Legal Basis of a Wife’s Right to Withhold Conjugal Relations in Twelver Shi’a and Sunni Jurisprudence and Afghan Law

Abstract

The right of retention (Haqq al-Habs) is a well-established doctrine in commutative contracts, by virtue of which either party may withhold the performance of their obligation should the other party fail to fulfill their reciprocal commitment. Jurists have extended this principle to the contract of marriage (Nikah), asserting that if the dower (Mahr) is prompt (Hal), the wife may lawfully refuse marital submission (Tamkin) until she receives her dower in full. This subject has long been a matter of scholarly deliberation within Imami and Sunni jurisprudence, as well as in the legal frameworks of several Islamic nations, including Afghanistan. By focusing on the examination and critique of the evidence supporting the wife’s right of retention in Imami jurisprudence, Sunni jurisprudence, and Afghan law, this research scrutinizes the jurisprudential and legal foundations of this right. The significance of this study lies in the direct correlation between the right of retention, the equilibrium of spousal obligations, and the protection of the wife’s financial rights within the family structure. The necessity of this research stems from the lack of comprehensive comparative studies and the demand for an efficient analytical framework of the underlying evidence to inform legislation and judicial precedent. The findings indicate that while the wife’s right of retention is deemed permissible across the studied legal systems, a critical analysis of the evidence suggests that the narrations (Riwayat) and the "Rule of Exchange" in Imami jurisprudence are insufficient to establish this right. Furthermore, the analogy (Qiyas) between marriage and sale (Bay’) in Sunni jurisprudence is identified as a flawed analogy (Ma’al-fariq). Ultimately, it appears that the only tenable evidence is the consensus (Ijma’) of the jurists, provided that such consensus is not "documented" (Madraki)—meaning it should not be derived solely from the aforementioned narrations; otherwise, it would lose its independent evidentiary authority.