Author
Muharrem Midilli
Type
Book
Language
Arabic
Digital
Yes
Manuscript
No
Library
Royal Danish Library
Library Asset ID
ISSN: 1304-1045, EISSN: 2791-9730
Record ID
cdi_doaj_primary_oai_doaj_org_article_51774a2eed2f4ce18f654d2a02589397
Library Location
DOAJ Directory of Open Access Journals, EBSCOhost Academic Search Complete
Notes
In Ottoman/Hanefi family law, the right to divorce, which in principle belongs to the husband, can be exercised unilaterally, verbally and without witnesses. Giving divorce to a drunkard is legally valid. It is valid for a husband to divorce his wife conditionally. These rules allow the husband not to later recognize the divorce he gave to his wife when he was alone, to deny the divorce he made while drunk when he is sober, and to reject the divorce he made on certain conditions when the condition is met. In cases where the husband swears that he did not divorce, it is very difficult for the wife to prove the divorce. The issues reflected in fatwa magazines indicate that women are experiencing severe grievances in this context. This study focuses on poisoning the husband's food, which Ottoman muftis recommended as a last resort for women who claimed to be divorced but could not prove it, to get rid of marital adultery. The aim is to show the difficulties and helplessness experienced by Ottoman women in proving divorce through the example of relevant fatwas. In Ottoman family law, divorce takes place religiously when the husband unilaterally uses certain words. However, a religious divorce is not taken into consideration by the court unless it is proven by the husband's confession or witnesses. This dilemma caused Ottoman women, whose legal grounds for divorce were extremely limited, to be virtually stranded in the marriage union. The questions asked to the muftis show that women have difficulty in proving divorces, especially when their husbands are drunk or conditional, and are trapped in the marital union that has ended religiously. Ottoman muftis consider sexual intimacy in such marriages as adultery, warn the woman to stay away from marital adultery, and consider it legitimate for the husband to poison his food if he cannot escape the relationship in any other way. The only equivalent in legal practice of what they mean in another way is muhalea. A woman who claims to be divorced but cannot prove it should try to obtain a divorce from her husband in exchange for relinquishing some of her financial rights. However, this method is not always reasonable and useful because it victimizes the woman financially and ultimately depends on the husband's consent. In this study, which is in the common field of family law and criminal law, the legal background that obliges the muftis to propose the mentioned extraordinary remedy is depicted. Study 16-18. It analyzes the fatwas given in this context by the Ottoman muftis who served in Anatolia and Rumelia between the centuries and interprets them in the light of Hanafi legal doctrine. In Ottoman/Hanafi criminal law, killing a person by poisoning his food does not require retaliation or diya, but the perpetrator is subject to punishment within the scope of taʿzir for deceiving the victim. This provision is also valid for a woman who poisons her husband in order to escape adultery. Undoubtedly, the woman will claim that she poisoned her husband in self-defense to escape the adulterous sexual assault. However, unless he proves this claim properly, he may be subject to the penalty of taʿzīr. Because she poisoned the person who was legally considered her husband, based solely on her own claim. Ottoman muftis consider a disbelieving husband who swears that he did not divorce his wife to be married by accident. The husband cannot be denied the right to dispose of the property solely on his wife's unproven claim, and cannot be punished for disposing of the benefit he obtained through marriage. However, if a woman who is unable to refrain from intercourse obeys her husband's request for sex, even if unwillingly, she is considered a sinner. Because he is the one who, with his confession, turns the relationship into sexual assault and adultery. Her confession is binding only on herself unless supported by witnesses or the husband's confession. The fact that muftis see the husband's poisoning as legitimate based only on this confession, which is binding on the woman and may mislead the law, may be related to fatwa policies. Muftis mention the option of poisoning as if it were to make the husband confess to the divorce and suffer the consequences, rather than as a real recommendation or duty to be fulfilled. It is clear that the husband, torn between being poisoned by his wife and suffering the consequences of divorce, will choose the latter.
Görüntüle
İslam hukuku araştırmaları dergisi (Online), 2022-06 (39), p.117-142
