مقالات رزومه دکتر حمید فرشی

Giving the choice and possession of the right to divorce to the wife is one of the most controversial issues among Islamic Denominations; there is disagreement in understanding the meaning of this among jurists; it can be said that giving the choice and possession of the right to divorce in its nature is a mutual and binding legal action in which the right to divorce can be transmitted to the wife, so that she can divorce herself at her own free will. The majority of the Sunni jurisprudents have considered that divorce is correct, but in Imami jurisprudence such a deed is not correct. Accepting the correctness of transmitting the right to divorce is not inconsistent with the general rules of agreements and contracts, and does not appear to contravene marriage, even though it is not in consistence with the purpose of marriage, which is to get pleasure from and to transcend generations. In any case, because of the traditions that do not consider this act to be correct, it must have been believed to be inaccurate, and it must be accepted that the wife’s willingness to split the marriage by paying to the husband in the form of Khul‘ Divorce or Mubarat Divorce can be acceptable. There are various possibilities regarding the nature of transmitting the right to divorce, and according to verses 28 and 29 of Surah al-Ahzab, it can be said that transmitting the right to divorce is a non-binding commitment to divorce that the husband can revert from. Transmitting the right to divorce, as an independent legal entity, is accepted by the majority of Sunnis, although in Imami jurisprudence, although it has a number of supporters, it has not been accepted, and the fairness is that the verses 28 and 29 of the Surah al-Ahzab are specific to the Holy Prophet of Islam and they do not have any signification to the concept of transmitting the right to divorce.

Paying attention to this point that there is a united view through drunken people which wane their wisdom and they are unthinkable so must include other intoxicating material except alcohol such as drugs and ecstasy pills and etc. that have effects on responsibility as intoxicating drinks. From Imamiyah Jurisprudence these people as a civil responsible are tantamount of insane and their legal behaviors including selling, rent, Vaqf and etc. are not acceptable and are not effective and their confession is not acceptable. But common view of Ahlol Sonnah jurisprudence is legal behaviors of drunken person are acceptable. In the case of confession Imamiyah do not accept drunken confession. Ahlol Sonnah does not accept drunken confession in Hoqooq Allah but they accept it in Hoqoog al-Nas. In the case of Hodood removal of wisdom is not in the place of insane person and primary principals of Hodood will be for a person who while s/he is drunken commit that act, except when his/her drunken is not willful. In the case of Qesas there are three views: confirmation of Qesas for drunken person (a person who his/her drunken is willful), not confirmation meaning that s/he knows that if s/he become drunken would commit a crime then the Qesas is confirmed, and if s/he doesn’t notice to this point Qesas is not confirmed. The third view is more prefer.

People while they are asleep would commit a crime. It is obvious that in these cases the volition of that person is disordered and the person could not control his/her behaviors. Therefore the penal responsibility of him/her must negate. This non- responsibility in punishments of Hodud, Ta’zirat and Qesas is obvious, but in paying blood – money there are four viewpoints: first, paying the blood – money undertake by Na’em (the person who was asleep and committed a crime), second, parents (in charg of the family) of Na’em must pay the blood – money, third there is no proof for paying blood – money, forth if the person knows that while s/he is sleep moves and might commit a crime then s/he is responsible for his/her crime, this is means that s/he must pay the blood – money from his/her property and if s/he does not know his/her habits the person is not responsible and s/he not culpable. It seems that the forth view which the Islamic punishment law also authorize it, is much better. In the case of especial order of nursemaid that with his/her rolling cause to death of a child there are three viewpoints: the blood-money must pay by parents, the nursemaid must pay it, or if the nursemaid feeding the baby because of her poverty then the blood-money would pay by child’s parents and if she is wealthy she must pay the money from her property.