Document Type : Research/Original/Regular

Authors

• Fatemeh Fallah tafti ¹
• Atefeh Azimivahid ²

¹ Assistant Professor of Islamic Jurisprudence and Law Department, Allame Tabataba'i University, Tehran, Iran

² M.A., Faculty of Nonprofit Refah, Tehran, Iran

Abstract

Family system jurisprudence is one of the major types of jurisprudence, which looks at family issues with a holistic view, and the marriage contract, as one of the important pillars of this system, creates obligations for the parties like other contracts. One of the challenging issues in this field is the legitimacy of beauty practices without the spouse's permission. In a descriptive-analytical way, this article tries to investigate the limits and limitations of the husband's permission in cosmetic surgery and whether the marriage contract causes the wife to have no ownership over her body. Or should the wife take permission from her husband to do anything she wants to do with her body? The findings of this research, which is a study based on the macro-jurisprudence of the family system, indicate that by reflecting on the benefits of cosmetic surgery in repairing and correcting physical and appearance defects and the opinions of contemporary jurists on the permissibility of surgeries that are performed for the purpose of beautification, doubts It solves the fundamental issue regarding the legitimacy of cosmetic surgery and it is not possible to achieve the necessity of spouse's permission absolutely in the jurisprudence of the family system; Rather, the necessity of permission in the jurisprudence of the family system is only in the field of family interests.

Highlights

Background and Purpose

 Istibrā is a term used in jurisprudence that refers to the pursuit of innocence and purgation and has different meanings. The context on which the research has concentrated is the purgation of a woman's womb from a man's semen. Jurisprudents frequently use the term 'Iddah' to refer to the purgation of a woman's womb after she divorces her husband or after her husband dies, while they frequently use the term Istibrā to refer to the innocence and purgation of a woman's womb after she commits adultery.

This discussion is necessary because the ruling on an adulteress' Istibrā is one of the most challenging issues in jurisprudence. This has caused the Imamiah jurisprudents to differ in their rulings, and since there has been no independent discussion about this, it is extremely necessary. Now the question arises whether a non-pregnant divorced or widow adulteress needs to be purged ( i.e., Istibrā ) if she intends to get married? The purpose of this study is to explain the ruling on a non-pregnant divorced or widow adulteress' Istibrā.

Method

 The current study is a descriptive-analytical and library study that clarifies the ruling on the purgation (Istibrā) of a non-pregnant unmarried adulteress by referring to the primary sources of Imamiah jurisprudence and examining the jurisprudential propositions.

Results

Imamiah jurisprudents differ in the obligatory or non-obligatory of non-pregnant and unmarried adulteress' Istibrā. From the famous Imamiah jurisprudent's viewpoint, adulteress' Istibrā is not obligatory, and an adulteress can marry the adulterer or a non-adulterer immediately after adultery. Although the famous viewpoint does not consider Istibrā to be obligatory, there is no complete consensus. Some argue that Istibrā is not absolutely obligatory, while others believe it is mustahabb, and the third group has taken precautions in this regard while emphasizing the non-obligatory of the adulteress' Istibrā. In contrast to the famous viewpoint, some jurisprudents have considered the obligatory of Istibrā. Although they agree on the obligatory of Istibrā, they differ on whether Istibrā is a condition for the validity of a marriage or a condition for intercourse.

Famous jurisprudents have referred to the generality of texts (verses and hadiths) on the obligatory of Istibrā. According to them, these texts, in general, indicate the non-obligatory of non-pregnant and unmarried adulteress' Istibrā (An-Nisa: 24 and 3). On the other hand, those who believe in the obligatory of Istibrā refer to hadiths, in some of which the obligation of adulteress' Istibrā before marriage is specified. They have also referred to the rule of ''It is not permissible for the two unique semens to meet in the same womb" to emphasize the obligatory of Istibrā, which means that the Shari'a has forbidden the union of two unique semens in the same womb. Another reason given for the obligatory of adulteress' Istibrā is to prevent the intermixing of semens and genealogies (Miāh and Ansāb), explaining that the purpose of the religion of Islam is to preserve the five basic goals, namely religion, intellect, soul, wealth and genealogy. Legislation has also been done to maintain these goals. Therefore, Islam has enacted rulings to prevent the Intermixing of semen and genealogies. The jurisprudents have also mentioned the wisdom of some of the rulings on not mixing the semen, such as ​the forbiddance of marrying two men with a woman at the same time, the legislation of iddah, and so on. Now, if it is permissible to marry an adulteress without Istibrā, this goal of the Shari'a will not be achieved, and it will lead to intermixing the semen and genealogy. So the famous arguments are imperfect because the famous jurisprudents cite the generality and absoluteness of the arguments, which is specified (Takhṣīṣ) by the arguments that indicate the obligatory of Istibrā.

Although the hadiths on obligatory of Istibrā are complete, some have raised the objection that since the famous jurisprudents have abandoned the hadiths on obligatory of Istibrā, they should be abandoned because it indicates their weakness.

In response to this problem, it should be said that although the famous jurisprudents' abandonment (E'erad) of a correct hadith indicates its weakness, two conditions have been mentioned for it, and if these two conditions are met, the famous jurisprudents' abandonment suggests the weakness of the hadith: a) What is meant by the famous, is the early scholars (Qodama); That is, if the famous Qodama had abandoned a hadith, this abandonment indicates the weakness of the hadith. B) Their abandonment is due to a reason that they have achieved and we have not achieved. In other words, it is not probable that their abandonment is based on ijtihad or because of the rules of conflict or because of taqiyyah, which these two conditions do not exist in the discussion of the adulteress' Istibrā. Because, first of all, given that Koleini has mentioned the obligatory of Istibrā in al-Kafi (Koleini, 1407 AH, vol. 5, p. 356), without referring to the opposing hadith, which is the realization (Kashif) of his fatwa (Shobeiri Zanjani, 1419 AH, vol. 7, p. 2119). Also, Sheikh Mofid in Al-Muqna'ah (Sheikh Mofid, 1413, p. 504) and Sheikh Tusi in Tahzib Al-Ahkam (Sheikh Tusi, 1407, vol. 7, p. 327) have accepted the obligatory of Istibrā, so the famous early scholars' (Qodama) abandonment of these hadiths are not very clear. Secondly, this abandonment is not because they had a reason that did not reach us, but their abandonment is based on ijtihad. According to what has been discussed, the author believes that the famous arguments are imperfect, and their abandonment does not indicate the weakness of the hadiths whose contents imply the obligatory of Istibrā.

It is also imperative for the Shari'ah to preserve the semen (Miah) and genealogy (Ansab), to the extent that the Prophet Mohammad (PBUH) cursed one who falsely attributes him or herself to another person: ''May God curse the one who attributes himself to someone other than his father''. Therefore, given the strength of the arguments of those who believe in the obligatory of Istibrā, their opinions are preferable, and adulteress' Istibrā is necessary and obligatory.

Keywords

• Marriage permission
• cosmetic surgeries
• family system
• family expediency

20.1001.1.23452692.1402.11.3.3.3

Main Subjects

• marital satisfaction