نشریه فقه و حقوق خانواده
پیاپی 62 (بهار و تابستان 1394)

In accordance with religious law­(Sharia) and the stipulation of Article 1133 of the Civil Code of Islamic Republic of Iran, divorce is one of the husband's legal rights; however in some cases such as the unaccountability of the absence of the husband or his inability to support his family, the wife can also file for divorce. An important issue that this article also addresses is whether the wife's right to divorce is limited to the above-mentioned cases, or in all cases of the realization of the man's ill-conduct, the ruler (judge) at the request of the woman, despite her husband's wayward disposition and determination, can grant her a divorce? By citing verse 229 of surah Baqarah­(The Cow) and similar verses, the author sets out to prove this matter that the above-mentioned ruling of the realization of the man's ill-conduct is extendable and in case of realization of instances of the man's ill-conduct, the wife can petition the ruler for a divorce without the need of proving hardship. Verses of the Holy Quran and traditions, especially verse 229 of surah Baqarah, which has used two interpretations "keep­(her) in an acceptable manner" or "divorce­(her) with good treatment" shows that in marital life it is obligatory for the husband to choose one of the two ways toward his wife: Either by doing all his duties, adequately providing all, or her rights divorcing her and releasing her with good treatment. According to this principle, if the rights of the wife are not respected, the judge can, at the request of the wife, force the husband to divorce her and if force is not effective the judge can, despite her husband's lack of desire, divorce her. The actualization of this theory can be an effective step in the realization of women's rights and the prevention of the violation of their rights in marital life.

Parentage is a biological and genetic topic to which much attention has been paid in jurisprudence and law due to its numerous legal effects. Advances in genetics and its relation to the field of law and the courts in the last three decades and the use of DNA and blood analysis, make the study of the jurisprudential and legal credibility of this problem necessary. The present article seeks to answer the question whether the jurisprudential and legal credibility of blood tests and genetic evidence is valid enough to resolve cases related to rejection of parentage. Some jurist believe that these types of tests are more valid than evidence of the marriage bed and proof of the contrary to evidence is possible via the above mentioned tests; however, the answer to the research question of this paper is that although there has been some success in the area of genetic testing in connection to the relation of parental relationship but; in cases where all the conditions of the marriage bed have been proved, these tests can not deal with this circumstantial evidence and proving the contrary of the circumstantial evidence of the marriage bed in this manner is not possible unless one of the conditions of the circumstantial evidence is missing. In that case, the use of the above mentioned test can be useful-as judicial evidence.

Due to achievements in genetics and the possibility of the establishment and natural development of the fetus outside the uterus jurists and lawyers, while giving opinions concerning the permission and respect of this practice discuss issues such as parentage, inheritance, intimacy, marriage and other issues relating these children. This article aims at examining the issue of intimacy and the marriage of laboratory children (created through artificial insemination) with respect to its juridical and legal aspects. There are two types of artificial insemination homogeneous and heterogeneous. In the first type the couple’s gametes are used and in the second type a foreign factor is involved. In both types, the sperm donor is the real father. As for the mother, some jurists consider birth to be the criterion for parentage, some consider the ovum and the third group include both factors. Upon reviewing various opinions the authors have come to the conclusion that the owners of sperm and ovum are the true parents of the child and the surrogate mother's womb is considered to be that of the foster mother’s. As a result, it can be said that the children of artificial inseminations are intimate (by way of a blood relationship) with these people and their spouses, so marriage between them is prohibited.

Having an independent name can be considered as one of the symbols of self –independency and autonomy­; ­since the independent person is enjoying the benefit of an independent name. From this perspective, both Iranian and American legal systems have developed an effort to grant women the benefit of an independent name to be recognized as a part of their individual identity. However it has not always been this way. In the American legal system, even till the beginning of the 70s of the 20th century, the family name of a woman automatically changed to that of the husband's by marriage. In the Iranian legal system, although there is no evidence of the imposition of the husband's family name on the wife, in fact, till 1355, it was the man who chose the surname of his family including his wife. Both legal systems have developed during recent decades; In beginning of the 1970's to support women independence the American legal system gave women the freedom to keep their maiden name or choose their husband family name. Also, in the Iranian legal system, since all people can choose their family names, there is no more imposition on behalf of the husband regarding his wife's change in family name. Based on a comparative approach, the present essay studies the legal regime governing the name-changed in both Iranian and American legal systems.

In Iran, the system of financial law in marriage­, which is according to Shiite(Imamiyya) jurisprudence, revolves around the male head of the family. This article, while hypothesizing this fact, addresses the relationship between the wife's employment rights and the authority of the man as head of the family. The main problem is that in Article 1117 of the Civil Code, the husband has the right to prevent his wife's indulgement in a certain job. This legal permission is apparently in conflict with the wife's right of employment and the financial rights unless we accept, all in all, the man as head of the household and his right to prevent his wife's employment, despite the fact that the husband, as the head of the family, is an imperious rule and is one of the effects of marriage on the couple's relationship, but that the husband cannot abuse the law that is intended for him; if he does so, his action would be evidence of abuse and will be in contrast with Article 1103 of the Civil Code. Irrespective of this justification, the current approach to the husband being head of the family in relation with his wife's financial rights and its effects in Iranian legal systems, sometimes ignores social realities and hence will bring about some interferences in the couple's financial system to a sub cooperative system, greater acceptance of temporary marriage and a reluctance to inter into a permanent marriage contract because permanent marriage contract threatens the wife's employment and her financial independence.

Imam Khomeini(ra) has spoken about the exportation of the Islamic revolution in the form of spreading Islamic beliefs and values throughout the world. The author of the present article believes that according to Imam Khomeini's doctrine, the Islamic family law system can be presented to the world. However, to accomplish this, we have to first remove the legal deficiencies of the Islamic family law system and update it by drafting a family Bill of Rights by getting help from the dynamic jurisprudence thoughts and views of Imam Khomeini; then, to create legal understanding and common grounds among Muslim countries by issuing a regional document and forming a regional organization and inevitably, through constructive interaction with the international community, present an international model. From the viewpoint of the author Imam Khomeini's strategies for accomplishing this goal is to provide a legal doctrine, considering the circumstances of time and place and utilizing the capacities of dynamic jurisprudence in responding to emerging needs.

Spiritual damage is a legal event whereby the non-financial belongings of individuals and those rights related to their personality suffers. The family as an important social institution, due to the objectives and special features more than any other system is vulnerable and fragile to this type of damage because in this system rights and duties of individuals are mainly non-financial or have non-financial impacts. and what is often effected by spiritual harm, is everything which is necessary for realizing family goals (peace, love, devotion and loyalty) and it is clear that spiritual damage, is similar to financial damage which causes responsibility despite the fact that ethics is the basis of the family and it is also a legal responsibility. The present article aims at studying examples of spiritual damage in relations between spouses and the responsibility associated with it; because the existence of this type of damage within the family circle and a lack of its legal protection leads to misuse and the non fulfillment of the rights of family members and finally the collapse of the foundation of the family.

Training is an important element of human welfare and prosperity in which the family plays a critical role. The fundamental question is that what are the examples of the rights and duties of parents in the rearing of their children according to Iran legal system and human rights documents? When do they begin? Are parents free to choose their children's training techniques? Do they have the right to use punishment, correction and discipline in the training processes? An analysis of law in Iran and human rights documents clearly shows that a child's training begins after its birth. The physical, psychological and moral training of a child, the provision of facilities related to compulsory education, religious training and the child's punishment as well as the child's obedience and respect for his parents, are just some of the rights and duties of the parents from the viewpoint of civil law. In human rights documents, punishment is not accepted as training and a child's obedience of and showing respect for them is followed by silence. In the discussion of the child's religious training, as well, only the parents have the right to teach their children religious teachings according to their beliefs. This article briefly analysis the above mentioned rights and duties.