Marife Dini Araştırmalar Dergisi

Yazarlar: Süleyman ŞAHİN

Konular:Din Bilimi

DOI:10.33420/marife.546693

Anahtar Kelimeler:Mâliqî,Tafrîq,Court,Talaq,Sickness

Özet: The principal method for ending a contract of marriage according to the Islamic family law is the individual divorce. Nevertheless, in some cases, it is needed to put an end to this contract by the court. The cases in question have been approached in different ways by Islamic legal schools. This study is intended to discuss diseases and defects as two legal reasons for tafrīq, i.e. the judicial divorce, in the Māliki school of jurisprudence. With a view to providing an outline of the subject, the introduction shall address the definition and nature of the tafrīq, as well as the grounds for its being included in the legal theory. The cases that are included in the category of disease and defect are referred to as ‘uyūb mushtarakah (defects common to both men and women), ‘uyūb-i rijāl (defects of men) and ‘uyūb-i nisā (defects of women). In keeping with these terms, the defects common to both men and women have been categorized as “diseases” while the sexual defects have been categorized as the “defects of men” and the “defects of women”. The reasons for the disease and defect existing in the parties being considered to be legal grounds for the tafrīq have been investigated, offering an assessment in line with these grounds by taking account of the modern developments in medical sciences. In addition, today’s diseases and defects have been treated, which can count as the tafrīq reason, though they are not mentioned in the classical legal literature.

---