فرج الله هدایت نیا

The term "fahsha" (indecency) and its derivatives are frequently mentioned in the verses of the Holy Quran. In some verses, the term "fahisha" with the qualifier "mubayyinah" (gross) is recognized as having implications for the financial rights of the wife. According to verse 19 of Surah An-Nisa, "fahisha mubayyinah" (gross indecency) is considered an exception to the prohibition of oppression (’adhil), allowing the husband to make life difficult for his wife to reclaim part of the dowry. Additionally, in the first verse of Surah Al-Talaq, "fahisha mubayyinah" affects the divorced wife's right to housing and causes its forfeiture. The concept of "fahisha mubayyinah" in these verses has been the subject of much debate among commentators and jurists, with various interpretations, such as general concept of sin, disobedience, acts contrary to modesty, acts that necessitate hudud (punishments), and harassment of the husband's family. This study, using a descriptive-analytical method and relying on the context of the verses and supporting narrations, concludes that acts contrary to modesty result in the reduction of dowry and the forfeiture of the woman's right to housing during the 'iddah (waiting period) of revocable divorce.

The general structure of Imami jurisprudence in the initiative of Mohaghegh Hali in the book Sharia al-Islam is divided into four parts and is classified into orships, contracts, agreements and special rules. In this general structure, which has been a common and accepted model until our time, the family does not have a specific epistemological position and a regular internal structure.In addition, in the structure of Sharia al-Islam, the set of issues of family jurisprudence is limited to private law or inter-family relations and is not dedicated to important issues related to the relationship between the government and the Babi family and its issues have not been studied. Therefore, family jurisprudence is unrecognizable, incomplete and irregular and needs a new plan. The present article is in the position of designing a comprehensive structure and logical explanation of family jurisprudence. In the author's proposal, the general structure of family jurisprudence is divided into two parts; The first part is dedicated to issues related to private law and the second part to issues related to public law of the family and the system of issues of both sections has been identified and codified.

There is no doubt about the legitimacy of temporary marriage in Shiite jurisprudence. This kind of marriage is recognized in Iran’s civil law and family support law, and some of its ruls is indicated. But there are some ambiguities about some of the issues such as the juridical effects of the wife's disobedience. Disobedience of wife in permanent marriage could lead to loss of alimony right entitled to her but in temporary marriage wife not entitled to alimony right. So, the important question is proposed here: what is the effect of a wife’s disobedience on her rights, and in other words, what is the executive guarantee of the husband’s right to submission in temporary marriage? There is no commentary about this issue in Civil Law, while this issue is important and should be investigated. In this paper, this issue is studied through descriptive and analytical methods from a jurisprudential perspective. The findings of the study are shown that if the divorced wife refuses to obey without a valid excuse, her disobedience would be fulfilled. On other hand, disobedience of the wife in temporary marriage leads to nulling her right of marriage portion or dowry, and the husband could deduct from the dowry considering proportion to the period of disobedience, and if the husband had paid the full dowry, he should demand its return in the same proportion through the court

The legislative policy of the Islamic Republic of Iran is to establish and strengthen specialized consultations. Accordingly, the Family Protection Act obliges the judiciary to establish counseling centers with family courts. The law also makes it mandatory for a court to refer consensual divorce claims to counseling centers. The philosophy of this legal obligation is to strengthen the family, prevent divorce and create peace and reconciliation. In addition to the remedial function, the legislature has delegated other important missions to family counseling centers, such as expert comment on the causes and nature of family lawsuits, social work, and health care. This article descriptively-analytically examines the jurisprudential principles of the obligation to consult and also the structural capacities of counseling centers in fulfilling legal functions and has reached the conclusion that the obligation of consensual divorce applicants to counseling is absolutely against expediency and It is incompatible with religious norms. It was also found that the scientific, experimental and ethical competencies of counseling center experts, as well as the involuntary nature of counseling and non-selective counseling, are incompatible with its legal functions, and therefore counseling centers lack the necessary efficiency to achieve the legislator's goals.

In Shia jurisprudence and consequently in the civil law of the Islamic Republic of Iran, temporary marriage is recognized as one of the types of marriage. The wife''s sexual rights and the possibility of the husband leaving the marital duties (Noshuz) in this type of marriage are the important and challenging issues about temporary marriage. This article with a descriptive and analytical method tries to answer these following related questions: Is the marital law such as the right to cohabitation and intimacy fixed or not for the temporary wife? If yes, what is the effect of the husband'' refusal to perform the marital duty of the wife and how she can he obtain her rights? Family law in Iran is silent on these issues jurisprudential views on it are also different. The research findings show that the right to intimacy is fixed for a temporary wife. Also, in a long-term marriage, the wife has the right to love and affection. As a result, the husband''s Noshuz in temporary contract is achievable. If the husband refuses to perform the marital duties of the temporary wife, at the request of the wife, the court first obliges the husband and then forces him to grant the term of contract.

The wife's rights in Islamic jurisprudence and law have a high status and special importance in the physical and psychological dimensions. According to Islam's emphasis on strengthening the family, reducing family injuries and the role of the wife's education in raising children, in this study, the husband's right to mental health with a new perspective and with a jurisprudential and legal approach to study and characteristics, factors providing mental health and Its various dimensions became clear. In this regard, factors such as the factor of the couple's consistency, the couple's non-tourism, good socializing, healthy recreation, the couple's sexual relationship with the wife and the role of each of these factors in the wife's mental health and peace of mind. They were explained based on jurisprudential and legal views and with emphasis on educational works. As a result of these studies, it was found that the rights that Islamic jurisprudence has imposed on the wife in various dimensions will provide the wife with health and peace of mind, and ultimately, promote family health and positive educational effects.

Gamophobia[1] as a social harm enjoys various economic, cultural, and social causes. Some legal structures of the family in the Islamic Republic of Iran have caused men and women to be afraid of marriage and to continue a single life. Husband's financial obligations to the wife and wife's social constraints within the family law as the factors of delaying marriage have made marriage risky for them and have pushed men and women to tend to alternative marriage patterns. This situation is mainly originated from the reckless legal interventions of the legislator as well as the social developments of our time. The law as science has significant potentiality in preventing gamophobia. Taking advantage of a library research method, the present study, while describing the legal structures of gamophobia in the current legal system, examines and evaluates the legislative and contractual capacities of law in controling the fear of marriage and elaborates the existing challenges.

The amount of indemnity at the divorce at wife’s instigation has been considered by the famous Shi'a and Sunni jurists to be indefinite and unlimited and it has been conditioned upon the consent of the wife and the husband. According to this theory, the amount of indemnity at the divorce may be greater than the amount of dowry and the property given by the husband to the wife at the time of marriage contract. There are some doubts, at the present time, about this statement and the evidences have not been considered to be enough. For the same reason, the amount of indemnity greater than the dowry has been rejected or it has been limited by some of the jurists to be at the most the same as the dowry and other property given by the husband to the wife. The other theory examined and substantiated in this article is that “the amount of indemnity at the ordinary divorce at wife’s instigation is unlimited and at the juridical divorce at wife’s instigation it is limited.” According to this theory, if it is recognized that the divorce is necessary because of the wife’s great disgust of her husband, the court should intervene in the amount determination of the indemnity and prevent from the husband’s abuse of the difficult situation of the wife and her loss. Considering the increasing amount of divorce at wife’s instigation at the present time, the family courts are involved with this case and it is a necessary jurisprudential and legal issue.

Demanding dowry by the wife and the husband’s inability or insolvency to pay it is among the most frequent lawsuits in family courts. In such lawsuits, the wife refuses to perform marital duties in order to enforce the dowry, and even proving the husband’s insolvency does not invalidate her right. Such lawsuits undermine the foundation of the family, and the solution lies in the accountability of the state (government). State’s financial support for debtors is a religious obligation in Islamic jurisprudence. According to the Holy Qur’an and authentic narratives, the state should assist eligible debtors and help them with money from the treasury. The application of the reasons for the necessity of paying off debtors’ debts also includes dowry debtors, and there is no valid reason for excluding dowry from this general principle. Besides, the principle of family strength in the Islamic and Iranian legal systems requires that dowry debtors be supported. Despite the significance of this issue, in the Iranian legal system, no efficacious protection mechanism has been devised to support those who are unable to pay the dowry. The investigations of this study indicates that in the Iranian legal system, the religious responsibility of the state in supporting dowry debtors has been neglected.

The husband’s sexual disgust has no legal or ethical consequences for him; since the man who feels disgust with his wife can divorce her or marry another woman. However, is it possible for a woman who feels disgust with his husband to terminate her marriage through the divorce at the wife’s instigation or not? The famous Imamiyyah jurisprudents hold that the divorce at the wife’s instigation is by no means obligatory for the husband and believe that the wife in this situation has no choice but to be patient and to keep self-denial. Their most important reason for the lack of obligation of the divorce at the wife’s instigation is the ayah 229 of the surah Al-Baqarah and the traditions surrounding it. In contrast, a group of jurisprudents has considered the divorce obligatory in these cases. Some believe that the wife’s sexual disgust with her husband may expose her to corruption and if there is no way but to divorce, it becomes obligatory. Another group, relying on the rule of no-hardship, decree that it is obligatory for the husband. The wife’s sexual disgust with her husband deprives her of sexual relations and causes mental pressures and in the case when there is no choice but divorce for the woman, it is obligatory for the husband to get her divorced and dissolute the marriage. The present text tries to prove the theory of the obligation of preventive divorce; meanwhile it aims at criticizing the theory of the lack of obligation of divorce.

The aim of this study was to investigate the components of "health" in the lives of socially active women with a focus on religious teachings and medical findings.

This descriptive-analytical study explains the most important components of health in the lives of working women.

The findings show that socially active women can maintain and improve their physical and mental health by applying preventive medical advice and observing nutritional health, regular exercise, using tourism capacities in their leisure time. Forgive and take care of the factors that satisfy the spouse’s satisfaction with the marital relationship, observe the religious and moral rights of the spouse, maintain the health of the marital relationship and their joint life.

The results showed that according to scientific findings with increasing the probability of giving birth to children with chromosomal defects and complications of pregnancy, working women should not delay pregnancy either in the first or next child, choosing part-time jobs that do not require It does not have full-time and compulsory presence outside the home, due to less requirements and obligations than full-time jobs, it can have a positive effect on women’s desire for childbearing and the number of children.

For marriage, as for other issues, there are primary and secondary rules in the Islamic Jurisprudence (Fiqh)In the Islamic Shari‘a, marriage is according to the primary rule “recommended” (mustahabb); under certain conditions, however, it becomes necessary. Among the conditions making marriage necessary is fear of corruption. If one fears or knows that, while being single, is not able to keep her/his piety, it is religiously necessary for her/him to marry. Fear of corruption in this issue is a secondary reason and necessity of marriage, in this situation, is a secondary rule. Even though an individual issue, the secondary necessity of marriage will become a legal one when it is considered with father’s or grandfather’s permission in marriage of virgins. The important point which may be discussed here is as follows: if we accept necessity of marriage for virgins, is father or grandfather able to prevent daughter’s marriage and is their opposition justified or not? This is a widespread issue for girls in the present societies; thus, it is necessary to explicate its rule according to Jurisprudence (Fiqh) and Iran Family Code.

The general policy of the legal system in the Islamic Republic of Iran is encouraging arbitration and institutionalizing it. In the legal system of Iran, arbitration has two functions. In the Civil Procedure Code, it has a contractual basis and is a pseudo-judiciary institution. This institution can go to settle suits alongside with juridical courts. In the Protection of Family Act, however, it is a legal must for divorces on which spouses have not mutually agreed. It is a non-judiciary institution merely aimed to make peace and agreement between spouses. For this reason, contractual arbitration has more capacity to settle suits including family ones. Studies show that, in the Protection of Family Act, arbitration is awfully useless and plays a negligible role in solving family’s problems. Thus, it is better to use contractual arbitration in family law. Through contractual arbitration, spouses become, voluntarily, obliged to settle their problems through an arbitrator on which they have previously agreed and, so, avoid referring to the court. With the contract of arbitration, spouses negate themselves of the right to refer to judiciary courts and, they are not able to file the subject of arbitration in the court unless through an agreement.

Islamic jurisprudence and Iranian family law, man is responsible for supplying the livelihood of his wife and children. If a man refuses to give alimony to his wife in spite of his financial ability, he must either refine his behavior or divorce his wife. There is a disagreement among jurists about a man who cannot afford alimony due to poverty. Some jurists oblige woman to have patience at the time of her husband’s inability to afford alimony. A number of them have given her the right to terminate her marriage, whereas the other ones’ solution is mandating husband for divorce. Iranian civil law has confirmed the third solution and legalized divorce due to husband’s inability in affording donation. Consequently, poverty in Iranian family law is identified as a reason for terminating marriage. The aforesaid viewpoints are criticized because the obligation of patience for the wife can impose detriment upon her. On the other side, the dissolution of marriage to termination or divorce is based on the rules of family private laws and is not compatible with supportive responsibility of the state. There are a plentiful number of narrations highlighting the necessity of the responsibility of the Imam or the Muslims’ governor for providing financial security of families. Based on these narrations, supreme documents and executive laws in the Islamic Republic of Iran have constantly emphasized the requisiteness of government responsibility in supplying the financial security of families. Therefore, employing the capacity of family public law as well as emphasizing the necessity of government’s role in providing financial security for families is presented in this article as the jurisprudential-legal solution for the aforesaid issue. Through this way, the grounds for divorce are eliminated and husband’s poverty is also omitted from among the causes of marriage dissolution.

The impact of infectious diseases on the rights of the wife can be examined in two dimensions: prevention and treatment; In terms of prevention, the question is to what extent does the wife have the right to withdraw from the patient's husband in order to maintain her health? In the second dimension, the question is whether the husband is obliged to pay for the treatment of his sick wife from alimony. The Islamic Republic of Iran's family regulations on these issues do not provide for the wife's incomplete health rights and need to be amended and supplemented. The views of the great jurists also differ on the right of the wife to treatment. Some consider it outside of alimony and others consider it part of alimony. Except for the cost of medical treatment from alimony is contrary to the wife's right to health, just as the generalization of alimony to the cost of treatment will cause harm to the husband. Current research shows that the husband is largely financially responsible for paying for the treatment of the patient's spouse and has no further obligation. If the husband's usury is proven to be due to the wife's medical expenses, her medical expenses must be covered by the family. This solution is compatible with the couple's rights and the interests of the family, while ensuring the wife's right to health.

In Islamic fiqh[1], there are diverse views about the compulsory guardianship regarding the child marriage. Some foqaha[2] have allowed child marriage on the condition that it is not counted as sexual abuse. Some others have allowed it on the condition of expediency. Some contemporary jurists have opposed the latter view and have called for the prevention of child marriage. They believe that child marriage is corrupting, against children’s rights and it cannot be justified as their expediency. Suggesting that in our time no advantage or usefulness can be assumed in child marriage, the present article examines and proves the foundations of the prohibition of child marriage.

Adult, sane has legal capacity and can take over in their affairs. On the other hand, no one can do without permission or allowed to interfere in matters of such a person. Unlike the legal capacity man who was always granted, the issue of qualified women has been controversial issues in all communities. Islamic law on the recognition of legal capacity of women has historical precedence over other legal systems is undeniable. In Islamic law and jurisprudence, qualification requirements, there is no difference between men and women. However, some interpretative resources denial of women's qualifications is concluded. Also according to some legal theory, the wife is incapable of contracts and unilateral obligations on some issues. Based on this theory, man is the total legal capacity, but the capacity of women's rights or wife is disputed. This article examines the reasons of rejection and evaluate the qualifications of men and woman.

Consolidation of family through preventing problems to occur for it or organizing such problems is an important concern of those in charge in the Islamic Republic of Iran as well as professionals of social issues. So far, professionals in various scientific fields have provided different plans for this purpose. Since family’s problems are multi-dimensional, however, one-dimensional plans provided by professionals of the various sciences have not been able to be of effect in managing family’s problems as much as expected. In the present study, adopting an interdisciplinary approach and using sciences which concern family, origins of family’s problems are recognized and a comprehensive system to protect family in the Iran Public Law is designed accordingly. In this plan, the origins of family’s problems are traced back to ignorance, inability, and disobedience. And, in accord to these three harms, three large-scale strategies of “training and increasing skills”, “protecting and increasing ability”, and “consultancy and arbitration” as government’s important responsibilities to control them are studied and, for each of which, executive solutions are explicated.

One of the fabrication of Article 6 of family protection act approved , 2012, granting the guardianship right to the mother her in the process of the alimony demanding of a child and incompetent child ,and some regard it as the creation of mandatory guardianship and some believe that the granting of this kind of custodianship to the mother is the same as the institution of the guardianship which determined by courts. Each one of them create the various lawful effects in the realm of the mother ' responsibilities and willpower ,and The current paper explores the nature and the fundamentals of the mother guardianship notion over the alimony demanding of the child through descriptive-analytical method. The result of the paper indicates that the Iranian legislator goal over this conferring of the guardianship to mother is not the confirmation of the guardianship right for the mother The most important impacts of this theory are as follows the law effects of mandatory guardianship including the right of seizing over the assets of the child, and being unperishable and unmovable with regard to the guardianship right does not make any difference to this kind of the guardianship.

In the Islamic Republic of Iran, two different bodies have been involved in policymaking in the field of family, one being the Expediency Discernment Council of the System that by virtue of the first clause of Article 100 of the Constitution is responsible for determining the overall policies of the family, and the other is the Supreme Council for Cultural Revolution that claims to have the dignity of policymaking. To date, numerous documents about family have been compiled by the two authorities, wherein the general family policies   such as " The General Family Policies announced by the Supreme Leader of the Islamic Revolution in 1395", and "The Goals and Principles of Family Formation and the Consolidation and Excellence Policies on Family approved by Supreme Council of the Cultural Revolution in 2005" directly or indirectly have been set out. The multiplicity of policy makers, the lack of positive interaction between them, as well as the independent action of each of the mentioned bodies in setting general policies, have caused several damages  such as the confusion over supervising general policies in legislation and implementation of the laws, the dispersion and inconsistency in the declared policies, the overlapping of general goals and policies, and the overlapping of general policies and executive programs.

There has been a wide discussion among Muslim scholars on the subject of polygamy or the multiplicity of wives in the Quran and different views have been proposed in this regard. A group of scholars has supported polygamy and considered it necessary for some reasons. They believe that sometimes a man is urged to marry another woman in order to keep away from sin and corruption. On the other side, polygamy provides the opportunity for those women who have not married yet because of the death of their husband or divorce. In contrast, another group has criticized it. Polygamy, in their belief, may threaten the rights of the first wife. There is also the possibility that the wives oppose each other that makes some problems and challenges for them. In addition, polygamy may threaten the family preservation; since, generally, the entrance of the second wife into the life of the man brings about many tensions in the family relationship that disadvantages of which may also affect the children. Another group, taking into consideration the advantages and disadvantages of polygamy, has attempted to manage their disadvantages and to propose solution for that. Therefore, we see the formation of three different approaches to this problem. The present article reviews and evaluates the different approaches to polygamy in the form of three parts of “prescription”, “prohibition,” and “limitation”.