances of Entitlement to Mahr

Article 117:

(1). Where the marriage contract is revoked under any condition after sexual penetration, the wife shall be entitled to the entire Mahr.

(2). Where the marriage contract is revoked under any condition before sexual penetration, the wife shall not be entitled to her Mahr, unless this revocation occurs due to the husband’s apostasy or impotency, in which case the wife shall be entitled to half of the specified Mahr.

(3). Where, following sexual penetration, the marriage contract is revoked due to a discovery of a defect about which the wife deceived the husband, the wife shall not be entitled to Mahr. If, however, it is determined that the husband was deceived by a third person, rather than the wife the wife shall be entitled to Mahr and the third person shall be liable to the husband for damages.

(4). In the event of the death of either party before sexual penetration, the wife shall be entitled to half of the specified Mahr; however, if Mahr is not mentioned in the marriage contract, the wife is not entitled to receive dower.

(5). If the marriage contract was entered into during the husband’s disease and if before sexual penetration, either party dies, the wife shall not be entitled to receive anything.

(6). In case of invalidation of the marriage contract due to discovery of an obstacle to the marriage contract, prior to sexual penetration, the wife shall not be entitled to dower. However, in case of sexual penetration the wife shall be entitled to Mahr-e-Mesel [similar Mahr of other women of her status]. Where the wife was aware of the invalidation of the marriage contract prior to sexual penetration, she is not entitled to receive anything.

Non-determination of the Mahr in the Marriage Contract

Article 118:

(1). A marriage contract is valid even if Mahr is not determined, and the couple may determine the terms of that [Mahr] before sexual penetration, and after sexual penetration the wife is entitled to Mahr-e-Mesl [similar Mahr of other women of her status].

(2). Where in the time period between execution of the marriage contract and sexual penetration, the value of the Mahr changes, the standard for the Mahr-e-Mesel shall be the value at the time of sexual penetration.

(3). Where Mahr has not been determined, the wife may refuse to submit to her husband’s sexual desire until the amount of Mahr has been determined and received.

(4). Whenever the marriage contract before sexual penetration is revoked due to divorce, apostasy or impotency of the husband, in case of indetermination of Mahr, the wife is entitled to Mahr-e-Mota’ [the least amount or an object of lower value such as a pair of shoes, clothes...]. But if the revocation of the marriage contract occurs due to the death of either party, apostasy or defects of the wife, and if the Mahr is not determined before and after the marriage contract, or before sexual penetration, the wife shall not be entitled to anything.

(5). Where Mahr has not been determined and the marriage contract is revoked prior to sexual penetration due to obstacles to the sexual penetration, the wife shall be entitled to nothing. But where the revocation occurs following sexual penetration, she shall be entitled to Mahr-e-Mesel [similar Mahr of other women of her status], provided it is not more than 500 Dirham (Mahr-e-Sunna or as specified in Islamic tradition). But where the wife was aware of the invalidation [of the marriage contract], she shall be entitled to nothing.

Non-Determination of the Specified Mahr in the Marriage Contract

Article 119:

A provision in a marriage contract that prohibits the determination of the discussion of the payment of Mahr shall invalidate the contract. However, a provision that the parties agree not to specify the terms of Mahr is permissible; in that case, the Mahr shall be treated as undetermined. But in case where there is a provision in the contract that does not specify the payment of Mahr-e-Mesel, and sexual penetration occurs, both the condition and the contract are void.

Delegating Determination of Mahr

Article 120:

(1). If the authority to determine the Mahr is delegated to the husband or a third party, the husband or the third party may determine the amount of Mahr. If the authority to determine the Mahr is delegated to the wife, she cannot determine the Mahr if it is more than Mahr-e- Sunnah (as determined in Islamic tradition, 500 Dirham] without her husband’s consent.

(2). When the authority to determine the Mahr is delegated to the husband or the wife, and the die before the determination of Mahr and before sexual penetration, the wife shall be entitled to Mahr Mota’ [the least amount or an object of lower value such as a pair of shoes, clothes...]. But if the authority to determine the dower is delegated to an arbitrator and that arbitrator dies before determination of the amount of Mahr and before sexual penetration takes place, a new arbitrator shall be appointed and/or the couple shall determine the Mahr by agreement. But if the arbitrator dies after sexual penetration, the wife shall be entitled to Mahr-e-Mesel [similar Mahr of other women of her status].

(3). If the person to whom the responsibility [of determining the amount of Mahr]has been delegated refuses to determine the amount, the court shall require him/her to determine the amount and or assign a new arbitrator, or the couple may agree to determine the amount of dower themselves.

Disagreement Regarding Mahr

Article 121:

(1). When the husband claims that he has provided Mahr and the wife, instead, claims that it is a gift, the following should apply:

  1. The verdict shall be in favor of the party who has reasons and evidence.
  2. When both parties bring reasons and evidence to prove their claims, the wife’s reasons and evidence have priority.
  3. If both parties fail to provide evidence, the verdict shall be in favor of the husband.

(2). When the amount of Mahr has not been specified in the marriage contract, and the wife has taken something of value from the husband before sexual penetration, that item shall be considered as her Mahr.

(3). In case the wife dies or a divorce takes place and the Mahr was agreed to be paid in some time in the future, the Mahr shall not be due until that future date. But when the husband dies, Mahr-e-Moajal [to be conferred at a later time] will immediately become Mahr-e- Muajal [to be paid immediately].

(4). When the Mahr is gold or money, the wife can demand that, ifand the parties disagree about the amount due, the parties or their heirs should negotiate the result among themselves.

A Minor Wife’s Mahr

Article 122:

(1). When a marriage contract of a male minor is executed by the minor’s father or paternal grandfather, the male minor shall be responsible for the Mahr, unless the minor has no financial resources. In that case, the minor’s natural guardians shall be responsible for the Mahr. Upon the death of the natural guardian who was responsible for the Mahr, the Mahr shall be paid from the natural guardian’s estate.

(2). When the husband’s father pays the Mahr and his son becomes mature and he divorces his wife before sexual penetration, the husband shall demand half of the paid Mahr.

The Payment of the Marriage Dower by an Agent

Article 123:

When a person claims to be representing a man, and facilitates his marriage, but the man dies after the marriage contract takes place, in the case the heir [of the deceased man] denies that person’s claim [being the deceased man’s representative], and there is no evidence, the representative is obligated to pay the wife’s [widow] Mahr according to the provisions of this law.

Differences in Determination and Receipt of the Marriage Dower

Article 124:

(1). When the couple has differences about determining a specific Mahr, the person claiming the specific Mahr shall be required to prove his/her claim; otherwise, the words of the other party shall be accepted on oath. In the case of differences regarding the receipt of the Mahr, the person claiming that the Mahr was received shall be required to prove it; otherwise the words of the person denying receipt shall be accepted on oath.

(2). When the husband claims the discharge of the obligation, or payment of the Mahr, and the wife denies having received payment, or the wife claims more and the husband claims less, the person alleging discharge of the obligation or payment of the Mahr or a higher value shall be required to prove that claim; otherwise the words of the other party shall be accepted on oath.page42image18264 page42image18424

Disagreement over Sexual Penetration

Article 125:

In case of disagreement over sexual penetration or non-penetration, the party who claims sexual penetration is required to bring evidence. Otherwise, the claim of the party who denies sexual penetration shall be accepted under oath. If divorce has taken place after the parties have spent time alone and the wife claims sexual penetration while the husband denies sexual penetration, the words of the denier concerning sexual penetration shall have priority by oath.

Disagreement Regarding Mahr-e- Maujal [to be paid immediately]

Article 126:

In case of disagreement regarding whether the Mahr is to be paid immediately or in the future, the party claiming future Mahr payment shall be required to present proof; otherwise, the words of the party claiming immediate payment shall be accepted on oath.

Enumeration of other Assets instead of the Determined Mahr

Article 127:

When the Mahr has been specified, but another item is mentioned as Mahr, and the first Mahr is not intended, the Mahr agreement shall be deemed nullified. However, where it can be shown that the parties’ intention was that the first item specified was always intended to be the marriage Mahr, then that first item shall be recognized as Mahr.

Requirements for Determining Mahr-e-Mesel [dowry of women of her status]

Article 128:

In the following cases similar Mahr (Mah-e-Mesel) proportion shall be required upon the person:

1. In case a male causes a girl to lose her virginity by any tool or instrument 2. If adultery is committed with a female of unsound mind or a minor

3. In case adultery is committed with a woman who does not have knowledge about the illegality of adultery.

Methods of Payment of Mahr

Article 129:

(1). When Mahr is to be paid in domestic or foreign currency, the amount of Mahr to be paid at the time of payment shall be calculated to be equivalent to the value of the amount specified at the time of execution of the contract; otherwise, the parties shall resolve the difference taking into consideration differences in currency rates.

(2). When Mahr is to be paid in the future Mahr-e-Moajal [to be conferred at a later time], it shall be calculated at the time of payment to be equivalent to the value of the Mahr specified at the time of execution; otherwise, the parties shall resolve the differences.

Maintenance

Article 130:

In accordance with the provisions of this law, the wife’s maintenance shall be undertaken by the husband.

Dowry

Article 131:

(1). Dowry: Household goods, clothes or things brought to the [marriage] house by the wife from her, own assets or her father’s.

(2). The husband is not entitled to ownership or use of the wife’s dowry, except if the wife consents to the husband’s use or control of the content of the dowry, or if local custom otherwise allows.

(3). When the husband or his creditors claim that specific property belongs to the husband, and the wife claims that the specific property is from her own dowry, the party not in possession of the property shall be required to present proof of ownership. But if both parties are possessors or neither party is a possessor of the property, the parties shall be required to present evidence of ownership.

(4). When one of the couple claims the damage to, or loss of the dowry by the other party, and the other party denies responsibility for that loss, the claimant shall be required to prove the allegation; otherwise, the oath of the person denying fault shall be the basis for the verdict.

(5). If, prior to the marriage, the husband buys materials that he takes to the wife’s house with the understanding that she will bring these materials to the marriage house, these materials shall be deemed to be part of the husband’s property, unless the wife proves that these materials became her property.

Joint Obligations of the Couple

Article 132:

(1). The couple shall be obliged to get along with each other, their parents and their relatives.

(2). The couple shall be obliged to assist and cooperate with each other in maintaining a stable family, and in raising their children.

(3). Couples shall avoid performing acts that my cause animosity against each other. If a man demands his wife to apply makeup on behalf of the man, she is obliged to do so.

(4). The husband is bound to spend at least one out of four nights with his wife when he is not traveling. This shall not apply if any of the parties have a sexually transmitted disease, or if this shall cause harm to either party. It is the duty of the wife to defer to her husband’s inclination for sexual enjoyment. The man is expected not to postpone sexual intercourse with his wife for more than four months.

(5). When a man has more than one wife, he shall be obliged to allocate at least one night out of every four nights for each wife in accordance with subparagraph 4 of this article. The wife’s right [to spend the night with her husband], if agreed, is transferable to the husband or other wives.

(6). The marriage couple can extend the number of nights shared with any wife provided that the arrangement does not impose harm or hardship on his other wives.

(7). The wife is obligated to maintain the marriage home and to do household chores only if specified by the husband as a condition in the marriage contract; otherwise household chores is not obligated to the wife.

Couples’ Mutual Rights

Article 133:

(1). The household’s supervision is the right of the husband, unless based on the husband’s mental deficiency, and by order of the court, it [supervision] is given to the wife.

(2). If a wife has employment before marriage and continuation of the job is conditioned at the time of the marriage contract, in this situation the husband cannot oppose the wife’s employment after marriage, unless such employment is against the interest of the family or of one of the spouses.

(3). A husband can prevent his wife from any unnecessary action or actions, which are not according to her duties as specified by Sharia Law and are contrary to the local customs and the husband’s benefits.

(4). A wife cannot leave the house without her husband’s permission unless she has urgent cause, or is in extreme difficulty, in this event, she may leave the house. In case of dispute the issue shall be resolved by a court.

(5). A wife is the owner of her own assets and can possess it in any form without her husband’s permission.

Conditions of Addendum to the Marriage Contract

Article 134:

(1). Conditions within an addendum to a marriage contract are subordinate to conditions contained within the original contract. If the original contract is valid, it [addendum] is also valid, if it [original contract] is invalid it [addendum], shall also be invalid. There are three types of it [addendum conditions]:

  1. Characteristic conditions: This type of condition relates to quality or quantity of the agreement’s object. [this may refers to Mahr)
  2. Future event condition: This type of condition is related to occurrence of an issue outside or beyond the contract.
  3. Condition about Performance of an Act: This type is the condition of performing or non-performing of an act on one of the parties or a third person.

(2). When a condition of an addendum is not possible, or if it violates the law or Sharia, the condition shall be void with the marriage contract remaining valid, unless such condition removes the Mahr in which case the marriage [contract] shall be void.

(3). A condition in conflict with the requirements set forth in a marriage contract is invalid and will invalidate the contract. A condition conflicts with the requirements of a marriage contract when it voids those things essential/belonging to, or are the consequences of, the marriage, or it changes from a positive condition to one that voids those things essential/belonging to, or are the consequence of, the marriage. For example, the absence of absolute marital relations.

(4). The wife may set the following conditions in a marriage contract that must be met by the husband:

  1. Husband shall not enter into another marriage contract, whether permanent or temporary, with another woman.
  2. Wife may choose the shelter [home, place to live]
  3. Wife has the right to unconditional divorce or divorce based on the following circumstances:Non-payment of maintenance that results in hardship for the wife.
    Imprisonment of the husband for a long period.
    Husband is afflicted with an incurable disease.
    Husband is absent, for example – absent for more than two or three years.

(5). Conditions affecting the dissolution of a marriage are invalid if they are not included within this law.

(6). When the addendum includes specified performance [or specified non-performance] by a third party and the third party agrees, the third party shall be liable for losses associated with failure to carry out the agreed performance [or non-performance].

Disputes Arising from the Marriage Contract

Article 135:

(1). When a dispute occurs between the zaowjain [husband and wife] regarding a condition within or other related agreements associated with the marriage contract, the complainant shall provide proof; otherwise, the respondent [the one who denies the complaint] will give a sworn statement [oath] and that will be the basis of the verdict.

(2). When a person claims they are married to a person who denies it, the claimant shall prove the claim; otherwise, the respondent [the one who denies the claim] will give a sworn statement [oath] and that will be the basis of the verdict. In case the respondent [the one who denies the claim of marriage], after the issuance of the verdict in his/her favor, admits the marriage exists and has a proper reason for the prior denial, a verdict shall be issued to affirm the marriage.

(3). When a woman states that she has no husband, a man may assume her statement is true without investigation, and he may marry her; however, if after the marriage the wife states she is married to someone else, or another man claims he is married to her, and this is proved true, the marriage contract shall be invalid and considered as wati ba shobha [sexual intercourse in doubt]. If there was sexual penetration and the woman has no knowledge about the invalidity of the marriage contract, she shall be entitled to a Mahr-e-Mesel [dowry of women of her status].

CHAPTER SIX: TEMPORARY MARRIAGE

Conditions of Temporary Marriagepage48image22488

Article 136:

(1). Nekah-e-Mata’ is a marragie contract in which a man considering the conditions set forth in this law, marries a woman on a non-permanent basis.

(2). The requirements of temporary marriage includes competency, valid conditions [of contract], addendums, and conditions relating to family relationship [non-blood related], it also includes obstacles in the validity of a permenant marriage contract.

(3). Lack of determination of Mahr in temporary marraige contract voids the contract.

(4). If the temporary marriage contract does not specify a term limit, it [temporary marriage contract] shall be changed to a permanent marriage contract.

(5). The duration of a temporary marriage shall begin upon execution of the contract unless the parties agree to a different start date.

Evidences of the Temporary Marriage

Article 137:

(1). The zaowjain [husband and wife] in a temporary marriage shall not be entitled to inheritance from each other and the husband shall not be required to pay maintenance to the wife unless it is a condition within the marriage contract. When the temporary marriage lasts an extended period and the marriage becomes permanent, an addendum requiring maintenance shall be implicit.

(2). A child from a temporary marriage shall have the same rights as a child of a permanent marriage.

(3). The husband [in the temporary marriage] is not obligated to have sexual intercourse or sexual relations with the wife, but the wife is obligated to tamkeen [submit to sexual desire of her husband]. If the wife refuses tamkeen for a period of time without a Sharia-based justification, in this case there shall be a reduction of the Mahr.

(4). The wife may condition tamkeen to payment of the Mahr, unless the dower is mahre- moujal [to be conferred at a later time]; and the husband may also condition payment of Mahr to sexual penetration.

(5). When one of the couple dies or the period of the temporary marriage expires before the wife gets ready for tamkeen, the husband must pay the Mahr.

(6). When it is clear that the temporary marriage contract is invalid and before sexual penetration, nothing shall be given to the wife; if, after sexual penetration, or if the wife had no knowledge of the non-truthfulness [within the marriage contract] the husband must pay Mahr-e-Mesel [dowry of women of her status; but if wife had knowledge of the non- truthfulness, she shall be entitled to nothing from the Mahr.

(7). When the husband spends a certain time period with the wife before sexual penetration, he shall pay half of the Mahr to her; but if he spends a certain period of time with the wife after sexual penetration, he shall be obliged to pay the full sum of the Mahr.

(8). The temporary marriage contract is not subject to divorce, ilah [swearing to abstain from sexual relations with the wife for four months], lea’an [baseless accusation of adultery] or muhalel [wife marrying and divorcing another man in order to re-marry original husband]; multiple temporary marriage contracts and dissolutions with the same wife shall not be prohibited.

Dissolution of the Temporary Marriage Contract

Article 138:

(1). A temporary marriage shall be dissolved only by expiration of the agreed period, by choice of the husband, or by the death of one of the couple.

(2). If continuing a temporary marriage could cause harm or hardship to the wife, she may request the court to aerzah [reach an amicable agreement] require the husband to prematurely end the contract.

(3). The husband may enter into a permanent or temporary marriage contract with a woman who is in edat, or he may choose to change a temporary marriage to a permanent marriage contract; however he cannot extend an existing temporary marriage contract until the duration of it expires.

Edat in Temporary Marriage Contract

Article 139:

(1). A wife does not have edat if the marriage contract has expired, a period of time has been spent with the wife by the husband, or the contract has been dissolved before sexual penetration. However, after sexual penetration, if the wife menstruates [after sexual penetration], her edat is equal to two times menstruation [two months], but if she has not menstruated [after sexual penetration] and she in not menopausal, her edat will be 45 days. Edat of a pregnant woman shall be until she gives birth to the child; edat of a wife, whose husband dies, shall be four months and ten days.

(2). If the temporary marriage contract is discovered to be invalid, the wife’s edat shall be three periods of tohor [time in between two menstruation periods].

(3). If the husband dies before the expiration of the period [of the temporary marriage contract], the wife shall complete the edat [for death], but if the wife is pregnant, she shall complete the long edat [until delivery of the child].

(4). If it is unclear whether the husband dies before or after the expiration period [expiration date of the temporary marriage], the wife shall complete the edat [for death].

CHAPTER SEVEN: DISSOLUTION OF THE MARRIAGE CONTRACT

Circumstances for the Dissolution of the Marriage Contract

Article 140:

The marriage contract shall be dissolved by revocation, termination, divorce or death of one of the spouses in accordance with the provisions of this law.

Revocation

Article 141:

(1). Revocation occurs when one of the couple uses his/her right, if entitled, to dissolve the marriage contract within the provisions of this law, without other procedures and required conditions of divorce.

(2). Reasons of the revocation of the marriage contract shall be as follow:

1. Defect

2. Breach of a condition [of the marriage contract]

3. Fraud

Revocation due to the Man’s Defects

Article 142:

(1). The existence of the following defects in the husband, either before or after concluding the marriage contract, shall result in the wife having the right to revoke [the marriage contract]:

  1. Impotency: Lack of husband’s penis erection making sexual intercourse impossible. Hopwever, this does not apply if the husband had, at least once, sexual intercourse with the wife or other than her [wife].
  2. Jub: The husband’s penis has been severed to a length that sexual penetration is not possible. However, if the husband’s penis was severed after concluding the marriage contract or after sexual penetration, or sexual penetration is still possible, the wife shall not have the right of revocation.
  3. Castration: non-existence of testicles at birth, removal or their destruction [from injury]; conditioned that the wife did not have any information about this at the time of [executing] the marriage contract.
  4. Insanity: This includes both permanent and periodical insanity before and after concluding the marriage contract, and/or after sexual penetration in either permanent or temporary marriage.

(2). When impotency of the husband is proved, he is required to cure himself within one year; in case he cannot cure himself, the wife may use the right of revocation. However, if within the one year period, the husband has sexual intercourse with his wife or any other woman, or the wife is content to continue with the marriage contract, the wife does not have the right of revocation.

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Revocation due to the Wife’s Defects

Article 143:

(1). The existence of the following defects of the wife before [execution of] the marriage contract shall result in the revocation right for the husband, provided he has no knowledge about them before [execution of] the marriage contract.

1. Protrusion of the womb: Existence of flesh or bone in the wife’s vulva even if it is not an obstacle for sexual penetration or pregnancy.

2. Efza: The mixture of urination and menstrual discharge canals or menstrual discharge and excremental canals or three of them.

3. Lameness [walking/mobility handicap]

4. Blindness in both eyes

5. Insanity

6. Leucoderma [white patches on skin]

7. Leprosy

(2). When the defects referenced in paragraph one of this article occur after the [execution of] the marriage contract, the husband does not have the right of revocation.

Duration of the Right of Revocation

Article 144:

(1). Right of revocation is considered urgent. Upon knowledge of conditions for revocation, one of the sides of the marriage contract does not revoke the marriage contract or sexual penetration occurs or Tamkeen [wife submits to husband’s sexual desire] takes place evidencing [marital] satisfaction, the right to revocation is void, unless they are unaware of the urgency of the revocation [process].

(2). If the revocation occurs, initiated by either party, prior to sexual penetration, the wife is not entitled to any Mahr, however if the marriage contract is revoked as a result of impotency, half of Mahr-e-Mesel is applied. If revocation of the marriage contract occurs after sexual penetration, Mahr-r-Mosama (specified Mahr) shall be required.

(3).The right of revocation shall be void if one of the members of a couple, before the [execution of] marriage contract had knowledge about reasons for revocation.

(4). Defects, as grounds for revocation, shall be proven by confession, testimony on confession, or medical examination.

Violation of a Condition [of the marriage contract]

Article 145:

(1). Whenever a condition is specified for one of the parties to a marriage contract and the marriage contract is based on that condition, and after [execution of] the marriage contract it is determined the contract lacks that condition, the opposite party has the right of revocation.

(2). Whenever virginity is clearly considered a condition within the marriage contract and the marriage contract is based on that condition, if it is later it has been revealed that the wife was not a virgin before marriage, the husband has the right to revocation; if he has not revoked [the marriage contract] and it is proven that the reason for the loss of virginity is from jumping and hopping, the amount of her Mahr that was promised to her should be reduced to the Mahr of a non-virgin woman [for example the Mahr of a widow in her community]. If virginity was not a condition [within the marriage contract] and the husband has been deceived by the wife, her guardian or her agent, the husband has the right to revoke or reduce the Mahr.

Concealment of Fraud

Article 146:

(1). Concealment of fraud is an expressed or implied intentional act by one side in contract or the silence regarding the concealment of fault and defect so that if the opposite side was aware he/should would not agree to the marriage contract; or the lack of specific characteristics articulated to entice the other party [into the contract].

(2). A person who conceals fraud according to the provisions of this law is required to pay damages suffered by the other party; but if the concealment of fraud has not been done by the couple, there is no right to choose [revocation of the marriage contract].

(3). Concealment of fraud is determined by traditions and habits; if there is difference between traditions or a lack of tradition, a judge has the authority to decide.

Revocation of the Marriage Contract [automatic]

Article 147:

Revocation [automatic] is the dissolution of a marriage contract without the intent of either side within of the marriage resulting from the following:

  1. change in gender/sexuality of one of the spouses
  2. one of the spouses commits apostasy
  3. sworn malediction
  4. discovery, after [execution of] the marriage contract, that there is a breast-feeding relationship between the couple.

Change of Gender

Article 148:

Intentional change of gender by one of the spouses shall result in dissolution of the marriage contract and the spouse changing gender shall pay damages suffered by other spouse, to be on the safe side [however], divorce should be pronounced [formally]; if the change of gender [of the male] occurs after sexual penetration, Mahr shall be required.

Apostasy

Article 149:

Apostasy is leaving the Islamic faith, through denying Allah or the Messenger Prophet Mohammad (PBUH) or all the messengers or by denial of the fundamental provisions of the Islamic religion (as accepted by all Muslims) which results in denial of the Prophet Mohammad’s prophecy and is of two kinds:

1. Public apostate is a person whose parents were not Muslims during his/her birth and have converted to Islam after adulthood, and later became a non-Muslim.

2. Inherent apostate is a person one of whose parents is a Muslim during the time of his/her birth, and he/she was a Muslim and later became a non-Muslim.

Consequences of Apostasy

Article 150:

In the case of apostasy the results are as follows:

(1). If one of the members of a married couple before sexual penetration and after conclusion of the marriage contract becomes apostate, the marriage contract shall be terminated automatically. If the apostate is a woman, her Mahr will be cancelled, and if the apostate is a man, he is required to give half of the Mahr to the woman.

(2). If apostasy happens after sexual penetration and before ending the time of edat, and the apostate shall accept Islam again, the first marriage contract is considered enforceable and if he did not return to Islam again, the marriage contract shall be terminated or cancelled. In this case, the woman shall be separated from her husband from the time of apostasy and is entitled to the entire Mahr.

(3). If the apostasy of the husband is inherent, the marriage contract shall be terminated from the time a person become an apostate and sexual intercourse shall not affect the marriage contract.

(4). if the husband of the wife who believes in the holy books [Bible, Torah, Zaboor] becomes a Muslim, the marriage contract is effective (whether the conversion has happened before or after the contract).

(5). If the wife who believes in the holy books becomes a Muslim before sexual penetration, the marriage contract is void, and she is not entitled to Mahr.

(6). If the wife who believes in the holy books becomes a Muslim after sexual penetration, and if the husband becomes a Muslim before completing the time of edat, the first marriage contract is valid. Otherwise, as soon as the wife becomes a Muslim, she shall be separated from her husband.

(7). If a non-Muslim man and woman who do not believe in the holy books become Muslim before sexual penetration, the marriage contract shall be immediately revoked; and if conversion to Islam happens after sexual penetration, the marriage contract shall be revoked after ending the time of edat, and where the other party to the marriage contract becomes a Muslim, the marriage is considered valid.

Sworn Malediction [curse of Allah]

Article 151:

(1). Causes of sworn malediction are as follows:

1. When a husband without any reason or evidence accuses his wife with whom he has had sexual penetration, of adultery and she is not known to be an adulteress.

2. When a husband without any reason or evidence denies fathering his child whose birth resulted from his sexually penetration of his wife.

(2). Where the husband accuses his deaf and dumb wife of adultery, the sworn malediction shall not be enforced, and from the time of the accusation of his wife, the wife shall be considered unlawful (haram) for the husband.

(3). Sworn malediction is considered valid when both parties are adults, sane and free [not slave].

Methods of Performing Sworn Malediction

Article 152:

Married couples shall perform the following acts in Arabic or in their native language in a standing position in front of the court:

  1. First the husband shall say four times: “I swear to Allah that the act for which I am accusing my wife is true.”
  2. Then, the court shall advise the husband, and if the husband accepts that he was wrong [that he wrongfully accused his wife], he shall be punished; but if he does not agree that he was wrong, then for the fifth time the husband shall say “Allah curse me, if what I accused my wife of, is not true.”
  3. Then the wife shall say four times: “I swear to Allah that what I have been accused of is not true.”
  4. Then the judge shall advise the wife, and if she confirms her husband’s accusation, she shall be punished; but if she does not agree that her husband was right, then for the fifth time she shall say “anger of Allah be on me if what my husband accused me of is true.”
  5. If it is possible, the above statements shall be pronounced in the Arabic language, otherwise another language is sufficient.

Consequences of Sworn Malediction

Article 153:

When there is sworn malediction the marriage contract is terminated, had of qazaf or punishment for false accusation of sexual intercourse shall be cancelled, and the husband shall deny that he is the father of the child.

Revocation of the Marriage Contract as a Result of Breast-feeding

Article 154:
Breast-feeding after fulfilling the conditions set forth in this law, and after marriage, shall create a breast-feeding relationship, and shall cause the marriage contract to be automatically terminated.

Divorce

Article 155:

(1). Divorce is the dissolution of a marital relationship that according to the provisions of this law shall be done by the court or by one of the marriage couple.

(2). The husband is required to perform all the commitments or obligations resulting from the marriage contract such as Mahr and maintenance of the wife.

(3). If the husband has granted his wife the right to divorce, the wife can divorce herself. In this case the husband is required to perform all the commitments mentioned in paragraph 2 of this article.

Divorce by Court

Article 156:

(1). The wife can complain to the court if the husband fails to provide her maintenance; the court shall give the husband two options: either to provide maintenance or to divorce [his wife]. If the husband refuses [either one of them], the court shall issue the divorce order; and also concerning the Ilaa (the foreswearing by the husband of conjugal relations), the Mujtahid [clergy practicing religious jurisprudence], who meets the requirements of Shia faith can carry out the divorce.

(2). Where the request for divorce comes from either of the parties, the court shall first appoint two arbitrators [could mean mediators] from amongst their relatives to try to reconcile the couple.

Elements of a Valid Divorce

Article 157:

Elements of a valid divorce are as follows:

1. pronouncement of divorce 2. divorcer
3. divorcee
4. witnesses

Divorce Pronouncement

Article no 158:

(1). In the pronouncement for divorce, the terminology that specifies the wife in divorce shall be used before the word taleq such as zujate taleq.

(2). When possible, the pronouncement for the divorce shall be recited in the Arabic language; otherwise, express words signifying divorce shall be used.

(3). The husband and the wife can assign another person as an agent to perform the pronouncement for divorce.

(4). The pronouncement for the divorce must be undertaken according to the conditions of a valid divorce and its conditions, otherwise it is considered invalid. If after the performing of the divorce pronouncement it has been revealed that the pronouncement for the divorce has not occurred correctly, the divorce is considered invalid.

(5). The performing of three divorce declarations in one session is invalid. Performing several divorce declarations independently without returning to the wife is considered as one divorce.

Criteria of the Divorcer

Article 159:

(1). A person pronouncing divorce shall be an adult, sane, free and have the intention to utilize the words of divorce in the prescribed formula; provided that, a pronouncement of divorce by a person who is intermittently or temporarily insane shall be accepted if it is shown that the pronouncement was made during a period of lucidity.

(2). A natural guardian, trustee or court appointed guardian, and supervisor may divorce the wife of a permanently insane person before the court by proving that it is in the interest of the permanently insane person but they may not divorce a minor [under aged] wife.

(3). An imbecile may divorce his wife, but all the financial consequences flowing from such a divorce shall be the responsibility of his guardian.

(4). Duress invalidates the contract of divorce under the following conditions; later consent is of no effect on it:

1. The person exerting duress is in a position of dominance and is able to exercise it.

2. The person subjected to duress is unable to repel or resist the duress.

3. The duress is such as to cause harm to life, property or the reputation of the person threatened or of his family and is not inconsequential.

(5). If after pronouncing divorce according to the prescribed formula, and after the expiration of the waiting period (edat), the husband claims that he had no intention of divorcing his wife, his claim shall not be heard, except in revocable divorces.

Criteria of the Divorcee

Article 160:

(1). Divorce of a wife who has had sexual penetration, and has reached puberty and is not pregnant, is invalid. Divorce of a wife, who has not been penetrated, or if she is pregnant, and is during her menstruation period or post-partum bleeding, is valid.

(2). Whenever a man (whether physically present or not) is for some reason unaware of his wife’s menstrual and post-partum bleeding status, and from the previous habits and circumstances knows that she is pure (she is not facing menstruation or post-partum bleeding), the divorce is considered valid. However, if he later learns that at the time of pronouncement of divorce his wife was impure then, as a precaution he shall repeat the pronouncement after a one month period of separation. If, by means of telephone or other means, he learns about the time of menstruation, he must ensure that the wife is not in a state of menstruation during the pronouncement of divorce.

(3). Divorce of the wife who has had sexual intercourse in the time of tohor (time between two menstrual periods) is considered invalid unless the wife is pregnant, menopausal, a minor or if her husband is absent. If the husband has difficulty in establishing his wife’s pureness or impureness status then the validity of the divorce will be considered according to the provision of paragraph 2.

(4). If the wife at the time of divorce claims that she is in state of pureness and after the pronouncement of divorce she claims that she was not pure from menstruation then the divorce is valid unless the wife proves her claim.

Witnesses

Article 161:

The pronouncement of divorce shall be made in front of and within the hearing of two male witnesses, provided that if after the pronouncement of divorce it is later revealed that one or both the witnesses was not fair and just, the divorce shall be invalid.

“Fairness” and “justness” of a person means, performance of all the religious duties and abstaining from all illegitimate acts out of fear of Allah.

Types of Divorce

Article 162:

Divorce according to its consequences is as follows:

  1. Irrevocable divorce (bayen): under bayen divorce, the marital relationship is irrevocably dissolved and there is no right of return.
  2. Revocable divorce (rajyee): under rajyee, dissolution of the marriage contract is suspended until expiration of the edat period, and the husband may return to his wife during the edat period at which point the divorce shall become invalid.

Irrevocable (Bayen) Divorce

Article 163:

Divorce of a wife is irrevocable under the following circumstances:

  1. Where the wife has not been sexually penetrated.
  2. Where the wife is in a state of menopause.
  3. Where the divorce is pronounced following two prior revocable divorce pronouncements.
  4. Where the wife is a minor [under aged].
  5. Where the divorce is sought by the wife by offering a financial consideration (khola).

Khola Divorce

Article 164:

(1). Whenever the wife hates living with the husband, and both parties fear acting contrary to Sharia provisions, then the wife or her guardian may pay compensation to the husband and convince him to agree to a khola divorce.

kerahat [extreme hatred]by the wife of her husband may be due to inherent characteristics such as ugliness or external actions such as a second marriage.

(2). If the compensation offered does not meet the criteria of eligibility due to lack of awareness due of lack awareness of criteria of eligibility, Khola divorce is valid, and the wife is responsible for the payment of the price; for example, if the wife offered honey as compensation but it is later revealed that it was wine [that would be invalid].

(3). Where the compensation has been damaged or is defective before its submission, then the wife is responsible for its replacement, its price or a substitute of equivalent value.

(4). The compensation has the same conditions of the marriage-dowry mentioned in paragraph 1 of article 123, and its amount shall be determined by agreement of both parties. If after divorce there is a dispute as to the amount or item offered, the wife’s claim on oath shall be given priority.

(5). If a wife has to pay compensation or is forced to pay compensation due to mistreatment by her husband or as a result of violating her matrimonial duties, and divorce happens under conditions similar to rajyee divorce (revocable divorce) it will be considered rajyee or revocable divorce, unless it is considered bayen divorce (irrevocable divorce), and in that case the husband shall not be entitled to compensation.

Pronouncement of khola Divorce

Article 165:

(1). The khola divorce shall be pronounced in Arabic language, and shall be made in one of the following ways:

  1. First the wife shall say: “I offer this property in order for you to divorce me.” Then the husband shall reply “I shall divorce you (khola) if you give me the said property.”
  2. First the husband shall say: “I divorce (khola) you if you give me the property” or “I divorce (khola) you (state the name of wife)” and the wife shall accept.

(2). In validation of the khola divorce, the customary sequence of offering of the compensation by the wife and the divorce pronouncement by the husband are considered conditions, otherwise the divorce occurred in accordance to rajyee (revocable divorce). Nevertheless, it may still be considered a bayen (irrevocable) divorce, but the husband shall not be entitled to compensation.

(3). A third person without power of attorney or right of guardianship cannot offer the property to request the husband to divorce his wife. The wife also cannot offer property from others as compensation. If property owned by others has been mistakenly offered, the khola divorce shall be valid but the wife shall be responsible for the replacement or its equivalent value [of the compensation] to the husband.

Consensual Divorce

Article 166:

(1). If husband and wife extremely hate each other and the wife, by offering compensation not being more than Mahr, and her husband agrees to divorce her, then the divorce is a consensual divorce.

(2). The divorce pronouncement in a consensual divorce requires that the husband say to his wife: “I divorce you in accordance with the consensual divorce.” If the husband does not know the Arabic language, another person shall be selected as his attorney with knowledge of the Arabic language to make the divorce pronouncement.

(3). In khola and consensual divorce, if the wife returns, she can reclaim the compensation [that was offered by her]; in which case the khola and the consensual divorce become a rajyee (revocable) divorce.

(4). The wife can reclaim the compensation under following conditions:

  1. If the waiting period edat has not expired.
  2. If the divorce is under circumstances where the husband can return to his wife, such as where the wife is in menopause, or has not had sexual penetration, or if she is not in her third divorce.
  3. If the wife reclaims the compensation offered, the husband shall be informed, otherwise the reclamation shall be invalid.

(5). The validation conditions and provisions regulating khola and consensual divorce are the same as those relating to rajyee (revocable) divorce.

Rajyee (Revocable) Divorce

Article 167:

(1). With regard to a rajyee divorced wife, during the waiting period (edat), all the rights accruing from marriage (maintenance and inheritance) are enforceable.

(2). In circumstances where khola or consensual divorce may convert to rajyee (revocable) divorce the provisions of rajyee divorce apply.

(3). The husband may not deprive himself of the right to return to his wife in the beginning or during the edat of the revocable divorce.

(4). The wife cannot deprive herself of the right to reclaim her compensation in the beginning or during other contracts [in case there are other contracts between the parties], or settle for reconciliation.

Conditions for Resumption of Marriage by Husband in a rajyee (revocable) Divorce

Article 168:

(1). Resumption (rojo) means returning the rajyee divorced wife to the previous marriage contract before the expiration of the edat (waiting period.)
(2). Resumption or rojo in rajyee divorce occurs by means of explicit word or actions that show the intention of returning and a dumb person may return by giving understandable indications or showing sexual lust.

(3). The wife’s knowledge and agreement to the resumption in rajyee divorce is not necessary, but upon learning about the date of resumption, she is obliged to perform all her marital duties.
(4). In consideration of the best interests of the ward, a guardian or court-appointed guardian of a permanently insane person may make him return to the wife in a rajyee divorce.

Conflicts as a Result of Divorce

Article 169:

(1). If the divorced wife claims that the divorce was pronounced during a period when she was in a state of menstruation, and the husband denies that claim, in absence of sufficient evidence, the statement of the husband under oath shall be considered acceptable.

(2). If the wife claims the expiration of the edat period because of having completed her third menstrual cycle but the husband claims that he returned to his wife before the expiration of the edat period, then in absence of sufficient evidence, the statement of the wife under oath shall be considered valid. However, a under claim of physical return the wife shall take an oath that there was no physical return and an oath of lack of knowledge a verbal return

(3). If the husband claims that he returned to his wife and the wife confirms it, but contends that his return was after the expiration of the edat period, then the statement of the husband under oath shall be considered acceptable.

(4). If at the time of or after divorce the wife claims that she is in sexual tohor (between two menstrual periods) period, but the husband denies it, then the statement by the husband under

oath shall be accepted. And also if the parties dispute the expiration of the edat period, then the statement of the husband under oath shall be accepted.

(5). If one of the parties claims that it is the second rajyee (revocable) divorce, and the other claims it is the third divorce, then in absence of sufficient reasons, the statement by the one claiming rajyee (revocable) divorce under oath shall be considered valid.

Dissolution of the Marriage Contract by Death

Article 170:

The marriage contract is dissolved by the natural or legal death of one of the marriage parties.

(Edat of Divorce, Revocation and Automatic Termination of the Marriage Contract)

Article 171:

(1). Edat is the period in which a woman after dissolution of the marriage contract or mistaken sexual penetration shall be required to abstain from entering into a marriage contract.

(2). Edat of a divorced woman, under a revoked marriage and an automatically terminated marriage contract of a woman who is not pregnant, is the completion of three tohor periods unless by reason of old age the woman is unable to have menstruation in which case the edat time is three lunar months.

(3). Three tohor (time between menstrual periods) shall be determined from the time divorce occurred until the third menstrual period starts.

(4). Menstruation is the monthly/periodic discharge of blood from a mature aged woman until menopausal age which is not less than 3 days and is not more than 10 days. Menopause is a situation in which a woman, after the age of 50 years, does not naturally experience menstruation.

(5). If after divorce a woman experiences only one menstrual period and then becomes menopausal, then two additional lunar months shall be required for the completion of edat and if after two menstruations she becomes menopausal, then completion of edat shall require one more month.

(6). Edat of a divorced woman, under a revoked marriage and an automatically terminated marriage contract of a pregnant woman is the end of pregnancy.

(7). A divorced woman who is menopausal and has not had sexual penetration or if she is a minor does not have edat.

Edat (waiting period) of a Lost [absent] Husband

Article 172:

(1). A wife whose husband is absent who has acquired a court verdict of divorce on the basis of the death of her husband shall have the same edat as the edat of death.

(2). If the wife of an absent husband was not aware of her divorce from her husband, the time of her non-awareness of her divorce is considered a part of the edat period.

Edat of a Mistaken Sexual Penetration

Article 173:

(1). If a married woman has had mistaken sexual penetration then her husband shall not have sexual penetration with her during the edat period.

(2). If a woman has had mistaken sexual penetration, provisions applicable to a divorced wife are also applicable to her, and her edat period shall start from her last sexual penetration.

Edat of Death

Article 174:

(1). The edat period of a woman who is not pregnant is four months and 10 days from the time of her husband’s death and the edat period of a pregnant woman whose husband has died shall be the longer of either four months and ten days or the end of pregnancy.

(2). If the wife was not aware of her husband’s death as a result of imprisonment, illness, absence or other causes, her edat shall start after the date she becomes aware of her husband’s death.

(3). If the husband dies before the expiration of the edat period of rajyee divorce, the wife shall complete the edat period of death and the days of the previous edat shall not be considered as part of the edat period of death. If the wife is pregnant she is liable to spend the longer of either four months and ten days or the end of pregnancy.

(4). If the rajyee divorced wife remarries another person after expiration of the edat period and then discovers that her husband died before the expiration of the edat period, in such situations the wife is liable to complete the edat period of death.

(5). If two different edat periods overlap, the edat period of the one that happened first shall be completed first. The second edat shall continue from the time the cause arose until its end, unless one of these two edat was pregnancy in which case the pregnancy edat shall have priority.

Claim of Share and Wage of the Wife

Article 175:

If the wife after divorce or death of her husband claims that she had a share in her husband’s property, or claims that the house chores she has done were not for free, or desires the wages for the chorus she has done in her husband’s house, the court shall consider her claims according to provisions of Islamic Jurisprudence (Feqh).

CHAPTER EIGHT: MAINTENANCE

Definition and Reasons for Maintenance

Article 176:

Maintenance consists of the basic necessities of life that are needed for a person, according to custom, such as food, clothes, residence, medical treatment and the like. Its reasons are as follows:

1. Permanent marital relationship.
2. Relationship according to the provisions of this law.page64image21096 page64image21256 page64image21416

Maintenance of the Wife

Article 177:

(1). The husband by concluding a valid marriage contract and wedlock is obligated to provide maintenance to his wife and if he refuses, he shall be considered his wife’s debtor.

(2). Until a disobedient wife pronounces herself obedient either by words or by action, and the husband has access to her, maintenance shall not be provided, unless non access of the husband to his wife was because of his inability or bad intentions [or was beyond his control].

(3). If a wife’s lack of tamkeen [submission to husband’s sexual desires] is consistent with provisions or this law or Sharia-approved excuse and reasonable excuses, or with the permission of her husband she is entitled to maintenance. If the wife’s lack of tamkeen is because of her husband’s insistence on acts that are against law and Shariah, she is allowed not to submit herself to the husband and she is entitled to maintenance.

(4). Tamkeen is the readiness of the wife to submit to her husband’s reasonable sexual enjoyment, and her prohibition from going out of the house, except in extreme circumstances, without her husband’s permission. If any of the above provisions are not followed by the wife she is considered disobedient.

Providing Maintenance of the Wife

Article 178:

(1). Maintenance shall be provided at the wife’s choice according to one of the following ways:

1. The husband shall provide all necessities of life to his wife set forth in this law. 2. Maintenance of the wife shall be paid as cash at least everyday.

(2). Maintenance is a wife’s right, irrespective of a [court’s] order. If the husband refuses to pay maintenance, the wife can spend reasonably from the property of her husband or complain to the court. In case of the death of the husband, the maintenance of the wife shall be provided from the husband’s taraka [estate].

(3). The wife is entitled to receive maintenance in edat of rajyee divorce, during pregnancy, during Bayen divorce, and during revocation of the marriage contract.

(4). If a disobedient wife is given a rajyee (revocable) divorce, or if she becomes disobedient during the edat of rajyee divorce, the right of maintenance shall be cancelled or terminated, unless the wife is pregnant; in this case the wife and husband shall compromise [on the amount of her maintenance].

(5). If the husband is unable to provide maintenance, the wife can ask the court for divorce. But if the wife waits for the husband to become able to provide her maintenance then the husband is debtor of the wife, and she can ask the husband to provide her the unpaid previous maintenance.

(6). If the husband fraudulently agrees to pay maintenance at the of the marriage contract, the wife may dissolve the marriage contract if the husband is unable to provide her maintenance.

(7). If the husband refuses to provide maintenance, the court will determine the maintenance and require the husband t provide it. If husband cannot be obligated to pay maintenance the

court will extract the maintenance from the property of the husband. If the husband does not have property or if he does not have access to his property, upon the request of wife the court shall require the husband to divorce his wife. If he refuses the court will enter a divorce order on his behalf.

(8). Goods and materials included in the maintenance which can be destroyed or depreciated (such as foodstuffs and fuel) are the property of the wife. Goods and materials included in the maintenance which are permanent in nature (such as gold, cloth, and home appliances) are the property of the husband, unless they are owned by the wife.

Wife’s Residency

Article 179:

(1). The wife is obligated to stay in a residency provided by the husband, unless the determination of residency is given to the wife during the marriage contract or her staying in the residency causes fear of financial loss, physical harm, or is detrimental to her dignity.

(2). The wife may in consideration of her status or the requirements of custom or tradition, refuse to stay in the house of her husband’s parents or other persons.

The Income from Wife’s Occupation

Article 180:

The income derived from wife’s occupation is hers, if she works, unless she pays some part of the home expenses with the permission of her husband.

Relatives’ Maintenance

Article 181:

(1). The following persons are obligated based on provisions of this law to provide maintenance to the following relatives:

1. Genealogical parents (grandfather, great-grandfather, etc) including paternal and maternal.

2. Genealogical sons (grandson, great grandson, etc).

(2). A child is obligated to provide maintenance for his/her parents even if the child is the offspring of a mistaken [sexual relationship] or adulterous relationship.

(3). The maintenance of grandchildren is part of children’s maintenance, however, maintenance of a daughter-in-law is not obligatory.

(4). All types of treatment including medical expenses and preventative expenses of an illegitimate pregnancy and the maintenance of the child born of the illegitimate relationship are the responsibility of the father if proved by medical tests or upon his confession. If the adultery is the result of the guilt of both the man and the women, in this case both of them will pay the expenses equally, however the man has principle responsibility.

(5). Relatives who are traditionally poor and cannot provide for their livelihood, despite having an occupation, are eligible to be provided with maintenance.

(6). The maintenance of relatives shall be paid by the following categories of persons in the following order (even if they are non-Muslims), and if one category is unable to pay maintenance the next category is responsible:

1. father

2. paternal grandfather (great-grand father, etc)

3. children (grandchildren, great-grandchildren, etc)

4. mother

5. maternal parents, great grandparents and descendents

(7). If there is more than one person in each class who is obligated to provide maintenance, then they must provide equally, unless some of them do not have the financial capacity.

(8). The person with the financial capacity to do so, is obligated to provide maintenance, and if his assets exceeds his and his wife’s daily needs and expenses.

(9). The court will determine the ability of the maintenance provider and the amount of maintenance to be provided.

(10). If a person does not have the ability to provide complete maintenance of relatives, the difference in the maintenance will be provided by the next class.

(11). Eligible relatives who request maintenance from the provider are entitled to have it provided from the time of eligibility; this shall include any time in which the question of maintenance is being adjudicated in court.

(12). If the provider’s assets are insufficient to provide maintenance to relatives, the relatives’ maintenance has priority over the maintenance provider’s debt.

(13). The maintenance provider can provide goods or services or cash to eligible relatives; however if the receiver of the goods and services deems that the goods and services are beneath his/her dignity or harms his/her status, then the provider shall provide cash [instead] provided that he/she has the ability to do so.

(14). If the maintenance provider is absent or refuses to provide the maintenance, or if the obligation cannot be enforced against him, then the court will order that maintenance to be paid from the provider’s assets. However, if the assets are inaccessible then the court shall order [someone] to borrow money for the account of the maintenance provider. If the maintenance provider is unable to pay these debts the next class will become responsible to pay the debts.

Medical Treatment, Marriage Expenses and Debt of Relatives

Article 182:

(1). The expenses of medical treatment for every kind of disease and medical condition and her eligible relatives are part of maintenance, unless the disease or condition existed before the marriage.

(2). The expenses of relatives’ marriage and their debts are not part of their maintenance; however, if the maintenance provider will not be able to continue to provide maintenance to his/her relatives if he/she marries, then he/she may proceed with the marriage [and will not be required to provide maintenance to his/her relatives].

Criteria for Determining Maintenance

Article 183:

(1). The criteria for determining maintenance to relatives is in accordance with tradition and the ability of the maintenance provider to provide maintenance. The criteria for determining the wife’s maintenance is in accordance with wife’s status and the husband’s ability to provide maintenance.

(2). The agreement made by the maintenance provider and the maintenance receiver about the quantity and quality of maintenance is not binding after a change in status and conditions of either [party].

(3). Commitment and guarantee [could be written] to provide maintenance that is the interest of the maintenance provider for ensuring the receiver has received maintenance is permitted.

(4). In the wife is used to having a servant, or based on her status or because of disease or disability, and the relative are unable to assist, the maintenance provider shall be obligated to do the work [house chore] or to hire a servant.

Waiver of Maintenance

Article 184:

The wife and relatives can waive the right to receive [previously entitled] maintenance from the maintenance provider, if the maintenance provider refused to provide maintenance, or for any other reason.

Maintenance Loss

Article 185:

If the maintenance is lost after being delivered to the maintenance receiver, without any fault, the maintenance provider is required to provide it again, unless the maintenance receiver is the wife and she has financial ability.

If food is wasted the husband is not required to provide it again, but he is required to replace clothes, soap and other similar items.

The civil liability of the receiver of maintenance against the provider of maintenance does not require compensation, except wife, depending on the financial ability of the maintenance provider.

Collective Duty to Provide Maintenance

Article 186:

Relatives who inherit from each other are not required to provide maintenance for each other. But if there is no maintenance provider all relatives near and distant and even all society are required to provide basic maintenance for survival.

Disputes Relating to Maintenance

Article 187:

(1). If the husband claims to have provided the maintenance and the wife denies it, if there is a lack of evidence, the statement of the wife under oath is acceptable.

(2). If the wife claims that she was ejected from home by her husband, or she left the home with her husband’s permission, if the husband claims that she was disobedient, then the wife shall prove [she was not disobedient]; otherwise the statement under oath of her husband shall be accepted.

Maintenance of Necessities

Article 188:

When it becomes clear that the relatives have spent the maintenance in an illegal way and against Sharia (alcohol, gambling, narcotics etc.,), the obligation of providing the maintenance will be limited to basic necessities.

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CHAPTER NINE: CHILDREN

Genealogy

Article 189:

(1). Children born during the marriage are related to the parents, provided that the sexual penetration occurred during the marital relationship. The child must be born at least 6 months after the marriage began and not more than nine months from the beginning of the pregnancy.

(2). If a child is born after a marriage dissolution, he/she is related to the husband, provided that the child is born during the nine months [lunar calendar] after the last sexual penetration, and wife has not remarried, even if she committed adultery.

(3). A child born after the marriage dissolution, if the woman has married, the child is related to the second husband, provided that nine months have passed from the dissolution of the first marriage and six months have passed from the new marriage.

(4). If it is impossible to determine that the child’s relation to either of the husband, then the child is not related to either of them. If it is possible to relate the child to one of the husbands, then the child is related to that husband; if it is possible to establish the child’s relationship to either of the husbands, according to Sharia the child is related to the second husband because he is the owner of the bed. Also, instead of the second husband the child can be related to the person who performed mistaken sexual penetration.

Combination of Sperm

Article 190:

(1). Combining a strange man’s sperm with a strange woman’s egg for medical purpose in a laboratory is permitted, but transferring a conceived egg into a woman’s womb is prohibited, and if this happens [transferring conceived egg to a woman’s womb] then the child resulting from the procedure is the child of the owners of the sperm and the egg. In that case the provisions of this law shall apply in establishing the blood relationship and inheritance.

(2). Transfer of a strange man’s sperm to a strange woman’s womb by medical procedure other than by adultery is prohibited, however in the case of such transfer the resulting child is the child of the owners of the sperm and the egg. In that case the provisions of this law shall apply in establishing the blood relationship and inheritance.

(3). Combining the sperm and egg of a married couple during marriage or after the husband’s death or marriage dissolution is allowed. However, transferring of a conceived egg into the wife’s womb is prohibited, based on Ehteyat-e-Wajeb In the case a child is born [as result of this procedure] the child belongs to the owners of the sperm and the egg. In that case the provisions of this law shall apply in establishing the blood relationship and inheritance from mother.

A Child Resulting from Mistaken Sexual Intercourse, or Invalid Nekah, or Adultery

Article 191:

(1). A child resulting from mistaken sexual intercourse between two persons unrelated, and belonging to the couple, providing that the child shall be born six months after the first sexual penetration or nine months after the last sexual penetration, establishes the relationship between the child and parents; but if one of the persons in the couple has knowledge about the prohibition of illicit sexual intercourse, then their actions are considered adultery and the child is illegitimate.

(2). A child resulting from an invalid marriage belongs to the parents, and heredity exists between them, provided that both of them are ignorant about the invalidity of the marriage contract, but if one of the persons in the couple has knowledge about the prohibition of illicit sexual intercourse, then his/her actions are considered adultery and the child is illegitimate.

(3). A child born from adultery cannot take inheritance from his/her father, and the father and relatives of the child cannot do the same, but other provisions related to the genealogy (such as prohibition of marriage) shall be implemented to him/her.

(4). If child born from mistaken sexual intercourse between a male and a married woman, or woman in edat, according to the provisions of this law, can be proven to be the child of either party [husband of the married woman and another male], then lots shall be drawn to determine the father; if the establishment of the relationship is impossible to determine, then the child shall be disavowed as to both parties.

Proving Genealogy

Article 192:

(1). The proving of genealogy is as following:

1- confession
2- sexual intercourse
3- witness
4- Sheyaa Mawred Wosoq [common knowledge] 5- definite evidence

(2). Implied and express confession by intention and consent is the proving of genealogy, unless his/her confession is proved wrong; however the denial of a son after a confession shall not be heard.

(3). Conditions of and legal effects of confession to genealogy is as following:

  1. Realization of genealogy is possible due to the provisions of this law.
  2. The person about whose genealogy the confession has been done shall ratify, unless he is a minor, insane, or dead.
  3. There shall not be any dispute between them.

(4). A legal effects of proving genealogy are limited to the acknowledger and acknowledgee, and does not have any legal effects to other relatives.

(5). A confession of a person concerning the genealogy of a minor or insane person, shall not be heard, if such confession favors him/her and there is a lack of absolute evidence.

(6). The person who confesses a relationship, except as to his/her son, with the confirmation of the confessor, or providing proof through the presentation of evidence or witnesses, shall establish a legal relationship [such as son of son or brother].

(7). If the absolute evidence does not exist to prove whether the child has been fathered by another man [other than the husband of the wife], the child belongs to the husband of the wife [referred to as Ferash or the owner of the bed].

(8). Ferash is the sleeping together of a married couple in the same bed; such meaning includes the current owner of the bed, or it can mean the lawful sexual penetration as a result of a marriage contract, or mistaken sexual penetration.

Denial of Parentage

Article 193:

(1). The denial of parentage is demonstrated when there is lack of Ferash and confirmation of a lack of sexual penetration and/or Lea’an [sworn malediction]. If there are evidentiary reasons to relate a child to the husband, the husband, even if he has evidence of his wife’s adultery, cannot deny the child.

(2). Any interested person may deny the legitimacy of a child by proving lack of Ferash; however any proof against the evidence of Ferash and Lea’an is confined to a husband and wife.

(3). Upon the occurrence of a sworn malediction, the inheritance of a child from his/her father and father’s relatives’ is denied, but the legal effects of the child’s genealogy remain to the mother and mother’s relatives.

(4). Claims against Ferash can be proved by the following:

  1. The final proof of no sexual intercourse with the wife, and lack of ejaculation of sperm in the womb of that woman.
  2. Lack of vital signs in a man’s sperm before the actual date of conception.
  3. Sworn malediction.
  4. Medical examination which definitively proves there is no Ferash.

(5). When an interested party proves no sexual intercourse between a man and woman occurred in one bed, in this case the decision of a judge is enforceable just to the rights associated with the persons in the lawsuit.

(6). The denial of a child by the husband shall occur after the birth of the child, during which time the denial is possible, otherwise silence during this time is considered a confession as to fathering the child, unless there is suspicion concerning the time of the pregnancy and the delivery date.

(7). A judge can order a medical checkup in cases of necessity, and for purposes of proving the legitimate father, even if the claimant opposes such checkup.

(8). The court shall appoint a temporary guardian for the child, until the final proof of the minor’s genealogy.

(9). When a husband claims the birth of the child occurred before six months [lunar calendar] of the pregnancy, or after nine months [lunar calendar], and the wife denies such claim, and if the husband does not have sufficient evidence, the statement of the wife is acceptable and valid under oath.

Child Support

Article 194:

(1). Support means protection, Islamic education and hygiene, and medical treatment of a child up to seven years of age.

(2). Support of a child is the duty and the obligation of the parents, and any kind of contract which denies this obligation is invalid.

(3). The mother has custody of a girl up to seven years of age and of a boy up to two years of age. After the aforementioned periods, the father will have custody of the girl and the boy.

(4). The mother can demand expenses of child support from the father, unless the child has assets.

(5). When the father dies or is incompetent to support the child, then the mother is responsible, and if the mother dies or is incompetent to support the child, then the father is responsible.

(6). Parents and legal guardians can discipline their children to the extent that does not require dia or [compensation for injury]; however any kind of extreme discipline can result in liability.

(7). In case of incompetency or lack of parents, the child support is the responsibility of the paternal grandfather; if there is no paternal grandfather or due to his incompetency; the child support belongs to an executor [appointed guardian]nominated by them [parents/grandparents].

(8). In the of absence or incompetency of a guardian or executor, or if they refuse to support the child then the court shall appoint a protector.

(9). The person who has the responsibility for child support cannot prevent the right of parents and relatives to visit the child, nor can he/she take the child abroad or on an extended trip without the permission of the child’s parents. The number of meetings and length of trip will be determined according to tradition, and the court will determine them in case of dispute.

(10). Breast-feeding of the child is the responsibility of the mother, unless it is harmful to her [health]. The mother can request compensation from the father, or in case of his inability to pay, she can request compensation from the paternal grandfather.

(11). When the child does not have a natural guardian or the natural guardian denies providing the compensation to the mother for breast-feeding the child, or obligating the natural guardian is impossible, then the mother is required to feed the child for free.

Barriers to Child Support

Article 195:

(1). Barriers to child support are as follows:

  1. Insanity of the child supporter.
  2. Infidelity or apostasy of the child supporter when the child is a Muslim.
  3. Marriage of a child’s mother to someone other than child’s father, unless it is in the best interest of the child, or the child’s father is dead.
  4. Immorality or addiction of the child’s supporter, when the duties of child support cannot be properly met.
  5. When the child supporter is suffering from a contagious disease which puts the health of the child at risk, or the child supporter is paralyzed and is unable to perform the duties of child support.

(2). When the obstacles to child support set forth in paragraph 1 of this article are removed then the right of child support will resume.

(3). When the relatives of a child take responsibility, not free of charge, for child support without going to court or any other [authorized] sources, with permission of a representative of a Mujtahed, and the child does not have assets, then the relatives can request compensation for the expenses of child support from the government, or in case of impossibility from the child when the child becomes an adult.

(4). Support of an insane child after puberty is subject to the provisions of guardianship and child support in this law. If a minor [under the age of 7] or an insane child, who is being supported [by someone], damages or harms another, the person supporting the child is liable to compensate the injured party, based on the compensation provisions of this law.

Next: Chapter 3 – Provisions of Will, Inheritance, Devotion & Gift