مجله پژوهش های فقهی
سال نوزدهم شماره 1 (بهار 1402)

The legal system of Islam, relying on evidence such as verses of the Holy Quran, narrations and numerous legal rules, issues a verdict to compensate for spiritual damage. In the Iranian law too, along with the advancement of society and the emergence of new ideas, the legislator has provided the grounds for accepting spiritual losses. However, considering air crashes and their losses, we face a distinction based on the Warsaw Convention and practical procedures for dealing with these types of cases. This research explains the legal principles of the legitimacy of the compensation for the spiritual loss. It is concluded that the distinction between the moral losses rooted in physical damage and the mere spiritual damage, along with material losses, has created problems in dealing with cases of air crashes. This study will review these problems.

The famous Imamiyyah jurists and other Islamic sects, without distinguishing between men and women, have considered the appearance of genital secretions (semen) in sexual encounters, referred to as "inzal" and “imna`” as the necessary condition of ritual purification after sexual intercourse (ghusl).

In this descriptive-analytical study, using the jurisprudential sources of Islamic denominations, a thematic study of sexual secretions in women and men and the degree of similarity or difference between them was performed. The study aimed at comparing and explaining the level of compatibility of jurisprudential views with scientific findings.

The findings of the study show that the theory of the presence of ejaculatory secretions in women is influenced by the teachings of ancient medicine. The scientific findings do not provide strong evidence to confirm this phenomenon. As a result, the use of the words "ejaculation (Inzal)" and "imna`" and so forth in traditional texts for making a comparison between men and women is a verbal commonality. However, these titles refer to the state of female sexual discharge at all stages of the sexual response cycle, whether it is due to sexual intercourse, non-penetrative genital stimulation or sexual dreams. The theories of the famous jurists seem justifiable for realization of ritual impurity after sexual intercourse and obligation of ghusl for women, regardless of whether the sexual discharge stays in the vagina or leaks out following sexual stimulation.

One of the rulings that is famously common among jurists and people is the obligation for a menstruating woman to perform her lapsed fast of Ramadan. This ruling is based on the hadiths, without any argument or reference to the Qur’an. This research first reviews the hadiths and verses and determines that this ruling is at the level of a jurisprudential reputation and is not supported by successive transmission, tazafur or even the plurality of narrations. In this regard, only four direct and indirect narrations refer to this issue, half of which suffer from the weakness of sanad (chain of transmitters) or irsāl. The remaining two narrations are also invalid due to their opposition to the Qur’an. As for the Qur’an, since the performance of lapsed fasting is limited to two groups, i.e. travelers and patients, and a single narration cannot generalize the limitation of the Qur’an, therefore, the obligation of performing the lapsed fasting of menstruating women is doubtful. In the case of the possibility that menstruation is considered a disease by the Qur’an and so one must perform the lapsed task, based on analyzing the words and the Qur’an, it is proved that Allah excluded the menstruating woman from the list of patients, and considered menstruation as a kind of mental anxiety. Accordingly, based on the Qur’an the obligation of her lapsed fasting of Ramadan is problematic.

Iran's legal system provides absolute protection to owners in such a way that negligence of the owner has no effect on his right. This issue is discussed both in non-registered and registered documents. The result of this is the increase in negligence of the owners as, sometimes the cause of victory in a lawsuit is citing the negligence, and sometimes due to the lack of development of registration facilities, owners cannot be informed of the occurrence of the crime timely and take preventive measures. Negligence of the owners makes committing the crime of transfer of other’s property easy and so, trading order and social welfare will decrease. Due to the difficulty of committing crime. obligation to protect his right imposes a lower enforcement costs on the society and will reduce crime and lawsuits. This duty contains the necessity of announcing transactions and taking care of the properties and preventing encroachments of others. According to Sharia’s texts, imposing this duty is not against the Sharia. The penalty for violation of this duty could be, as the case may be, inadmissibility of non-registered documents as an evidence of current ownership lonely and sometimes confiscation of property from the owner. However, imposing such a duty requires the provision of facilities that, unlike registration formalities, have the characteristics of ease and speed.

The women’s right to fertility and coagulation of sperm in the womb in marriage is a matter of debate in terms of narrative and human rights in the present era. Maybe, one of the spouses intends to have a child, to delay having child, or to control birth without counseling and making agreement through dismissal or any other modern conventional methods. This may cause dispute among the spouses and create voluminous cases in judicial authorities and sometimes may lead to divorce. Due to its lack of importance in the past, no independent section has been dedicated to this subject by the earlier jurists. But today, the phenomenon of the virtual world, the global village, and the invasion of the western media to ignore the rights of women in Islam, make it necessary to explain the importance of the issue in the present era. This research gathers and analyzes the views of four Sunni and Imami schools of thought as well as the opinions of the modern jurists of the two Islamic sects. It also reviews the rational evidences and narrations in order to address the question of whether the woman will be given any right to have a child through marriage contact. The results of the research show that women have the right to be fertility and having child is a shared right between couples.

The status of revocable divorced wife during the waiting period after divorce is one of the most important issues in jurisprudence and law. Two theories have been proposed among the jurists: real conjugality and judicial conjugality of revocable divorced wife. The present study, using a descriptive-analytical method, has examined the fruits of the two theories. Nine results of the two theories have been proposed in the words of the jurists and the lawyers, some of which have no practical effect, such as the question of whether the revocable divorce is an absolute sale or a lawful contract, whether the arrangement of conjugality rules in the waiting period after divorce is devotional or rule-governed, or whether referring to the divorced wife results in the restoration of the marriage or prevention of separation between couples. Some of the rulings mentioned as the results of the debate are not essentially related to the real conjugality and judicial conjugality, such as the question of whether the referring to the divorced wife is a right or a ruling. Some of the proposed results are important practical rulings, but there is no difference in the arrangement between real conjugality and judicial conjugality; in other words they are arranged according to both theories, such as the permission of sexual pleasure during the waiting period and eternal sanctity in case of adultery with revocable divorced wife. Examination of the jurists' statements about the revocable divorced wife indicates that all the rulings applied to the wife are also applied to the revocable divorced wife. According to the above-mentioned evidences, it is found that there is no practical difference between the two theories of real conjugality and judicial conjugality.