الحكم البديل في مسائل الأحوال الشخصية (دراسة مقارنة بالفقه الإسلامي)

Alternative ruling in personal status matters (A comparative study of Islamic jurisprudence)

Abstract

From the rulings in personal status matters that the parties in relationships that arise from marriage, divorce, etc. move from one ruling to another ruling that is as long as the first ruling in order to produce the same effect and be of the same strength, this is a result of the inability of one of the parties to the initial (original) ruling, which moves to the alternative (secondary) ruling, in order to confront the abnormal circumstance that one of the parties encounters, and this is the alternative ruling that is one of those rulings that are less known and distinguished by those with expertise when applying it to the party concerned with it; because its presence is disseminated in the texts of personal status laws in a way that makes it unknown that these alternative rulings are independent of the original rulings that are applied to the party concerned with them in the second case due to an abnormal circumstance that is upon him. Therefore, the alternative ruling is one of the rulings that are applied to personal status issues, especially since its subject is one of the important subjects that has a final role that aims to achieve a specific purpose through its legislation. It is not permissible to strip it of it or to abuse it in work and application, so that there is no contradiction between the intention of the legislator and the intention of the parties, since many people are ignorant of this ruling from the legal and Sharia perspective, and failure to understand this ruling may lead to failure to understand the mitigation and facilitation for the parties and transfer them from rulings that they cannot handle to rulings that they can handle. Therefore, the subject of this ruling is one of the subjects that should be addressed from its legal and religious aspects, due to the need to confront the abnormal circumstances that the parties to personal status issues, such as marriage and divorce, are in, so that its application is not automatic, and far from the philosophy and objectives of the legislator, and to achieve the interests of those to whom this ruling is applied.
Therefore, we chose it as the subject of our thesis, to cover an important aspect of this ruling related to the family, which is called the alternative ruling in personal status issues, to achieve the objectives of Islamic law that personal status laws stipulate in organizing the relationship of people with each other, and among these relationships is the relationship that is governed by what is called family rulings, which have been taken care of since their inception.