Jurisprudential-Legal Explanation of the Challenges of Women’s Migration Without the Husband’s Consent from the Perspective of Imami Jurisprudence and Civil Law

Abstract

The issue of women’s migration without the consent of their husbands is one of the challenging matters in the field of family law and contemporary jurisprudential discourse. This article aims to elucidate the challenges arising from such migration by examining the conflict between the “husband’s right to determine the marital residence and the wife’s duty of obedience (tamkin)” on the one hand, and “women’s fundamental rights, individual freedoms, and contractual stipulations within the marriage contract” on the other. Using a descriptive-analytical method, the study investigates whether the husband’s lack of consent constitutes an absolute impediment to a woman’s departure from the country or change of residence. The preliminary findings indicate that, although Imami jurisprudence and Iranian civil law recognize the husband’s right to determine the place of residence, principles such as the “negation of undue hardship (nafy-e ‘usr wa haraj),” the “no-harm rule (la darar),” and the “validity of stipulations within the marriage contract” may serve as exceptions and legal-jurisprudential mechanisms for limiting this right and legitimizing a woman’s migration under specific circumstances, such as education, employment, or threats to her personal safety.