چکیده:
Most Islamic scholars have considered the 'condition of non-remarriage' in a marriage contract to be void and invalid. Among the Sunnis, some have ruled such a condition void or invalid with the argument that the contract does not necessitate it, while others have done so based on the perception that the default state in transactions, contracts, and conditions is corruption (invalidity) unless evidence for validity is provided. Most Imami jurists also consider the aforementioned condition void and a condition contrary to the Book (the Holy Quran). In this article, the proofs presented to establish the invalidity of the discussed condition have been critiqued and reviewed. After investigation, since none of those arguments have a clear and acceptable indication of the invalidity of the said condition, based on the ruling of the famous hadith 'Muslims are bound by their conditions' and other reasons, we conclude that if a husband commits to such a condition within a binding contract, he is obligated to fulfill his commitment.
خلاصه ماشینی:
Most great jurists consider such a condition void, ineffective, and invalid, and do not consider its fulfillment mandatory; below a selection of opinions from the prominent Islamic scholars is mentioned: 1 ـ Sheikh Tusi: «وَ لا یَتَسَرّی عَلَیها وَ لا یَتَزَوَّجَ عَلَیها، فَهذا شَرْطٌ باطِلٌ» (Al-Mabsut, 4/303) Translation: If the husband, within the marriage contract, stipulates for the benefit of his wife that he shall not have a concubine for intimacy and also shall not choose another wife, such a condition and commitment is void and ineffective.
For clarification, we proceed to examine the narrations relied upon: 1 ـ Al-Ayyashi in his tafsir, from Ibn Muslim, from Abu Ja'far (AS), said: «قَضی اَمیرُالْمُؤمِنینَ فی امْرَأةٍ تَزَوّجَها رَجلٌ وَ شَرَطَ عَلَیها اَوْ شَرَط عَلی اَهْلِها اِنْ تَزَوَّجَ عَلَیْها امْرأةً اَو هَجَرَها اَوأتی عَلَیها سُرِّیةً فانِّها طالِقٌ فقالَ (ع): شَرْطَ اللهِ قَبْلَ شَرطَکُمْ اِنْ شاءَ وفی بِشَرْطِهِ وَ اِنْ شاءَ اَمْسَکَ امراتَهُ وَ نَکَحَ عَلَیها وَ تَسَرّی عَلَیها وَ هَجَرَها اِنْ اتَتْ بِسَبیلِ ذلِکَ قالَ اللهُ تعالی فی کِتابِهِ فَانْکِحوا ما طابَ لکُمْ مِن النّساءِ مَثْنی وَ ثلاثَ وَ رُباعَ» (Hurr al-Amili, 15/3) Translation: Al-Ayyashi in his tafsir, quoting Ibn Muslim from Imam al-Baqir (AS), has narrated that the Commander of the Faithful (AS) regarding a woman whom a husband, during the marriage contract, had stipulated with her or her family that if he marries another woman over her, or abandons her, or takes a concubine chooses, she shall be divorced; he so judged and said: God's condition and judgment take precedence over your condition.
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