تكييف عقد النكاح عند الفقهاء وقانون الأحوال الشخصية الكويتي وأثره في نفقة علاج الزوجة

Abdulkarim Hamad  Almadi; Muhamad Mutlaq Hamadan  Shalah

doi:10.35516/law.v51i2.4116

Authors

Abdulkarim Hamad Almadi Department of Fiqh and Usul Fiqh, Faculty of Sharia and Islamic Studies, Kuwait University https://orcid.org/0009-0004-0806-3978
Muhamad Mutlaq Hamadan Shalah Lawyer at Kuwait bar Association, Kuwait https://orcid.org/0009-0002-8249-5926

DOI:

https://doi.org/10.35516/law.v51i2.4116

Keywords:

Adaptation, marriage, commutative contract, treatment

Abstract

Objectives: This study aims to examine the views of jurists and Kuwaiti personal status law regarding the adaptation of marital contracts and how it affects the wife's medical expenses. Specifically, the study aims to determine if the husband is responsible for reimbursing these costs in case of such adaptation.

Methods: Using inductive and analytical methodologies, the study adopts a comparative approach to investigate the juristic opinions and legal provisions of personal status legislation.

Results Many jurists consider marriage contract as a commutative contract, but not in its commercial sense. However, their juristic interpretations are –consistently- linked to commutative contract due to the presence of the (dowry) as a value in the contract. Few jurists, in accordance with Kuwaiti personal status law, regard the marriage contract as a separate contract that does not resemble a commutative contract. According to the study, those who regard the marriage contract as a commutative contract do not think it essential for the husband to support his wife's medical expenses because he is not required to contribute money for body preservation. Those who see it as a separate contract believe the husband is obligated to do so as part of decent companionship.

Conclusions: The study finds that the marriage contract looks like commutative contract, but not in its commercial sense. The similarity lies in the presence of dowry in marriage contract. This contract is challenged jurists. The study recommends analyzing the personal status laws of different countries and comparing that with the jurists' opinions.

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References

Abi Altaib, pp. (d. t). Kindergarten Al-Nada, (d. i), Knowledge House.

Abu Hassan, c. Arabs. (2022). Proposed family issues not covered by Jordanian Personal Status Law No. (15/2019) in marital expenses: Legal jurisprudence, Journal of Studies, Shari 'a Science and Law, 50(2).

Alaini, em. (2000). Al-Hadaya, T1, Beirut: Science Books House.

Alish, M. (1984). Giving Galilee an explanation of Khalil's abbreviation, T1, Beirut: Dar al-th

Al-Kasani, M. (1986). Ingredients in the Arrangement of Canons, T2, Science Books House.

Al-Kubaisi, M. (2020m). Adaptation of the Contract of Solidarity in Islamic Jurisprudence (Critical Jurisprudence), Journal of Shari 'a Sciences and Islamic Studies, King Khalid University, 17(1).

Al-Mauridi, p. (1999). Al-Hawi Al-Kabir, T1, Beirut: Science Books House.

Al-Nawawi, M. (1991). Rawdha al-Taliban and Mayor of al-Muftain, T3, Beirut: Islamic Office.

Al-Qar'fi, a. (1994). Ammunition, T1, Beirut: West Islamic House.

Al-Sarkhsi, M. (1993). Downgrade, (d. i), Beirut: Dar al-Marefa.

Al-Sharpini, M. (1994). Singer who needs to know the meanings of the words "curriculum", p. T1, Science Books House.

Al-Shirazi, E. (d. t). Polite in Imam el-Shafei, (d. i), Scientific Books House.

Al-Shukani, M. (1999). Guide the Stallion to the Realization of the Right from the Science of Origins, p. T1, Arabic Book House.

Al-Shukani, M. (d. t). Flood Jars Flowing into Floral Gardens, I., Ibn Packs House.

Al-Zahili, and. (d. t). Islamic Jurisprudence and Evidence, T4, Syria, Damascus: Dar al-Thawr.

Alzarqa, M. (2004). General Entrance, T2, Damascus: Dar al-Qalam.

Al-Zili, p. (1313e). Explanation of the Treasure of Minutes, T1, Bouleque, Cairo: Grand Amiri Press.

Baberty, M. (d. t). Care Explanation of Presentation, (d. i), House of Thought.

Bahouti, M. (1993). Wills Out, 1, World of Books.

Bahouti, M. (d. t). Mask Detector Board Persuasion, (d. i), Scientific Books House.

Bukhari, M. (1422E), Sayyeh al-Bukhari, I, Cordon House.

D'Amiri, K. (2004). The Glow Star in Curriculum Explanation, T1, Jeddah: Dar Al-Minhaj.

Dummy, p. (1997). Students' Allowance for the Dissolution of the Terms of Fatah al-Main, T1, Beirut: Dar al-Thawr.

Faydullah, F. (1997). Marriage and its Duties in Sharia Law, T1, Kuwait: Al-Manar Islamic Library.

Hail, d. (2021 m). Conclusion of corrupt marriage between Islamic jurisprudence and personal status laws in the Arab country Jordan, Syria, Unified Law of the GCC States Model: Comparative Legal Jurisprudence, Journal of Studies, Shari 'a Science and Law, 48(1).

Hamdoun, N. (2022m). The Role of The United Arab Emirates Personal Status Law in Strengthening the Guarantees of The Wife's Rights: A Comparative Study, Bild Law Journal, 7(2), 120- 132.

Ibn Ashour's, M. (2004). Purposes of Islamic Shariah, Investigation: Mohammed al-Habib Ibn al-Khoja, Qatar: Ministry of Endowments and Islamic Affairs.

Ibn Kaddama's, M. (1405h). Singer, T1, Beirut: House of Thought.

Ibn Kather, A. (1419h). Interpretation of the Great Koran, p. T1, Beirut: Science Book House.

Ibn kazm, p. (d. t). Local Monuments, (d. i), Beirut: House of Thought.

Ibn Rushd, M. (1975). The Beginning of the Hardworking and the End of the Thrifty, T4, Egypt: Mustafa al-Babi Halabi Press and his children.

Ibn Timiyeh, a. (1995). Total Advisory Opinions, (d. i), Prophet's City - Saudi Arabia: King Fahd's Mosque Al Sharif Printing Complex.

Kuwait's Personal Status Act, amended by Acts No. 61 of 1996, No. 29 of 2004 and No. 66 of 2007, and the Act on Procedures for Filiation and Correction of Names.

Nuraeny, H. (2019). Legal Protection for Contract Marriage Victims in Indonesia, Journal of Legal, Ethical and Regulatory Issues, 22(3).

Zirchi, M. (1993). Zirchi Explanation on Breach Shortcut, T1, Dar al-Obeikan.