نشریه فقه و حقوق خانواده
پیاپی 82 (بهار و تابستان 1404)

Custom may be the source of obligations and commitment in the field of creating rules, in addition to explaining and removing ambiguity from issues. "Scope of obligations", "degree" and "binding conditions of custom" and its relationship with the common and customary, as well as its conflict with regulations are important questions in the field of rule-making custom (research issue). Despite the wide scope of application of rule-making custom, due to the lack of sufficient study resource, there are many ambiguities in front of it (the necessity of research). In the light of the analysis of the content of the provisions of the custom and determining the demarcation between the types of custom and paying attention to the hierarchy of the rules (processing method) it becomes clear, aside with the criterion of being known (the material element) and its dynamism and flexibility, in the requirements related to behaviors, foundations and common and customary orders, it is necessary to include rationality and the absence of legal and religious prohibitions in it. Therefore, the provisions of the rule-making custom, if it would be optional, take precedence over the supplementary laws, and its rank is after the mandatory rules and contracts. Such a custom is objectionable and an agreement contrary to it is possible, and if the rule-making custom is mandatory, it takes precedence over the contracts and wills of individuals. Such custom is not objectionable and an agreement to the contrary is not possible. Some examples of arbitrary custom are rejected. . In case of a conflict between optional or mandatory custom with mandatory laws and Shari'a rulings, the case is considered as an example of a rejected custom. Of course, if the subject custom is according to the law, its handling will also be within the supervisory jurisdiction of the Supreme Court (research achievements).

Divorce due to hardship (subject of Article 1130 of the Civil Code), divorce due to non-payment of alimony (subject of Article 1129 of the Civil Code), and divorce resulting from the husband's breach of conditions stipulated in the marriage contract are among the grounds for divorce at the request of the wife. According to jurisprudential and legal principles, the obligation to provide alimony to the wife lies with the husband, and failure to fulfill this obligation entails both civil and criminal consequences. Moreover, this alimony must be sourced from legitimate financial means. This study seeks to answer the question of whether a husband's refusal to pay alimony from legitimately acquired wealth and the inability to compel him to fulfill his religious and legal duties, can be one of the grounds for divorce at the wife's request. Can such alimony be considered as causing hardship for the wife, thereby equating it with non-payment of alimony and entitling the wife to request a divorce? Furthermore, can such conduct be deemed a violation of the conditions stipulated in the marriage contract (specifically the first and fifth conditions), granting the wife the right to divorce herself by proxy from the husband? This article by a descriptive-analytical method seeks to answer these questions. The findings indicate that there are no explicit references to this matter in jurisprudential and legal sources, and ambiguities exist in the interpretation of the relevant laws. Nevertheless, it appears that the refusal to pay alimony derived from illegitimate means can, for various reasons, be considered as one of the grounds for divorce at the wife's request. This article also proposes the recommendations for legal reforms and clarifying ambiguities.

The expansion of cyberspace has created serious and fundamental legal and ethical challenges regarding children's access to this phenomenon. Concerns about access to inappropriate content, children's communication with strangers, and risks of sexual and financial abuse, as well as the violation of moral values, have led parents to impose strict restrictions on children's access to cyberspace. However, these restrictions may actually violate children's rights as outlined in international law, including the Convention on the Rights of the Child and domestic legislation. This article aims to explore how the balance between rights and ethics in children's access to cyberspace can be achieved through an analytical-descriptive approach and the use of documentary data collection. The findings suggest that resolving this legal and ethical dilemma can be achieved through education, particularly in media literacy. By incorporating media literacy education into public school curricula from an early age, parents' concerns can be addressed while also upholding children's rights to access cyberspace. This approach can also serve as a foundation for children's intellectual growth and development.

 Children are among the most vulnerable human groups, that it is necessary to provide specific support in accordance with international human rights standards to ensure their growth and development. Among all children, certain individuals are more susceptible to vulnerability due to specific circumstances. Migrant children and all related subcategories, including displaced children, homeless children, refugees, asylum seekers and stateless children are considered among the most vulnerable groups. International human rights standards have articulated various provisions for safeguarding the rights of these groups in various dimensions of life. This study focuses on the examination of the details of the right to education of these children, elucidating the relevant legal requirements that governments and other stakeholders worldwide must be adhered. In line with this focus, studying the general commitments of countries in the field of the right to education has also been conducted. The outcome of this study emphasizes that no country is without its challenges in this regard and introduces the international legal requirements concerning the right to education of the studied group of children. This analysis can be particularly beneficial for policymakers, governmental executives, and non-governmental organizations in our country, which hosts hundreds of thousands of immigrants. Relevant explanations regarding Iran's legal system have also been presented within the main discourse to further facilitate the realization of this important matter.This study focuses on the examination of the right to education for these children, elucidating the relevant legal requirements that governments and other stakeholders worldwide must adhere to. In line with this focus, a review of the general commitments of countries in the field of the right to education has also been conducted. The approach of this review emphasizes that no country is without its challenges in this regard and introduces the international legal requirements concerning the right to education for the studied group of children. This analysis can be particularly beneficial for policymakers, governmental executives, and non-governmental organizations in our country, which hosts hundreds of thousands of immigrants. Relevant explanations regarding Iran's legal system have also been presented within the main discourse to further facilitate the realization of this important matter.

God created humans in the best form and legislated the laws of Sharia for them. In rare cases, humans are also born as conjoined twins, which can only be separated through surgery. Due to the ambiguity in the unity and multiplicity of the personalities of these twins and their existence in this world, the possibility of their marriage has become a subject of intense disagreement among Islamic jurists. Considering the silence of laws, this present research aims to answer the legal issues related to the marriage of conjoined twins by describing and analyzing the views of Islamic jurists. The research shows that providing an accurate answer requires a legal differentiation between conjoined twins, complete conjoined twins with shared or separate sexual organs and parasitic conjoined twins. Regarding the possibility of marriage, it should be noted that if separation is not possible, unlike complete twins who have shared sexual organs, there is a possibility of marriage for parasitoid twins and fraternal twins with separate sexual organs.

The issue of Disobedience or Nushuz (disobedience of sex by woman) and its brunches is raised both in jurisprudence, which originates from the word of revelation, and in the science of law, it has been considered by jurists and accordingly it is brought up in family courts by submitting a petition to compel the wife to obey or to declare and confirm the wife's Disobedience. By examining the issued opinions, it can be considered a lot of diversity and difference in jurist's opinions and views. The aim of this research is to investigate the causes of diversity and multiplicity of judicial procedure in the subject of Obedience or Tamkin and Disobedience.  This research which is written in the document-library method and done by descriptive and analytical type of research, uses obedience opinions and publications issued by family courts which are collected in the national system of judicial opinions and advisory opinions of the General Legal Department of judiciary. Lawsuits related to wife's submissiveness and disobedience depend to a large extent on the inference of the judge, and this issue has led to the creation of numerous procedures. Therefore, in order to reach a unity of procedure, it is necessary to analyze the judicial procedure in this regard and examine the degree of conformity or non-conformity of the opinions issued with jurisprudential foundations as well as the subjected rights. After investigating through the opinions issued and examining jurisprudential and legal sources on the issue of obedience and non-compliance, the result is that some issues and challenges related to this issue have jurisprudential roots and are related to differences of opinion among jurists, and some are related to the legal dimension and the legislative aspect of the issue, and finally, some issues are rooted in the implementation phase of laws and their application in this field. Some of the ambiguities in this matter can also be classified according to the stages of the proceedings, i.e., the stage of filing a lawsuit, proceedings, issuing the verdict and executing the verdict. This article is only focused on the judicial proceedings stage of Obedience and Disobedience cases.

The role of the family in the care and nurturing of children is undeniable because children need the support of their parents because of their inability to meet their physical psychological and financial needs. The society also assigns this duty to parents based on the belief that parents are the most appropriate for maintenance and nurturing. Accordingly, many rights for children in the legal system of the world as well as the legal system Of Iran have been reserved, including the right to custody. The right aspect of the legal custody body has received much attention from jurists and lawyers. While the discussion of the agreement on assignment and delegation of custody to another has been remained silent and ignored by most authors. In this regard, this research has been formulated to investigate and answer to the questions regarding the basic ambiguities regarding custody such as the couples ' agreement on the transfer of custody and the possibility of losing children’s custody and transferring of it. This study is theoretical in terms of objective and analytical in nature, also gathering information based on library method and discussing the views of jurists. The findings of the study show that custody is apparently the mother’s right and the father’s right and duty. However, there is a possibility of agreement between the spouses regarding the transfer of custody to each other at the time of dissolution of the marriage. In other words, according to the interest of the child, the wife can entrust the custody of the child to the husband, and on the contrary, the husband can entrust the custody of the child to the wife.

Although the principle of justice among spouses is a mandatory obligation in the Islamic religion, its specific boundaries are subject to debate. Verses 3 and 129 of Surah An-Nisa, which address the issue of polygyny and justice among women, constitute a part of the Shia jurists' evidence on this matter. Given the fundamental role of the Quran as a source of Islamic law and the inadequacies of some jurists' arguments based on these verses, the present study employs a descriptive-analytical method to critique and analyze these references. The findings indicate that verse 3 emphasizes the necessity of providing mandatory alimony for all wives, while verse 129 prohibits disregarding women's emotional and sexual needs. Some jurists' arguments that verse 3 supports the desirability of equal distribution of alimony among wives or linking this verse to the obligation of equal division of nights are subject to criticism. Furthermore, the argument of some jurists that verse 129 does not necessitate equality in alimony or the right of nights, or even in heartfelt affection, is not acceptable.

a Foster kinship is established through the breastfeeding of the child, as stipulated in Article 1046 of the Civil Code, when a child is breastfed by a woman who is not the child's biological Mother. This kinship prohibits marriage between foster relatives and does not entail the legal consequences of a blood relationship such as inheritance or maintenance. Following the Islamic Penal Code and according to Shiite jurisprudence, theft is punished by amputation. Although kinships are generally not exempt from this punishment, Article 268 of the Islamic Penal Code exempts a father from the Hadd punishment for stealing from his child. The use of the general word of "father" in both legal and jurisprudential texts raises the fundamental question that if the of whether a foster father, who shares a milk kinship with the child, would also be exempt from the punishment of hand amputation if he steals from the property of his foster child and would be committed in all circumstances? This descriptive-analytical study based on the library research examines the reasons behind this exemption and compares them with the other jurisprudential and legal rules concluded that the legislator tends to interpret the rule of dirā' in a broad manner by establishing Articles 120 and 121 of the Islamic Penal Code and with referring to the hadith "And you are the owner of the property," which refers to the obligation to respect the father, includes kinship resulting from breastfeeding which refers to the obligation to respect the father, also includes kinship resulting from breastfeeding. The studies show that a foster father, like a biological father, is also entitled to respect and is exempt from the punishment of Hand amputation for stealing from his foster child. The Quranic verse on theft is not absolute, and Islamic traditions also emphasize the obligation of respecting one's father, regardless of whether the relationship is biological or foster.

Choosing a suitable housing for cohabitation is considered one of the rights and duties of the man. However, it may be stipulated in an agreement during the contract or in a separate contract that the choice of home is delegated to the wife or that it is selected with the agreement and cooperation of the couple. If the couple has agreed to the condition for choosing housing, it is not clear whether, in the event of no agreement, this condition will be eliminated and the husband's leadership in unilaterally choosing housing will return, or, like any other binding contract, the court must be consulted for its implementation. In this regard, conflicting judicial opinions have also been issued, and some judges have believed that the condition will be abolished and the husband's leadership in choosing housing will return, while some have believed that the condition will continue. On the other hand, after the couple agreed and chose the house, the nature of this agreement, its provisions, and its effects have not been discussed. In this article, by accurately describing the legal relationships established between couples in each of the different assumptions and using various jurisprudential and legal sources and analyzing opinions and ideas and applying them to existing issues, it was concluded that a contract or condition that makes the choice of housing subject to the agreement of the couples is considered a condition or contract that must be fulfilled, which, like other contracts, must be implemented and requires its own specific performance guarantees. On the other hand, consent and choice of housing is also a binding contract and its dissolution requires rescission or termination by the couples.

Climate change has numerous impacts on women and girls. Due to their physical conditions and certain societal restrictions, they are more vulnerable to the consequences of climate change compared to other groups. This article employs an analytical and descriptive methodology, utilizing library resources, to examine the effects of climate change on women's rights from a human rights perspective. The central question is: How does climate change affect women's rights? The fundamental assumption of this article in addressing this question is that climate change can negatively impact a wide and diverse range of women's rights. The study focuses on some of the most significant rights, including the right to life and health, the right to work, economic rights, the right to access water and food, the right to a healthy environment, economic rights and gender inequality, and climate-induced violence.

The civil law in many articles emphasizes the need for the competence of parties to the transaction and prohibits incompetent persons from concluding the transaction. Among the unqualified persons are minor (Saghir child) distinguished and fools who because they do not have the ability to distinguish their profits and losses, their transactions and possessions in financial affairs are considered invalid. However, despite this general ruling, the legislator has allowed them to acquire property without compensation in the final part of articles 1212 and 1214. The main reason for this ruling is that in accepting ownership without compensation, no harm will be done to the minor. Of course, this exceptional ruling is only valid for acquisition free contracts, and in non-acquisition free contracts, minor distinguished and fools are not eligible to accept the contract, because they may cause losses to themselves due to their lack of knowledge and awareness. On the other hand, if the contract of free acquisition includes the condition of exchange or obligation, minor distinguished and fool are no longer qualified to accept the contract. Because accepting this contract will lead to their involvement in their property and requires the involvement of their guardian. Therefore, this research, with a descriptive and analytical method, and with a jurisprudential and legal approach, deals with the expression of the eligibility of minors distinguished and fools in free contracts and states their eligibility or ineligibility.