A Feasibility Study on a Change in Law Concerning the Natural Guardianship of Children

Natural Guardianship in children’s affairs is a law that was previously in effect, and which continued with Islam. According to the provisions made in the religious legal demonstrations, this guardianship is for the father and paternal grandfather. Based on the opinions of some contemporary scholars who refer to changes in laws, which have been made with regard to “women” and “family,” and based on the effects of time and place on the logical deduction of laws, the subject of the Natural Guardianship of mothers too has been raised. The stipulations that govern logical deduction based on time and place and the ways that laws change have been reviewed in this investigation first. Next, changes in the laws concerning “women” and laws with respect to “the structure of the family” have been studied. In analysing the changes in laws concerning the two designations, “women” and “women’s guardianship,” two things became clear. Firstly, no findings prove that designating guardianship is subject to the guardian’s academic ability and economic success. Secondly, these two designations were not abrogated during the lifetime of the women at the time of the Prophet (s) and they did not exist for all men. Therefore, no substantial changes have been made in the laws about women. On the other hand, contrary to the acceptance of the fact that the structure of the family has changed in the present era, one cannot ignore the damages caused by this change and issue a verdict to abolish the paternal grandfather’s guardianship. In order to compensate for these damages and strengthen the roles, which support the family, a new model of the extended family needs to become a part of the culture. Moreover, the father and the paternal grandfather being designated as the guardians is not based upon being near the child. Therefore, even if we consider the nuclear family structure, we cannot say that the limits of guardianship have changed. Overall, in using the analytical-critical approach, this investigation has proven that the laws concerning “women” and laws with respect to “the structure of the family” have not changed due to the effects of time and place on logical deduction. Furthermore, the limits of Natural Guardianship do not change. It is necessary for legislators to foresee the necessary provisions for the cases where it is not in the interests of the children to be under the guardianship of the father or the paternal grandfather.