The conflict between the duty to fulfill marital obligations and the legal requirements for establishing the characterization of nushuz

Document Type : Original Article

Author

Graduate of Jāmi‘at al-Zahrā University

Abstract

The fulfillment of marital duties, as one of the obligations of the wife, is explicitly stated in both Islamic jurisprudence (fiqh) and the Iranian Civil Code. The impossibility of performing two obligations at the same time and in the same place gives rise to a conflict (tazāhum). Accordingly, where, in practice, the performance of marital duties becomes incompatible with the wife’s employment, such a conflict arises. Legal obligations deriving either directly from statutory law or from contract likewise constitute duties imposed upon the wife, depending on her circumstances, and may require action or abstention from action.
In cases such as the statutory obligation of full-time employment during the COVID-19 period for nurses, where compliance with the legal requirement is, in practice, incompatible with the performance of marital duties, a conflict emerges. In such situations, the interpreter of the law on the one hand, and the judge on the other, are required to resolve this conflict. The central focus of this article, however, is the conflict arising from the absence of an employment stipulation. This article examines the instances of such conflict—which naturally manifest within the sphere of family law—and proposes appropriate solutions based on the Iranian Civil Code and Imami (Jaʿfari) jurisprudence.

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