Elucidation of Man's Independence in Divorce Based on Appropriative Quiddity of Marriage Contract

As mutually agreed upon by the two major sects (Shī‘a and Sunnī)، divorce is effected only by the husband; and to explain the evidence for this matter، the jurists commonly resort to the Prophet’s tradition، “Divorce is in the hands of the one who has touched the leg [i. e. in the hands of the husband]” Although this tradition is mainly related in the Sunnī tradition sources، it is claimed in Imāmiya jurisprudence to have consensus on its content as well. In this article، we intend to consider man’s will in one-sided act (īqā‘) of divorce not a merely devotional ruling، but as resulting from the quiddity and exigency of the nature of marriage and divorce، and view the mentioned tradition as basically guiding to the above reality. Accordingly، we regard the quiddity of marriage as “tamlīk (appropriation of) or taslīṭ (having absolute domination over) buḍ‘ (vagina) in return for bridal gift” and the reality of divorce as “a ceremonial renunciation” and view man’s authority over divorce as resulting from this same analysis and in accordance with the nature of the issue (without refuting the woman’s enjoyment and the excellent functions and goals of marriage). Of course، it is clear that no rightful person can cause damage to another person or disorder in society via exercising his own right. Therefore، the lawmaker can make arrangements in the implementation process of this issue.