Document Type : Original Article
Authors
1
Ph.D. Student, Department of Fiqh (jurisprudence) and Basis of Islamic law, Qom Branch, Islamic Azad University, Qom, Iran,
2
Assistant Professor, Department of Fiqh (jurisprudence) and Basis of Islamic law, Qom Branch, Islamic Azad University, Qom, Iran,
3
Assistant Professor, Department of Fiqh (jurisprudence) and Basis of Islamic law, Qom Branch, Islamic Azad University, Qom, Iran,
Abstract
In Islamic family law, the right to divorce is granted to the husband in the first place and the husband’s right to divorce is a jurisprudential fact. Nevertheless, the Holy Shari' has also, as a secondary sentence, entrusted the divorce to a judicial institution with the fulfillment of some conditions, which has been referred to as "judicial divorce". Determining the cases of judicial divorce, its conditions and scope, as well as its nature, whether it is retroactive or final, requires jurisprudential-legal precision, which in the present study, in a descriptive-analytical method, has been investigated after proving the legitimacy of judicial divorce. Considering the reasons for the legitimacy of judicial divorce, the need to respect the interests of the family and the rights of the parties and the opinions of jurists, including Shiites and Sunnis, we came to the conclusion that judicial divorce should be considered as a type of revocable divorce, with the difference that in this type of divorce, in both divorce and recourse, the ruler is the guardian of the wife, and therefore the possibility of recourse must be at the discretion of the judge.
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