نشریه فقه و مبانی حقوق اسلامی
سال پنجاه و چهارم شماره 2 (پاییز و زمستان 1400)

Emotional divorce, according to psychologists, is an undeclared separation that results in vanishing the sexual pleasure from each other because of the rupture of the couple’s emotional relationship. This type of divorce is not officially recognized in jurisprudence and law, but jurisprudential and legal laws may give some insights about it. From the jurisprudential point of view on adultery, a married man (moḥṣin) is the man who is married and a married woman (moḥṣina) is the woman who is married, subject to sexual pleasure between them. Article 227 of the Penal Code, by prescribing this criterion, refers to some examples of marriage rupture that are not possible in the case of their existence. The present research is intended to investigate the role of emotional divorce in the decline of the state of being married (iḥṣān). It is assumed that emotional separation is an example of the fall of the state of being married that can play a role in determining the verdict.

Drinking wine or any alcohol-containing drinks (khamr) is one of the Great Sins, the punishment of which is considered among ḥudūd by the majority of Muslim scholars (jumhūr-al-Fuqahā). In some religious schools (madhāhib), the punishment for drinking wine (khamr) is 40 lashes and in others, it is 80. The present study seeks to answer what the penalty is for repeating this crime following the last time it is confirmed and punished. A group of jurists believe that they must be punished by death and others deny the death penalty. Among the group who believe in death penalty, some say that hanging must be administered after the third time they commit the crime; others state it as viable for the fourth and the fifth times. Some of the believers of death penalty prescribe death penalty for the fourth time; however, others assign ta‘zīr for this. On the other hand, the deniers of hanging (death penalty) are two groups: one group denies its credit from its very basic; however, the other group believes that such atonement has existed from the very early Islam, but it was outdated sometime and the reason for that is controversial. Any of these statements have been attributed to some reasons and causes. In sum, regarding the insistence of shari‘ah on protecting human life, especially the Muslims, in many Qur’anic verses or Hadiths, in addition to the principle of depenalization/penalization as well as the requirement of presenting a narrow interpretation, the present study repudiates death penalty for any form of the mentioned crime.

The subject of research in this article is whether the intellect can independently recognize the virtue and indecency of deeds without the help of the Sharī‘a, so that it can be assigned? The early Ash‘arites believe that the intellect needs the teachings of the prophets in knowing the rules, and that Sharī‘a is the only the source of virtue and indecency. But according to the Mu‘tazilites, the first argument in understanding virtue and indecency is the intellect. According to the Imamiyeh, virtue and indecency are intellectual but intellect is not needless of the Sharī‘a and the new Mu‘tazilites in the early twentieth century sought to portray Islam in harmony with the elements of modernity with a new interpretation of Qur’anic concepts. In this article, it is attempted to explain that firstly, the intellect does not need the Sharī‘a in determining the virtue and indecency of deeds. Secondly, in case of contradiction, the legislator’s designation is prior to intellect.

If the buyer or seller has suffered an intolerable loss in the transaction, the deceived person can terminate the transaction and make up for his loss by exercising the option of deception. In this case, the return of the recompense or their substitute to the transaction parties, even in the face of financial appropriation, will be mandatory; depending on whether the transferred or non-transferred appropriation is permissible or necessary, etc., different rulings will be designated on them. One of the most important derivatives of this issue is the option of deception on the lease that has been made by the deceiver in the period between the contract and the deception. On the other hand, deceiver has rented it when he was the owner of the object, and the termination of the lease due to the termination of the sale is incompatible with the tenant’s rights, and on the other hand, the continuation of lease can lead to the loss of the deceived. Imāmī jurists have tried to resolve this issue by citing matters such as the necessity of unstable ownership, the compliance the benefits from the property, the principle of ḍamān al-yad (compensation for damage to property held under trust), the rule of action, and so on. The great differences among the jurists and the silence of the law in this regard elucidate the significance of this study. In this article, while expressing and criticizing the existing opinions in this field, according to the jurisprudential basis of the option of deception and the necessity of the relevant jurisprudential rules, the theory of “the need for a lease and guarantee of deceiver in relation to benefits after revocation” has been accepted and strengthened.

Interference or contrast of contradictory with purpose is a principle that has been used in the casual inference and confirmation of some religious propositions in Shi’ite jurisprudence, such as the murderer’s prohibition of benefiting from the victim’s heritage. Sunnis also consider haste in actualization of an issue before its due time as resulting in disappointment. Although, in the principles of Imāmī jurisprudence, there was not much spoken of this rule, and only some of them, in following the Sunnis, have written about it, the expanse of the functions of this jurisprudential principle and the possibility of enjoying it in punishments clearly illustrates the necessity of verifying its authenticity and soundness. By contemplation on the evidences and applications of this rule in jurisprudential texts, its consistency and solidity is apparent in Shari'a, and it seems that this rule can be generalized to the conditions that are obtained from the analysis and refining of their jurisprudential applications. In this research, using documentary resources and analytical method has been addressed to prove the originality and structure of this rule and to explain its channel in Shi’ite jurisprudence.

Irrespective of the husband’s legal obligation to provide alimony for the wife, the standard and criteria for determining the alimony of the wife, is the origin of jurisprudential disagreement; so that the renowned majority of the jurists consider the criterion to be absolutely the dignity of the likes of the "wife" in her place of residence. The second view considers the criterion for determining alimony as the dignity and status of the "couple" and the third view considers the criterion as the dignity and status of the "husband". The present research, while analyzing and re-reappraising the principles of the existing sayings and also using jurisprudential documents, has considered the issue in detail in the jurisprudential ruling and, considering the economic conditions of the couple, has considered a combined theory from the third point of view and the renowned majority of the jurists. In this way, assuming the homogeneity and social status of the couple's family or the husband being wealthy, the criterion for determining alimony is the dignity and social status of the woman, but assuming that the couple's social and economic status is not homogeneous - so that the wife's family is wealthy and the husband is poor and helpless - the criterion for determining the alimony of the wife is the economic situation of the husband. The result of this detailed theory has led to the proposal to amend article 1107 of the Civil Code, which, following the statement of the renowned majority of the jurists, made the dignity of the wife the criterion for determining alimony.

Prohibition of usury is well-established according to Imamiyah jurists and it is considered to be disapproved by reason. Disapproval by reason of usury requires that the rule on the prohibition of usury except for those case excluded by definitive reason be non-specifiable and usury be disapproved and forbidden under any circumstances. In spite of religious prohibition and by rational disapproval and social depravities of usury, some jurists have introduced certain ways for escaping from usury and have ruled for its legitimacy. In this regard, Imam Khomeini is among few jurists who through considering and reviewing the question, have ruled for its prohibition in all cases in which the nature of usury is secured and has neglected all ways and excuses for escaping from usury. By examining the implication of the narrations, he has considered them to be for peremptory usury (and not for real usury). Accordingly, the ways for escaping from usury cannot be applied as a general rule for specifying the prohibition of usury.

Tazāḥum in the meaning of "competition of two propositions in practice" does not have a long history in jurisprudence. It does not occur to separate tazāḥum from ta‘āruḍ or conflict resolution, prior to the late jurisprudent Bihbahānī. From a historical perspective the first jurisprudent who has raised this issue was the late Nā’īnī. After him, in the principles of Imāmī jurisprudence, it has been called tazāḥum when two legislations are conflicted in practice and independently discussed. In spite of this separation, it is difficult to diagnose some cases and in many cases the disagreement between jurisprudents is still evident. In this article, which is written in a descriptive and discretionary method, it is expressed that if the statement that comes in the legislature also refers to the authority, it is a conduit of ta‘āruḍ, but if the proposition that comes in the legislative stage does not refer to the practice stage, ta‘āruḍ will not take place. In this regard by historical explanation of the above two terms, ta‘āruḍ and tazāḥum, it has been shown how the "condition of power in duty" and the "possibility or impossibility and acceptance or non-acceptance of tarattub can be the source of these differences.

One of the most important topics in the evidence of litigation, whether it is fundamental or not, is confession, which has been considered in criminal terms in this research. Therefore, based on being fundamental, confession itself is important and with confession, the verdict is approved. But if the confession is unfounded, it matters if it clarifies an issue, and if the judge is not convinced, the confession does not matter. The opinion of the jurists on the research topic can be discovered by examining two methods or the way they interpret the narration (two confessions to a murder) or specifying whether the confession is fundamental or not. It should be noted that the position of criminal law, despite its reliance on jurisprudence, is not clear and is sometimes contradictory. As it has been proved in this article, the method of confession is more in line with jurisprudential and legal principles.

The ruling on marriage to an adulterous woman (zāniya) is considered as one of the most controversial and challenging jurisprudential issues. The research question is what is the ruling on marrying an adulteress from the perspective of Imamiyah jurists? Imamiyah jurists have different viewpoints on its legitimacy or illegitimacy. Most jurists consider it permissible to marry an adulteress, and on the contrary, this is ḥarām (forbidden) from the point of view of other jurists. However, those who hold the latter view have different perspectives on whether ḥurmat (being ḥarām) includes only the adulteress, or the known and public adulteress (an adulteress who is known by everyone or commits adultery in public). The present study, which is based on a descriptive-analytical method, indicates that most of views of the jurists who consider marriage to an adulteress to be makrūh (detestable) by combining arguments do not agree with the rules of conflict. The conclusion is that perhaps from the appearance of some narrations, only marrying a famous adulteress can be considered as ḥarām but according to Shahid Sadr's Fiqh al-Naẓariyah and Fiqh al-Niẓām, permanent marriage to an adulteress is ḥarām. Because marriage to an adulteress does not fulfill any of the goals set for marriage and family formation, and in this case, a healthy and righteous family is not formed and corruption is institutionalized in this family.

Nowadays, with the widespread development, “electronic documents” are increasingly produced and stored. In the Iranian Electronic Commerce Law, the probative value of documents as evidence in substantiation of claims has been accepted by the legislator; the issue of accreditation of electronic evidence from the perspective of jurisprudence has not been addressed.Their main reason for this is the possibility of forgery and fraud in documents, which makes them invalid. After collecting the remarks of the jurists in this regard and reviewing and examining them through an analytical method, we have concluded that the written documents do not have any superiority over electronic ones and thus, both of them should be treated and if appropriate safety measures are taken in order to protect the contents of the documents, electronic documents can be considered as the evidence in substantiation of claims (either independently or as a conjecture which will have impact on the judge’s decision), and then this kind of documents can be relied on to prove the claim in the courts

In Article 239 of the Civil Code of Iran, the effect of violating the condition of the act is the right of termination and obligation in the order of obligation on the right of termination. If we consider the condition as the creator of the right and its existential effect to protect the interests of mashrūṭun lah (person in whose favor a condition is made), the terms and regulations of the condition must be formulated and interpreted in such a way that it practically comes to the help of  the mashrūṭun lah. The order provided in article 239 not only does not meet this expectation, but sometimes itself causes inconvenience and imposes unjust damages on the mashrūṭun lah and violates the rule of the need for full compensation for the contractual damages and causes instability in balance principle. On the other hand, the right of termination does not take precedence over the obligation to cause the submission. Therefore, the provision of both rights, i.e. the option of termination and the possibility of binding optionally, and in case of signing the transaction, claiming a condition as damages based on expediency and envy in each case, has been considered as the chosen view, which is the subject of the present research carried out in a descriptive-analytical method.

Stoma is an opening and outlet for the elimination of waste products from the body and is usually used for patients whose intestines or anus have been removed from the waste disposal cycle due to certain diseases. One of the most important jurisprudential issues in this case is the purity or impurity of the materials removed from the stoma (ostomy, ileostomy or ...). Considering the fact that this issue is new and present in today's society and the lack of independent, juridical opinion and comprehensive research in this regard, the necessity of discussing it becomes clear. The present article, with a descriptive analytical method, while explaining the subject, by analyzing the jurisprudential principles, discusses both sides of the issue and concludes by explaining and analyzing its various aspects. Criticizing principles, quoting verses, narrations and other evidences of the promise of impurity, matching the subject with the issue of conflict between principles and appearances, examining the practical principles that can be applied to the issue, including the originality of purity and considering the concept of legal impurity and the analysis of customary judgment, as well as the rule of negation of hardship and embarrassment, as a document of the apparent ruling of the issue, the promise of purity, is justified; However, the preference and necessity of observing cleanliness and hygiene is also accepted by the rule of shari’a and innate disposition (fiṭra).