نشریه مطالعات فقهی و حقوقی زن و خانواده
پیاپی 4 (پاییز و زمستان 1398)

The family, as the cornerstone of society, has a high status in the religious tradition and is the most important social institution and the fundamental factor in the progress and prosperity of the citizens of society. The Quran and Sunna, the main sources of Islamic jurisprudence and law, place special emphasis on respecting the rights of parents as the main pillars of the family. Domestic violence of children against parents shakes the foundation of the family. The question of this study is: What is the legal responsibility of children for domestic violence against parents and to what extent has the Iranian legal system been able to defend them against those who do not respect the privacy of parents? The purpose of this study is to investigate the policies of criminal accountability for crimes committed against parents, especially the elderly and the disabled, as well as their differential judicial protections. Despite the strong foundations in the criminalization of domestic violence against parents, it seems that the legislature has not made full use of this legal capacity. Therefore, it is necessary to consider a special place in criminal law to protect parents. An analysis of Iranian law reveals the weakness and ambiguity of rules relating to violence against parents. However, avoiding criminal inflation requires a more realistic view in attributing criminal liability. The present study, using library method in collecting information by descriptive-analytical approach, and exploring various aspects of the issue, analyzes the jurisprudential and legal fundamentals of the extent of legal protection of parents against domestic violence.

Genealogy is one of the most important matters for human beings and Sharia. The jurisprudential rule of precaution in genealogy is due to this importance. Using descriptive-analytical method and library documents, this article explores the jurisprudential rule. The main reason for this rule is the independent rule of intellect and the conventional wisdom, and other evidences, including consensus, the purposes of Sharia, the practice of religious people, and the principle of precaution, confirm the rule of intellect and the conventional wisdom. Therefore, the ruling of the Sharia in this regard is as the guidance to the rule of intellect and the endorsement of conventional wisdom, and the Sharia does not have an authoritative ruling and independent law in this regard. The statement of important matters in religious texts such as genealogy is due to the emphasis on their importance. This jurisprudential rule is applied in legal and thematic doubts and regarding Muslims and non-military infidels and for the identification of the Prophet's (Ṣ) descendants. The principle of Ibāḥah (permissibility) is not applied in genealogy, for it is used where the subject is permissible by its nature and its prohibition is doubted due to the occurrence of external factors. Also, it takes place where the intellect is not able to recognize the badness independently, while the fundamental principle in genealogy is prohibition, and the intellect, in the lack of knowledge, recognizes the badness in genealogy.

Preservation of lineage is one of the purposes of Sharia, which has become the criterion for legislating rulings in Islam. Within man, there is sexual desire, and to meet this need, marriage is placed. On the other hand, in order to preserve the institution of the family, Islam has banned and punished sodomy (homosexuality), which is detested by a healthy nature and religion, and which medically leads to physical, mental and spiritual illnesses. From the perspective of jurisprudence, sodomy has consequences for the issue of marriage, one of which is prohibition of a sodomite from marriage with the mother, sister and daughter of the person with whom he committed this act. In Article 1056 of the Civil Code, the legislator, following the jurisprudence, suffices to mention the general law, which prohibits marriage with the above-mentioned examples, and does not specify whether titles such as "boy" mentioned in the law are relevant or exemplary.  Does this ruling include only three relative titles; mother, sister and daughter or does it also include breastfeeding titles? Do the reluctance and coercion that generally lead to the removal of responsibility, also remove the prohibition of marriage in this matter? What is the meaning of the "heinous act" mentioned in the narrations and the legal article? This study, by referring to jurisprudential sources and examining the reasons, seeks to eliminate the ambiguities mentioned in this legal article. At the end of the research, some suggestions have been made to amend Article 1056 of the Civil Code.

Broadcast of the image of the accused in the preliminary investigation stage is prohibited, except for the cases authorized in Article 96 of the Criminal Procedure Code. For this reason, the national media when broadcasting news reports related to the crime blurs the face of the accused. This raises the following question: Does the release of these images violate family rights? To get the answer, in the first step, we examined the rate of identification of individuals in the checkered images broadcast on television with an experimental method. Then, using the Cochran's formula, in the statistical population of Tehran, we determined a sample size of 103 people with an error coefficient of 0.1%. Afterwards, by sampling multi-stage clusters, we selected individuals for the experiment, and by photographing and rasterizing their images, the degree of their identification in groups of families, relatives, friends and neighbors was tested. The obtained data and information were analyzed using SPSS software and Pearson correlation coefficient test, and the identification of individuals in the checkered images broadcast on television was confirmed in the target groups. In the second step, with the rules and principles of Lāḍarar (harmlessness), Wizr (personal punishment), protection of honor and privacy of persons, and also by using legal Article 14, 40, 97 and 96, the right of families to claim material and moral damages was proved. In addition, the criminal prosecution of the publishers of these images was demonstrated for revealing business secrets.

The rights of the fetus or child in the womb as a potential human being have delicate subtleties that are hidden from the eyes of families because of inattention and their unseen place in the womb. The result of neglecting these rights and not supporting the fetus that grows in the private environment of the family is the violation of his right and intentional abortions that we observe in many societies today. At first, it may be asked whether the fetus in the mother's womb also has rights. Findings show that the protection of human rights begins from the time of fertilization (not from birth), and in Islam a fetus as a human being enjoys various material and spiritual rights, such as security and health, the right to life, the right to name, the right of inheritance and making a will, the right of endowment and giving a gift even though endowment and giving a gift are independent. Using descriptive-analytical method, the present research is done based on library resources focusing on the Imāmi jurisprudence sources.

Mehr is a gift that a husband gives to his wife and its philosophy in Islamic law and culture is to have a positive effect on creating and increasing love and compassion in couples' relationships. However, in the last two decades, with the advent of heavy mehrs in the form of gold coins, it has moved away from the philosophy of its creation and from its positive family approach; on the contrary, it has created an opposite approach, so that by spreading, it has become a cultural phenomenon that causes a change in spiritual and emotional views on the institution of the family turning it into a materialistic and utilitarian view. This issue has weakened the foundation of families, and resulted in formal or emotional divorce. On the other hand, the current economic situation of the country due to economic sanctions and multiple price increase of gold coins in the short term, besides tempting the implementation of mehr, is a factor in growing the demand for gold coins and increasing their price in the market, which due to the role of this commodity and its prominence in society, has led to a general increase in the price of other commodities. Moreover, confiscation of the couple's property to receive the mehr will have a negative impact on manufacturing jobs in society. Undoubtedly, this situation is contrary to the public order and has necessitated a legal ban or restriction. This article seeks to review these issues.