LI’AN: A SUBSTITUTION FOR THE HONOR KILLINGS AND A COUNTERWEIGHT FOR THE PRESUMPTION OF PATERNITY
Ahad Gholizadeh Manghutay 1
1Assistant Professor, Department of Law, University of Isfahan (Isfahan – Iran)
Lian; Honor; killings; Presumption; paternity; Wedlock; Children; rights;
Honor killings are a dark side of the family protection system, especially in the Middle East. Most of the honor killings are done by the husbands who are suspicious to their wives. But the Shari’a to preclude such honor killings has designed the li’an. Despite its importance, there is no background of studying li’an independently. Li’an is a peculiarity of the Islamic legal systems. Its gap in the other legal systems seemingly in the course of history has led to the recognition of strange legal establishments such as separation without divorce, unwed mothers having children, and taking a person other than husband as the father for a child born in wedlock. This study applying legal theoretical method hypothetically collecting all relevant materials in Iran including the Quranic verses and relevant sections of the Iranian civil code and taking assistance from legal authors opinions analyses the relevant legal questions and shows how the li’an is necessary for safeguarding the wedlock through playing a countervailing role against the paternity presumption. After discussion this paper finds that Li’an forbids the husband from insupportable actions such as keeping the marriage in limbo and bringing about a situation of separation without divorce. Li’an would have quite a practical and valuable role to play in abandoning the honor killings and the molestation of wives and their children.
To conclude, li’an is a multifaceted and multifunctional combination of several rules, concepts and consequences perfectly designed to support the family including the husband, wife and the child or children.
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Li’an does not seem to have any similar in the laws of the non-Muslim societies especially in the western countries. This is in spite of the fact that its gap is in other legal systems seriously felt. This paper is not to look at the detailed rules of li’an in Shari’a, whether from the Shi’a or the Sunni viewpoint, but only to provide an insight to li’an. It considers its legal aspect while avoiding to cite probable inter-jurisprudential controversies among the different sects of Islam. This study is primarily based on the Iran’s law, but it has as well cited the viewpoints of the other laws especially in cases of variance. After introducing the li’an with regard to its legal source, characteristics and consequences, this paper brings some analytical points about its effects and remedies then sets before some concluding remarks.
INTRODUCING THE LI’AN
This phenomenon is obtained from the Qur’an but most likely it has precedence in the pre-Islam Arab community. It is a remedy for the wedlock presumption, according to which (that presumption) husband’s fate as a father is wholly entrusted to his wife’s conduct. With regard to its ceremonial procedure, li’an adhering the husband’s want does not let him to misuse the given power, as well adhering the wife’s right for defense does not let her to use that right baselessly. Retraction from li’an is possible but not free of charge.
The Qur’an has allocated three verses to “the testimony by God of the husband and wife and their curse” (Li’an). These verses are about non-chastity of wife to her husband. Non-chastity which though proved for the husband, is not provable to the others especially within the court. This is in form of the compurgation and the supernatural gets called to make judgment and chastise the liar, whether the husband or the wife. Verses 6-9 of the Qur’an’s chapter Light provide:
“And those who cast it up on their wives having no witnesses except themselves, the testimony of one of them shall be to testify by God four times that he is of the truthful, and a fifth time, that the curse of God shall be upon him, if he should be of the liars. It shall avert from her the chastisement if she testify by God four times that he is of the liars, and a fifth time, that the wrath of God shall be upon her, if he should be of the truthful.” (Arberry, 1995)
Li’an and its subtle characteristics
Li’an comprises of four parts; husband’s testimony by God against his wife for four times, husband’s cursing himself mutually, wife’s testimony by God for negating the husband’s testimony four times and the wife’s cursing herself mutually. Two sets of testimonies have been considered along with one safeguard for truthfulness of each. So, li’an supernaturally is designed to be self-sanctioned. In this way, the husband and the wife curse not each other but each curses his or her self. So, in despite to some opinion (Thomson, 2006) it is not a ‘mutual cursing’. The husband testifies against the wife and the wife testifies that the husband is lying.
Testimonies of the husband are very exceptionally deemed to have proved his claim from the civil and criminal aspects, but the wife’s testimonies remove the criminal consequences concerned. This is an extraordinary type of testimony, whether from the husband’s or the wife’s side, because every testimony must be against the others and for the others else, but this one is for the witnesses’ self; this is why each witness at the end conditionally curses him/herself.
In spite of expression ‘testimony’ in the above verses, many [e.g. (Malaysia’s Islamic Family Law Act 1984 as amended up to 2006); (Ostien, 2006, p. 54) & (Dorloh, 2009, p. 137)] have deemed it as ‘oath’. Actually, li’an is comprised of four times testimony by god and one time oath (imprecation) for each party, so it is comprised of more testimony and less oath. Another author (Murata, 1986) has called it as ‘sworn allegation’. As the testimony concerned is an unusual one i.e. it is a ‘testimony by God’, so it makes a dilemma that whether it is a testimony or an oath. An author (Gupta, 2004, p. 175), due to this situation has called it a ‘testimony confirmed by oath’. The others (Virani, 2007, p. 64) have called it as ‘repudiation or sworn accusation’ and (Lamce, 2013, p. 189) the ‘imprecatory oath’ respectively.
Due to strong relationship between li’an and the public policy, the right for li’an does not seem to be capable of being waived by the husband in advance to the wife’s possible misconduct.
According to the Civil Procedure Act 2000, li’an cannot be made through a proxy and as an ‘sworn accusation’ it must be made in person. Besides, seemingly it must be based on information acquired in person and not on the unreliable information heard from the others. However, in spite of other opinion (Ostien, 2006, p. 56), the husband does not need to ‘see’ the adultery’s happening. It is enough for him to be sure that it has happened. In general, as the husband’s right for li’an is an exceptional one, in case of any doubt in respect to extension of this right to ambiguous situations, the answer would be non-extension unless otherwise proves.
It has been said that “there can be no li’an with respect to a woman married by a mut’a (temporary marriage)”. (Hashmi, 1979, p. 16) But at least the Iran’s law in respect to li’an for negating a child does not assert this, because in respect to temporary marriage as well the wedlock takes place and so to challenge the wedlock presumption attributing the child to the father, li’an would be required.
There are two kinds of infidelities; the non-chastity led to born of a child the husband negates whose connection to himself and the non-chastity which has not led to born of a contested child. Actually, the main way to negate the fatherhood of a child born in wedlock is the husband’s resort to li’an; e.g. if the husband is medically deemed as infertile but his wife gives birth to a child, to officially negate that child’s fatherhood, notwithstanding the medical proof backing his claim he may have to resort to li’an. Making a li’an for adultery, does not automatically lead to negation of every child born in wedlock, for the purpose li’an must as well contain the negation of a certain child or certain children. Seemingly different li’ans are required for negation of different children even if they are twins. However, this may lead to a funny result, in a way that a husband negates one of the twins while not negating the other one.
Adultery here is seemingly used in its broad meaning and contains as well the wife’s intercourse with another man by wrong or by reluctance. It as well contains the wife’s use of assisted reproductive techniques without the husband’s consent (Moeinifar & Ardebeli, 2012, p. 183) such as artificial insemination of the other man’s (donor’s) sperm. In this connection sections 1164-5 of the Iran’s Civil Code provide that: The provisions of the foregoing Articles will also be applicable in the case of a child born from sexual intercourse when one party was in error as to the other’s identity, although the mother may not have made any mistake. A child born after such mistaken sexual intercourse will belong to the party who made a mistake and if both parties were in error child belongs to both of them.
Surely, in spite of other opinion (Ostien, 2006, p. 55) the husband to make li’an does not need to prove that at the time claimed he has had no intercourse with his wife, e.g. he may ask for li’an even ‘in cases of lack of real consummation of marriage’ (Lamce, 2013, p. 189).
Always starting with the husband
The right of resort to li’an is solely granted to the husband. This is apparently because the well-known “wedlock presumption” works against not the wife but the husband. That presumption seems to be universally recognized. Other legal systems such as the French law (Fulchiron, 2012, p. 132), the German law (Blauwhoff, 2008, p. 112), and the Common law (Baldassi, 2007, p. 10) as well exercise this presumption as ‘de rigueur’ (Blauwhoff, 2008, p. 101) under the names ‘presumption of paternity’ or the ‘marital presumption’ (Sylvain, 1990) to the effect that the mother’s husband is the legal father of the child. In this connection section 1158 of the Iran’s Civil Code provides that: Any child born during married life belongs to the husband provided that the interval between intercourse and the birth of the child is not less than 6 months and not more than 10 months.
The French Civil Code as well assumes almost the same. (Lorio, 1996, p. 39) Some legal systems (Lamce, 2013, p. 189) have extended the above-mentioned 10 months to up to 4 years.
In spite of other opinion (Baker, 2008, p. 651) asserting that at present “reliable genetic testing makes it easy to overcome the marital presumption”, resort to the latest inventions such as the DNA or the blood test can prove not a child’s linkage to a certain man but his non-linkage to a certain man. However, these tests as well can prepare the ground for the husband to make li’an. Actually, in the most cases there might be witnesses who can testify for delivery of a certain child from a specific woman (his mother) but for the child’s linkage to his father can never find such witnesses. Notwithstanding all these, with presence of the marital presumption, the husband who negates the child places in the claimant’s position while the wife is in the defendant’s place.
Hence, it is the husband who determines whether the claim is for only adultery or for only negating the child born, or for both. As well it is the husband who can withdraw from completing the li’an procedure.
Li’an’s legal consequences
Li’an brings about few very important consequences; although not mentioned expressly but according to the Iran’s law, the marriage ends up in divorce, the husband and the wife’s remarriage becomes forever impossible, the negated child or children cannot inherit the husband and his relatives, and the husband and his relatives do not inherit the child or the children concerned. According to section 882 of the Civil Code of Iran: After li’an (solemn malediction) the husband and the wife will not take inheritance from each other; similarly a child who li’an has occurred due to a denial of his paternity, does not take inheritance from the father nor the father from him; but the said child takes inheritance from the mother and his maternal relatives, and vice versa. However, according to the same Code’s section 1052: Separation caused by li’an (solemn malediction) permanently forbids the remarriage of the parties concerned.
Li’an per se is ‘a form of divorce’ (Patel, 1982, p. 117). With li’an the divorce occurs automatically and it is wrong to be said (Gupta, 2004, p. 175) that “the wife is entitled to sue for a divorce on the ground that her husband has falsely charged her with adultery (li’an)”.
With the wife’s sworn testimony against the husband’s accusations, the wife would be acquitted of guilt and she would not be judged as punishable, although as stated by an author [CITATION Vir07 \p 64 \l 1033 ] ‘the wife might suffer damage to her reputation’. Actually, not only the wife but also the negated child, the husband himself, and their families and grand families specially that wife’s and that husband’s other common children would suffer from this happening, but seemingly for saving the families this is inevitable.
Li’an would not affect the right of a third party accused. In case the husband has accused the adultery of his wife with a specified man, making li’an would not release the husband from the slender charge invoked by that man. In response to the husband’s testimony by God, the wife may do one of the four: Accept to do her part of testimony; become silent; accept the accusation but does not repeat her confession in a way to qualify for death penalty; or accept the accusation and repeat her confession in a way to qualify for death penalty. The answer in the situations second to forth is controversial, but seemingly what the man does in this respect establishes li’ans consequences and the wife’s action if she accepted her part in li’an and made testimonies plus the imprecation accordingly would avert from her the chastisement. The other three situations with regard to their merits would bring about all or part of the adultery’s punishment for her.
Retraction from li’an
It is possible for the husband to retract from li’an, whether he is in the same wedlock or is out of it. For the purpose he does not need consent of the wife concerned or the child or the children negated. He as well does not need the consent of any authority including the court. In comparison to consequences of li’an, this retraction would have a very limited result. After the retraction only the child would inherit from the retracting father. According to section 883 of the Iran’s Civil Code: Whenever a father, after conducting a li’an (solemn malediction), withdraws from it, the child takes inheritance from him but not from the paternal relations, however neither the father nor the paternal relations take inheritance from the child. [see (Sabi, 1973)]
The retraction does not nullify the divorce resulted from li’an. But, in line with the return of the child’s inheritance right, his right for claiming alimony as well in case he is a minor returns. However, the retracting father would not enjoy a similar right if he is needy and the child is wealthy enough to maintain him financially. The consanguineous relationship which was cut by li’an becomes narrowly resumed. The child deems to be the father’s child but the father deems not to be the child’s father. Therefore the situation does not extend to the relatives of the father e.g. in case the child concerned is a boy, he would not be deemed a brother of the concerned father’s daughter, but this does not mean that he can marry her. Actually, the base is the same wedlock presumption; li’an has made some exceptions and the retraction causes only one of those exceptions to defunct.
SOME ANALYTICAL POINTS
Evaluating li’an from the present day legal viewpoint, considering the pros and cons of its contemporary substitution by the divorce, answering the peripheral questions which may arise, and mulling it’s countervailing aspects would surely be of value.
Other side of the Li’an’s coin: a terrifying scene
Li’an is frightening because it is to remedy something which is much more terrifying; i.e. the wife’s non-chastity. A man to know that his wife is not honest in respect to him and keep her, at least in the Islamic custom paying her alimony, respecting her, fulfilling her matrimonial rights, deeming her resultant child his own, paying that child or children’s alimony, respecting their rights as the father and so on, while burning from inside. Does not such a desperate father resort to dangerous actions such as killing or severely hurting his wife and or his suspicious child or children? Is not the ‘honor killing’ (Welchman, 2007) a reality of present world? Are not many similar happenings rooted in this case? At the minimum, is not this one of the main reasons for abandoning the wife and the apparent common children forever by the husband?
How can a man handle such a fundamental backbreaking and humiliating problem with the least harm to himself, to an innocent child or innocent children, and to his grand family members whom that child or those children are to inherit from? Those children would not necessarily be in the childhood age, they may be in the ‘pregnancy’ (Ostien, 2006, p. 55) status or in the adulthood. Even the child may not be alive, as the wife’s being death or alive does not matter for accomplishing li’an. (Ostien, 2006, p. 55) Even if the marriage has already ended, the husband may do li’an. In case of those children being adults and having formed a family personally, that family as well sustains harm. Is not li’an safeguarding the wedlock’s sacredness while saving the lives and safeties of many and respects of many others?
Unlike few states which treat the wedlock presumption to be irrebuttable (Wilder, 2002, p. 180) rationally it seems to be ‘rebuttable’ [CITATION Leo11 \p 166 \l 1033 ]. So, the most workable instrument for defying this presumption is li’an. However, li’an for negating the child is for the cases in them the wedlock presumption works, whenever, operation of the wedlock presumption is conflicted, the husband can select to negate the child with resort to proving unworkability of the wedlock presumption or to li’an. As well about the ‘children born to unwed mothers’ (Baker, 2008, p. 651) the marital presumption and therefore li’an would be irrelevant.
Actually the presumption of paternity shifts “the burden of proof to the putative father who must prove by either a preponderance of the evidence or by clear and convincing evidence that he is not the father” (Shapiro, Reifler, & Psome, 1992, p. 3). But li’an releases the husband from this burden.
Divorce cannot in all occasions play as a substitute for li’an. Li’an inevitably leads to divorce but proof of adultery does not inevitably lead to divorce; e.g. if it has proved to be happened under the adulterers intolerable and irresistible force and coercion. About negating the fatherhood as well, proving not being the father does not inevitably lead to divorce; e.g. the pregnancy may have happened out of the clinical methods and without any contact between the wife and the sperm-giver. The husband may have been infertile and ideologically against the taking assistance from the clinical methods; therefore the wife has betraying the concerned authorities proceeded to clinical pregnancy in despite to husband’s lack of knowledge and consent.
A simple divorce does not amount to the results emerged from a divorce out of li’an. The latter in despite to the former one brings about a constant ban for remarriage of the husband with the wife. However, at present which the procedure for obtaining a divorce decree from the court is time-consuming and burdensome, resort to li’an would be an outright leeway. This is because in despite to wrong opinions (Gupta, 2004, p. 175) li’an needs no proof but at least in practice in the present Iranian legal system the divorce if not with the wife’s agreement, needs reasoning.
Misuse of this opportunity by the husband
Li’an is catastrophic. It is frightening that the husband may use the right for Li’an where there is in fact not any ground for its use. The only impediment against misusing this right is the conditional curse which the husband makes against himself for lying and enforcing li’an baselessly or on wrong grounds. If so, the husband ruins his and his wife’s marriage, defames his wife, defames the children of his wife whether they are from that woman’s marriage with him or from her former marriages. Despite the opinion (Ostien, 2006, p. 55) that li’an ‘must be based on good reasons’, this situation of horror emerges because there is no need for presenting any reason for exercising li’an. The husband does not have to reveal his reasons or present any proof to acquire the right for enforcing li’an. He refers to the court, not for acquiring the right but for deliberately enforcing the right which he has acquired merely by marriage. The court is only to confirm that li’an was enforced validly. In despite to other opinion (Ostien, 2006, p. 56) the court does not pass a judgment in the li’an effect.
As well in despite to other opinion (Ostien, 2006, p. 56) the li’an enforcement needs not to be in public and in presence of at least four qualified witnesses. He acquires this right by marriage and he has it even after the death or divorce of the wife. That right would be for the concerned faults of the wife during her matrimonial relationship with the claimant husband. This period extends to 10 months after the divorce because the divorced wife may within this extra period give birth to a child belonging to her former husband. This as well is extendable to the period before marriage according to the section 261 of the Islamic Penal Act 2013. For the faults made by the wife before the given marriage if she in that time have not been in wedlock, this provision can be deemed a response to the present situation of some relationships without marriage in Iran which are growing among some youngsters. But this may bring about serious difficulties and conflicts, if she before this marriage has been in wedlock and the present husband claims the adultery of his wife for the time when she has been wife of another man. This li’an would surely affect the former husbands honor drastically.
Due to sensibility of li’an, in despite to ordinary type of compurgation, the husband cannot be assisted by others in giving testimony and he has to testify all four times merely by himself.
It is not forbidden for the husband to talk about enforcing li’an before its practice, with his wife or with the consultants including the legal ones. There may be other ways out of the situation which the husband sees. Possibly the husband is in mistake. The husband would have to make sure about what he deems as a base or as bases for his decision, and for the purpose he may have a need for taking assistance from others. He may need some medical tests to be made from himself, his wife or from his suspected child or children. There may be a need for reviewing the merits of the events very carefully. Surely li’an must be considered as the last resort and must not be resorted carelessly and for unrelated issues such as taking revenge. Guilt of his wife must be before him as a judge unmistakably and without any doubt proved.
Specialty of li’an is that for which the husband plays at one time as the claimant, the judge and the enforcer. Unfortunately this judgment would not be appealable too. So, the husband naturally for the purpose must be availed as well of the rights of a judge for ordering investigations, asking the experts opinion and questioning his wife and others whom he deems relevant. At least morally he would as well have the responsibilities of a judge too, e.g. to judge the outcome to the most possible extent impartially.
Proving the otherwise
Li’an is a testimony which for the compurgation purpose is being repeated four times. So, seemingly it as well can be abrogated by whatever abrogates a testimony; e.g. proving that the husband has not been just or sane while testifying, or is not a believer or of a legitimate decent e.g. testimony of beggars shall not be accepted. As well, the court would not accept li’an of a husband who is a Christian, Jew, Buddhist, Baha’i, or an atheist. Even the court may radically claim that only the Shiites can be deemed as believers so it does not accept li’an by a Sunni Muslim. These are because when one testimony of a person is not accepted, preferably four testimonies of him as well would not be accepted. As the wife as well testifies, so in case the wife is not a Muslim, she seemingly would not qualify to respond her husband’s li’an and would be deemed as like as a wife which has defied from responding li’an. However, in such cases of a gap in the statute, reference must be made to the Islamic jurisprudence. In some other countries, (Ostien, 2006, p. 56) the wife, even if a Christian or Jew is allowed to respond the li’an.
In case considering all its requirements it proves that li’an has not been conducted properly, it would be null and void, having no consequences.
Surely the husband must know about the concept and consequences of li’an, utter the words concerned with full conscience and consent, and while in action he must not be under reluctance imposed from others. He may later retract from li’an and the others e.g. the rejected child or the wife concerned may prove the grounds of li’an as false e.g. the husband claims the adultery of the wife with X but later it proves that the X has been dead at the time claimed, or the X has not been a man but a woman.
The inheritance of this right
Right to li’an is a right solely belonging to the husband. It has been conferred solely to the husband while it is obvious that others including the husband’s possible heirs have a great advantage in this matter. This is a very special right. So, the question is whether this right is inheritable or not. As we know all pecuniary rights are inheritable? But, is this right a pecuniary one or not? Surely this right, whether including the negating of a child or not, has pecuniary consequences, e.g. it changes the number of husbands heirs; but it has non-pecuniary consequences too. It is related to the family’s dignity, fame and honor and this aspect normally prevails the pecuniary one. Besides, the rights even if inherited are always undividable unless otherwise proves, so even if the li’an right is inherited, the heirs must unanimously consent to its exercise, i.e. the wife concerned as well the suspicious child must consent to making li’an.
Regarding the above-mentioned debate, the li’an right would not be inherited by the husband’s heirs. So, in case somebody wants to prove that there is no consanguinity between the deceased and his apparent children, he has to resort to ways other than li’an e.g. he may prove that the deceased has been according to the medical records infertile, and he has never been hailed. This action may not be accepted by some courts because according to Judiciaries legal departments official view (no. 2290/7 of 02/07/2007) in respect to the child born in the wedlock with regard to the sections 1158 and 1159 of the Civil Code the action for negating the child is not accepted and for the purpose li’an has to be performed. These views are not binding on the courts.
Seemingly in presenting the above view the issuers had not have due attention to the situation in which the husband deems his wife innocent and wants to retain his marriage but due to many reasons e.g. the rape occurred during a civil war wants to negate the child. It is the case as well where the husband is infertile but for humanitarian purposes lets his fertile wife to get pregnant through the assisted reproductive techniques, he does not want to make a li’an and get divorced from his wife but he wants it to be officially declared that the child although born in wedlock does not belong to him. As well the husband cannot make a li’an of negating the child when the child has born not more than 6 months after marriage. However, the action for negating the child can be brought by the wife, claiming that the child attributed to her has not in fact been given birth to by her; this case can never be settled by li’an because the wife has not a right for conducting li’an.
Besides, li’an for negating a child according to the law must be made within two months from the time of the child’s born and this does not cover all the cases concerned. According to sections 1162-3 of the Civil Code of Iran: In the cases coming under the foregoing sections, the plea of negation of the child can only be made within the period which is ordinarily after the father’s knowledge of the child’s birth enough for setting up of such claims. The plea will in any case not be heard after the expiry of two months from the date that the husband was informed of the birth of the child. In a case where the husband did not know the real date of birth of the child and was misguided by a wrong date according to which the child would belong to him and when the husband is informed subsequently of the real date of birth, the lapse of time for the plea of negation of the child would be two months from the date on which he discovered the fraud. [see (Sabi, 1973)] In other countries (Ostien, 2006, p. 56), this period has been determined to be only two days. In the California (Baker', 2010, p. 147), a husband wishing to challenge a presumption of paternity would have two years from the discovery of relevant facts.
Unfortunately for the li’an without negating the child a deadline has not in the Iran’s law been determined. In this case as well according to the general rules of law, the husband must utilize his right promptly otherwise his right for li’an expires. Seemingly, in such a case li’an would have to be applied promptly i.e. within two months from the husband’s knowledge of the li’an’s cause.
Li’an is a special legal establishment only provided by Islam. Seemingly besides its direct consequences it affects the family life in Muslim society in a whole in a way that it works as a security valve which breaking down the family and releasing the husband from his duties in case of his serious concern, forbids the husband from unacceptable endeavors such as keeping the marriage in limbo and bringing about a situation of separation without divorce.
At present even in Iran many are not aware from availability of such an opportunity and its rules. So it cannot be asserted that it is at present putting its full effect on the Iranian society. Actually, in remedy to pre-marital cohabitating relations which are getting narrowly populated among some sects of the Iranian youth, li’an would have quite a practical and useful role to play in abandoning the honor killings and molestations of the wives and their children.
Actually for right for li’an with negating the child to be established, the presumption of paternity must be applicable. But he as well can resort to li’an in case the husband wants to prove that the ground for presumption of paternity is vanished and he cannot establish this claim of him.
Li’an is not a single testimony, oath, imprecation or denial but a multifaceted and multifunctional combination of various rules, concepts and consequences perfectly designed to support the family including the husband, wife and the child or children; even the husband’s members of the grand family.
Li’an is tailored for the situation in which as a default Islamic rule the man is free to divorce his wife whenever desires so, otherwise at the present situation in which the right for divorce is restrained, for the man the harder taking the court degree for divorce, the more resort to baseless li’an for getting released from an unwanted marriage.
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