نظریه تفسیر به نفع زوجه در دعاوی استرداد جهیزیه

نوع مقاله : مقاله پژوهشی

نویسندگان

• محمد مهریار ¹
• سیده فاطمه هاشمی ²
• احسان بروجردی ³

¹ استادیار گروه حقوق خصوصی، دانشکده حقوق دانشگاه ادیان و مذاهب، قم، ایران.

² نویسنده مسئول، استادیار گروه حقوق خصوصی، دانشکده حقوق دانشگاه ادیان و مذاهب، قم، ایران.

³ سطح3، حوزه علمیه، قم، ایران.

چکیده

کلیدواژه‌ها

• تفسیر به نفع زوجه
• استرداد جهیزیه
• حقوق خانواده
• اختلاف مالی زوجین
• دعاوی مالی

موضوعات

• حقوق خصوصی

عنوان مقاله [English]

The Theory of Interpretation in Favor of the Wife in Dowry Restitution Lawsuits

نویسندگان [English]

• Mohammad Mehryar ¹
• Seyede Fateme Hashemi ²
• Ehsan Boroujerdi ³

کلیدواژه‌ها [English]

• interpretation in favor of the wife
• dowry restitution
• family rights
• financial disputes between spouses
• financial lawsuits

چکیده تفصیلی

Introduction

Maintaining the rights of husband and wife after separation is an important issue in Islamic law and jurisprudence. One of the rights related to this issue is the discussion of returning household furniture to the spouses after separation. In Islamic jurisprudence, there is an independent chapter on this issue called the association of spouses in household furniture, and based on the analysis of narratives and general principles, different views have been formed on this issue. In Iranian law, the claim for the return of dowry is also one of the claims raised in family law and one of the conflicting procedures in Iranian courts. The necessity of discussing the issue of the return of dowry in terms of ensuring justice and realizing the wife's rights is undeniable. Today, in most cultures, the dowry is prepared by the wife and brought to the husband's house, and the wife grants permission to the husband to use it. In many cases, based on the good faith and trust of the parties, no recording of the dowry is made. Since the plaintiff in the dowry restitution lawsuit is the wife, according to the Civil Procedure Code, she must act on her claim of ownership of the dowry items. Given the lack of a dowry inventory in many cases or the lack of accurate recording in the dowry inventory, in many cases, the wife is unable to return the items provided due to the lack of clear evidence of ownership. This is a gross injustice and discrimination against the wife, which deprives her of the possibility of recovering the dowry provided. In order to fill the gap in the judicial procedure and create a new procedure, it is referred to the feasibility of interpreting in favor of the wife in dowry restitution lawsuits. The purpose of the present study, which was conducted using a descriptive-analytical method with a comparative approach to Imamieh jurisprudence, is to solve this problem based on existing jurisprudential data.

Method

This research was conducted using a descriptive-analytical method and a comparative approach in Imamieh jurisprudence. The required data was collected through the study of jurisprudential books, narratives, Iranian statutes, and judicial decisions, and then, through qualitative content analysis, the documentation of the theory of interpretation in favor of the wife in dowry restitution lawsuits was examined.

Results

1. Legal status and judicial procedure for dowry return

There is no mention of dowry in the Iranian Civil Code. According to Article 1107 of the Civil Code, the husband is responsible for providing household furniture in accordance with the woman's status. In the Family Protection Law, dowry-related lawsuits are placed under the jurisdiction of the family court based on Article 4 of this law, although this law does not specifically define dowry. Dowry is that part of the furniture and household items that the bride takes with her to the groom's house (A group of researchers under the supervision of Shahroudi, 1426AH, 3/157). In judicial procedure, there is no specific criterion for applying these cases and including them in dowry. According to existing laws, a woman can refuse to provide dowry or set aside her dowry and demand clothing and household items necessary for life from her husband as alimony. The dowry of a girl, which is provided by her family, is the property of the girl and is reserved for her (Mousavi Khomeini, 1422AH, 3/189).

According to the article of the Family Protection Law, the dowry restitution lawsuit is a financial lawsuit exclusively within the jurisdiction of the family court, which has allocated many cases to itself. In the dowry restitution lawsuit, the wife files a lawsuit against the husband and requests its return, which mostly includes household furniture, from the court. The prevailing procedure of the courts in dowry practice lawsuits is that these lawsuits are no different from other lawsuits and the wife must provide evidence regarding ownership of all dowry items. According to Article 197 of the Civil Procedure Code, the principle of innocence prevails and if someone claims a right or debt over another, he must prove it. In the advisory opinion No. 7/97/3201 of 2018, it has been acknowledged that "in lawsuits demanding a specific item, such as the return of dowry, the court must determine the claimant's entitlement to receive the specific item, based on the evidence presented by the claimant". According to the prevailing procedure of the courts in lawsuits for the return of property in the joint home by a spouse, if the wife claims that the said property is a dowry, she must provide evidence to support it. This issue has been clearly stated in the final judgment No. 9409982160300684 of the Provincial Court of Appeal.

2. The jurisprudential perspective and documents of the theory of interpretation in favor of the wife

The issue has been disputed since the early days of Imamieh jurisprudence. Some have cited narratives as the source of this dispute (cf., Shahid Sani, 1413AH, 14/135). In general, if the spouses do not provide evidence regarding the ownership of the furniture, the opinions of the Imamieh jurists can be categorized as follows:

• In the case of property belonging to men, their opinion prevails, and in the case of property belonging to women, the opinion of women prevails, and in the case of property shared between men and women, the property is divided after the agreement or disagreement. The famous jurists agree with this opinion (Tousi, 1407AH, 6/352; Ibn Hamzeh, 1408AH; Allameh Helli, 1420AH, 5/208).
• In all property, whether separate or joint, there must be a division of property (Tousi, 1387AH, 8/310; Allameh Helli, 1413AH, 3/470).
• If there is a custom, it should be referred to, and otherwise, it should be done as is ruled in other cases (Allameh Helli, 1413AH, 8/409).
• All property is for the woman (Tousi, 1363AH, 3/44).
• Except for what is specific to men, the rest of the furniture will be for the woman. The aforementioned Fatwa has been attributed to Sheikh Sadough (Naraghi, 1415AH, 17/369).

The jurisprudential evidence for the theory includes Quranic and narrative evidence:

49. A) Quranic evidence: Three verses of the Quran mention Mutah in divorce: Baghareh: 236, Baghareh: 241 and Ahzab: 49. These verses indicate the necessity of paying Mutah to the divorced woman. Although the word Mutah in the mentioned verses does not refer to the dowry that the wife brings to the husband's house at the beginning of their marriage, but rather Mutah is a gift or assistance that the husband gives to the wife upon separation, in addition to other financial obligations such as dowry, citing these verses can confirm the legislator's general approach to financially supporting the wife during the separation process. This supportive approach shows that in Islamic thought, paying attention to compensating the wife's economic losses during divorce is of particular importance.
50. B) Narrative evidence: There are several narratives on this subject, some of the most important of which are:

• Sahiheh of Refa'ah ibn Musa Nakhas: "If a man divorces his wife and the woman claims that the furniture of the house belongs to her and the man also claims ownership, what is special for men will be for the man and what is special for women will be for the woman" (Sadough, 1413AH, 3/111).
• Morsalah of Sadough: "Indeed, the woman is more deserving of the furniture (of the house), because what is between her two sides (an allusion to her inner self) knows that the woman is moving the furniture to her husband's house" (Sadough, 1413AH, 3/111).
• Movasagheh of Yunus ibn Yaghub: Regarding a woman who dies before her husband or a man who dies before his wife, he said: What is special for women is for the woman, and what is common for men and women is divided between them, and whoever gains control over something of it belongs to him" (Tousi, 1364AH, 9/302).
• Sahiheh of Abd al-Rahman ibn Hajjaj: This narrative indicates that the household furniture belongs to the wife, and the man must provide evidence for his claim (Koleini, 1430AH, 13/651).

1. C) The precedence of appearance over substance: Some Imamieh jurists have presented the criterion of the precedence of appearance over substance, which can be used as one of the important documents of the theory of interpretation in favor of the wife in the case of dowry return. According to this opinion, in the event of a dispute between the husband and wife regarding household furniture, given that in most cases, the wife provides the household furniture, the wife's statement is deemed to be in accordance with the fact and she is considered to be a negator. This appearance is typical due to the existence of dominance in the outside and in most cases (Najmabadi, 2014, 4/404; Rashti, 2022, 2/300).
2. Approaches to the theory of interpretation in favor of the wife

The theory of interpretation in favor of the wife in the dowry restitution lawsuit can be perceived in two ways:

• Religious approach: According to this approach, Quranic and narrative evidence is recognized as religious evidence and the rules governing the proof of the claim are assigned or these evidences are recognized as the rulings governing the proof of the claim (Esmaeilpour Qomshei, 1421AH, 2/424).
• Non-religious approach: According to this view, although the existing narratives are recognized as contrary to the principles and rules governing the proofs of the claim, but due to the conformity of this theory with the current practice and the fact that in the custom, most women take the initiative to provide a dowry for the house, the wife is considered to be a negligent person and her word is recognized as the priority (Tabatabaei Haeri, 1418AH, 15/191).

Conclusions

The dispute over household furniture, or in modern terms, dowry, is a matter rooted in Imamieh jurisprudence. Imamieh jurists have put forward various opinions on this issue by reasoning from general principles and existing narratives. The theory of interpretation in favor of the wife in disputes related to the ownership of household furniture is a complement to one of the jurists' theories on this subject. The prevailing custom in the past and present is for the wife to provide household furniture. The prevailing custom gives rise to a prevailing suspicion and a typical appearance in this regard. Based on this appearance, the wife is recognized as the owner of the household furniture, and the husband needs to provide evidence to prove his ownership. Based on the studies, it can be concluded that:

• The theory of interpretation in favor of the wife in dowry restitution lawsuits has significant jurisprudential and legal support.
• The rule of precedence of appearance over substance is one of the documents that can be relied upon.
• In the issue under discussion, considering the prevailing custom of the wife providing dowry, the valid appearance of the wife's ownership precedes the principle of her non-ownership.
• The authentic narratives of the Infallibles can be presented as evidence for this theory. The Sahiheh of Refa'ah ibn Musa Nakhas from Imam Sadegh and the narrative of Abd al-Rahman ibn Hajjaj are an important jurisprudential basis for strengthening the theory of interpretation in favor of the wife in dowry return lawsuits.

Considering the aforementioned jurisprudential and fundamental principles, it is suggested that in dowry restitution lawsuits, assuming the existence of a valid custom of the wife providing household furniture, the interpretation approach in favor of the wife be adopted. In cases where the prevailing custom places the provision of dowry on the wife, and also in situations of doubt and lack of conclusive evidence, a ruling in favor of the wife should be issued based on the valid customary appearance and the jurisprudential rules governing the precedence of appearance over substance. However, if the prevailing custom is contrary to this and the provision of household furniture is the responsibility of the husband, the rule requires that the ruling be in favor of him. Acceptance of this theory is conditional on the emergence of a valid custom in each specific region and culture and should not be considered as an absolute and general rule. Such an approach not only ensures justice in arbitration, but also prevents the unfounded generalization of rules and leads the judicial system towards decisions that are in accordance with social and jurisprudential realities.

Author Contributions

All authors participated equally in the design of the study, writing the article, and editing the final versions.

Data Availability Statement

Data available on request from the authors.

Acknowledgements

The authors of this research would like to thank all those who provided scientific and moral support in conducting their research and writing the article.

Ethical Considerations

Cases such as falsification of data, distortion of results, plagiarism, and any other unethical behavior have been strictly avoided in this study.

Funding

This study was conducted without receiving any financial support from government, commercial, or non-profit organizations.

Conflict of Interest

The authors declare that there are no conflicts of interest in connection with this study. In other words, there were no financial or personal interests that could affect the results of the study.