نوع مقاله : پژوهشی اصیل

نویسندگان

• نجمه شریف پور ¹
• محمد بهرامی خوشکار ²
• سید ابوالقاسم نقیبی ³

¹ رشته فقه و مبانی حقوق اسلامی، دانشکده حقوق،الهیات و علوم سیاسی،واحد علوم و تحقیقات، دانشگاه آزاد اسلامی، تهران، ایران

² دانشیار گروه فقه و حقوق، دانشکده الهیات ، مدرسه عالی شهید مطهری، تهران، ایران

³ دانشیار گروه فقه و حقوق، دانشکده الهیات، مدرسه عالی شهید مطهری، تهران، ایران.

چکیده

تمکین به معنای خاص از جمله حقوق جنسی زوج است و تمکین به معنای عام علاوه بر حقوق جنسی، از لوازم ریاست شوهر بر خانواده به شمار می اید و نشوز زوجه در ادبیات فقیهان، معرف عدم تمکین است. با عنایت به تغییر سبک زندگی و تحولات در مناسبات زوجین این سوال مطرح می شود که آیا تمکین و نشوز از نظر مفهوم و مصداق دچار تحول شده است؟ بدون تردید تمکین از جمله حقوق امضایی است و مانند مجعول تاسیسی نیازمند به جعل اعتبار از ناحیه شارع می باشد. شارع ضمن شناسایی تمکین متعارف و امضای آن، مناسبات زوجین و نهاد خانواده را با سازو کار حقوقی مناسب تحکیم بخشیده است. پایداری زوجیت و نهاد خانواده از مولفه های متعددی تاثیر می پذیرد و تمکین از جمله آن مولفه هاست.
در این پژوهش با روش توصیفی و تحلیلی بر این نکته تاکید شده است که تمکین به معنای عام، متناسب با مقتضیات زمان متحول شده است. از این رو علیرغم فعالیت اجتماعی و اشتغال زوجه در بیرون از خانه، زوج ملزم به انفاق می باشد.

تازه های تحقیق

Extended Abstract

Background & Purpose

 Tamkin, as one of the husband's rights in Islam (Hor Ameli, 1988), means creating conditions to meet sexual needs in any possible and expected situation, and in the broad sense, means the wife's general obedience to her husband in her duties to the husband and in marital matters (Tabrizi, 2003: 57), and if either spouse deviates from their obligatory duties, Noshouz will occur.

 Unquestionably, the gradual passage of the Shiite jurisprudence period had a positive impact on the formation and attention to the dimensions of Noshouz and Tamkin. During the period of jurisprudence, the proposed definition of wife's Noshouz has not changed significantly. Nevertheless, the definitions varied slightly according to the understanding of each jurist in his time regarding how the wife obeyed and the customs, social habits, and way of life appropriate to that period; Thus, the definition and cause of the husband's Noshouz have become clearer in each period than in the previous period, and the moral and just behaviour of the husband with the wife has been recommended in all periods. Due to changes in social conditions and gender roles, the breadth of these concerns has grown in recent years, and among the most important issues in the field of the family is the shift or lack thereof in the rights and responsibilities of couples.

 In the present study, unlike many comparable studies, the basis of this discussion - the principle of the possibility or impossibility of time's effect on Tamkin and Noshouz - and the conclusions we have achieved despite differing viewpoints on this subject are also presented. In addition, by providing additional arguments and justifications for his assertion regarding the amount of a woman's obedience to her husband, we have attempted to conclude the discussion and adopt a theory.

Method

 The present study's data is derived via library research. Methodologically, the research topic is descriptive-analytical and includes description, recording, and analysis of existing situations.

 After investigating and identifying the variables and influential aspects in a specific subject or phenomenon, the researcher draws a subjective conclusion and investigates the links between these components. Consequently, qualitative research has been conducted by intelligently describing and analyzing the acquired data.

 Our research population consists of the perspectives of earlier and later jurists and the conditions resulting from the changing way of life. Examining the perspectives of jurists in the discussion of Tamkin and Noshouz and judgment in the interim has been the focus of our efforts.

Findings

 The debate on the effect of a change in common law on the actuality of signatory rulings can be traced back to the discussion of the nature of signature in signatory rulings. It appears that Shari'a validation is necessary for signature rulings, but the majority of Shari'a evidence is Zanni-ul-Dalalah (uncertain signification) (Muzaffar, 2007: 6), which means that ijtihad in these evidence and deducing the ruling from them by considering certain characteristics can dispel many doubts about Shari'a rulings in various fields. The following are the characteristics and methods for modifying the rulings:

1. A) Changes in the jurist's perception of the origins of legal decisions
2. B) Changes in the subjects and restrictions of the rulings
3. C) Recognition of benefits and corruptions

 Before we can arrive at a conclusive theory on the effect of time on the limits of Tamkin and Noshouz, we must address three practical issues in this area.

• The concept and limits of Tamkin and Noshouz

 Whether or whether the wife's Noshouz is realized relies on the jurists' perception of the bounds and degree of the wife's obedience to her husband, a point of contention. Some jurists believe that the scope of the wife's Noshuz is equivalent to the scope of the husband's orders and prohibitions (Tarihi, 2007: 69), whereas the famous jurists believe that Noshouz is committing flagrant indecency by the wife (Najafi, 1981: 201; Hali, 2007).

• Husband's permission for the wife to leave the house

 Well-known jurists, even some of them, who have considered Noshouz as merely a special disobedience, have considered it absolutely forbidden (Haram) for a woman to leave home without her husband's permission and cause her to be deprived of maintenance costs (Nafaqah) except in necessary cases. (Mohaghegh Hali, 1409:569 ;Najafi, 1981: 341). Some jurists have spoken out against the fatwa, including the late Khoi and Allama Sheikh Fazlullah.According to Islamic experts, a reasonable departure from home does not necessarily violate the husband's rights or haram or corrupt act, as the husband's rights in married life are outlined. The existence of marital love and the non-commercial nature of the marital connection provides the foundation for this right's full realization. If leaving the house means separation from the husband, it conflicts with the husband's right to satisfy his sexual demands.

 Consideration of the right of women to own property, the customary meaning of leaving the house, and the verbal agreement of the majority of men to daily outings, as well as the seeming incompatibility of sanctity with certain Sharia rules, can be helpful in this regard.

• Employment and education

In regards to the employment and education of the wife, while maintaining the husband's headship over the family, it appears that the husband has the right to forbid the wife from her current job if it is contrary to the family's best interests or the couple's dignity, but has no right to oppose her employment.

• The chosen theory

 According to the main discussion, the criterion in obedience is human performance in which he/she lives in that special circumstances, and his/her behaviour is accepted by the custom of time and place, and in this regard, it has both typical and personal aspects, and in determining the examples of obedience, one should pay attention to the role of custom, ethics, time and place, and in general, the concept of Tamkin can be considered as accepting the male head in the family. One of the important evidence to prove this claim is the relationship between the obligation of maintenance cost and permanent marriage, as well as the right of older women to maintenance cost even if they are unable to obey.

 According to the main discussion, the criterion in obedience is human performance in which he or she lives in those particular conditions, and his or her behaviour is approved by the customs of the time and place. It has both typical and personal elements in this sense. When determining examples of obedience, one should consider the role of custom, ethics, period, and place, and the notion of Tamkin can be thought of as accepting the male head of the household in general.

Discussion and conclusion

 Absolute woman obedience is not acceptable, given the importance of time, place, custom, and morality in determining instances of obedience. In a special sense, Tamkin is one of the husband's sexual rights, the most significant result of which is receiving maintenance costs. In a general sense, Tamkin is a custom, and the concept of Tamkin can be thought of as acknowledging the husband as the head of the family.

Tamkin is a reciprocal rule with a moral component, and the conflict between Tamkin and maintenance costs is nothing more than the mutual respect of spouses for each other's rights and the fulfilment of their obligations.

 The wife's Noshuz refers to her refusal to accept the man as the family's leader, and the husband is not responsible for such a woman. As a result, when discussing the importance of women's presence in many professions, if we regard each outing as a wife's Noshuz, this becomes a problem.

Ethical considerations

Compliance with research ethics: This research was carried out in accordance with the ethical guidelines for human research.

Funding: This research was not supported by any institution.

Authors' Contribution: Dr. Mohammad Bahrami Khoshkar was the corresponding writer and supervisor, and Dr. Seyed Abolghasem Naghibi was the consultant.

Conflict of interest: This study does not directly or indirectly conflict with the interests of any individual or group.

Acknowledgements: I'd like to express my gratitude to everyone who helped with this study.

کلیدواژه‌ها

• تمکین
• نشوز
• مقتضیات زمان
• احکام امضایی
• نفقه

20.1001.1.23452692.1401.10.2.1.2

عنوان مقاله [English]

Influence of time and place requirements on concept of operational Tamkin and diobedience in alimony from point of view of Emamiyye Fiqh

نویسندگان [English]

• Najmeh Sharifpour ¹
• Mohamad Bahrami khoshkar ²
• Abolghasem Naghibi ³

¹ PhD Student in Jurisprudence and Fundamentals of Islamic Law, Faculty of Law, Theology and Political Science, Science and Research Branch, Islamic Azad University, Tehran, Iran

² Associate Professor, Shahid Motahari High School, Tehran, Iran.

³ Associate Professor, Department of Jurisprudence and Law, , Shahid Motahari High School, Tehran, Iran

چکیده [English]

Tamkin in a specific sense is one of the sexual rights of the husband, and Tamkin in the general sense, in addition to sexual rights, is one of the requirements of the husband's dominion over the family, and the wife's disobedience in the literature of the jurists indicates disobedience. Considering the change in lifestyle and changes in couples' relationships, the question arises whether obedience and disobedience have changed in terms of concept and application? Undoubtedly, obedience is one of the signature rights and, like the founding forgery, it requires forgery from the Shari'a. While identifying the usual obedience and signing it, the Shari'a strengthened the relationship between the couple and the family institution with an appropriate legal mechanism. The stability of the marriage and the institution of the family is affected by several components, and obedience is one of those components.In this research, with a descriptive and analytical method, it is emphasized that obedience in the general sense has changed in accordance with the requirements of the time. Therefore, despite the wife's social activities and employment outside the home, the husband is required to give alms.

کلیدواژه‌ها [English]

• obedience
• disobedience
• time requirements
• signed rulings
• alimony

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