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دراسة مقارنة بين الشريعة الأسلامية والقانون الليبي وقانون الأسرة الاسلامي الفدرالي الماليزي
Date Issued
2005-12
Author(s)
Merwa M.A. Swedan
Abstract
This discussion intends to study the topic of separation between a married
couple caused by infertility fi-om the jurisprudence and legal points of view.
The researcher begins the study by citing jurisprudence scholars' points of
view in allowing separation caused by disability. Evidence and their
discussions were presented as well. This study also highlights the views of
jurisprudence scholars on limiting or delimiting the scope of disability as
well as features the strongest opinion on the matter. This is done so as to
form 'a starting point in order to include infertility under the scope of
disability allowing separation between a married couple by citing opinions of
earlier and current scholars. Also, it will be able to explain a strong opinion
on the matter in line with the needs and objectives of Syariah. From the legal
point of view, the researcher studied the standpoints of Libyan and
Malaysian legal scholars on the issue of separation due to disability and the
extent to which infertility can be regarded as a disability allowing the
separation based on the legal systems of both countries. The study also
includes explanation on the effects of separation caused by disability. This is
done 'by citing related textual evidence and explaining the similarities and
differences and thus making comparisons with what is present in Islamic
jurisprudence. The .researcher concludes by urging Muslims to follow
Islamic Syariah in upholding the wedding vows; that is husbands and wives
should find other alternatives in order to avoid separation caused by
infertility. This is in line with evidence and Islamic Syariah rules because
they are regarded as perfect, comprehensive and flexible and guaranteed to
have solutions to problems and obstacles faced by a married couple. The
researcher has employed the method of extensive reading and observations
from- relevant sources in gathering academic information apart from
analyzing the views presented by jurisprudence scholars and related legal
evidence. The researcher found findings from a few studies on the subject
and it was shown that infertility is considered a disease which occurred
naturally and as such, it became an obstacle in fulfilling the parenting
instinct in human beings. In other words, it will be an obstacle to the real
objective of marriage: to acquire zuriat. Therefore, infertility can fall under
the scope of marriage disability which allows the application for separation
between a married couple.
couple caused by infertility fi-om the jurisprudence and legal points of view.
The researcher begins the study by citing jurisprudence scholars' points of
view in allowing separation caused by disability. Evidence and their
discussions were presented as well. This study also highlights the views of
jurisprudence scholars on limiting or delimiting the scope of disability as
well as features the strongest opinion on the matter. This is done so as to
form 'a starting point in order to include infertility under the scope of
disability allowing separation between a married couple by citing opinions of
earlier and current scholars. Also, it will be able to explain a strong opinion
on the matter in line with the needs and objectives of Syariah. From the legal
point of view, the researcher studied the standpoints of Libyan and
Malaysian legal scholars on the issue of separation due to disability and the
extent to which infertility can be regarded as a disability allowing the
separation based on the legal systems of both countries. The study also
includes explanation on the effects of separation caused by disability. This is
done 'by citing related textual evidence and explaining the similarities and
differences and thus making comparisons with what is present in Islamic
jurisprudence. The .researcher concludes by urging Muslims to follow
Islamic Syariah in upholding the wedding vows; that is husbands and wives
should find other alternatives in order to avoid separation caused by
infertility. This is in line with evidence and Islamic Syariah rules because
they are regarded as perfect, comprehensive and flexible and guaranteed to
have solutions to problems and obstacles faced by a married couple. The
researcher has employed the method of extensive reading and observations
from- relevant sources in gathering academic information apart from
analyzing the views presented by jurisprudence scholars and related legal
evidence. The researcher found findings from a few studies on the subject
and it was shown that infertility is considered a disease which occurred
naturally and as such, it became an obstacle in fulfilling the parenting
instinct in human beings. In other words, it will be an obstacle to the real
objective of marriage: to acquire zuriat. Therefore, infertility can fall under
the scope of marriage disability which allows the application for separation
between a married couple.