نشریه فقه و حقوق خانواده
پیاپی 51 (پاییز و زمستان 1388)

The relationships of children with their parents and other relatives are of fundamental importance in children’s emotional growth. They also profoundly affect their moral and physical growth as well as their upbringing and education. In international documents, spending time with relatives and cultivating such relationships is considered a basic right of children. Iranian law also contains numerous provisions aimed at protecting parent-child relationships as well as the rights of both parents and children, especially regarding issues of child custody and access, and supports these relationships and rights with a system of penalties. However, as a result of ambiguities and legal loopholes, the judiciary system is confronted with practical problems. This paper surveys the above mentioned problems and demonstrates that the law relating to the relationship between children and their close relatives is in need of modification. These changes encompass the following: effecting an change in the essential nature of the relationship between a parent and a child and to view as “duty” of a parent the right s/he has to that relationship; extending relationships not only with parents but also with other relatives; raising of the age that is seen by legislators as requiring support; taking into consideration the child’s wishes in respect to access (to other relatives); the provision of specialist counseling support along with the enforcement of family court verdict. The proposed changes are intended as prevention against the adverse effects of forceful access and, ultimately, child abuse, and as guarantee of retribution [in cases of abuse].

According to article 11 of the Family Protection Law (passed on 15.11.1353), the Iranian legal system for the first time approved a new legal scheme called Regular (Monthly) Maintenance Payments in case of divorce. Since its approval, the scheme has given rise to extensive debate, both theoretical and applied, among members of the county’s legal community, who presented a variety of viewpoints.As some financial bodies rightly predicted, the legal position of this scheme, in the light of subsequently approved rulings was fraught with ambiguity.Since its inception, the scheme was met with considerable doubts on the part of judges, who did not welcome its approval. The present article examines the nature of the above mentioned scheme (Regular (Monthly) Maintenance Payments) and clarifies the rationale behind its approval. It then proceeds to a critical analysis of the Iranian legal system as a whole and, following a review of the legal systems of other countries, it highlights the necessity of such a scheme and its importance within the Iranian legal system.

An established principle of the Islamic penal code is the intensification of the punishments applying to offenders above the age of puberty who repetitively commit crimes subject to hadd (legal punishment). Article 38 of the Bill for Offences Committed by Minors (Children and Adolescents) lays down that “the regulations relating to cases of re-offence are not enforced in the cases of children and adolescents.”In this paper, the author presents jurisprudential opinions of the Twelve Imami School on verdicts of theft committed by minors, and proves the hypothesis of judicial correction of underage offenders in cases of re-offence by uncovering the criterion [for this offence] and applying it to all offences committed by minors in general. [Based on this], the author proposes the following modification of Article 38: “Re-offences committed by minors are subject to judicial correction and appropriate crime prevention schemes, which the court can enforce after taking into consideration the young offender’s upbringing, the correction of his/her behaviour and the interests of society.”In order to prove this hypothesis and to formulate the proposed changes to Article 38, the author employs the logic of jurisprudential methods of research, namely, interpretive reasoning (ijtihâd) and deduction (istinbât) from evidence, together with library research.

The word m‘aroof (righteous deed) in the Holy Quran denotes the manifest action of good deeds and includes all kinds of obedience. The words ‘urf (custom) and m‘aroof occur more than forty times in the Holy Quran, mostly in the legal passages. More than half of these relate to women's rights in the family. Utilising the structural semantic (i.e. the semantic relationships at word level), the present article analyses the word m‘aroof. The contrast of this word with nakr and munkar (reprehensible or execrable deed) and jahl (ignorance) demonstrates that m‘aroof and ‘urf in the Holy Quran mean “widely known”, “good”, “an action in accordance with nature, religious law (shar’) and custom (‘urf)” and “acting wisely.”The word m‘aroof in the Holy Quran shows that in some verses women's rights in married life as well as their financial and other needs and ways of treating them are understood in a general and absolute way. The usage of this word in the Holy Quran indicates that all women's rights within the family should be established and observed in accordance with nature, logical reasoning, Islamic law, custom and culture of the society in question.

The citizenship of offspring born to Iranian mothers and non-Iranian fathers is one of the challenges of Iranian law. Despite the passing of Article 976 of the Iranian Civil Code which governs Iranian citizenship to offspring of Iranian women who are married to non-Iranian men, this law which was ratified in 1385, has remained uncompromised until now. The majority of such marriages is often characterised by one or more of the following conditions: the marriage is not registered in an official bureau; the foreign father does not hold any citizenship; or the parents do not reside in Iran. As a result, the implementation of the law can present considerable challenges and, in any case, the law cannot be implemented fairly. Thus the following question arises: what nationality should such children acquire, children whose parents ignored the impending realities of a mixed marriage and whose mothers did not consider the implications and the potential conflict resulting from marriage to a foreign national? More research is currently being conducted on the nationality of offspring born to Iranian mothers and non- Iranian fathers, as well as on the concepts of nationality, dual nationality and statelessness. The present article attempts to find solutions to the problem of such children’s status as stateless citizens. Taking into consideration Iran’s obligation to international law, the writers propose some amendments to the Iranian civil code.

Family is the natural entity that best protects children and provides the appropriate conditions for their healthy development. However, parents’ rights in relation to their children should not be misused. To this effect, a considerable number of encouraging initiatives have taken place in order to eradicate discrimination against children and promote equal opportunities between parents and children. A delicate balancing act is needed in order to satisfy both sides: this is one of the main challenges in the domain of family law aiming at protecting children at home from being abused. For a country like Iran, which is both committed to the UN Documentation and obliged to observe Islamic laws and cultural values on the other hand, the maintenance of such a delicate balance is challenging. Taking into consideration the documentation on international human rights at regional and international level as well as the Iranian penal code, the present article carries out a research on the above mentioned issue. Eventually, while safeguarding Iranian national and indigenous values, it suggests ways in which the application of the Iranian penal code can be reconciled with universal standards.

If a man assumes that an unrelated woman is his lawfully wedded wife and enters into a sexual relationship with her, this sexual relationship gives rise to two consequences: first, to religious (shar’i) filiation and second, after the discovery of the fact that the sexual relationship was indeed extramarital, a waiting period (iddah) is also established. Such a mistake can be the result of uncertainty in the issue itself or of uncertainty in judgment. However, in any case, mitigation and lack of ill-intent constitute the distinguishing characteristics of the essence of uncertainty.Existence of incoherence and lack of clarity in narrative proof of intercourse have given rise to numerous ambiguities in the positive jurisprudential rules to the extent that, according to general agreement, the determination of the mitigation, the status of polygamy and the amount of the marriage portion (mahr) are problematic. Based on a methodology of jurispudential deduction and utilising explicit principles, this paper proves that negligence issues preclude mitigation and that polygamy remains the right of the husband. On the basis of the marriage contract, the marriage portion (mahr) becomes payable as a result of sexual intercourse. In conclusion, complete absence of certainty should not be considered as doubt (error?). Lack of knowledge whether the marriage contract has been concluded correctly also obviates the necessity to observe the waiting period (iddah). Likewise, certainty that the marriage contract has not been concluded correctly also obviates the necessity to observe the waiting period (iddah); in addition, the marriage portion (mahr) in principle constitutes a compensation for [the husband’s] sexual gratification.