نوع مقاله : نقد رای دادگاه تجدیدنظر
عنوان مقاله English
نویسندگان English
In accordance with Imami jurisprudence and in order to protect the wife from receiving the dowry, the legislator accepted the right of detention, which allows the wife to refrain from performing marital duties until she receives the dowry. However, the absolute and inflexible implementation of this right, especially in the case of heavy dowries, regardless of the financial situation of the couple, is against the implicit will of the parties and leads to a conflict with the principle of strengthening the family. In the case under study, the court, by an extensive interpretation of Article 1085, attempted to balance the wife's right and the family's interests. In this ruling, the court, while emphasizing the philosophy of protection of dowry, did not consider the right of detention absolute and, taking into account the interpretation of "current dowry" on low-amount dowries and the interpretation of heavy dowries as dowries "in the form of deferred dowries" and principles and rules such as no harm, hardship and prohibition of abuse of the right, gave an extensive and rational interpretation of this article. However, the Court of Appeal, citing the explicit text of the above article, overturned the original judgment and accepted the wife's right to detention. This research, using a descriptive-analytical method, while explaining the foundations of the right to detention, rejected the argument of the Court of Appeal and analyzed the arguments of the original court and concluded that a logical and extensive interpretation of this article is completely in accordance with the implicit will of the parties, custom, jurisprudential and legal principles, the nature of marriage, the origin of the right to detention and its philosophy, and is in accordance with the secondary position of the dowry in marriage. This approach can pave the way for a change in the legislator's perspective in order to strengthen the foundation of the family and achieve the desired goal of marriage and prevent the collapse of the family.
کلیدواژهها English
