نشریه فقه و حقوق خانواده
پیاپی 81 (پاییز و زمستان 1403)

Negligence, how to evaluate and verify it, has been the subject of many discussions in Tort Law. Considering in the previous discussion, it is difficult to determine the Negligence and find out the faulty behavior in a personal way, in every case without inventing and applying a universal standard, a kind of fault theory was raised, therefore; Based on that theory, an indicator was created under the title of "reasonable and conventional Person" to measure the doubtful behavior of that supposed person being and infer his/ her Negligence or lack of it. But, about the above criteria, it has been exaggerated to the extent that all the differences and different capabilities of human beings have been forgotten in such a way that a "reasonable person" is simply considered to be a "reasonable adult man". Accordingly, in this article, by insisting on the differences that exist in women compared to men and in children compared to adults, we intend to criticize and violate the above one-sided view regarding reference to the criteria of a reasonable and conventional person, as far as, instead of the above absolute criteria, we should use the criteria of "reasonable woman" and "reasonable child" in related cases to determine negligence. In this regard, we consider the Common Law legal system as a suitable platform for studying and achieving the results of the current research work to rely on judicial opinions. This article has been done by the descriptive-analytical method along with the normative approach and found that it has been noted the differences between men and women, children, and adults by referring to reasonable criteria conventional person being in the Common Law Legal System after a period and this importance has also been reflected in the main characteristic of common law, which is the judicial opinions issued by the courts.

In any community, children need to the protection, particularly when they are left without guardians or be abused with the poorly supervised. One of the supporting institutions is the adoption of children, entitled persons to adopt them. Child adoption at the level of formation and discharge has requirements and both levels are conducted considering the interests of the child. In this article, the factor of the child's interest in the discharge stage of child adoption, which is a quasi-family arrangement, is investigated. Child adoption is not the same in Iran and the United Kingdom and is different in the discharge stage. Hence, we have comparatively examined the discharge of Child Adoption in both legal systems in order to take advantage of foreign law to resolve the existing gaps, including the high interest of the child in the discharge of Child Adoption. In this article, using analytical, descriptive and library methods and based on comparative studies, the materials have been collected. The interest of the child is important both in jurisprudence and in the legal system of Iran but In Iran's legal system, the legislator has counted the cases of discharge of Child Adoption in the law, which makes the expediency to be considered less. This is while the interest of the child is important both in jurisprudence and in the Iranian legal system, but because in the Biritish system rights have not been counted, it is better to be the same in Iran. On the other hand, child adoption in the British legal system is indefeasible, but it is not absolute and in some special circumstances it can be terminated. Therefore, the termination of child adoption in the UK has not been defined and only the interest of the child is considered and any factor that threatens the interests of the child is in the circle of termination of child adoption. In the legal system of Iran, in order to ensure the high interest of the child, situations such as sexual abuse of the child, Illness, inappropriate performance, absence and misbehavior of adopted children, discrimination and injustice and anything that endangers their high interests considering the conditions of the child can be titled as the interest of the child in cases of discharge of adoption in order that the interests of the child are more likely to be preserved.

The family is the fundamental pillar of the society and is subject to psychological rules and legal regulations, and with the good implementation of these rules and regulations, it can achieve the excellence of the family members and the consolidation and improvement of its structure. In the event of couple's divorce and the occurrence of the conflict between the duty of mother's custody and the limits of the patriarch's guardianship, by strengthening the extended family structure and paying attention to the participation of different classes of the family, it is possible to benefit from the conditions that have arisen for the benefit of the relationship between generations, and to establish the legal criteria for legislation. Coercive rule was achieved. The current research aims to investigate the psychological impact of the type of family structure and the different states of participation of the members in each of the structures to overcome the legal conflicts that have arisen between the performance of the custodian and the coercive guardian. The results of the investigations show that in the conditions of generation gap and the existence of a significant distance between the family of the first degree and the family of the second and third degrees, the fields of mutual understanding and effective participation have been lost and not only the interaction of the guardian and the forced guardian get into trouble after divorce, but perhaps this emptiness would be one of the causes of divorce. As a result, it is necessary to provide the conditions for the participation of different family classes in different intellectual, cultural, and economic contexts, even when there is no context for changing the family structure, and the threat of alienation of relatives becomes an opportunity for their cooperation and assistance.

The bill "Preventing women's injuries and improving their security against abuse" which was previously referred to the Social Commission of the Islamic Council under the title of "Ensuring women's security against violence" bill; It was approved in the 20th meeting of April 1402. Undoubtedly, this bill is a positive approach towards the realization of the violated rights of women, because by revising the original version and modifying the word violence to "mistreatment", it caused spiritual damages to be taken into consideration in addition to physical damages. However, since "abuse" is a vague and floating term, not only is it not defined precisely in the bill, but also some examples of abuse, which refer to women's moral rights, have not been identified and criminalized, and this has caused preventive and protective measures. The subject of this bill does not include all traumatic situations. With this article, we are trying to identify new forms of misbehavior and evaluate the protective and preventive role that is neglected in this bill according to experts. In this article, which is written in descriptive and analytical method, new examples of misbehavior based on moral damages have been identified and the support methods specified in the bill have been criticized. However, since "abuse" is a vague and floating term, not only is it not defined precisely in the bill, but also some examples of abuse, which refer to women's moral rights, have not been identified and criminalized, and this has caused preventive and protective measures. The subject of this bill does not include all traumatic situations. With this article, we are trying to identify new forms of misbehavior and evaluate the protective and preventive role that is neglected in this bill according to experts. In this article, which is written in descriptive and analytical method, new examples of misbehavior based on moral damages have been identified and the support methods specified in the bill have been criticized.

In Article 1043 of the Iranian Civil Law and according to the shared guardianship perspective, the marriage of a matured virgin girl who has reached the legal age is dependent on the permission of her father or paternal grandfather. Although this point of view has advantages, it faces jurisprudential and legal challenges both theoretically and practically in the implementation phase, and in some cases, it is incompatible with the legislative policy of the Islamic Republic of Iran, which is to facilitate marriage and strengthen the foundation of the family. This study has investigated these challenges by analytical-descriptive approach and concluded that the disagreements in the interpretation of the concepts of "virgin" and “equality” affect the legal status of matured virgin girl’s marriage conducted without the permission of her guardian. In case of disagreements between the daughter and father’s religious references’ views on these two issues, each of them must act according to the fatwa of their religious references, which in many cases may cause severe tensions in the family.  On the other hand, not authorizing such a marriage conducted without the permission of the guardian is against caution, while in some other cases, according to the opinion of some jurists, the marriage is valid and does not need to be authorized. Besides, according to the view of some jurists, in many cases except in the case of legal term of Azl which is common in jurisprudence, the guardian's permission in marriage can be regarded as invalid. Other legal challenges of the shared guardianship view include the lack of clarity about the necessity of maturity in marriage from the legal point of view, providing the motive for committing crimes to achieve legal independence for marriage, negative effects and consequences of annulling the marriage of a virgin girl conducted without her guardian's permission, the inefficiency of issuing a marriage annulment order by the court, and the ambiguity in whether the burden of proving the justified reason for withdrawing the permission for marriage in the court is with the guardian or it is the responsibility of the daughter to prove that his opposition is unjustified. Some suggestions are then offered to address these challenges. ​

Dowry is considered one of the social traditions rooted in religious principles in Iranian society. The diverse functions of dowry have led this tradition to persist over the years. In recent decades, the prevalence of exorbitant and unreasonable dowries and its social harmful consequences have prompted a reexamination of the legal and jurisprudential nature of such dowries. One of the undesirable consequences is the inheritance of the right to claim them, leading to the prolonged existence of the cases related to it for many years. In this article, the mentioned problem has been examined with a descriptive- analytic method.  It appears that solutions based on invalidating unreasonable dowries or relying on evidence indicating the non-inheritance of such rights are not adequate. Hence, as an alternative way, proposing agreements contract like dowry including its positive function but devoid of undesirable consequences is suggested. Such contracts will not addressed to this subject and solve the interpretation of the parties’ intentions, clarify the conditions of mutual consent, and other complex issues around the topic of unreasonable dowries.

The existence of different approaches and viewpoints between Islamic schools has raised controversial interpretations of verses 32 and 33 of Surah Al-Noor. Based on some viewpoints, the word “Chastity" in verse 33 means refraining from committing sins, apart from marriage, and based on some other viewpoints, " Chastity " only means a state of piousness and paragon, which could be obtained through the marriage. This research which is done by descriptive-analytical method, shows that the first and foremost recommendation of Islam to all humankinds in satisfying their sexual instinct is marriage. The present article aims to answer the question whether the marriage recommendation in the verses and traditions is absolute or is relatively bound up by the condition of being wealthy?  Islamic religions have contradictory viewpoints on this question. Some regard the decree of marriage binding and some others consider it as an absolute entity. According to the selected view, obtained from the sum of the Qur'anic and narrational data, the recommendation to chastity through the marriage is clearly evident.

Mahr, or dowry, is a sum of money or other property that a man is obliged to pay to his wife upon marriage. In the Iranian family law system, women, in their role as wives, enjoy certain privileges and rights, the most significant of which are dowry and alimony. Consequently, claims for dowry constitute one of the most common and numerous types of lawsuits in family law. Over the past decade, legislature and judicial authorities have made considerable efforts to change the rules and regulations of dowry. This research aims to evaluate and analyze students' attitudes toward the current and ideal status of dowry, and to use the findings to determine an optimal legislative approach in this area. The research employs a descriptive-survey method, utilizing questionnaires for data collection. The statistical population includes all students from universities in Mashhad, with 327 valid questionnaires analyzed for this purpose. The research findings indicate that, regarding life priorities, the most significant item is “ethics”, followed by “family”. In terms of the reasons and philosophy behind determining the dowry at the time of marriage, as well as its practical function within families, the primary importance is attributed to “financial support for a woman after the dissolution of marriage due to divorce or the death of her husband”. The most important strategies for changing the current status of dowry are identified as “promoting cultural awareness to change societal customs regarding dowry”, followed by “reducing the tendency to set high dowries through legal reforms aimed at increasing women's rights in family relationships”. Therefore, the current approach of legislative and judicial authorities regarding changes to the rules governing dowry (primarily by reducing the enforcement mechanisms for dowry claims) stands in stark contrast to the expected approach of the study's respondents, highlighting a disregard by these institutions for the demands and needs of society.

According to the opinion of famous jurists and legal scholars, what becomes the property of the wife from the dowry through the marriage is the entire dowry; But after the marriage, the wife's ownership is fixed on half of the dowry and unstable on the other half, and it becomes fixed after intimacy. In case of divorce before intimacy, the wife's shaky ownership of half of the dowry will be lost and it is separated from her property and given to the husband. If the wife discharges the husband’s obligation from the dowry after the marriage, and this marriage leads to divorce before intimacy, the question arises as to whether the husband has the right to restitute half of the dowry or not. The findings based on the Analytical-descriptive method show that the proofs of the promise to allow the return of the spouse for half of the dowry are not complete and conclusive, and by referring to the jurisprudence rules of benevolence, justice, and fairness, the promise is proven to be not permissible for the returning of it to husband. Also, if we believe in the existence of an implied condition of the duration of marriage in the dowry, and we consider it as a type of contract, we can use the violation of the condition in the discharge situation (the condition of the duration of marriage) and give the wife the right to reject the discharge through the option of violating the condition. As a result, the husband must pay half of the dowry to the wife.

The disagreement of jurists regarding the right of a pregnant woman to receive alimony and its ownership during the period of Uddah (period for woman after divorce may not be married to another man) and also unconventional and laboratory fertility, is due to the difference of opinion regarding the nature of alimony for pregnancy, and this issue  has led to challenges that can be referred to the hardship and embarrassment of the woman, alimony on unconventional and illegitimate fertility, the diversity of the judicial procedure and the selection of the competent court regarding the cases related to the maintenance of the fetus. This study, which is done by descriptive and analytical approach and is written in a library document method, after examining the nature of alimony for the fetus in the opinions of jurists and jurists in terms of addition to the alimony of kinship or marriage, explains the effects and challenges caused by this difference and suggests determining an identity independent of marriage and kinship for fetus alimony as a solution to the existing challenges and to create unity of judicial procedure.

Remarriage has been approved in Iran's jurisprudence and legal system, but its acceptance in the psychological system of Iranian women's society has faced doubts and created many challenges. Undoubtedly, failure to solve the mentioned challenges has created personal, social, cultural, and economic consequences. This has encouraged the wife to benefit to the condition of not remarrying in the marriage document. Despite this, the validity of the mentioned condition has been damaged and there is a difference of opinion regarding the implementation guarantee of the violation of the condition. The author of this research believes that the mentioned condition is correct in certain circumstances. The dimensions of psychology and the principle of fairness prove that in the same way that the husband has the right to remarry, the wife also has the authority to limit the remarriage of the husband by using the mentioned condition in the correct legal form. The main root of the disputes is the lack of correct methodology and the lack of guarantee of implementation of the violation of the condition of abandoning the legal act in the country's laws. What is important is to explain the desired performance guarantee in a suitable way in such a way that the rights of all parties are preserved. According to the findings of the present research, it seems that considering the many dimensions of the marriage contract, the interdisciplinary methodology is preferable and based on the legal point of view, if the husband violates from the condition, the second marriage of first wife is invalid and cannot be invoked and it is necessary to amend the existing laws.

The society's need for expert personnel and the increase of educated women compared to the previous centuries have led to the greater importance of legal and jurisprudential debates about women's financial independence and examining its conditions in the context of the family environment. In the verses of the Quran and hadiths, as well as jurisprudence and legal works, various works on this subject have been examined, but there are still some ambiguities due to the various aspects of this subject. Some believe that a woman's leaving home for any purpose must be with the consent of her husband, and some more mildly believe that in the case of a woman’s employment and the condition of its continuation, a man cannot prohibit a woman from her job. However, according to the women's employment policies in Islamic Republic of Iran, it is approved by the Cultural Revolution Council of It is hoped that women will be able to move in the way of securing the fundamental and major goals of Sharia in the shade of benefiting from special goals in the family and society. So, the question is, what is the necessity of examining the financial rights of working women? And what challenges dose it faces? The research method in this research is descriptive-analytical and the findings indicate that the financial rights of working women in Iran have been neglected due to lack of research attention and this issue can be examined in relation to issues such as remuneration, entitlement to a dowry and alimony. On the other hand, issues related to the financial rights of working women, such as restrictions on women's employment, women's employment laws, pregnancy, childbirth, breastfeeding, working hours of women with special conditions, have been discussed in this article. In these cases, it is also concluded that the law has made some predictions in this field, but in practice we are facing a double conflict of managerial behavior in this regard and we see that this issue is facing many adversities for women in the field of work.