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

This research undertakes an in-depth examination of the legal and jurisprudential basis for granting the wife the right to rescind (annul) the marriage contract (Nekah) specifically when the husband demonstrates an established or subsequent inability to fulfill his financial obligation of maintenance (Nafaqah). Maintenance, codified primarily under Articles 1106 and 1107 of the Iranian Civil Code, represents one of the most critical financial rights bestowed upon a wife, encompassing provisions for housing, sustenance, clothing, medical expenses, and other needs commensurate with her social standing and customary expectations. While the legal framework prescribes various enforcement mechanisms to compel payment—ranging from judicial orders to criminal proceedings—the practical reality often leaves the wife vulnerable and disadvantaged, particularly when the husband claims indigence or defaults post-judgment.

The core objective of this investigation is to rigorously assess the viability of Faskh (rescission) as a proactive and more accessible legal recourse for the wife, contrasting it with the complex and often protracted process of Talaq (divorce), which is exclusively initiated by the husband or requires judicial intervention under specific, stringent conditions (as per Articles 1129 and 1134 of the Civil Code). The methodological approach employed herein is descriptive-analytical, synthesizing extensive references from classical and contemporary Fiqh sources—including texts by Al-Hilli, Shahid Thani, and contemporary jurists like Imam Khomeini and Ayatollah Sistani—alongside modern Iranian legal statutes and scholarly commentary from leading figures such as Dr. Katouzian and Dr. Jafari Langroudi.

The analysis begins by scrutinizing the existing enforcement spectrum. Legal remedies primarily focus on compelling payment: the ability of the wife to sue for past and future maintenance, the preferential status of maintenance debt over other liabilities (Article 1206, Civil Code), and coercive measures such as seizing a portion of the husband’s wages (Article 96, Execution of Civil Judgments Law) or, as a last resort, imprisonment based on the Law for Enforcement of Financial Judgments. However, the inherent delay and the husband’s potential for temporary insolvency undermine these measures, often defeating the immediate purpose of maintenance.

The central thesis of this paper argues for the establishment of the right of rescission based on two robust legal pillars: (1) Khiyar Tadlis (Option of Deceit/Misrepresentation) and (2) Breach of an Implied Stipulation. In the context of Tadlis, the paper contends that if the husband knowingly conceals his pre-existing financial inability at the time of the marriage contract, this deliberate silence regarding a core determinant of the contract—the ability to provide for the wife’s needs—constitutes a form of negative deceit (Tadlis-e Manfi), as recognized by jurists like Katouzian. This deceit invalidates the mutual consent concerning the wife’s expected quality of life.

Furthermore, even when the incapacity is Tari (supervening or arising after the contract), the argument posits that the husband’s ability to pay maintenance is an implicit, foundational condition of the marital agreement. The non-performance of this duty, particularly when it results in hardship, amounts to a fundamental breach of the contractual understanding, justifying the wife’s resort to Faskh. This view finds support in the jurisprudence that views the provision of necessary means as intrinsically linked to the marital bond itself, as indicated by statements in Riyad al-Masail and Sharai’ al-Islam.

The paper also delves into the complex implications regarding the dowry (Mahr) following rescission. It analyzes the scholarly divide on whether the wife is entitled to the stipulated dowry (Mahr al-Musamma) or the customary equivalent (Mahr al-Motaa). Based on the principle that rescission primarily affects future obligations, the analysis suggests that if the grounds for rescission (e.g., incapacity) emerge after consummation, the wife should retain her right to the stipulated dowry, aligning with a more protective interpretation that favors the wife’s vested rights upon a contractual failure by the husband.

In conclusion, establishing the Khiyar Faskh for the wife due to the husband’s failure to pay maintenance is presented not merely as an abstract legal proposition but as a pragmatic solution that aligns with the spirit of Islamic family law, which prioritizes the protection of the vulnerable party. It offers a faster, less ritualistic path to dissolving a partnership based on unmet fundamental obligations, thereby enabling the wife to regain her agency and economic capacity sooner than through the established divorce proceedings. The findings strongly advocate for legislative consideration to formalize this right, ensuring that the sanctity of marriage is not maintained at the cost of a woman’s financial security and inherent dignity.