خلاصة:
Marriage is a sacred bound that is materialized through marriage contract and entails some rights. Since marriage is related to religion and ethic, with the change in viewpoints about human beings and their essential dignity, marriage cannot be merely considered a simple framework for body relief. Hence, it is permissible to incorporate any lawful condition in the marriage contract on mutual consent of the would-be spouses. Therefore, there are different viewpoints by jurisprudents about the following issue: Can the would-be wife give her consent to marriage on the condition of refrainment from sexual resignation to her would-be husband (which is called lack of tamkin)? The Arabic word tamkin in jurisprudence refers to the canonically obligatory sexual resignation of woman to her husband (except during menstruation, pilgrimage to Holy Mecca, illness of wife or husband or any particular condition of either or of the physical environment in a given Muslim society that reasonably disallows intercourse). Some jurisprudents maintain that incorporation of this condition in marriage contract is lawful, while others argue that any condition violating sexual resignation of wife with her husband’s demand for intercourse is unlawful. These differences of opinion stem from various understandings of requirements of marriage contract and its dependence on wife’s resignation with husband’s demand for intercourse. It seems that tamkin is not a requirement of the essence of marriage contract, but the requirement of relaxation of contract. Given the fact that the lawgiver is silent in this regard, attempts have been made in the present paper to assess the jurisprudential viewpoints of Islamic schools of thought and those of lawyers and also study this condition based on Imam Khomeini’s approach and explanation of his reasons as well as relying on reasons given in the Book and Tradition. The marriage contract can be relaxed if wife avoids to allow penal insertion by her husband without any excuse. In the light of temporal variables and intervention of the notion of time and space in ijtihad (individual inference) as well as based on rational exigencies, this paper argues that the husband’s right regarding wife’ resignation with sexual intercourse is withdrawn if the two parties to marriage agree in their marriage contract to this effect.
ملخص الجهاز:
This article aims, by considering the silence of the legislator in this regard, the views of Imam Khomeini, the jurisprudential opinions of Islamic schools, and the perspectives of legal scholars, and by explaining their evidence relying on reasons found in books and Sunnah, the validity of marriage of an excused spouse, the possibility of waiving the right to tamkin by the husband, etc.
A group of jurists consider the fundamental goal and wisdom of marriage to be procreation and childbearing, and they regard sexual relations as a necessity for this purpose, and they do not consider withdrawal (azl) permissible; because they believe that withdrawal is incompatible with the wisdom of marriage (procreation) and the purpose of the Legislator: «لا يجوز العزل عن الحره بغير شرط ، ذلک حـال العقد لمنافاته لحکمۀ النکاح و هي استيلاد» (Shahid Thani 1412, Vol. 2: 68); therefore, some jurists of this group, based on this principle, receive a condition contrary to procreation and reproduction as being against the essential requirement of the contract (see: Allamah Hilli 1413, Vol. 7: 164; Sheikh Tusi 1387, Vol. 4: 303) and some of them, from this perspective that the condition of non-tamkin is in conflict with the apparent effect of the marriage contract (intimacy), have expressed opposition to stipulating it (see: Musawi Bijanurdi 1401, Vol. 2: 477).
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