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AbstractThis study deals originally and comparatively with terms of judicial separation between the couples in Islamic jurisprudence and personal status laws. This study comes in form of total composition, which aims at particulars and linking thereof to their origins. It also aims at linking the numerous judgments and returning them to specific principles and rules, from which we may take benefit for reproducing their items. The study deals with concept of judicial separation and its juristic adaptation and legitimacy. Through discussion and pursuit, it appears that judicial work for separating between the couples bears two images: definite judicial proxy for the husband and the resulting judge through cancellation of the contract, without bearing proxy meaning, but in terms of general custodianship of judiciary and working under principle of removing damage from those injured. The study concludes a group of differences between judicial and unjudicial separation and discusses reasons of claiming thereof as well. Among the significant topics of the study: determination of methods and doctrines of the jurists in the cases which allow or necessitate claiming separation judicially, illustration of personal status choices of these cases. The study concludes that there is a judicial method depended on activation of most juristic principles of inference to reach selection of the cases, considering the meanings and causations in details, the same as Malki & Hanbali jurisprudence. There is another method, which was restricted for selection of cases to only the texts and unanimity, without activation of other evidences for inference, leading to limitation of the cases, which allows separation judicially. This attitude was represented in Hanafi and Dhaheri jurisprudences. The study discusses issues of general prosecution in separation cases and real fact in force in Jordan. It concludes necessity of organization of general prosecution job through regulating law. The study deals with the judicial body, its conditions and the judgment issued by non-Muslim judge and the problems exposed to by non-Islamic countries as regards separation issues along with the judicial judgment separating between the couples, its effects and quality of the judge separation. The study was finished by the judicial actions followed in separation cases of Jordan religious courts and relevant issues such as the forcible law, effect of challenge of the judgments against separation and its influences and effect of the parties death of the law suit. The study concludes several results including: - That method of selection of the cases and the reasons allowing or necessitating separation of the couples is an interpretative method subject to all means of approved fundamental jurisprudence. Wherever the approved principles were more expansion and variety, the cases would be the same as well.- Selection of divorce against the husband is one kind of the two judicial separation – cancellation or divorce against the husband – to be judged with at result of separation case is an expansion of judicial proxy for others without his permission nor necessity, because there is an alternative, namely the judge’s practicing of his general authority for removal of damage through cancellation of the contract without obligating the sane adult with un-necessary judgments and carrying out what like custodianship against him upon application although he refuses the same. - As regards the financial right of the marriage contract, jurists have founded a rule of linking the penalty with that who caused thereof, where they obligated the latter who caused separation the results either the dowry or alimony, which is a just rule that may be drawn up in a general framework upon Standardization and measuring the judgments thereon. - Consideration of damage was observed in majority of separation cases by the jurists. Damage is meant here as general seen one in religious aspect. I see for these cases that damage, which is a cause of separation, may be divided as follows: 1. Damages judged by the law to be damages as they violated the general religious system. They are linked with the fact that the woman is a possible place for the contract. Judgment of the religious laws to the contrary necessitate occurrence of general and special damage through continuation of existence of the marriage contract with this reason. 2. Damages relating to one of the marriage targets, namely ammunition of both couples for each other. Should this target be really demolished and it would not be realized in fact, the damage resulted should be observed through allowing separation, so as it would be possible for the injured to remove the damage from himself through another marriage as abandonment, absence, the illness preventing sexual intercourse and imprisonment. 3. Psychiatric and moral damages represented in introducing moral damage by a couple to the other through misconduct or fraud by the conditioned descriptions and violating the conditions agreed upon in the contract or through existence of congenital or repulsive defects along with dissension and followed effect over children education. 4. Financial damages caused by a couple such as body violence and hitting etc. 5. Financial damages relating to the wife as she is the owner of the financial right of the marriage contract and arising financial rights such as insolvency for paying prompt dowry or abstaining from alimony. 6. Damages, effects of which are attributed to the mother family from which the wife originated, which may be material or moral through affinity such as inefficiency, existence of defeats or less nomination dowry of the alike woman.
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