World Applied Programming, Vol (4), Issue (1), January 2014.

50-53
ISSN: 2222-2510
2013 WAP journal. www.tijournals.com

Substitution in Divorce in Jurisprudence and Islamic

Republic of Iran Statute Law
Fatemeh Rezaei Zarchi *

Syed Ahmad Mir Khalil

Department of law, Payame noor

University, Iran.
fatimarezaei@yahoo.com

Department of Faculty of Theology,

University of Yazd, Iran.

Abstract: In Islamic worldview, Family, as the unit responsible for mans happiness or misery, has been
regarded as the most important pillar of the society. The family unit is formed when a man and woman are
called husband and wife through marriage contract. Although very sacred and important, the family unit, when
necessary, can be broken through the ways Islam has proposed. The breaking of marriage contract is called
divorce. There are several kinds of divorces. In Islam, divorce is Ijadee, i.e. it is mens prerogative. Like
every other vicarious act, divorce can be performed through a deputy. This is possible in two ways: The man
can choose a third person as his deputy in divorce. The man can assign the act of agency to the wife herself. The
present study is going to discuss different Islamic sects legal and religious commandments of vicarious
divorce, its conditions to be mentioned in the marriage contract and its details to be thought to the young
couples.
Keywords: divorce, vicarious, conditions, Substitution, statute law, Imami jurisprudence, Advocacy

I.

INTRODUCTION

(Dates are a solar calendar text).

Aspects of social collaboration representation; because individuals scientific and physical the acts that potential not
fulfill it or for some reason do not want their, become directly involved in the expert lawyers, are familiar and formidable
And every day with the development of science and technology and more complex social relations and the establishment
of rules and regulations will increase the importance of proxy. Given the importance of that these instruments effective
and social relationships are important to the Law, Also study comes to the conclusion that the Jurisprudents and lawyers,
Basically, these are the representation, unless the legislature them to oversee the conduct and condition is deemed
necessary.
This study is subject matters including: Which legislature has expressly stated significant representation of it, and hence
existed in this setting is no disputes on the debate. Moreover, Islam is one of the solutions that to support and strengthen
families and protect the rights of parties to the marriage contract has provided Terms during contract countries that the
statute law is stated.
The possibility of substitution wife in divorce
A - jurisprudence Imamiye
In Imami jurisprudence: Two original comments concerning the possibility of granting the wife in divorce proxy is
present:
1 - Permit substitution divorced to female: Famous theory of in jurisprudence: is that a man can do to woman can
entrust divorce proxy (Heli, 2010);( Ameli, 1996);( Rohani, 1994);( Ibn Idris, 1896). The reasons are listed for this
claim; we will refrain from mentioning them.
2 - Do not permit a woman to divorce substitution: Shaykh Tusi has therefore opinion that representation of women in
divorce cases even in the absence of her husband is not correct (Al-tusi, 1995). The idea has been to demonstrate
adherence to several reasons; we will refrain from mentioning them.

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Fatemeh Rezaei Zarchi and Syed Ahmad Mir Khalil. World Applied Programming, Vol (4), No (1), January 2014.

B - Sunnite jurisprudence
All four Sunnite religions, knows permitted substitution in divorce. They believe that there is a possibility of substitution
wife in divorce and argue to prove their claims, From man that is divorced and has his owner Unilateral contract, And
can actually make personally or another it does a attorney(Abd al-Hamid, 1989).
C - Substitution in countries rights
1 Iran
About substitution of divorce, women rights in Iran have followed the famous jurisprudents.
Article 1119 of the Civil Code states: Both sides can be marriage contract, each condition that is not contrary to the
essence, meanwhile marriage contract or agreement other necessary preparations, Condition is such as being whenever a
married husband or a certain period of time is absent or leave to Alimony or does malicious intent or abuse will against
her life, Their life together becomes unbearable that her is attorney and attorney in substitution After proving the
fulfillment of of the Condition and the tribunals Issuance of final vote, makes his divorced.
What representation as shackles in Article 1119 of the Civil Code states, as an example and Samples and the two sides
can be compromise conditions for the realization of women representation in divorce are certain (Katoozian, 1982).
In listed 1138 article:"May be performed by the attorney in the divorce."
However, Iran's current legal principle, possible substitution including to another women there. The man can also decide
to grant representation to do the legal work and can also give representation enforcement to another divorce. This decree
has been accepted and approved by the jurists( Saberi Safai, 1966).
2 - Law in Egypt
Egyptian personal status law on divorce did not specify an article substitution, But jurists who are believed to have been
the law of the Egyptian legal Hanafi jurisprudence as well as what is said, Divorce his wife reasons the same substitution
is possible that the Sunni jurisprudence was quoted (Naji,1970).
Types of substitution
1 - Independent substitution
Substitution is independent of the couple signing a contract lawyer and contract independently of the other spouse in the
divorce lawyer makes. Such praying is permissible to marry according to the principle of advocacy on behalf of each of
the spouses is revocable, and especially couples can do before it can terminate the representation (Jalali, 2009).
2 - Substitution to Stipulation
This kind of representation is not independent, but also marry couples whose marriage is usually the wife's divorce
lawyer, and civil law as well as a provision in Article 1119 is accepted them. According to the article, "provided that
both parties to the marriage cannot disagree with the essence of aforementioned contract, in addition to contract another
marriage or are still too; Such as the requirement that whenever a husband to take another wife, Or be absent in certain
time or leave to charity or make an attempt on against life of women living them together or abuse that is intolerable,
Female is a attorney and the lawyer's substitution proved the fulfillment of after the condition and adjudicating court to
divorce her; According to the same article the Supreme Judicial Council has included provisions in the Marriage
Certificate in which Couples the wife's attorney will immediately remove the right of non-substitution, Which proved the
fulfillment of the conditions stipulated by the twelve to the divorce court.
If these conditions are signed by the parties, the authority shall be established for the wife, In addition to the parties to
the recent article by adding twelve cases are mentioned, and Absolute wife's divorce attorney and even they could also
have mentioned marriage.
Sunni jurisprudents have stated: In addition to the stipulation that the substitution is not revocable, if a man can divorce
attorney in person and give it to the Female will and providence, as if to say: "You're my lawyer in a divorce if my wife
will be".
If the Female accepted the representation in the House is fixed, Parliament after a divorce and the lawyer can actually
make the case one-way attorney is the propertied; Because is the job attorney advocacy and the representation Female in
works of providence are such that man could no longer representation to terminate, And if Female did not accept the
Council's divorce representation be not fixed(Al-jvzyhe, 2002).

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Fatemeh Rezaei Zarchi and Syed Ahmad Mir Khalil. World Applied Programming, Vol (4), No (1), January 2014.

Type of divorce by the wife, to husband's representation

Done by divorce attorney who do divorce jurisdiction divorce decrees has the property that changed about a reversionary
or may not be irrevocable. Thus, for example, by head office divorce attorney husband is actually, Reversionary or
similar terms are irrevocable divorce from the defendant's and whenever certain conditions such as being irrevocable and
Minor, menopause, etc. exist, Divorce is irrevocable and is otherwise Revocable divorce, What can be divorced from the
original or the attorney.
Conditional on the representation of women in the marriage, while some jurists (Emami, 1984) Opinions that are
considered the irrevocable divorce based on the representation of women even if their nature is revolving.
In confirmation of this view argue that the intent and provisions, while building a couple of putting contract, Dissolution
of marriage without the husband always refers to the number of days and Mentioned condition has been established to
benefit the wife to be able to disband the marriage itself will escape the shackles of marriage.
Well as in support of this belief, it is said that this problem divorce is irrevocable and revolving derives from its normal
position, and function intention of the parties is not, do not enter; Because the divorce is indisputable deposed and essays
that can be Revocable divorce, irrevocable divorce to convert, and then refer the woman to Financial and Money back
Revocable divorce. In response to this problem irrevocable divorce that cases listed in Article 1145 of the Civil Code and
there is no mention of such divorces also been told that Mentioned article are divorces that husband is actually based on
a stipulation of divorces is withdrawn.
Some jurisprudents including Imam Khomeini different theoretical said: In cases where the woman's lawyer, the divorce
is what type of divorce are function conditions.
In their case law in which the wife of the couple's marriage is also stated: If a woman marries all the mahr, and was
nominated for half the mahr after divorce should be granted, and revocable divorce if was husband cannot refer them,
although without the consent of the woman.
Man can give his wife a divorce representation their can do it religiously and from where couples where the woman is
premenopausal intercourse Revocable divorce is only possible, at the same representation can be given to transferred to
someone else. When that proved the feasibility representation does not matter that person is your lawyer or another
person's wife. However, the Imam Khomeini (ra) said: Revocable divorce, is not irrevocable condition (Mousavi
Khomeini,2001).
II. CONCLUSION
This study investigated the proxy divorce from the perspective of law and jurisprudence has achieved the following
results:
1 - About the wife's representation and renowned Sunnis jurisprudents are unanimous and Imamiye about its licensors.
And are of the opinion that because the man wants divorcing and whenever, it is also a divorce can run it on
representation and the Vice character is not involved in it, So there is no reason not to permit a credit dispute between
attorney and client, where the lawyer is divorced wife, This accuracy is sufficient for Unilateral Contract.
2 - The wife's divorce lawyer can think of two ways:
A) The substitution for Stipulation: Here are the couples who marry while marriage is usually; as a condition of the
divorce, the wife of attorney gives the Iranian Civil Code article 1119 has accepted them. So Article Supreme
Judicial Council in accordance with the terms contained in the document where the couple Marriage Certificate
wife immediately dismissed by the substitution of attorney otherwise provides; which proved the fulfillment of
the conditions stipulated by the twelve to the divorce court. In case these conditions are signed by the parties,
the authority shall be established for the wife, In addition to the parties to the recent article by adding twelve
cases are mentioned.
B) Substitution is independent of the couple signing a contract lawyer and contract independently of the other
spouse in the divorce lawyer makes. Such advocacy is permissible to marry according to the principle of
attorney, each of couples is revocable by the particular couple can do before it can terminate the representation
In response to this objection, we independently concluded by a contract the divorce lawyer's client No Uninstall
also contract out other necessary.
For sale, as is the act requirement, However, in case of failure to execute the warrant if he promises to eat problem
returns; So we can say that as a substitution of the divorce stipulation of marriage, As the best way to liberate women
where men hold them in unfavorable situations They are refused the divorce and still is recognized.

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Fatemeh Rezaei Zarchi and Syed Ahmad Mir Khalil. World Applied Programming, Vol (4), No (1), January 2014.

REFERENCES
[1]
[2]
[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]

Ibn Idris, Srayr, (1896), al-Hadi Publishing Institute, V 2. Pp. 95.

Emami, SH, (1984), Family Law, third edition, Tehran: Islamia. V 4.
Jalali, M., (2009), the wife of the Iranian legal divorce, first edition, Tehran: Khorsandi, pp. 167.
Aljvzyhe, Shams al-Din Abi Abdullah Muhammad Ibn Qayyim; (2002) stated Al-mvqyn, printing, publishing Mktbh Dar Al-lbnan , vol 2, p
417.
Helli, Hasan ibn Yusuf ibn holy; (2010) Ayzah Al-fvayd Fi Bugs description Al-qvayd, Qom Al-elmie Press publication, first edition, vol 3, p
293.
Rohani, Seyed Mohammad Sadegh; (1994) Fiqh al-Sadiq, second edition, Qom: publishing books,, vol 3, p 375.
Al-tvsi, Abu Ja'far Muhammad ibn al-Hasan, (1995) Al-mbsvt, Qom Islamic Nshrmvssh, vol 5, p 30.
Amel, Zinedine Ben Ali (known as a martyr second) (1996) Msalk Al-afham or enemas Religious laws of Islam, first edition, Qom: Islamic
Publications, vol 6, p 4.
Abd al-Hamid, the al, (1989), decrees the dissolution of the a contract and Alqanvn Alzvaj fi Fiqh al-Islami al-Iraqi, Alhkmh bit publishing,
first printing.
Katouzian, N., (1982), Civil Rights, Family, Third Printing, Publishing Company in cooperation with the Bahman Borna. , Vol 1, p 680.
Mousavi Khomeini, Seyyed Ruhollah; (2001) Tahrir Al-vsylh, Third Edition, Institute of publishing, Vol 2 - p 225.
Nagy, M., (1970) describes the personal status law, printing, publishing Al-rabth, p 245.

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