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نشوز الزوجة : دراسة مقارنة == Wife's Disobedience Comparative Study
Author name:
فراس جرجيس خلف الخاتوني
Supervisor name:
عبد المحسن قاسم الحاج حمو العبادي
General topic:
Law
Specific topic:
Personal Status Law
Degree:
Master
University:
University of Al Mosul - Collage Of Law - Department Of Private Law
Language:
Arabic
University location:
Mosul
Key words:
- نشوز الزوجة
- سبب
- شرعي
First pages:
13T1544 - p.pdf
Abstract:
نشوز الزوجة هو ارتفاعها عن اداء الحق الواجب عليها تجاه زوجها المتمثل بطاعته ومعاشرته بالمعروف وتسليم نفسها له وملازمة المسكن.وقد اختلف الفقهاء في معنى النشوز الذي بحثناه في المطلب الثاني من المبحث الاول من الفصل الاول، والراجح في ذلك هو تعريف بعض الشاف | Wife's disobedience is the case when she gets astray on doing her duties to the husband; which is to obey and to live peacefully with him. In addition to giving herself up for cohabitation. Scholars have different views opposite to each other to the meaning of disobedience. The most common one is the definition of some Shafia; that is mentioned above. Since it implies most of the wife's disobedience methods and ways that are mentioned in the prophet's Sunna that was verified after the Holy Quran. It taboos the disobedience. The researched legislation laws that are the Iraqi, Syrian and the Egyptian have adopted the concept of disobedience judgment concept that is Al - Hanafi's definition. It includes the concept of having the wife getting out of the marital house and not to cohabit with the husband for no reason. Whereas the Moroccan law adopted Al - Maliki's concept of disobedience. On the other side of the coin, the Tunisi law does not mention the disobedience concept, but it only omitted the obedience right of the husband lately and no further details as far as conduct are mentioned. And wife's disobedience has reasons which divided into illegal reasons to wife's disobedience that are divided into major and minor ones. Besides there are legal reasons as what's been agreed upon among Muslims scholars, and some disputed ones as well. These are many in the Islamic Faqah. The Iraqi and Egyptian code consider unjustifiable imprisonment as illegal reasons as the majority of the scholars consider it, whereas Al - Malikia and Abo - Yousif from Al - Hanafia consider it as a legal reason for disobedience if it was wrongful or for a dept. That's what we have agreed upon as well. The legal reasons have been pointed out by the Iraqi code and refers to in general term as (legal justification). Whereas it splitted the legal reasons for the legal house after it has appointed legal standards in item 2 of article 25 that is limited only to the illegal husband's disobedience, which is a legal reason for her disobedience. The Iraqi legislator was criticizing this. Whereas the Syrian and Egyptian legislator are better than the Iraqi one especially in the excuse issue of the women professionality. As far as the Egyptian one, it tackles the legal excuse in a very detailed and clear way. There are hidden and obvious disobedience types. The disobedience methods in the doctrines, so they coincide according to each one of them. The Shafia's doctrine has the most describable image for the wife's disobedience according to its definition. Then comes the Al - Hanbali, we have preferred the shafia's doctrine except in some issues; which are the wrongful imprisonment. Also, Ashora’ fasting, Arafa and the Sunnan prayers that are considered excuses and justifications to the wife unlike the point of view of the scholars’ majority. The disobedience image in all the Iraqi, Syrian and Egyptian laws is the same mostly. This is due to their taking the Hanafia's doctrine. The wife's disobedience has outcomes at the end whether in the Islamic Faqah or the situational law. Since there would be spiritual effects out of abandoning the husband to his wife in bed and hitting her gently and unharmfully. Also, her right would be dropped as far as sleeping when there are multi - wives. Besides, there are financial effects that are represented in dropping off the alimony temporarily. This is applicable to all doctrines except Al - Thahria, and when separation is sentenced. The Iraqi law has pointed out the abandon as a reason of the separation if it continues two or more years, as in article 43 of the identity cards code. Whereas the other Arabic codes has limited this period within 1 year or more. This period would be specified by Al - Aila’a which is 4 months as to what's been indicated in Islamic Sharia’a. Also, the Iraqi law has given the right to the husband to hit his wife as in the sanctions code. Whereas in the Arabic countries, the hitting is not a means to settle the wife down because women reached to high positions.The Arabic laws consider the wife's disobedience a dropping for the expenses after divorce. Also, the Iraqi legislator considers it a reason of separation and it effects the dowry, so it still criticizing as well. The obedience of the wives after their disobedience has conditions to be met in the Islamic Faqah. This is on two types : hidden one; that are done inside the marital house without a judge or by the wife herself based on the husband's way of settling her down. Or it could be an obvious one; that is after the wife's leaving the marital house and through a judge either by the wife herself or by the husband's invitation. The Iraqi and comparative laws do not mention but the last type, which is the obvious disobedience, since that law deals only with explicit and obvious issues.A rumor among barristers and lawyers says that the obedience case is a dead one in the Iraqi legislation. But this says unjustifiable is under view and correction.
