Family Law and Jurisprudence Journal
Year:2016 | Volume:21 | Issue:64|Papers Count:8

Nowadays spiritual damage in the creation of responsibility (both civil and criminal) has the same effect in comparison to material damage.Though problems such as the damage being intangible, the difficulty of proving it before the investigating authority, the difficulty of the assessment and expertise of the amount of damage, and finally the difficulty of compensating the actual spiritual damage makes the matter of investigation and asking for grievances much more difficult; but this is not a reasonable excuse for the one who has incurred a loss to be irresponsible. Given the great importance of non-financial rights of the couples’ in the family and the sensitivity of this system in relation to the rights which are related to the characteristics of individuals and the members of the family being the cause of suffering in the creation of this kind of damage; it seems as though the family is the most fragile entity against spiritual damage. Therefore, methods for compensating this kind of damages also have a determining role in the continuity of the family.So the main question in this research is what the position of law is and how its resources behave in relation to the method of compensation of couples’ moral damage. Solutions such as fall of alimony, conditions agreed upon at the time of the wedding ceremony, and separate residences are examples of methods that can be used to repel and solve the moral damage in couples’ relationships.

As a private domain, the family is abides to the private law. On the other hand, as the only major authority, the government has the responsibility of supporting all individuals by resorting to civil and criminal law. However, by taking the general aspect of the criminal law into consideration, it shoud not be applied when fasenig family problem.The basic question is “by considering the existing facts, what are the scientific reasons for the integration of the criminal law and family and on the basis of which reasons can this relationship be considered justified, rational and necessary? ” In this way, the findings of researchshows, that there are many reasons in supporting family by criminal of as follews: the necessity of the commitment to the goals of criminal law to jurisprudence and law, the responsibility of the family in forbidding evil, supporting internal dignity of an individual as well as the family as a whole by the Islamic government, the ambiguity of the concept of freedom, and finally devising criminal guarantees in protecting the individual and the family according to Shariah and the logical necessity of their implementation has been described in this descriptive and analytical study.

One of the important objectives that Islam has been seeking is the realization of progress and excellence for the human being. In the view of this divine religion nobility goes along with cultural development and human being’s attaining a pure life has been introduced as the desired in the path to cultural progress. Accordingly, all commands of the religion of Islam, in the form of jurisprudence, are in line with the realization of a pure life. As a part of Islamic jurisprudence, family jurisprudence also pursues the same goal and organizes family practical law as the most important provision of human evolution and advancement and the most fundamental context for the human being to attain a pure life. In a general view, all legislation in family jurisprudence is a purposeful system in order to realize a pure life. However the main query of this paper this is: how do the requirements of family law to pave the way for a pure life for the human being? This paper attempts to address this issue by using the Descriptive-Analytical Method and library resources.Accordingly, from an Islamic point of view, it deals with the concept of the "pure life". Then it explains the relationship of family law with a pure life and finally, it examines some of the practical laws of the domain of the family from two aspects: underlying practical laws and practical laws that remove barriers in order to realize a “pure life”.

Adoption has a long history in all legal system and with its different objectives has been an object of attention in different eras. After a series of developments, it is currently accepted in the laws of western countries in the forms of complete, simple or incomplete, with different impacts. In Iran, despite a history of the acceptance of this institution during Sassanid era, it became abolished through the influence of Islam; however, at the present time, due to its previlagesthis law has been revived as the “Law for Protection of Children without a Guardian”, with certain legal impacts.Albeit, in the Islamic legal system adoption, as an institution having all effects of the sanguinity, has been rejected, but the guardianship of children without a guardian has been recommended in many verses and traditions. In general, it seems that guardianship in Iran is much like the simple child adoption in French law. The main question of this paper is: Given the abolishment of adoption regulations in Islam and in many cases, the influence of Islamic jurisprudence in meny Iranian legal system, how is adoption treated; and what provisions have been considered for it? After explaining the concept of adoption using a comparative study questions relation to issues such as the causes of adoption abolishment in Islam, practical adoption of children without guardian, adoption in Iranian Law, acceptance of this institution in French Law, simple and complete kinds of adoption in this country are studied.

Based on Quranic verses related to divorce and in accordance with Islamic jurisprudence and Article 1133 of the Civil Law, divorce is the husband’s right. However, the husband is obliged to choose one of two ways; meaning that he can fulfill all of his matrimonial obligations to the best of his ability or he can cancel the marriage, separate from wife with beneficence and kindness and pay those anticipated legal rights to her.No other way exist for him not to fulfill his duties and not to give the woman a divorce.The present paper, while analyzing the various dimensions of the husband’s obligation to divorce, seeks to answer this fundamental question that in difficult and unbearable conditions of family life for the wife, what way exists for her to be redeemed and on what Quranic principles is it based? In the present paper taking into consideration the Quranic and jurisprudential teachings, the necessity for the husband to divorce will be scrutinized. The results show that although divorce is the right of husband, yet this primary verdict depends on fulfillment of wife’s rights; otherwise the husband is obliged to divorce.

As a legal requirement of marriage, designating type of a dowry and its amount is one of those issues that is of vital importance for couples and their families; although the most common dowry is designated in the form of coins, cash amd so on, in which there is no doubt of its authenticity. However, in some cases unconventional dowries are alotted by couples; one of its examples is designating parts of the couple’s body as the dowry. The basic question that is posed in this research is: what is the legal-jurisprudential position concerning alloting parts of the body as a dowry? There are different opinions in this regard; some consider it to be absolutely wrong and others consider it to be valid albeit in limited cases. Taking into consideration a legal-jurisprudential approach, as a general rule, this present paper seeks to prove that alloting the parts of the body as a dowry is not correct, however, in cases where rational benefits are associated; for example, in cases where the wife has kidney problems and is in need of a kidney transplant and the separation of that part not have any harm for the husband, the above contract is correct and valid. Otherwise, the aforesaid dowry, due to dignity of self-harm, the inability to surrender as an illegitimate case, will be null and void.

In Islam, the husband has been granted some special rights and privileges so that he can perform the duties he has shouldered in the best way. Having some rights and previliges such as ruling over the family, divorce, sometimes husband abuses his position in the family to harm other members; consequently the family is exposed to physical and mental harms. Due to the fair system of Islamic law, one might ask a critical questio that is what preventive measures are proposed to avoid these situations? To answer this question, it is necessary to mention that cases like remuneration, idda, custody of the child and the presence of a resolvent in recurring divorces are considered in Islamic literatures; moreover, cases such as divorce based on the court order, asking the couple to go to a counsellor and getting a certificate from the family counsellor are looked at attentively to avoid abuse of rights by the husband. Anyway, current enforcements are not practically enough and preventive measures hardly found in laws. Therefore, imposing partial limitations on capability of the exercise of rights and highlighting civil and criminal laws is necessary to prevent abuse of the rights by the husband.