Time-Limiting the Condition of the Wife’s Employment: Transition from the Traditional Approach to a Time-Constrained Theory
Subject Areas : Family LawMohammad Taati sereshke 1 , Ataollah Esmaeili 2
1 - Master of Private Law, Department of Law, Ahrar Institute of Higher Education, Rasht, Iran.
2 - - Assistant Professor of Jurisprudence and Islamic Sciences, Department of Quranic and Hadith Sciences, Faculty of Literature and Human Sciences, University of Guilan, Rasht, Iran.
Keywords: Condition of Wife’s Employment, Temporal Limitation of Condition, Rule Prohibiting the Lawful (Taḥrīm al-Ḥalāl), Condition of a Legal Act, Article 1117 of the Iranian Civil Code, Hardship and Exigency (‘Usr wa Ḥaraj).,
Abstract :
Today, the stipulation of the wife’s right to employment within the marriage contract is regarded as the most significant protective mechanism for women’s occupational rights within the family sphere. However, Iranian legal doctrine and judicial practice have largely neglected a precise analysis of the relationship between this stipulation and the jurisprudential rule: “lā yuḥillu ḥarāman wa lā yuḥarrimu ḥalālan” (one shall not render the unlawful lawful, nor the lawful unlawful). Adopting a descriptive-analytical method and critically re-examining Islamic jurisprudential sources (the Hadith of Conditions, the rule prohibiting the permissible, the rule of conflict [tazāḥum]) as well as Articles 234 to 239 of the Iranian Civil Code, this article argues that accepting an absolute condition of employment (without any time limitation) necessarily transforms a permanently permissible act—“refraining from the forbidding of (the wife’s) employment”—into a forbidden (ḥarām) act, rendering the condition void and null. In contrast, the theory of “temporal limitation of the condition”—i.e., restricting the condition to a specific period, such as “until the termination of employment in [a given] job” or “until retirement age”—preserves the original permissibility (ibāḥa) and does not entail the prohibition of the lawful; thus, the condition is valid and enforceable. The author, through a typology of employment into (i) rationally obligatory (arising from the husband’s insolvency), (ii) collectively sufficient obligatory (socially essential occupations), and (iii) purely permissible (mubāḥ), limits the scope of the temporal-limitation theory to the last category, maintaining that the obligatory types require no temporal restriction whatsoever. Finally, while critically analyzing a judgment of the Tehran Provincial Court of Appeal which, relying solely on Article 28 of the Constitution and disregarding the rule prohibiting the lawful, upheld the absolute condition as valid, the article offers several solutions: “revision of Article 1117 of the Civil Code,” “enactment of executive regulations for notaries public,” “amendment of the standard marriage certificate,” “uniform judicial interpretation,” “differentiation in legal representation and counselling,” and “comparative legal research.” This article innovatively demonstrates that the theory of temporal limitation, contrary to the traditional approach, is not only more consistent with Imamiyya jurisprudence (fiqh) but also, by establishing a balance between party autonomy and public order, can contribute to the consolidation of the family foundation.
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