The Implicit Condition of Sexual Exclusivity in Permanent Marriage: An Analysis of Its Foundations in Imami and Sunni Jurisprudence and Its Legal Implications

Document Type : Original Article

Authors

1 Faculty member, Law Department, Ayatollah Boroujerdi University

2 PhD in Jurisprudence and Fundamentals of Islamic Law, Ferdowsi University of Mashhad

10.22091/dplic.2025.13120.1059

Abstract

Adopting a comparative approach, this article analyzes the legal status of the spouses’ silence regarding procreation in a permanent marriage contract within Imami and Sunni jurisprudence. The findings indicate that the divergence between these two schools in interpreting such silence is not merely a secondary difference but reflects a deeper philosophical contrast in their conceptualization of contractual nature. Although both schools agree that procreation is not an intrinsic element of marriage, they diverge significantly when facing the spouses’ silence: Imami jurisprudence, grounded in a purposive and customary paradigm, interprets silence as an implicit (presumptive) condition. Relying on social custom and the rational objectives of marriage, it recognizes hardship (ʿusr wa ḥaraj) as a valid ground for remedy when one party refuses procreation. In contrast, Sunni jurisprudence, adhering to a formalistic and textual paradigm, validates only express intent and, in the absence of an explicit stipulation, denies any enforceable obligation or sanction. The study argues that the issue of procreation serves as a key to reinterpreting the fundamental differences in contract interpretation within Islamic jurisprudence and underscores the necessity of explicitly stipulating agreements related to procreation in marriage contracts. Beyond its contribution to comparative jurisprudence, the findings carry practical implications for family law legislation.

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