فقه و حقوق خانواده (Aug 2011)
Lien Right in Islamic Family Law
Abstract
Marriage contract is a source of ample rights for couple and paying dowry to wife is one of them. After marriage she can claim her dowry before intimacy (if it is on demand). According to article 1185, if the husband is unwilling to pay she can exercise her right and not respond to her husband's demand. In theological and legal context it is known as the right of lien, but still there exist a great number of unresolved questions, and it remain a controversial issue. It is worthy to note that it has been disputed from legal and jurisprudential stand point. This article also attempts to clarify the questions regarding the mutual relation of spouses and the conditions which nullify this right, and it illustrates clearly its legal inadequacy with reference to legal and jurisprudential scholar's stand point. In view of theologians, marriage contract is a mutual contract (Aghde- Moavezi) or of quasi mutual contract (shebhe Moavezi) which is based on three theories: 1.Both parties, husband and wife have the right of lien. 2. Neither has the above mentioned right. 3. Only the wife is entitling to the right of lien. In spite of all criticism by some jurists and theologians on the right of lien which is absent in legal context; it is an exception to the law, to support the woman's right so that women should not be compared with men. Solvency and insolvency of a husband has no affect on the implementation of right of lien and still he has to pay her legitimate right.
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