Family Fiqh

Author: Mahdi Shajarian

Abstract

Family Fiqh is a branch of applied fiqh that deals with the deduction of Shar'i rulings concerning the formation, continuation, and dissolution of the family. The reasons for the prominence of this field in Contemporary Fiqh studies include: the importance of the family and its challenges in the contemporary world, the challenges of the modern world, the experience of jurisprudential governance, legal gaps, and the emergence of new issues. Additionally, gaps in civil laws and the disconnect between traditional fiqh teachings and new cultural norms necessitate new ijtihadi responses.

In the contemporary era, newly emerging views, utilizing the capacities of fiqh, have reconsidered issues in this domain, such as the rights and obligations of spouses centered on Mu'asharah bi'l-Ma'ruf (living together in kindness), restricting polygyny and Nikah Mut'ah, expanding the grounds for divorce, reconsidering the annulment of marriage, rethinking Ḥiḍānah (custody), issues related to new reproductive technologies, the validity of new forms of marriage contracts (like the Aryan marriage ceremony, Cohabitation), and accountability in situations of compelled choice (ikhtiyār bi'l-iḍṭirār).

Family Fiqh, with a holistic view of the family institution, and Fiqh of Women, with a micro-level perspective on the individual and social rights of women, complement each other and pursue justice within the family and the rights of women in a balanced manner. Yusuf Saanei, Mahdi Mehrizi, Sayyid Ziya Murtazavi, and Farajullah Hidayatnia are among the active figures in the field of Fiqh of Women, and Fiqh of the Comprehensive Family System, A Comparative Study of Family Law, and Fiqh and Law of Family Formation are among the works written in this field.

The Importance of Family Fiqh in the Contemporary World

Family Fiqh is considered a branch of applied fiqh in which Shar'i rulings concerning the family institution are deduced and explained in its three stages: formation, continuation, and dissolution. The importance of this discipline in studies of contemporary fiqh has various reasons. First, the importance of the family in Islam and the challenges it faces in the modern world have increased the necessity of reconsidering issues related to Family Fiqh. Second is the practical experience of jurisprudential governance after the Islamic Revolution, which, by mandating the codification of laws based on Shar'i standards, has directly involved fiqh in the management of society and made its presence in this arena more prominent.

Furthermore, the existence of certain gaps in civil laws has enhanced the importance of this branch of fiqh, so that by returning to jurisprudential sources, these gaps can be filled. Also, the disconnect between some teachings of traditional fiqh and the new cultural norms of society has led to the emergence of new issues that require up-to-date ijtihadi responses.

Definition

Family Fiqh refers to the collection of rulings and commands of the Holy Lawgiver in the domain of discussions related to the family (including marriage, divorce, and inheritance). This fiqh deals with deducing the rulings related to the formation of the family (such as the conditions of the contract), the relationships, mutual rights, and obligations of its members (spouses, parents, and children), and the dissolution of the family (rulings of divorce).

Difference Between Family Fiqh and Fiqh of Women

Family Fiqh and Fiqh of Women are both branches of applied fiqh. Family Fiqh, with a holistic view, takes the family institution as its subject and covers all members and stages of family life. In contrast, Fiqh of Women takes a micro-level perspective on the woman (as an independent individual), and its goal is to discover and explain the individual and social rights of women and to critique discriminatory rulings. Works written in this field after the Islamic Revolution of Iran have adopted a critical and reflective approach.

Fiqh of Women and Family Fiqh are two complementary fields; Family Fiqh seeks justice within the family, while Fiqh of Women seeks justice for women within the family and society. Dynamic Fiqh pursues both goals in a balanced manner. In the view of some, women's issues as individuals are important, and excessive familism that leads to a lack of attention to women is one of the harms to achieving justice for both women and men.

Newly Emerging Contemporary Views

In the contemporary era, Family Fiqh has witnessed the formation of new views on various issues in response to new social and cultural challenges. These views, which have been primarily achieved by utilizing the internal capacities of fiqh, strive to establish a connection between the principles of Sharia and the needs of the time.

Reconsidering the Rights and Obligations of Spouses based on the Principle of Mu'asharah bi'l-Ma'ruf

One of the main axes of transformation in Family Fiqh is the reconsideration of the rights and obligations of spouses based on the Principle of Mu'asharah bi'l-Ma'ruf. Accordingly, many rights traditionally considered absolute for the husband are now conditioned by customary and rational conduct. For example, man's headship of the family (qiwāmah) means management and securing the family's interests, not autocracy; therefore, any command from the husband that is contrary to the custom and interest of the family is not obligatory to obey. Similarly, the husband's right to prevent a wife's leaving the house is not absolute, and he cannot prevent his wife's customary needs (such as visiting parents or pursuing education) for unreasonable motives, as this act is an instance of abandoning mu'asharah bi'l-ma'ruf. Likewise, the husband—especially if there is a prior agreement—should not prevent a wife's employment, because his opposition is contrary to equity. This approach also applies to sexual relations, confining them to the framework of what is customary (ma'ruf) and avoiding any form of coercion or violence.

Restricting Polygyny and Temporary Marriage

Main article: Polygyny

In the domain of Polygyny and Nikah mut'ah, newly emerging views have been presented with the aim of protecting the family unit. According to Yusuf Saanei, the permissibility of polygyny is conditional upon the second marriage not causing harm to the first wife and not being customarily considered reprehensible and disliked. Citing the verse "wa ʿāshirūhunna bi-l-maʿrūf", he argues that a second marriage without the heartfelt and voluntary consent of the first wife is an instance of ill-treatment in cohabitation (sūʾ al-muʿāsharah) and is not only prohibitively unlawful (taklīfan ḥarām) but also void in effect (waḍʿan bāṭil). He permits temporary marriage only in emergency and exceptional circumstances, believing that promoting it as a general solution harms the family and leads to promiscuity. In his view, the primary solution is to facilitate permanent marriage.

Another view on polygyny is that of restricted permissibility, which conditions the principle of permissibility on justice in all aspects. According to Mohammad Sadeqi Tehrani, in the issue of the permissibility of polygyny, even having one wife is conditioned on upholding justice. Citing Quran 4:3, he considers the condition of justice to be absolute and comprehensive, believing that this condition includes justice in society, justice among wives, and even justice towards a single wife. Therefore, if there is a fear of injustice at any of these stages, an individual is only permitted to marry a smaller number of women.

The theory of restricted permissibility also has proponents among Sunnis. According to Muhammad Rashid Rida, although polygyny had benefits in the past, in the current era, it brings many individual and social corruptions (such as enmity among children and wives). Emphasizing that the Sharia is founded on interests (maṣāliḥ), he concludes that in cases where there is a fear of not establishing justice, polygyny is forbidden (ḥarām), because repelling harms takes precedence over acquiring benefits.

Expansion of the Grounds for Divorce

The husband's failure to observe mu'asharah bi'l-ma'ruf, even in cases that do not reach the level of undue hardship (usr wa ḥaraj), can be considered a legitimate reason for the wife to request a divorce, and it provides the judge with the ability to compel the husband to grant a divorce. This approach, based on the principle of "imsāk bi-maʿrūf aw tasrīḥ bi-iḥsān" (either retain them in kindness or release them with grace), states that the husband is obligated to either keep his wife in a worthy manner or release her graciously; therefore, in the absence of mu'asharah bi'l-ma'ruf, no other option exists, and thus the judicial challenge of proving Usr wa Haraj is also resolved.

Reconsidering the Grounds for Annulment of Marriage

Contrary to the traditional view that considers the grounds for annulment of marriage to be exhaustive and limited to explicitly mentioned defects, a modern approach holds that the main criterion is "causing harm and creating severe hardship" for the other party. Accordingly, new and incurable diseases such as AIDS can also be considered among the new grounds for annulment of marriage. This view is reinforced by principles such as Lā Ḍarar and Lā Ḥaraj. On the other hand, if the explicitly mentioned defects are treatable, the right to annulment is nullified. According to Mohammad Hadi Ma'refat, any defect in one of the spouses that prevents the possibility of cohabitation and sexual enjoyment is a ground for the annulment of marriage, and this is not exclusive to men, because the criterion is the rule of Lā Ḍarar, which applies to both men and women.

Rethinking Custody (Ḥiḍānah) with a Focus on the Child's Best Interest

A newly emerging jurisprudential view, by establishing the dominance of the best interest of the child principle, considers Ḥiḍānah to be a non-absolute duty rather than a negotiable right. Accordingly, any agreement between the parents (such as relinquishing custody in exchange for forgoing the Mahr) is valid only as long as it secures the child's best interest, and in case of conflict, such an agreement is unenforceable.

Application of New Technologies to Newly Emerged Family Issues

Some have responded to new issues such as Artificial insemination by resorting to the Principle of Firāsh. For example, even in the case of insemination with a stranger's sperm, which is a forbidden act, if the woman is married and there is a possibility of pregnancy from her husband, the child is attributed to the husband. Also, regarding Therapeutic abortion, contemporary religious authorities, citing the rule of Lā Ḍarar, have permitted the abortion of a fetus that endangers the mother's health (before ensoulment).

Validity of New Forms of Marriage Contract

Newly emerged phenomena such as Cohabitation and the Aryan marriage ceremony have been considered examples of jurisprudential reflections on new cultural norms. For instance, one view is that if this Aryan ceremony contains the essential elements of a marriage contract (such as offer and acceptance and the contract's indication of permanence), it is valid and binding, based on the general principles of the validity of contracts (like Awfū bi-l-ʿuqūd) and a critique of the view that the wording of the marriage contract is fixed by revelation (tawqīfī).

Accountability in Situations of Compelled Choice

By utilizing the rational principle of "al-Imtināʿ bi-l-Ikhtiyār lā yunāfī al-ikhtiyār" (Forgoing by choice does not negate choice), new perspectives have been proposed to address social harms. For example, unconsciousness resulting from the voluntary consumption of narcotics does not nullify an individual's responsibility for family duties. Similarly, in the matter of Child abuse, if parents fail to prevent it or do not provide the necessary conditions, their responsibility has been examined within the framework of this principle.

Rethinking the Permissibility of Child Marriage

Although in the common jurisprudential view, Marriage with a minor girl (ṣaghīrah) is permissible; in contemporary views, this permissibility has been reconsidered. Murtada Mutahhari considers "rushd" (maturity) to be one of the conditions for marriage and believes that rushd is a spiritual perfection, meaning the understanding of the purpose and value of marriage and possessing the power of discernment, independent will, and the competence to manage the material and spiritual assets of life. Naser Makarem Shirazi also believes that marriage is permissible only if the girl has sufficient physical maturity for marriage; therefore, if experts confirm, either specifically or generally, that a girl, or the girls of a region in general, do not have sufficient physical maturity for marriage at a certain age, marriage at that age is forbidden (ḥarām).

Personalities and Works

Some of the personalities who have influential views and works in the field of Family Fiqh include:

Yusuf Saanei, a marja' al-taqlid, is considered among the jurists who have paid attention to issues of Family Fiqh and presented novel views in this regard; views such as the prohibition and invalidity of a second marriage without the wife's consent, the permissibility of a wife's leaving the home without needing her husband's permission, the mother's natural guardianship over the child after the father, and establishing a mahram relationship with an adopted child.

Mahdi Mehrizi has written many jurisprudential researches in the field of women and family. Among the most important is the book The Personality and Rights of Women in Islam, which addresses numerous issues of the family system, such as headship of the family, leaving the house, corporal punishment of the wife, sexual submission (tamkīn), marriage with a minor girl (ṣaghīrah), and polygyny, and has offered novel views in some cases. His other works include The Quran and the Issue of Women and Religious Modernism and the Issue of Women.

Sayyid Ziya Murtazavi has examined jurisprudential issues of women and family in various works. In the book Jurisprudential Researches on the Issues of Women and Family, while examining some jurisprudential rulings on the family, he has tried to offer solutions to face social transformations by proposing concepts such as human dignity, justice, and the balance between rights and obligations.

Farajullah Hidayatnia has written numerous articles in the field of Family Fiqh. In his three-volume work, Philosophy of Family Law, he has explored various aspects of this topic, such as stipulations in the marriage contract, child marriage, Nafaqah, and divorce. He considers the traditional structure of Family Fiqh to be inefficient because its chapters are scattered and it does not pay attention to the family's relations with the state. He analyzes the root of this weakness in the individualism of traditional fiqh and the historical distance of jurists from the arena of governance.

Naser Ghorbannia has numerous works in the field of women and family issues. He has addressed topics such as the principle of love and mercy between spouses from a Quranic perspective, the principle of mu'asharah bi'l-ma'ruf between spouses, the right of women to hold public office, and rethinking the image of man's headship of the family.

Works

Some of the study resources on Family Fiqh published in Persian are as follows:

Fiqh of the Comprehensive Family System: Transcriptions of the advanced fiqh lectures of Sayyid Mundhir Hakim, written by Mohammad-Reza Mirzaei-Ravandi, Mohammad-Amin Mohammadi-Zadeh, and Ali Zamzam;

A Comparative Study of Family Law, by Abu al-Qasim Gurji et al.;

Fiqh and Law of Family Formation, by Javad Habibi-Tabar;

Fiqh and Law of Family Administration, by Javad Habibi-Tabar and Sayyid Musa Mousavi;

Family Fiqh, by Ali-Asghar Elhaminia;

A New Look at Family Law in Islam: Proposal, Engagement, Marriage, and Divorce, by Sayyid Mokhtar Mousavi;

Family Fiqh, Divorce and also Family Fiqh, Marriage, by Zahra Fehresti.

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