نشریه فقه و حقوق خانواده
پیاپی 77 (پاییز و زمستان 1401)

There are disagreements in the judicial procedure regarding the competent court to conduct preliminary investigations of the crimes under Article 302 of the Criminal Procedure code committed by girls between the ages of 9 and 15. Some views based on Note 1, Article 285 of the Criminal Procedure code, put directly the preliminary investigation of all crimes of people under 15 years of age under the jurisdiction of the Children and Juvenile Court and don’t consider any differences between boys and girls. Some other comments have placed the preliminary investigation of this group under the jurisdiction of the special criminal court for dealing with juvenile crimes based on Article 315 of the Criminal Procedure code. Assuming the competence of the special criminal court to deal with juvenile crimes, prohibition of dealing with said crimes without issuing an indictment according to Article 382 of the Criminal Procedure Code on one hand and the prohibition of preliminary investigations of girls aged 9 to 15 in the special juvenile court according to Article 285 of the Criminal Procedure Code on the other hand are ambiguous. This research, with a descriptive and analytical method, and by examining the different judicial comments and presenting various arguments in this field is explained these desired difference and concluded that the preliminary investigation of these crimes without issuing an indictment in the special criminal court for dealing with juvenile crimes is true

Iran, Egypt and Lebanon are among the Islamic countries where the source of family laws is "religion" and personal status in Islamic countries is based on religious rules and regulations and the examples related to it, such as marriage, are derived from religious orders. But the legal system of Lebanon has a type of marriage known civil marriage which is modeled from the developed countries. It is recognized as a type of unequal marriage that took place outside that country which is applied due to the conditions imposed by the religious legislature in Lebanon, which has created an obstacle for the marriage of some men and women who are from different communities or who intend to separate from each other. So, this caused some people to look for legal solutions, including civil marriage, to solve this problem. Because most of the foreign countries and some Muslim countries have approved civil marriage, either mandatory or voluntary. Therefore, with the progress of societies, social interactions and the raising of the cultural level of families, an attempt has been made in this article to reread the condition of the equality of religion by looking at the change of the position of women in the family with the change of the concept of dominance and authority and also by relying on the jurisprudential capacities of the rule of La Ḥaraj and the principles of expediency and justice, and by taking the help of civil marriage in Lebanon, the legal gaps in the legal system of Iran and Egypt should be resolved.

The researches that have been carried out so far regarding the principles governing the family, have often been about adoting of exapless, without explaining the concept of the principle, government and the method of deriving these principles from the verses and traditions. Since every inference requires an explanation of the method, so in this research, we intend to adopt the bases and principles of the method of "exploration" of Martyr Sadr in the book "Our Economy" which is a new theory in the presentation of the school that is considered as economic school, to explain the methods and mechanisms of deriving the principles governing the family from verses and tradtions by using the descriptiveanalytically mehod.The most important mechanisms of the exploration method examined in this research are: repetition and emphasis of the law, collective speeches using common terminology, discovering the criteria of rulings, and induction method. The validation of the tools of this inference in the field of family will give more credit to the discovered principles which are of great interest today in policy-making, legislation and implementation in jurisprudential-legal issues related to family. This is because first of all, the method of Ijtihad of the Usulians requires development and evolution while maintaining the traditional framework, and in addition to the rules of Ijtihad that mainly focus on individual aspects, attention should also be paid to the method of obtaining social rulings and governmental jurisprudence as well as rulings derived from moral propositions. Secondly, these principles show the macro approach of a system and instead of expressing a ruling and knowing its segments, it staes and discuses about what or why the rulings are, and in case of conflict with individual propositions, it can have authority over them.

The meaning of the word "Wa'de"(meaning promise) in the legal term and its semantic similarity or difference with the concept of "Wa'id"(meaning is promised) is one of the controversial issues among the jurists. This term is used in the Iranian rules only in Article 1035 of the Civil Code and in relation to the "promise of marriage". Therefore, disagreements about the meaning of "Wa'de", has led the jurists to offer different interpretations about this word. The purpose of this research is a careful study of the meanings of these two words: "Wa'de" and "Wa'id", expressing different opinions and trying to choose the correct meaning of these words. Finally, the effect of this disagreement in meaning on the manifestation of different interpretations of Article 1035 of the Civil Code has been examined and the more accurate interpretation from the above words is presented and explained. This article is a descriptive-analytical research and its information has been collected by library method. The results have shown that, first, "Wa'de" as a simple meaning of promise is a distinct concept from commitment and lacks a binding elements; Second, based on this explanation, the sentence of Article 1035 of the Civil Code including that the promise of marriage is not binding, is restricted to the cases of "mere promise" to the marriage and does not include the cases that contain the commitment of the parties to marry in the future.

Contrary to the popular view of the Imamiyyah Jurisprudence, that a judge or arbitrator should have the condition of "masculinity" in the feasibility of women's arbitration, some jurists criticize the verses and hadiths to which the famous have relied, even if it is necessary for the appointed judge, has not been considred a condition for arbitrator judge or consolidate judge (Taḥkim judge)). In this article, we seek to answer the question of whether women can judge due to jurisprudential arguments or not? For this purpose, among the three theories: 1) the condition of masculinity in the absolute judge, whether appointed or consolidated, 2) the absence of the condition of masculinity in any type of judge, whether appointed or consolidated, and 3) the condition of masculinity only in the appointed judge and the non-conditionality While criticizing the first theory, the second theory has been strengthened and the third theory has been considered in line with the current laws of the country and developments in the international arena. Acceptance of women's arbitration licenses, firstly, due to lack of publicity or application that implies the condition of all the conditions of a judge appointed in the judge; Secondly, the lack of character of "Rajul/ Man" in the related narrations and the lack of meaning of the title; Acceptance of women's guardianship in matters beyond arbitration such as guardianship (such as mandatory arbitration) or will (such as optional arbitration).

There is no doubt about the legitimacy of temporary marriage in Shiite jurisprudence. This kind of marriage is recognized in Iran’s civil law and family support law, and some of its ruls is indicated. But there are some ambiguities about some of the issues such as the juridical effects of the wife's disobedience. Disobedience of wife in permanent marriage could lead to loss of alimony right entitled to her but in temporary marriage wife not entitled to alimony right. So, the important question is proposed here: what is the effect of a wife’s disobedience on her rights, and in other words, what is the executive guarantee of the husband’s right to submission in temporary marriage? There is no commentary about this issue in Civil Law, while this issue is important and should be investigated. In this paper, this issue is studied through descriptive and analytical methods from a jurisprudential perspective. The findings of the study are shown that if the divorced wife refuses to obey without a valid excuse, her disobedience would be fulfilled. On other hand, disobedience of the wife in temporary marriage leads to nulling her right of marriage portion or dowry, and the husband could deduct from the dowry considering proportion to the period of disobedience, and if the husband had paid the full dowry, he should demand its return in the same proportion through the court

The right to education as one of the inalienable rights of children is the responsibility of parents and guardians in Imami jurisprudence, Iran's legal system and international legal documents and the scope of this right and the extent of its application are not absolute like many human rights and can be restricted. The right to education in the field of children with disabilities, in terms of the scope of the said right and the overlap of this responsibility of parents towards their healthy and disabled children, creates ambiguities in the mind, and finding the answer in the sources of Imamiyyah jurisprudence requires a more detailed investigation. The current study aims to examine the "right to education of children with disabilities" from the perspective of Imami jurisprudence and then its position in Iran's internal laws and international documents and jurisprudential foundations and principles in order to resolve the conflict between the rights of children with disabilities and healthy children. Finally, there is no doubt about the duty of parents to respect the said right in the case of disabled children, but the scope of the right to education should be defined in terms of the type of mental and physical disability of the disabled person and its extent should be defined based on the interests of the disabled child. In the juxtaposition of this right with the rights of healthy children, the scope of parents' duties based on jurisprudential principles such as preservation of property, age, gender and degree of disability of children, etc., can be determined according to different areas of education. In this regard, the adoption of protective laws for maintaining the education and upbringing of such children by special centers such as welfare can prevent the creation of conflicts.

t will also cause the relevant rights to be collected at the time of registration of these legalacts in notary offices in a timely manner,to the legally prescribed amount,withoutthe possibility of avoiding payment. Based on many benefits they attach to the registrationof legal actions,and regarding legal,lawful effects the registered legal actions mayproduce,the legislator restricted influence circle of the principle of will dominion onregistering legal actions,made the registration of some legal actions obligatory. Thelegislator's strictness on the obligation of officializing some legal actions includingmarriage,divorce is a signifier of civilization,one of the elements of culturalprogress,development. This helps the related rights to be cleared at the time ofregistering these legal actions in notary public to be collected in timely manner,the legallyprescribed amount,without preventing payment evasion. By drawing up a documentin notary public,individuals enjoy many benefits of official documents includingobligatory nature of documents' provisions without requiring magistrates’ verdicts,decreased disputes,law suits on common contracts,agreements. Despite the factthat official registration of marriages,divorces is an emerging legal phenomenon andwith not much of a record in jurisprudence,but jurisprudential rules may be used in givingeffect to them. The most important jurisprudential rule usable as the base to make officialregistration obligatory is the rule of “denial of disorder in the system. Others of such rulesinclude negation of distress,constriction,the rule of expedience,rule of theprohibition of detriment,and preventing loss. which is studied by descriptive-analyticalmethod,by collecting library data .

Anxiety disorders are one of the most common psychiatric disorders that cause problems for millions of people every year. The main component in this disorder is "anxiety". If the parents suffer from generalized anxiety disorder, they are constantly looking for reassurance from their child. And part of these safeguarding behaviors take place in the form of instructions that such parents give to their children; On the other hand, obedience to parents is one of the issues raised in the Hadiths of the family of Allah, peace be upon them, the researcher seeks to investigate the characteristics of generalized anxiety disorder in modern psychology and jurisprudential examination of the ruling of obidence to parents based on the opinion of Shia jurists and determine the duty of these parents's children. In this research, in addition to using the analytical descriptive method, the religious ijtihad method has been used; As a result, it was detrmined that obidience to parents is not absolutely obligatory, but obeying them is obligatory only in two cases, and the children who have the parents with generalized anxiety disorder do not have to obey their parents' commands and commands, which are caused by their disorder .

The emergence of Covid-19 since 2019 has brought the world with various challenges. The important effect of Covid-19 in the field of criminology studies is the change in the algorithm of patterns of delinquency, victimization and fluctuation in the rates of various crimes. According to the health guidelines and the formation of campaigns such as "stay at home", explaining the crime of domestic violence is of great importance during the pandemic period. Based on this, the current research seeks to investigate the role of Covid-19 on domestic violence. The present research method is a combination of qualitative and quantitative methods. At first, using the descriptive phenomenological method of Clause, the lived experience of ten women victims of domestic violence during the pandemic period was obtained. Following the stages of the Clause method, the researcher-made questionnaire was designed in the light of lived experiences and with an emphasis on physical violence, mental violence, verbal violence, sexual violence and economic violence, and its validity, form and structure and reliability were confirmed. The statistical population of this research in the quantitative study section is all female teachers of the second secondary level in the 7th education district of Mashhad, from which, using the simple random sampling method and in the light of Cochran's formula, 190 people were selected as the final sample size. . The results of the one-variable test showed that physical violence, mental violence, verbal violence, sexual violence and economic violence have increased as a direct result of the spread of Covid-19 compared to the pre-pandemic period. However, the findings of Friedman's test proved that among the types of violence, physical violence ranks first and psychological violence ranks last.

In the current age, family research is doubly necessary in the civilization confrontation and secular civilization, and the formulation of legal, jurisprudential and educational theories in this field, especially regarding the role and duties of the mother, is emphasized in a methodical manner by relying on the Islamic and jurisprudential tradition. There are long-term discussions about the mother in Islamic jurisprudence, and the issue of guardianship and the circle of influence and control of the mother in the affairs of the child is one of the most important. In the popular view, the mother's guardianship over the child is limited. The present article tries to reread the territory of mother's guardian's ship (independent and non-independent) in Islamic jurisprudence and examine it based on deductive (Ijtehadi) method. After the investigations, it was concluded that the independent guardianship of the mother is a sign of compliance with the proofs of custody as well as a sign of the commitment of educational applications. Also, the mother as one of the 'Adul al Mo'minin (followers of the believers) has independent guardianship and can have non-independent guardianship (Mazoon) only through guardianship. Also, it was concluded that the territory of the mother's guardianship is dependent on the reason that proved it and it will be decisive in the assumption of confluence with the father's guardianship, and various assumptions of the confluence of the mother's guardianship with the father's guardianship were examined

The right of access to sports spaces and arenas and the freely perform related activities in such places is one of the most prominent demands of women at the present time; in particular, the issue of the permitting women to enter stadiums has always been a subject of controversy and disagreement. Contemporary jurists consider the mentioned issue to be Ḥaram (Forbidden) by referring to the verses and narrations related to the taboo nature of mixed presence of men and women in a place and the subsequent moral corruptions. While proponents have presented different interpretations of the related verses and narrations, or they do not consider the presence in the stadium as one of the examples of these proofs. In this article, while categorizing different and imagined situations, the arguments of the both parties have been investigated. Therefore, in general, due to the inappropriateness of the structure of men's stadiums for the presence of women, the presence of women in such places is definitely a kind of corrupting behavior, and the arguments of the proponents in this regard are flawed and incomplete. At the same time, considering that the mere presence of women in men's stadiums is not forbidden and is considered one of women's rights, the government should provide appropriate conditions to allow women's presence in such places.