farajollah hedayat nia

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.

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.

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.

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.

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.

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.

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”.

Women’s behavior model in the family and society is a controversial topic in Islamic Fiqh. Some believe that women must sit at home and be engaged in maternity responsibilities and that their presence in society is only allowed in necessary cases. Others criticize this approach and consider social presence of women as their legitimate right. Disagreement on this issue arises from the apparent contradiction in Quranic and Sunnah (narrative) evidence on the issue. Several evidence of Quran and Sunnah implies the legitimacy of women's social presence. Despite them, we also have several narrations about the need for a female be shut in at home. Many great fiqh scholars considered the latter narrations to mean that sitting at home being desirable not a must, to reconcile between the two category of evidence on the issue and thus they consider home sitting as the desired (Mustahab) model of behavior for Muslim women.The author's hypothesis is that the primary Hukm for Muslim women is permissibility of her social presence and sitting at home is not preferred in normal situations. Based on this hypothesis, narrations implying sitting at home of a woman observe on the secondary directions. While investigating the consequences of home-sitting of a woman grown in the modern society, this paper criticizes the ethical analysis of narratives indicating women's home-sitting and explains the secondary nature of the home-sitting Hukm.

‘Ifaf, in the sense of chastity, is not only a moral principle, but also contains many juridical (fiqhi) effects. In general, functions of the principle of chastity in family jurisprudence and law may be classified into “positive” and “negative”. In its positive function, it can make marriage obligatory (wajib) and it may makes fulfillment of sexual needs of the wife necessary for her husband. In its negative function, it can prevent divorce. Although, in some minor parts of this issue, there is no juridical consensus, from sources of Islamic Jurisprudence it can be inferred that keeping one’s chastity and preventing danger of unchastity can be efficient as a juridical rule.

Islam has considered duties for husband to train his wife and offspring. Thus¡ husband should try to provide a ground for his wife in which she may morally transcend; also he is bound to forbid her from committing sins. One of the important issues in this field is the limits of husband’s authority in forbidding his wife from evil. Is he entitled to forcefully forbid his wife from doing evil; or is he entitled to only forbid her verbally? Since the offence committed by wife may be either of public nature or an offence related to shrew-ness of wife¡ husband’s authority in forbidding her from committing offences will be discussed in two parts.

According to Quran and tradition, man enjoys the right of divorce. Abusing this right has brought about the divorce to grow in number in Iran. To prevent abusing divorce right, it is possible to limit divorce right through stipulating conditions in marriage contract. It is evident that this contractual imposition of limitation on divorce right of the man is legitimate. This means that man undertakes not to divorce his wife except that she is disobedient or impotent in sexual relations. This notto- divorce condition is also protected by civil laws including indemnifying spiritual losses and exercising measures against those who breach this condition. Among effectual guarantees in civil law not having right to divorce is the firmest condition. In other words, when man undertakes to not to divorce his wife, he is deprived of dissolving the marriage according to religious law. In the words of jurisprudents, man, by undertaking this condition under marriage contract, makes himself deprived of divorce right privilege legitimately. However, this does not mean total deprivation of divorce right which remains in special conditions.

The declared policy of the Islamic Republic of Iran in the Constitution and other upper hand documents is the stability of the marital relations and prevention of divorce; however, the process of developments in law and regulations of divorce shows the facilitation of divorce. From the past till now, the legal system of the Islamic Republic of Iran is going toward facilitation the divorce through two legislative and conventional methods. In legislative method, divorce is reformed in the form that the married woman can obtain divorce more facile than the past. In conventional method, the situation is made in such a way that the married man delegates his wife to divorce. This article criticizes this procedure and tries to investigate the solutions for removing family problems and evasion from divorce.

Usually some disagreements may emerge in the relations between spouses which may result in divorce. The Holy Quran has called these disagreements “shiqaq” (breakdown) and recommended to specify two arbitrators, one by wife and one by husband, to settle the disagreement. Concerning the nature of arbitration, some juridical opinions have been put forth; most eminent jurists have deemed it as “tahkim” (arbitration), and some others have considered it as “tawkil” (power of attorney). While studying and assessing the two above opinions, the author of the present article puts forth a third opinion called “expertise”.

Since issuance of the Universal Declaration of Human Rights and emphasis put on equality of men and women’s rights in it, some activists of human rights as well as a group of defenders of women’s rights have criticized the theory of “desert justice” and the differences existing in the legal system of Islam in particular in the field of family rights, and considered such differences as being unjust. Some Muslim religious Innovators, keeping with them, have asked to make a revision in women rights to realize legal justice in the sense of “equality justice”. The present writing tries to explain the theory of desert justice, study the relation between justice and legal differences in the field of women’s issues, and assess the claim that they are unjust.

The rule of control is one of the certain juridical and legal ones according to which the proprietor enjoys extensive authorities to devastate his own properties. On the other hand, from past to the present time, the proprietor's control on his properties is, in some respects,restricted by the State's legislation system. Thus, a question arises: "what are the juridical-legal grounds and ways to restrict possessory control?"

Observing women's material and spiritual rights is an important objective the guaranteeing and reviving of which, according to article 21 of the Iranian constitution, are the duties of the government. The right to be elected is among the social rights and qualified women, like men, have the right to run for socio-political positions such as presidency. This paper is to answer the question whether, legally and jurisprudentially, women, like men, can be the head of the executive or that women are not competent for the position merely because they are women. Afterwards, having elaborated on the reasons for the competency of women for undertaking presidency, the paper evaluates the most important arguments of the opponents, coming to the conclusion that there are no religious and legal prohibitions against women's presidency.

According to article 1117 of the civil law of the Islamic Republic of Iran, in line with the Islamic legal system, the wife has the right to work and the husband, under specific circumstances, has the right to oppose with the wife’s working. There are noteworthy ambiguities concerning the limitations of the wife’s right to work and the husband’s right to oppose to it in the law. This paper studies the wife’s right to work and its limitations, the limits of the husband’s right to oppose to his wife’s working, the conditions of the wife’s working and their validity etc. from a jurisprudential and legal perspective. The results of the study show that if the wife’s right to work is provided for in the marriage contract by the wife, the husband is not entitled to oppose to her working. The paper also proposes an amendment to article 1117 of the Iranian civil law.

“Osr-o Haraj” [hardship and fault] is a progressive Islamic jurisprudence rule which can be used for various issues and problems. One of the applications of the rule is in the case of divorce, where the woman, after proving the hardships of living with the man, can ask for divorce. However, so far the rule has only been used in the case of marriage in the Islamic law. After the Islamic Revolution, the instances of the application of the rule have undergone deep changes. This paper studies and evaluates laws concerning non-financial affairs of the family such as Osr-o Haraj, contraction conditions, and custody and explains the advantages of contraction conditions of article 1130 of the Iranian Civil Law. In this paper, in addition to studying the law in various stages and presenting statistics from family courts, the writer proposes the related legal vacuums and appropriate suggestions.