mohammad adel ziyayi

The sacred tradition of marriage from the beginning of human history has always been more or less influenced by environmental, social, and religious conditions. One of the most basic conditions of marriage, from the Islamic point of view, is the permission of the guardian of the girl. However, in case of absence of a close guardian and the transfer of guardianship to a distant guardian or the judge or the girl herself, jurists of Islamic denominations have different views. If the guardian's absence is interrupted i.e. it is impossible or difficult to reach him, three solutions have been proposed: transferring the guardianship to the distant guardian, transferring the guardianship to the judge, and leaving the guardianship to a mature and wise girl. If the absence is uninterrupted (access to the guardian is possible), the following four solutions have been suggested: transferring the guardianship to the distant guardian, transferring the guardianship to the judge, leaving the guardianship to the girl and not transferring the guardianship, and waiting for the close guardian to return. In case of interrupted absence of the guardian, it seems that the solution of transferring the guardianship to the distant guardian is more in line with narrative and rational arguments, and if the absence is uninterrupted, it is better to wait for the guardian to return and take charge of the marriage, especially since in the present age it is easy to return to such a situation with ease in traffic.

The ownership of usufructs of the corpus or the individuals and also the worth of them has been accepted by all of Muslim jurists, but the worthwhile usufructs are the subject of discrepancy. On the contrary of the majority of the jurists, the first Hanafi jurists believed that the usufruct of individuals is not property, because they believe property should have a non-fungible existence and also havethe capability of seisin and they refer to Holy Quran (which has assigned property for dower) and also the Prophet's tradition (who has ensured the hell for whom get wage for teaching the Holy Quran) as well as some works of the Companions. But on the other hand the majority of jurists believe the usufruct is more specific than property and the usufructs could been evaluate just like the corpus. They refer to the story of the marriage of Moses (pub) and Shoayb's daughter which two parties assigned usufruct as dower in it. Some verses of Quran which call the dower as a wage, some traditions and also the right costume of people which consider the usufruct as property have been referred by them in this matter. The prerequisite of acceptance of the famous opinion of Hanafis is considering the inaccuracy of assigning the teaching of Holy Quran as dower, non-liability of non-gained usufructs by violator, the impossibility of willing the usufruct and the non-performance of the inheritance in usufructs. But the prerequisite of acceptance of the famous opinion of the majority of Sunni jurists is the justifiability of these matters. The recent Hanafi jurists have accepted some of these matters because of the compulsion and policy. It seems the opinion of the majority of Sunni jurists is better than the other because of accomplishment of the contracts with usufructs and the creation of liability as a result of the destruction of them in all costumes as well as considering the corpus as property because of the usufructs and benefit is the main purpose of property.