Criminalization of relinquishment to pay maintenance in the law and Jurisprudence of Iran with a view on Sunni Jurisprudence

Document Type : Research Article

Author

Department of Fiqh (jurisprudence) and basis of Islamic law, Qom Branch, Islamic Azad University, Qom, Iran

Abstract

Background and objectives: Relinquishment to pay maintenance is criminalized in law and if  husband fails to pay maintenance, he will be prosecuted. According to the majority of Imamiyya jurists, any husband who refuses to pay the alimony of his wife, while having financial capability, will be sentenced to imprisonment. Accordingly, Article 642 of Penal Code also convicts such husband to imprisonment. But given the negative effects that these sentences can have on the basis of the family and the relationships between couple, the question arises as to whether these laws are subject to revision or modification
Methodology:  The study is descriptive-analytical and library method is used for data collection.
Findings: The evidence used for permission of husband's imprisonment is based on traditions that report Ali (AS) imprisoned husbands who refused to pay the alimony of their wives. Some also referred to narrations that generally refer to the husband's imprisonment if he did not pay for his wife's alimony.
Conclusion: The given narratives do not permit imprisonment of an insolvent husband nor the one of unknown state or one who claims insolvency unless his  claim is proved; discretionary sentencing merely applies on an insolvent husband who refuses to pay the alimony of his wife and does not have actual property. Therefore, because of negative consequences of sentencing, criminal rules on family matters, particularly the general policies on family, shall be reviewed.

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The Journal of Islamic Law Research
Volume 20, Issue 1 - Serial Number 49
September 2019
Pages 169-194

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History

  • Receive Date: 28 April 2019
  • Revise Date: 27 June 2019
  • Accept Date: 28 July 2019

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