Document Type : Original Article
Authors
1
Assistant Professor, Department of Jurisprudence and Islamic Law, Ilam University, Ilam, Iran (Corresponding Author)
2
Associate Professor of the Department Assistant Professor, Department of Jurisprudence and Islamic Law, Bozorgmehr University of Qaenat, Qaen, Iran
Abstract
According to the teachings of Imami jurisprudence, sexual intercourse with a minor wife is considered unlawful (ḥarām). However, if such intercourse occurs and leads to the defloration (i.e., irreversible physical harm) of the wife, jurists are generally in consensus regarding the husband's obligation to pay blood money (diya). The point of contention among Imami scholars, however, lies in the amount of diya in this specific case.
It goes without saying that adopting a correct stance on this issue is of great significance, given the necessity for statutory law to align with Shariah principles—particularly considering that the Islamic Penal Code (IPC), under Clause (b) of Article 660, follows the dominant view (qaul al-mashhūr). Accordingly, due to the critical importance of the topic, the present article identifies three prevailing opinions regarding the case in question: 1-The prevalent opinion (qaul al-mashhūr): Full diya of a woman becomes incumbent upon the husband under all circumstances—whether he divorces the wife or retains her in the marriage; 2- Conditional liability: Full diya is required only if the husband divorces the wife; if he keeps her, no diya is due; 3-Awarding of arsh (discretionary compensation): In all circumstances, regardless of whether the wife is divorced or not, arsh—rather than full diya—is to be paid. The hypothesis of this study is that each of these views is open to critique. Therefore, through a descriptive-analytical approach and a review of classical and contemporary legal sources, the authors seek to outline, analyze, and evaluate the evidentiary basis for each perspective. The findings suggest that one may reasonably favor a hybrid view supported by textual evidence (adillah), which reconciles the reasoning behind the various approaches. Namely, if the wife is divorced, the full diya becomes binding upon the husband; however, if she remains in the marriage, only arsh is to be awarded.
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