فصلنامه مطالعات راهبردی زنان
پیاپی 91 (بهار 1400)

Gender justice means entitlement justice for women and men. The discourse of change seeks to reduce the jurisprudential inequalities between men and women in order to achieve this justice. The purpose of this study is to analyze the methodology of this discourse and provide a desirable methodological roadmap for achieving gender justice. In this regard, by analytical-critical method, the works of writers after the Islamic Revolution on these inequalities have been studied. Under this discourse, "non-jurisprudential and intellectual approaches" undermine the credibility of the book and tradition. But jurisprudential and quasi-jurisprudential approaches still insist on the validity of some jurisprudential arguments. Under these recent approaches, the "change approach in implementation" considers the scope of change only in the implementation stage of Sharia rules. The "change approach in infallibility" considers the stage of inference of  Sharia rules to be changed, and is formed by "discovering new branches" and revision the reasons with the conventional methods in jurisprudence. And the "setting of new principles approach" achieves new jurisprudential ideas by ijtihad in the rules of inferring the Shari'a ruling themselves and acquiring new methods. Despite some criticisms of these approaches, some of their rules are acceptable. And the desired order in them for achieving gender justice is as follows: First, the establishment of new principles and the revision of the rules of inference; Second, discovering new branches and revision the reasons; Third is the change approach in implementation on the assumption that  inequality leads to corruption, and fourth is the discourse of stability on the assumption that no justified change is proven even in the execution stage.

Divorce as a voluntary act is a matter of moral precept, But the context and conditions of separation prevent attention to ethics. Resolving the incompatibility of the emotional and social contexts of divorce with moral behavior requires an efficient and documented moral model.This study assumes that the Holy Quran has an effective moral model for this part of married life, Using a descriptive-analytical method, he has tried to discover this pattern from the Holy Quran and has analyzed the verses related to the subject of divorce by relying on interpretive sources. The findings of this study showed that the Holy Quran has provided a four-dimensional model for the moral implementation of divorce: To follow this template, The purpose of divorce should be to achieve the opportunity for perfection, Based on the social effects of divorce, the multilateral sentence of divorce should include purification, prescription and recommendation, In the context of observing custom, efforts should be made to maintain peace and good competition And go through the process of observing time, witnessing and benefiting.

In accordance with Article 21 of the Constitution of the Islamic Republic of Iran, the Government has a duty to guarantee the rights of women (specific) in all respects and in Article Twenty-nine of the constitution, the state has a duty to provide "publicly" insurance and social security protections for all. Also, to join Iran in Convention No. 102 (1952 Social Security Convention), the government is required to enforce the right to social security for all people, especially women. Therefore, the main question of this research is about the obligations of the government in fulfilling women's claims and exercising the right to social security based on the constitutional. This research has analyzed human rights conventions using library data and emphasizing constitution, laws and regulations and Human Rights Conventions and It is believed that the rule of law for women to enjoy human dignity and social security in accordance with the Constitution and in the field of human rights, preparing the way for poverty alleviation and creation of welfare life in Iran.

The God has not ordained harmful rules in the primary legislation position, but if the implementation of one of these rules causes any damage to a person, then the prohibition of detriment rule would resolve it. This study aims to investigate the position and requirements of the prohibition of detriment rule in remedying the damages caused by special obedience or disobedience of wife to the husband based on descriptive-analytical method. Although, the special obedience is one of the wife’s duty according to legal and jurisprudential rules, but the prohibition of detriment rule as a superior and dominant rule could remove the harmful primary rules or rules which are related to harmful consequences. Therefore, the prohibition of detriment rule has an important position in remedying damages caused by special obedience or disobedience of wife to the husband. Article 40 of Statue and article 1108 of civil law are also confirming this claim. So, though it is the wife’s obligation to obey the husband, but if the implementation of this duty makes any harm to her, she could refuse the obedience based on the prohibition of detriment rule, article 40 of Constitution, and article 1108 of civil law, which are the reflections of prohibition of detriment rule in law. Also, if the wife becomes disobedient, then the husband could not hurt her by assault and battery.

White marriage means that the parties take action to co-habitation without concluding a legal marriage or lack one of the conditions of the marriage; and since its statistics are increasing in our current society, it is necessary to investigate the jurisprudential and legal aspects of this phenomenon. The present research attempts to investigate the importance of white marriage in jurisprudence and law in a descriptive-analytical method and has concluded that white marriage is not always considered as a marriage due to the lack of one of the pillars of correct legal marriage in terms of jurisprudence and law because three states can be imagined in white marriage, and all the three states lack one or more elements (pillars): in the first case, the parties take action to (co-exist) be together without any intention of marriage; In the second case, although they take action to (co-exist) be together with intention of marriage, there is no considerations and verbal acceptance (some consider this sort of marriage as a reciprocal (without acceptance) marriage); And in the third case, although there is both the intention and word, there are no other pillars of legal marriage, such as the father's permission for a virgin daughter or mentioning the dowry and duration in a temporary marriage.

If marriage is attempted in the days of period during, there will be eternal sanctity between a man and a woman in two ways. These two cases have been crystallized in Articles 1050 and 1051 following the jurisprudence in the civil law. The first case is marrying a woman who is in the period during, even if intimacy does not take place, and the second case is ignorance of the period during, but with the occurrence of intimacy. There are many ambiguities and questions about these materials, including how, despite the principles and rules regarding the excuse of the ignorant, there is such a ruling about the ignorant person? Should the intromission cause sanctity at the time of the person or is it sufficient after that? What is the Shari'a ruling on children born from such a marriage? And most importantly, is there a way to call it eternal sanctity? The findings of this study indicate that one of the ways to get rid of eternal sanctity is that usually the form of marriage contract is performed by a lawyer. Therefore, the scope of a lawyer's power of attorney is "creating a valid contract", not a marriage that is corrupt and leads to eternal sanctity. Therefore, if the lawyer performs the form of a corrupt marriage, such a contract has no effect, and in order to fulfill the issue of sanctity, there must be an intercourse in the days of period during to prove the ruling of eternal sanctity, so if intimacy takes place after the marriage has ended, the woman as is not a married woman and intimacy does not cause respect.

The couple has not discussed the secret agreement between the dowry of the civil law and the family protection law and its effects.This casts doubt on its validity, whether the secret agreement to the contract announced between the parties as well as to third parties can be invoked and valid? On the one hand, between the parties regarding the validity of the secret agreement, despite the announced contract, on the other hand, the citation of this secret agreement against third parties should be distinguished. Although there is no such thing as a dowry in French law, secret contracts are not acceptable under a specific formal contract or against third parties. However, in jurisprudence, the divergence of opinions is also evident and the tendency to validate a secret contract is in the relations between the parties. However, permission to prove a secret agreement regarding the dowry to one of the parties to the contract against the other and also against third parties will have a corrupt consequence, which will cause serious damage to the family foundation and the country's registration system due to neglect The validity of the official marriage document is damaged.