بررسی حق فسخ زوجه به عنوان ضمانت اجرای عجز زوج از پرداخت نفقه

This article seeks to examine the possibility of rescission of marriage (*fasḵ*) by the wife where the husband is unable to provide maintenance/ alimony (*nafaqa*), by conducting an in‑depth analysis of the relevant jurisprudential and statutory foundations. The study argues that such a situation may be classified as either a breach of an implied condition or as *tadlīs* (fraudulent misrepresentation) within the marriage contract. The analysis begins by examining the nature and jurisprudential basis of maintenance, demonstrating that alimony or *nafaqa* encompasses all customary needs of the wife, including housing, clothing, food, medical care, and essential living expenses. The conditions governing the obligation to pay maintenance are then addressed, revealing two core prerequisites: the existence of a permanent marriage contract and the wife’s lawful cohabitation and compliance (*tamkīn*). Regarding available legal remedies, both criminal and civil mechanisms are examined. Under criminal law, a husband who, despite financial ability, intentionally refuses to pay maintenance is subject to sixth‑degree imprisonment pursuant to Article 53 of the Family Protection Act. Under civil law, the wife may claim maintenance before the family court and, in cases of persistent refusal and impossibility of enforcing the judgment, may request divorce under Article 1129 of the Civil Code. Given the complex and often protracted nature of divorce proceedings, this article contends that recognizing a right of rescission may serve as a more effective legal remedy. If the husband falsely portrays himself as financially capable at the time of contracting the marriage, and it later becomes evident that he lacked such ability from the outset, such conduct constitutes *tadlīs* or fradulant in marriage and, under Article 1128 of the Civil Code, gives rise to the wife’s right of rescission. Moreover, where financial incapacity arises after the marriage (supervening inability), this may be regarded as a breach of an implied essential condition regarding the husband’s financial capacity, thereby enabling the wife to rescind the marriage based on violation of an essential attribute of the contract. From a jurisprudential standpoint, the views of prominent jurists—including Shahid al‑Thānī, Fazel Hindi, and Imam Khomeini—are examined. These scholars have generally permitted the judge to compel payment of maintenance from the husband’s property where possible and to order his imprisonment where he lacks the ability but refuses to comply. However, in cases of absolute inability where no payment is possible, some jurists have explicitly recognized the wife’s right to rescind the marriage. This position, both logically and jurisprudentially, aligns with the Islamic principles of justice and the preservation of the woman’s dignity. Relying on Dr. Katouzian’s theory regarding the effects of rescission, the article further explains that rescission operates prospectively, and in cases where consummation has occurred, the wife’s right to the named dower (*mahr al‑musammā*) or gifted money remains intact. The study concludes that recognizing the wife’s right to rescind the marriage upon the husband’s inability to pay maintenance is not only compatible with jurisprudential principles and the Civil Code, but also constitutes an effective mechanism for protecting the wife and strengthening financial responsibility within marriage. This remedy, by reducing procedural complexities, facilitating judicial proceedings, and safeguarding the woman’s dignity, can help prevent repeated economic and psychological harm. Accordingly, the article recommends that legislators, drawing upon jurisprudential foundations and principles of social justice, consider incorporating this remedy into family‑law reforms, thereby ensuring both protection of the wife’s rights and preservation of family stability.