نشریه مطالعات فقهی و حقوقی زن و خانواده
پیاپی 12 (پاییز و زمستان 1402)

Based on their doctrines, Salafi excommunicationist groups consider followers of other religions and denominations as non-believers, justifying the shedding of their blood and seizing their property. Consequently, these groups engage in numerous criminal activities. Given the military approach employed by these groups, it becomes imperative to examine the perspective of humanitarian law, especially concerning their interactions with civilians. This article aims to gain a deeper understanding of Salafi excommunicationist groups and their treatment of women. It also seeks to analyze this emerging phenomenon within the framework of international law, legal doctrines, and the principles of Islamic law. The objective is to evaluate the treatment of women by Salafi excommunicationist groups in comparison with the provisions of international humanitarian law and Islamic humanitarian law. In this research, we employ a theoretical analytical-descriptive method and gather data from library sources to address this question. Despite the considerable support for women in international humanitarian law and Islamic humanitarian law, the findings of the research reveal that Salafi excommunicationist groups not only fail to adhere to these legal and religious principles but also perpetrate inhumane crimes against women.

Children, like other segments of society, possess inherent rights, and societal procedures should be structured to ensure the realization of these rights. Despite the contemporary laws reflecting an advanced and civilized understanding, demonstrating a progressive stance towards humanity, especially children, there are instances where it might be more beneficial to establish dedicated arrangements ensuring the guaranteed rights of children and teenagers. This is particularly relevant for groups facing the dual challenges of excruciating rare diseases and the deprivation of their fundamental rights. Given the current emphasis on children's rights to the highest standards of healthcare in international regulations, it is essential to establish requirements that secure this right, especially for the considerable number of affected children in developing countries. This article employs a descriptive and analytical approach to illuminate these obscured areas, uncovering pathologies and suggesting solutions and preparatory measures within Islamic jurisprudence and law. This includes the imperative of implementing swift legal procedures to ensure the provision of social and healthcare services for children grappling with rare diseases.

People have an inherent inclination to procreate and ensure the continuity of their lineage. However, some young couples face the challenge of infertility, disrupting their lives and potentially leading to separation. In contemporary times, one solution to infertility is the practice of surrogacy. Within the Islamic context, scholars and jurists hold varying opinions on the permissibility of surrogacy. While some reference specific Quranic verses and hadiths to argue its impermissibility, categorizing it as haram (forbidden), others explore the jurisprudential legitimacy of fertility through modern medical methods. This research delves into the central question concerning the fiqhi (jurisprudential) legitimacy of utilizing new medical approaches for fertility. It draws on Quranic verses and hadiths, employing the method of jurisprudential inference based on religious texts and ijtihad. The study also deploys jurisprudential principles such as "compulsion" (iḍṭirār), presumption of permissibility (aṣl al-ibāḥa), hardship and extreme difficulty (al-ʿusr wa-l-ḥaraj), and presumption of guiltlessness (asl al-biraʾa). The aim is to demonstrate, based on religious and legal grounds, that surrogacy can be deemed legitimate, as long as it adheres to sharia laws in its preliminary stages.

Considering the necessity of bringing children, boosting the population, strengthening family bonds, and addressing the challenges faced by infertile couples, harnessing artificial fertilization methods and establishing the framework for gamete donation emerges as a novel approach to attain fertility. On the other hand, the presence of constraints like gamete trade and potential abuses following the sale or donation of gametes prompts individuals to opt for safer alternatives, such as utilizing the gametes of their mahrams (a person with whom marriage is prohibited because of their close blood relationship). The permissibility or prohibition of fertilization through the gametes of mahrams is a recent jurisprudential development, which this research aims to explore using an analytical-descriptive and documentary method. The findings indicate that, while there is no compelling and authoritative religious reason supporting the permissibility of fertilization through the gametes of mahrams, the reasons for its prohibition are similarly lacking in cogency. Assuming the plausibility of evidence such as the precedence of the no-harm and no-difficulty principles over the definite occurrence of genetic disorders, the application of the principle of caution, and the generality of arguments against the prohibition of marriage with mahrams or incest, implies the imperative to abstain from fertilization through the gametes of mahrams.

Reasons such as an innate lack of hymen, instances of rape, engagement in heavy physical exercises, and past wrongdoings (accompanied by repentance) are factors contributing to the growing demand for hymenorrhaphy or hymenoplasty among girls. The legitimacy of such a surgical procedure hinges on the adherence of both the treatment seeker and the physician to valid jurisprudential principles. To validate such surgery, one approach is to consider the "intentions of Sharia" or the purposes, goals, and objectives of the Sharia legislator in formulating religious rulings. An examination of the written documents related to the physician's actions, the focal point of our research, and a commitment to religious texts, alongside the consideration of intentions like preserving lives, maintaining dignity, concealing flaws, and addressing counterarguments against the legitimacy of the physician's actions (citing concerns such as the prohibition of touching and looking at someone else's genitalia, as well as assisting in sinful acts such as cheating) allows us to justify the physician's actions within the framework of Sharia. This new perspective provides a means to address some of the pertinent issues surrounding this practice.

The marriage contract is the initial step in forming a family. Therefore, it is particularly important to scrutinize prenuptial conditions. One such condition pertains to abstaining from vaginal penetration. This article delves into the legal status of this condition and guarantees its fulfillment. Given that the condition is not explicitly outlined in current Iranian laws, Article 167 of the Constitution and Article 3 of the Civil Procedure suggest that judges should refer to valid Islamic jurisprudential sources for guidance. Jurists exhibit divergent views on this condition, rooted in disparities regarding the nature and requisites of marriage. Employing an analytical-descriptive approach and sourcing information from the library, this research critiques various perspectives. It concludes that, since sexual intercourse is not inherently demanded by the nature of marriage, the condition of no vaginal penetration is valid. The guarantee for this condition lies in its obligatory prohibition, and its positive assurance is indemnity in lieu of defloration (arsh al-bikāra).