The Subject of Marriage Contract and Its Effects in Jurisprudence of Islamic Denominations

Determination of the subject of marriage contract is one of most important discussions in juristic prescriptions for marriage in Islamic law. However, Islamic jurists and scholars did not mention it as an independent title in law and jurisprudence. These issues are often discussed under some other decrees like Marriage Portion, Oath, Wife’s Disobedience and Spouses’ Marital Relations. There are five juristic comments about the subject of marriage contract: The majority of Hanafi jurists and a group of Hanbalis and Shi‘as consider Taking Advantage of Woman’s Body as the subject of marriage contract. The majority of Hanbalis and Shafi‘is believe that the subject is The Permissibility of Enjoyment from each other for each one of the spouses. Some of Hanafi jurists and a group of Malikis and Shafi‘is had named the wife herself as the subject of the contract; And majority of them believe that both husband and wife should be considered as the subject of marriage contract. Finally, the majority of jurists and interpreters consider Taking Advantage of Woman’s Body, The Woman’s Body, and The Permissibility of Enjoyment as the subject of marriage contract. Each one of the mention five groups of scholars have invoked to some logical and juridical reasons for their rune. After a logical and scientific evaluation of all of these reasons, we can say: “the prescription that has mentioned the “Permissibility of Enjoyment” for both husband and wife as the “subject of marriage contract” is nearer to fact. Because, firstly the enjoyment is mutual right for spouses and if the wife had no right for enjoyment, it would not be necessary for men to ask for permission for ‘Azl (having an imperfect sexual course). Secondly, acceptance of other viewpoints can have some effects which are not often matched with Islamic law and even they will not provide the basis for an Islamic safe family. From the other side, acceptance of this view requires two important rights for each one of the spouses. The husband has the right for cancellation of the marriage contract in cases in which the wife has some basic problems. On the other hand, the wife can request her wage for house works or breastfeeding a baby.