This is a caption

This is a caption.
Mohammad Moghimi

The topic of dowry, which has always been a concern of society, especially after the 1979 revolution, has become a luxurious phenomenon over time and has also become one of the problems of the judicial system. Some consider heavy dowries as a source of pride, while others see it as undesirable and a symbol of buying and selling. Some choose a middle ground and see it as a symbol of a man’s love for his wife, striving for balance in determining it. However, what is important from a legal perspective is the power given to the owner of this right by the legislator, and usually people are indifferent to it during marriage and have a symbolic view of it, and it never crosses their minds to demand it; but some use it as a tool to intensify conflicts. On the other hand, some use various tricks to escape this debt. Some also take advantage of this right and enter into marriages with the sole purpose of collecting dowry. In the current order of Iran,

Historical background of dowry

Historical studies show that dowry is not an Islamic institution and has existed before it. The Code of Hammurabi (approximately 1700 years before the birth of Christ) has specific provisions regarding dowry and considers it as part of marriage contract. In ancient Iran, the father would transfer all rights and responsibilities he had towards his daughter to her husband and in return would receive a gift (dowry). In ancient Greece, the father would not agree to his daughter’s marriage without receiving a sum of money or gift from the groom in exchange for transferring his rights to her. In all Jewish religions, dowry exists. In Catholicism, dowry does not exist and in Protestantism, it is not mandatory to determine a dowry, but with the consent of the man, woman, and their parents, they can agree on a dowry.

“Legal examination of dowry”

As mentioned, dowry existed before Islam and is considered a contractual obligation. In legal terms, dowry is a financial right that the woman becomes the owner of upon marriage, and the man is obligated to pay it to the woman. According to Islamic jurisprudence and Article 1078 of the Civil Code, anything that has value and is transferable can be considered as dowry. From a jurisprudential perspective, there is no minimum or maximum limit for dowry, but it is considered reprehensible to exceed the amount of Mahr al-Sunnah (the dowry set by the Prophet for his wives and Lady Fatimah, which is equivalent to five hundred dirhams). Some jurists, such as the late Sayyid Murtadha, do not consider anything higher than Mahr al-Sunnah permissible. It seems that financial commitment to something beyond one’s means is considered a clear case of burden on the groom, which is problematic from a juris

According to some Islamic jurisprudence sources such as Jawahir al-Kalam, the dowry that the husband pays to the wife is actually a compensation for the right to enjoy her body. The comparison in the jurisprudence literature shows that the dowry and sexual enjoyment are exchanged and can be considered as a mutual contract. If one of the parties fails to fulfill their commitment, the other party can also refrain from fulfilling their commitment and delegate the fulfillment of the commitment to the other party. These contracts are called mutual contracts. This right is known as “the right of imprisonment” (1). In temporary marriage, the rental of sexual enjoyment is also considered. Even if it is not mentioned in the texts of jurisprudence, if the duration and dowry are not mentioned in temporary marriage, the contract is void, which is evident from the unity of Article 468 of the Civil Code regarding contracts, the rental of this matter. This opinion is strengthened when the dowry and the dowry

Yes, the principle of unity of intention mentioned from a jurisprudential and legal perspective is correct. Because in exchange contracts, such as the sale of both parties, have the right to imprisonment, unless one of them is not currently committed and is deferred. However, the problem that arises is the contradiction of the exchange contract of marriage with the principles of human rights. The placement of sexual servitude in exchange for dowry and the application of the rules of the sale contract in it is a trace of slavery. Since according to international human rights documents, with the abolition of slavery, no human being is subject to rights (such as buying and selling, renting, etc.) and only the right holder is recognized, therefore, all manifestations and remnants that have remained from the era of slavery must be eradicated.

On the other hand, some believe that according to the principle of freedom of contracts (Article 10 of the Civil Code), individuals can agree on any amount of dowry (4). In response to this argument, it can be said that according to Article 975 of the Civil Code, the court cannot enforce private contracts that are against public order, even though the enforcement of such laws is generally permissible. It is clear that the heavy dowries that have become prevalent in our society today are a clear example of being against public order.

It is worth mentioning that according to Article 11 of the International Covenant on Civil and Political Rights, no one shall be imprisoned solely for the inability to fulfill a contractual obligation. The principle of bankruptcy (al-muflis fi aman Allah) has also addressed this matter before.

Therefore, it seems appropriate and necessary for the legislator to take action in regards to changing and amending the dowry law. However, in order to achieve this goal, it is possible to reduce the problems caused by this issue by implementing certain measures. The following points are raised in this regard:

1- With the amendment of the law, dowry and sexual enjoyment will not be exchanged or substituted.

2- It shall be determined that individuals, at the time of marriage, shall set a dowry for what they possess and not exceed their wealth and ability.

3- Heavy taxes should be considered for large dowries, and refrain from paying marriage loans to couples who have set a heavy dowry.

4- Use comparative law to change the law.

5- Legal counseling before marriage should be mandatory and the legal provisions regarding dowry should be explained to the couple.

6- The employment and social security situation for women improves to the extent that there is no need to feel the burden of dowry.

Notes:

1. Article 1085: A woman can refuse to fulfill the duties she has towards her husband until her dowry is delivered to her; provided that her dowry is currently in her possession and this refusal will not result in the termination of her right to alimony.

2. Article 1093: If the dowry is not mentioned in the marriage contract and the husband divorces his wife before consummation and determining the dowry, the wife is entitled to the deferred dowry. If he divorces her after that, she will be entitled to the equivalent dowry.

3. Priority comparison

4. Article 10 and 1080 of the Civil Law

5. In pre-Islamic Hijaz, the creditor had the right to take the debtor as a slave and force them to work until the debt was paid off, or sell them in the market. The Prophet of Islam rose up to defend these oppressed and bankrupt individuals and declared, “The bankrupt person is under the protection of God.” This means that anyone who is unable to pay their debt is under the protection of God and is immune from the ruler’s aggression and the creditor’s exploitation, and no one has the right to torture or harm them or put them up for sale.