Family Law and Jurisprudence Journal
Year:2017 | Volume:22 | Issue:66|Papers Count:9

In Islamic jurisprudence, the punishment for the crime of stealing generally includes the amputation of a body part. According to this general principle, the father’s stealing of the child's property is an exception that has been made, however, as a consequence, the matter of the mother's sentence is raised in this issue. Although Islamic Punishments Law (Article 268- Paragraph C), and as stated by famous Imams' jurists, the mother is not associated with father; nonetheless, with attention to the strength of the arguments of the opposition to execution of a prescribed punishment on the mother, the necessity to re-examine the respective Islamic jurisprudential principles concerning the mother's sentence, is felt. The present study (conducted using the Descriptive-Analytical Method) has explained the reasons for supporters and opponents, implementation of the mother’s punishment and an investigation of the probabilities in the criterion of the father's exemption from a punishment for stealing, Incorporation of the mother's sentence to father should be clarified as much as possible. In the opinion of the famous jurists "The relationship of paternity" or in some cases" the rule of ‘Father’s entitled to alimony" as the grounds for the criteria for the father’s exemption, therefore they consider any lack of attachment of the mother's sentence to that of the father. But it seems that “Paternal Affiliation” is the basic rule in mentioned reasons and may consider the mother as being subject to it.Furthermore, with reference to the other conflicts against the evidences proposed by the supporters of the rule of the execution of a prescribed punishment on the mother, as well as evidence presented in this paper, the theory of non-enforcement of the punishment of the mother has been strengthened. So, the necessity of reviewing the Islamic Punishments Law, both for the breach of the paternal grandfather and the mother's involvement in the theft of punishment.

In this article the meaning of an ‘unauthorized marriage’ has been evaluated from the point of view of Shiite Scholars and civil law. The different opinions presented have been stated and the bases of each one have been separately examined. The most important question of this article is whether such a marriage, in principle, is null and void or not; but rather is it not binding or is it necessary that this right has been recognized through the permission of the guardian or whoever recognizes this right to be theirs.In general, three points of view have been stated among the Shiite scholars.One group believes in the validity of officious marriage; the second group believes that it is not valid and the third believes that further details are required. According to the third group, such a marriage has the ability of correctness in nine instances, and outside these items it is basically null and void. Although Iranian Civil Code has not explicitly stated the authenticity of such a marriage; however, it had accepted implicitly the popular opinion of Shiite scholars. It seems that the opinion which requires further details in this case does not lead to the consequences of the first opinion. Consequently, in this case, whether from the perspective of issuance of a religious verdict or from the perspective of law making, the farther away it keeps from generalization and the closer it gets to a detailed point of view, the more compatible it will be with caution and it will have less social repercussions.

Virtual visitation is one of the developing effective ways for communication today. In the United States, the number of divorces has increased in recent years. So we should find a way to decrease the negative effects of divorce and increase the relationship between children and their non-custodial parent who live far from them. With research done in judgments of American courts and articles on the subject, we have realized that in recent years, some states have prepared virtual meeting for in-laws if the parents do not come to an agreement on how such communication (i.e., visitation) should take place, and the court will interfere. The court' s decision must be obeyed by the parents otherwise they will face financial penalties and or imprisonment. There are advantages and disadvantages for virtual visitations; however, the key point in such visitations is that they cannot replace real ones and must be considered as supplementary to these visitations. In Iran, as well, there is no prohibition or limitation for virtual visitations of non-custodial parents with their children. Nevertheless, legislation of appropriate rules seems necessary where in-person visitations in that they may cause negative moral and/or developmental effects in children, or when such visitations impose unaffordable expenses on non-custodial parents. Such rules seem particularly necessary for the non-custodial parents who are either exiled to remote parts of the country or reside overseas.

In Iran's legal system there are some issues which encompass the denial of the woman’s entitlement to a dowry. These issues are true when a woman is aware of the sanctity of marital sexual relations. The majority of authors have introduced "No dowry for the adulteress" rule as the juridical basis of this regulation. However no independent research has been done about this rule and its content. The main question in this regard is whether, basically, can this ruling be considered a legal rule? In this case, what is the meaning of the main words of this rule and what is the cases of influence of this rule in Iranian law? In this article these questions have been studied and finally, it has been concluded that due to the characteristics of jurisprudential rules such as the "No dowry for the adulteress" sentence could be known as a jurisprudential rule because of its being general which is documented according to numerous hadiths, agreement of jurists and consensus. Also examples of the influence of these rule such as dowry and compensation of hymen for adulteress in Iran’s’ legal system has researched and studied.

Hajr Safih is one of the classical topics in Islamic jurisprudence where ‘Hajr’ means the interdiction of an independent (financial) action through a judicial order, and ‘Safih’ refers to people with mental disabilities, lunatics, especially regarding money management and waste. Taking into account the fact that the majority of jurists of different Islamic schools deprive such people of financial transactions and absolute freedom in non-financial transactions, it is obvious that the examination of the possibility of their marriage is worthwhile; especially since it is a matter of dispute among jurists and lawyers. Some believe that the marriage of a lunatic is invalid and ineffective, contending that according to religious narratives), and considering that marriage includes financial transactions, from which the lunatic is prohibited, the validity of this marriage would infringe the aforementioned interdiction and allow for the waste of money as well. On the other hand there are those who argue that the marriage contract is non-financial, and considering the marital needs of all people, including lunatics and based on the ownership rule of self-reign (Qaede Saltanat) and related narratives, such a marriage is religiously permissible. This study aims to focus on and scrutinize the views of early and current Shia and Sunni jurists, and the approach of statutory law, where a lunatic’s independent actions regarding marriage can be inferred based on legal documentations.

In several cases there are two sources for the period of waiting. There is a dispute between jurists in these cases as to whether it is obligatory or necessary for the divorcee to wait and looked out for two periods of waiting (Iddah) or one, or that the waiting period does not overlap. This dispute is due to the conflict of evidence. On the other hand, when there are two pieces of evidence and there is an established conflict over the two that should be resolved and a third evidence changes this conflict between them to absolute generality with its entrance, there is no single opinion on the quality of the conflict resolution. Some great fundamentalists do not accept the “theory of changing the relationship between these pieces of evidence” while some have accepted it, while others have accepted it in light of the third evidence and under its terms. In this article, which has used the analytical method, relying on first-hand jurisprudential and fundamental sources, we argue that one of the origins of the difference in the rules of the interference of a number of differences in the acceptance of the above theory. Thus, by accepting the theory and evaluation of the first group contrariquent evidence with the second group, its proportion to the third group has changed from the evidence, and from the contradiction to the general and absolute, and the possibility of allocation and aggregation of the dealership is provided.

The nature of the vow is an Islamic strategy for stabilizing relations between spouses and preventing the dissolution of the family institution. Because this right has been legislated for the realization of special wisdoms, for example familiarity, justice, good companionship and tranquility of couples. Studies show that the right to swear has been legislated with the goal of realizing spiritual and emotional affairs in the relations between spouses and the wisdom of legislation in a vow are common between spouses and provides the basic principles of the consolidation of the foundation of the family. Studies show that the right to swear with the goal of realizing spiritual and emotional affairs in the relations of the spouses is organized and its wisdom is coordinated between the couples and provides the basic principles for the consolidation of the family’s foundation. Famous jurists believe that the right to swear is not allocated polygyny and believe that one spouse has this right. Therefore, in monogamous families it is assumed that right to swear will strengthen the family. However, the review of legislative sources suggests that there is a serious legal gap in relation to the right of swear. Therefore, in this article wisdom of legislation in the right of swear and its consequences are examined using the Analytical-Descriptive Method, then for the right to swear in the consolidation of the family is analyzed, and in the end due to the special place for the right to swear in the stabilization of the family, legal proposals based on authentic sources of jurisprudence are presented in order to resolve the legal gap of the right to swear. These suggestions include: anticipation of the ruling governing the implementation of the right to swear, bethinking the couple's refusal to exercise the right to swear as being criminal, and divorce.