نشریه مطالعات فقهی و حقوقی زن و خانواده
پیاپی 13 (بهار و تابستان 1403)

The civil code in general, and family law in particular, are significantly influenced by the majority views among Imami Shiite jurists. However, the system of family rights in Iran has become disrupted and incoherent due to several factors. These include the silence, ambiguity, and limited number of family law articles, modifications to some articles that deviate from the majority view after the 1982 reforms, as well as the enactment of family support laws in 1974 and 2012. As a result, legal doctrine has faced challenges, and prosecutors have encountered conflicting opinions. Some argue that this lack of coherence is due to the reliance on majority views of jurists. However, this approach does not effectively address the legal gaps. The application of majority views in family law encounters three main issues: the absence of a clear majority view, conflicts between majority views and the principle of family strength, and inconsistencies with general family policies. Each of these issues is examined in detail through judicial cases in this article.

Referring to general principles of dispute resolution in cases between spouses is considered one of the most common methods for settling conflicts. In the case of a dispute where the husband has given material gifts and, claiming that the gifts were for temporary use, requests their return, while the wife asserts that the gifts were donations, and both are without evidence, it seems that merely relying on the rule "the burden of proof is on the claimant, and the oath is upon the denier" may not suffice to resolve such disputes, given the evolution of certain concepts in the contemporary world as well as the various indications (amārāt) and reasons in the views of jurists. It should be noted that although, according to the majority opinion and Article 805 of the Civil Code, based on the rule "the claimant is asserting contrary to the presumption," the wife is considered the claimant, and the husband's claim is prioritized with an oath, requiring the wife to return the gifts, it must be said that, despite the arguments supporting the majority view, the assumption that the husband gave gifts to the wife only for use is contrary to appearances in today's world, and the apparent intention is donation. As a result, this is a case of "conflict between presumption and appearance," and appearance takes precedence over presumption. Therefore, the husband is regarded as the claimant and must provide evidence to prove that the gifts were not donations, yet he lacks such evidence in this case. Moreover, considering the other reasons put forth by those who oppose the right to revoke gifts, including Quranic verses, hadiths, the rule of conditions (qāʿidat al-shurūṭ), the broader interpretation of kinship, the potential for rekindling hostility by revoking gifts, especially between spouses, and the need to preserve family unity, the ground is paved for considering, in examining methods of dispute resolution, a legal-jurisprudential solution to the issue of returning or not returning gifts. This would involve relinquishing the right to revoke gifts between spouses as a legal-jurisprudential solution to balance Article 805 of the Civil Code.

If a mother or another designated woman refuses to breastfeed a baby, this can negatively impact the child's potential benefits that may manifest later in life. Similarly, if a father or another responsible individual fails to provide necessary alimony, it can harm the child’s future well-being. This research employs a descriptive-analytic method to explore how the refusal of breastfeeding and alimony provision can affect children's potential benefits, including intelligence, cognitive development, mental health, and character. The study also examines specific types of alimony, such as clothing, food, health, and medical care. The main contribution of the article is the establishment of criminal responsibility in both cases: while a mother or designated woman who refuses to breastfeed has a legal and religious obligation, she may seek compensation, and the father or responsible individual who neglects their duty to provide alimony bears criminal responsibility.

This article aims to examine the jurisprudential evidence for fetal ensoulment and its impact on legislation. The study utilizes the descriptive-analytic research method, drawing upon bibliographical sources. The research findings indicate that there is no explicit and valid religious text that specifies the exact timing of ensoulment after four months of fetal development. The hadiths pertaining to a forty-day timeframe for each fetal period—namely, drop of fluid (nuṭfa), clinging mass (ʿalaqa), and fleshy tissue (muḍgha)—are contradictory in their content. However, in various jurisprudential hadiths and works, the fetus's volitional movements are deemed evidence of its animal ensoulment. Considering that these hadiths have the general public as their audience, the evidence consists in the mother feeling the fetus's volitional movements. In case there is a doubt regarding fetal ensoulment, what prevails is the continuity (istiṣḥāb) of non-ensoulment or continuity of lack of volitional movement. If the fetus's volitional movement is not established, then rulings of non-ensoulment will apply. Consequently, the fetus reaching four months into its development is not evidence for its ensoulment. The moment of its ensoulment is the mother's feeling of the fetus's volitional movement. Moreover, embryologists' verdicts on the moment of volitional movement, along with general screening by medical jurisprudence, are authoritative as cases of expert view.

Today, with the outbreak of contagious diseases such as COVID-19, Delta, Omicron, and others, not only the infected individuals but also their families and close contacts face numerous challenges and threats. Principles such as the obligation to protect oneself from danger, the avoidance of probable harm, non-overburdening of duty-bound individuals (taklīf mā lā-yuṭāq), the principle of prioritizing the more important over the less important (al-ahamm fa-l-muhimm), choosing the lesser of two harms (akhaff al-ḍararayn), the prohibition against inflicting or reciprocating harm (lā-ḍarar wa-lā-ḍirār), and the rejection of difficulty and hardship, all make self-protection against threats obligatory in both rational and religious terms. Additionally, ethical doctrines like self-sacrifice, equity, empathy, patience, trust, and the recognition of the human dignity of patients emphasize the moral imperative to care for those afflicted by contagious diseases. This research, conducted through a descriptive-analytic method aimed at identifying the ethical duties of family members towards those affected by contagious diseases, concludes that the care and treatment of these patients is a collective obligation (al-wājib al-kifāʾī) for their close contacts. This responsibility should be fulfilled through a commonsensical and rational integration of ethical principles of patient care and jurisprudential evidence regarding self-protection from potential harm. This can be achieved by carefully adhering to healthcare protocols to the best of one's ability, in accordance with the jurisprudential principle of feasibility (al-maysūr).

Joint custody, which allows parents to share responsibility for their children after divorce, addresses challenges faced by parents and children in certain common law countries. Given that US legal sources provide more precise information on joint custody and that British common law has influenced some Islamic countries, such as Malaysia, we adopt a comparative approach by referencing the laws and examining legal sources from the US, the UK, and Malaysia. This includes reviewing social and psychological research on joint custody to clarify the nature of this ruling. In contrast, Iranian law treats custody differently from these legal systems, and joint custody is not currently recognized in Iran. Therefore, we analyze Iranian custody law and its jurisprudential foundations to assess the feasibility of implementing joint custody in Iran. The study finds that joint physical custody is neither religiously nor legally prohibited in Iran. With modifications to legal provisions concerning joint custody, it could potentially be incorporated into Iranian law.