The Reflection of the Conflict of Origin and Appearance in Family Jurisprudence and Law

In Islamic law, one of the practical issues is the issue of the conflict of origin and appearance. Based on the principle of al-bayenah ala al-modaei va al-yamin ala man ankar, the plaintiff is responsible for presenting the evidence. During the trial, some hypotheses may be proposed that the origin expresses a matter and the appearance expresses an opposite matter. This descriptive-analytical research was conducted with the aim of investigating the reflection of the conflict of origin and appearance in family jurisprudence and law, and responding to this question of which one the judge should choose when he/she faces these cases. The results indicated that in spite of wide range of examples of this issue in jurisprudential and legal matters, the sensitivity of this issue in family is more than other jurisprudential chapters, because the nature of relationships between family members is special and that's why the legislator should pay attention to the special position of family in society, so that the judge should also consider family interests and its members in his/her decisions. Furthermore, in the jurisprudential and legal texts of the country, there is no specific judicial criterion and procedure for preferring the appearance to the origin or vice versa. It seems that putting a single and unchangeable rule, based on the priority of the origin or the appearance, as a criterion cannot be a fair solution for claims. Therefore, to achieve a judicial justice, the jurist or the judge, in the position of inferring a legal rule or resolving hostilities, should be convinced and should consider any claim in accordance with the conditions surrounding the disputed issue and the circumstances of the parties.