Family Law and Jurisprudence Journal
Year:2023 | Volume:28 | Issue:79|Papers Count:12

The issue of grandchildren's inheritance in case of grandparent's death and the existence of the first heir is one of the cases that has been neglected by the legislator despite its high important especially in preventing family disputes and financial problem. Currently, based on the rule of closer relative, when a person dies earlier than her/his parents, her/his children will be deprived of their grandparents' inheritance if the grandparents have any other children which are alive at the time of their death. Although Imāmī jurisprudence accepts the inheritance of grandchildren as the successors of their parents or Qaem Maqam, In order to respond this question whether Qaem Maqam is being able to inherit in case of the existence of their aunts or uncles, this research has been done based on, hadiths and jurisprudential sources and indicated that none of the evidence cannot be in the contrary with the assumption of avoidance of grandchildren's inheritance along with the other heirs, in case of the death of one of their parents. Therefore, such inheritance could be considered for them.

The main source of the rule of "MA 'roof" in Qur'an is the Qur'anic order of "Wa Ashruhan Ba-MA 'roof " meaning "live with MA 'roof". The word of "MA 'roof" which is used several times in the Qur'an, had been considered to mean conventional behavior by Allam Tabatabai. What confirms this view is the contrast established in the Qur'an between MA 'roof behavior and Ẓerari or (harmful) behavior. The result of this point of view is that in marital life, creating an executive guarantee and legal responsibility for leaving the MA 'roof behavior and good behavior is conditional on an unconventional behavior or Ẓerari behavior. So, according to the above rule of Article 1103 of the Civil Code, the obligation contained in this rule would be a legal obligation and has a guarantee of execution only when the abandonment of good behavior leads to harmful and unconventional behavior or to Noshouz. In this research, based on the view of Allam Tabatabai about the MA 'roof word and its jurisprudential and legal works, after collecting the sources in a library style, the conceptual analysis of the data has been done with a descriptive method.

According to sociological studies, the structure of power in most Iranian families has evolved from authoritarian (patriarchal) to semi-democratic. This transformation has affected all aspects of the family, especially its legal dimension, in terms of the rights of members. One of the most important rights affected by this change is the wife's right. Therefore, in this research which has been done by descriptive-analytical method and collection of library information, we examined the impact of the transformation on the wife's right, and concluded that since the requirements of time and place necessitate the adaptation of laws to change, the legislature, in proportion to changes in the structure of power in the family, enacts new laws or amends old laws regarding the right of dowry, the right of alimony, the right of work, the right of Nehleh and fair equivalent remuneration (Ojratulmtsl) and the right to divorce. However, there are still issues related to the wife's rights in the field of dowry, employment rights, sexual rights, the right to dissolve marriage and the right to divorce, which have changed due to changes in the structure of power, but have not been considered by the legislature, Therefore, changing the old laws or enacting new laws is proposed by using the jurisprudential capacities.

The interests of the child require full material and spiritual support from the government and parents. This research, while examining the causes and consequences of child labor and the negative dimensions of child labor, also deals with the innovative aspect of child labor in a positive aspect. The main goal of this research is to investigate the difference between the phenomenon of "child labor" and "working child ", The negative aspect of banning the phenomenon of child labor, which is prohibited in domestic and international laws, sources and jurisprudential opinions, and the positive aspect of child labor, in which it is permissible to employ the child in suitable jobs for education and earning income, if the interest of the child is respected. This research with descriptive-analytical method and by citing library resources aims to answer the question of whether Iran's legal system has accepted the absolute prohibition of child labor, or whether the jurisprudential-legal criterion of "damage" has been considered by Iran's legal system? Because according to the Child Protection Law, economic exploitation is when a child is assigned to work that is physically, psychologically, morally or socially harmful or dangerous for him. Based on existing legal and jurisprudential sources, it is permissible to employ a child or teenager in a place that is not harmful for him.

One of the main issues on matrimony contract is the nature of this contract. Three well-known theories have presented among Shi’a jurisprudents, and even Jurists in this regard. While some jurisprudents consider it as mutual interest contract, some others consider it as non-mutual interest contract. However, the great men, such as Na’eini, knew it semi-mutual interest nature. Also, some jurists describe it as partnership contract. The writer argues that it is a “special contract”. It seems that the differences between these theories are rooted in various aspects of marriage, i. e. contractual aspect and devotional and ethical aspect. The purpose of this research is to critically examine the above-mentioned theories. In this regard, first the theoretical bases of these theories are examined, then the effect of these views on certain marriage issues such as “contract by conduct”, “The wife’s right of lien”, and “option of cancellation of marriage” has been studied by descriptive-analytical method and by collecting data from library. The most important findings are the following: matrimony is not a mutual interest contract, it is a “special contract”. Those who believe in the former do not exercise the decrees related to most marriage related issues including contract by deed, and means of marriage cancellation. The legislation of the wife’s right of lien, affected by the famous theory by Shi’a jurisprudents on the nature of matrimony contract, considers it a mutual interest contract.

One of the controversial issues in the principles of jurisprudence under the topic of balance and preference is the possibility of using or non-using of unwritten preferences, which will have a significant effect on Ijtihad. The famous saying of fundamental scholars in jurisprudence (named Osulion) is based on using unwritten preferences. Regarding the dependence of jurisprudence and the principles of jurisprudence (Osul Fiqh), as well as the interaction and correlation of Imami Fiqh with the legal system of Iran and considering the fundamental importance of the family in terms of individual and social, and the problems and legal gaps in this field, this article has an attempt to provide a practical explanation in this context. In this research, firstly, the use of unwritten preferences in the principles of jurisprudence has been investigated, then the applications that may exist in family law have been discussed. Finally, in order to fill the existing gaps, in Article 167 of the Constitution Law, jurisprudence sources have been referred to. It is necessary to mention that unwritten preferences are used in the principles (Osul) to prefer between two narrations, but in jurisprudence and law, especially family law, it is considered to distinguish the issue.

Hymenoplasty is a type of surgery to reconstruct the non-existent or lost hymen due to various factors, and its purpose is to restore the ability of the hymen to bleed during the first intercourse after wedding (Zafaf night), and to create a condition that leads to bleeding during the first sexual intercourse. Contemporary Sunni jurists have expressed three views about this act: absolute prohibition, absolute permission and said in detail. In this research, which has been carried out by descriptive-analytical method, after induction and examination of the reasons of all three groups, considering the acceptability and concreteness of the arguments of those who say for restoration, as well as considering the requirements of time and the growing process of restoration among Muslim societies and non-Muslims, as well as the resources available in carrying out this act and preventing violence and the order of oppression and social harassment and the lack of justice for girls whose hymens have been damaged for any reason, also considering the fact that the gender significance of the hymens is derived from social customs and beliefs and has no harmony and tradition with Islamic and jurisprudential beliefs, concluded that the act of restoring one's virginity is desirable and can be preferable because of gaining benefits and creating expediency and creating a peaceful atmosphere without fear of being rejected from the family and society and leaving the marriage forever, of course, it would not be done for the purpose of adultery or adultery.

Satisfying the sexual desire in a purposeful way and moving towards perfection is considered a principle in the sexual rights of Islam, which has been valued in Islamic teachings for its function of providing physical and mental peace. Satisfying the sexual needs of the spouse is one of the joint duties of men and women, and there are many documents regarding the rights and duties of both parties. What seems to be distinct in the sexual rights of men and women is the right to enjoy sexual intercourse in terms of time, in contrast to the absolute and undisputed right of a man in this matter, the right of a woman is limited to once every four months. In the existing Islamic literature, there are two legal and ethical approaches, each of which has its own arguments. In this research, the evidence of both approaches has been examined with explanatory-analytical method. The results show that the arguments of the legal approach can be criticized, and the arguments of the ethical approach are more sophisticated,As a result of the popular opinion-that a woman has the right to have sex every 4 months-it is the "first rule of Shar' " and the highest time limit that is determined by legislator (or Share') and is related to normal conditions and man cannot be irresponsible towards this need despite things like,woman's youth, desires and sexual needs. Also, according to the decree of contemporary jurists, the situation of custom in the sexual affairs of couples, the precedence of ethic over law in family relationships and the psychological sensitivity of women, the moral approach-the benefit of a woman from sexual intercourse in less than four months and when needed-is strengthened.

Pregnancy is a condition in which a woman has a fetus in her womb that lasts for 9 months and ends with childbirth. This period has effects on the mood and psyche of the pregnant woman that has been investigated in the field of obstetrics and gynecology as well as Psychology and can be effective in her criminal and penal sentences. This research, entitled the "studying the effect of pregnancy condition on the criminal sentences of pregnant women in Islamic law and jurisprudence, which has been done by descriptive-analytical method, examined the views of jurists and relevant laws on this scope and concluded If a woman is pregnant, in Islamic jurisprudence and law, the implementation of hudud and Qeṣāṣ is delayed due to the fear and destruction of the fetus, citing verses 33 of Surah Esra and 164 of Surah An'am, narrations and consensus and reason. Pregnancy always causes mood and mental disorders for a woman and causes depression, severe anxiety and impaired concentration, although these matters have no effect in issuance of rules and regulations for her. Due to the reasons for eliminating of criminal responsibility and mitigating factors of crime, pregnancy can reduce criminal responsibility and mitigate punishment for pregnant women.

In the attitude towards the original institution of the family, there are three theories: individual authenticity, community authenticity and individual and community authenticity. In the perspective of the individual authenticity, the rulings, duties and rights of spouses, parents and children to each other are studied and the collective nature of the family is neglected, In the perspective of community authenticity, the family is studied as the subject and the members are not discussed independently. The main goal of this attitude is to protect the family institution from the sting of selfishness at the cost of reducing individual freedoms. In the approach of individual and community authenticity, both of individual and social dimensions of the family is important, and in addition to the importance of the members, its collective nature is also considered. In this view, works such as independent life from individual life, independent rules and traditions, and the independence of individual's actions on the family are arranged. By referring to the books and laws related to the family, we find out that until now, the one-sided attitude has prevailed, However, this attitude leads to bad effects such as accelerating the loss of independence of families in the new civilization, reducing the population, integrating the roles of the family in society, removing the boundary between home and society, and breaking up the family. In the works of late jurists, the organizational nature of the family has found its supporters, and with the weakening of the theory of individualism, most of the theories have been directed to the benefit of the family, where the roles of marriage and parents are integrated into a whole. This research, with analytical-descriptive method and by collecting library data, deals with the legal examination of the family institution in the light of community authenticity. The result of this new approach in legal studies will be the evolution of family law.

Today, sperm is stored in special banks in order to donate it to infertile couples or to use it for the owner of the sperm, when incidents occur that reduce his fertility. The establishment and activity of these banks in Islamic countries have been the subject of jurisprudential debates by some scholars, including whether it is correct to trade sperm, considering its impurity and lack of wealth and receiving large sums of money for handing it over to these banks? Does not donating foreign sperm to infertile couples violate the right to identity and destroy the lineage of children born from these sperms? Is storing sperm and injecting it into a stranger's womb or injecting it into the wife's womb after the death of the sperm owner compatible with the ruling principles and rules in Shia jurisprudence? This research, which is done by descriptive-analytical method, has been analyzed these controversies and concluded that first, despite the local and rational benefits of sperm donation, there is no obstacle in its trade, just as donating it to infertile couples does not cause the loss of the lineage of the children born from these methods and does not violate their right to identity. Secondly, injecting sperm into a stranger's womb or the wife's womb after the death of the owner of the sperm does not have any obligation and none of the aforementioned disputes is an obstacle to establishing a sperm bank and using it from a jurisprudential point of view.

Many rights and duties have been existed before Islam, and the legislator has confirmed them. Financial rights of men and women are also among the things that have been approved by the legislator, and the certain limits have been determined and decrees have been issued for each of them. Since rulings are subject to interest and corruption, and these matters are also assigned to topics, Therefore, the temporal and spatial conditions and lifestyles are affected to their changes and create the possibility of changes in rulings. Some of the financial rights of men and women that have been examined in this article are included: the topics of blood price, dowry, alimony and permission in financial possessions. In this research, an attempt is made to investigate the Shari'a rulings related to the financial rights of men and women with a descriptive-analytical method. That the financial rights of men and women are religious or subject to temporary variables, that the effect of time and place on women's financial rights and that the financial rights of men and women in Islam are compatible with the expediency of women today, in a way that is more compatible with justice and causes more protection for women's rights be made with the results obtained from this research, it is possible to consider rulings on the equal enjoyment of financial rights for women, Including equality in the price of blood on the soul and organs, having alimony commensurate with the dignity of women considering the progress of today's life, not paying excess dowry in divorce`s khol`a and also not requiring permission in financial seizures considering the financial independence that women have at the present time.