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Document Type

Original Study

Abstract

Given the significance of judicial separation in regulating social life and preventing the abuse of rights under the pretext of guardianship (qiwāma), as well as the resulting infringement upon women’s rights, this study was undertaken. It further aims to demonstrate the justice, precision, and structural depth of Islamic law in legal regulation.

This research examines the position of the Ja‘fari Code of Shar‘i Rulings and its evidentiary basis concerning judicial separation between spouses. It also compares this position with that of the Iraqi Personal Status Law No. (188) of 1959, in order to determine which framework is more aligned with practical realities. Additionally, the study highlights the pressing need to supplement personal status legislation with provisions that reflect the growing social diversity within contemporary society. The study aims to identify the extent of convergence and divergence between the rules governing judicial separation under the Ja‘fari Code and the Personal Status Law prior to its amendment. The findings reveal that the legislator under the Personal Status Law has granted judges broad discretionary powers to order judicial separation. In contrast, the Ja‘fari Code significantly restricts judicial authority in this regard, as the Ja‘fari school considers judicial separation impermissible under Islamic law. Accordingly, a wife separated by judicial ruling remains legally married, as such a ruling is insufficient to dissolve the marital bond. Consequently, a judge may not decree separation between spouses without the approval of the competent Shar‘i authority (the Supreme Religious Authority), pursuant to Article(70) of the Ja‘fari Code of Shar‘i Rulings.

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