نشریه فقه و حقوق خانواده
پیاپی 78 (بهار و تابستان 1402)

In the past, humans used animals for transportation, however, in narrative sources, women riding the saddle is condemned. Considering that nowadays cycling and motorcycling have become popular among women and no independent research has been written in order to explain the jurisprudential foundations of this issue, it is necessary to examine the meaning of the aforementioned traditions and the possibility of generalizing it to cycling and motorcycling. In this article, which was done with the descriptive-analytical method and using library data, it was concluded from the point of view of jurisprudence that the first sentence of women's riding is abhorrent, but due to the lack of unification of the subject, it cannot be generalized to cycling and motorcycling. From the legal point of view, it was also concluded that there is no special law in the Islamic Republic that prohibits women from riding, and only because of the lack of certification for women riding motorcycles, and in certain cases where their riding bikes and motorcycles are considered to be against public modesty, these acts are crimes. It is considered and it cannot be absolutely considered against the law.

Down syndrome is one of the chromosomal abnormalities that causes mental and physical defects of the fetus. This syndrome causes many spiritual and material problems for parents, especially mothers. The severity of these problems is such that according to international and Iranian law, this disease is considered one of the legal examples of abortion. According to Iran's medical abortion law and based on the La Ḥaraj rule, there is a possibility of abortion in the case of certainty and the opinion of three doctors. In this way, if keeping a malformed fetus causes Ḥaraj to the mother, she can have an abortion. While, based on the opinion of most jurists, taking care of a Down syndrome child does not fall under the rule of La Ḥaraj. Therefore, they have issued a fatwa against Down syndrome abortion. Due to the difference between the fatwa and the law, the mother is at the crossroads of abortion or keeping the fetus and faces challenges. One of the challenges that can be expressed is the mental and emotional pressure caused by the conflict between the permissibility of abortion and its sanctity, which causes mothers to be perplexed and confused. This article is examined the contrast between the fatwa and the law and concluded that morals, religion and customs rationally encourage mothers to preserve the fetus, Because the necessary conditions for Down syndrome abortion must be certain, and this prevents the easy application of the La Ḥaraj rule. but the outcome depends on the decision of the mothers. This article has been compiled in the library method and based on the latest fatwa of scholars in the special field of Down syndrome abortion.

Marriage is the main and traditional form of family formation in the two legal systems of Islam and France. In the evolution of French family law in recent years, a concept called contractualization has been the focus of lawyers' attention. Contractualization is a process in which areas of family law that have not been contractable become contractable with the approval of new laws. It seems that contractual freedom in family law faces at least three interpretations. The comparative study of these interpretations in French family law and Imami jurisprudence as the origin of Iranian family law shows that in French family law, the process of contractualization reflects the lack of contractual freedom with the three interpretations in family law. While according to the author's view, the contractual freedom with the proposed three interpretations is current based on the Iranian family law and Imami jurisprudence. The first interpretation is the principle of non-opposition of the agreement, with the mandatory rules of family law in the cases of suspected opposition. The second interpretation is the possibility of determining the terms of the contract, which indicates serious freedom in applying the agreements of the spouses. According to the author's opinion, this principle also does not exist in French family law. The third interpretation is the well-known interpretation in the law of obligations, which does not exist in French law related to marriage.

The connecting factor on the category of personal matters and specifically at family relationships has twofold function. On one hand, it reflects the person's affiliation with a particular country or population and on the other hand, has an important role in creating social convergence and is used to achieve the political and social goals of states. The basic question is that the creation of social convergence has strengthened which connecting factor to determine the governing law? Is it inferred from respect for personal identity and individual will, the freedom to choose the law governing on family relationships, even if it is the choice of non-state laws arising from religious norms? The concern of creating social cohesion in many countries has led to the tendency to apply the law of habitual residence. On the other hand, respecting individual identity and providing the legitimate expectations of individuals has led to the prevalence of will sovereignty and the prescription of choosing the law governing on family relationships. Even with considering that many people look for their individual identity in non-state laws and specifically following religious rules, the will sovereignty has been extended towards the application of non-state laws and the acceptance of religious laws as the law governing on family relations. Although the application of religious standards, especially Islamic Sharia, is still difficult in the light of political and cultural conflicts, and the respect for individual identity and cultural diversity has lost its function due to considerations about social cohesion. This article evaluates the appropriate connecting factors in cross-border family relationships by analytical-descriptive method and comparing the laws of different countries.

The family has a unique meaning at different times, which has sometimes changed and evolved over time. Therefore, explaining the structure and concept of standard family and new emerging families, as well as families that deviate from the standard, is very important. The emergence of families with different structures such as cohabitation, same-sex family, self-marriage, object marriage, animal marriage, as well as single-parent families, which referred to as new emerging and unusual families, is one of the family challenges in today’s world. The studies show that there is no comprehensive definition, which explains the desired Iranian Islamic family in the Iranian legal system and this vacancy has been led to the confiscation of this structure for the intended purposes. The present article intends to examine the structure and concept of standard family with a statistical approach in Iran and the United States of America legal systems, to explain the structure, concept and examples of new emerging families, especially in the United States. This research is library-documentary in terms of method and fundamental-applied in terms of purpose. The findings of this study showed that there is a serious gap in explaining the standard family in Iranian law. In the discussions of Islamic jurisprudence and significant guidelines of Supreme Leader, many components have been introduced for the standard family in terms of the principles governing the family, but these components have no place in the upstream documents and Iran executive laws.  On the other hand, although all American family laws, both at the federal and state levels, have a high volume in terms of quantity, but in terms of content, they are with a humanistic approach and without considering human values. The same-sex family and other new emerging families are recognized in the laws of many US states and their members have legal rights.

Zeal means a change in the natural mood of a man and his inner transformation to protect his/ her privacy. This significant characteristic has been praised in our religious texts with phrases such as the necessity of humanity and the characteristic of a pious person, and the conditions and terms have been designated for it in the Islamic jurisprudence. One type of zeal is the zeal of family, which has been contested for its sensitivity, and on the other hand, has been used by the enemies of Islam to sabotage the image of the religion. This article has been written in a descriptive-analytical method and with the aim of correctly explaining of this kind of zeal and its criteria from the viewpoint of Imami jurisprudence. The findings of this article, which are based on a detailed analysis of the examples of family zeal in jurisprudence, delineates that the most vital jurisprudential criteria for family zeal are the committing of an act of violation of chastity by a woman in the time of Idah, the need to meet the conditions of the permission to kill in case the wife is unfaithful, hijab and chastity by women are not observed, and wife decency, family privacy and protection have not been met. Criteria such as running away from home, suspicion and rumors, confidential marriages, refusal of forced marriages, etc., which are seen in the cases related to the discussion of zeal, have no Shariah justification and rational, and therefore this article proposes to amend the legal elements in this matter. It has the expression of conditions as well as culture cultivation in this field.

Today, due to the corrupt sequence of gender discriminatory views, their criticism has a special importance. Our hypothesis in this article is to prove the generality and prevalence of this gender view in the reasons of polygamy. It seems that the criticism and explanation of these reasons based on human nature and social interests with gender justice is more compatible. In this research, adherence to the verses related to the goals of marriage as a confirmation of the writers' point of view in the interpretation of the Qur'an, the third verse of Surah Al-Nisa is referred, for the first time. This article, which has been done in a descriptive-analytical method and by using library and internet resources, shows that the most limited and at the same time the most gendered views in the reasons of polygamy are experimental approaches, especially medical and psychological approaches.

One of the issues in the field of online child abuse issues is child grooming in order to provide the trust for the child and the adults around him/ her, trying to be alone with the child and abuse him/ her. In this regard perpetrators may use threats and physical force to rape or abuse a child. by using the online spaces of around the child, the criminal starts to establish the relationship with the child and gain the trust of child and adults and by abusing this trust causes physical and mental harm to the child. Regarding the importance of protecting children's right the main issue of this research is the analysis of the jurisprudential and legal aspects of this issue in order to provide solutions to support the legislator, the responsibility of parents, and the responsibility of educators of children. Our reasons are classified into three categories. First, the principle of preserving the dignity of the child, the second, jurisprudential rules related to the field of education such as the rule of guidance and education, ignorant guidance, the obligation to maintain order, repel harm from others, and enjoining the good and forbidding the evil, and third, the responsibility of educating parents especially his/ her physical, sexual and emotional education to prove the necessity of protecting children in this article with a descriptive-analytical method has been stated that according to the laws of civil liability, protection of children and adolescents approved in 2018 and the document on protection of children and adolescents in cyberspace approved in 2019 Its legal dimensions have also been discussed. The findings of the research indicate that the parental control and supervision, proper education, emotional companionship with the child, as well as the existence of rules for content age classification, appropriate judicial feedback to offenders, and community awareness can provide support for the child grooming.

Children, due to vulnerability and specifically their physical weakness and other their disability are considered as one of the groups that are exposed to different types of violence. Furthermore, the right to education as one of the fundamental rights of human being including children, plays a notable role in empowerment, growth and development of the child's human character. In this regard, teaching life skills is one of the requirements of the mentioned points. By using descriptive-analytic method and relying on the library resources, the authors seek to answer this question that what is the relation among the right to education, life skills and reduction of violence against children (VAC)? It seems that there is a direct relationship between the right to education and being equipped with life skills on one side and the reduction of VAC on the other side. In fact, application and enjoyment of the right to education by children raise the possibility of their equipment with life skills and using these skills, through elimination of some psychological and sociological reasons for commitment of VAC, reduces the possibility of VAC. To put it another way, teaching life skills, by empowering children, can prepare them to confront the violence directed against them and the violations of their rights. In this respect, in addition to the state concerned that is the main duty-holder towards child rights, the community as a whole and its members should stand up for protecting children from violence and the violation of their rights. It should be mentioned that children and specifically girls belonging to non-dominant groups such as minorities and indigenous peoples should be deserved special attention and protection both in terms of enjoyment of right to education and consequently learning life skills and in terms of being exposed to more violence because of their double vulnerability.

Legislations regarding the coupl's rights and duties towards each other are mainly defined based on general definitions. It means determination of definitions such as applicability, interpretation and affirmation of implementation are not being fulfilled by the legislator. Indeed being socially virtuous towards your partner as a legal duty has not been defined by the law makers and as a result of this legal gap some legal experts have no choice but to refer to the codes of society. This surely can cause incoherence in judicial verdicts. As a matter of fact, some legal practitioners adduce to Article 167 of constitution to solve this problem. Clearly, Article 167 recognises Imamiyah jurisprudence as a main source to solve such an unwritten issue and is basicly focused on couples relationship. In the mean time, Lack of legal studies and proper interpretation of family based principals and terms are amongst the other vital reasons causing incoherence in judicial verdicts. Undoubtedly, promotion of marriage as a most basic civil covenant can easily face complicated issues caused by the aforementioned gaps. In this regard, fundamental principles of family law such as conjugality, privacy and contract can be defined using the new consepts of family law proposed by the constitution. This solution is clearly able to create judicial interpretations required for solving current legal problems in this matter.

In recent decades, the debate about embryo research and fertility treatments has been the subject of many political, ethical, legal and theological controversies in Iran and outside between countries. Lineage is one of the most basic human rights in Islamic law that every person inherits from his family. With the emergence of these technologies and the expansion of knowledge, the child's lineage due to these new technologies has been in the spotlight. These technologies have a great contribution in medicine science. In this field, in recent decades, a new method called cloned has been emerged in medicine science and in the field of technology. Due to the widespread use of this method, the lineage of cloned child and his rights will be one of the important issues related to this issue. This article has been compiled by descriptive and analytical method and by collecting data on library sources, also with the purpose of studying the lineage regarding cloned human in medical science in the scope of jurisprudence opinions and rules of international law. The findings indicate that the attitude of the jurists towards the rights of cloned child has differences with each other, but most of the jurists do not recognize the rights in this area regarding the legal descent of the clone, because the Fatherhood is not given to anyone.

Confession, testimony and explicity of oath is considered as the written documents to prove a claim according to the article of 1285 Civil Code. This research by descriptive-analytical method and collecting data and using a comparative approach addresses the validation of oath in family litigation and investigates if the oath in family litigation merely causes the discontinuance of the action or proves it as well. Findings shows, the role of oath seems not the same in all family lawsuits. The effect of oath in litigations concerning revocation of divorce, “Khol’” divorce, marriage portion, “Ila” and defects is permission for terminating the marriage, settling the dispute and discontinuing legal proceedings. In litigations concerning marriage relation and impotence, the lawsuits end with an oath taken by the denier. But if the denier abstains from taking an oath, the marriage relation and impotence is proved by the oath taken by the plaintiff. In alimony litigations, the oath of the losing party on insolvency or that of the winning party on solvency are considered as proofs. The effectiveness of oath in this case, which is limited to financial matters, proves the dispute in favor of the person taking the oath. Certainhy nature witness by enclosure oath must be considered witness or special reason. But it can not be considered as oath. Although there are many similarities between “La’an” and oath, La’an is not an oath. La’an is as method independent along witness and oath it has its own rules.the most items are revenue this reason for ihe seasof of hostility and drop the fight