Rules of Family Fiqh (book)

Book Information
Author	Fahimeh Malekzadeh
Language	Persian
Pages	348
Publication Information
Publisher	Majd

Author: Mehdi Mohammadi

Rules of Family Fiqh is a book in the field of family fiqh written by Fahimeh Malekzadeh. In this book, the author examines the jurisprudential rules related to family law. Citing jurisprudential and legal sources, the author explains the applications of these rules in the family domain and refers to contemporary challenges in the definition of the family and its related laws. This book addresses issues such as the marriage of minors, maintenance, divorce, and the rights of husband and wife, and examines jurisprudential rules within the framework of Iranian civil law.

Abstract

This work is organized into three main chapters. The first chapter is dedicated to the definition of the concept of family and the jurisprudential rule. The author defines the family as a legal unit composed of a man and a woman and points to the transformations in the concept of the family in the modern era. In the second chapter, eight general jurisprudential rules (such as the rule of stipulation, no harm, hardship and difficulty, and deception) are examined, which are applicable in the domain of the family and other contracts. The third chapter analyzes twelve specific jurisprudential rules (such as the rule of fosterage, the rule of the bed, and the rulings of revocable divorce) that apply only to family matters.

Introduction and Structure of the Book

Rules of Family Fiqh* is a book in the field of Family Fiqh that examines the foundational rules for family law legislation. The book's author is Fahimeh Malekzadeh, who, in addition to advanced seminary studies, holds a Ph.D. in Family Law and is a faculty member at Islamic Azad University, Tehran Branch. This work was published by Majd Publications in 1396 SH (c. 2017 CE) in 348 pages.

The book's discussions are organized into three main chapters. The preface and table of contents are at the beginning, and the bibliography is at the end of the work. The first chapter, in two parts, is dedicated to the analysis of the concept of family and jurisprudential rules. In the second chapter, eight general jurisprudential rules are examined, and in the third chapter, twelve specific jurisprudential rules are reviewed. The author first mentions the concept and evidence for each of the general and specific rules, and then analyzes in detail the applications and necessary approaches for interpreting some laws.

The second and third chapters do not have different sections, but the author has used the expression "Part One" at the beginning of both chapters (see: p. 45 and p. 249). Also, although eight rules are examined in the second chapter, in both the table of contents and the text, the number of these rules is counted as nine, and the author has mistakenly labeled the sixth argument for the rule of deception as the sixth rule (see: p. 129).

Definition of Family and the Jurisprudential Rule

According to the author, the family is a legal unit formed by at least one man and one woman who have a marital relationship (p. 11). However, given the evolution of the family in the contemporary era, the concept of the family has undergone changes that the author finds difficult to define comprehensively (p. 13). This is because after the Industrial Revolution, the most important components and characteristics of the family (such as a formal marriage contract between a man and a woman, sexual and biological relations between the husband and wife, and the formation of lineage, affinal, and kinship relations) have faced challenges (p. 14). The author then mentions some family rights stipulated in the Civil Code (pp. 25-27).

In defining jurisprudential rules, the author considers them to be general jurisprudential rulings that can be applied to numerous fiqhi issues. According to her, not all jurisprudential rules have the same origin; rather, some are derived from religious texts, while others are obtained through reasoning and deduction from religious texts (pp. 29-31). Fahimeh Malekzadeh divides jurisprudential rules into those applicable in family law (such as the no-harm rule) and those without direct application in family law (such as the rule of destruction of property), and in this book, she only examines the first type of rules (p. 41).

General Jurisprudential Rules

The majority of the book is dedicated to the second chapter, in which eight general jurisprudential rules that apply both in the domain of the family and in other contracts are examined.

The Rule of Stipulation (Al-Mu'minun 'inda Shurutihim)

According to Islamic jurisprudence and Iranian civil law, different rights and duties are given to men and women in the marriage contract. For example, by signing the marriage document, women give up some of their civil and moral rights, such as the right to travel and choose their place of residence, and gain rights such as the dower (*mahr*) and maintenance (*nafaqah*). However, women can change some of these legal effects by including certain stipulations in the marriage contract (p. 53).

After mentioning the types of stipulations, Fahimeh Malekzadeh considers it obligatory to act only upon those stipulations mentioned within the contract, but does not deem it necessary to act upon stipulations not mentioned in the contract (p. 62). In examining some common stipulations within the contract, the author finds the stipulation of transferring up to half of the assets to be fraught with ambiguities and problems due to its uncertainty and identifies its origin in Western law, where the marriage contract is considered a type of civil partnership (pp. 56-57). In her analysis of the stipulation to refrain from the husband's remarriage, she considers this issue to be a matter of dispute in jurisprudence and concludes that none of the arguments clearly indicate the invalidity of this stipulation, and the husband must abide by it if he accepts such a condition (pp. 59-61).

After presenting various examples of stipulations within the contract, she considers these stipulations to be only a temporary solution to the problem of inequality in the rights of men and women, and sees the main solution in revising and reforming family laws (p. 55). The author then mentions several criteria for determining the scope of the couple's freedom in setting the contract's stipulations, including that the stipulation must not contradict the Quran and Sunnah, must not be inconsistent with the essence of the marriage contract, and must not be illicit, irrational, or ambiguous (pp. 62-63).

The No-Harm Rule (La Darar wa la Dirar)

In explaining the no-harm rule, the author mentions four jurisprudential bases. According to her, in Imami jurisprudence and in the section on family law, the no-harm rule has been invoked in several cases, including the husband's refusal to pay maintenance (Article 1129 of the Civil Code), a wife's divorce in the event of the husband's absence (Article 1029), divorce by the ruler (Article 1130), and the forfeiture of a guardian's authority if he refuses to marry off a legally incompetent person. For example, based on the no-harm rule, which has been accepted by the Civil Code, if the husband refuses to provide maintenance and it is not possible for the court to enforce the ruling or compel the husband to pay, the wife can refer to the ruler, and the ruler can compel the husband to divorce (pp. 65-68).

The Rule of Hardship and Difficulty ('Usr wa Haraj)

According to the author, "'usr" means physical hardship and "haraj" means psychological distress. She considers the evidence for this rule to be the Quran, narrations, and the practice of the wise, and believes that imposing any duty that involves unbearable hardship and disrupts the order of life is rationally impossible (p. 69). She then explains the changes and amendments to the Civil Code related to hardship and difficulty over many years (pp. 77-84). According to the addendum approved by the Expediency Discernment Council, the following cases, if verified by a competent court, are considered instances of hardship and difficulty:

The husband's abandonment of family life for at least six consecutive months or nine intermittent months within one year without a valid excuse;
The husband's addiction to any type of narcotics or his affliction with alcoholism that undermines the foundation of life;
A final conviction of the husband to five years of imprisonment or more;
The husband's battery or any kind of continuous misconduct that is customarily unbearable;
The husband's affliction with incurable physical or mental illnesses that disrupt the shared life (p. 81).

The author makes the implementation of the rule of negating hardship and difficulty conditional on two points: 1. Absence of a conflicting rule; in cases where the hardship of one party conflicts with the hardship or harm of the other party, this rule does not apply. 2. The husband's recalcitrance (*nushuz*); in cases where the husband is unable for a reason other than recalcitrance, the wife cannot demand that the ruler compel the husband (pp. 84-88). The author then examines the nature of the divorce that the ruler grants by invoking this rule (pp. 89-96).

In the author's belief, the rule of hardship and difficulty has great potential to solve problems in the family domain (such as the mother's custody), but not all of this rule's capacities have been utilized in the Civil Code (pp. 97-99).

The Rule of the Ruler's Guardianship over the Recalcitrant

According to the author, in jurisprudential terminology, a recalcitrant person is one who refuses to perform a duty, pay what is owed to another, or fulfill their obligation. Although the principle is that family matters are private, in such cases, the Islamic ruler of the society intervenes out of necessity to prevent a disruption of the system. This rule is implemented when the following conditions are met: 1. The refusal is established, 2. A ruler is present, and 3. The right-holder makes a request. This rule is applied in various topics of fiqh such as judiciary, sales, divorce, marriage, and family law. For instance, if a husband refuses to pay his wife's maintenance, the wife can refer to the ruler, and if the husband does not proceed with the divorce or pay the wife's right, the ruler can provide the maintenance from the husband's assets or, at the wife's request, divorce her on behalf of the husband (pp. 107-116).

The Rule of Deception (Ghurur)

According to Malekzadeh, a person (the deceiver, *ghar*) who deceives another person (the deceived, *maghrur*) and causes them harm is liable and must compensate for the deceived person's damages. This rule (the rule of deception), which applies in all chapters of jurisprudence, is established by evidence such as narrations, reason, consensus, and the no-harm rule (pp. 117-131). For this rule to apply, its elements and pillars must be present. Its elements are: 1. A deceitful act, 2. The occurrence of harm, 3. A causal link, 4. The knowledge and ignorance of the deceiver and the deceived, 5. Being deceived (pp. 132-146).

The rule of deception has various functions in family law. For instance, if a person, to deceive the other party, presents themselves as belonging to a particular country or race, or claims a specific expertise or profession, the other party will have the right to annul the contract after the deception is revealed. Also, if a woman has one of the defects that permits annulment of marriage and enters into a marriage without disclosing that defect, or if the husband stipulates the wife's virginity, but after the contract, it becomes clear that she has a defect or is not a virgin, the husband can annul the marriage and seek compensation from the deceiver (*mudallis*) (pp. 151-153).

The Rule of Best Interest (Maslahah)

In the view of Shia jurists, the obligation or prohibition of actions is due to a benefit (*maslahah*) or harm (*mafsadah*) that exists in those actions. Therefore, in Shia fiqh, that benefit must be observed. One of the functions of the rule of best interest in family rulings pertains to the issue of the marriage of children, and the marriage of minors is conditional on the guardian's permission and is restricted to observing their best interest. The intended best interest may be physical, moral, emotional, or related to specific family circumstances. However, in Shia fiqh, the scope of this best interest is limited by rulings such as the reprehensibility of marrying off minors and the prohibition of sexual intercourse before reaching the age of puberty (pp. 154-157).

According to the author, although according to the majority view of early jurists (as well as Article 1041 of the Civil Code), the guardian's marriage of a minor is conditional on their best interest, according to the majority view of later jurists, the absence of harm in the marriage is sufficient. The author, criticizing Imami fiqh and the Civil Code for placing the burden of proving the existence of a best interest on the guardian, considers the marriage of minors to be incompatible with social and medical realities and believes that the marriage of minors, in addition to its dire physical and psychological consequences, leads to the loss of educational opportunities, job skills, and economic status (pp. 158-162).

The Rule of Action (Iqdam)

According to the rule of action, a mature person's knowing and voluntary action to their own detriment negates the civil liability of others. For example, if someone entrusts their property to an insane person, the insane person will not be responsible. Malekzadeh attributes this ruling to narrations, the practice of the wise, and consensus (pp. 174-179). Although the author explains the cases where this ruling is implemented in both family-related matters and other areas, she only details the application of this rule in non-family-related rulings. Instances of the rule of action in the family domain include the wife's apostasy before consummation, which leads to the forfeiture of the dower, and the wife's recalcitrance (*nushuz*), which leads to the forfeiture of maintenance (pp. 181-187).

Lease/Hire (Ijarah)

To prove the legitimacy of lease/hire, the author cites the Quran, narrations, and consensus, and considers its legitimacy to be a necessity of the religion (pp. 188-190). Although Fahimeh Malekzadeh has dedicated the largest portion of the general jurisprudential rules to examining this rule, it seems that applying the term "rule" to the "contract of lease" is not very common. She then examines some applications of lease/hire in the family domain (hiring a woman for breastfeeding, compensation for a wife's housework, and surrogacy).

The author, who considers hiring a woman for breastfeeding to be permissible, believes that the husband can prevent this in two cases: 1. If her being hired conflicts with the husband's rights; 2. If the husband is from a noble family where hiring out a wife is considered an insult in the view of custom (p. 199).

According to Malekzadeh, a wife is entitled to receive compensation for her services (*ujrat al-mithl*) under the following conditions: 1. The activities are outside her religious duties, 2. The work is done at the husband's command, 3. The wife did not intend for the work to be gratuitous, and 4. There is no financial agreement in place. Also, according to Addendum 6 of the Divorce Law Amendment of 1371 SH passed by the Expediency Discernment Council, a woman can only claim compensation for her services if the husband has requested the divorce (pp. 213-221).

On the issue of surrogacy, the author, citing verses and narrations and relying on the absence of evidence for its prohibition, has deemed surrogacy to be religiously legitimate. She identifies the owners of the sperm and egg as the father and mother of the fetus and establishes inheritance for them. She believes that the woman whose womb is only hired for the growth of the fetus, and who is not the owner of the egg, is considered its foster mother, and no inheritance relationship is formed between her and the fetus (pp. 235-243).

Specific Jurisprudential Rules

In the third chapter of the book, twelve specific jurisprudential rules that apply only to family matters are examined.

The Rule of Fosterage (Rada')

To prove the establishment of prohibition through breastfeeding, the author cites the Quran, narrations, and consensus, and considers its legitimacy to be a necessity of the religion. The rule of fosterage, when its conditions are fully met (such as the milk resulting from permissible intercourse and observing the quantity of breastfeeding), is considered one of the causes of prohibition (foster relationship). Today, another application of fosterage is for those who are childless and wish to adopt parentless children. These families can use the rule of fosterage to solve the problem of unmarriageability (*mahramiyyah*) (pp. 252-259).

The Rule of the Bed (Firash)

According to the rule of the bed, in cases where a child's lineage is in doubt, that child is attributed to the husband. The author considers the rule of the bed to be derived from the hadith "The child belongs to the bed" (*Al-waladu li-l-firash*). All legal systems, especially Islam, attach extraordinary importance to lineage, because if lineage is damaged, the family and its members will be disrupted. Therefore, if the conditions of the rule of the bed are met (the existence of a marital relationship, the passage of the minimum gestation period since intercourse, and the birth occurring before the end of the maximum gestation period), a child born during the marriage is attributed to the man (pp. 259-266).

In jurisprudence and law, numerous functions are mentioned for the rule of the bed, and its application is examined in the following cases: a child resulting from a valid marriage, a child resulting from intercourse by mistake, a child born from artificial insemination, and a child born after separation from the husband. In her summary on the issue of the conflict between the rule of the bed and medical tests, the author concludes that in the case of a conflict, the presumption of the bed is definitely preferred, but if knowledge is obtained from the doctors' statements, the rule of the bed loses its authoritativeness and is removed from the scope of the conflict (pp. 272-280).

Non-Cessation of Marital Rulings in Revocable Divorce

In a revocable divorce, the man can return to his wife without a new marriage contract and continue the marital relationship with her. Therefore, according to some jurists, a revocably divorced woman is considered truly a wife, although according to the majority view of jurists, she is in the status of a wife. In Shia fiqh, during the waiting period (*'iddah*) of a revocable divorce, rights and duties are established for both the husband and the divorced wife. Among them, a revocably divorced woman has the right to maintenance, and her Zakat al-Fitr is the husband's responsibility. Also, the husband cannot evict the revocably divorced woman from her house during the waiting period. In a revocable divorce, the man and woman are considered legally married (*muhsan/muhsanah*), and if they commit adultery, their adultery will be considered as that of a married person. Also, if the wife or husband dies during the waiting period of the divorce, the other inherits from them (pp. 282-283).

Other Specific Rules

Malekzadeh continues in the third chapter to mention other rules related to marriage. However, it does not seem appropriate to apply the term "rule" to these rulings, as they do not apply to multiple fiqhi issues. These rulings are:

Rulings related to how women inherit from movable and immovable property (287);
The man's right to divorce, and the possibility of delegating it to the wife (p. 292);
A married woman or a woman in her waiting period for divorce or death becoming permanently forbidden to a man who is aware of her status (p. 295);
The non-liability of someone who usurps a female slave and deprives the master of enjoying her (p. 298);
Divorce occurring during a period of purity without intercourse, and not occurring otherwise (p. 301);
The necessity of a waiting period (*'iddah*) for some divorced women and widows (p. 304);
The invalidity of a Muslim's marriage to a polytheist (p. 310);
The non-establishment of a waiting period for menopausal, minor, and unconsummated women (p. 317);
The guardianship of the father and paternal grandfather in the marriage of a non-mature virgin girl (p. 333).