Çareyi Başka Mezhepte Aramak: Osmanlı Aile Hukukunda Mefkûd/Gâib Kocanın Evliliği Problemi

Abstract

A person who has gone missing, who has not been heard from for a long time, and whose status of being alive or dead is unknown is called mafqūd in the Hanafi fiqh literature. This article examines the marital status of the absent husband who has disappeared under normal circumstances without any danger such as war as well as the husband who has left his family without leaving alimony and refuses to return. The muftâ bih view of the Ottoman Hanafi school forced the wife to wait until the missing husband reached the age of 90. However, the state of necessity for the wife who’d been abandoned without alimony forced the Ottoman Hanafi jurists to give room to other madhabs’ solutions. This room was initially given indirectly through legal institutions such as istikhlāf and niyāba and eventually allowed a Hanafi judge to even follow other madhabs and make a divorce decision against the absent husband. EXTENDED ABSTRACT A person who has been missing, who is not known to be dead or alive, and who has not been heard from for a long time is called mafqūd in the Hanafi fiqh literature. This article examines the marital status of the absent husband who has disappeared under normal circumstances without any danger such as war or accident as well as the husband who has left his family without leaving alimony and refuses to return. The muftā bih view of the Ottoman Hanafi school forces the wife to wait until the absent husband reaches the age of 90. However, the state of necessity for the wife who’d been abandoned without alimony forced the Ottoman-Hanafi jurists to give room to other madhabs’ solutions. This room was initially given indirectly through legal institutions such as istikhlāf [successorship] and niyāba [substitution] and eventually allowed a Hanafi judge to even follow other madhabs and make a divorce decision against the missing husband. Firstly, the Shāfiī view that considered the state of necessity for a wife without alimony as a valid reason for her to obtain a divorce was brought into the Ottoman legal system through the institution of tashaffu‘ [following the Shāfiī school]. The fact that this solution was produced by means of this Shāfiī view made the annulment of the marriage possible not only for a mafqūd but also for a husband who, despite being heard from, had left his family, started a life elsewhere, and had not fulfilled his responsibilities in terms of alimony. Secondly, this practice was officially finalized in the mid-16th century by the Sultan’s decree in the lands of Anatolia and Rumelia, but the process continued in Arab lands through the legal institutions of istikhlāf and niyāba until the 19th century. Thirdly, during the last decades of Ottoman legal history, exceptions for divorce were only made for marriage to a gāib or mafqūd , which were two primary valid reasons that came to mind throughout history when talking about the institutions of istikhlāf and tashaffu‘ .