چکیده:
Given the key effects of the marriage contract, the discussion of 'the need or lack of need for specific words' is one of the important challenges in family law issues. In prevailing Shia jurisprudence, the realization of the marriage contract is considered dependent on specific words, and often, the terms 'Ankahtu', 'Zawwajtu', and 'Mutta'atu' have been regarded as the specific words of marriage. They have not made a distinction between the disabled and the non-disabled in this regard. Narrations of the solemn covenant (Mithaq al-Ghaliz), the Mut'ah formula, the narration of Tha'labah, the narration of Hawla, as well as practice (Sira), consensus (Ijma'), and presumption of continuity (Istishab), have been counted among the evidences for conditioning specific words. On the other hand, for reasons such as the verse 'O you who believe, fulfill [your] contracts' and the fourfold narrations of 'Every people has a marriage [custom]', the Quranic dowry, the distressed woman, and the 'Sukri' contract have been used as evidence and witness for the non-necessity of the three specific words. The result of assessing the aforementioned evidences is the negation of the requirement of specific words in the marriage contract of disabled individuals. It is clear that based on the totality of the evidence, the principle of requiring specific words for the realization of a legal marriage contract is established, and based on this, marriage by conduct (Nikah al-Mu'atati) is void and lacks legal effect.
خلاصه ماشینی:
jurists 1 consider the validity of marriage to be based on any word that conveys meaning, and Sheikh Tusi 2 and Ibn Barraj 3 also do not consider the specific phrases of marriage to be a condition only in the case where a lady apparently enters into a contract while intoxicated but, after recovering, consents to that contract and lives with the man.
5 A few opposing Shiite jurists include Fiqh al-Rida, Fayd al-Kashani, Bahrani, and Fazl al-Hindi 6 who do not consider the three specific phrases "Ankahtu, Zawwajtu, and Matta'tu dawaman" to be a condition for the validity of marriage; this is not to say they do not consider verbal expression to be a condition in an absolute sense; Fiqh al-Rida considers the basis for inferring the non-requirement of specific phrases to be the division of marriage into four types: permanent, temporary, concubinage (milk al-yamin), and tahlil, and although the conditions of the permanent contract Ibid, p.
). Muhaqqiq Khoei also considers the narration to be indicative of the requirement of specific wording in the marriage contract; based on these premises: first, the questioner assumes that something must be said and asks about its quality; second, the permanent contract has priority over the temporary one; and third, the necessity of the lady's response with "na'am" (yes), which is a word and a term.
The narration is sahih (authentic), and the author of Mustanad considers it supportive, while Muhaqqiq al-Khoei has regarded it as a clear evidence 1 , without providing an explanation for this claim; of course, regarding the aspect of reasoning, it might be said that the Imam considered the covenant to be the words through which the marriage contract is realized, and the "al" in "al-kalimah" is a mental reference (ahd dhihni).
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