Legal and Jurisprudential Bases of Divorce from Missing Absent Husband Due to Expiration of Four Years Since the Date of Missing or Duress in Viewpoint of Imam Khomeini

The divorce of wife of a missing absent husband is among the intangible (non-financial) rights of the wife. In some cases due to the absence of husband, the wife faces hardship and duress with regard to financial issues and alimony as well as non-financial demands such as fulfillment of natural, sexual and emotional needs. According to the prevailing viewpoints of jurisprudents and the civil code, if the husband remains missing absent for four years his wife can move to court and appeal for divorce. The present paper is an attempt to study this issue. Some contemporary jurisprudents like Tabatabi Yazdi maintain that if the wife’s commitment to the marriage bond during the absence of the husband causes her to commit sin, either out of compulsion or by will, divorce in necessary in order to protect her from sins. In case of missing of husband, if going through the legal process of search and investigation about the missing husband causes the wife to commit sin, the religious ruler can get her divorced before waiting for the expiry of four years. This decree can be a new individual inference (ijtihad) in the light of requirements of time, space and new issues. Some examples of this kind of individual inference are seen in Imam Khomeini’s decrees.