نوع مقاله : مقاله پژوهشی
1 دانشیار گروه فقه و مبانی حقوق اسلامی دانشگاه تهران
2 دانشجوی دکتری فقه و حقوق خصوصی دانشگاه خوارزمی، تهران
عنوان مقاله [English]
Two people, in the absence or presence of another person, testify against him in front of a judge that he divorced his wife, and then they unsay their testimony. This issue can be examined from two perspectives: The first is the judge’s verdict; if the witnesses’ unsaying is before the issuance of verdict, the divorce decree will not be issued. This is the consensus of the Islamic schools of thought. If the referral is after issuing the divorce decree, there is a controversy in annulment and non-annulment of the divorce, although the opinion of most Islamic jurists is not annulment of the decree, but according to the importance of divorce, in the absence of consensus, the annulment of the verdict is not inconsiderable. The second is the warranty of the witnesses; the divorce usually has a financial burden on the husband, and if the divorce is before marital practice, or after that, the husband pays half or all of the dowry, and the payment of the dowry is apparently due to the testimony of the witnesses; therefore, in the occurrence of divorce prior to marital practice, according to the opinion of majority of jurisprudents, the witnesses are warranty of paying half of the dowry to the husband because they have caused of paying something that could have fallen because of cases such as apostasy of the woman. The other opinion is the lack of warranty of witnesses. At the same time, if the warranty of witnesses is considered, paying half of the dowry for a woman is correct, because if there were no witnesses of marital practice, the woman would have the entire dowry and this possibility is stronger than the possibility of the woman’s apostasy that would be caused ineligible getting a dowry. And if the unsaying of testimony is after marital practice, according to the fact that husband’s warranty is due to the marriage contract and does not relate to the testimony of the witnesses, there is no warranty and responsibility to the witnesses. Of course, the idea of the majority of jurists is that, the husband’s use of benefits of married life is the reason that there is no warranty to the witnesses.