Document Type : Original Article
Authors
1 Department of Law, Bent al-Hoda Higher Education Complex, Al-Mustafa International University, Qom, Iran.
2 Corresponding Author, Department of Private Law, Faculty of Law, University of Qom, Qom, Iran.
3 Department of Private Law, Faculty of Law, University of Qom, Qom, Iran.
Abstract
Highlights
Introduction
Understanding the rights and duties that arise from the conclusion of contracts leads to the strength and durability of the contract, and lack of awareness of these rights and duties will be a source of doubt and instability in relationships. The marriage contract is no exception to this; although it cannot be analyzed in the framework of commutative contracts and the relationship between spouses cannot be interpreted solely based on law; because what strengthens marital relationships is the rule of ethics between them, and recourse to law occurs in times of necessity. Therefore, spouses' familiarity with their rights and duties helps organize their relationships and divide life matters. The issue of the wife's Ojrat al-Mesl is one of the important and challenging topics in Islamic jurisprudence and legal systems, playing a fundamental role in clarifying women's rights. The differences in legal systems, considering their principles, objectives, methods, social position, and individual freedoms, have led to differing approaches to a common issue. The current research critically examines the legal challenges and methods of calculating the wife's Ojrat al-Mesl in courts and shows that this topic, in addition to presenting common and distinct viewpoints, paves the way for deepening the understanding of gender justice and marital rights. Islamic jurisprudence, as one of the main foundations of laws in Islamic countries, has diverse interpretations regarding Ojrat al-Mesl. Iranian law, which is a combination of jurisprudential principles and modern laws, has defined the concept of Ojrat al-Mesl in a legal and practical way, clarifying the relationship between tradition and modernity in this field. Also, in Sunni jurisprudence, a wide range of views on marital rights are raised. American law, based on the principles of secularism and individual freedoms, has a different approach to concepts similar to the wife's Ojrat al-Mesl. This research, through comparative analysis, seeks to clarify the role of laws and jurisprudential interpretations in determining the wife's rights and to answer questions such as the differences in legal principles and foundations of Ojrat al-Mesl in different systems, the role of custom and culture, and the possibility of adopting a more comprehensive approach.
Method
The research method used is analytical-documentary with a comparative approach, and data has been gathered from credible jurisprudential and legal sources. First, key concepts of Ojrat (wages), Ojrat al-Mesl, and its jurisprudential foundations, including the rule of respecting a Muslim's property (Ehtiram Mal Muslim) and the rule of Istifa (unjust enrichment), were examined, followed by an analysis of related jurisprudential criticisms and responses. The jurisprudential and legal conditions for a wife's entitlement to Ojrat al-Mesl in Iranian law, including the wife's religious, legal, and customary duties, the role of the husband's command, the intention or lack of intention to donate (Tabarru), and the customary implicit condition, were investigated. Subsequently, the views of Sunni jurisprudence regarding sustenance (It'am) and servants (Khadim) and their impact on the entitlement to Ojrat al-Mesl were discussed, citing sources such as Al-Kasani (1418AH), Ibn Abidin (1415AH), Ibn Nujaym (1419AH), Al-Nuwi (1415AH), Al-Shirbini (n.d.), Al-Jaziri (1424AH), and other sources. Furthermore, the approach of American law to the concept of marital status, mutual spousal support, the prohibition of domestic service contracts between spouses, and state court rulings were reviewed (Hasdi, 2004; Scott, 2018; Mina & Fali, 2023). The comparative method of the research is based on analyzing the commonalities and differences among the three legal systems: Iran, general Islamic jurisprudence, and the United States, and three approaches - economic justice, social justice, and cultural justice - have been extracted from this comparison.
Results
The rule of respecting a Muslim's property (Ehtiram Mal Muslim), citing narrations from Kulayni (1362AH), Sheikh Saduq (1395AH), and Ameli (1413AH), indicates the unlawfulness of disposing of a Muslim's property without consent. Although some jurists, such as Khoei (1420AH), consider the apparent unlawfulness to be a religious obligation, it has been argued that the generality of unlawfulness also includes situational unlawfulness (Mostafavi, 1417AH). Another objection concerns performing an act by personal will, which has been resolved by citing the generality of hadiths and Article 307 of the Iranian Civil Code (Pourabdollah & Sorkh Hesari, 2015). The objection regarding the difference between property and action has also been addressed by explaining the concept of property and quantifiable rights, referencing Katouzian (2005). The rule of Istifa (unjust enrichment) has also been analyzed based on the pillars of the commander's order, performing the act, benefiting, the act having customary remuneration, and the absence of an intention to donate (Tabarru) (Tabatabaei, 1441AH; Katouzian, 2018; Haeri Shahbagh, 2019). Key challenges to this rule include the commander's benefit in the wife's activities, the intention to donate in family relationships, and the spiritual status of the wife's work as "Jihad".
The wife's duties are divided into three categories: religious, legal, and customary. Religious duties include specific obedience (Tamkin Khas) and some opinions regarding general obedience (Tamkin Amm) (Najafi, 2025; Khoei, 1420AH; Sabzevari, 1413AH; Kulayni, 1362AH; Ameli, 1413AH). Legal duties include good companionship, mutual assistance, and cooperation in raising children (Articles 1103, 1104, and 1114 of the Civil Code). Customary duties are also analyzed considering the division of labor in society and the role of custom in regulating marital relationships (Dayani, 2016; Hedayatnia, 2006). Regarding the husband's command, based on the rule of Istifa and the theories of Katouzian (2015), Jafari Langeroudi (1999), and Emami (2007), the husband's command, whether explicit order or implicit consent, is effective. In the discussion of the intention to donate (Tabarru), the presumption is against donation, and proving the contrary is necessary (Article 336 of the Civil Code). The four conditions of the parties' intention and their effects are analyzed based on the rule of Iqdam (taking action) and the principle of respecting human action (Rezaei & Amiri, 2023). Disagreement over the validity of customary implicit conditions is also presented by referring to the views of jurists including Sheikh Ansari (1415AH), Najafi (2025), and others.
Sunni jurisprudence does not directly address the issue of the wife's Ojrat al-Mesl, but discussions on sustenance (Itam) and servants (Khadim) play a fundamental role in determining the duties of the wife and husband. Various opinions in the Hanafi, Shafei, Maliki, and Hanbali schools regarding cooking, food preparation, providing servants, and customary standards have been examined (Al-Kasani, 1418AH; Al-Nuwi, 1415AH; Al-Ramli, 1414AH; Ibn Qudamah, n.d.; Ibn Abidin, 1415AH; Al-Jaziri, 1424AH; Qarazawi, 1384AH). The conclusion of the Central Dar al-Ifta of Sunni Islam is that the wife's household services are considered voluntary (Tabarru) (Ministry of Endowments and Islamic Affairs, 1410AH).
In American family law, marital status includes mutual financial and emotional support of spouses, fidelity, and good companionship (Hamilton, 2006; Ellman, 1998). Courts do not recognize domestic service contracts between spouses as valid and even reject Ojrat al-Mesl in cases of unusual services (Hasdi, 2004). Although this approach considers mutual support as a principle, some researchers, like Ellman (1998), believe it leads to injustice towards women.
Three different approaches are observed in the three legal systems:
- Economic justice in Iranian law, which considers Ojrat al-Mesl as a tool to compensate for the wife's services.
- Cultural-customary justice in Sunni jurisprudence, which evaluates the wife's duties according to societal custom.
- Social justice in American law, which considers household services as part of the marital status and mutual support, prohibiting claims for wages.
Conclusions
The present research demonstrates that the wife's Ojrat al-Mesl is a significant topic in family law, analyzed with three distinct approaches across the legal systems of Iran, Sunni jurisprudence, and American law. Iranian law, adopting an economic justice approach based on the rule of La Zarar (no harm), Istifa (unjust enrichment), and the prohibition of unjust enrichment, has accepted Ojrat al-Mesl. Sunni jurisprudence, with a customary justice approach, considers the wife's services as natural and customary duties and does not deem Ojrat al-Mesl claimable. American law, following a social justice approach, regards the performance of household services as a mutual duty of spouses within the marital status and rejects claims for wages.
Authors' 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 would like to express their gratitude to all individuals who provided spiritual and scientific support to the present research.
Ethical Considerations
Cases such as falsification of data, distortion of results, plagiarism, and any other unethical behavior have been strictly avoided in this study. The authors emphasize that all ethical principles have been observed in conducting and publishing this research. This has been confirmed by all authors.
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.
Keywords
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