ISLAM-JAFARI RULES PERSONAL STATUS

I S L A M - J A F A R I RULES
OF
PERSONAL STATUS
And
Related Rules of Iraqian Law
By
Majeed Hamad Al–Najjar
LL.B., M. of Comparative Law.
Member of Iraqian Bar Association
In Baghdad.
Published by
World Organization for Islamic Services
IN THE NAME OF ALLĀH,
THE MOST COMPASSIONATE, THE MERCIFUL
Praise belongs to Allāh, the Lord of all beings;
the Most Compassionate, the Merciful;
the Master of the Day of Judgment;
Thee only we serve, and to Thee alone we pray
for succour;
Guide us in the straight path;
the path of those whom Thou hast blessed,
who are immune from Thy wrath
and have never gone astray.
*****
O Allāh! send your blessings to the head of
your messengers and the Last of
your prophets Muh a mmad,
and his pure and cleansed progeny.
Also send your blessings to all your
prophets and envoys.
FOREWORD
-1Now, that we are reprinting the book (Islam Jafari Rules of Personal
Status), we are continuing our previous effort about the said book in its
first printing although it was neglected to mention our attempt therein.
Five years ago, the author of the book Mr. Majeed Hamad al-Najjar,
consulted with us that the publication be effected by us. We accepted and
the book was published. At present that the copies of first edition is
exhausted, the keen need and repeated request by peoples forced us to
publish it for the second time.
-2When we were asked to print the book, for the first time, we put it
before, some of our expert in this field. The expert studied the book and
noticed his remarks to the author. But as the author was the only one who
understood the printing, and we were not willing to make heavy his
burden by making some one else his partner in preparation of his book,
therefore we are not sure completely that these notes had been accepted
by the author and were impression in the book.
The conditions and circumstances did not allow us for revision of the
book and to provide some further notes, and to realize which one of the
previous notes were taken use in the book.
-3The attempt of the author for this book was precious and appreciable. It
filled a gap, satisfied desires, and secured needs, many insisted to meet this
requisition and to assure their wants. The author has arranged the
commandments of the personal status corresponding with (in view of) the
Ja‘farī lthnā‘asharī faith. He arranged its chapter in an approval manner. He
suffered much trouble for extracting the rules from jurisprudence sources.
The book was compiled in English and so far as we know, there was no such
a book in English language before, this privilege enhanced its value. May
Allāh grant him the best reward and regard his good deed.
Although the author has compared the Islamic Ja‘farī jurisprudence with
the rules of Iraqian law, but the question which caused the necessity of this
publication, while being in itself the very urgent needs of people was the
state of representing a book of Ja‘farī rules of personal status in English
language.
The comparative aspect of rules was not our principal point of view in
any way, although the author for some reasons had regarded it.
The author, though was succeed to reach his goal, and our notes,
including the future further points were not in his innermost aim, but we as
the publisher of the book in a greatest extent, than that the author had
observed, have no alternative but to mention it.
-4The remarks which the said expert gave to the author is not available
with us now, nor the notes he had remarked on that time but the head line of
his note was as follows:
1. Among the characteristics which distinguishes the Ja‘farī Ithnā‘asharī
faith from others is that the way of ijtihād (independent judgment in a
legal or theological question) in the religious commandments is always
open. Never was it closed and never will it be closed (by Almighty
Allāh’s succour and His guidance) for ever. The author has pointed out to
this subject in the introduction. This is a principle regarded since the time
of the Imāms (peace be upon them). This is the principle that Ja‘farī faith
insisted to be safeguarded. This is because the Islamic sources which
enable the Islamic Jurisprudence to extract the religious order is always
al hand and is inherited from predecessors to successors, correctly,
safely, and in a reliable way. It is preserved from being waste and lost. It
is complete without any defect. Then it does not mean to limit it to a
certain time and among a certain people.
In addition to our previous saying the following point is remarkable.
The basis of completion and perfection of human intellect and thought, in
any branch of knowledge and education, is based in the below mentioned
fact. The future intellectual powers and knowledge abilities are more
preferred and excelled than the former ones, in activities and ardour, also
in trustworthiness and reliability. Because they are taking use of all
former experiences and knowledge. By this means, the human thought
gets completion and promotion. This way comprises the completion of
every science and knowledge. On the other aspect, there will come forth
new problems, cases, and recent subjects which need to be discussed and
to have a legal’ opinion (according to the Islamic principles) that had not
been mentioned in the former jurisprudence verdicts. This is because they
have not been encountered with such problems and cases, for extraction
the relevant legal decisions. These two points in addition to that which
we described before, require indispensably that the way of ijtihād be
open for every competent and qualified individual. This is why that, it is
not correct, even it is not possible, the Islamic jurisprudence decision to
be unique and the verdicts to be the same one, for all Islamic jurists
(Mujtahid) and in all subjects.
No doubt, the difference in decisions is a natural phenomenon and the
positive result of being open the way of ijtihād. There is no other way
unless the door be closed, the way be barred, the thought be inflexible
and the process be stopped.
2. The aforesaid statement does not prevent the Ja‘farian jurisprudents
(Fuqahā’) to be united in general rules of personal status. The variety and
difference of opinion refers mostly to the minor (lateral) commandments,
especially in minor commandments of marriage, divorce and the like: The
reason of these two phenomena are not hidden to researchers and concerned.
3. There is a basic principle in the Ja‘farī faith that every Muslim who is
bound to act to divine orders in the practice of faith (furū‘) has no
alternative but to ose one of these two ways:
a) To formulate an independent judgment in a legal question (ijtihād)
based on the true Islamic sources.
b) To follow one of the Islamic Ja‘farī jurisprudents decisions (taqlīd).
There is some conditions and rules that determinate this matter (taqlīd)
which is mentioned in the Fundamentals of Islamic jurisprudence (usūlalfiqh) and the Islamic jurisprudential books (al-fiqh).
The first way (al-ijtihād) is applicable to those who have abilities and
capabilities in this field. This ability and efficiency is not so easy and
simple to be obtained by every one.
But all Muslims, except a very few number, are among those who are
not able to be Mujtahid. Therefore the only way before them is their
referring to Mujtahid and adopt the legal decision of Islamic
jurisprudents. There is no other way before them but they way of ihtiyāt
(to take precautionary measures by means of doing all that one thinks are
probably a duty, not prohibited, and avoiding all that he thinks are
probably prohibited not a duty to do). But this way (ihtiyāt) in most cases
is practically more difficult than ijtihād.
By this we warn emphatically to those who refer to every Islamic
jurisprudence book for their practice, to be confirmably certain before
time that the book is corresponding to the decision of the Mujtahid to
whom he follows or decide to follow his decisions.
Although the present book provides a complete integrated Islamic
Ja‘farī rules of personal status, nevertheless, one who wants to act to each
rule should be assured (before time) that it corresponds with the decision
of his Mujtahid.
4. The author has proceeded to choose, mostly one out of all the Ja‘farian
jurisprdents decision, in every subject that he declares the rule. Although
the decision chosen by the author are these generally adopted by the
Islamic jurisprudents, but in some cases he chooses the decisions not
adopted generally by them. He prefers it to the general decisions by some
reasons that there is no room to be mentioned.
In short, the author is not bound to this fact that all rules mentioned here
are accepted unanimously by all Islamic jurisprudents, even he is not bound to
their general decisions.
-5The above points however, did not prevent us to believe the necessity
of print and publication of this book. This fills a vacuum, satisfies the
needs and realizes a benefit not negligible, nor insignificant in such
extent that covers all above points. The same reason caused us to reprint
it.
At the end we again grant our thanks to the author and appreciate
deeply the attempts he has made, the costly work he had produced. We
ask succour from Allāh and rely on Him. We see help and ask success
from Him. Surely He is the excellent Master and the excellent Helper.
World Organization for Islamic Services.
25/4/1398
4/4/1978
Tehran-IRAN
CONTENTS
page
Chapter One
Introduction
1
BOOK ONE
NATURAL PERSON
Chapter Two.
Chapter Three.
Chapter Four.
Chapter Five.
Chapter Six.
Chapter Seven.
Chapter Eight.
Chapter Nine.
Existence of man
The Foundling
Stages of age and the
development of mind
The Testamentary Guardian
Interdiction For Insanity
The Prodigal
The Bankrupt
Man In Death - Bed
20
24
28
35
41
43
47
53
BOOK TWO
MARRIAGE, CHILDREN, MAINTENANCE, DIVORCE
Chapter Ten.
Chapter Eleven.
Chapter Twelve.
Chapter Thirteen.
Chapter Fourteen.
Contract of Marriage;
Definition, Form, Conditions And Etiquette
59
Temporary Marriage (Mut‘a)
66
Guardians Of The Contract Of Marriage 70
The Equalization Of The Parties
Of Marriage
72
Reasons Of Prohibition Of Marriage
74
1
CHILDREN
page
Chapter Nineteen.
Chapter Twenty.
Chapter Twenty One.
The Establishment of Paternity
Delivery, Nursing And Custody
Maintenance
94
97
103
DIVORCE
Chapter Twenty Two.
Chapter Twenty Three.
Chapter Twenty Four.
Divorce (Talãq)
Manners of Divorce
The Waiting Period (‘idda)
109
112
118
BOOK THREE
WILLS
Chapter Twenty Five.
Chapter Twenty Six.
Chapter Twenty Seven.
Offer And Acceptance
Testator And The Legatee
The Bequest
121
123
126
INHERITANCE
Chapter Twenty Eight.
Chapter Twenty Nine.
Chapter Thirty.
Chapter Thirty One.
Chapter Fifteen.
Chapter Sixteen.
Chapter Seventeen.
Chapter Eighteen.
Chapter Thirty Two.
Chapter Thirty Three.
2
Reasons Of Inheritance
The Conditions Of Inheritance
The Groups Of Heirs And Their Shares136
The First Group’s Heirs And Their different
Situation
The Dowry (Mahr, Sadak)
The Brides Trousseau (Bride’s Jihaz)
Defects Of Parties Of Marriags
The Mutual Conjugal Rights
Second Class of Heirs Brothers, Sisters And
Grandparents
The Third Class Of Heirs;
The Paternal And Maternal Uncles And Aunts
128
132
138
84
88
89
91
148
155
Chapter Thirty Four.
Inheritance By Cause:
1- Inheritance By Marriage
158
2- Inheritance By Mutual Backing Agreement
And Acknowledgement
164
WAQF
Chapter Thirty Five.
The Entailment And Endowment Of Reality
Of The Property
166
Index 1
169
Index 2
170
Please Correct incorrect words
175
3
Chapter One
INTRODUCTION
1- The social end in Islam Teachings is to arrange the legal relations
of individual with the community according to God orders in Qur’ãn and
in the Traditions (Ahãdith) of His prophet MUHAMMAD, peace be on
him and his Family, and in the Sayings of Imam Ali and his Sons.
And to accomplish this great social end of Islam, Imam Ali, peace be
on, had established the means, the real means, which reflect the spirit of
Islam in believing in One God and His prophet MUHAMMAD and his
Family which includes Imam Ali and his wife Fatima, daughter of the
Prophet Muhammad and their Sons and their lineal Descendants, peace
he on them.
And these means that were implied in Imam Ali ’s understanding and
interpretation of Islam Teachings In Qur’ãn and in the Ahãdīth of His
Prophet Muhammad are the principles of the Islam and in these
principles Ali who have been authorized by the Prophet Muhammad in
his Hadīth which says - «Ali is with the Qur’ãn And the Qur’ãn is with
Ali.» 1 and his followers had declared and affirmed the Righteousness and
Justice of Islam.
2- The social goal of this interpretation and Understanding of the
spirit of Islam, which had been called Shī‘itee School in Islam is to
protect and to affirm, to acknowledge and recognize the Righteousness
and the legality of the Status of a person regardless the circumstances and
to bind people, all the people by faithful brotherhood in spite of their
colour, race, language or faith. This brotherhood in Ali’s interpretation of
Islam is asserted by Imam Ali in his letter to Malik al-Ashtar, his ruler
over Egypt, the letter says «....and have your heart in the right place
towards people and show them mercy and love and gentleness and do not
be a ferocious lion to prey upon them; they are one of two; either your
brother in religion or your brother in nature. They make mistakes, and
events stand in their way, and things, intentionally or at fault are
1
- Ali and Qur’ãn by Muhammad Jawad Mugniya p.l
4
expected at their hands. Provide them with cover of your forgiveness and
pardon as you wish to be covered with forgiveness of Allah. You are a
ruler over them and your Ruler is over you and Allah is over that who
authorized you.» 1
From this letter and other letters to the rulers in Islamic countries and
from his speeches and sayings we find out how Imam Ali, peace be on
him, framed the Islamic community and how he determined the mutual
rights and obligations between the ruler and the people, and between
people with each other in the Islamic world regardless of their faith or
race or language or countries. Imam Ali was always asserting the
importance of the person in the society and the responsibility of the
society to protect the individual and protect his legal status and cover
every number of community with the righteousness and building up his
personality with all the possibilities.
And this humanitarian interpretation of Islamic Teachings is the
essential foundation of Shī‘ite School in Islam.
***
3- AL-Fiqh is the science of studying al-Sharī‘a for extracting the
rules and judgements to govern the course of events according to the four
Sources of legislation and making rules and law from the Sharī‘a. The
four sources for finding out the rules and judgements from Sharī‘a are; 1al-Qur’ãn 2- The Traditions (Ahãdīth of the Prophet as recited and
interpreted by Imam Ali and his sons; 3- The proof of reasoning (proof
that is reached to by the reason) and 4- The Census; (the opinions of the
majority of the Scholars which included the Imams’ citation or
interpretation).
1- al-Qur’ãn. Qur’ãn, The Holy Book of Allah, is the Fountain-head
of the Rules of The Sharī‘a. And to know and understand the real
meaning and the end of the Verses and Words of It we should know and
comprehend the Two probable meanings of the phrase or word, the
provisional meaning (which is implied in the provision of the word) and
the apparent meaning. And this call us to understand the end of the
meaning of the words; the exact meaning and the similar, the real and the
metaphor, the command and the prohibition; the general meaning and the
particular; the absolute meaning and the restricted; the suggested
meaning and the apparent and the summarized and the prolong phrases.
1
- Nahj al-Balaga 3rd. Vol. P. 82
5
And to know all the probable kinds of meanings the word may be
charged with, and to understand the precise meaning of a word in
particular using, in clause of in sentence and to find out a governing rule
of a disputed case or a problem before us we should refer to the Science
Of Usoul al-Fiqh for Total concept and for the Partial concept and rules
we should refer to one of the books that include the Five hundred Verses
which are the pole of AI-Fiqh. And we find our needs in one of The three
distinguished books on this subject and they are; 1- Sharh Āyaat alAhkam (Explaining of the Verses of judgements) By Kutb al-Deen Bin
Hibat Allah 1 . 2- Minhaj al-Hidaya Fi Tafseer Iayat al-Ahkam-al-Khams
Maya (The Road Of Guindance For The Explaining Of The Five
Hundred Verses Of Judgements) by Ahmad Bin Mutoa-Waj 2 . 3- Kans alIrfaan (Treasure Of knowledge) by al-Shaikh al-Micdaad 3 , and this book
by al-Micdaad is the best of this three books.
2- The Traditions (al-Sunna). The Traditions is the second source
for the rules and judgements in Islam, but, it is difficult to find out the
True one from the false one. The reason for that is very clear, it was that
after the fourth Khalīfa Imam Ali, but, even during his days, there had
been created many reciter for the Ahãdīth, who tried in every false way
to approve ‘Āyisha war against Imam Ali and after the Assassination of
Imam Ali by bin Muljim, they, those false Scholars, created many
traditions to approve Yazid bin Muawiya, despite his conduct which was
ruining the Islamic world, particularly after his troops attacked and
destroyed Mecca. It is not the Shī‘ite writters who accused such false
reciting of Traditions but the Sunni writers who said their point of view
about Abu Hurayra; In his book Adwaa Ala al-Sunna al-Muhammdiya
(Lights on the Traditions of Muhammad), the author Mahmoud Abu
Rayya said:-‘‘The Scholars of Hadīth affirmed, that, Abu Hurayra was a
defrauding narrator of the Traditions’’. And ‘‘he was the first narrator of
Traditions, Ahãdīth’ who had been accused in Islam.’’ and ‘‘Imam Ali
said about him‘‘:The worst Liar of the people, in matters in connection
with The Prophet, is Abu Hurayra.’’ and the writer said in this book:‘‘We can not relate here all the criticism and suspicion that, Abu
1
- al-Rawandi: Kutb al-dean Saiid Bin Hit at Alut, died in 573 Hijriya ,he
wrote Khulasat At-Tafaseer and Sharh Iayat al-Ahkam.
2
- Died in 830 Hijrita.
3
- al-Mcdad Bin Abdullah Alsiyouri al-Hilli died in 820 Hijrrya, one of the great
Scholars of The Imamiit. He wrote-among many great books-Kanz al-Irfan Fi
Fkih al-Koraan, al-Tankeeh al-Rayi Fi Sharh Mukhtasar al-Sharayi, etc.
6
Hurayra, have had been covered with. And Abu Hurayra’s citations from
the Prophet had had been accused and denied even after the time of The
Companions And The followers and others. 1 ’’
From this point of view-among others-about Abu Hurayra we can
consider what difficulties stand in the way of those who investigate and
examine The Traditions of amount of hundreds of thousands of Ahãdīth
that are attributed to The Prophet Muhammad, peace be on him and his
family, to find out the true and original Ahãdīth and how should the
scholars of Fiqh work hard in putting Ahãdīth to test, to tell and to
disclose the real Hadīth from the false and fabricated that were made by
Abu Hurayra and the like. It should not be surprising that a number of
fabricated narrators and some times scholars have been created and found
from a false existence with citations of Traditions to support a villain
tyrant rulers, who, while they were practicing their authority in the name
of Islam, they were committing the worst of dissipation and immorality.
To avoid and to keep away from such false, fabricated and invented
Traditions, The Sciene Of Men (Ilm al-Rijal) had been established by
early Scholars to study, in strict methods, men who narrated and cited
The Traditions that had been said by The Prophet Muhammad and
transferred by Imam Ali and his Sons and the Reliable Scholars and
Companions like Abu Thar al-Gafari, Salman al-Farisi, Ammar Bin Yasir
and other reliable Companions.
It is necessary, according to Shī‘ite point of view, that a reliable
narrator should meet the requirements of the qualified narrator which are
as follows; 1- The justice. A narrator must be known among his
community as a just man 2. The Truthfulness. He must be a truthful
person 3. And the Trustworthiness is an essential element of the
requirements of a qualified narrator of the Traditions.
Science of Men is a wild field of studying and a number of great
books have been written on the subject and many Scholars still examine
men and their competence that raise them to the position of the just and
trustworthy narrators of the Traditions of the prophet and the Imams. But,
according to the point of view of al-Allãma al-Hilli 2 , the great Scholar of
the Imamiya (The Twelvers) and Ibin Dawoud 3 , we may recognize and
1
- Adwa Ala ………. by Mahmud Abu Rayya Ed. 1377 Hij. 1958. p. 164. 2.
ibid p. 166. 3. ibid., p. 168. 4. ibid., 169.
2
- Abo Mansur al-Hasan Bin Yousif Bin Ali Bin al-Mut‘ahhar al-Hilli alAllama, born in 648 Hij. and died in 726., Fukahaa al-Fayhaa p. 212
3
- Taki al-Deen Abo Muhammad al-Hassan Bin Ali Bin Dawoud al-Hilli al-
7
accept the Citations of The Traditions by men had been examined by the
Learned Scholars Of Men before our time 1 .
The Sources of The Traditions (Ahãdīth) in Shī‘ite School are four
Reliable Books:
1- AL-KAFI. AL-KAFI (The Sufficient) is the first of these four
books that was written by the most learned Scholar Muhammad Bin
Yakoub Bin Ishaak al-Kulainy,. This is the first compilation of reliable
Traditions by a famous acknowledged Scholar in Islam. He wrote this
great book in the time of The Twelfth Imam, 2 It is the pole of the
citations from The Prophet and the Infallible Imam, Ali and his Sons. An
this book is the source for all the Scholars of Shift School since its time
till now. al-Kulayni wrote it in twenty years, and it is completed before
329, the year in which the Scholar al-Kulayni died.
2- MAN LA YAHDARAHO AL-FAKEEH. This book is the
second sourse of the Traditions that written by a great Shī‘ite Scholar, alSadouk Muhammad Bin Ali Bin al-Husain Bin Baabawaih al-Qummi 3 ,
in four volumes edited for the fifth time in 1390 A.H.ya 1970 in Tehran.
3. and 4. These two great books are 1-al-Tahtheeb, 2-al-Istibsar, were
written by the learned Scholar AL-SHEIKH ABI JAAFAR
MUHAMMAD BIN AL-HASAN AL-TOUSI 4 . And many books have
been written to explain these two important books in Shī‘ite School.
These are the four Sources of Shī‘ite Traditions and to study them we
have to follow the great principle that was stated By Imam Ali. This
principle says about the Traditions (Ahãdīth);-‘‘Refer them (The
Traditions) to Book Of ALLAH, if they are similar, then take them, but,
Nile, was contemporary of al-Allama al-Hilli, born in 647 Hij. and died in
740 ibid 226.
1
- Tareek lstinbat al-Ahkam p. 13. An Introduction by Dr. H. A. Mahfud. 3
2
- ABI JAAFAR AL-SADUK MUHAMMAH BIN ALI BIN AL*HUSAIN
BIN BABAWYIH AL*KUMMI, was born in 305 Hijriya and Died in The
Year of 381 Hij. A great Scholar of Shiite School. Wrote many books, more
than two hundreds, He was the most trustworthy Scholar in his citations and
was a man of opinion.
3
- AL-TOUSI; ABO JAAFAR MUHAMMAD BIN AL-HASAN AL-TOUSI,
was born in the year of 385 Hij. and died in the year of 460 Hijri. A great
learned Teacher in Islamic Rules and two, great books were written by him
and were great in the Shiite studying.
4
- al-Kafi Ist. Vol. p. 23.
8
if they are different, then, leave then away. 1 ’’
It is necessary to notice three points on studying the Traditions in
these four books or other books and these points are:a- It is necessary to consider that all the Traditions are to exhibit and
explain the meaning of the Rules in The Qur’ãn.
b- It is not perforce that a Tradition narrated in these four books is
true or if a Tradition is not here is not true. The Great Scholars always
think that every Tradition in these books or in other books must be a
subject to the criticism.
c- If we read a Tradition in these four books or in other books of the
Traditions of the rule or Judgement we should comprehend them with the
considerations of the standard of the thinking of The Imam we cite his
sayings and we should always raise the Traditions, we read or study, to
the standard of the Islam Teachings and to the standard of The Prophet’s
and Imam Ali’s and his sons’ comprehension of Islam in The Verses of
The Qur’ãn.
3- The Reasoning. Reasoning is the third source or proof of the
finding out a rule for a case. But it is necessary to understand the
authority of Reasoning and who invested such power and gave the
Reasoning the influence to extract rules. And is such authority is a
creative authority or is it only an interpretative and explanatory
authority.?
To answer such a question we must understand the deep and real
nature of Islam Religion.
The constituent character of Islam is, that, Islam is the Intuitive
Religion and the Religion of Knowledge.
The intuitive character in the nature of Islam is clear in the Verse No.
30 of Sura the Greeks (al-Room), it says:- «Set you your face
devotionally towards. Islam the religion God had made and towards
which, by God, people intuitively have been guided. There is no change
in the creation of God. This is the true religion, but the great part of men
do not know.»
And as Islam is the Religion of Knowledge, this can be clearly seen
in number of Verses in Qur’ãn. In these Verses we find out how Allah
and His Prophet refer, in different, ways and styles to the power of
reasoning of man and to his comprehending and understanding and how
it has been demonstrated that those who are stable firmly in knowledge
can discover the miracles in The Signs of God creations. In Verse no. 6
1
- AL-KAFI vol. 1 p. 8.
9
of Sura The Family of Imran, the bask of knowledge in Believing in God
is clearly demonstrated, it says: «And the well grounded in knowledge,
say We have believed in it (The Qur’ãn) It is All from Our Lord. But
none can consider this, save those who are endued with deep
comprehending. 1 »
And Verse 171 of Sũra The Cow, describes the connection between
the infidelity and ignorance and the believing and knowledge, it says:
«the unbelievers resemble him who shout in croaking sound to one who
hear not but call or cry, dumb, blind, they are and have no power of
thinking.»
And in many Verses we meet many times these phrases «They have
no understanding» or «They have no comprehending, and other phrases
which always indicate the lack of reasoning in different styles and
manner of expression. And all these phrases demonstrate that Islam is
Religion of knowledge.
Reasoning, then, as we see, is authorized by the Verses of The Qur’ãn
to judge and make decisions of its own in matters inside the circle of its
power, but it has, on the other hand, only an interpretative authority in
matters that are outside its ability of comprehending. Imam Ali had
pointed out the deficiency of man talent to reach what is beyond the
power of his mind and his genius in his saying: ‘‘He, WHO is beyond
the reaching of our minds.’’
Reasoning as a source of extracting rule or as a proof of judgement
should be in the degree of Thinking Through, Reconsidering and
Comprehension, what is in the Qur’ãn and what is in The Traditions of
The prophet that have transmitted to us by Imam Ali and his sons.
The reasoning reaches a judgement by way of; either by the
pronounced statements; or by the meaning of the concept of similarity, or
by the meaning of the concept of the contrary; or by the way of alIstishab, which means the formula that is Certainty shall not be defected
by Suspicion, and if a rule or judgement is certain it must be certain until
it becomes null or void by a new proof 2 . It had been stated by al-Ansaari
;the continuity of what is is. 3 »
4- The Consensus. The consensus is defined by The Writer of Gayat
Al-Bãdi Fi Sharh al-Mabadi. Who is a great Scholar of Imamiya in these
words: «The Consensus in the concept of The Scholars of The Family of
1
- al-Kafi st. 1 vol. p. 15. 2- ibid, p. 14
- Fukahaa al-Faihaa by Saiyid Hadi Hamad Kamal al-Deen, Ifs. vol. p. 26.
2
3
- ibid., p. 27.
10
The prophet - peace be on Them - is the agreement of the people of
Muhammad, peace be on Him ,in a form that including the saying of the
Infallible. 1 »
The consensus may be found and may be known by other and it may
be a proof, but some said; that it is not being exist, and if it exists or
established it may not be known and some stated that even it is found and
known but it can not be a proof of extracting rules or judgement. 2
And every party of the argument is defending his idea with long
statements.
It is clear and unmistakable, that, the essential elements of the
Consensus are the Three Sources of proofs of extracting rules and
judgement in Sharī‘a we mentioned before; The Qur’ãn, The Traditions
and The Reasoning. This fact is ascertained by the definition of the
Consensus itself. ‘‘the agreement of The People of Muhammad,’’ as, the
definition of consensus, stated it as an essential factor of consensus, and
that can not he found among the Scholars, Without the studying carefully
and examining the truth of the self-evident Traditions of the Prophet
under the shining light of the meaning of the provision of The Verses of
The Qur’ãn, and finding out the connection between The Traditions and
the Spirit of The Islam as revealed by The Qur’ãn, by The Reason.
Besides the Consensus must, to be a proof of making judgement, include
the saying of one of the Infallible Imams, and this is the very traditions
we mentioned before.
Looking carefully and exposing the evidences exhibited to defend
argument on consensus among scholars we may find out that consensus
should be considered, preferably, a matter of supporting the process of
proving by the three sources, The Qur’ãn, The Traditions and The
reasoning, rather than a source or proof of extracting or creating rule or
judgement.
It may be said, that, the consensus as a proof or source of making rule
or judgement, has its influence during the period of dullness and
sluggishness of the scholars. Such period of consensus influence effected
Shī‘ite Scholars after the death of al-Shaikh al-Tusi in the year of 460
A.H.ya, which continued for more than a hundred years until the time of
Muhammad Bin Idrees during he period from 543 A.H. to 598 A.H.
1
- DIRISASAT FI USOUL AL-FIKH, by Sayid MUHAMMAD KALANTAR,
3rd. vol. p. 126.
2
- ibid., p. 126.
11
**********
3- Shī‘ite Scholars have a great privilege in their studying of Islam
Teachings, and because of this privilege they have been in touch with the
real, deep and revealed Spirit of Islam. This privilege is that their
connection with the profound source of Islam Religion; The Prophet
Muhammad and his Family; Ali and his sons. Who were always,
enlightening people and guide them to the Righteousness.
The importance of the privilege that the shift Scholars are decorated
with is not only to ladle out knowledge from the infallible Imams, but
there is another aspect of this privilege, it is the freedom of reasoning that
the individual has crowned with when he reaches the standard of the
profound learned Scholar, which, we call al-Ijtihad.
IJTIHAD. We have seen that Reason has been considered a source
of proof of making rule and judgement. And we noted too that Reason’s
authority in this matter has two aspects; the creative influence and the
interpretative influence and both of these aspects have been affirmed by
the Verses of The Qur’ãn. It is obvious, then, that reasoning process of
making rules and judgements is always connected and limited with the
circle of the provision of the Qur’ãn and The Traditions and not free to
creat rules and judgement by itself only.
This authority and power of reason of making or interpretation rules
or judgement with the limits of the Provision of the Qur’ãn and The
Traditions is which we call, according to Shī‘ite School, IJTIHAD.
Imam All the first man after the Prophet Muhammad who had
comprehended the Teachings of Islam and The Traditions of
Muhammad, had defended his right of Reasoning. When Muslims
assembled to choose The Third Khalīfa, Imam Ali had been asked if he
promises as Khalīfa, to follow The Qur’ãn, the Traditions Of Muhammad
and the conduct of rolling of the two late Khalīfas, Abu Bakr and Umar,
Ali said no, I follow The Qur’ãn, The Traditions of Allah’s Prophet
Muhammad and my Reasoning* and he persisted in for the third time that
he should not follow the conduct of ruling, of the two previous Khalīfas
but, his own reasoning, while Othman, who was one of the six candidates
to the position of Khalīfa,-accepted the condition of following the
conduct of ruling of Abu Bakr and Umar.
This principle of the right of reasoning had been followed by Imam
al-Sãdiq, peace, be on them, al-Sãdiq said, as it had been cited by alMuqdad: ‘‘We give you the Roots and you must branch out.,’’ And this
12
statement of Imam al-Sadiq is a proof of the need of Reasoning-Ijtihad 1 .
Ijtihad had been defined as the exhausted exerted endeavour of all
one’s energy and mentally strength and capacity to extract and determine
the rules and judgements from the Proofs or Sources of Sharī‘a; The
Qur’ãn, the Traditions The Reason and The Consensus.
And we have to distinguish between the reasoning (Ijtihad) here and
the other kind of The Free Authority of The Mind (Ijtihad al-Ray) which
was followed by other Schools in Islam particularly by Abu Hanifa.
The essential element of the free authority of reason is that The
Sharī‘a is deficient and it does not include all rules and judgements for
the course of events and cases, Therefore the reason must create the rules
to complete Sharī‘a. This point of view, of course, is against the
Teachings of the religion Islam, which is complete and sufficient;
«Today I completed for you your Religion and 1 determined That your
religion IS ISLAM 2 ». It is not difficult to find out the purpose for which
the idea of the deficiency of Sharī‘a had been designed. The purpose was
a political one, it was planned and designed to give the scholars an
authority to decide the relation between the conduct of Khalīfas, who
were the worst men in their villainy, and the Teachings of Islam. And
they said that Sharī‘a is deficient, then they can complete The Sharī‘a by
verdict that always justifying the rular’s behaviour, white in shift School
the reasoning was designed to guide Khalīfas to the right path of raining
people.
Teachings of profound learned Scholar is Ijtihad and a teaching by
him is Fatwa; verdict, or judgement. On the other side the following of
these master teachings by a person or persons is called Taqlid which
means reliance or depending upon or entrusting in religious affairs.
And as a learned-Scholar is tree to extract the rule and judgement for
a case according to his reasoning and profound learning, people are also
free to rely on or entrust any master Scholar they thing that he is reliable
and dependable in giving verdict (Fatwaa).
This freedom of choosing the master scholar to entrust was the best
impulse to urge and drive men to exert all their strength in studying and
learning to reach the level and stage of Ijtihad and this was very affective
factor in enriching the Islam Teachings in Shī‘ite School.
1
- al-Imam Jaafar al-Sasadiq Bin Muhammad al-Bakir, The sixth Imam and the
Profound-Learned Interpreter of Shiit principles in History was born in 80
Hijirya and died in 148. Istinbãt al-Ahkam p. 17. Imam al-Sadiq Ist. vol p. 26
2
- Maida, verse 2
* Ijtihad here means the independent of reasoning not to extract rule.
13
But in the same time we have to realize that even the Twelver Shī‘ite
School had this privilege of Ijtihad, the field of Ijtihad has been limited
And with the exception of few cases we find that The Individual
Reasoning (ijtihad) did not solve problems that must be solved, and we
see on the contrary that such problems became more complicated, for
instance the right of a wife or wives in her deceased husband’s property;
and the right of a Muslim man to make a permanent contract of marriage
to a non-Muslim woman, Jewish or Christian and many other problems.
We find too in other cases that Ijtihad has been used for particular ends,
rather than, the benefits of the people, and this indicates that most of the
Scholars are not in contact with the social problems in Muslims
Community. And most of the Scholars are under the constraint of what
had been said by previous scholars, which they think, is not a subject to
be discussed, but to be relied upon amiably and this was in my point of
view, the worst of an obstacle that prevented the individual reasoning
from progress in Shī‘ite School. There are many scholars, of whom we
should be very careful, who try to use the authority of Ijtihad for their
influence and not for the Muslims welfare.
We have to distinguish between fatwa; the verdict of a profound
learned scholar, (mujtahid) On a particular question, and his point of
view in a matter of discussion, the first; the fatwa, is accepted only while
the scholar is alive but. after his death his fatwa has no effect, because, it
had been said that there is no reliance upon a dead scholar (mujtahid).
But, it had been affirmed that the point of view of a scholar is always
alive and effective even after his departing. And when we talk about noneffective fatwa we refer to an occasionally fatwa on a limited question
and which does not include a possibility of generalizing its ruling
judgement but, most of the fatwas; verdicts, are including a
predominating ruling beyond the limits of the question it solves that it
should be considered a principal rule and not a limited fatwa, for
instance, in his book ;al-Khilãf, al-Sheikh al-Tusi in page 65, problem 72
decided that; ‘‘A woman used to commit, with men, act of fornication is
not subject to the necessity of having a time of waiting period after the
act of sexual intercourse with men, and she has the legal right of making
a contract of marriage, either she is pregnant or not, but it is preferable
that the husband shall not touch her until the birth of the baby or the time
of the first menstruation’’.
We can understand, of course, the humanitarian principle that the
great Scholar al-Tusi intended to affirm that, the welfare of the
community is always depending upon how the community takes care of
14
the individual, and regards him as an essential pillar in its construction
and progress. We should always, al-Tusi intended to say, guide our
brethren and redeem them from their sins and lead them to the path of
righteousness.
In another fatwa the late Sayid Muhsin al-Hakeem, The great
profound Scholar of our time has decided lately that it is legally to a
Muslim man to marry, in permanent marriage, a woman even she is
Jewish or Christian. And this was an answer to the Court of Religious
Affairs in Baghdad, The Court said in her letter to The Scholar alHakeem that there are numerous marriage affairs between MuslimShī‘ite men and scriptural women and it is not fair to tell the girl or the
woman that her marriage to the Iraqian is a temporary marriage even for
ninety nine years. The late al-Hakeem’s answer was that a Muslim has
the right to marry permanently a scriptural woman 1 .
This Fatwa of al-Hakeem indicates how he was, always, in
connection with the modern problems of Muslim Community in this
modern world. And this fatwa may he or should be generalized forever, if
we consider the relations amidst people of all nations and the new
methods of communication between man and woman.
It is not easy for a person to meet the requirements set that qualify
him to be a profound-learned scholar that can be relied upon. These
requirements are 1- Sound knowledge of The Qur’ãn, The Traditions,
The Consensus, The differences amidst the Schools, The Arabic
Language particularly The Dictionary of Lisãn al-Arab, (The Tongue Of
Arab Dictionary). And the Roots of Fiqh 2- The Reasoning. 3- The
Justice. 4- The Puberty. 5-The Profound Believing In Islam. 6- The
manhood. 7- and piety
4- Subjects of Fiqh are traditionally classified into four topic subjects,
they are 1- The Worships which indicate the relation between man and
his God and they are five worships; 1- The Prayer. Man must stands
towards al-Ka‘ba in Hijaz in Saudi Arabia five times aday to practice his
prayers for his God as follows; The first prayer is in the down,before the
sunrise, the second prayer is in noon time ,the third is in afternoon time
and it may be practiced with the second prayer in noon time, the fourth is
after the sunset and the fifth after that in one hour or it may be practiced
in the same time after the fourth prayer.
1
- The Court’s letter to the late al-Hakeem has not been published but The
Court follows its instruction as a profound one of the Shiite Rules.
15
2- The Fasting .A capable man for fasting should go without food
from The down until ten minutes after the sunset every day during the
month of Ramadan every year and he should not touch his wife. 3- alZakãt, and the Fifth (khums) which mean Alms - Tax, A Muslim is
obliged, if he is subject to the religious obligations and duties, to pay the
alms - tax and its amount may be two and a half in every hundred and
increases proportionally. 4- al-Haj, The Haj; the pilgrimage to al-Ka‘ba
in Mecca in Saudi Arabia is an essential duty upon every Muslim who is
able financially and in good health and in his puberty and not insane,
And a one pilgrimage in the life is enough. 5- The Holly War A Muslim
is obliged to fight the enemy of Islam and if he dies he is A Martyr and
he will be in his God Paradise.
2- The Second class is The Contractings. Which mean the
contracting relations between man and man, and it include all mutual
contracts and agreements which create mutual obligations, for instance;
marriage, sale, buying working for some one, lease etc.
3- The third class is The Individual Intentionally Acts (Iekaat)
which mean the individual intentionally acts that do not need the
agreement of another party and it is affective directly at the time it is
presented by the individual will ,for instance, divorce is an individual act
and its effectiveness does nut depend on the consent of the wife, and an
act of giving a gift is au individual act.
4- al-Ahkam; the determinations by God Will. al-Ahkam world has
two meaning, the first is the general meaning which includes all the
subjects sic .mentioned before. It is of course clear that all what we do is
to obey our God’s orders, the prayer, the Holy war etc. are all determined
by Allah, which and we practice without discussion and with deep
consent.
The other meaning or the determination orders(al-Ahkam) is used to
prescribe particular rules which we should follow with submission, such
rules are; to divide shares of the heirs in their deceased’s property or the
right of wife to be supported by her husband and so on, such orders are
undisputable but it must be carried out with obedience.
**********
5- Since the subject of this book is The Rules Of Personal Status in
Islam, the writer, therefore, is not going to present the worships, (Ibãdat)
but, he may present this subject in another book. But parts of The
contracting, as, marriage; of individual intentionally acts, as, divorce and
legacy; of determinating orders (al-Ahkam) as, inheritance maintaining;
16
are presented in this book.
The Rules Of Personal Status in Islam, particularly in Shī‘ite Ja‘fari
School, are as, the writer found out, during his practicing law for twenty
years, as a lawyer and from his studying the original sources of Fiqh, that
these Rules reflect The Humanitarian Spirit of The Teachings Of Islam as
is revealed by The Verses Or The Qur’ãn and The Traditions Of The
Prophet Muhammad, as These Traditions Have been transferred to us by
Imam Ali and his companions as, Abu thar al-Gafari and Salman alFarisi and his Sons.
The writer exerted his endeavour to extract these Rules from the
original Sources and tried to clear these rules from a cover of legendary
statements that had been inserted in some of shift original Books by
antagonists. The legality frames of The Shī‘ite Studying is referred, in
certain, to the style of thinking of al-Imam Ali, who was as The Prophet
said: ‘‘Ali is The Best of You in Judging,” And this fact is very clear in
Nahj al-Balaga by Imam Ali.
This style of legality framed most of the great books written by
Shī‘ite Scholars and it is presented in particular in al-Sarayir by Ibin
Idrees and Sharayi al-Islam by Abu al-Kasim Najm al-Deen Jafar Bin alHasan al-Hilli and al-Makãsib by al-Sheikh al-Ansãri.
By studying these great books carefully it becomes easy to the writer
to furnish the great principle of Personal Status in Rules. And in few
cases the writer quoted the original phrases from the Shī‘ite great
Scholars’s Books as a proof of facts he stated.
And in rules, that may stir up a dispute, the writer gave the references
to where such rules are affirmed and this may help the reader for a
comparative purpose.
Every Rule that is stated in this book have been affirmed by one or
another great learned Scholar in Shī‘ite School.
The writer acknowledge, with esteem, the profound fundamental selfsacrifice The Shī‘ite Great Scholars have offered up in their learning to
extract the religious Rules from legislation Sources in Islam; The Holy
Qur’ãn, The Traditions of the Prophet Muhammad and Imam Ali and his
Sons the Imams, The Reasoning power and The Consensus.
The writer intend to present certain Scholar of Shī‘ite School,
particularly Bin Junaid, who, in the writer’s point of iew, is the greatest
Scholar in Islam.
The writer hopes that this book is helpful to those who want to find
and disclose the real great humanitarian principles in Islam Teachings.
17
**********
6- Islamic Shī‘ite Rules of Personal Status found Their way in most
of the modern laws in Islam Countries.
In Iraq Shī‘ite Rules gradually, took their place in the legislated Acts
concerning the Personal Status Laws, in particular The Iraq Constitution
March 21, 1925 in Article 13 which provides; ‘‘Islam is the official
religion of the State. Freedom to practice the rites of the different Sects
of that religion as observed in Iraq, is guaranteed complete freedom of
conscience and freedom to practice the various forms of worship, in
conformity with accepted customs, is guaranteed to all inhabitants of the
country provided that such forms of worship do not conflict with the
maintenance of order and discipline or public morality.’’
The principle established by this article concerning the Islam criterion
of the State of Iraq had been affirmed in the New Provisional
Constitution after Iraqian Revolution, in 1958 under the Leadership of
the late Aadul Kareem Kassim, and the other Constitutions which
followed.
In Article 13 of the Iraqian Constitution for The Year 1925 we notice
that the Shī‘ite Rules had not been mentioned clearly but they were
included by the paragraph! ... Freedom to practice the rights of the
different Sects of That Religion’’ and Shī‘ite School is a sect of Islam.
And the first applying for the provision of the Aricle 13 of The
Iraqian Constitution of 1925 in practice was the affirming and ratifying,
THE. SHARA PROCEDURE REGULATIONS that was brought into
force in 20th February, 1922. In further Addendum to these Regulations
it said that; ‘‘In cases relating to matters of Personal Status ... or relating
to gifts, legacies, heirship, interdiction and Waqf” the parties to such
cases may apply to transfer the case to Alim, the decision of the ‘‘Alim
shall be submitted to and confirmed by the Qãdhī’’ in his Formal
decision.
And THE SHARA, COURTS LAW, 1923, which for the first time
in Iraq recognized the appointment of Qãdhī for a Shara’ Court of The
Ja‘fari Sect (Art. 2)
And Article 5 of this Law provides;’’ 5, The following suits shall he
decided in accordance with The Ja‘fari rules of shara:-’’
«1- Cases relating to marriage, divorce, dowry, maintenance allowance
payable by husband to wife or by children to their parents, custody
of children, guardianship of minors, family relations between
husband and wife, if the husband was Shiah at the lime the
18
marriage was concluded.
Other claims for maintenance allowance if the person from whom
the allowance is claimed, is Shiah.»
«2- Suits for inhibition from dealing with the property of prodigal or
lunatic or absent person if such prodigal, lunatic or absent person
are Shiah.»
«3- Suits relating to succession, legacies, guardianship of minors and
wills, if the deceased was Shiah and died after 11th March,1917.
If he died before, the case will be decided according to the
Sunni’s Laws unless all the parties content to being decided
according to Shiah law.»
«4- Suits elating to waqf or the establishment or interior administration
of a waqf if the doner is a Shiah.»
And article 6 provides that if such suit as mentioned in Article 5
brought before a Qãdhi of Sunni Sect he should refer it to an Alim of the
Ja‘fari Sect and he shall give his decision according to the Alim’s Fatwa.
And in article 2 it has been stated that in Baghdad and Basra or other
large cities there should be two Qãdhīs and two Courts one Sunni and the
other is Shī‘ite.
This Law was effective until the recent years with very few changing
until the Days of the Late Abdul Kareem Kassim by whose order a new
law for the Rules of personal Status was legislated in 1959 NO. 188.
In this Law of Personal Status No. 188 for The year 1959, the Shī‘ite
Ja‘fari rules have the real influence in its 92 Articles with the exception
of what stated in it about the equality of share between the son and the
daughter.
The goal of this law was to liquidate the differences between the
jãfari and sunni schools.
******
In Iran the effect of the Shī‘ite Ja‘fari School was wider than in
Iraq. The Shī‘ite Doctrine in Islam have been the Common Essential
Element of The Iran Constitution and The Civil Law.
And Iran have been The only Country whose Constitution established
according to the Shī‘ite Ja‘fari Doctrine in Islam.
Article One of The Iranian Constitution Law that passed by the
National Assembly and signed by The Shah, Tehran, October 8, of The
year 1907 provides: «Article 1. The state religion of Iran is Islam,
according to the true Ja‘fariya doctrine, recognizing Twelve Imams.
19
The Shah of Iran must profess and propagate This Faith.»
And Article 39 provides that «No king may ascend the throne unless,
prior to his coronation, he appears before The National Consultative
Assembly, and in presence of the members of the Assembly, The Senate
and The Cabinet, he shall have taken the following Oath;»
«I call upon God Almighty as witness, and I swear upon The
Glorious» Word of God (The Quran) and upon all that respected
of…….»
«to endeavor to promote The Ja’fari doctrine of The (Shiah) Sect»
«of Twelve Imams, and in all my deeds and actions I shall
remember «God»
«Most Glorious, as being present and watchful,....»
The Shī‘ite Doctrine had been applied entirely in The provision of
The Persian Civil Cod for the year 1937 And the Rules of Personal Status
according to the Ja‘fari School are stated in matter of marriage in Article
970 and 1034-1132 and in clear expression the Temporary marriage is
stated in Articles 1075 to 1077.
And these rules have been, somewhat, strictly an adaptation of the
conservative opinions rather than those that show a slight progressive
understanding, for example; a girl of age has no right to marry without
the consent of her father, 1 this is true according to some Scholars but, the
other say that a girl with full age may make a contract of marriage for
herself and it is preferable to consult her father or her brother , if there is
no father or grand father.
We have to bear in mind that the adaptation of the Shī‘ite doctrine
dose not exceeds favourable treatment to those who are not Iranian even
if they are Shi‘ah. And if a Shī‘ite man wants to marry an Iranian woman
he cannot without the permission of the government even if he is Shī‘ite
(art. 1060). But in Iraq there is no such restraining rule, and a foreigner
may marry Iraqian woman if he is Muslim and no authority can object
about such marriage.
The writer feel that the adaptation of Shī‘ite Ja‘fari doctrine in Iran
deserve a special book in which the relation between the Iranian Law and
the different Opinions of the great Shī‘ite Scholars may be disclosed.
Baghdad
April, 1974
1
- Article 1043 sec Mustamsak AL-uruat al-Wothka, al-Hakeem 14th vol. p. 478.
20
BOOK ONE
NATURAL PERSON
The Natural Person
Chapter Two
Existence of man
Rule 1. Man - human being - is the subject of these rules and every
man assumed to be Muslim until his parents or the other converted him to
other faith.
The beginning of the existence of man.
Rule 2. The legal personality of man begins with the beginning of his
existence en venter sa mere - in his mother womb - on condition that, he
must be born alive. But if he is born dead, his rights and duties are
abolished from the time he was assumed existed. 1
Rule 3-1. A human being in his mother womb in a state of foetus, has
the legal rights of possessing property, inheriting parents and relatives
and will may be made in favour of him, and making disposition of
property to him, which takes effect after the death of the testator.2
2. A foetus is subject to he protected from any probable danger
against it or against its mother. And the mother should be protected from
hunger and hard living and she has the legal right to be protected even
from legal obligations if they are putting the child life in danger. And this
protection shall continue until she gives birth to the child. 3
Rule 4. A woman with child in her uterus has the right to be
maintained by husband or relative even she is divorced or her husband is
dead, till the time of the child birth. And if there is no husband or
1
- Lum‘a 5th vol p 23 Sharayi 5th vol p 255.
2
- ibid. p. 23.’’ ’’’ ’’ p. 255.
3
- Imam Ali decided that a woman with a child in her uterus is not subject to he
stoned for adultery. Kadaa Amer al-Mumineen Ali Bin Abi Talib by Muhammad
Taqi Tastari tenth Ed. PP. 14-24.
22
relatives in the circle of responsibility for maintaining her or the child,
then her supporting is the duty of the Imam and the local authority. 1
The Individuality of Man.
Rule 5. The individuality of a person begins in the moment of his
birth alive and from this moment he is vested with capacity to receive
but, not to give and this capacity is retrospective to the time of the
beginning of his existence in his or her mother uterus.
The legal Status of The Child.
Rule 6. Every child in the moment of his birth is assumed a
legitimate child. And the Human Society is obliged, by all efforts, to
affirm the legitimacy of every child.
Rule 7. Legitimacy of a child is certain and confident IF;
a) He or she is born during a state of wed - lock in a time of
not less than six month after the consummation of the parents’ marriage;
or b) The child is born after the date of the contract of his
parents’ marriage, even the date of the contracting of marrying is after
the state of the mother’s pregnancy if the husband was the cause of
conceiving the child;
or c) The child is acknowledged by the father, that he or she
is his, even the mother can not prove the contract of their marriage; 2
or d) The child is acknowledged by a man and there is a
probability of fatherhood on the man side to the child. And if the child,
after his puberty, accepts this fatherhood it becomes certain and the man
has no right to deny it, and the child becomes his son with all the full
mutual rights and obligations. 3
Rule 8. The two parents with child or children have always the right
to claim that the child or children are their children by wed - lock, and
their claim should be ratified by the authority and no authority has the
right to object or oppose such claim or ask the parents to prove their
claim.
1
- Article Thirty of The Law of Personal Status No. 188 for The Year 1959
issued that if a wife is not able to make her living the government is
responsible to support her even she is without child.
2
Sharayi’ 3rd. vol. p. 154.
3
ibid., 157.
23
Comment
1- The fundamental purpose of making the simple form of the
marrying contract is to give an opportunity to marriageable male and
female to be bound to each other in love and tenderness as, a husband
and wife. The immediate aim, of course, of such easy form of contract of'
marriage in Islam is not only the legal happy life of the husband and his
wife but, the real aim is to legislate the simple rules for justifying the
status of the born offspring. And the temporary marriage is not, but an
easy opportunity for the same humanitarian principle of which the real
purpose is the acknowledgement of the legitimacy of children.
2- These principles which are found for the benefit of the child have
been traced in making of the Personal Status Law No. 188 for The Year
1959 in Articles 51 - 54.
Article 51 provides that, A child of any wife shall be related as a
descendant of her husband on two conditions;
1- That the child shall be born, after six months, of the date of the
contract of their marriage.
2- That the consummation of their marriage was possible.»
And Article 52 provides that if a person acknowledged that a child of
unknown parents is his descendant even if he is (the father) in death - bed
the acknowledgement is legal if the case is possible.
But if a woman declares that a man is her child’s father her
acknowledgement is not effective unless the father recognizes the
descendant-ship or she proves it.
It must be noted that the legitimacy of a child related always to the
father, by the law as in marriage, or by his recognition of the descendantship of his child, and legitimacy does not need the establishment of
marriage and the child shall be legitimate even if his parents are not
married to each other provided that the father approves that the child is
his child.
The acknowledgement of descendant-ship of a child by a father
makes the child related to the father as his son with all the rights and
obligations between father and his son, in maintaining, inheritance and so
on.
3- The wife has the right to prove the paternity of the real father of
her child by every evidence she can present before the Court. And she
may prove the paternity if she can prove the cohabitation between her
24
and the father of the child.
The leading Case on this matter is Shad al-Tamimi Case, which was
brought before The Ja‘fari Judge in Baghdad Sayid Kamãl al-Deen, No.
2913, in the year 1953. The Judge decided, in his famous judgement, that
Cohabitation between the mother and the father of the child in one house
and the maintenance for the child and his mother and letters from the
father to the child’s mother asking her to take care of the child and many
letters from the father to his friends asking to help the mother are
sufficient evidence of the paternity.»
(News paper; Sada al-Akhbar No. 52, 19 May, 1954.
4- To register a marriage and the acknowledgement of children, is
simple in Sharī‘a Courts in Iraq, in particular in Shī‘ite court, it needs
only to fill a particular form of paper, without stamps, two copies, in
which the petitioner informs the court of his name and the wife name, the
age and the sex. And the name of children, if any, and when he stands
before the Judge, he shall affirm what he writes in the paper such as» we
have been married since (he mentions the years or months or days) and
we have child or children - name them before the Judge and their age if
possible - Then The Judge may ask the wife if she had married this man
and received part of her dowry in advance. The wife shall affirm, then the
Judge shall announce them husband and wife with their children, if any.
The Courts has no right to interfere between the spouses to prove the
facts. The fact always is what they say, if there is possibility. And such
rules are the best rules which exhibit the humanitarian factor in Islam
Teachings in giving the child and children their right in life as legitimate
children.
25
Chapter Three
The Foundling
Rule 9. A founding is a deserted infant found after it has been
abandoned by its unknown parents. And a foundling is every stray and
every lost child or insane person who is not under a safe protection. 1 And
the infant foundling is assumed being under the age of discretion but, it is
preferable to protect a foundling, even he is in his age of discretion, since
such child is unable to take care of himself because of his juvenility.
Rule 10. A person has right to take a foundling if he; a) attained his
puberty, b) sensible and c) free person.
And if the finder is not Muslim the foundling should be separated by
the judge or the local authority from non-Muslim finder and must be
transferred to a Muslim for taking care of him and if there is not any, the
local authority should take the duty of the care of the foundling. 2
Rule 11. If the foundling infant was found and taken by a nomad
Bedouin or by urban, who has no settlement in the place of the foundling,
it is, then, preferable that the child be separated from the finder for the
sake of the child kinship. 3
Rule 12. Taking and protecting a foundling and every lost child and
unable person is an individual and public duty. So, if a finder of a
foundling does not wish to take care of the infant he found, he is obliged
to inform the local authority to obtain an order from the judge for the
1
- al-Sharayi 3rd. vol. p. 283.
2
- In Iraq this religious rule has been followed in establishing the boarding
school for orphans and foundlings in Baghdad and the large cities.
3
- The leading principle in Islam as stated by Imam Ali is to clear always the
connection of child with his parents and to affirm his legitimacy, and this shall be
explained in another book,
26
maintaining of the infant by the local authority, and if he can not obtain
such order of compulsory support by government, he must ask his
Muslim companions and the leading Scholars in his community .And the
tinder should always look to the foundling with the full consideration,
that, taking care of a foundling is a profound religious obligation.
Rule 13. To take care of a foundling is a duty and not a charity
therefore, the finder is responsible to look after the foundling as one of
his children and this care includes the material and the spiritual sides of
the life. And it is the duty of the finder to separate the child from
dissolute and dissipated people. And he should be sent to school. And the
finder should bring the foundling up to be a constructive person in the
community.
Rule 14. If the finder intends to recover the amount of money that he
shall spend for the needs of the foundling, he has the legal right to
reclaim and the foundling is obliged to pay back the money if the finder
can prove that he is able to do so.
But it is preferable if the finder obtains an order from the local
authority or the judge to affirm his intention of reclaim of the expenses.
Rule 15. The finder of a foundling is responsible before the local
authority, the judge for any lack of due care towards and regarding the
foundling.
Rule 16. If the parents of a foundling are known they should be
enforced by the local authority or judge to take their child and give him
the due care and maintaining.
Rule 17. A foundling, of unknown parents, may be given, if it is good
for him, to a person who claims that, he or she or they are, his parents or
his father or his mother, if the person who claims is capable for the duty
of due care, and if this asserts the kinship of the foundling and his
relations with the community.
Rule 18. Finding a foundling and upbringing him do not impose any
obligation upon the foundling to the finder. And the foundling has the
complete capacity, male or female, of possession. And every thing is
found with him is his; money, clothes, a piece of silver or gold or any
valuable material is his.
27
And the foundling possesses too, the house, cottage, tent, Carriage or
cradle or bed he shall be found in. And the finder, if he needs to sell it for
the benefit of the child he is bound to have the permission of The judge. 1
Rule 19. A foundling in Islam community is Muslim. And if two
persons; Muslim and non-Muslim, claim the foundling’s affiliating, it is
preferable to assert the Muslim claim. 2
Rule 20. If a person or persons; two parents or a father or a mother
shall acknowledge the foundling, then he shall be named according to
their name. But if there is no person but the finder ,the child shall have a
name with name of an assumed family.
COMMENT
1- The juvenile Court in Iraq has been invested with the authority in
matters of foundlings and unknown lineage. And this court authorized among
other things to give names and surnames to the foundlings and the unknown
lineage. (Article 23 par. f of the CIVIL STATUS REGISTRATION LAW,
NO. (189) OF 1964.
And the foundlings and unknown lineage shall be registered in the
foundlings and person of unknown lineage Register. And this Register
should be kept in secret place and under a very trust careful hand. And if
a person or persons come to take or affiliate a foundling, then the name
and the surname should be transferred to the new person name if he
chooses that, or, the child may keep his name by which he has been
registered in the Registered office.
Rule 21. If, an unknown parentage child acknowledges that a certain
person or persons are his father, or his mother or his parents and the
father or the mother or the parents assert this claim, the child shall be
related to him or to her, or to them if the physically fitting is possible. 3
Rule 22. Legitimacy in Islam is a matter of consideration and not a
matter of Law or religion in rights and obligations. Therefore there is not
1
- Sharayi 3rd. vol. p. 287. al-Ahkam, art. 395.
2
- Sharayi pp. 283-289.
3
28
Sharayi pp. 283-289.
a bit of difference in The legal status between a legitimate and natural
child.
29
Chapter Four
Stages of age and the development of mind.
Rule 23. 1- A person ,according to his age and, concerning the legal
responsibility and legal concept ,may be dependant and independent.
2- And according to the development of mind, concerning the legal
capacity and consent, person may be sane, insane and irresponsible.
Dependant Person, (sabi, minor).
Ruler 24. An infant is legally dependant from the time of his or her
birth till the age of nine years for the girl and fifteen years for the boy.
Rule 25. A dependant person has two stages of age according to his
responsibility of his act;
a) The first stage if from the moment of his birth till the seventh year
of his age, in which he has not a bit of responsibility or obligation
towards the people, and every act comes by him or her is not existed and
he is not responsible for what has been done by him.
b) The stage of semi responsibility the age from seven til the age of
fifteen, which we call the age of discretion. And in this stage of age the
act of minor shall be effective if the guardian recognizes it and admit it.
Rule 26. Interdiction (Hajr) is a legal restriction imposed upon the
legal exercising of disposing of, and upon the capacity of contracting, of
a person if He Or She IS;
a). A minor (sabi) from the date of his birth till the fifteen years of
age for boy and till nine years for girl. Or;
b). insane, or
c). A prodigal person; or
d). A bankrupt; or
e). A person in death-bed.
30
Rule 27. Interdiction is imposed by the state of the personal status of
a person in cases of minor person, insane and a person in death-bed. And
it is imposed by announcing of the authorized court in cases of
prodigality and bankruptcy.
Rule 28. An interdicted minor has no right to practice any financial
transaction that conveys his money or his property and he has no right to
marry or divorce his wife. And the minor girl has no right to marry
without her father’s or guardian’s consent and she has no right to reject a
marriage that is contracted by her father or her grandfather.
Rule 29. All legal acts of an interdicted insane are null and void. And
the appointed guardian is authorized to represent the insane in all his
legal act under the superintendence of the court, with the exception of the
contracting of marriage or to divorce his wife, and these two legal acts
are invested in the judge only.
Guardianship.
Rule 30. A guardian is a competent person, legally authorized, to
take care of the person, to manage the property and to exercise the civil
rights, profitably, of another person, who, for reason of age, or
prodigality, or a state of being in death-bed, or bankruptcy, or absence in
unknown place, is considered incapable to take care of his or her affairs.
Rule 31. A man or a woman who is Muslim ,and has reached the age
of majority with soundness of judgement, is competent to be a guardian.
Rule 32. The guardian may be authorized and vested with power
either by the provision of Sharī‘a, Islamic Law, who is been called the
compulsory guardian (Wall Jabri), or by election, who is elected
guardian, (wasi) or (wali mukhtar or Qayim).
Rule 33. The compulsory guardian is the father, the grandfather, the
judge, if there is no father or grandfather and al-Imam; The master
Scholar, who is the general guardian (Mujtahid, master Scholar) for all
Muslims in their religious affairs.
Rule 34. The elected guardian is appointed by a deed of the last will
of the child father or paternal grandfather, if any, or by the judge or by
31
the Imam, if there is no father or grandfather.
And it is preferable if the judge appoints the child’s mother for the
post of the guardianship for her son. 1
Rule 35. The father and the grandfather of a child as compulsory
guardian have a complete power to care for, and look after him, to
represent him in legal matters and to administer his property according to
his interests and not to their. 2
And they are responsible to raise him in proper way, to send him or
her to school and to establish his future as one of the active builder
citizens of his nation.
Rule 36. A father and a grandfather of a child have the legal right to
make a contract of marriage on behalf of their child in his or her
minority. But they have no right to divorce his wife even he is minor or
claim to dissolve the girl’s marriage unless the boy and the girl are
insane.
Rule 37. A father and a grandfather invested with such power over
their child, are assumed to be just according to the minor interests. But if
they are respectively not careful of him and not fair in managing the
child’s property the judge or the Imam are authorized to remove the
careless and unjust guardian and appoint another careful and just
guardian.
Rule 38. A careful and trustworthy father-guardian may invest his
minor child’s property in profitable investments.
Rule 39. The father-guardian or the grandfather is responsible to
support the child but if the father or the grandfather is poor and in need,
he is authorized to support the child from the child’s possession even by
selling part of such property.
And the father-guardian or the grandfather has the legal right too, to
maintain himself and or the mother, sisters and minor brothers of the
child, provided that he takes least amount that is necessary. 3
1
Faqīh Man La Yahadaraho al-Faqīh. 4th. vol. p. 168 Para. 120. Sharayi 2rd. vol.
p. 256.
2
al-Makasib p. 323,. sharge. 2nd. vol. pp. 99-103.
3
- Makasib p. 288. Sarayir p. 206.
32
COMMENT
1- The power of father-guardian upon his child’s property as, on his
personality and the right to use the child’s property to his needs and his
family of the child is based on, among other evidences, A Tradition
(Hadīth) recited by Imam Ali that ‘‘A man had appealed to the Prophet,
that his father had been unfair with his property. The Prophet said to the
son (the man who appealed)’’ You and your property belong to your
father,’’ 1
It had been said that this Tradition (Hadīth) Which is recited truly by
Imam Ali, issues a moral principle on which the relation between father
and his child. is based. And it does not give the father an absolute
authority upon the property of his child.
But on the other side it is stated, that, if the father takes his needs at
the least of the necessity, his act is legal, on condition that, he is unable
to work and he has no other source for living.
It is assumed, of course, that his kindness towards his child is always
guiding him instinctively to his child’s benefits. 2
A question has been arisen here concerning the father Equity as a
compulsory guardian upon the persons and the property of his children; is
the father invested with absolute power upon his children or his authority
is hound to a certain course of action according to his justice and fair
act.?
It is unquestionable that justice of the father - guardian and the justice
of the guardian in general is an essential element of authority of the
guardianship because, «It is impossible for The Creator to make the
sinner a trustee and to accept the acknowledgements and decisions of
such sinner-trustee». 3 But a father, even he is a sinner, he can make a
contract of marriage on behalf of his daughter if she is under nine years
of her age. 4 The reason for giving such authority is that , the marrying to
a qualified man is more important to the future of the girl than her
property, and it has been discussed that if the girl has a chance to marry
an equal man, then ,the father should have the authority to contract such
1
- Makasib p. 321
2
- Sarayir p. 206
3
- Makasib p. 288.
4
- ibid. p. 325.
33
fair marrying on behalf of his daughter who may could not find such
opportunity in the future, and she may become maid. 1
And a marriage, that is contracted by a sinner father for his son after
the age of fifteen years or for his daughter after the age of nine, is a
dependable marriage upon the children consent. And if (hey do not
accept this marriage, it is null and void.
2- The general guardian is the Imam, the master Scholar (mujtahid)
whose duty is to guide Muslims to The Teachings of Islam by his verdict
and lecture and books he writes. And it is the duty of every Muslim to
study and learn the wisdom of Islam Religion. And we have noted that
Islam is a religion of Knowledge and no one can comprehend it, but only
the profound-learned people.
3- In Iraqian Law, rules relating to the guardianship are stated in the
Civil Code, articles 93 through 111.
Article 102 provides that, «The guardian of a child is his father, then
the testamentary guardian who is appointed by his father’s will, then his
paternal grand-father, then the testamentary guardian by the will of his
paternal grandfather, then the court or the guardian appointed by the
Court.» And Article 103 provides that disposal of the child’s property by
the father or the paternal grandfather is effective, if it is at fair price or
little deception, but if their disposal of the child’s property, is at grave
deception by their carelessness towards the child, the judge is authorized
to limit their power of the guardianship upon their child's property or cut
such guardianship off.
Compulsory guardianship of father or grandfather upon their children
does not depend on the court decree, but it had rooted in the nature of
paternity and recognised by law of nature as such. So, a father or paternal
grandfather can represent their relevant child without a decree by a court
to assert their guardianship.
This rule was applied by The Cassation Court of Iraq in her decision
No, 681/Shaariyya/, 20th of October 1969, The court stated the facts of
the case in her judgement as follows; «The she-petitioner stated that the
respondent has married her off ten years ago, while she was a minor, and
asked the court for a decree of nullity of her marriage, since she reached
her full age, (18 years).
The Attorney of the respondent admitted that his client has made the
1
- al-Makasib, p. 321
34
marriage of the petitioner while she was a seven years old girl, at
dower.... The religious Court in Sũq-al-Shiyoukh, decided that the father
as a compulsory guardian upon his daughter, is suspected of disloyalty
since he did not requested the Court for a decree of guardianship upon his
daughter while she was minor, and because he has failed to do so, the
Court decided that the father is not loyal in making her marriage to the
respondent, and the Court gave her judgement of nullity of this marriage
on the date of 14th. of February, 1967 No., 190/967. The respondent
appealed to The court of Cassation Of Iraq, from this judgement.»
The Court of Cassation reversed the lower court judgement and said
in its decision; sit is found that the judgement of nullity of the contract of
the marriage of the petitioner to the respondent was decided on the
ground that the father had not petitioned before the Court for a decree of
a guardianship upon his minor daughter and for that reason he is not
loyal. But the Court (The Religious Court) did not regard that the father
was authorized the power of guardianship upon his minor by determined
rules of religion (al-Sharī‘a), therefore if the father makes the contract of
her marriage to a marriageable man, such contract of her marriage is
legal and effective, and the father does not need a decree from a court to
be a guardian for his child therefore the judgement that is appealed from,
is reversed……………» 1
4- The authority o f compulsory guardianship is invested by law in
father and paternal grandfather only, and the mother can not represent her
child before the court if she is not authorized by a court as curatrix
invested with power of curator-ship,
This rule was affirmed by a decision of The court of Cassation of
Iraq. The court decided in case number 160/1969 on the First of
November, 1969;» «It was found that the judgement appealed from is not
right because…………… the Court of which judgement is appealed
from, accepted the child’s mother as his guardian regardless the provision
of the....law.» 2
5- It is necessary to distinguish here between the guardianship which
is invested in the father and the paternal grandfather and the Custody
which is invested in the mother during a period of the child age; seven
years for the boy and nine years for the girl,, that the guardianship
1
- al-Kada Magazine, 4th number for the year of 1969 pp. 266-267. edited by The
Bar Association Of Iraq.
2
- al-Kada Magazine, 4th number for the year of 1969 pp, 266-267, edited by The
Bar Association Of Iraq,
35
extends only to the financial matters of the child while the custody
extends to the care of the child body and his physical life by nursing him,
washing him and take care of him in every aspect of kind tender
treatment. And this right came to her by the nature because she is created
to it. Therefore if any conflict occurs between her right of custody and
the right of the guardianship of the father and the grandfather on the side
of the father, the mother always must be preferable for the child custody
if she is not married to a man who is not the child father. 1
1
- al-Dalail Wal-Masail By the late al-Shaikh Hibat al-Deen AI-Husaini alShehristani, A great Shiit Scholar, 5th. vol. p. 30.
36
Chapter Five
The Testamentary Guardian.
Rule 40. Testamentary guardian is a guardian appointed by the last
will of a father or a paternal grandfather or by a guardian, who was
appointed by the father or the grandfather with power to appoint a
guardian, for taking care of the person and property of his child, til the
child arrives at his full age.
And a testamentary guardian may be a man or a woman.
Rule 41. A person, who is appointed to be a testamentary guardian is
free to accept the post or refuse it. But if he reject the post he must, as
possible, notify the testator of his refusing the post of the guardianship.
And if he fails to notify the testator, about his rejection, while the testator
is alive, then, the will is effective and the testamentary guardian is
responsible legally to execute the commands of the testator in his will. 1
Rule 42. 1- If the testator dies, before he could inform the
testamentary guardian that he appointed him as a guardian for his child,
the appointed guardian has no right to refuse the post and it is his duty to
carry out the responsibility. 2
2- If the testamentary guardian informed the testator of
his refusing the post of the guardianship, and the testator dies before he....
could appoint another guardian, the will concerning the guardianship, is
effective and the judge is authorized to elect a guardian to the post to
carry out the commands of the testator. 3
Rule 43. A testamentary guardian may be elected alone to execute the
1
- al-Lum‘a, 5th. p. 81.
2
- Waseelat al-Najat, 2nd. p. 195.
3
- Waseel at al-Najat 2nd. vol. p. 188.
37
commands of the will, or may be associated with one or more guardians
to carry out the wishes of the testator in his will.
And if the testator appointed more than one guardian. The guardians
must follow these rules in carrying out the commands of the will;
a) If every one of them appointed to carry out a particular
job, as, to pay the testator’s debt or to take care of his child or to pay the
Zakãt, then every guardian must execute his duty without any
interruption by the other guardians.
b) If the testator appoints two or more guardians to
execute his will collectively, the guardians are obliged to do so. And no
one has the right to act alone and if he does, he is responsible. But if one
of them furnishes the child with the necessary needs for living or
education he is not responsible but ,only to lay an account of what he has
done.
c) If the guardians are authorized by the testator that every
one of them shall act according to the point of view of the guardian
himself, then every guardian is free to carry out the will as he
understands the directions of the testator in fair way.
d) If the testator propose that the guardians may act
collectively or solely, in such case every guardian may act alone but he is
responsible before the other guardians and the judge. And it is preferable
that the guardians divide the duties among them and every one may carry
his duties out.
Rule 44. A testamentary minor guardian has no right to carry out any
act or command of the testator But if he arrives his full age he has the
right to carry out his duties and reject the acts of the other guardian
provided that his rejecting is effective with the beginning of his majority.
And he has no right to reject acts that have been done before the time of
his coming of age, with the exception of acts that are against the
command of the testator.
2- Guardians in such case may be the wife and her minor
child, or the two sons, of whom one is minor. And in some cases the
testator appoints his wife and the Imam or may state that she shall act
under the supervision of the judge or the mother may be the only
guardian.
Rule 45. An authorized guardian by the testator, to appoint a
guardian with him or after him, has the right to appoint other guardian
during or after his life, and the new testamentary guardian may be the
38
guardian of the both will if the last testator directs that.
Rule 46. A testamentary guardian is a trustee of all the assets that the
testator leaves in his hands for his child. So he is not responsible for his
bona fide act in carrying out the command of the testator according to the
provision of his will.
Rule 47. A testamentary guardian has the right to receive
remuneration for his services as a guardian, if he is ill need, but if he is
not in need, it is said that he may perform his duties with good grace. But
if he insists on having remuneration it is not forbidden and it should he
fair reward.
Rule 48. The judge is the supervisor over all persons who perform
the obligations of the guardianship compulsory or by appointment. And
The judge is authorized to dismiss and remove one or all the guardians at
his discretion, if they are unable to achieve the testator’s wishes in his
will or if they disturb the performance of the will.
Rule 49. A guardian shall be appointed by the judge IF;
a) The father or the grandfather failed to name a guardian in
their will or died before making their will. Or
b) The guardian is removed by an order of the judge. Or,
c) The named guardian is unable to perform the commands
of the testator. Or,
d) The testamentary guardian dies before the performance
of the will.
In such cases the order of appointing a guardian by the judge, should
regard the consent of the minor if it is possible.
Rule 50. If the mother of a child has not been appointed in the post of
a guardian to her child, the court should issue an order appointing her a
special curator (Qayim) to look after her children. She also must be given
the power to receive, under the supervision of the judge, money and use
the property for the benefit and living of the children, and she may
represent her children before the court and other authority.
The ending of dependency of child;
Rule 51. 1- If the child attains the age of his puberty with a state of
discretion of accountability and responsibility the child, who is
interdicted by an order of judge or other competent authority, should be
39
emancipated by an order of Emancipation Of A Minor Child which shall
be issued by judge on a petition by the child himself, or by the guardian;
his father or his grandfather or his mother or by any person in concern.
2- The state of puberty may appear and be known by appearing of
pubic hair or the venereal wet dreams.
And the response of accountability and responsibility may shown and
proved by two fair witnesses.
3- Puberty and response of accountability and responsibility must be
proved in modern laws by the attaining the full legal age, the age of
majority by the child which differs from law to law of which the
minimum is 18 years as in Iraqian Law.
Rule 52. 1- A child who attained his puberty by the decree of the
judge or by nature and attained the full age of majority according to the
law of his country shall become an Independent Person with all the full
Rights and Obligations without any difference between male and female.
2- The authority of the guardianship over a minor child with response
of accountability and responsibility; compulsory or testamentary
guardianship must be terminated in the time of child’s attaining the age
of Majority of which the minimum is 18 (Eighteen years),
And this termination may be by the decree of the judge, if the child is
interdicted or without decree, when the child is not interdicted by a
decree.
Rule 53. 1- The guardian is bound to lay an account of all his
performances with the consideration of the provision of the will. And the
Major child has the full right to put, the guardian under responsibility of
any act that was done against the constructions of the testator in his will,
2- And the guardian is obliged, under the direct of the judge to give
the major child all money, movable things, papers, books, jewels and
documents that belong to the major child And the guardian shall be liable
till he gives all things and property to the child and shall take receipt for
that.
Comment
1- Shī‘ite great lawyer Muhammad Ibn Idrees al-Hilli, the learned
Mujtahid, said that the qualified guardian by appointment (wasi Mukhtar)
40
is; ‘‘who has these five characters; puberty, sanity, Islam, justice and
freedom. And if he violates one of them, the appointment is null and
void.’’ The justice of which the guardian should be qualified with, if it is
not known clearly, it does not break the legality of the will, but if it is
appeared that the guardian is not trustworthy for the benefits of the child,
then, the guardian should be supervised by another guardian or by the
judge or by the master scholar (the Imam) or, the guardian should be
removed and replaced by another guardian by an order of the judge 1 .
But other master scholars stated that the justice is an essential
character of the legality of the appointment of the guardian, and they do
not accept the similarity, which has been taken for granted, of the
attorney to the guardian and that, a person may give the power of
attorney to a sinner person, there fore he may give such power of
guardianship to a sinner, too. They said in their rejection to this example,
that there is a wide gap between the state of a person who gives authority
to another person to act for him and a person who gives authority to
another to act, not for him, but for an infant who is unable to consider
what is right and what is wrong and who can not pay any bit of attention
to what the sinner unjust guardian shall do. So, they said it is necessary,
that the guardian to be just, even he appears to be so 2 .
It is, of course, intuitive matter according to the thinking of old
master Scholars that, the father or the judge should not appoint a person
as, a guardian to take care of the child. who is not just in his conduct.
Besides it is hard to conceive, according to their opinion, a Muslim who
is not just. This concept of just Muslim came from the Tradition, Hadīth’
which says; ‘‘The Muslim is who, all people are in safe, from his hand
and his tongue’’. And such a person should be, definitely, a very just
person.
2- The freedom here has two meanings, the first one is from the
slavery, which has no effect in our time on the legal bases. And the other
is from restriction upon a person because of peculiar circumstances, such
as imprisonment, preoccupied by military service, or a post in office that
prevents a person from performing the duties of a guardian. And if such a
person becomes a guardian, he shall be removed and replaced by
another. 3
3- The power of administration of the minor affairs is invested in
1
- Sarayir paper 193 p. 2 Sharyi, 2nd, vol. p. 256.
2
- lum‘a 5 v p. 69-71.
3
- Sharayi 2nd. vol. p. 255.
41
Sharī‘a Court (Religious) and in the Directorate General of
Administration Of The Property of Minors.... and its representative
Offices in Iraq as provided in The Law Of Administration Of The
Property Of The Minors No. 47 for the Year 1969.
42
Chapter Six
Interdiction For Insanity
Rule 54. The legal status of a person who is interdicted on account of
Insanity is the same as the status of an infant of age fewer than seven
years. He is deprived of the exercising of all his civil rights and he should
be put under the control of a guardian.
Rule 55. The guardian should be the father or the paternal
grandfather if the insanity occurs before the child attains his puberty and
the insanity continues after the period of the puberty is shown. But if the
child attains his or her puberty with soundness of mind and, then, the
insanity occurs after the attainment of the puberty, the judge is the
guardian and the authority of the father or the grandfather as a guardian
depends on the consent of the judge 1 .
Rule 56. Insanity is manifested by want of intelligence to distinguish
between right and wrong conduct and between good and bad behaviour
and it may be proved by testimony of men if the insane is male and by
women if the insane is female .But nowadays it is admitted publicly that
the testimony should be by the professional physician if possible.
Rule 57. 1- Status of insanity should be confirmed by a decree which
must be issued by a judge on petition by a concerned person or by a
public authority. And the judge, before he issues such decree and confirm
the evidence of the insanity, he should inspect the so called insane by
himself to be certain of his condition of disturbed mind. 2
Rule 58. A decree issued by a judge that a certain person is insane
1
- Wasila 2nd v. p. 131 Shara 2 p. 101-103 Minhaj 2. p 138 Makasib 1 v. p. 323 2.
- Fusol ar. 165.
2
43
does not establish the status of insanity but it confirms it, so, nullity of a
legal conduct of a person, whose insanity is confirmed by a judge, begins
at the time of the revelation of his insanity and the decree by the judge is
retroactive. 1
Rule 59. If the insanity is circular insanity, the insane should be
deprived of the legal capacity of legal act ONLY, during the period of his
insanity, But during the period of the soundness of mind his act is legal
and effective. In such case the evidence is necessary.
Rule 60. The guardian of an insane has the right of custody of the
property of the insane but not his person or personal rights and affairs,
therefore he can not make the divorce on behalf of the insane or dissolve
the contract of the marriage of the insane female without request and
permission by the judge. 2
1
- ibid 164.
2
- al-Makasib Ist. vol. p. 323.
44
Chapter Seven
The Prodigal
Rule 61. The prodigal is a person whose extravagant habits make him
incapable of managing his or her affairs in normal way. And he is always
a spendthrift person.
Rule 62. A decree of affirming the prodigality and restraining the
prodigal may be issued by the judge on petition of request by the father
or the mother or any concerned person. And after the decree the prodigal
becomes interdict and all his financial capacity is restraint and he is
forbidden from taking a loan or buying on credit or make any financial
contract. And if any person makes any financial transaction with him it is
on his risk.
And the nullity of his act begins in the time of his prodigality
appearance. And the decree of prodigality is retroactive.
Rule 63. The guardian of a prodigal is the father or the grandfather if
the state of the prodigality begins before his or her attainment of the
puberty but if the prodigality occurs after the attainment of puberty, then
the power of the guardianship is invested in the judge.
Rule 64. The decree of affirming prodigality deprives the prodigal
ONLY from the legal acts that effects his money and property. And he
has the right of an act that has Do effect on his financial affairs, so, he
may divorce his wife and accept a gift or receive things without charge.
And he can marry a woman who shall pay every thing. And he has the
right to acknowledge that a child is his or her, 1
Rule 65. The prodigal, even he is interdict but he has the full right to
exercise all the rights by proxy to act for another and he is capable to be
1
- Sharayi, 2nd. vol. p. 101. Wasīla, 2nd, vol. p. 132. Fusul Att. 166.
45
given the power of attorney to represent another person in all his legal
rights. He may sign his name or make a contract on behalf of him. And
all his acts according to the power of attorney and effective as by proxy
and the person who empowered the prodigal is responsible entirely.
Rule 66. The prodigal has no right to make a contract of marriage
that put burden upon him of supporting or other expenditures. And if he
does so, his contracting of marriage is null and void without the consent
of his guardian or the curator.
But if the prodigal becomes responsible he or she may confirm their
act and their confirmed acts should be legal and effective. 1
Rule 67. A prodigal is responsible for his or her wrong doing. And if
he takes a valuable thing without the consent of the owner and destroys
it, he is responsible for its value.
And if the prodigal acknowledges that he commits a wrong, he is to
be punished bodily and should not be punished by fine.
Rule 68. If the lavishly-spending of a prodigal becomes reasonable
spending, a judge, after he examines the matter, shall issue a decree to
affirm the state of responsibility of who, so called, prodigal if he or she is
of age. And he becomes capable to receive all his property and a full
account of all disposals that have been done by the guardian during the
period of the prodigality And the guardian is responsible entirely before
the ex-prodigal.
And the state of responsibility of the prodigal may be proved by,
among other evidences, two fair witnesses and the decree shall be issued
at the discretion of the judge or the Imam.
Comment
1- Insanity, according to the Shift’s Scholar comprehension, includes
every disturbance and disorder of the mind that characterized by inability
from defect of perception, memory, and judgement to do the legal act
normally. There-fore the insanity in this understanding, includes idiocy,
delusion, lunacy and all other Kinds of the states of the defective mind.
1
- al-Waseelaa, 2nd. vol. p. 132-133. Sharayi 2nd. vol. p. 101. al-fusool, art. 166.
46
It has been noted that the reasoning power of a person is an essential
character in establishing and affirming the legality of every legal act shall
be exercised by him and without the ability of sound understanding and
judgement the act is null and void and it is effective-less.
These rules have been stated in The Holy Qur’ãn, to protect the
human being, who may lose by reason of unable mind, the power of the
valuation of the wrong and right, the beneficial and the destructive legal
acts. Such a person should be protected, for the sake of the human
society. It dose not make difference whether the defect of reasoning
power is a mental illness or a defect of perception and comprehension of
judgement.
2- It is necessary to notice here a slight difference between the status
of an infant and the status of an insane person, thus , the infant has two
stages, before he attains his puberty, the first stage begins from the time
of his birth till his seventh of age. In this stage of age the infant is entirely
irresponsible and is unaccountable, the second stage begins from the
beginning of his eighth year of age till the fifteen, the age of puberty,
which we call the age of discretion, in this period the infant, if it is not
interdicted for other reason, but only for his minority is liable for some
sorts of act, 1 while the insane has no such age of discretion and his status
always is the status of an infant under the seventh year of age, and he is
irresponsible and entirely unaccountable even if his age is fifteen or fifty.
This rule has been followed and provided in article 108 of the Iraqian
Civil Code No. (40) of the year 1951. The Article provides that «The
insane is governed by the rules which govern the infant who is under the
age of discretion...»
3- Age of discretion in The 1ragian Civil Code is seven complete
years, (Art. 97. para. 2) and the status of an idiot is as the status of an
infant in his age of discretion (Art. 107).
4- There are two points of view concerning interdiction over the
prodigal person, the first says; that the interdicting over a person depends
on a decree which shall be issued by a judge and without such decree the
state of interdiction is not exist. The second point of view says; that the
interdiction of a prodigal shall not depend on a decree by a judge.
The Iraqian Civil Code followed the first point of view in article 90,
It stated that «The Court shall carry out the interdiction over the prodigal
and the weak-minded person and the interdiction should be notified by
the legal means.»
1
- Sharayi 4th vol. p. 215.
47
The weak minded in this article includes the semi-prodigality in
states of inability of taking care of one’s affairs.
48
Chapter Eight
The Bankrupt
Rule 69. A bankrupt is a person who is prohibited from any
disposition of his property, and whose property is seized, by a formal
decree by a judge, because of insolvency
Rule 70. Interdiction over the person and the property of a bankrupt
should not be exercised unless:
A. The debts of the debtor are liquidated sums before the judge;
B. His assets and all his things; property and debts upon others,
which are or may be available legally to be paid are not enough to pay his
debts.
C. that the debts have been due. and,
D. That the creditors or some of them request the judge to seize the
property of such insolvent debtor.
Rule 71. The judge has no right to seize the debtor’s property
voluntarily, without a petition from a creditor or the debtor himself even,
the insolvency is being indicated. 1
Rule 72. When the assets of the debtor become seized the debtor,
himself, becomes interdicted and he is prohibited from any Kind of
disposition of anything of his property and, if he does so, his act of
disposition of his property is null and void,
Rule 73. The bankrupt acts before the time of his property’s seizing
are legal if they are without intentional deception, and effective; so if he
has bought a thing with the right of rescission on the ground of defect
option (khayar al-ayb), he may cancel the contract if the object of this
contract, is still in his hand, and the money of its price should he add to
the bankrupt’s assets.
1
Sharayi 2nd vol. p. 89 al-Waseela, 2nd vol. pp. 133-134.
49
Rule 74. His acknowledgement of a debt for a creditor, whose name
is not listed before the judge and the reason of this debt is in previous
nine, this acknowledgement is legal and effective and the new creditor
has the right to share the other creditors in the dividing of the assets of
the bankrupt. 1
Rule 75. If the bankrupt receives, after the date of the seizure over his
property and interdiction over himself, property or money by means other
than the means of his business; means of inheritance or gift or help;
contribution from freinds, such things are his own and he has the right to
sale them and dispose of them in the way he chooses. But if the judge
issues an order to seize them, they should become a part of his assets
unless the judge gives another order stating that they belong to the
bankrupts. 2
Rule 76. The debts must be certain and falling due in the date of
bankruptcy, but, if the bankrupt dies during the period of bankruptcy, all
his debts shall fall due. And if he causes a damage to a person or a
person’s property, the amount of money that may be awarded in
compensation for the owner’s actual and real loss should become a debt
and the owner of the compensation should become a creditor with the
right of sharing the other creditors of the bankrupt.
Rule 77. If the bankrupt acknowledges that a certain article of the
assets, seized by the court’s order, is belonging to a certain person or to
certain creditor and that he did not pay its price and that such a person or
creditor still its owner, the person or the creditor is entitled to cancel the
contract of the sale, if any, and retake his article. 3
Rule 78. From the date of interdiction over the debtor as a bankrupt
and the seizure over his assets, the judge should regard the needs of the
bankrupt and his family, by ordering a salary to be paid to the bankrupt
for him and those who depend on him for their living. And such salary
must be fair and enough according to his standard and habits of life in
reasonable way.
And in addition to that, the bankrupt is entitled to have his house, if any,
1
- Sharaya 2nd. vol. p. 90 al-Waseela, 2nd. vol. p. 134.
2
- Waseela. 2nd. vol. p. 134.
3
- Sharayi 2nd. vol. p. 90. Waseela, 2nd. vol. p. 135.
50
with the fairly furniture; beds, tables chairs for him and his family. and
he has the right to keep tools that may help him to begin a new business.
Rule 79. If the bankrupt dies during the time of his bankruptcy, the
expenses of his coffin and the funeral; water for washing the corpse, and
nabq-tree leaves and camphor, such expenses should be paid as a
privileged payments. 1
Rule 80. The Judge, after the interdiction over the person of the
debtor and seizure over his assets is authorized to take the following
steps;
1- To appoint a Trustee, if he thinks it is necessary, to administer the
affairs of the bankrupt and the seized assets under his supervision.
2- To exercise all powers and all the proceedings in respect of the
property such as might have been exercised by the bankrupt for his
benefits.
3- To list the creditors of the bankrupt with the amount of their debts.
And to list the debts that are due for the bankrupt and the judge should
call the debtors to pay their debts and present the proof of such debts and
receive them as a part of the bankrupt’s assets.
Rule 81. In the due time the judge shall sell the property of the
bankrupt, real or personal, at public auction or at private agreement with
regard that every commodity or article must be exposed for sale in its
suitable market.
And the judge may appoint one or more auctioneers, if the debtor and
the creditors do not agree upon one. And the judge shall fix the
auctioneer’s fees if there is no volunteer one. 2
Rule 82. The judge may divide among the creditors of the bankrupt
or among some of them, with the consent of the others, articles that are
not readily or advantageously saleable, provided that every article shall
be given in its existing form and, according to its estimated value.
Rule 83. The judge may compromise any secured debt by a mortgage
or pledge with the consideration that the mortgagee or the pledgee is
privileged to take the object of mortgage provided that he agrees to pay
1
- Sharayi 2nd. vol. p. 103.
2
- ibid. p. pp. 93-94.
51
the balance of the estimated price of the property if the price exceeds the
amount of the debt but, if the price does not, the property should be
disposed for sale at public auction. 1
Rule 84. After the selling of assets of the bankrupt or giving some of
the articles in compromising, if any, the judge shall distribute the money,
that are collected, from the selling of the property and from other
sources, among the creditors in proportion to their falling due debts.
Rule 85. If a bankrupt commits any fraudulent act to delay or defeat
his creditors by pretending that he is insolvent while the creditors can
prove that he hides his property, or he commits any act to disturb the
proceeding of the examination of the assets or process of the auction, the
judge is authorized to investigate the claim of the creditors and he may
send the bankrupt to the prison, if the facts prove his fraudulent act. 2
Rule 86. After the payment of the debts, in part or entirely to the
creditors of the bankrupt, the judge should issue an order of releasing the
bankrupt from all liabilities for the debtors who receive their debts and
the bankrupt has to have free hand to begin a new business. 3
Rule 87. After issuing the order of releasing of the bankrupt by the
judge, the salary or allowance for the bankrupt should he cut off but, the
bankrupt can keep, for himself and his family, the house and the things
that he and family need; beds, clothes and some furniture.
Rule 88. The woman, in Islamic Law, has the same financial status as
the man has, there-fore ,all the rules of bankruptcy are applied to her
without any exception. 4
Comment
1- The basic rules of interdiction over the insolvent in Islam was
decided by Imam Ali in his saying in a judgement; ‘‘If a man is delaying
1
- bid. p. 96.
2
- 2nd. vol. p. 95.
- ibid. 94.
4
- al-Mabsoot By al-Tũsi paper 325 in Tehran 1271 Hijra.
3
52
and defeating his creditors, such man should be put in a prison, then, he
must be ordered to distribute his property among his creditors in
proportion, and if he refuses to do so, the judge should sell the property
and distribute it among them.’’ 1
And this rule which is decided by Imam Ali had been followed by the
Islamic Scholars, particularly the Shī‘ite Scholars with detail that extends
according to the circumstances of the Trade business. And it had been
followed also, basically, by the legislation bodies in Islamic countries.
2- This principal rules of bankruptcy have been followed too, in
Iraqian Law Of Commerce, Number 149 for the year 1970. In this Law
Bankruptcy is governed under Articles 566-791 in Part Five of The Law
in ten Chapters. This Law; is not, but, an endeavour for Unifed Arabic
Commercial Law and for An International Commercial Law too. So, we
find in the provisions of this Law that, the same common principles
which govern the bankruptcy in British Law and other Laws with slight
differences which do not change the general frame.
3- Article 666 provides that, every merchant who is unable to pay his
mercantile debts should be considered an insolvent and he is subject to an
order of adjudication to be issued by a court. And without such order
there is no bankruptcy unless the Law provides otherwise. And this order
of Adjudication includes, among others, two instructions first; the court
must appoint a lawyer or more as a Trustee to administrate the affairs of
the bankruptcy, art. (586); Second; as soon as this order is issued by the
Court, the bankrupt is prevented from exercising any act of
administration of his property and he is prevented from disposition of his
assets. And if he does so, he is responsible and his dealing is null and
void. art. (603)
4- After the proceedings of the bankruptcy the bankrupt may be
discharged as follows;
(1) With the exception of bankruptcy by means of fraud, the bankrupt
shall reinstate all his civil rights in a year after the end of bankruptcy.
(art. 730)
(2) And he may get back all his rights before the end of the year if all
his debts are been paid by him with the expenses and interests. (art. 731)
And he may regain all his rights if he obtains a conciliation with his
creditors or he proves that his creditors have released him from all his
obligations and debts. (art. 733)
1
- Faqīh Man La Yahdaraho al-Faqīh, 3rd. vol. p. 19 chapter 13 al-Istibsãr 3rd. Vol.
p. 47, chapter 25 paragraph, 2.
53
(3) But if the bankrupt is convicted of an offence of bankruptcy he
should have, to obtain the discharge, the requirements of The
Rehabilitation Law No. 3 for The Year 1964 in addition to the rules of
Articles 732 and 732 (art. 733).
And Article 3 of the Rehabilitation law provides that; a convict who
lost his rights shall be rehabilitated by a judicial decision on condition,
among others;
That he has obtained discharge if he is convicted of offence of
bankruptcy.
5- a After the bankrupt discharge and the rehabilitation of the rights,
he becomes a normal individual with all the rights and obligations that
are stated by the laws and has the right to begin a new business and
establish to himself, a new sources of living.
54
Chapter nine
Man in Death-Bed
Rule 89. A person in death-bed, according to legal sense of the
Sharī‘a, is a person who is sick and never convalesce thereafter until his
death. And all legal acts of such person arc, restrained by specific rules in
regard to his benefits and his heirs’ benefits, 1
Rule 90. A person in death-bed has the right to exercise any
immediate legal act and he is capable to sell or give his property on lease
at a fair price and fair rental (badal mithl) (the estimated price or rent).
And he is competent to spend money for his needs and family needs and
to take care of his guests and pay money to help other people in
reasonable way. He may also, make any reasonable and acceptable
disposal of a property and any expenditure.
And if he makes these legal acts while he is labouring under the
disease of which he dies, these legal acts are effective from the gross of
all his property.
Rule 91. Some of legal acts of a person in death-bed are deferred, so
he can not make any disposal of his property without reasonable
compensation and he can not surrender any piece of his property to any
one and any kind of act of conveyance of his possessions or the profits of
piece of them, if he exercises it while he is labouring under a disease of
which he afterwards dies, such act is effective only on the one-third of
his property and should not exceed the limits of the one-third of his
possessions without the consent of his heirs or the creditors, if any. 2
Rule 92. If a person in death-bed makes a will or any similar legal aet
which takes effect after his death, such act is, deferred legal act, and it
shall not exceed more than the one-third of the person’s assets and it
1
- al-Sharayi 2nd. vol. p. 261, al-Wasela 2nd. vol. p. 137, Fusul. 92. f. n.
2
- ibid., p. 102,
55
must be governed by the same rules that govern the will of a healthy
person. 1
Rule 93. A person in death-bed may make any contract of marriage
but, if he makes such contract and consummates his marriage by sitting
in private with his wife-the wife has the right of inheritance of his
property and she has the right of maintenance and support.
But if such marriage is not consummated-even by sitting with her in
private place-the contract of such marriage is null and void and she has
no right to inherit him. 2
But such woman has the right of her estimated dowry and the support
for the period of time that she has been deferred from marriage. 3
Rule 94. A person in death-bed may not divorce his wife and if he
does so, his divorce is not effective immediately, but she has the right of
inheriting him within one year after his act of divorcing on condition that
she shall not be married to another man. 4
Comment
1- Two distinguished legal opinions have been stated about the
exercising the legal acts by a person in death-bed ,the first said that the
immediate legal acts by a person in death-bed are effective and must be
taken from the whole assets of the deceased, if he makes them while he is
labouring under the disease of which he afterwards dies. The ground for
this opinion they said that; a person may do what he wishes with his
property if he still has soul. Besides, they said, it was cited by Abdullah
Bin Jibilla that al-Imam al-Sãdiq affirmed this ground, Abdulla said ,,I
said to him (to al-Imam); if a person has a son can such person give his
property to his relative? The Imam said: ‘‘It is his own property and he
may give it to whom he wishes’’.5
1
- Sharayi, 2nd vol. p. 261-263.
- al-Istibsar 3rd. vol. pp. 303-307, chpter 178., Faqīh Man La Yahdaraho al-Faqīh,
3rd. vol. pp. 353-354, chap. 174.
3
- This rule stated by the justice since if he marries a woman he must pay her dowry
and support her.
4
- Faqīh,. 4th. vol. p. 149, chap. 97.
5
- Faqīh, 4rd vol. 149.
2
56
For this reason a person has an authority over his property even he is
in death-bed. 1
The second opinion said that such immediate legal acts made by a
person in death-bed, while he is labouring under the condition of which
he dies afterwards must be taken only from the one-third of his assets.
They vouch their point of view by, among others, what Ali Bin Yaqtin
recited, ‘‘I asked Abal Hasan” Ali Bin Yaqtīn said ‘‘what man has from
his property while he is dying.’’ ‘‘One third’’ Abal-Hasan (Imam Ali)
said ‘‘and the One Third is more than enough’’ 2 And this opinion has
been supported too, by the necessity for leaving, by every wel-to-do
person, some of his property, by a will, to help his relatives and to help
poor people. Imam Ja‘far Bin Muhammad recited that his father Imam
Ali Bin al-Hussain said ‘‘Man who does not make a will of benefit for
his relatives, while he is dying, he shall end his religious act with
disobedience.’’ 3 This saying affirmed the necessity of having intention of
helping the relatives and it affirms too, that we have no right to deprive
such relatives from their right of inheritance and this right has been
decoded in the words of God in the Holy Sixth Verse from Sorat alAhzãb;’’ Those who are related by blood are, closer one to the
otheraccording to The Book Of God-than to the believers and. than those
who have fled their country for the Cause of God; Nevertheless do favour
for them (the believers and those who fled). What you do is noted in the
Book.’’
The words of The Sixth Verse from Surat al-Ahzãb and the words of
Imam Ali-among others-make it clear that the end of the interdiction over
the legal acts, particularly the disposition of his property, by a person in
death-bed is to protect the right of the heirs of such person.
2- The interdiction over legal acts of a person in death-bed is not
actual but it is presumed and it comes to existence where there is a
disputing concerning the legal act of the deceased that is made by him
while he is labouring the disease of which he dies afterwards.
And such interdiction has no effect on the power of obligation of the
person in death-bed (Dhimma).
3- The Rules Of The Iraqian Law.
Article 1109 of the Civil Code No. (40) for the year 1951 provides
1
- al-Makasib p. 423.
- AI-Makasib p. 423.
3
- Faqīh, 4th vol. p. 134 chap, 78.
2
57
that, every disposition of property which transmits the ownership of the
property which is made by a person in death-bed as, a donation or
intending partiality, shall be considered as an act that has been made after
death and it shall be governed by the rules of will.
And it will be considered as a will if a person in death-bed discharges
his debtor from a debt, whether the debtor is heir or not, or to guarantee
or prefer a creditor to others in a payment of debt.
And Article 35 of The Personal Status Law No. 188 for The Year
1959, provides that; divorce is null and has no affect if ii is made by a
sick person in death-bed, on condition that such illness brings a person to
the end of the life or he dies from that illness. Divorce of a wife of such
person is null and his wife shall inherit him.»
And since this Article does not give the limits of the affect in time of
right of inheriting her husband, we should refer to the rules of The Shī‘a
which limits this right in one year after the date of the divorce provided
that the woman is not married to a man. (rule 94)
58
BOOK TWO
MARRIAGE
CHILDREN
MAINTENANCE
DIVORCE
MARRIAGE
Chapter Ten
Contract Of Marriage
Definition, Form, Conditions And Etiquette
Definition.
Rule 95. Marriage (nikãh) is an oral or an oral registered contract
between a marriageable man and a marriageable woman to legalize
religiously, as a husband and wife, their sexual Union. 1
Form
Rule 96. Marriage (nikãh) is to be contracted by an offer by a man
and an acceptance by a woman ‘‘who are marriageable to each other’’ or
by an offer by a woman and an acceptance by a man, with or without
witnesses or religious ceremony as follows;
I married you (if the offer is by the man). The woman shall answer; I
accepted the marrying or I accepted. Or;
I married You myself (if the offer is by the woman): (Zaw wajtuka
nafsī) The man shall say, I accepted You a wife or I accepted. (Qabiltu)
Conditions
Rule 97. An offer and an acceptance of marriage should be stated in
specific clear words of which the verb must be in the past tense form to
establish the intent of marrying such as; f married you; if the man offers’
or I married you myself if the offer is by woman’’. And the acceptance is
I accepted the marrying or I accepted.
But if the offer is in request or command form as; marry me yourself
1
- Kanz al-Irfaan 3rd. vol. p. 3.
61
or please accept my marrying or if the verb is in future tense form, in
such forms of offer, the offer should be stated with full intention of
making the contract of the marriage and the acceptance should be said
directly and in affirmative condition.
Rule 98. An offer and an acceptance of marriage must be said orally
in Arabic and in clear words and it may be said in other language if the
parties cannot say them in Arabic and they may be said in different
languages if the parties have different languages. And if a party is a
dumb person and/or unable to speak or hear, such a person may express
his or her offer or acceptance in gesture or in writing or in any act that
indicates clearly his or her intention to contract a marriage
Rule 99. An acceptance of marriage comes usually after the offer, but
it may come before the offer. And both of the offer and the acceptance
must come in the same meeting of the parties.
Rule 100. An offer or an acceptance may be presented by the parties
in person or by a guardian or an attorney who are authorized by Sharī‘a
or law to contract marriage on behalf of the minor, the insane and the
client.
So, an offer or an acceptance of marriage by a child or insane or an
intoxicated person is null and void. But if an intoxicated woman accepts
an offer of marriage and, then, after sobriety or after the consummating
of marriage, she affirmed her acceptance her marriage, is right and legal.1
Rule 101. A person attains his or her puberty with reasoning power
has the capacity to contract a marriage, by himself or herself and his
contract or her, of marriage is effective.
Rule 102. In all circumstances of marrying the two parties must be
identified and known to each other during the time of contracting of their
marrying. And they must be free from any kind of duress or violence.
Rule 103. A man and a woman, marriageable to each other, can make
their contract of their marriage without witnesses or ceremony. And they
can make their marriage a secret one if they are agreed to do so,
according to their circumstances
1
- al-Sharyi 2nd. vol. p. 272-275. Lum‘a 5th. vol. p. 108-104.
62
And no other person or authority has the right to decide the legality of
their marriage or deny it if they are themselves claim that they are
married according to rules of shift principles in Islam if they
acknowledge such marriage.
And If a man acknowledge that a certain woman is his wife and the
woman affirms his claim, and if they are marriageable to each other,
then, they are united, husband and wife, and their marriage is legal,
provided that they have the capacity to make the contract of marriage.
Comment
The spiritual and physical union of husband and wife and the vital
importance of this union in making a happy life for the human
community, has been stated deeply and affectionately in many Verses in
The QUR’ÃN. Verse No. 21 of Surat al-Room «The Greek» describes
the mixed nature of the creation of man and woman and how the woman
had been created of the man being, the Verse says; «And one of His
signs, it is, that, He bath created wives for you from Yourselves, that you
may nestle to them and bath put love and tenderness between you.
Herein, truly, are signs for contemplative men». And Verse 107 of Surat
al-Baqara (The Cow) shows a gentle touch of the relation between
husband and wife in pointing out such expressive phrase: -«They (your
wives) are a covering garment for you and you are a covering garment
for them».
So, these Verses, among others, reveal the necessity of woman and
man for the life, of each other, and this driving natural mutual need has
been realized since the imaginative existence of ADAM AND EVE.
And such instinctive and impulsive mutual need of man to woman
and of a woman to a man had urged man to realize the necessity of fixed
rules to govern the eternal relation between a man and a woman as,
husband and wife and their issues. And as, a result of man’s long life
since the beginning of history through trial and error the different rules of
binding a man to a woman together had been found and established by
what we call MARRIAGE.
2- The Family is an essential element in the community construction
according to Islam Teachings. And marriage, as the element of the family
stability, is considered as a holy bond and a foundation in building a
family.
63
And The Prophet Muhammad, peace be on Him and his family
encouraged the believers to marry. He said, peace be on him, these
traditions, among others, to praise the act of marrying: «No
accomplishment in Islam has been graced by The Most High God more
than the Marrying». «Have wives, it is the road for fortunes.» 1
And about those who died without marrying the Prophet Muhammad
said: «The meanest of dead men of you are those who have not been
married: And He said: «Most of those who go to hell are the bachelors.»
And for those who are afraid of poverty after marriage He said: «That
who wants to meet his God as a righteous and blameless he should meet
Him with his wife beside him,. And that who deprives himself from
marrying because of poverty he makes wrong, because God is with him.»
All these Ahãdīth of The Prophet Muhammad, peace be on him and
his family, are to drive men and encourage them to have wives and under
the effect of these Ahãdīth (Traditions) and the Verses of The Qur’ãn the
Shī‘ite’s School simplified the proceedings of the contract of marriage
and made it a civil contract between the parties even without witnesses
and gave the parties the freedom to make it secretly if they wish.
The main principle in Shift School in marriage is to legalize, in every
possible means, the existence of the child.
And this principle, among others, is based upon the Humanitarian
Interpretation of Islam By the Founder of the Shī‘ite School, Imam Ali.
3- The contract of marriage is a civil contract. It is an offer by a party
and an acceptance by the other party in the same meeting, provided that
they are attaining their puberty, but if they are incapable, their guardians
may make the contract on behalf of the incapable party, that either party
should make the contract of marriage with full consent and not under any
kind of duress and not compelled by any spiritual or physical means; that
they are marriageable to each other according to the rules of
marrigeability as it will be explained in forthcoming rules.
It is better for the parties to affirm the contract before witnesses but it
is legal if it is made without witnesses and this rule is the basic different
between the Shift School and other Schools in Islam in legalizing of
marriage.
And they may conspire to conceal the contract of their marriage from
the public and from parents.
This rule in Shift School sprang from the fact, that, the contracting of
marriage is, particularly, an individual matter and since the parties make
1
- Faqīh 3rd. vol. p. 241-242 para. 101, 102.
64
the contract of their marriage freely and with full consent and without
duress or any act which effects their freedom of contracting or compile
any of them to make the contract , then the contract of their marriage is
legal and valid.
So, If a man claims that a certain woman, who is marriageable to
him, is his wife and the woman affirms his claim, they are husband and
wife and their children, if any, are legitimate and no one has the right to
ask them to prove their marriage.
And in the same time if a woman claims that a certain man, who is
marriageable to her, is her husband and the man affirms her claim they
are a husband and wife and their children. if any, are their legitimate
children.
This Rule is affirmed in the Article Eleven of the law of The Personal
Status No. 188 Of The year 1959 which provides: - «Article Eleven - 1If a man acknowledged that a certain woman is his wife, and they,
legally, are marriageable to each other, and she affirmed his
acknowledgement their contract of marriage is asserted by his
acknowledgment.»
«2- If a woman acknowledged that she married a certain man, who
affirmed, while she is alive, the contract of their marriage is confirmed.
But if he affirms her claim after her death, their marriage is not
affirmed,»
According to the provision of this Article, any couple can petition to
The Sharī‘a Court to register their marriage even if their marriage has
been contracted many years, before the date of their petition. And in
some cases the contracting of the marrying is implicit in the act of sexual
union between two marriageable parties. And most of couples after they
half a child or more they come to The Sharī‘a Courts and present a
petition to register their marriage. And according to Article Eleven of
The Iraqian Law of personal Status The Sharī‘a Court should make the
most possible proceeding to register the marriage with the
acknowledgement of the couples of their children. This Rule is the most
helpful rule for encouraging man and woman, who are marriageable to
each other, who were burnt up by the destructive fire of their sexual
emotions to restore their life in future after their haphazard marriage.
It is clear that the humanitarian rules of Islam on marrying came front
the basic principle in Islam that the spirit of Islam is to help the human
being and not to punish him or destroy him. This principle has been
explained by Imam Ali’s phrase when He said, peace he on him,: «The
righteousness of a man is to give man the opportunity to do the right.»
65
Etiquette
Rule 104. It is preferred that a man chooses a virgin, chaste and of
noble-characters woman to be his wife.
He shall look to his, prospective bride, carefully and see her face, her
hair, her hand and her figure.
The man shall look and judge his would-be-bride according to his
discretion and his family welfare and not according to her wealth or her
fancy beauty, that, he may not gain. 1
Rule 105. If the contract of marriage is completed, the parties became
husband and wife in dominative relation by the duties and rights that are
included in the contract of marriage even, before the consummation of it;
So, a husband is bound to maintain his wife from the date of the
contract, And he must pay her dowery, if any is named, and he should as,
possible, establish a place for them to use in.
And the wife is bound to obey her husband and cohabit with him and
should try to be with him against the troubles of the life. And she should
not leave his house without the permission and his consent.
Rule 106. The mutual rights and obligations of the contract of
marriage between husband and wife do not expand to any kind of
property of the husband or the wife. So, their financial personality is
independent and every person has his property independent for him. And
no primary or secondary conveyance of a spouse property to the other
spouse shall be legal and effective without the full consent of the
possessor spouse.
Rule 107. The effective contract of marriage forbids the both spouses
from marrying any of' the other spouses relatives of, lineal or collateral
consanguinity and such, forbiddance and prohibition may he temporary
or permanent. 2
Comment
The Martyr Imam Zaid Bin Ali Bin al-Husain Bin Imam Ali Bin Abi
1
- AL-Mukhtasar al-Nafia p. 196.
- al-Ahkam p. 6 art. 17.
2
66
Talib, peace be on them, in his Book al-Majmoo a al-Fiqhi printed In alManar press, Cairo in year of 1340 A.H. p, 126; Imam Zaid Said-«Imam
Ali Said»: «The Prophet of Allah said; If the husband looks at his wife’s
face and she looks to him, God will look to them with grace. And if he
takes her hands in his hands, their sins will be dropped through their
fingers.
«And if the husband makes love to his wife, the angels shall dance
around them from the Heaven to the earth, and every orgasm and lust
between them are blessed as mountains of good deeds. And it she
becomes pregnant with a child, her words become prayers and her hunger
becomes fasting for Allah. And she shall obtain the reward of holy
fighter for God.
«And if she gives birth to a baby: no one knows what an apple of the»
eye the gift of God will be and how delighted life the husband and wife
will be given,»
67
Chapter Eleven
Temporary Marriage (Mut‘a)
Rule 108. Temporary marriage (Mut‘a) is a legal contract of marriage
made by man and woman, who are marriageable to each other and are
competent to make such contract, for a specific period of time: days,
months or years.
Rule 109. Rules govern Temporary Marriage are the same rules that
govern permanent Marriage with three exceptions; in limitation of Dowry
(mahr); the term, and the inheritance between the spouses as follows;
Rule 110. Offer of temporary marriage is I married you, or I offer
you enjoyment by marrying. And the acceptance is; I accept your
marrying or I accepted your offer or I accepted. (for ten days or months
or years.)
Rule 111. The dowry must be fixed between the two parties and if
they do not fix the dowry (mahr) the contract is null and void. But if they
do not fix the dowry and they do not limit the time of the period of their
marriage, The contract of their marriage is valid and it is permanent
marriage. 1
And the dowry must be possessed by him, that it is his and it is
known by the wife. And it may be little or much if she accepts it.
And if he waives his right of the period of the time of their marriage
before the consummating of their marriage, the wife should take one half
of the fixed dowry, but if his waiver of his right of time is after the
consummating, she should take all the amount of her dowry. And this
rule should be followed if their temporary marriage becomes null and
void for any reason.
1
- al-Qawã‘id 2nd. vol. p. 26.
68
Rule 112. The period of the time of the marriage should be fixed and
limited in the contract of the temporary marriage. And if the parties do
not limit the time of their marriage the marriage is legal but, it is
permanent marriage and not Temporary.
Rule 113. Temporary marriage is solved in the end of the period of
its time and the end of this marriage is implied in the end of this time.
But the parties may continue their marriage for another term or change it
for Permanent Marriage.
Rule 114. Husband and wife in temporary marriage, as a general rule,
do not inherit each other. But they can stipulate the inheritance between
them and if they stipulate the succession in the contract of their
temporary marriage, they inherit each other if a party of then dies during
the period of their marriage.
Rule 115. Children of Temporary Wedlock have the same Status and
rights and obligations of children of Permanent Wedlock without any
slight difference. They inherit parents and their parents inherit them. And
parents are responsible for support and maintaining them and send them
to schools and care for their future.
Rule 116. Temporary marriage is an exception from the general rules
of permanent marriage and it is found for particular circumstances, there
fore it is stated by the Scholars of Shī‘ite School That;
1- It is detestable that, a virgin girl, to make contract of temporary
marriage. And the man is forbidden to tempt a virgin woman to be his
wife for a specific period of time.
2- If a man is able to offer a living of well-to-do standard for a wife
and children it is preferable and it is his duty, for the society to choose a
wife to live with for all his life.
Rule 117. The waiting period for the wife after the end of the Temporary
Marriage is forty-five days if the wife is not conceiving a child but, if she
is pregnant, then the waiting period shall continue to the time of the
child’s birth.
And if the husband dies during their marriage or the waiting period,
the waiting period should be four months and ten days, as, in permanent
marriage,
69
Comment
Temporary Marriage is an essential principle in Islam that entirely
misunderstood by most of those who could not conceive the
humanitarian and actual course of Islam-Teachings,
Islam treats man as a weak creature and not as an imaginary giant,
‘‘We have created man a frail being.’’ And the most effective devil on
this frail human being is the sexual motive, therefore it is a vital and
needful to arrange the state of Temporary Marriage.
This temporary marriage has been sanctioned in Verse24 of Surat
Women: It says,’’. With the exception of these 1 you may seek with your
wealth, wives, in determined condition of decent manner but not in
fornication, and give them their determined dowry for the enjoyment you
gain from them, and you may satisfy yourselves by an agreement other
than the determined one, Allah is All-Knowing and Wise.’’ 2
The determined condition here means a specific time and specific
amount of money as dowry. And this kind of marriage had been called
(Mut‘a) temporary marriage. And since the word enjoyment. came in this
verse, it is clear that this kind of marriage is approved in the Islam Rules.
2- It had been affirmed by all the Islamic Scholars that Temporary
marriage (Mut‘a) had been practiced by Muslims during the life of the
Prophet Muhammad, pecae be on him and his family, and during the
khilafat of the first Khalīfa Abu Bakr and in the first years of the time of
the Second Khalīfa. But for reasons which annoyed Khalīfa Umar he
forbade temporary marriage and, said: - ‘‘Two kinds of Mut‘a have been
found and practiced in the duration of The Prophet of Allah, I forbid
them and lay punishment on that who practices them, those are Mut‘a of
Haj 3 and Mut‘a of women (temporary marriage).’’
But had Umar the authority to forbid a rule that governs the relation
between man and woman and which has been determined in the Qur’ãn
and was practiced by Muslims?. The Shī‘ite Scholars said; No, and Umar
is not more than one of the companions of the Prophet and there were
others who affirmed temporary marriage as Ibin Mas‘aud and Ibin
1
- The forbidden woman who are mentioned in the previous verses in Sura Women
- Kanzz al-Irfan 3rd. vol. p. 19.
3
- Mut’ at al-Haj is a particular practice of al-Haj by who is far away from
Makka And is cancelled now.
2
70
Abbas. 1
Besides, the legality of the temporary marriage is an awareness while
the cancellation of it is not, but, a citation (rewaya) and citation does not
cancel awareness. 2
3- The Wisdom of Islamic Teachings is not to please the individual
but, to build up the community of human beings. And we can understand
the righteousness of Temporary Marriage for the community if we
consider the huge numbers of illegitimate children in London and Berlin
during the years of first and second wars by the armies and in other parts
of the world.
The illegitimacy is a simple word, but, loaded with destructive power
that is, always, tearing down the personality of the child. The duty of the
law makers is to free the people from the superstitious restraints that had
degraded man down from his humanity. And for this aim, the raising of
man dignity, Islam has been concerned in freeing man from the shackle
that imposed by custom or by religious bodies and laid his conduct
against his discretion and his will. It s clear in this modern time with its
civilization that old religious bodies had succeeded in binding people in
their circles by making their rules as an essential order in the man
society.
Marriage in Islam is a personal matter and its connection with the
Public Order Of Society of Mankind is to be an essential element within
the limits of the righteousness and usefulness according to the
community building-up. And according to this fact of common sense,
Temporary Marriage is necessary to most of people in our complicated
world of Today, the world of hit and run. Besides, most of the people
practice this kind of temporary cohabitation nowadays with the exception
that they do not care for the fruit of such relation; the children, in
particular, those who are in the armies around the world.
And, in fact, most of cases of marriage nowadays arc not but
temporary marriage if we consider the thousands of cases of quick
divorce that occur every day.
1
- Kanz al-Irfan 4th. vol. p. 28.
- Kanz 4th vol. p. 25.
2
71
Chapter Twelve
Guardians Of The Contract Of Marriage
Rule 118. A girl in her majority or an ex-married girl and a boy in his
majority, have the full right to make a contract of marriage for
themselves. And if any boy or girl in their majority or/and ex-married
minor girl marries himself or herself to a person the marriage is legal and
effective. 1
Rule 119. A minor girl or a minor boy has no right to make a contract
of marriage for herself or himself and if she or he does so the contract of
marriage is not legal without the consent of the guardian.
Rule 120. The father and the paternal-grand father are the only
guardians who are authorized to make the contract of marriage of the
minor boy or girl, and the insane if, insanity begins in the minority and
continues in the majority. But, if insanity comes after the full age the
judge is the guardian of the marriage,
Rule 121. The testamentary-guardian may be authorized by the father
to make the contract of marriage of the minor child provided that the
marriage confirms the interests of the child.
Rule 122. If there is no father or grand father or authorized
testamentary guardian the mother of the minor child has the authority of
guardianship to make a contract of marriage for her minor child. And if
there is no present mother the Imam is the general guardian of the child
and his authority may he invested to the judge or other person male or
female. 2
1
- al-Mabsoot by al-sheikh al-Toosi, edited in 1271 Hijriya in Tehran p. 325, paper
163.
2
- Marriage when mother present is a marriage by judge.
72
Rule 123. The Imam or the judge has always the super authority over
the conduct of the guardian particularly in the case of marrying. And
divorce of the insane.
Rule 124. The guardianship in these matters depends upon a fame of
good behaviour and good will of the father, the paternal grandfather, the
judge and the testamentary guardian who the minor is under but, if the
father or the grandfather are known of bad conduct, then the minor bride
or the bridegroom have the right, when they come to full age, to cancel
such marriage that is established by the bad father or the bad
grandfather. 1
Rule 125. The guardian should be a person of reasonable conduct,
Muslim and in full age and if the guardian is the judge or the
testamentary guardian he should be just in his conduct with other
people. 2
Rule 126. A person with capacity of making a contract of marriage
has the right to appoint another competent person of making contract of
marriage, to represent him and act for him in making the contract of his
marriage.
And the guardian; The father or the paternal grandfather has the right
to appoint a competent person as a proxy to conclude a contract of
marriage for the minor who is under his guardianship. And such proxy
has no right to make such contract of marriage of the minor for himself. 3
Rule 127. It is preferable that, a woman, virgin or not virgin, shall
ask and request her father’s, brother’s or mother’s permission for her
marrying to help her in her choice of the husband-to-be.4
1
3
4
2
al-Ahkam, p. 12 Para 45.
ibid, para, 46.
al-Mukhtasar p. 199.
al-Mukhtasar p. 200.
73
Chapter Thirteen
The Equalization Of The Parties Of Marriage
Rule 128. The equalization of the parties in marriage is demanded
only from the male. So the male party in a contract of a marriage must be
equal to the female because the woman in Islam is always equal to the
man but, the man is not equal to the woman. There fore, if a rich man
who marries a poor woman, then she is equal to him, but a poor man is
not equal to a rich woman.
Rule 129. Equality in position of the parties of marriage has two
aspects; first, the right of God (haqullãh), second the right of people
(Haqul-‘ibãd). And according to the first aspect; The Right of God, the
equality in Islam is an essential ingredient for the validity of a contract of
marriage of a Muslim woman. And if the husband is non-Muslim and the
wife is Muslim the contract of their marriage is null and void and the
woman should be punished with the man if he does not declare himself a
Muslim.
But a Muslim man may marry a non-Muslim woman and the contract
of such marriage is legal and effective with the exceptions of some rights
as in inheritance and in custody.
Rule 130. The equalization in people right (Haqul-‘ibãd) is a matter
of choice by the woman’s judgement. So a free woman may marry a
slave or a Hashimeet woman may marry non-hashimeet and an Arabic
woman may marry non-Arabic Muslim man. 1
Rule 131. It is preferable to answer a request of marriage from a
Muslim man, who is able to maintain a wife, even if he is lower in social
position than the woman he asks to marry.
1
- al-Sharayi 2nd. vol. p. 300. al-Kawaaid al-Hilli 2nd. vol. p.6.
74
And every woman should look to the meaning of equalization in
marriage as a standard of ability of establishing a family and the
responsibility to maintain the wife and the children. Therefore the woman
must prefer the good believer to the bad one and the responsible husband
to the debauched one.
Rule 132. Lack of equalization as a result of fraudulence or any
illegal reason, is a ground on which either party of the contract of the
marriage may, claim to cancel the marriage. So if a guardian makes a
contract of marriage on behalf a minor girl to a man who is not equal to
her, such girl has the right to cancel this marriage when she attains her
full age. But if the equalization of the husband declined after her
acceptance or she marries him with clear knowledge of his requirements,
she has no right to cancel the marriage. 1
Rule 133. If a man marries a woman as a virgin and he finds her
virginity 1s lost by any reason he has no right to cancel the marriage for
this reason. 2
1
- ibid p. 300 al-Ahkam p. 12 parag 45.
- al-Shatayi 2nd, p. 300.
2
75
Chapter Fourteen
Reasons Of Prohibition Of Marriage
Rule 134. Reasons that forbid marriage between two parties are; 1Consanguinity 2- Lactation of milk from the same mother, 3- Affinity, 4The full number of wives, 5- The Cursing (when a husband affirms his
wife’s unchastely). 6- The unbelieving.
Rule 135. Consanguinity; The man is forbidden to marry his mother
and his grandmothers, maternal and paternal and their ascendants; and his
daughter and her daughters and their descendants and her son’s daughters
and their descendants; his sisters and their daughters and their son’s
daughters; his maternal and paternal aunts and his mother’s and father’s
maternal or paternal aunts. And his brothers’ daughters and their female
descendants. And in inverted order the woman is forbidden to marry
those whe are, related to her in the degree mentioned in this rule. 1
Rule 136. Lactation of milk. (Ridã‘). Effect of lactation of milk
from a certain child’s mother by another child is the same effect of
consanguinity between these two children on these conditions;
a- that the milk which is suckled by the baby is from marriage; that
the wet-nurse is married to her child’s father and the child is not bastard;
b- that the amount of the milk must be more than fifteen full suckles
from the such woman breast without interfering by another woman’s
milk;
c- that the suckling baby must not be more than two years of age;
e- that the milk must be to one man; so if two woman nurse a child
while they are married to one man their milk is as milk of one woman.
If these conditions are quite completed the suckling baby becomes
related to the wet-nurse woman as her child and her husband becomes as
1
- al-Sharayi 2nd vol. p. 280-281.
76
his father and so over. 1
Rule 137. It is preferable to choose a Muslim chaste and wise woman
to nurse the child with her milk. But if it is hard to find such woman,
then, she should he of scriptural faith (Kitaabiya) and she must be
prevented from drinking wine and from taking the child to her home. 2
Rule 138. The effect of suckling milk upon forbidden marriage may
be former in time of intending the marrying or after the time of marriage.
And in both cases the marriage is null and void. But the children who are
born before such cause of forbiddance is known, are legitimate. 3
Rule 139. Affinity. If a man unites himself in wedlock with a woman
and consummates his marriage he becomes forbidden, eternally, from
marrying his wife’s ascendants and lineal descendants. And his wife
becomes too forbidden from marrying eternally his ascendants and lineal
descendants.
But if their marriage is not consummated, forbiddance extends only
to the wife and her mother from marrying his father or his son and does
not extend to the female descendants of his wife to his male
descendants. 4
Rule 140. The man is forbidden from marrying his wife’s sister and
her niece. But if he dissolves, legally, his marriage to her he may marry
his ex-wife’s sister or her niece. 5
Rule 141. A man is forbidden to marry a woman while she is in her
waiting period, (her ‘‘idda) and if he does, without knowing that she is in
her waiting period or knowing that and with intention consummates their
marriage, she become, eternally, forbidden to him and the contract of
their marriage is null and void.
But if he does not consummate the marriage the contract should be
cancel and he may marry her after her waiting period (three months and
ten days.)
1
3
4
5
2
Sharayii pp. 284-286.
al-Sharayi 2nd. vol. p. 284.
ibid, p.285.
ibid, p.287.
ibid, p. 288.
77
And if he consummates the marriage without knowing that she is in
her waiting period, the child is his if he is born after six months and
before the end of the year from the date of the consummating of the
marriage. 1
Rule 142. A married woman is forbidden to be married to another
man unless she becomes divorced and completes her waiting period, if
she has one. 2
Comments
1- Sharī‘a provides severe and rigid punishment for the crime of
incestuous sexual intercourse and the penalty for marrying a forbidden
woman, with the knowledge that she is forbidden, is killing by a sword or
by throwing him from a high place to the ground. 3
But if he marries a married woman the penalty is hundred stroke with
a whip if he does not know that she is married.
2- Iraqian Penal Code determined the punishment for the crime of
being married to a forbidden woman, for any reason of forb’iddance, in
not more than seven years of imprisonment or three years. And the
punishment will be ten years of imprisonment if the husband who
married her is knowing the fact of this marriage nullity and hides it of her
or he consummates this void and null marriage. (article 376 of Penal
Code No. 111 For The Year 1969)
Rule 143. Lustful looking or touching establish an extent of
prohibiting between the man, And his father and his son. 4 who has
looked or touched. and the woman whom he touched or looked lustfully.
And between the woman.
Rule 144. If a man or boy commits sodomy with a boy or man, the
mother and the sister and the daughter of the person upon whom the
sodomy has been committed become forbidden from marriage to the
1
3
4
2
78
Sharayi 2nd. vol. p. 291.
Sharayi 2nd vol. p. 292.
al-Istibsaar. 4th vol. p. 208. al-Sharayi 4th vol. pp. 154-155.
Sharayi 2nd vol. p. 289.
person who commits the sodomy. 1
Rule 145. The full Number of Wives; A man may marry up to four
wives, and if he completes the number, he is forbidden to marry more
than four wives 2 and if he marries a fifth wife the contract is invalid, but
he may marry iF he divorce one of his wives and the divorced complete
her waiting period.
Rule 146. A wife who is divorced for three times from her same
husband is forbidden to him unless she marries a second person and
becomes divorced from him and passes her waiting period three months
and ten days,
And if the husband divorces his wife nine times with the legalizing
two marriages to a second man, such wife become forbidden to such
husband forever. 3
Rule 147. If a husband accuses his wife of adultery and claims that
he have seen her himself ,but he has no evidence or witnesses and insists
on arraigning her before the judge or his representative for her crime of
adultery and she denies his claim (Li‘ãn) their marriage, after their
swearing that each one of them tells the truth, shall be cancelled and this
wife become forbidden to her accusing husband for ever. 4
Rule 148. The Unbelieving in Islam. A Muslim woman is definitely
forbidden from marrying non-Muslim man and if she does, the contract
of such marriage is null and void and the parties should be punished of
committing a crime of fornication and their children arc illegitimate
unless the man converts to Islam religion. 5
Rule 149. A wife of Two, Christian or Jewish or other faith or
atheistic, Parties of marriage, converted to Islam she becomes
immediately forbidden forever to him. And she should pass the time of
her waiting period, if any, before she can marry another man. And if her
husband converts to Islam during the time of her waiting-period, he may
1
3
4
5
2
Sharayi 2nd. vol p. 292.
It is preferable to marry one wife.
Sharayi 2nd. vol. p. 293.
Sharayi 3rd. vol. p. 93-10.
al-Wasila 2nd. Vol. p. 334. Sharayi 2nd. vol. p. 297.
79
return to her without need to a new contract of marriage. But if she
passed the time of her waiting period or she has no waiting period he can
not return to her without new contract of marriage. 1
Rule 150. If such wife as mentioned in Rule 149 converts to Islam
before the consummating of their marriage, their contract of marriage
shall be cancelled immediately and she has no right of dowry and if she
receives part of it she must give it back to him.
But if she converts to Islam after the consummating of their marriage,
she has the right to receive half of the residue of her dowry, if any, And
the contract of their marriage becomes cancelled after the time of her
waiting-period or after she gives birth to her child if she is with a child.
Rule 151. 1- If Two Parties of contract of marriage, who are not
Muslim, converted, together, to Islam their previous contract of marriage
which is made according to their Faith or their legal rules, is legal and
effective, provided that such contract of marriage does not include any
thing that is against the public order of Islam Teachings.
But they should re-register their marriage with their children, if any,
in Sharī‘a Court. 2
2- If the husband of Two Parties of marriage, who are not Muslim,
converted to Islam alone, there marriage is legal and effective and the
only thing he needs is to register his marriage in the Sharī‘a Court. 3
Rule 152. A Muslim man should marry a Muslim chaste woman.
And he is prohibited from marrying non-scriptural or atheist woman. But
he may marry a scriptural, Christian or Jewish, or Majus woman.
Although such marriage to a scriptural is undesirable, he should if he
marries such woman prevent her from drinking wine and from eating
pork meat and from going to churches and synagogues. 4
Rule 153. If one of Two parties of Marriage apostatizes and turn
away from Islam before the consummating of their marriage, the contract
of such marriage is cancelled immediately and the wife shall lose her
dowry, if any, if she is the one who apostatizes. But she shall have half of
1
3
4
2
80
Sharayi 2nd, vol. p. 294.
al-Waseela, 2nd. vol. p. 334.
Sharayi 2nd. p. 294.
al-waseela, 2nd. vol. p. 334.
her dowry, if ally, if the husband is the apostate.
And if apostasy, by either of them, occurs after the consummating of
marriage the contract of their marriage shall be cancelled at the end of the
waiting-period, if the wife has any, and the wife shall have her complete
dowry. 1
Rule 154. 1- A non-Muslim man adopted Islam Religion who has
more than four wives ought to dissolve any contract of marriage that
exceeds the full number of four wives, if any. 2
2- Bartering Marriage (Nikãh al-Shiqãr); which means exchanging
woman for woman in marriage instead of paying money for the wife
dower (mahr) is invalid and it should be annulled. 3
3- It is forbidden to propose marriage to a woman who answered and
accepted another man proposal. 4
4- It is forbidden to marry one’s nursemaid or her daughter and it is
forbidden to marry one’s father’s previous wife if his father’s marriage to
such wife is consummated. 5
Comment
1- The prohibition of marriage to non-believing woman is a necessary
step to affirm Islam principles in the relations among people with each
other, since Islam came to develop the human community, particularly,
the family relations.
Islam Teachings realize clearly the effect of the conflict of faith
among the members of the family particularly between the husband and
the wife who is always follow her husband, and he may enforce her to
convert to his religion. 6 This fact had affirmed the Islamic specific rule
which forbid a Muslim woman front marrying a non-Muslim man and
this is a definite rule with only very limited exception, that, if the wife of
two non-Muslim parties converted to Islam, his wife, if their marriage is
1
3
4
5
6
2
Sharayi 2nd. vol. p. 294.
al-Lum‘a 5th. vol. p.232.
Sharayi 2nd. vol. p.301.
Lum‘a p. 300.
ibid, p. 301.
Faqīh Man La Yehdarahu al-Faqīh 3rd. vol. p. 258.
81
consummated, shall wait him during her waiting period and if he shall
convert to Islam she is his wife but if he shall not, their contract of
marriage must he cancelled.
2- But a Muslim man may marry non-Muslim woman provided that
she is not atheist,
It is, of course, preferable that a Muslim marry a Muslim woman
because a Muslim wife is more suitable to a Muslim man than a woman
from people of other faith. The religion always formulates the principles
and the character of man and religion also manufactures the criterions of
the person in his relations with the others, So, if the two parties of
marriage are of one faith they are close in their criterion of their
understanding of the duties and obligations towards each other and
towards their children and the community they live in and they shall gain
more happiness as a result of their close and mutual understanding of
their life,
The lawfulness of the right of a Muslim man to marry a woman from
the people of The Book, in Shī‘ite legal School, have been a subject of
long dispute among the Scholars because of the different understanding
of the external meaning of the Verses and the Recitations by the
Companions of the Prophet or the Companions of The Imams. 1
There have been three Verdicts about the matter of the right of
Muslim man to marry a scriptural woman; the first says that a Muslim
has no right and he is forbidden front marrying a woman from people of
the Book, and this forb’iddance is absolute. The second group of
Scholars say that it is lawful to a Muslim to marry, temporary or in
permanent a woman from the people of the Book, The third verdict says
that it is forbidden in permanent marriage and no forbidden in temporary
marriage.
The justifications for these three different opinions about the
lawfulness of the contract of marriage between a Muslim man and a
woman of The people of the book among the Shī‘ite Scholars are:
Those who, forbid the marriage of a Muslim man to a woman of the
People of The Book depend on the outward meaning of The Verse no.
221 of Sura al-Baqara which says; «And Do Not marry polytheist women
Until they believe. A slave woman who believes is better than a
polytheist even though she allure you» And the Verse no. 10 of sura alMumtahana (The Woman to be examined) that says; «……But hold not
to the guardianship of Unbelieving woman...» In addition they say these
- al-Masalic 1st vol. p.489.
1
82
two Verses have been affirmed by the statement that had been cited by
al-Hasan bin al-Jahm; he said: («What do you say» Abu al-Hasan alRidã(a.s.) said to me: «a bout Muslim man who married a Christian
woman as a fellow wife to his Muslim wife?» I said; «It is forbidden to
marry a Christian woman with a Muslim woman or non-Muslim
woman!» He said :«why?» I said: Because Allah Said: «Do not marry
polytheist Women until they believe in one God». He said; «What do you
say on this Verse? ‘‘This day arc (all) things Good and pure made lawful
unto you. The food of People of The Book is lawful unto you and yours
is lawful unto them. And (lawful unto you in marriage) The chaste
believing women and the chaste women among the People of The
Book.’’ «I said; this Verse had been superseded by The Verse ‘‘Do not
marry the polytheist women until they do believe (in one God’’. The
Imam smiled and did say not a word,») 1
«...And those who permit marriage to women of the People of the
Book have referred to His Saying in the previous Verse no. 6 of Sura alMaida (The Table Spread) «...(Lawful unto you in marriage) Are (not
only) chaste women who are believers, but chaste women among The
People Of the Book,» This verse means that He permitted you to marry a
Christian or Jewish woman. And this permission for marriage had been
affirmed by a statement which was cited by Muhammad Bin Muslim
from al-Imam al-Bãqir(a.s.). Muhammad bin Muslim said; «I asked him
about the lawfulness of marriage between a Muslim man to a Christian or
Jewish woman. al-Bãqir(a.s.) Said: ‘‘It is lawful don’t you know that Talha Bin Abdullah had a Jewish wife in the days of the Prophet, peace be
on him.’’ And the statement that was cited by Mu‘ãwiya Bin Wahb from
Abu Abdullah in a Muslim man who marries a Jewish or Christian
woman, al-Imam said ‘‘if he finds a Muslim woman what he needs in
marrying a Jewish or Christian woman’’. I said; «he desires her.» «If he
does» He said «He should prevent her from drinking wine and from
eating pork and from going out. And you should realize that it is
unfavourable act towards his religion.» This citation from al-Bãqir(a.s.)
is the clearest statement on this matter, because it came by reliable men
and it hints that such marriage is hateful. Therefore we say that the
forb’iddance here means or indicates the hatefulness.»
«But Scholars whose opinion is against marrying a scriptural woman
said that the verse no. 6 of Sura al-Maida is superseded by Verse no. 10
of Sura al-Mumtahana which says «do not hold the guardianship of
1
- al-Istibsãr 3rd. vol. p. 178. Tahtheeb 2. p.199.
83
unbelieving women». And al-Sheikh 1 had recited a statement by zarara
from al-Bãqir(a.s.). Zarara said; «I asked him about The Saying of Allah
«…And the chaste women among the people of The Book» al-Imam
said; «It is supersede by His Saying» «And hold not to the guardianship
of unbelieving women. Verse. 10 Mã’ida. And they said about the
Statement that has been cited from Abi Abdullah which permits marriage
to women among The people of The Book is concerning the continuity of
marriage if the husband converts to Islam or it may be just a Precaution
(Taquiya)».
«But thoes who permit marriage to women of The people of The
Book may reject the opinion of the superseding since it is not proved and
the two verses are not incompatible; the first-No. 221 of Baqara prohibits
marriage to those who are unbelievers, polytheist-in general while the
second Verse No. 6 of Sura Aj-Maida-permits marriage to women of The
People of The Book in particular. And the Rule in Usul is that we may
compact the particular order to the general one and we can preserve the
general order, that prohibits marriage to the polytheistic women, with the
exception of the particular order, that permits marriage to women of the
People of The book, There fore there is no reason and no need for the
superseding».
«Besides, the Verse that says «Hold not to the guardianship of
unbelieving women» in Sura al-Mumtahana, 6, does not clearly mean the
marriage or which wider than it. And to prove the superseding by such
citation is ambiguous and uncertain, especially, its doubtful source. And
it is possible to take its meaning of prohibition for hatefulness and this
clearly can be extracted from the proofs collectively, in addition, the
polytheists word does not include the women of the People of The Book.
There fore, the verdict from all the proofs collectively is that it is lawful
to a Muslim man to marry a woman from the People of The Book but it
is hatefull and a Muslim man is forbidden to marry a polytheist woman.»
And most of the Shī‘ite Scholars accept this rule which is explained
by the Learned great Scholar Zain al-Deen Bin Ahmad al-Shami alAamily in his Great Book Masaalik al-Afhaam Fi Sharayi al-Islam, from
Which we quoted this detail in this comment (Ist. vol. p. 489).
al-Sayid Abu-Hasan al-Moosawi al-Asfahaani permitted a musllim
man to marry a woman from the People of the Book with hatefulness.
(al-Wasela 2nd. vol. p. 334.).
And The Late Scholar Sayid Muhsin al-Hakeem affirmed this rule
1
- al-Sheikh al-Tosi.
84
too. (Minhaj al-Saliheen 2nd. vol. p. 205. He said; «....And on marriage
to a woman of The People of The Book two Verdicts; the acceptable is in
temporary marriage. And in Permanent marriage it is uncertain but it is
preferable to be permitted» to a Muslim man to marry a woman from the
People of the Book.
3- the prohibition of marriage is not enacted by Sharī‘a only, but it is
imposed by many laws in modern countries for new reason that concerns
the national security. Most of the countries prohibit their citizens from
marrying foreign women specifically, those who are in the military
service. In Iraq it is decided by a decree of the government that an Iraqian
man is prohibited from marrying a foreign woman with the exception of
woman who are citizens of one of the Arabs Countries. And if the Iraqian
man does so, he has no right to work as an official in the Government
Service. And many men of high rank in the government service left their
position for this reason.
85
Chapter Fifteen
The Dowry (Mahr, Sadak)
Rule 155. Definition: The dower (Mahr, sedãq) is any profitable, and
can be possessed, thing that is paid by the perspective husband to his
perspective wife, And it may be paid in cash in advance or in the future
or it may be beneficial act by the husband for his wife so, dower may be
teaching the wife how to read and write, or teaching her a craft and so
on. 1
And if two parties of marriage are non-Muslim agree on wine or pork
as a dower, such, agreement is effective between them. But if they
convert to Islam they should take its price as a measure for the dowry.
Rule 156. The amount of Dowry (Mahr) is not restricted to littleness
or abundance but, it is preferable that the amount of a dowry should not
go higher than the minimum that is fixed by The Prophet Muhammad for
his Favourite Daughter Fatima, The wife of Imam Ali, and which the
Prophet fixed for every one of his wives; namely 500 Dirham (five
hundred) (which equals 50 Dinars or 70 Pounds in today valuation).
So if he says to his perspective wife; «I married You on The Book of
ALLAH and on The Traditions of His Prophet» the amount of the dowry
shall be nowadays 50 Dinars or 70 Pounds or 150 Dollars.
Rule 157. Dowry (Mahr) is not an essential element in lawfulness of
the contract of permanent marriage. And if the dowry is not stipulated in
the contract of marriage such contract is legal and the parties may fix the
dowry by new agreement. And if they have no agreement the wife has
the right of fair dowry with regard to her standard of life and her family
standard, which, may be fixed by a judge or an arbitrator.
But dowry is an essential element in temporary marriage and if dower
1
- al-Luma‘a 5th. vol. p. 341.
86
is not fixed it becomes a legal permanent marriage.
Rule 158. Either party of a contract of marriage may authorize the
other party to appraise the dowry which the perspective husband must
pay. But if the wife is authorized by the husband she should not go in her
appraising beyond the amount of 50 Dinars or 70 pounds or 150 Dollars.
(dower of Tradition), and if the wife authorizes the husband to appraise
her dowry she should accept what he determines.
Rule 159. Any person with competence for contracting marriage may
empower a proxy to make the contract of marriage on behalf of him or on
behalf of her. Such proxy have the power to determine the dowry too.
Rule 160. If the two parties complete their contract of marriage and
this contract becomes effective, the right of the wife to possess her dowry
shall take three shapes according to the circumstances as follows;
1- After the consummating of marriage the wife comes into
possession of the dowry entirely. And she comes into possession of it too
if her husband turns away from Islam.
2- If the two parties dissolve their marriage before consummating, the
wife has the right of one half of the amount of her dower.
3- If they dissolve their marriage before consummating and the dowry
is not determined, the wife has right to take the gift that is given by him
only.
Rule 161. The dowry should be paid by the husband to the wife in the
time of the contracting of marriage. But the two parties can stipulate and
demand any specific terms that are not against the public order of the
Religious Rule (Ahkaam al-Sharī‘a) in their contract of marriage. So,
dowry, as they may arrange it, may be in prompt payment or it may be
deferred partly or entirely. 1
But, dowry, inspite of all stipulations is due after they complete their
contracting and particulary after death of either one of the parties of a
contract of marriage and divorce. 2
Rule 162. The prompt payment of a dowry, if any, partly or entirely
should be paid to the wife in the time of contracting of marriage and, if,
for some circumstances the husband dose not pay it the wife has the right
1
- al-Lum‘a, 5th. vol. p. 362. al-Ahkam p.18 art. 73. al-Mukhtasar p. 215.
- Lum‘a 5th vol. p. 353.
2
87
to refuse to transfer to his dwelling house till she receives her prompt
payment of of dowry. And if she insists on that the husband is
responsible to support her even she is in her family house.
And if the parties stipulate that the wife shall remain in her town, the
condition is legal and effective and the husband has no legal right to
enforce her to follow him. 1
Rule 163. If a wife absolves her husband from his obligation of
paying her dowry, and she does that with free will, such absolving is
effective. And if they dissolve their marriage after that by divorce or by
mutual agreement (Khul‘ or Mukhalaa) or any other reason, and the
dissolution occurs before the consummating of marriage there will be no
claim of dowry by each of them. But, if the husband divorce his wife
purposely without her agreement, the wife has the right to receive her
dowry, regardless her absolving him from paying it. And the husband is
obligated to pay it to her immediately. provided that divorce occurs after
consummating of their marriage. 2
Rule 164. If a father makes a contract of marriage on behalf of his
minor son, as a compulsory guardian ,the dowry should be paid from the
minor’s property, if any. But if the minor has no property or money or
the amount of the dowry is more than the traditional dowry (50 dinars or
70 Pounds or 150 Dollars) the father is responsible of the payment of the
dowry.
And if the father departed this life before he pays the dowry, His
son’s wife has the right in the deceased father’s assets. 3
Rule 165. If there is any dispute, concerning the fact of
consummating of marriage, between the two parties of a contract of
marriage the wife can prove such consummating if she proves the
occurrence of privacy between her and her husband. And such privacy
may be proved if she sits beside him in room with closed door or in his
car in darkness and the like. 4
Rule 166. 1- Dowry (mater) is a privileged debt that the husband is
indebted to his wife. And it should be paid to the wife from the deceased
1
3
4
2
88
Lum‘a 5th vol. p.353.
Lum‘a 5th vol. see fottnote no. 7.
Lum‘a: p. 372.
Lum‘a, 5th vol. p.378.
husband assets.
2- Dowry can be proved by witnesses even, it is more than ten Dinars
(30 Dollars). 1 And it may be proved by one witness and the oath of the
wife. 2
1
- Decision of Court Of Cassation in Iraq no. 432. religious 1964, in 21/16/1964.
- ibid no. 707/R/1962 Date; 12/12/1962. That if marriage is not registered.
2
89
Chapter Sixteen
The Bride’s Trousseau (Bride’s Jihaz)
Rule 167. Besides, dowry the husband must pay to his future wife, he
is obliged, too, to furnish for her a dwelling house with equipments they
need in their new life.
And if the bride fits out herself with Trousseau from money of her
dower or from her family, such things and equipments belong to her
definitely and the husband has no right to use them in any state without
her permission and if he causes any damage to her property or her outfits
he is responsible for its cost.
Rule 168. If any dispute arises about the furniture or the equipments
of their dwelling-house between the husband and his wife during their
conjugal life or after dissolution of their marriage and to solve such
dispute the rule is that all things, that by custom are used by women are
belonging to her and things belong by custom to the men are his. And
things which are used by the both are belonging to whom gives proofs of
possession. And if both of them fail to prove his claim of possession then
both of them shall take an oath that they belong to him and the things
must be divided between them.
90
Chapter Seventeen
Defects Of Parties Of Marriage
Rule 169. The contract of marriage implies the right of cancellation it
for defect in either one of the parties. So a husband who finds his wife, in
their privacy or out of it, is not free from blemishes he has a right to
cancel their contract of marriage by the judge.
And so if the wife finds her husband is a defective person she may
claim to cancel the contract of their marriage.
Rule 170. A woman has the right to claim and cancel the contract of
marriage if she finds that her husband is defective with; insanity, or
emasculation or, Impotency, or an amputation of penis.
And the man also has the right to claim and cancel the contract of
marriage if he finds that his wife is defective with; insanity, or leprosy, or
blindness, or crippling ,or Atresia (absence of vagina or solid vagina, or
short vagina), or vaginal anus, or Cartilaginous Hymen. 1
But the husband can not claim for cancellation if the defect occurs
after the consummating of marriage.
Rule 171. Any Intent to annul a contract of marriage to a defective
spouse must be proceeded immediately against the defective party. But in
this modern time with facilities of new hospitals, it is preferable that the
husband and the wife try to help each other to treat such defect if it is
possible.
Rule 172. If the contract of marriage is valid and marriage is
consummated the wife shall possess her determined dowry (mahr musamma).
But if the contract of marriage is void and the relation between the
parties dissolved by a decree of a court after consummating of marriage
1
- Most of these defect can be treated nowadays by minor surgery in most of
modern Hospitals.
91
the wife shall have the fair dowry (mahr al-mithl). And if marriage is not
consummated she have no dowry. 1
Rule 173. If cancellation is made by the husband before consummating
the marriage the wife has no right of dowry, but if cancellation occurs after
consummation of marriage the wife must receive the determined dowry.
And if cancellation comes from the wife before consummating of
marriage she shall have no dower with the exception of cancellation for
impotency, because in case of impotency she shall have the determined
dower even the cancellation comes from her side.
And, also, if cancellation comes from her side for defection in her
husbanol after the consummating of their marriage she shall have the
complete dowry even he is defective with Emasculation. 2
1
- Sharayi 2nd. vol. p. 323.
- Sharayi 2nd. vol. p. 321.
2
92
Chapter Eighteen
The Mutual Conjugal Rights
Rule 174. Marriage in Islamic Concept is not confined within the
fleshly and materialistic end ultimately, but, it is farther than that; It is a
deep spiritual harmony and, a means to quench the emotional longing.
Marriage is mutual love and clear understanding of the obligations and
rights of either of the parties. And such love and understanding shall
make life a fountain of pouring happiness.
Rule 175. A husband is responsible to take care of his wife and treat
her gently and in justice. And he must maintain her with the needs of her
style, and he must satisfy her with dwelling-house, food and clothes, and
servents if she is used to them in her family A husband always should act
towards his wife in obedience to the order of Qur’ãn in Verse No. 19
Sura Women It says;,, ... And Associate with Them (your wives) with
Geniality’’ 1
Rule 176. If a husband has more than one wife he should treat them
in the same style without partiality in maintaining or in conduct and he
should divide his leisure time, particularly the nights, equally. And if the
husband treats one of them with injustice he becomes subject to her claim
of recompense. 2
Rule 177. The matrimonial authority of a husband over his wife is
limited to the conjugal rights and does not exceed to his wife’s financial
power or to her power of obligations. So, the wife is independent in her
financial Transactions from her husband and she is free to dispose of her
property and make any kind of business with the others, and she can
1
- Lum‘a, 5th. vol. p. 469.
- Sharayi 2nd. val. p. 337.
2
93
make any contract of business she prefers to do.
Rule 178. A wealthy wife is not responsible to support her husband
or pay his debt. But she is obliged to support her children and her parents
and earn their living if she is poor and her husband has no right to
prevent her from doing so. 1
Rule 179. A wife is obliged to obey her husband according to
common conjugal rights or according to the conditions they stipulate, if
any. in the contract of marriage.
And the wife should always behave in a manner that raises her
husband’s reputation and position in his community. And she ought to do
her best of power in helping him in his constructive effort for her and
their children.
And she should try always to be amiable to her family and to her
husband’s relatives.
Rule 180. Rights of a wife to he maintained and treated leisurely by
her husband are connected and related with her obedience to her husband
and her achievement of her conjugal duties towards him and her children.
So, if she disobeys him or leaves her house without his permission she
shall lose her right of maintaining by him. 2
Rule 181. The wife has the right to demand a private dwelling–house
for her with her husband with the exception of his minor children. 3
And the support for a wife should be provided preferentially and
before any support for other relatives of the husband. 4
Rule 182. If a wife relinquishes a part of her dowry or a part of her
property or her money or a part of her conjugal rights to attract his love
and to bind him to her and, the husband accepts such favour and becomes
attracted to her and treats her nicely. the relinquishment becomes legal
and effective. But if the husband continues his meanness towards her,
inspite of her kind act towards him, the act of relinquishment is null and
void and she has the right to regain the property or the money or any
1
3
4
2
94
al-Ahkam p. 54 art. 206.
al-Sharayi 2nd. vol. p. 350 and 351.
al-Sharayi, p. 349.
ibid, p.352.
other thing or right she abandoned to him. 1
Rule 183. If a bitter struggling begins and continues between a wife
and her husband and each of them agresses the other and the shadow of
divorce threats their life, their families are called to choose two men: a
man from her family and the other from his as arbitrators to help them in
settling their quarrel. And if the two arbitrators are not chosen, the judge
may choose them. And if the judge chooses them their compromise
should be followed by the Court with the exception of the matters of
divorce or of waiving a part of the wife rights.
And if the spouses, confer the power of attorney, upon the arbitrators
to settle their dispute, then the arbitrators have the right legally to do any
reasonable act for settling the dispute of the wife and her husband. 2
1
- Lum‘a, 5th. vol. p.426.
- al-Mukhtasar p.217; al-Lum‘a, 5th. vol. p.429-431.
2
95
CHILDREN
Chapter Nineteen
The Establishment Of Paternity
Rule 184. Since the righteousness of the legal Status of the children
is the essential element of the Spirit of Islam as determined by Imam Ali,
so the child should be protected by the Public Order against any
aggressiveness towards his legitimate legal Status, by his father or his
mother or the community. 1
Rule 185. 1- All children, who are born, in wedlock are the legitimate
Issues of the marital partners.
2- The marital Status of two parents of a child is a private
matter of the two parents and it may be decided by them in any time
since they are marriageable to each other in the time of the child birth.
And no authority has the right to deny the legitimacy that determined by
the parents or by the circumstances.
Rule 186. If any dispute arises between the parents concerning the
state of paternity and if the father refuses to acknowledge the child, the
child should be his child if the child is born after not less than six months
and not more than ten months from the time of the last marital
intercourse between the spouses.
But if there is no intercourse between them and a privacy does not
occur between the husband and his wife or the child is given birth within
a period of time which is more than ten months or within less than six
months from the time of the last marital intercourse or the time of the
occurrence of the privacy between the spouses, the husband is not
1
- This Rule is the Public policy in United States Of America Time Magazine, Atlantic Edi. April 1967 p. 47.
96
obliged to acknowledge the child as his child. 1
Rule 187. A man acknowledges that a certain child is his own, and it
is possible acknowledgement, such man has no right to deny his
fatherhood to his son.
And the only way a husband may claim that the child is not his, is by
Lian in wick he affirms under oath that the wife has committed adultery
or the child is not from him. And if he proves his claim by witnesses or
by his wife confession or by testing the child’s blood, the child may not
be related to him. 2
Rule 188. A husband has no right to refuse to acknowledge that the
child is his on the ground that his wife has committed unchastely, even if
he saw her if he does not declare the Imprecation (Li‘ãn)And if he does
not claim Imprecation (Li‘ãn) the child is his.
And if the wife gives birth to a child within less than six months from
the time of their marital intercourse or after more than ten months from
the time of their mutual intercourse, the child is his too if he gives his
implied consent by not declaring the Imprecation. (Li‘ãn) 3
Rule 189. A divorced wife gives birth to a child within ten months
after the date of her divorce, has the right to relates her son to her
husband who divorced her and she has the right to claim for support for
her child from him 4
Rule 190. If a divorced wife marries after her waiting period and
gives bath to it child within less than six months from the date of the
marital intercourse with her new husband, the child shall be related to the
first husband.
But if she gives birth to a child after the end of the sixth month, the
child shall be the new husband’s child. 5
Rule 191. If a man commits a sexual act with a marriageable woman
1
3
4
5
2
Sharayi, 5th. vol. p. 340, 341.
Sharayi, 5th. vol. p.341.
ibid, p.341.
Sharayi, 5th. vol. p. 341.
Sharayi, 5th. vol. p.341.
97
to him intending that she his wife the child, if any, is his child. 1
Rule 192. If a man gets married to a woman who believes that she is
single or she is divorced or her husband is dead, and then, it comes that
she is still a wife; the woman is legally her first, husband wife if he
accepts that, and the second contract of marriage is null and void and
children who are born, if any, after six months from the time of the
second marriage are belonging to the second husband. And the first
husband may touch his wife after her waiting period from the time of the
nullity of the second marriage.
And this may be proved by all the evidences; judgement of a Court,
or witnesses or any information by a person. 2
1
- For Allah Saying in The Qur’ãn ‘‘Treat Them (your wives and women)
with Geniality’’.
2
- Such assumption is not strange if we know that most of the contracts of marriage
are not registered and the woman most of the time has not any knowledge about her
status especially if her husband is absent in unknown place.
98
Chapter Twenty
Delivery, Nursing And Custody
Delivery;
Rule 193. It is preferable, that, a woman, when she is in labour, shall
be helped by women, rather than, by men. But if there are no women men
may do that.
And the baby, after its birth, must be washed by water and wiped by
clean cloth. And if there is no fresh water but only salt water. Salt water
must be mixed with date or honey to dilute the saltiness of water. And the
child's mother must be cleaned too, and to be put in clean bed. Her food
must be rich to recover and refresh her.
Rule 194. A name should be given to the child during the first seven
days. And if the baby is a boy, it is preferable to name him after the
Prophets or The Imams or the famous righteous men; like Muhammad,
Mũsa, ‘Isã, Ibrahim or, Ali, Hassan, Hussain, ‘Ammãr or Taha etc.
And if the baby is a girl, it is graceful to be named; Fatima, Zainab,
Kulthoom, Zahrã, Salma and so on.
Rule 195. Circumcision of a baby-boy is absolutely required and it is
healthily preferable that circumcising he done on the seventh day of his
birth. And if circumcision is not done early, it must be done before his
puberty.
And it is forbidden to cut off the clitoris of a baby-girl or of a girl or a
woman. 1
Rule 196. It is necessary to immolate a male sheep to baby-boy and a
female sheep to baby-girl in the seventh day of their birth but, if the
parents can not afford it, such immolation may he done in future by the
1
- al-Mukhtasar, p. 219, Sharayi 5th, vol. p. 344.
99
mother of the child or by his father or by the child himself. 1
Nursing:
Rule 197. It is preferable that a new born child be fed from his
mother’s breast but, the father has no right to enforce his wife to nurse
and feed her baby if she refuses to do that. And the mother has a right to
take wage for feeding her infant and the father is obliged to pay her a fair
wage for that.
And if the father dies, mother can take her wages from the child
possessions, if any, for milk, she feeds it.
Rule 198. If mother demands unfair payment for suckling her child
the father can send the infant to a wet-nurse for lower payment.
And if the mother volunteers to provide her infant with her milk,
father can not part the infant from his mother. 2
And the mother is bound to nurse and provide her infant with milk; if
his father is poor and can not afford money for nursing the infant, or; if
infant does not accept other woman’s breast.
Rule 199. The period of suckling is two years or it may be twenty
one months. And it is forbidden to suckle infant for a period less than
Twenty one months. But it can be more than two years according to
circumstances.
Comment
Rules of payment mother for suckling her infant emphasize the
legality and not the initiative motive that the woman should take care of
her infant and her children and her husband. It is, of course, not
customary, that mother asks father of her infant to pay her for suckling
the infant. But this occurs when the two parties begin their dispute or
dissolve their marriage for any reason.
1
- « » p. 219. In Birth of a child or death of a person the immolation of sheep,
one or more, is necessary and meat to be distributed among the poor Because they
will pray for the child to he graced and the God to have mercy upon the deceased.
2
- Sharayi, 5th. vol. p. 345.
100
Rule 200. Custody is an immediate personal care of a child and
responsibility for the protection of him. It does not mean the control of a
child’s property.
And mother is the most meritorious of custody of her children during
the first seven years of their age, boys or girls if she is Muslim. But if she
is from the people of the Book and their marriage is dissolved for any
reason, the father has legal right to part children from their mother. And
the mother can restore her right of custody if she converts into Islam.
And the father in such case obliged to realize that even the mother is not
Muslim but she is the mother of her children and she has the legal right to
see them every day if she wants to do so and to take care of them as the
circumstances help.
Rule 201. Islam is a controlling factor in custody dispute; so, if a
spouse of two non-Muslim parties of contract of marriage converts into
Islam, the Muslim spouse shall have the legal right of custody of the
child. And if the wife is the spouse who converts to Islam, she becomes
immediately forbidden to him unless he converts to Islam.
(see Rules 148-149)
Rule 202. Custody period is seven years for the boy and nine years
for the girl. And it is said; that the mother is the most meritorious of the
custody of her daughter until the girl gets married, provided that the
mother is not married to another man. 1
And if the mother becomes married she shall lose her right of the
custody if their father is alive but if he is dead she is the most meritorious
of custody of her children.
And a married mother may restore her right of custody after the
dissolution of her marriage for any reason. 2
Rule 203. After the first seven years of the boy life under his
mother’s custody the father of the boy becomes the possessor of the right
of custody until the boy attains his puberty, provided that the father is
competent for such custody. 3
And the father must use his right of custody of his boy with kind
manner towards the child’s mother and he should always be with her in
1
- Sharayi 2nd. vol. p. 346.
- Lum‘a 5ht. vol. p. 459.
3
- Lum‘a 5th. vol. p. 459.
2
101
taking care of the child and he must not deprive her from custody of her
children for a cheaper wetnurse or for a volunteer one or for any unjust
reason. 1
Rule 204. Should the father die or lose his right of custody, mother
becomes the most meritorious of the custody of her children and neither
paternal grandparents nor any relative of the father can deprive the
mother of the child from her right of custody.
And even the guardian, who is appointed by the departed father, has
no right to compete with mother to gain the right of custody.
And mother right of custody of her children is fully recognized after
the death of their father even if she is married. 2
Rule 205. If the both of parents of a child die the right of custody
shall transfer to paternal grand-father and if there is no paternal grandfather, custody shall transfer to the paternal or maternal relatives
according to their relation to the child in inheritance rules. And it is
preferable, for the child sake, that the duty of custody of a child shall be
transferred to the female rather than male of the tree of his relatives,
because the woman is always more affectionate towards the child than
the man. So, an aunt is preferable to an uncle.
Comment
1- Custody is a great duty imposed upon parents and, the goal of it, is
to bring up the child and to build up his or her personality.
The child, while is in need of care, has no reward to those who take
care of him or her. But God, the Glorious, has taken care of this by the
instinctive driving in the heart of man which always motivate him to
sacrifice his life for the sake of his child.
But instinctive driving is not enough in our modern rush life. The
child can not live on love alone, he needs to be educated for his future
and he needs a stable personality that shall help him when he faces the
misfortune in his coming days.
1
- al-Fusul art. 87.
- Sharayi 2nd. vol. p. 346.
2
102
This hard task, building-up the personality of the child, can not be
accomplished without the co-operations between father and mother of the
child. And this co-operation can be fruitful and effective if it comes from
the mutual love and respect between the parents of the child. And the
love here means the real deep feeling which comes from the
consideration of what every parent should do to the family.
2- And this co-operation must continue even after the separation of
the spouses by divorce or by other reason, for the sake of the child.
Verse 233 of Sura Baqara (The Cow) says; «A mother should not be
treated unfairly on account of her child, nor father on account of his
child.» For this reason and the Order Of Allah the parents must treat each
other with kind hearts. Abu al-Hasan al-Asfahani said; «If there is a
volunteer wet-nurse for the child, the mother shall not lose her right of
custody of child even the father wishes to do so.»
Rule 206. If there is no parent or relative, custody of the child
becomes a task imposed upon the government; the public Treasury (Bait
al-Mal).
Rule 207. Custody of children is an important duty imposed upon
parents. And it is not limited to suckle children only during the first two
years period of infancy but, it must continue until the children reach their
full age and full ability to find their way in their life independently.
And both of the parents are responsible to satisfy the needs of their
children and to improve and raise them from the early time.
Rule 208. Parents or the guardian and the society must not limit
children to their limited education but, the parents with help of their
society must do their best to establish the complete communication
between children and the means of education that are prepared to equip
children to be constructive citizens. 1
Rule 209. should the father or mother or both of them become an
incompetent to the right of custody of their children and or are neglectful
for their children or, are destroyed by poverty, the judge have to decide to
transfer custody to a responsible relative or a family who shall take care
of such children in the expense of the parents if they can afford it or on
the Public Authority expense.
1
- Imam Ali (P) said; «Do not bind your children to your standard and means
of Education, because they are created to the succeeding generation».
103
Rule 210. Right of custody on parents for their children involves the
task of rearing and involves the authority of controlling over the children.
And this controlling over the children contains the right of guiding
them and observing their behaviour and their manner of conduct in
school or house or outside the house, in the society and to behave them
with force if it is necessary.
And to guide them to the importance of the religious training to
prevent them from any kind of destructive conduct or action that which
shall ruin their personality in their future.
And parents while they use their right of custody and guardianship
should follow the essential parental natural motives; the love and care of
child.
104
MAINTENANCE
Chapter Twenty One
Maintenance
Rule 211. Maintenance of wife, children, parents and relatives is a
duty that determined by Sharī‘a Of Allah. And maintenance which
imposed upon man to support a circle of persons that related to him by
different reasons is a promissory Obligation which is involved dutifully
in the course of the person’s responsibilities of life.
Rule 212. Reasons of legal obligation to support a person are three
1- The matrimonial relation.
2- The immediate blood relation.
3- The possessive relation.
Wife Alimony.
Rule 213. Husband is obligated to support his wife in permanent
marriage from the date of the contract of their marriage even she is in her
family house. provided that the husband did not establish a dwellinghouse for her and did not call her to live with him in his dwelling-place.
Rule 214. Husband must support his wife who lives with him
continually if she;
a) does not prevent him herself without reason;
b) does not leave her house without his permission and without right
as, if she goes to visit and take care of her father, mother or a close
relative who is in need for her help. Or to go to fulfil a religious duty to
Mecca or or sacred places as, Najaf, Karbala and other places;
c) or if she does not obey him for a time without reason. 1
1
- Sharayi 2nd. vol. p. 348, Lum‘a 5th. vol. p. 266.
105
Rule 215. The wife has the right to prevent her husband from the
sexual act if she is not fit for such act by defect of short vagina or
cartilaginous hymen, or during her period of menstruation.
And if she is preoccupied by religious duty as fasting in Ramadam.
Rule 216. If the wife shows refraining from her husband because of
her unpaid dower, the husband is responsible for supporting her even she
stays in her family house provided that their marriage is not
consummated. 1
Rule 217. The wife has no right to refrain herself from her husband IF;
1- Their marriage is consummated in her family house with her
consent before the payment of her dowry; or
2- the husband furnishes a dwelling-place for her in acceptable time
and summons her to live with him in his furnished dwelling-place.
And if the wife does not show her obedience to her husband to come
to live with him or if she leave his house without legal reason or walk out
because of trifle things she shall become disobedient and insubordinate
wife (nashiz). And she shall lose her right of supporting by husband. 2
Rule 218. Wife may restore her right of support by her husband if she
make herself ready to live with her husband and her right of support
begins in the time of her claim to obey him even if he does not come to
take her.
Rule 219. If a Muslim wife becomes converted from Islam, she shall
lose immediately, her right of support by her Muslim husband but if a
wife is non-Muslim and becomes converted to another faith she shall not
lose her right of support by husband.
Rule 220. Wife has no right of support by husband;
a) if their marriage is cancelled, or
b) if the divorce between them is determined (bã’in). But if she is
pregnant, husband is bound to support her until she gives birth to her child;3
c) if her husband dies.
1
- al-Fusul, art. 93.
- Sharayi 2nd. vol. p. 348 and p. 351.
3
- Sharayi 2nd. vol. p. 348.
2
106
Rule 221. The alimony that imposed on husband for wife is a
privileged right over the other relatives, support by the husband. And if
the husband breaches his duty towards his wife her alimony shall
becomes privileged debt upon the husband from the day he cut her
maintenance. 1
Rule 222. Husband’s failure to maintain his wife because of his
absence or his poverty is a ground for the wife to present petition for
dissolution of her marriage.
The Amount of Maintenance
Rule 223. Maintenance husband is bound to provide his wife with is
composed of money and/or subsistence for food; clothes and dwelling-place
for her and for children according to her standard of life and his ability.
Rule 224. Wife, during the joint life with her husband or during her
compliance, possesses the right of maintaining day by day or month by
month and if the husband falls into arrears of maintaining wife, the wife
may claim for the payment of maintenance in arrears for any period of
time that husband fell to support her. 2
Rule 225. The quantity and quality of the means of maintaining a
wife are determined according to the standard of her like in her dwelling
place and not at her family home. And if the wife used to have a servant
or she is in need for a female-servant because of her condition, husband
is bound to secure a female-person to help her.
And he is bound, too, to secure a separate dwelling-house: rooms or
room to live with wife alone with the exception of his minor child and
unmarried daughter. 3
Rule 226. If the parties consummate their marriage and the wife
accepts the usual standard of life that the husband lives in, for a time, she
shall lose her right for claiming the difference between his standard of
life and her in dwelling-house. But the wife has the right to demand the
means of living according to her standard with regard to the husband’s
1
- Lum‘a 5th. p. 476.
- Sharayi 2nd. vol. p.p. 352, 353, 352, 352 lum‘a, 5 vol. p. 475.
3
- Sharayi 2nd. vol. p. 375, 346 lum‘a, 5th. vol. p. 470, 350 351.
2
107
ability.
Rule 227. If the wife owes her husband an amount of money and she
is able to pay, the husband has right to make a settlement with her that
she takes her maintaining from money she owes him.
But husband has no right to ask such settlement if she is unable to
pay his debt.
Rule 228. The amount of maintaining May be increased or lessened
on wife’s or husband’s petition in accordance with the changing
circumstances of husband’s ability to pay or the changing of the prices of
living needs steadily.
Maintenance For Relatives:
Rule 229. A person is duty-bound to maintain his/her parents and
grandparents, and children and grand-children and their descendants,
male or female.
And it is preferable to maintain sisters and brothers and their
children; aunts and uncles and their children particularly those who
inherit him or those who, he shall inherit them. 1
Rule 230. Maintenance is a duty, for relatives, of a person liable to
maintain, and able to support and this supporting shall be limited with his
ability and he is not responsible to give more than what he pay for
himself and his family.
Rule 231. A person entitled to be maintained is a relative who, on
account of disability or poverty or sickness or any other reason, is not
able completely, to provide the means necessary for his living. 2
And maintaining shall not exceed to find a wife or a husband to the
maintained person. But it is preferable that if the son finds a wife to his
widow-father.
Rule 232. Person entitled to be maintained is not necessary to be
Muslim. But he may be non-Muslim or even unbeliever on condition that
he is not in enemy country 173
1
- Sharayi 2nd. vol. pp. 352, 353, Lum‘a, 5. vol. p. 475.
- Sharayi 2nd. vol. pp. 352 353 353 352 Lum‘a 5 vol. p 473.
2
108
Rule 233. Maintenance for relative is to be claimed before a
competent court and it begins from the time of the petition for it and not
for a time before the date of the presenting the petition before the
competent court.
And the judge may permit the claimant to take loan on the credit of
the responsible person, provided that he is absent in unknown place.
Rule 234. A father is obligated to maintain his child, but if he can not
because of, his destructive poverty, or his absence or his death, the
mother shall be responsible for maintaining her child and if she can not
her parents or her grand-parents shall become responsible for maintaining
the child. And the closest person to the child in inheritance rules is the
most responsible one for his maintaining. 1
Rule 235. If persons entitled to be maintained are from the same
degree; descendants or ancestors or the same degree of descendant and
ancestor as, child and father, the amount of maintenance shall be divided
between them equally, even it is few amount. But if the persons who
claim for support from different degrees, support shall be paid to the
closer relative as, if they are father and grand-father the support shall be
paid to father.
Rule 236. If the entitled to maintenance has well-to-do father and
grand-father, his father is responsible to support him. But if he has a
father and son, then the both are obliged equally to support him. 2
Rule 237. A person, who has a devoted servant living with him. is
obligated to maintain such servant, male or female, as he maintains any
one of his family or himself.
Rule 238. A person is obliged to take care of any kind of animal he
keeps in his shelter and he should supply it with the necessities of life.
and if he fails to do so, he must free it, or sell it or slaughter it if it is
eatable meat.
And he obliged too, to take care of his farm, trees, flowers and every
beneficial plants he has.
1
- Sharayi 2nd. vol. pp. 352-354 Lum‘a 5th. vol. pp. 473-486.
- Sharayi 2nd vol. pp. 352-354 Lum‘a, 5th. vol. pp. 475-486.
2
109
DIVORCE
Chapter Twenty Two
Divorce (Talãq)
Rule 239. Divorce is a power, of disjoining Marriage, that invested in
husband or invested in wife, if the husband waives such power to her in
the provision of the contract of their marriage.
Rule 240. Divorce must be in pronounced specific restrict words
thus; ‘‘You are divorced (Anti Tãliq)’’ or ‘‘My wife is divorced (Zojati
Taliq)’’ or in gesture that gives cleary the intention of making divorce, if
the person is dumb or unable to pronounce the specific words of divorce
for any reason. And husband while he pronouncing word of divorce
should be qualified with the requirements of effective legal divorce and
he should;
1- be a sound-minded;
2- attained his puberty (not less than eighteen years.);
3- have a definite intention to divorce his wife;
4- not being under duress;
5- not being disaster-stricken;
6- not being under a state of intoxication.
And if he divorces his wife while he is under the effect of the
deficiency of the, mentioned above, conditions, his divorce is null and
void. 1
And the wife, when she use the right of divorce herself, which is
invested in her by husband, should be qualified too, with the conditions
that make the divorce effective.
Rule 241. Right of divorce may be exercised by husband himself or
1
- Sharayi 3rd. vol. p. 13.
111
he may invest such right in another person to exercise it on behalf of him
or invest the power of divorce in lawyer or any competent person.
And divorce may be made by the guardian (wãli); the father or the
grandfather on behalf of insane child in accordance with the juvenile
interests and the judge decree of permission.
Rule 242. Divorce is null and void if it made by husband during the
period of menstruation of wife.
But husband may divorce his wife If She IS;
a) less than nine years of her age; or
b) he did not consummate their marriage: virgin she is or not; or
c) she is pregnant; or
d) he has been away from her for a period more than a month,
provided that he does not know if his wife in her purity or not.
And a husbad in confinement is as, an absent husband.
And the state of purity or menstruation shall be determined by the
wife’s words only. 1
Rule 243. A wife who reached her puberty but she does not
menstruate oftenly her husband has no right to divorce her unless he wait
three months and in the end of the third month he may divorce her on
condition that she does not see a drop of blood. And if she sees such drop
of blood he must 'wait another three months, and if he divorces her
before that, his divorce is null and void. 2
Term And Testifying of Divorce:
Rule 244. If husband does not pronounce the term of divorce in the
face of his wife, in clear and definite and specific words, because of her
absence from the meeting, he may divorce her by pronouncing her name
and the term of divorce in presence of two fair witnesses and write that,
after the pronouncing, in a letter to her. 3
Rule 245. The number of divorce should be one in effect always,
even the husband repeats the term of divorce more than once as, you are
1
- Sharayi 3rd. vol. p. 15.
- Sharayi, 3rd. vol. p. 15.
3
- Sharayi, 3rd. vol. p. 18.
2
112
divorced three times or hundred times, it is always one. 1
Rule 246. Sect of husband in Islam determines the legality of his
divorce to his wife. And if he is non-Muslim his divorce is right
according to his faith. 2
Rule 247. The term of divorce must be absolute and unconditional,
indicating that husband has intended to divorce his wife and if the term of
divorcing is conditioned and not determined and the husband does not
intend to divorce his wife, the divorce, then ,is null and void. 3
Rule 248. Words of divorcing must be heard clearly by two fair
Muslim witnesses and the hearing of divorce by witnesses is an essential
elemment of the legality and effectiveness of divorce. 4
Comment
Intending to marry a woman wad to establish a family is a sign of a
stable personality and sound thinking, there-fore Shī‘ite Rules do not
stipulate the testification by two witnesses as an essential element of the
legality of contract of marriage.
But to divorce a wife, and in most of the time, to ruin a family is a
shadow of a torn personality and scattered mind, Therefore it is necessary
to such person to be given a time to realize the effect of his act in his
future life. For this reason it is normal among all judges, that when there
is a case of divorce they always try to find a reason to postpone the
Hearing not less than a month and after that they send the spouses to a
person or persons to study the problem between the husband and his wife
and in most of such cases the parties reach a kind of conciliation.
1
3
4
2
Sharayi, 3rd. vol. p. 18.
Sharayi, 3rd. vol. p. 18.
Lum‘a 6th. vol. p. 16.
Sharayi, 3rd. p. vol. 21.
113
Chapter Twenty Three
Manners Of Divorce
Rule 249. Disapproved divorce (talãq al-bidã’) is the divorce that
husband exercises ;a) during his wife period of menstruation; or
b) during her purity (tahr) after his sexual relation with her; or
c) While she is confined; or
d) he pronounces the term of divorce more than once as he says: «you
are divorced three times.»
In all these cases the divorce is null and void. 1
Rule 250. The approved divorce (talãq al-sunna) is a dissolution of
marriage that exercised by husband in the right time and pronounced in
the legal words.
And it is two kinds; Irrevocable and Revocable divorce;
Rule 251. Irrevocable Divorce (talãq al-bain) is the divorce that
exercised by husband while;
a) that the wife is less than nine years of age; or
b) that their marriage is not consummated; or
c) that the wife is in a state of menopause; at the age of fifty or more
In some cases: or
d) that the dissolution of marriage is made by mutual agreement of an
exchanging of assets between husband and wife (mukhalaa or khul’u); or
e) that the dissolution of marriage is made by an agreement that the
wife gives the husband an amount of money or property to free herself
from him (mubarãt); or
f) the divorce is triples.
In all these cases the husband has no right to return to his wife
1
- Lum‘a 6th vol. p. 30-31.
114
without new contract of marriage. 1
Rule 252. Khul‘ and Mubarãt is an act of dissolution of marriage by
an agreenent between husband and wife on condition that the wife pays
her husband an amount of money or property to gain her liberty from him
by divorce. And this agreement conies when the wife hates her husband
and cannot endure life with him.
And if the amount of money that she pays, is the same amount of her
dowry it is Mubarãt. But if the amount is more than her dowry it is Khul‘
or Mukhalaa.
And in both cases the amount may be less than her dowry.
Rule 253. A wife who is divorced by agreement to pay her husband
(khul‘ or Mubarãt) has the right to return from her promise of paying
money to husband provided that the husband accepts and their marriage
is consummated and she is not tripled-divorce. In such case her husband
can return to her during her waiting period.
But if the marriage is not consummated or she is divorced for the
third time (tripled-divorce) the divorce shall be definite and he has no
right to return to her without a new contract of marriage.
Rule 254. If a husband divorces his wife three times, such divorce
becomes tripled divorce and his wife becomes forbidden to him unless
she becomes married to another man and after her divorce from the new
husband she must pass her waiting period (three months and ten days or
little more). After that her first husband can return to her by a new
contract of marriage. 2
And determination of marriage by reason of money that is paid by
wife is always a complete divorce in which husband can not return to his
wife without a new contract of marriage.
Rule 255. Definite divorce (talãq al-bain) abrogates all the conjugal
rights between husband and wife. And the divorced wife must leave
husband’s dwelling-place and she is not entitled to be supported, but
only, when she is pregnant and if she is pregnant she is entitled to be
supported. 3
1
- Lum‘a 6ht. vol. p. 34.
- Lum‘a 6th. vol. p. 46.
3
- Sharayi 3rd. vol. p. 46.
2
115
Revocable Divorce (talãq raj‘ee)
Rule 256. (1) Revocable divorce (talãq rejee) is an act of dissolution
of marriage the husband exercises when his wife IS;
a) more than nine years of age and not in a state of menopause and
their marriage is consummated;
b) and not tripled divorced by this husband;
c) and the dissolution of marriage is not by mutual agreement
between the spouses (mukhalaa) or (Mubarãt).
(2) This kind of divorce enables, always, the husband to return back
to his wife and renew his mental life with his wife during her waitingperiod (‘idda) without a new contract of marriage.
(3) And husband may revoke and abolish his divorce to his wife by
an act that indicates his returning; by kissing her or by saying; ,,l returned
to you or you are my wife etc.
And a dumb person may indicate his returning by any indicative gesture.1
(4) It is preferable but it is the duty of the two spouses to go to the
court to affirm the husband returning to his wife on the conditions of the
previous contract of their marriage.
(5) If divorce is before court thd returning should be affirmed before
the court, too.
Rule 257. Revocable divorce does not abolish completely the rights
between husband and wife.
And with exception of the sexual matter between them, which
becomes forbidden, unless the husband intends to return to his wife; they
have the right to inherit each other during the wife’s waiting period and
the husband is bound to support his wife during her waiting period
(‘idda) if she is not pregnant, but if she is so, she is entitled to be
maintained till the time of her child birth. And he has no right to marry
her sister.
Rule 258. If there is any dispute or doubt about repealing of divorce
between husband and wife, the dispute should be governed and
determined by these rules;
a) if husband returning to his wife to repeal his divorce but the wife
refuses his wish on the ground; that she is not bound to have waiting
period since their marriage is not consummated, her claim must be
admitted after she takes oath before the court.
1
- Lum‘a 6th. vol. p. 35.
116
b) If she claims that she had passed her waiting period and her
husband has no right to revoke the divorce and the husband denies that;
or on the contrary, that the husband claims that she had passed her
waiting period and he did not return to her or she has no right of
maintenance but, she denies that, her two claims must be admitted if she
takes oath before the court.
c) if husband claims that he has revoked divorce before she passed
her waiting period (‘idda) but, she claims the contrary, husband’s claim
must be admitted, since the continuous life of marriage between husband
and wife is preferable to divorce.
Rule 259. If she was pregnant at the time of her divorce and after a
reasonable time she claims that she did give birth to a child. Her claim
must be admitted even without seeing a child. 1
Rule 260. Divorce is revoked if the husband denies that he divorced
his wife and his denial is during her waiting period provided that;
a) divorce was not affirmed before a competent authority or before
court,
b) or she accepts his denial or if she does not do so, she is unable to
prove the contrary. 2
Rule 261. Wife has the complete right to reject her husband returning
to her during her waiting period. And if the divorce is registered she has
right to have new dowry or stipulate new terms for her sake and the
revoking of divorce should be registered too. 3
Wife’s Petition For Divorce:
Rule 262. The wife has the right to present a petition before a judge
for a decree of divorce from her husband on the ground, among others,;
That her husband is being unable to support her with necessities of
the life; food, clothes and dwelling-place because of his poverty or his
estrangement from her or his absence without legal reason.
And the judge is authorized to declare a judgement of divorce in
favour of the petitioner wife. And the judgement must he determined
1
- Sharayi 3rd. vol. p. 39.
- Sharayi 3rd. vol. p. 39.
3
- Lum‘a 6th. p. vol. 50.
2
117
even if the place of the husband is unknown. 1
Divorce for The wife Of lost Husband:
Rule 263. The wife of lost husband is entitled to present a petition for
maintaining. And the judge should issue an order of searching for the lost
husband by hearing witnesses or using the means of communications;
Newspapers or other means. And the judge is authorized to decide the
matter in such situation in issuing a decree of support for the wife.
Rule 264. If lost husband has money or property, the court should
order the wife to be supported from the husband money or his property,
even by selling it for money for support her.
But if husband is poor and there is no volunteer to support the wife,
the Imam or the judge should order the local authority to support her.
Rule 265. The judge is authorized to divorce a wife, from her
husband, if her husband is absent but still alive or the husband is so poor
that he can not afford her maintenance by himself or by a volunteer and
the wife can not suffer the situation and she is impatient. In such
conditions the dissolution of her marriage is possible and necessary. 2
Rule 266. If the place of the absent husband is unknown the judge
may order the wife to wait four years if there is maintenance for her and
after the end of the fourth year judge must divorce her. And if husband
comes
during the four months and ten days of her waiting period he is her,
but if not she is divorced.
Divorce of sick husband:
Rule 267. 1- It is hateful in religion that a husband divorces his wife
while he is in death-bed. And if he divorces his wife while he is in deathbed, his wife shall have the right to inherit him within a year from the
date of the divorce if he dies within such year provided that she is not
married to another man. But he has limited right of inheriting her, within
only the time of her waiting period (three months and ten days.)
2- If he recovers from his illness before the end of the year she shall
1
- al-Imam al-Bakir said; ‘‘If a man has a wife who he can not support the judge
must divorce her from him.’’
2
- Lum‘a 6th vol. p. 65.
118
lose her right of inheriting him, even he may die after that. 1
1
- see chapter Eight.
119
Chapter Twenty Four
The Waiting Period (al-‘Idaa)
Rule 268. Waiting period (‘idda) means that in certain conditions of
divorce the divorced wife is forbidden to marry immediately and during a
specific time which will be determined according to the kind of her
divorce and her physical state.
And the Term of the waiting period may be measured by months
which in common, three months and ten days, or by three times of the
woman menstruation and there is a particular term of waiting period
which is four months and ten days in the case of the deceased’s wife and
the lost husband’s wife when she gets divorce by the judge.
Rule 269. The necessity of waiting period is for two purposes; to
know the state of the wife if she is pregnant or not; and to purify and
assert the kinship between the father and the child.
Rule 270. There is No waiting period IF;
a) the divorced wife is less than nine years of her age; Or,
b) the divorced wife is in a state of menopause; or
c) the divorce comes before the consummating of the
marriage with the exception of death of husband before the
consummation of marriage, the widow, even the marriage is not
consummated, she should pass a waiting period of four months and ten
days. 1
Rule 271. In addition to Rule 270, if the widow is pregnant and she
gives brith to a child before the End of her waiting period, (four months
and ten days), she should wait to complete the term of her waiting
period. 2
1
- Sharayi, 3rd vol. p. 33, Lum‘a 6th vol. p. 57.
- Sharayi, 3rd. vol. p. 38.
2
120
Rule 272. The term of waiting period, of dissolution fo marriage by
annulment of the contract, is the time of three consecutive menstruations,
if the divorced wife menstruates normally. But if her menstruation is not
normal or she does not menstruate, her waiting period (‘idda) shall be
three months from the date of the dissolution of marriage. 1
Rule 273. If the divorced wife is pregnant, her waiting period shall
last until the delivery of the child, even such delivery shall come after a
short time of divorce, few days, or week or month, or by miscarrying it,
her waiting period is completed. 2
Rule 274. A woman used to commit, with men, act of fornication, is
not subject to the necessity of having term of waiting period alter the act
of sexual intercourse. And she has the right of making contract of
marriage, either she is pregnant or not. But it is preferable that, her
husband shall not touch her until the delivery of the child or until her first
menstruation. 3
Rule 275. If the dissolution of marriage is Revocable Divorce, the
wife must not leave her husband dwelling-house and husband is
responsible to maintain her as a wife according to her standard of life or
better. 4
1
- Sharayi 3rd. vol. p. 34-35.
- Lum‘a 6th. vol. p. 62.
3
- al-Khilaf, p. 65, see the Introduction under Ijtihad.
4
- Sharayi 3rd, vol. p. 43. Lum‘a, 6th. vol. p. 73. Sayid al-Hakeem suggests that
wife should always prepare herself to receive her husband, while she is in her
waiting period And she must make up herself for him.
2
121
BOOK THREE
WILLS
INHERITANCE
WAQF
WILLS
Chapter Twenty Five
Offer And Acceptance
Rule 276. A will is an indication of making a disposition of property;
interests or money, or to appoint a guardian or executor with authority to
perform and execute the will which shall take effect after the death of the
testator.
And both of the disposition of property and the appointing a guardian
may be in one will or in separated wills.
Rule 277. The offer is an essential element of a will. And acceptance
is necessary if the person, to whom the legacy is bequeathed, is a specific
person. But if the will is for the benefit of the poor or for public school or
hospital or mosque it dose not need acceptance. And there is no need for
acceptance if the will for an infant before or after ITS birth. 1
Rule 278. An offer may be any word or words, or gesture or action
that intentionally convey property or interests to a legatee or intends to
place power of guardianship, or, of execution upon a person, after the
death of the testator.
And the acceptance may be, too, in word or words or gesture or
action.
Rule 279. If the value of the property or the interests that shall be
bequeathed to the legatee is more than five hundred Dinars the will must
be registered before the competent office according to the value and the
reality of the property or the interests. 2
1
- Sharayi, 2nd. vol. p.243.
- The Iraqian Dinar is one pound and one fourth; three dollars; twenty Tomans.
2
123
Rule 280. The acceptance may be before the death of the testator. But
if the legatee refuses the legacy before the death of the testator, and
accepts it after the death of the testator, while the will is still exists, the
acceptance is legal and the will is effective.
But if he accepts the will in the life of the testator and then after the
death of the testator he refuses it the will shall be cancelled in regard to
him. 1
And if the legatee dies before declaring his acceptance or his refusal,
the right of acceptance shall be transferred to the legatee’s heirs.
Rule 281. A will is a revocable legal act and the maker of a will has
the right to revoke his will and cancel it or make a codicil to it in any
time and for any reason and he has the right to cancel it entirely and to
make a new one.
And the act or the instrument of revoking a will or cancelling it
should be in the same power and degree and effect of making it. 2
Rule 282. If a testator makes many consecutive wills the last one is
the effective one. So, if a person makes a will then he makes another will
against the first one, the last will shall be effective and the first one must
be cancelled and it is null. 3
Rule 283. Will, may be conditional or unconditional .And in any will
the intention of the testator to make the will must be clear.
And every legal act or instrument that intends to convey property or
interests to third person provided that it is operative after the death of the
maker, is a will. 4
Rule 284. A will consists of two parties and a subject matter; they are;
a- the maker of the will; testator b- the person to whom the legacy is
bequeathed; the legatee or the benefactor. c- the property that is
bequeathed
1
3
4
2
124
Sharayi, 2nd. vol. p. 243.
Nukhbat al-Ahadeeth, p. 51.
Sharayi 2nd. vol. p. 251.
lumma, 5th. vol. p. 19.
Chapter Twenty Six
The Testator And Legatee
The considerations of the testator to make will are;
Rule 285. Sanity. A testator must be in soundness of his mind and a
person who is defected by madness or intoxication or other defect of
mind has no right to make will and if he does, his will is null and void.
And insanity that makes will void and null is the insanity in the time of
making the will. So, if he makes will while he is sane and becomes after
that an insane person, his will is right and effective. 1
Rule 286. Puberty. A person not being of age is incompetent to make
a will .But it is preferable that a child in age of ten years may make a will
for beneficial purposes as, for his relatives or for poor.
Rule 287. Freedom of duress. A will that is made under duress is
invalid. And a person under a destructive impulse, who attempts to
commit suicide by cutting vein or by taking poison is not with full
capacity to make will. But will that is made before is legal and valid.
Rule 288. Intelligence; An irresponsible person is forbidden from
making will before or after interdiction which is decided upon him by
judge provided that he was irresponsible in the time of making such
will. 2
The Legatee,
1
- al-Urwat al-Wothka p.406.
- al-Urwat al-Wothka, p 405-406 Article 67 of The Personal Status Law in Iraq
defines the capacity of the testator as follows; ‘‘The Testator must have the
capacity of legal denoting and he must possesses what he is going to begueath’’
And the capacity of legal denoting is defined in Article 608 of The Civil Code
which provides; ‘‘The doer must be sane and being of age and competent to
contribute’’.
2
125
Rule 289. If the will is made to bequeath property and interests to a
person, such person must exist in the time of making the will. And it is
legal to bequeath to an infant en ventre sa mere; (in its mother womb).
And such will is effective if infant comes alive. And if it comes alive and
dies after that in short time the legacy shall be transferred to ITS heirs.
But if it comes from its mother womb without life even for minute
the will becomes null and void in regard of IT.
Rule 290. A will may be made for the benefit of a school or mosque
or an orphan Institution or for any kind of welfare.
Rule 291. A will may be made for a heir of the donor or for other
person. And also it may be made for non-Muslim even if he or she is a
foreigner but it is forbidden to make will for a person who is in enemy
country (dar al-Harb.) 1
Rule 292. A will for more than one person without condition to
prefere one legatee to another, the bequest must he distributed in equal
shares among the legatees. So, if he makes will for his children; sons and
daughters, they shall take equal shares of the bequest regardless their
shares in inheritance rules 2
Rule 293. Will may be made for specific persons whose names shall
be mentioned particularly or they will included in general term or terms.
So, if their names are mentioned in the will they are entitled to receive
the bequest. But if the will is in general term, the distribution of the
bequest depends on the terms the testators uses; so, if he bequeaths to his
family, it means his children and his parents and wife and grand-parents
are included.
And if he bequeaths to his people; the bequest goes to the people of
his language.
And if he makes a will for God-Ward it goes to welfare purpose.
Rule 294. It is preferable that a person makes a will for his relative,
regardless if they are inherit him or not.
And if he makes a will for the close relatives, the distribution of the
bequest must follow the Rule of Inheritance.
1
- Sharayi 2nd. vol. p. 253-255.
- lumma 5th. vol. p.23-32.
2
126
Chapter Twenty Seven
The Bequest
Rule 295. Property or interests that are the subject-matter of the will;
are every thing that can be possessed and advantageous; as, real or
personal property and interests which are not prohibited by the Qur’ãn or
The Prophet or Imam Ali, as, wine, pork and money from smuggling or
Usury. And such property and interests must be possessed by the Testator
actually or in probability in the time he makes the will.
Rule 296. Religious duties may be subject-matter of a will for the
benefits of the testator. He may appoint a person to pay Zakãt on behalf
of him or ask a person to go to Mecca to Haj for the testator’s grace. And
In all such cases he has the right to fix the amount of money for such
purposes.
Rule 297. It is prohibited and forbidden to cut off a heir; son or
daughter or wife from his share in inheritance by will. And if there is
such will it is null and void wholly.
Rule 298. Subject-matter of will may be an appointment of a
guardian or guardians or executor or executrix or curator, who are vested
in power to perform duties according to the interests of a minor or
property.
Rule 299. A testator has the right to bequeath and devise one-third of
his possession and wealth in the time of his death.
And if he makes a will of more than the One-Third of his property
and wealth, the surplus over the one-third depends on the acceptance of
the heirs. And the heirs of the testator may declare their acceptance
before or after the death of the testator.
And a heir who accepts the excess that is over the one-third, must pay
his share of the excess if the other heirs refuse.
128
Rule 300. If bequest is specific; as a bequest of a house, a land, or a
horse, or an amount of money or a debt due from a person named, such
bequest shall be conveyed to the Legatee if it is not exceeding the onethird.
But if the bequest is not specific but it is from all the property of the
testator, it is then payable from all the assets of the testator.
Rule 301. If the bequest is for more than one person and it is exceeds
the one-third of the testator’s wealth, the distribution must begin with the
share of the first person of the legatees and the second and so forth, until
the end of the one-third.
Rule 302. If the amount of the bequest is not limited and it comes in
terms instead of shares or numbers such words and terms have their
meaning in will. So, if he bequeaths a part of his wealth; that means one
tenth. and if he makes it one share (Sahm) that means one-eighth. And if
he makes a will of thing, it means one sixth.
Rule 303. If he makes a will of house or a ship or a box, the things
which are in the house or in the ship or in the box are included in the
bequest of his will even if he does not mention them.
Rule 304. If he makes a will for the religious duties as the payment of
the Fifth or the Zakãt or Haj to Mecca, these duties must be performed
first before any other things and heirs have no right to object even such
duties cost more than the one third.
And such bequest for the religious duties or welfare must be
determined in the rules of the appointment of the guardian or curator. 1
1
- We use here the words bequeath and bequest for movable and immovable
property, since there is no difference between the words for movable or immovable
when we say in Arabic, Ausa and the name is Wasiya.
129
INHERITANCE
Chapter Twenty Eight
Reasons Of Inheritance
Rule 305. Definition: Inheritance is the firmly rooted right of a
person to take property at another’s death on the ground of consanguinity
or a cause. Or, it is the property which a person firmly rooted entitled to
take at another’s death on the ground of consanguinity or a cause. 1
Rule 306. The two grounds of inheritance are:
First. Consanguinity which includes three classes provide that each
class excludes the following class from succession;
(1) The first class is the parents only, the children and the children’s
lineal descendants downwards.
(2) The second class includes; full brothers and full sisters, half
brothers and half sisters. either paternal or maternal and their children
and the children’s descendants downwards.
And the deceased’s grard-parents and their ascendants upwards.
(3) The third class includes; uncles on the father's side and uncles on
the mother’s side, Aunts on the father’s side and aunts on the mother’s
side and their ascendants upwards and their descendants downwards.
Second The cause which includes;
Rule 307. (1) The connection of permanent marriage and the
temporary marriage if the inheritance is stipulated in the contract of the
temporary marriage.
(2) Mutual Backing agreement (walaa dhaman al-jareera); in which
two men make and agreement between them that one of them secure and
back the other on condition that the secured shall say to the protector ‘‘I
am linked with you, that you be with me, supporting me and backing me
1
- al-Lum‘a. eighth vol. pp. 11-13.
130
and you inherit me’’. Or, inheritance may be stipulated mutually and in
either cases inheritance shall not be effective if either of them has a heir
by consanguinity or marriage.
(3) The Obligation to al-Imam. When there is no heir to the deceased
by consanguinity or marriage or mutual backing agreement, his property
shall be given to al-Imam, peace be on him,. And since The Twelfth
Imam is in prospect to come, the deceased’s property shall be divided
among the poor people. 1
Rule 308. Inheritance on the ground of consanguinity is governed by
these fundamental principles:
That an heir makes himself a near of kin by himself is more
meritorious than who makes himself a near of kin by another.
That, who is nearer in degree to the deceased is more meritorious for
the deceased property than that who is in further degree to the deceased
even the heir is female. 2
That, an ascendant or descendant shall take, as an heir, the share of
the predeceased heir whom he represents, if, his right of inheritance is
not superseded by the existence of a nearer heir. 3
That an heir who is related to the deceased on the side of the both of
the parents shall exclude that who is related to the deceased on the side of
the father from the inheritance and from the returning of the remaining of
the assets of the estate of the deceased after the dividing among the
shares. But he shall exclude that who is related to the deceased on the
side of the mother from the returning, of the remaining of the assets of
the estate of the deceased after the dividing (al-rad), only.
That an heir may obtain shares of the inheritance by two sides as if
the heir is the wife of the deceased and she is his cousin too. 4
Comment
1- Inheritance in The Pre-Islamic State Of Paganism had been
governed by customary Law which deprived women from the right of
inheritance and gave the individual the liberty to name his heirs and
especially those with whom he mutually had shaken the right hand .The
1
3
4
2
see inheritance in Lum‘a, Sharyi, Qawaid al-Ahkam.
Faqīh, 4th. vol. pp. 190 Chap 131. Qawã‘id al-Ahkam 2nd. vol. 148.
Lum‘a 8th. pp. 66-67. Kanz vol. 4 p. 10.
Qawã‘id al-Ahkam.
131
mutual backing agreement (waladhaman al-jareera) had been the
fundamental reason and condition for inheritance. And this may be clear
if we understand that the standard of the power in that time, and in this
modern time too, is to protect and to be protected. The compact of
protection had been used among the men with such ceremony; the
contractor put his right hand in his partner right hand and say; your blood
is my blood, your revenge is my revenge, your fighting is my fighting,
and your peace is my peace. You inherit me and I inherit you and you
claim for me and I claim for you and You protect me and I protect You.
And according to this compact the contractor shall inherit one-sixth of his
contractor’s estate. And in the beginning of Islam this cause of
inheritance has been accepted in addition to new causes; Islam and alHijra. Verse number 33 of Sũra Women (al-Nisã’) states ‘‘To every man
we have appointed heirs who will inherit from him; they are his parents
and his relatives. As for those with whom you have entered into
agreement, give them their shares. Allah bears witness to all things’’ 1
It has been cited that The Prophet fraternized The migrators (alMuhajireen) with the supporters (al-Ansaar) when he reached Medina at
622, A.C. Then this right of inheritance by the cause of hijra has been
replaced by the blood relations. Verse 33 of Sura al-Ahzab states:
‘‘……According to The Book of God, they who are related by blood, are
nearer the one to the other than other believers, and than those who have
fled their country for the cause of God; but whatever kindred (friends),
shall be noted down in the book.’’
According to the custom in the time of State of Paganism women and
children had been deprived of the right of inheritance, but Islam had
affirmed women and children the right of inheritance as the men have.
Verse 7 of Surat al-Nisaa (women) states: -„Men should have a portion
of what their parents and kindred leave; and women a portion of what
their parents and kindred leave; whether it be little or much, It has been
determined portion, for them 2
The reason for this verse was; That Aous Bin Thabit died and left his
wife Omkajja with three daughters and his two cousins Suaid and Arfaja
had taken all the deceased’s property. Om kajja had claimed that her
husband died and that, she had been in need for maintenance for herself
and her daughters. And when The Prophet had summoned her husband’s
1
- The translation of the Verses of Qur’ãn is according to the Shiite interpretation
of The Qur’ãn This Verse has been misunderstood by many who tried to translate
The Qur’ãn, and difficulty comes from the word Mawali in Arabic.
2
- ‘for them’ is not declared openly in the verse but it is implied.
132
cousins; Su’aid and Arfaja to pay her portion of the estate of Ous; they
said; ‘‘OH, Apostle Of God (Yã Rasul Allah), her children do not ride a
horse Or fight an enemy? «From this time the right of inheritance, to the
wife and daughters had been determined by this Verse and other
Verses. 1 ’’
1
- Kanz al-Irfan Fi Figh al-Qur’ãn 4th vol. pp. 3-8- AL-sarayir paper 197 a b.
133
Chapter Twenty Nine
The Conditions Of Inheritance
Rule 309. The existence of the right of inheritance depends on three
conditions;
1- That the death of the deceased is affirmed as actual death or
presumptive death as a long continued unheard from absence or
apostatizing from Islam.
2- That the heir is possessing natural life, or presumptive life as if it is
in its mother womb. And he or she is not deprived of the right of
inheritance by cause of unbelieving or causing the death of the deceased
intently.
3- That the establishment of the heir’s right of inheritance stands on
clear and known sides and degree of relation to the deceased. 1
Rule 310. All the Muslims have the right to inherit each other even if
they are from different sects in Islam. And the right of inheritance shall
be governed by the rules of the deceased Sect in Islam. And The Muslim
has the right to inherit a non-Muslim, but non-Muslim has no right to
inherit a Muslim. So, if a non-Muslim dies and he has a Muslim heir ,the
Muslim heir shall inherit all his estate even the deceased has a closer
non-Muslim kindred. And a person is Muslim if either of his parent is
Muslim and even he is a child or he or she still in it’s mother womb. 2
Rule 311. A child en ventre sa mere is entitled to inherit if it is born
alive. And if such child is born dead it shall have no existence among the
heirs. But if it is born with life and the death occurs after its birth his
portion of inheritance shall be transferred to his heirs.
And if a heir-among others-is a child who still lies in mother womb
1
- Lum‘a 8th. vol. pp. 30. al-Ahkam art. 582.
- Lum‘a 8th. vol. pp. 27. Kawid al-Ahkam 2nd. vol. pp. 142. al-Fusul art. 242.
2
134
(en ventre sa mere) the other heirs may take their portions from the
inherited property on condition that they should set apart from the
inherited estate a portion for two male heirs for the child (en ventre sa
mere,.). After the birth of the child or the children, if they are more than
one, the remain of the reserved portion, if there is, shall be divided
among the heirs of the deceased and the born child or children included. 1
And if the reserved portion is less than the born children shares-if they
are more than two male children-their portion should be completed from
the other heirs portions in proportion to every one share.2
And the child en ventre sa mere shall supersede all the heirs in the
next degree until his birth, and if he is alive he is the only heir if there is
no other in his degree. 3
Rule 312. If the non-Muslim deceased has no Muslim heir, his
property may be distributed among his non-Muslim heirs.
Rule 313. If the deceased is Muslim and has a non-Muslim heir who
converts to Islam before the dividing of the property of the deceased he
has the right to share the Muslim heirs. But if his converting comes after
the dividing of the property he has no right of succession of the deceased.
Rule 314. The person who causes the death of the deceased in a state
of felonious homicide is excluded from succession of the deceased. But if
the act that causes the death of the deceased is involuntary manslaughter
or excusable homicide or justifiable homicide, the killer shall not be
excluded from the succession of the estate of the deceased but he must be
excluded from the amount of the blood money, if any.
Rule 315. The amount of the blood money that may be paid to the
relatives of the victim shall be considered as a part of his property for the
purpose of the payment of his funeral expenses, his debts, his legacy, and
other legal obligations. And the remain of it, if any, shall be divided
among the heirs of the victim deceased with the exclusion of the killer
and brothers on side of the mother.
1
- Lum‘a 8th vol. pp. 47.
- Lum‘aa 8th vol. pp. 48, see foot note no.
3
- al-Waseela 2nd, vol. pp. 398-400 Fusul, articles, 140, 241 al-Lum‘a 8th pp 3137 46-48 al-Qawã‘id, 2nd vol. pp. 143.
2
135
Rule 316. An excluded murderer heir shall not supersede other heir
from the succession. So if a person kills his father and there is no heir
except the killer’s son, the son shall inherit his grandfather, the victim. 1
Rule 317. When a person is away from his ordinary domicile in
unknown place for unknown reason without any kind of connection with
his family or friends or relatives or any concerned person inspite of going
in search for him, He is a missing person.
Rule 318. 1- A missing person shall be considered alive person till a
judge decides his death by an order after looking for him in places or
cities or countries he or she supposed to be found in.
2- After the lapse of four years from the time when the person was
last known to be alive, the judge may decide the presumptive death of
such person.
And after the issuing of the order of the presumptive death of the
missing person by the judge, the person becomes dead and his property
shall be distributed among his or her heirs.
3- The decision of the presumptive death of a missing person may be
given by a judge on petition by an interested person; a wife, a child, or
other heirs. And if there is no claim by any concerned one, the missing
person shall be presumed alive.
But, at any rate, the missing person shall be presumed dead after a
period of one hundred years after the date of his birth. 2
Rule 319. The claims on the assets and property of a deceased should
be given the preference as follows;
First: The cloth of the coffin and other funeral expenses.
Second: The, debts which become immediately due by the death and
if assets is insufficient the debts must abate proportionally. And if there is
no debt there is no question.
Third: The legacy, if any.
Forth: Then the remaining amount of the assets of a deceased shall be
divided among his or her heirs. 3
1
- al-Waseela 2nd, vol. pp. 398-400. Fusul, articles, 140, 241. al-Lum‘a 8th vol. pp.
31-37 46-48 al-Qawã‘id, 2nd. vol. pp. 143.
2
- Waseela 2nd. vol. pp. 401 al-Fusul art 278 pp. 117 and foot-note, 2 Minhaj alSaliheen 2nd. vol. pp. 310 rule 10.
3
- Sarayir paper 197, pp. a.
136
Chapter Thirty
The Three Groups Of Heirs And Their Shares
1- The Allotted Portions
Rule 320. 1- The allotted portions and to whom they do belong are:The Half. The half is determined;
a- For the husband if there is no child or child’s child
downwards.
b- For the daughter if she is the only child of her degree.
c- For the full sister and if there is no full sister for the
sister on the side of the father.
Rule 321. 2- The forth; the forth is fixed;
a- for the husband if there is child downwards.
b- for the wife if there is no child or child’s downwards.
Rule 322. 3- The eighth. For the wife if there is a child downwards.
4- The Two-thirds; the two-thirds are fixed for;
a- two daughters or more.
b- two full sisters or more and if there are no full sisters,
for the two sisters or more on the side of the father.
Rule 323. 5- The one-third. The one third is fixed;
a- For mother if she is not superseded from it by a child
downwards or by two qualified deceased’s brother and
two sisters or four sisters or more provided that the
deceased father is alive.
b- For the two or more brothers or sisters on the side of
the mother.
Rule 324. 6- The sixth is fixed:a- For each of the two parents if the deceased has a child
138
downwards.
b- For the mother if she is superseded from the one-third
by the two brothers as mentioned in Rule. 323
c- For one brother or sister-if there is no child-on the
side of the mother. 1
Rule 325. Since the essential rule in Islam Law that the heirs by
consanguinity are of three classes and each class excludes the following
class from succession, therefore the residuary estate, if any, after the
allotted portions must be returned and divided among the heirs of the
allotted portion in proportion to their shares, with the exception of the
husband, the wife and the mother if she is superseded from the one-third
by two brothers or four sisters. or one brother and two sisters. 2
Rule 326. If the shares of the heirs are more than the shares of the
estate, as if the deceased left, a husband ,one-fourth, two parents; onesixth for the mother and one-sixth for father and a daughter one half.
These portions are more than the shares of the unit of the estate which is
6/6 while the shares of the heirs are ¼ and ½ and 1/6 and 1/6 of which
total is 13/12, the share of the daughter shall be less than the half, 5/12.
In such case and all the cases in which the shares of the heirs exceeds
the shares of the unit of the estate the reduction, the Awl’ shall be taken
from the portion of the daughter, the two daughters, the father and who
comes on the side of the father. 3
1
- Mukhtasar al-Nafi pp. 265-266.
- Mukhtasar pp. 265-266. Qawã‘id al-Ahkam 2nd. vol. pp. 149.
3
- Mukh pp. 266. al-kawaid 2. vol. pp. 149.
2
139
Chapter Thirty One
The First Group’s Heirs and Their Different Situations
A- The Two Parents
Rule 327. 1- If the heir is the father only without the deceased’s child
or mother or spouse, he, the father receives the whole estate of his
deceased child.
2- And if the mother is the only heir without a child or father or
spouse of the deceased, she receives the whole estate. And she receives
the one third as an allotted portion and the residue by kinship; lineal
consanguinity. 1
3- If the heirs are only the two parents without any child downwards
or a spouse, the mother receives the one-third if there are no brothers or
sisters of the deceased but, if there are two brothers or four sisters she
receives the one sixth and father receives the residue after the one third or
the one-sixth.
B- A spouse with the Two Parents.
Rule 328. 1- If a spouse comes together with the father, the spouse
receives his or her share; one half for husband or one-fourth for wife and
the residue belongs to the father by kinship.
2- And if a spouse shares the mother only, the spouse receives the
one-half or the one fourth and the mother receives the residue; the onethird or one-sixth as an allotted portion and the remaining by kinship; the
lineal con-sanguinity.
3- If a spouse shares the two parents, the spouse receives his or her
share one-half For husband or one-fourth For wife and the mother the
one-third if she is not superseded by brothers or sisters and one sixth if
1
- Mukh pp. 267.
140
she is. And the father receives the residue. 1
C- The Children
Rule 329. Definition;
1- A child includes the male and the female and includes too, the
grand children or child who descends from daughter or son downwards.
2- A nearer child male or female or from male or female supersedes
the further child from the right of inheritance. So if the deceased leaves a
daughter and a son’s son, then the daughter is the only heir and she
receives the whole estate of her parent deceased and she supersedes the
son’s son.
And if a deceased leaves a daughter’s daughter and a full brother, the
daughter’s daughter represents her mother and supersedes her parent’s
brother and receives the whole estate of her grand parents’ estate. 2
3- The child receives, as it is mentioned before, the portion of the
predeceased heir whom he, the child, represents.
Rule 330. 1- If a son downwards is the only heir he receives the
whole estate of his deceased parent.
2- If the heirs are only sons who are full brothers, they
receive the whole estate in equal portions among them.
3- If the heir is only one daughter or daughter’s child
downwards she receives the whole estate, the on-third as an allotted
portion and the residue by the cause of kinship; lineal consanguinity.
And if they are more than one daughter or daughter’s daughter
downwards, of the same degree they receive the two- thirds as an allotted
portion and the residue by consanguinity. And they divide it in equal
portions among them.
4- If the heirs are full brothers and sisters without a
parent or a spouse, they receive the whole estate of their deceased parent
provided that the male receives a portion of two females. 3
D- Children And Parents
Rule 331. If the heirs are a parent or the two parents together with the
children. A parent receives his one-sixth and if they are the both parents
each one receives the one-sixth and the children receive the residue in
equal portions if they are only male or a male receives the portion of two
1
- Mukhtasar, pp. 267. Minhaj al-Saliheen 2nd. vol. pp. 286.
- al-Sarayir paper 199,1,2.
3
- Sharayi 4th vol. pp. 22-23, Minhaj, 2nd. vol. pp. 286.
2
141
female if they are, males and females. 1
E- Children and parents and A Spouse
Rule 332. If the heirs are parent or the two parents with the children
and a spouse, each of the parent receives the one-sixth and if the spouse
is a husband he receives the one-fourth or the one-eighth if the spouse is
a wife And the residue shall be received by the children in equal portion
if they are only males or the male receives the portion of two females if
they, are males and females.
F- The Two parents With a Daughter
Rule 333. If there is a daughter heir with the two parents heirs, each
parent receives the one-sixth and the daughter receives the one-half and
the residue shall be returned to the three heirs; the daughter and the two
parents in proportion to their shares.
But if the mother is superseded by two or more brothers or sisters the
residue shall be returned only to the father and the daughter in proportion
to their shares. 2
Rule 334. If two parents and a husband share a daughter. Each of the
parents receives the one-sixth, the husband receives the fourth and the
residue shall belong to the daughter. 3
G- Two parents with A Daughter And Wife
Rule 335. If the heirs are the two parents, and the daughter, each one
of the parents receives the one-sixth, the wife receives the one-eighth and
the daughter receives the one-half and the residue shall be returned to the
two parents and the daughter but not to the wife. And if the mother is
superseded by brothers or sisters the returning of the residue belongs to
the father and the daughter only. 4
H- Two Parents With Two Daughters And A Wife
Rule 336. If the heirs are the two parents and two daughters or more
and a wife. Each of the two parents receives the one-sixth and the wife
1
3
4
2
142
Sharayi 4th. vol. pp. 23.
Sharayi 4th. vol. pp. 23.
Sharayi 4th. pp.23.
Sharayi 4th. vol. pp. 23, Minhaj 2nd. vol. pp. 287.
receives the one eighth and the two daughters or more receive the residue
which becomes less than their portion, the two thirds.
I- One Parent With a Daughter Or Daughters And Spouse
Rule 337. 1- If there are a parent and a daughter, the parent receives
the one sixth, the daughter receives the one-half and the residue shall be
returned to the parent and the daughter in proportion to their shares.
2- And if there is a spouse with the parent and the
daughter, the parent receives the one-sixth the spouse receives the onefourth if he is a husband and the one-eighth if she is a wife and the
daughter receives the one- half and the residue after their shares sail be
returned to the parent and the daughter but not to the spouse.
3- And if the heirs are a parent and two or more daughters,
the parent receives the one-sixth, the two or more daughters receive the
two-thirds the residue belongs to parent and the daughters in proportion
to their portion.
4- And if the heirs are a Parent and two or more daughters
and a spouse, the parent receives his or her share the one-sixth, the
spouse receives the one-forth if he is a husband and the two daughters or
more receive the residue which is less than the two thirds and this is
which we call «al-Awl» the reduction of the portion. But if the spouse is
a wife, then the parent receives the one-sixth, the wife receives the oneeighth and two daughters receive the two-thirds and the residue shall be
divided among the parent and daughters but not to the wife. 1
J- The Eldest Son’s Privilege
Rule 338. It is preferred that the eldest son of the deceased shall
receive his father’s movable things which are connected to his personal
use and indicate his personal privilege such as the sword, if any ,the
books, his rings, fountain pen and suit case and so on, provided that the
deceased have left more than that for his heirs and that the eldest son
downwards deserves this privilege. 2
K- Helping For Grandparents
Rule 339. The grandparents of the deceased do not share the
deceased’s children downwards or his parents, therefore it is preferable
that the deceased’s parents share their parents in what they receive. So, if
1
- al-Mukhtasar pp. 267. Minhaj 2nd. pp. 287 rule 6.
- al-Mukhtasar pp. 268. Minhaj 289 rule 9.
2
143
they receive the maximum of their shares as if the father of the deceased
receives the two thirds and the mother receives the one third-when they
are the only heirs, they may give their parents the one-sixth of their
portions. 1
Rule 340. In the time of the distribution of the estate of the deceased
among the heirs, it is the duty of the heirs to give help to relatives and the
poor and those who are in need.
Comment
1- The essential End of Islam is to raise mankind without distinction
of race, colour, language or sex. And this religion, Islam, has abolished
the old custom in which the woman had been deprived of her rights as a
human being equal to the man. She was in the pre-Islam community a
sign of shame and had been buried alive without committing any ill. The
backwardness of the woman position in the pre-Islamic community is
described clearly in the Qur’ãn. In Verses 58, 59 of Surah Nahl a clear
description of the degraded social position of the woman in the preIslamic community «For when the birth of a daughter is announced to
any one of them, dark shadows settle on his face and he is sad:» (59):
«He hideth himself from the people because of the ill tidings; shall he
keep it with disgrace or bury it in the dust? 2 What ill their judgment
makes:»
The social reconstruction of the human community has been the
leading feature of the Teachings of Islam. And consequently, the Shī‘ite
School, which is the humanitarian interpretation of Islam, has affirmed
this End of Islam and affirmed the equality in rights and obligations
between the man and the woman, taking into consideration, their nature
and their position in the human society.
2- The woman’s right of inheritance had been decided in al-Qur’ãn in
Verse 7 of Surat Woman «al-Nisã’» and this right is always equal to the
man right in degree but not always in the amount. It has been affirmed as
a «determined portion»; and the Shī‘ite School is the School in Islam
1
- al-Mukh 268 Minhaj 290.
- Tareekh al-Faqh al-Jafari pp. 59. J. M. RODWELL translation of Qur’ãn the last
part of the verse has been translated as a question while it is exclamatory sentence
See page 2-3 of the in heritance paper.
2
144
which asserted this determination of the woman’s right of inheritance
equally to the right of the man without any distinction. So, if a deceased
leaves his daughter and his brother only, the daughter is the only heir and
she receives a half of her father estate as an allotted portion and the
residue by the kinship; by the lineal consanguinity and the brother shall
not receive any thing because the brother is from the second class of heirs
who always is superseded by any one of the first group male or female,
the direct child or the child’s child downwards.
And the children’s children of a deceased shall receive their parents
portion if they are the only heir of the children and every child receives
the portion of the pre-deceased heir he or she represents. And according
to this firmed rule the female’s child has the same rights as the male’s
child in his degree. So if a deceased leaves, only as heirs, a son’s son and
a daughter’s daughter they, these two grand children, receive the whole
estate of their deceased grand parent. The son’s son receives his father
portion which is twice as much as a female portion, the daughter ,and the
daughters daughter receives her deceased mother’s portion. But the case
is on the contrary, when the deceased leaves a son’s daughter and a
daughter’s son as the only heirs of his or her estate, the son’s daughter
receives her father’s portion, the two thirds and the daughter’s son
receives his mother’s share, the I- third, because the portions are limited
according to the shares of the direct children. And if the pre-deceased
heir leaves more than one child they distribute his share among them.
According to this basic rule the right of the agnates with first class of
the heirs is abolished in Ja‘fari Rules and it is confirmed that any one of
class of heirs superseded all the following class without any distinction if
the remover, the nearer heir, is male or female.
2- Other schools in Islam; The Hanafi, Hanbali, Shafii and the Maliki
have another explanation for the word child and the right of the female if
she is in the same degree or nearer than the male. There are deferent
points of view concerning the right of inheritance for sixteen persons and
these sixteen persons are; daughter’s children, the sisters’ children, the
brothers’ children on the side of the mother, the paternal brothers’
daughters, the paternal aunt and her children, the maternal aunt and her
children; the maternal uncle and his children; the paternal uncle on the
side of the mother and his children, the daughters of paternal uncle and
their children, the maternal grandfather and the maternal grandmother.
All these persons have the right of inheritance in their groups according
to rules of inheritance in Shī‘ite School, and these rules stand on
statement quoted from Imam Ali who was of opinion that «The paternal
145
uncle is as the father and the maternal aunt is as the mother» .And this
has been asserted by the Verse 11 of Surah al-Nisã «Women» which
states; «With regard to your children, God commended you to give the
male the portion of two females....». This Verse declares firmly the child
right of inheritance from his parents and the daughter is a child of the
daughter’s parent as it has been proved by the consensus of the Muslims
that Jesus The Son of Maryam, The Virgin, Peace be on Them. one of
Adams children while He is the Son of Maryam and He has no father. In
addition to that it had been recited from The Prophet Peace be On him,
that he said «These My Two Sons Are the Lords of the Youths of The
Paradise», He, the Prophet called them his children while they are his
Daughter’s Fatima children. And Allah said in his holy Book al-Qur’ãn
«According to the Book of God, they who are related by blood, are
nearer the one to the other than other believers …....» 1 And «Men ought
to have a part of what their parents and kindred leave; and women a part
of what their parents and kindred leave: whether it be little or much, it is
a determined portion for them» 2 . So, there is no any distinction between
man and woman and there is no any preference of man to a woman or
son to a daughter. And if a deceased leaves his brother and his daughter’s
daughter; his grand daughter receives the whole estate and no thing shall
belongs to his brother» al-Asaba».
The conclusion of the Shī‘ite School, Ithna Ashary School, is that the
word child «walad pl. Awlãd» includes the male and female and includes
the children of the son and the children of the daughter downwards. And
that the woman has a determined right of inheritance as the man and that
the inheritance is a grace of God in His Book al-Qur’ãn for his believers
and not a gift of man.
4- The Annulment of al-Taseeb.
It has been stated in Rule 308 in these papers that «An heir make
himself or herself a nearer of kin by him or herself is more meritorious
than a heir makes himself or herself a nearer of kin by another» and
«that, who, is nearer in degree to the deceased is more meritorious for the
deceased’s property than who is in further degree without distinction if
the heir is male or female’’. This point of view distinguishes the shift
school in the rules of inheritance from the other Schools in Islam. And
reasons has been put forward for and against the right of Asaba in
inheritance. But Shī‘ite School Scholars found the stand for their rule in
the Verses Of The Qur’ãn and the Traditions of the Prophet That are
1
- Verse 33 Sura Ahzab.
- Verse 7 Sura Nisa.
2
146
revealed to them by the Infallible Twelve Imams.
It is necessary here to elucidate that the legal reasoning power of
Imam Ali’s mind, which has been and approved by every statement he
said, was the source of which the Imams and the Shī‘ite Scholars looked
and still look as the abundant evidences that support their explanation
and understanding of the verses of the Qur’ãn and the Traditions
«Ahãdīth, and the Statements of Imam Ali and other Imams. As a result
of careful scrutinizing and thoroughly examination into the traditions and
the Imams statements by the scholars of Shī‘ite School it has been found
that evidence which has been said to prove the contrary was not more
than false and forged statements quoted and recited by persons who have
been known as unreliable and dishonest persons. 1
And the rule of the annulment of the agnate heir with the first class
group has a good effect in practice as we shall see in the following
paragraphs.
5- The Reduction of the Amount of the Portion and whose portion is
reduced. This rule stands on the consensus of the Scholars of the Shift
School and on what is revealed by the Infallible Imams. It has been
recited from al-Bãqir(a.s.) And al-Imam al-Sãdiq, Peace be on Them
«That the allotted portions are not reducible.»
It is said that the reason is clear when we realized the difference
between the portions of the parents and the spouses which are differing
according to the existence of a child downwards or not, while the portion
of the daughter or daughters or sisters has only one amount which is the
half for daughter or the two-thirds for the daughters or sisters.
The reduction becomes necessary when a spouse shares the other
heirs the two parents and the daughter or the two or more daughters. And
the reducible portions are; the portion of the daughter or two or more
daughters and full sister or sisters and the sister or sisters on the side of
the father. So, if the heirs are; a husband and two full sisters, the husband
receives the one-half and the two sisters the two-thirds. It is clear that the
shares of the heirs are ½ for the husband and 2/3 for the sisters of which
the total exceeds the amount of the estate which is 1/1 There fore the
portion of the sisters should be reduce from 2/3 to ½ and the two sisters
shall receive the residue after the portion of the husband. 2
1
- Adhwaa Ala al-Sunna al-Muhammadiya Abo Rayya pp. 91-98 Tareekh al-Figh alJafari pp. 135-140.
al-Mutta pp. 90-109. Kanz al-Irfan 4th vol. pp. 24. Sharayi 4th vol. 211.
2
- Kanz al-Irfan 4th vol. pp. 24. Shara7i 4th vol. pp. 21.
147
6- The principle of equality in rights of inheritance in Shī‘ite School
of Islam for the female as well as male and the annulment of agnates
right to supersede the nearer group «annulment of Taseeb» has been
under consideration with respect by many learned scholars and people in
practice and in the legislation.
The equality in right of inheritance between the female and the male
got its place in legislation After the Fourteenth July Revolution in Iraq
under the leadership of The Late Abdul KAREEM KAASIM in the
Personal Status Law No. 188 For the Year 1959. In this Personal Status
Law, it was provided in clear words that the share of female in
inheritance is the same of the share of the male and every provision
against this rule is null and void. And after this law all the distribution
documents «Qassãm al-Shar‘ī» gave the male equal share to the female.
And the rule that gives the male a portion of two female had been
abolished.
The Late Leader Abdul KAREEM KASIM had said in defence of
this new rule that the Verse in Qur’ãn which says; «yũsīkum» is not an
order but it is an advise to give the male two portion of two females and
this advise may be taken according to the equal situation of the woman to
the man in our modern civilization. The origin of this doctrine goes far to
those who had said that Fatimat al-Zahraa, the infallible Daughter of The
Prophet Muhammad and Zainab the Daghter of al-Hussain pesce be on
them are not less than the male in their dignity and in their rights, and
with them there are many women in Islam history who have been
fighting beside Imam Ali and support Islam in the hard early years as
Kadija peace be on her, the wife and the helper of the Prophet
Muhammad. So if we decide the equality in the amount of portion of the
female and male we may say that we give those women and other their
right which they always deserve.
7- In practice the rule of the annulment; of the superseding of the
agnate to the nearer group, we may find a number of wealthy men who
have only one or more daughters and brother from the other school try to
convert to the Shift sect to protect their daughter or daughters from being
shared by their brothers or other relatives and the Case of the late Sami
Saad al-Deen is a leading case of this practice.
148
Chapter Thirty Two
Second Class Of The Heirs
The Brothers, Sisters And Grandparents
When The second Class takes place in inheritance
Rule 341. If there is no heir of the first class of heirs, a child downwards or a parent, the heirs of the second class; the brothers, sisters
down-wards and the grandparents upwards take the place to inherit the
deceased. 1
A- A full brother or brothers
Rule 342. 1- A full brother only, as a heir, receives the whole estate
of his deceased brother or sister.
2- If they are two or more full brothers they receives the whole estate
in equal portion among them,.
B- A full sister or sisters.
Rule 343. 1- A full sister only receives the whole estate; the half as
an allotted portion and the other half by the kinship.
2- And if they are two or more full sisters heirs only they receive the
whole estate of the deceased; the thirds as an allotted pertion and the
other-one-third, the residue, by kinship, in equal portion among them.
C- Full brothers and sisters together
Rule 344. If the heir of a deceased is a brother or are brothers with
full sister or sisters, they receive the whole estate provided that the male
receives the portion of two females.
1
- Minhaj al-Saliheen 2nd vol. pp. 291.
150
D- Maternal brother or brothers alone or with Maternal sister or sisters.
Rule 345. 1- A brother on the side of the mother to the deceased
receives the whole estate, the one sixth as an allotted portion and the
residue by the kinship.
2- Two maternal brothers or more, or two maternal sisters or more, or
one maternal brother and one sister, or one maternal brother with two or
more maternal sisters, or two maternal brothers with two or more
maternal sisters, they receive the whole estate; the one-third as an allotted
portion and the residue by kinship in equal portion among them
regardless their sex male or female.
3- A maternal sister receives the whole estate the sixth as an allotted
portion and the other residue by kinship.
And if the heirs are two or more maternal sisters without any other
heir they receive the whole estate, one-third as an allotted portion and the
residue by kinship in equal portions among them.
E- Paternal brother or brothers and/or paternal sister or sisters
Rule 346. 1- A brother or sister on the side of the father do not inherit
if there is any full brother or sister. But if there is no full brother or sister
the paternal brother or sister has the right to inherit the deceased.
2- A paternal brother or more receive the whole estate by kinship in
equal portion among them.
3- A paternal sister alone receives the whole estate, the one half as an
allotted portion and the residue by the kinship.
4- Two or more paternal sisters receive the whole estate the two
thirds as an allotted portion and residue by kinship.
5- If one or two or more paternal brothers come together with a
paternal sister or more, they receive the whole estate by the kinship
provided that the male receives a portion of two females.
F- Full brothers with maternal brothers
(the word brothers here almost means brothers and sisters downwards)
Rule 347. 1- If full brother or brothers come together with a maternal
brother or maternal sister, the maternal brother or sister receives the one
sixth and the residue shall belong to the full brothers and/or sisters in
equal portions among the full if they are only sisters or brothers and if
they are brothers and sister or more the male receives the portion of two
females.
2- If the maternal brothers or/ and sisters come together with the full
151
brothers or/ and sisters the maternal heirs receive the one-third in equal
portions among them regardless the sex; male or female and the residue
belongs to the full heirs provided the male receives the portion of two
female.
G- Paternal brothers or/and sisters with maternal brothers or/and sisters.
Rule 348. 1- If the paternal brothers or/and sisters come together with
the maternal brothers or/and sisters; the one paternal brother or sister
receives the one-sixth and the one-third if the brothers or/and sisters are
more than one and the residue after the one-sixth or the one-third, belong
to the paternal brothers or/and sisters, provided that the maternal party
receive the one third in equal portion regardless their sex male or female,
but the paternal party, male receives the portion of two females.
H- A spouse together with brothers or/and sisters.
Rule 349. 1- A spouse shares a full brother or brothers ,the spouse
receives one-half if husband or one-fourth if wife and the residue belongs
to the brother or the brothers in equal portion among them.
2- A spouse shares a full sister or sisters, the spouse receives onehalf, if husband, or one-fourth, if wife, and the residue belongs to the one
sister, but if there are more sisters, they receive also the residue which is
less than their portion if the spouse is husband,.
3- A spouse shares full brothers and sisters, the spouse receives his or
her share; the half or the fourth and the full brothers and sisters receive
the residue provided the male receives the portion of two females.
4- If a spouse comes together with a paternal brother or brothers
with-out full brothers or maternal brothers, the spouse receives his or her,
portion, the one-half or the one-fourth and the residue belongs to the one
brother wholly or to the brothers in equal portions among them.
5- A spouse shares a paternal sister, the spouse receives the half, if he
is a husband or the fourth if she is a wife and the residue after the half of
the husband belongs to the sister as an allotted portion. But after the
fourth of the wife the sister receives the half as an allotted portion and the
residue after her share and the wife’s by the kinship.
6- A wife shares the two or more sisters the wife receives the onefourth and the sisters receives the two thirds as an allotted portion and the
residue after, the fourth and the two-thirds, by kinship.
7- A husband shares two or more paternal sisters, the husband
receives the half, and the residue after the husband’s half belong to the
sisters which is less than their portions, the two-thirds because of
152
reduction (Aul).
8- A spouse comes together with maternal brothers or/and sisters, the
spouse receives his or her share; the one-half or the one-fourth and the
one maternal brother or sister receives the one sixth as an allotted portion
and the residue by kinship. But if there are more maternal brothers or/and
sisters, they receive the one-third as an allotted portion and the residue by
kinship in equal portions among them regardless their sex male or
female.
9- If there is no full brother or sister the paternal brothers or/and
sisters take their place and all rules that govern the right of the full
brothers or/and sisters shall govern the right of the paternal brothers
or/and sisters without any distinction.
10- The word brother and sister means brother and sister downwards.
1- The Grand Parents.
Rule 150. 1- A grand parent alone, as a heir, receives the whole estate.
2- The paternal two grand parents, alone as heirs, receive the whole
estate of the deceased provided that the male receives the portion of two
females.
3- The maternal two grand parents, alone as heirs, receive the whole
estate in equal portions among the male and the female.
4- If the two paternal grand parents come together with the maternal
two grand parents; the maternal grand parent or parents receive the onethird in equal portion if they are more than one, and the paternal grand
parent or parents receive the two-thirds provided that the male receives
the portion of two females. 1
J- Grand parents together with brothers or/and sisters.
Rule 151. If the grand-parents conies together with the brothers
or/and sisters downwards the grand parent or parents up-wards shall be
considered as a brother if he is grand-father or as mother if a grandmother provided that they are not superseded by the full brothers or/and
sisters. And a grand parent may be considered full brother or sister if he
comes on the both sides of the parents or a paternal brother or sister if he
or she comes on the side of the father or a maternal brother or sister if he
or she comes on the side of the mothers of the deceased. And the grandparent receives the share of the brother or sister, he or she, connected
1
- Sharayi 4th vol. pp. 27.
153
with. 1
Rule 352. 1- Two grand parents or one on the side of the mother with
maternal brothers or/and sisters. They all receive the whole estate in
equal portions among them.
1- Two grand-parents or one on the side of the mother with brothers.
or/and sisters on the side of the both parents to the deceased or, if there
is no any full brother or sister, with paternal brothers or sisters, the
grand-parents receive the one third in equal portions between them and
the two thirds belong to the full or paternal brothers or/and sisters
provided that the male receives the portion of two females.
3- Two grand-parents or one on the side of the father together with a
full brother or sister or more full brothers or/and sisters, or, paternal
brother or sister or more brothers and/or sisters-if there is no full brother
or sister the all heirs receive the whole estate provided that the male
receives the portion of two females.
4- One or two paternal grand-parents together with maternal grand
parent or parents or/and maternal brother so/and sisters; those who come
on the side of the mother receive one-sixth, if the maternal heir is only
one or the one-thirI if there are more than one; two grand-parents or one
of them with a brother or /and sister, in equal portions among them. And
the residue belongs to those who come on the side of the father; two
grand-parents or one of them or brother or brothers or/and sisters on the
side of the father if there are no full brothers or/and sister, provided that
the male receives the portion of two females.
K- Grand grand parents or/and Children of brothers and sisters
Rule 353. 1- The grand-parent supersedes the grand-grand-parent.
And if there is no grand-parent the grand-grand-parent takes his or her
place regardless the side of his or her relation to the deceased. So, a
grand-grand-parent alone as a heir receives the whole estate of the
deceased. And those who come on the side of the mother receive the onesixth if the grand-grand-parent is one with those who come on the side of
the father and the one-third if there are two or more grand-grand-parents
on the side of the mother of the deceased in equal portions among them.
But if they are on the side of the father the male of them receives the
portion of two females.
2- Sisters’ and/or brothers’ children downwards represent their pre1
- Minhaj 2nd vol. 294-5.
154
deceased heir, if there is no any brother or sister, and a child receives the
share of the pre-deceased he, or she, represents. And the rules of
inheritance of the brothers’ and sisters’ govern their children right in
inheritance.
3- If the children of brothers or/and sisters together with the grandparents or parent are on the side of the father without other heir, they
receive the whole estate provided that the male receives the portion of
two females. But if they are all on the side of the mother they receive the
whole estate in equal portions among them.
4- Children and parent or grand parents or grand-grand-parents if they
come from different sides, every party of such heirs shall be govern by
the rules that govern the side he or she comes from.
L- A spouse with grand grand parents or/and brothers’ or/and sisters’
children.
Rule 354. 1- A spouse with a child of full brother or sister, or, of a
brother or sister on the side of the father, the spouse receives his or her
share, half or fourth, and the child receives the residue if he is male, or
the half as an allotted portion and the residue by kinship.
And if there are more than a child they receive the residue provided
that the male receives to portion of two females.
And the same rule is applied to the case if there is a grand-grandparent or more on the side of the father with the spouse.
And in a case of a husband with two females the two females or more
receive less than their portion which is two thirds, because of the
reduction (Aul).
2- A spouse with a child or more of brother or/and sisters on the side.
of the mother and grand-parent or parents or grand-grand-parent or
grand-grand-parents on the side of the mother without other heir. The
spouse receives his or her share, the half or the fourth, and the residue
belongs to the child or children of the brothers or/and sisters or/and the
grand-grand-parent or parents in equal portion among them.
3- And if the spouse comes together with the children of the brothers
or/and sisters with the grand-grand-parents of both sides; The spouse
receives his or her portion, the half or the fourth, and those children of
brothers or sisters or the grand-grand-parent who come on the side of the
mother shall receive the one-sixth if he or she one person, or the one third
if more than one in equal portions among them. And the children of
brothers or/and sisters or grand-grand-parents who come on the side of
the both parents or, if none, on the side of the father receive the residue
155
provided that the male receives the portion of two females. And if they
are only two or more females they receive less than their portion if the
spouse is a husband because of reduction (al-Aul).
156
chapter Thirty Three
The Third Class Of Heirs
The Paternal And Maternal Uncles And Aunts
A- Basic principle
Rule 355. Paternal and maternal uncles and aunts subrogate and
succeed the second class of heirs to inherit the deceased if there is no any
heir from the First Class; the parents and the children downwards of the
deceased, and if there is no any heir from the second class; the brothers
or/and sisters or their children downwards or/and the grand parents
upwards. And the nearer heir of this group supersedes the further with
only one exception that the son of full uncle supersedes the uncle who is
on the side of the father only, but if there is a maternal uncle or aunt or
paternal uncle then the son of the full uncle is superseded from the right
of inheritance.
B- Paternal uncles and aunts
Rule 356. 1- A paternal uncle alone as a heir receives the whole estate.
2- Two or more paternal uncles only receive the whole estate in equal
portions among them.
3- A paternal aunt alone receives the whole estate.
4- Two or more paternal aunts without uncles, receive the whole
estate in equal portion among them.
5- A paternal uncle or more with paternal aunt or more receive the
whole eastate provided the male receives a portion of tow females.
6- In all these cases mentioned here it is presumed that they are of the
same side.
Rule 357. 1- An uncle who is brother to the deceased’s father is a full
uncle and this uncle supersedes the uncle on the side of the father only to
the deceased's father. But the uncle on the side of the father only inherits
157
if there is no full uncle. And this rule applies to the aunt too.
2- If full uncle or uncles or/and aunts come together with uncle or
uncles or/ar4 aunts on the side of the mother to the deceased’s father, The
paternal uncle on the side of the mother receives the one sixth, if he or
she is one, or the one third if they are two or more in equal portions
among them regardless their sex males or females. And the residue after
the one-sixth or one third belongs to the paternal full uncle or/and aunt
or, if there is no full paternal uncle the residue belongs to the paternal
uncles or/and aunts on the side of the father to the deceased’s father
provided that the male receives the portion of two females.
C- Maternal Uncles or/and Aunts
Rule 358. 1- A maternal uncle or aunt alone on any side receives the
whole estate.
2- Two or more maternal uncles on the same side receive the whole
estate in equal portions among them.
3- Two or more maternal aunts on the same side receive the whole
estate in equal portions among them.
4- One or two or more maternal uncles or/and maternal aunts on the
same side to the deceased's mother receive the whole estate in equal
portions among them regardless the sex, male or female.
5- If one or more maternal uncles or/and one or more maternal aunts
come together on different side to the deceased’s mother as heirs, then
those who come on the side of the mother receive the one sixth, if he or
she is one only, or the one third if they are two or more in equal portions
among them. And the residue after the sixth or the one third shall belong
to those who come on the side of the both parents to the deceased's
mother or if there is no full one, to those who come on the side of the
father to the deceased’s mother in equal portions among them regardless
their sex male or female.
D- Paternal Uncles or and Aunts come together with Maternal Uncles
or/and Aunts.
Rule 359. 1- If one paternal uncle or more paternal uncles or/and
paternal aunt or aunts come together with maternal uncle or uncles or/and
maternal aunt or aunts on the same side or on different sides. The
maternal uncle or uncles or/and aunt or aunts receive the one third and
the two third shall belong to the paternal uncle or uncles or/and aunt or
aunts.
2- If the maternal uncles or/and aunts on the same side they receive
158
the one third in equal portions among them regardless the sex male or
female. And if they are on different sides the Rule 358 Para. 5 shall
apply.
3- If the paternal uncles or/and aunts on the side of the both parents to
the deceased’s father or the father only they receive the two thirds
provided that the male receives a portion of two females. And if they are
on the side of the mother they receive the two thirds in equal portions
among them.
But if they are on different sides to the father of the deceased the rule
357 paragraph (2) is applied. 1
E- Uncles And/Or Aunts, Their Children And A Spouse.
Rule 360. 1- The children of paternal and maternal uncles or/and
aunts on any side represent their parents and receive their share of estate
in the same degree provided that there is not any paternal or maternal
uncle or aunt. But if there is any one of the uncles or aunts the children
are superseded and have no right of inheriting.
And child takes the portion of the pre-deceased heir he represents. So
if the heirs are a paternal uncle’s daughter and a maternal aunt’s son; the
daughter receives the two thirds and the son receives the one third which
his mother share as the daughter receives her father share.
2- If there is neither paternal or maternal uncle or aunt nor a child of
them. then the paternal or/and maternal uncle or/and aunts of the mother
and the father of the deceased shall inherit the deceased and those who
come on the side of the mother receive the one third and those who come
on the side of the father receive the two-thirds. And the rules 357 and 358
are applied.
3- If a spouse comes together with paternal or/and maternal uncles
or/and aunts or their children, if there is no any of uncles or aunts, or with
grand-uncles or/and aunts. The spouse receives his or her portion; the
half if he is a husband or the fourth if she is a wife, and the maternal
party receive the residue if there is no paternal one, or the one third, if
any. and the paternal uncles or/and aunts receive the residue after the half
or the fourth and the one third of the maternal relatives, but if there is no
maternal unlesc or/and aunts the paternal party receives the residue after
the spouse portion. And the rule 355-359 shall be applied and followed in
the distribution among the heirs.
1
- al-Sharayi 4th vol. pp. 30-33. Minhaj 2nd vol. pp. 298-299.
159
Chapter Thirty Four
Inheritance By Cause
1- Inheritance By Marriage
A- The Husband and Wife
Rule 361. Basic principle: The husband and wife share all the classes
of heirs. And if there is no any heir by kinship or cause the husband
receives the whole estate of the deceased wife; the half as an allotted
portion and the residue by returning.
And the wife, or wives, receives the fourth as an allotted portion and
the residue, it is said; shall return to the wife, the other point of view said
that it shall be return to the Imam and the third point of view said that if
there is no Imam the residue shall return to the wife. And according to
woman position in life today and her sharing in her husband
responsibility the residue must be returned to her.
B- The Husband
Rule 362. 1- The husband receives the one-half if the deceased wife
has no child or child’s child downwards.
And he receives the one-fourth if she has a child or child’s child
downwards.
2- If there is no any other heir by kinship or cause, the
husband receives the whole estate of his deceased wife; the one-half as
an allotted portion and the residue by the returning.
C- The Wife
Rule 363. 1- A wife (or wives) receives the one-fourth if the deceased
husband leaves no child or child’s downwards. And she receives the one
eighth if the deceased husband has a child or child's downwards, and if
they are more wives they receive the eighth in equal portions among
160
them. And she shares the other heirs on all the property movable or
immovable.
2- If the wife (or wives) is the only heir and there is no
other heir with her she receives the whole estate of her husband; the one
fourth as an allotted portion and the residue by the returning.
Comment
The right of a wife or wives to inherit an immovable property from
her or their husband is a subject of discussion among the Scholars
(Mujtahids) of Shī‘ite School in Islam. And the main verdicts of this
discussion are four:The First:
That the wife inherits from all the kinds of the movable assets and the
ships, motor cars airplanes, trains and animals but she does not inherit
land; neither its substance nor its value. And if there are buildings or
trees or machines or instruments, she inherits from them in value but not
in substance. 1
The proof of this opinion is the consensus of most of the Scholars of
shift School.
The second:
That the wife inherits from every kind of the husband movable assets
in substance But she inherits from the land with building in value and not
in substance. There fore the heirs should valuate the land and give the
wife or wives her or their portion. This opinion had been stated by alShareef al-Murtadah. 2
The Third:
That the wife with an issue of the deceased husband shall inherit from
every kind of the deceased husband assets, movable or immovable. This
opinion is stated by the most learned Scholars of the shift School in the
seventh century of the Hijra like, al-Muhakik al-Hilli, al-Allama al-Hilli,
Bin Idrees and others.
1
- Minhaj al-Saliheen 2nd vol. pp. 303 Rule 6. Bulkat al-Faqīh pp. 235-237.
- Bulkat al-Faqīh p. 235. al-Intisaar p. 301.
2
161
The Fourth opinion by Bin Junaid and al-Iskãfi:
That the wife shares the others heir of the deceased husband in every
Kind of the deceased husband’s assets either has an issue of the deceased
husband or not The source of the first opinion is a phrase, among others,
recited by Muhammad Bin Muslim, he said: -«Abu Abdullah said-the
wife inherits from bricks and she does not inherit land; I said:- «how does
she inherit what in the land but not the land ? » He said «to me She is not
united with them by ties of consanguinity to inherits land, but she is
intruder there for she inherits the movable to prevent the intrusion by a
strange man by marrying her after her husband») 1
If we consider the air of this phrase which attributed to Imam Jafar alSadiq we find that this rule had been a result to the effect of tribal
customs which the Islam had abolished and which the Imam had been far
from it. Such statement and other which deprive the wife from her right
to inherit land of her deceased husband and give an effect to the old tribal
customs are not true and had not been said by any Imam. Besides such
phrases and statements reflect a very narrow standard of comprehension
of the social problems and it gives also a low position to woman when
she becomes a wife which is false and not true according to the concept
of the real meaning of The Imamism.
Rules of Shift School give always woman a high position in her life
particularly as a wife. So a man in death-bed has no right to divorse his
wife and if he does she inherits him if he dies through a year of the date
of the divorce. And this rule is one of the principal element in Islam. 2
Equality comes also in Shift school in the Interpretation of the word
«child» in succession rules, it means always the son and the daughter
while in other schools it means the male only.
This-as I think-which make al-Murtada extended the wife portion in
the property of her deceased husband and said that a wife inherits the
land in value and not in substance. 3
And After that some of the Scholar stated that since the reason, as it
had been recited to prevent the intrusion by the wife’s would-be husband
or she is not tied to the husband family by consanguinity, her child from
the deceased husband is a tie and they decided that a wife with issue of
the the deceased husband inherits from every kind of the property the
1
- Bulkat al-fakeeh pp. 236. al-Istabsaar 4th vol. pp. 152 paragraph 4.
- al-Intisaar pp. 305.
3
- Sharayi 4th pp. 35.
2
162
deceased husband leaves. 1
2- The fourth verdict had been decided dy Bin Junaid and
al-Iskafi who gave the wife the full right to inherit every kind of her
deceased husband’s property, movable or immovable. Their supporting
proof for his Verdict is the clear explanation of the Verse 12 Surat alNisaa, Women: (And they (your wives) shall have the fourth of what you
leave, if you have no child; but if you have a child they shall have the
eighth of what you leave) The Verse then as It states does not give any
indication or distinguish between movable or immovable assets that the
wife inherits from her deceased husband and if we consider what had
been attributed to the Imam to deprive her from the right of the
immovable property from her husband we have to consider too, that there
are many phrases which have been, too, attributed to the Imam by
reliable Shī‘ite Scholars Which ascertained that the wife shall inherit the
all kinds of her deceased husband’s property. These phrases are:- The
confidential saying of Bin Zurara and al-Bakbak they said: «(We said to
Abi Abdullah, pesce be on him,;- What do you say about a man who had
married a woman and then died after he limited her dowry ? » «(He said:
she shall have the half of her dowry and she shall inherit him from every
think he leaves and if she dies before him he inherits her too.)»
The second saying is recited by al-Bakbak and ascertained by Bin
Abi Yafoor, «He said:- I asked Abi Abdullah, about the husband: does he
inherit from his wife house or her land or he dose not inherit such thing
like the wife? He said: (he inherits her and she inherits him from every
thing he leaves or she leaves,»)
These two sayings, among others, ascertain the rule of Verse 12 of
Surat al-Nisa in giving the woman a portion of her deceased husband
property without restraining her from the immovable property.
The Law of Personal Status in Iraq No. 188 For the Year 1959
provides in Article 91 (Ninty One) as followes aThe Husband shall take,
with his wifes’s issue, the fourth of his deceased wife’s assets and the
half if she has no issue. And the wife shall take the eighth of her
deceased husband if he has an issue
and the fourth if he has not.»
The purpose of this Article is to amend the rule that deprives the wife
from receiving the immovable class property of her deceased husband
and the Sharī‘a Courts began to give the wife from every class of her
deceased husband property, movable and immovable in the decrees of
1
- Sharayi 4th vol. pp. 34.
163
Distribution (Qassam) issued by them as we see in this Decree of
Distribution No 667 No. of Registry 49 issued by the Ja‘fary judge on the
third of December of 1972 it provides that:«Sayyid Gani A.H. Āl-‘Īsa The judge of The Sharī‘a Court of
Baghdad al-Risãfa decided to register the following:«It has been ascertained before this Court in a statement presented by
the Mukhtar and two known persons of the Hitaween District;
That the late A.H.J died on the Third of November of the year, 1972.
That the entitled persons to receive the deceased property, exclusively,
are; his wife S. daughter of Haj K. his minor son Ammãr and his minor
daughter Ibtisãm. That there is no other heir with them.
That, The least common multiple of the shares for the case should be
24 (twenty four) and are divided as follows:That his wife S. shall receive three shares (sahm) of the 24 shares
from movable and immovable classes of the property, That his son Imãr
shall receive fourteen shares of the twenty four shares. And his daughter
Ibtisaam shall receive seven shares of the twenty four shares.
That it is according to the testimony given by the two witnesses
before this Court and the letter of the taxation Administration No.
45/6/0097 dated in 14/11/1972 and the affirmation of the heir S. and her
petition We made this Decree of Distribution (Qassãm) according to the
Ja‘fari Principles in Islam in the Fifteenth of Shawwal Month of the year
1392 A.H.ya that fits in with 20/11/1972 of Grace.
****************
The second argument concerning the wife right of succession occurs
when the wife is the only successor of her deceased husband and the
question arises here if she is entitled to receive the residue, after her
fourth as a determined portion without issue of the deceased, or the three
fourths shall go to the Imam or the Treasury (Bait al-Mal).
Earlier Scholars judged that if the wife is the only heir after her
husband she shall receive all his property; one fourth as a determined
portion and the three fourths as residuary heir. This rule is ascertained by
al-Sadũq in his book “Faqīh Man Lã Yahduruhũ al-Faqīh” in the fourth
vol. p. 191 it says.- ((«It has been recited by Abu Nasīr;-» I asked Aba
Ja‘far, peace be on him, about a woman who died and left her husband as
the only heir, He said;- If their is no other heir with him he is entitled to
receive all his deceased wife estate and the wife entitled to receive the
one fourth of her deceased husband estate and the three fourths belongs
164
to The Imam.»
al-Sadũq said. 1 This rule governs the case when there is Imam or in
the time of his Appearance, peace be on him, but in the time of the
Absence of the Imam the wife is entitled to receive all her deceased
husband’s estate if she is the only heir.»))
This rule was ascertained by what recited by Muhammad bin Abi
Umair from Abãn Bin Uthmãn from Abi Basīr from Abi Abdullah, peace
be on him about a wman who had died and left her husband the only heir,
He said;- All The estate belongs to him, I said (Abu Basīr) What about a
man who dies and leaves his wife as the only heir? «He said (the Imam)
all the property is for her.»
The Late al-Sayid al-Hakeem recited this rule but with hesitation He
said «(Rule 2) If the wife does not leave any heir by Cause or by
consanguinity but, only, The Imam and her husband, then, the one half
belongs to her husband as determined portion and the other half as he the
residuary heir preferably.
And if the husband does not leave any heir by consanguinity, but
only, the Imam and his wife, then, his wife shall have the one fouth as a
determined portion. But the residue is under-consideration; is it
absolutely for her if The Imam is absent or for the Imam, the late opinion
is preferable?»2
Ibin Idrees in his Book al-Sarayir exhibited the different opinions
about this matter and he said that the husband may take the remaining
amount of his deceased wife estate if he is the only heir because the
husband is preferable to the Treasury (Bait al-Mal) but the wife has not
such privilege and the Imam is entitled to receive the remaining amount
of the deceased husband as the residuary heir, 3
We notice clearly that despite the position that had been given to
woman by The First Imam; Ali, we find in many cases that the woman is
deprived of privileges invested to her by Imam Ali interpretation of the
principles of Islam which have been followed by shift Scholars
particularly the equality of man to woman in their interpretation of the
word «child» in Qur’ãn that it includes the son and the daughter.
It is preferable in this modern time we live in, which raised the
woman to the high level and to the equality in the most of the social life,
to modernize our understanding of the relation between the husband and
1
- Faqīh, 4th vol. pp. 191-192, chape 133 Para 666. A1-Istabsaar 4th vol. pp. 150-151.
- Minhaj, 2nd vol. pp. 392.
3
Sarayir paper 200 1-2.
2
165
his wife, and we have to recognize what the woman gives to her husband
in all his life; raising the children, managing his house, working hard to
help him to hold a higher position. In all these aspects of the husband
activities the wife shares the husband so, she should shares him the
profits.
Fortunately, Shift school is an open and broad-minded School. The
Shī‘ite’s Scholars connect always their opinions with the evolution and
development of the social life of man, provided that they find a support
from The Imams, and most of cases they find improvement from the
Imams sayings. Such Sayings and Statements from The imams have
found and stated to support the opinion that the wife has the right to
receive her share from all the classes of her deceased husband property,
movable or immovable. And that she has the right to receive the
remaining amount of her husband property as a residuary heir if she is the
only heir of her husband.
****************
2- Inheritance By Mutual Backing Agreement
And Acknowledgement
A- Acknowledgement of kinship.
Rule 364. An acknowledged child or child's child downwards by a
man that such child is his or by a woman that such child is her, is entitled
to inherit the person who admitted him or her as his or her child.
2- A person acknowledges that a certain individual is his
or her relative with evidence, such individual is entitled to inherit the
person who admitted him or her as a relative. But if the acknowledgement
is without proof the person who is admitted has no right to share the heir
unless they accept him. And if he or she is accepted by some of the heirs
then he is entitled to share the heir who admitted him or her. And he or
she inherits if there is no other heir.
B- Mutual Backing Agreement.
Rule 365. If two or more men make a mutual backing agreement and
state clearly that they inherit each other, such contract is legal and
effective provided that they have no other heir. But if the intent of the
agreement was to benefit the other side in good faith it may be
166
considered and governed as a legacy. And It may be taken from the one
third.
C- TIE IMAM
Rule 366. The Imam is the heir of the deceased who has no other heir
from the three classes or a spouse or acknowledged person or by mutual
agreement. And since The Imam is in prospect to come. The deceased
property shall be divided among the poor and especially those who are
study religion or science And it is preferable that be used in establishing
schools and other centres of Education.
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WAQF
Chapter Thirty Four
The Entailment And Endowment Of The Reality
Of The Property
Rule 367. Wakf or, Entailment and Endowment of the Reality of
Property, is a contract by one party to entail the reality of a property of
his and to endow its profits to specific persons or to a society or school or
mosque or for the public welfare or any legal benevolent purpose.
And the endowment of profits of the property may be to the heirs of
the doer or to specific line or degrees of his heirs as the endower
commands.
Rule 368. Wakf; the entailing and endowment of the reality of the
property must be made in clear decisive words. And if the property is
immovable it should be registered in necessary legal manner; before the
Court of Shari’a or before The Notary Public or any competent office.
And it may be proved according to the rules of Law.
Rule 369. If the waqf is registered or it is received by the benefactors
it becomes effective and the endower has no right to cancel his act of
entailment and endowment, particularly, if the Waqf is established while
the endower is not in death-bed.
Rule 370. But, if the endower, in the time of making the waqf, is in
death-bed, the power of the entailment and endowment shall depend on
the consent of the doer’s heirs. So, if they accept it the Waqf shall be
effective but if they refuse the Waqf, the waqf shall be taken from the
One-Third of the deceased if he dies during the year, which begin from
the day of his making the entailment and the endowment (The Waqf).
And if the benefactors are many it will begin with the first until the
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end of the One-Third. And if it is enough The Waqf is effective wholly.
Rule 371. The Conditions Of Waqf; The conditions of the property of
waqf are;
(1) It must be reality which is possessed by the endower
and it must be giving benefits continually.
(2) It must be known clearly and definitely and it may be a
part of joint property. (share or shares of joint property)
(3) the benefits or profits must be legal and not forbidden
by religious order for Muslim, as, wine or the pork.
Rule 372. One who entails and endows his property in Waqf must be;
(1) In his full age with the capacity of disposing of.
(2) He must make the Waqf with his free will.
Rule 373. The waqf may be made for the benefit of a person or persons
or a society, a mosque, a school, a hospital, building a
bridge, publishing books, and so on.
And in any case the benefactors of the waqf must be existed in the
time of making the waqf and the benefactors must be with capacity of
receiving the benefits of the property that is entailed and endowed.
provided that the benefactors are Muslims. And if Waqf is for a child in
his mother womb it shall be effective if it is born alive.
Rule 374. The benefactor of Waqf must be Muslim in a country
which is not in war with Islam countries.
But, Muslim may entail and endow his property for a non-Muslim
even he is a foreigner.
Rule 375. If the benefactor is not specified and comes in general term
the following steps should be followed for the purpose of specifying the
benefactor;
a. If the endower makes the Waqf for the believers, the
Waqf shall go to the Twelvers.
b. If he makes the Waqf for Muslims it shall go to those who
pray towards Kaba.
c. If the endower makes the Waqf for a specific group of
heirs or relatives or to a group of people. The Waqf shall go to males and
females in equal shares according to their sucession in inheritance rules.
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Rule 376. The Endowment and the Entailment must be;
a) perpetual; so if he makes waqf for a limited time this wakf is void
and null.
b) terminated. The endower has no right to make waqf which depends
on conditions.
c) received. The reality of the property should transferred to its new
state as, waqf and if it is not transferred it can not be entailed and
endowed to the purpose.
And if the reality of the property is movable it must be received in the
hands of the trustee of the waqf.
d) The endower should part the property of the Waqf from his
property to the Waqf in registering it in the competent office or by giving
it to the Trustee, if it is immovable and receivable.
Rule 377. 1- No entailment and endowment for the endower himself
and if he makes such Waqf, it is null and void.
2- If he makes Waqf for the sake of God; Allah, such Waqf shall be
de-voted to the religious Rites as, The Holy-War or Haj and schools.
Rule 378. The Trustee for Waqf may be the endower himself or the
heirs; the benefactors themselves or any other person that may be
appointed by the endower or the benefactor.
Rule 379. In all forms of The Entailment and Endowment; Waqf, if
the benefactors and their heirs are perished, totally, the reality and the
profits of the property that transferred to Waqf shall return, totally, to the
heirs of the endower and after them to their descendants.
Our guidance and goal
Rule 380. Justice should, always, be our guidance and direction in
every; judgement, or decree or order or Command or opinion we shall give.
And following and asserting the humanitarian principles, in what we
do, must be our goal. 1
1
- Imam Ali Bin Abi Talib.
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INDEX
The Sources of Islam-Jafari Religious Rules (al-Ahkaam al-Shariya)
are thousands of great Books by great learned Scholars and these few
books are examples of what had been written on this great subject;
1- BIHAAR AA-ANWAAR, 101 Volumes by al-Shaykh Muhammad
Bakir al-Majlisi,
2- WASAYIL AL-SHIIA By AL-ALLAMA AL-AAMIAI 20 Volumes,
3- AL-SARAYIR, By MUHAMMAD BIN IDREES Two Volumes,
4- AL-SHARAYI By AL-MUHAKKIK AL-HILLI Four Lolumes,
5- AL-MABSOOT, By AL-SHAYKH MUHAMMAD BIN AL-HASAN
BIN ALI AL-TUSI.
6- TATHKIRAT AL-FUKAHAA By AL-ALLAMA AL-HILLI Two
Volumes.
7- AL-UDDA By AL-SHAYKH AL-TUSI.
8- AL-MAARIJ By AL-MUHAKKIK AL-HILLI.
9- AL-KIFAYA By AL-SHAYKH MUHAMMAD KADUM ALKHURASANI.
10- FARAID AL-USUL By AL-SHAYKH AL-ANSAARI.
11- AL-MAKASIB By AL-SHAYKH AL-ANSARI.
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