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Open Access Article
1 - Sex-change from the Islamic Jurisprudence perspective
Saeed Rakhshan Mohammad Mortazavi LangaroudiThe issue of sex-change and its acceptability or non-acceptability has always been raised in the Islamic jurisprudence. The Christian religion and the non-Shiite sect of Islam have taken it as inviolable. They have regarded respecting the alternations in the God’s MoreThe issue of sex-change and its acceptability or non-acceptability has always been raised in the Islamic jurisprudence. The Christian religion and the non-Shiite sect of Islam have taken it as inviolable. They have regarded respecting the alternations in the God’s creatures as the main reason for such sanctity. They maintain that sex-change is a sort of alteration in the “law of creation” and a satanic act and consequently it is illegal and unlawful. In contrast, the Shiite sect of Islam believes in the permissibility and non-sanctity of the sex-change. They have considered several reasons for such a permissibility including the principle of Ebahe, the principle of Javaz, and the jurisprudence rules of Ezterar and Nafye osro haraj.Someone who transforms his or her gender should be given a new identification certificate in accordance with his or her new identity. The socio-cultural consequences of the sex-change should also be taken into account. For example, in Iran, if the president changes his sex and becomes a female, he immediately will be deprived of his position since according to the article 114 of the constitution, “the president should be chosen from among the political or religious men and directors and needs to be competent”.It is also true for the judges, the leaders of the prayers, etc. which are especially for men and women cannot obtain such job opportunities.On the other hand, sex-change dissolves (annuls) the marriage contract since it leads to continuation of pairing among two persons of similar gender. The sex-change, roughly speaking, has no influence on the bride’s marriage portion since the wife will possess it as soon as the marriage contract takes place. The other edicts such as Edeh, Heyz, and Nafas are the writs which are especially for the women. Consequently, sex-change results in deprivation from Edeh. Sex change also deprives the women from the alimony in the enduring marriage contract. In the shot-term marriage, if the alimony has been stipulated as a condition, sex-change results in its deprivation. Sex-change has no influence on the payment of children’s’ portion. The sex-change of father does not takes away his guardianship upon the children. In addition, the mother’s sex-change cannot bestow the right of guardianship to the mother. Sex-change, also, does not cut off the family relationships and titles but it merely changes the family relationships titles and the very close kinship among the family members persists. Regarding the share of an inheritance of a sex-changed person, his or her existing gender will be taken into consideration. In other words, the gender of the heir at the time of the heiress death will be taken as a criterion for action. The sex-change of parents has no influence on the extent of their share of inheritance from their children. The sex-change has no effect on a person’s civil authorities. However, it is influential in some of his or her penal authorities. Although the sex-change does not take away a person’s penal authorities, his or her existing gender will be taken into consideration for punishment enforcement.The resumption of father from Ghesas-e-Nafs due to killing his child involves the father who has changed his gender. Regarding the difference between the blood-ransom for men and women, the crime’s gender at the time of enacting punishment will be taken into consideration. Concerning the enforcement of punishment for an apostate, the straitened circumstances and the accused interest will be taken as a criterion for action. The blood ransom will be paid to the plaintiff in terms of his or her gender at the time of demanding for the payment. Regarding the identification of someone’s mental soundness, the person’s new gender will be the criterion for action. Manuscript profile -
Open Access Article
2 - A comparative study of concubine marriage and Misyar marriage in jurisprudence
Hamid Rustaei Sadrabadi Sayed Mohammad Reza AyatiMisyar marriage is a permanent marriage, in which the wife ignored some of her rights such as the right to alimony, rights of residence and sex and according to some right to claim inheritance and in contrast is somewhat independent in their affairs and husband's permis MoreMisyar marriage is a permanent marriage, in which the wife ignored some of her rights such as the right to alimony, rights of residence and sex and according to some right to claim inheritance and in contrast is somewhat independent in their affairs and husband's permission is not required for her employment and leaving home. Although public jurists have provided four theories about the judge for Misyar marriage, the majority of them agreed to judge the validity of Misyar marriage and its conditions and consider it contains all the elements of the religious marriage. Misyar marriage, by heart and in terms of the result is like a concubine marriage, although has the appearance of permanent marriage. All of what follows in Misyar completely has been described in concubine marriage. And the Shi`as jurists are self-sufficient of this marriage. The nature of Misyar and concubine marriage and their judgment and the differences and similarities of both marriages. Manuscript profile -
Open Access Article
3 - Jurisprudential review and guarantee of criminal execution of dowry, alimony and custody Looking at the Quranic teachings
nayere Muhammad Ali Ibrahim maryam aqaei bajestani seyed mohamadreza emamEnforcement of criminal law in family law is one of the most important and controversial issues that has always been the subject of discussion. In this article, an attempt has been made to study the jurisprudence and guarantee the criminal execution of dowry, alimony an MoreEnforcement of criminal law in family law is one of the most important and controversial issues that has always been the subject of discussion. In this article, an attempt has been made to study the jurisprudence and guarantee the criminal execution of dowry, alimony and custody. The present article is an analytical descriptive study of the subject using the library method. The results of the article indicate that dowry, alimony and custody from the jurisprudential point of view contain instructions to protect the rights of couples and children. Criminal law also provides for a criminal guarantee for non-payment of alimony and dowry, as well as non-acceptance of custody. The Family Protection Law adopted in 2012 has intensified its punishment in cases such as the criminal execution of leaving alms. The penal provisions of the law in some cases, such as non-registration of marriage in terms of rules and principles of legislation such as necessity, comprehensiveness, face serious gaps and ambiguities. Regarding the dowry, of course, admirable efforts have been made to adjust and balance the dowry. Manuscript profile -
Open Access Article
4 - The Rights and Responsibilities of Women as Wives and Mothers from Quran's View
Reza Dehghan Nezhad Hossein Bostan(Najafi)The present paper studies the types of family rights and duties which relates partnership and maternal role of women by applying Shia interpreters' ideas and by subjective approach and analyzing the concepts of Quran Verses. The findings show that Holy Quran knows some MoreThe present paper studies the types of family rights and duties which relates partnership and maternal role of women by applying Shia interpreters' ideas and by subjective approach and analyzing the concepts of Quran Verses. The findings show that Holy Quran knows some rights as the most important rights of all women such as dowry, alimony and divorce and assigns some duties for them in return such as emotional support, obey, custody of her family and husband. Some other duties are also assigned to her as mother and wife such as obedience (of husband), respect, feeding the children, educating them, protecting and supervision their behaviors. Manuscript profile -
Open Access Article
5 - Alimony from Quran and stories Point of View
Mahdi Bahremand Mahboubeh Askari BadoueiThe literary meaning of alimony is depreciation and devaluation; it is the (price of) common needs of a woman based on her situations determined by law. The payment of the alimony (to the wife) is by husband in a permanent marriage. All family expenses as well as person MoreThe literary meaning of alimony is depreciation and devaluation; it is the (price of) common needs of a woman based on her situations determined by law. The payment of the alimony (to the wife) is by husband in a permanent marriage. All family expenses as well as personal expenses of the wife should be paid by husband and wife has no responsibility in this regard although she owns great wealth. This is a verdict determined by Quran, Islam and law. Manuscript profile -
Open Access Article
6 - The stepchild alimony in Iranian law and Sunni religions
Mahdieh Mohammadi Mahdi MirdadashiThe problem of orphans because of the impact of these children on society, the growing number of them, the respect for human affairs, and thousands of other reasons has long been a concern of various societies, especially cultural, social and legal scholars And today th MoreThe problem of orphans because of the impact of these children on society, the growing number of them, the respect for human affairs, and thousands of other reasons has long been a concern of various societies, especially cultural, social and legal scholars And today their finances, including inheritance and alimony, are under investigation. This research has focused on these children for the aforementioned reasons And since there are divergences between Iranian law, Imamiyah jurisprudence, and Sunni jurisprudence, this article is about explaining and comparing jurisprudential opinions with legal ones in the field of alimony for these children and ultimately solutions for The implications of speculation on the status of such people are raised and suggestions are hoped to fall. Manuscript profile -
Open Access Article
7 - Women’s Alimony in Iran, France, and Sweden Laws
حسن Heidari منیژه Hajati یوسف Ebrahimi NasabThe Purpose of this research was to compare the “couples’ financial relations” in Iran, France and Sweden law systems specially the term “alimony”. One of the problems to be referred as sex discrimination between the men and women is the mu MoreThe Purpose of this research was to compare the “couples’ financial relations” in Iran, France and Sweden law systems specially the term “alimony”. One of the problems to be referred as sex discrimination between the men and women is the mutual rights of the couples. Wife and husband through the marriage contract endured different bilateral responsibilities toward each other. Providing the family revenue in Iran is the unilateral man commitment and woman has no responsibility in this field, while in France and Sweden it is a bilateral commitment and woman has the same responsibility to provide the family expenditures as well. Some believe that most of the religious jurisprudence laws have been discriminated between man and woman and it would be necessary for Iran to join the international convention of the woman rights which seeks the equality of man and woman in all aspects. To view the different angles of the discussion, the man and woman relationships were considered on financial and non-financial aspects. The marriage was not suppose to be concerned about the loss and profit at the earlier moments but on the serious first crisis the financial counterclaim to be the most vital conflicting dispute. And if it was not managed properly it would lead to critical legal suit. In Iran laws, the principle of financial independence of the mates was the basis of couples’ financial relations and both the wife and husband are completely independent in acquiring their properties. But in the western countries laws such as France and Sweden in the properties partnership systems man is the boss of the partnership and manage the joint mates properties and in the properties absolute isolation system according to the legal assumption , he could manipulate his wife property unless the woman rejects it obviously. In this paper, the legal different systems of the above mentioned countries were discussed. Manuscript profile -
Open Access Article
8 - Effects of Wifeâs Psychiatric Disorders upon Alimony
zeynab mashhoudi hassan abdeian seyyed mohammad mehdi ahmadi alireza asgariWife’s insanity should be separated from other mental disorders in the discussion of family relationships. It is essential to distinguish incurable mental disorders from incurable ones, because the lack of such a distinction leads to the violation of dementia-affected MoreWife’s insanity should be separated from other mental disorders in the discussion of family relationships. It is essential to distinguish incurable mental disorders from incurable ones, because the lack of such a distinction leads to the violation of dementia-affected wife’s rights. Thus, it is necessary to investigate the rights of such wives in receiving alimony from the perspective of jurisprudence. The present article examines the various forms of mental disorders and wife’s ability to obey her husband when he is aware of her condition. A dementia-affected wife is able to obey her husband and there are various ways to retain her rights. In case of curable mental disorders, she is able to obey her husband and nervous fits are only temporary. If, however, the wife does not obey deliberately she is not entitled to any alimony since she has the power to do so but she does not on purpose. In case of incurable mental disorders, the wife is unable to obey her husband due to the nature of such disorders, not due to Nushuz (marital discord) nevertheless, she is entitled to receive alimony although she cannot obey him. Manuscript profile -
Open Access Article
9 - Judicial and Lawful Study of Alimony of wife's disobedience
Ahmadreza KhazaeiOne of the most important issues that arise after marriage is sustenance of the family. According to Islam, husband is responsible for family livelihood. And wife doesn’t have responsibility in this regard. Act 1102 of civil law states that after wedlock the coupl MoreOne of the most important issues that arise after marriage is sustenance of the family. According to Islam, husband is responsible for family livelihood. And wife doesn’t have responsibility in this regard. Act 1102 of civil law states that after wedlock the couple will have different rights and obligation towards each other. One of them is alimony right and it will waste if the wife become disobedient. Instances of alimony relate to secular sense. Wife is the owner of her alimony and the husband can’t refund that. In Iran's and Islam's law there are two types of sanctions. The wife can be disobeyed in some cases such as unsuitable location or period communicable disease, etc. Manuscript profile -
Open Access Article
10 - A Comparative Study of the Relationship between Submission and Alimony in Shia and Sunni jurisprudents' Views
Abdol Rasoul Ahmadian Women's sexual submission (Tamkin) refers to the consequences of living up to their marital obligations. The male spouse, on the other hand, has some duties to his wife which paying alimony is one of them according to custom and law. There More Women's sexual submission (Tamkin) refers to the consequences of living up to their marital obligations. The male spouse, on the other hand, has some duties to his wife which paying alimony is one of them according to custom and law. There are many verses and narratives that can be used to prove the necessity of paying alimony and considering the extent of sexual submission. Focusing on Shia and Sunni jurisprudents' views, the main purpose of this study was to investigate the relationship between the alimony and sexual submission as well as clarify its principles in detail. There are three points of view from which the necessity to pay alimony can be considered among Imamiyah Jurists. Tamkin, or unhampered sexual access, has been regarded as a replacement or quasi-replacement for the monetary and alimony condition by famous Fiqh scholars. Some believe that marriage contract is to establish arrangements for paying alimony, unless those women who refuse to fulfil their marital duties, while others are in consensus that alimony is necessary due to the fact that the male spouse is assigned to preside over family life and the female spouse should conform to the authority and will of her male spouse. Hence, there are two points of view among Islamic jurists; famous fiqh scholars believe that female spouse is not entitled to receive alimony if she refuses to fulfil their marital duties. On the contrary, the proponents of Hakam Ibn Otaibah and Zahiri schools of thought believe that those female spouses who are disobedient and refuse to fulfil their marital duties can also receive alimony that they deserve to be paid off. The differences between these two types of comments will result in radically different legal effects. For example, if there is a disagreement on alimony, there will be a challange between plaintiff and defendant. Focusing on Shia and Sunni jurisprudents' views, an attempt has been made to investigate the relationship between the alimony-based sexual submission and its principles in detail. Manuscript profile -
Open Access Article
11 - The Condition for the Spousal Alimony Abatement attached to Marriage Contract
Zohreh Hajian Foroshani Seyyed Abolghasem Naghibi One of the important works of marriage in Islamic law is the requirement for husband to give alimony to the spousal. If the husband make provision while the marriage contract for the spousal not to benefit from alimony or only to benefit f More One of the important works of marriage in Islamic law is the requirement for husband to give alimony to the spousal. If the husband make provision while the marriage contract for the spousal not to benefit from alimony or only to benefit from a part of it, the validity of such a condition is based on the fact that alimony is considered as an instance of right. Its abatement is also true for the future because only a right can be abated by the condition of the marriage contract that, its abatement is true regardless of the condition. In this paper, the issue of the condition for the alimony abatement of the spousal is studied sing the analytical-inferential method and collecting the required information in a library method and according to narratives, and since, like other deities, the property of the abatement potential and transfer through inheritance and reconciliation is true in the spousal alimony, it should be considered as right. Also, given that the abatement of the spousal alimony is true for all future time and the abatement condition is not contrary to the public rules, the alimony abatement condition of the spousal is valid during the marriage contract. Manuscript profile -
Open Access Article
12 - The Study of the Divorce by the Order of the Judge in the Case of the Recent Indigence and Failure of the Spouse in Alimony Payment
Siamak JafazadehIn the legal system of Islam, there are rights and duties which must be observed by the parties to a marriage in order to strengthen the family system. One of these rights is the alimony right for a woman. The issue discussed in this study is that in the case of recent MoreIn the legal system of Islam, there are rights and duties which must be observed by the parties to a marriage in order to strengthen the family system. One of these rights is the alimony right for a woman. The issue discussed in this study is that in the case of recent failure and indigence of the spouse in alimony payment, the famous jurists believe that the wife should wait and be patient and does not have the right to dissolve marriage or divorce. However, if the spouse refuses to pay alimony, many jurists have ordered the obligation of the spouse to pay or divorce. Is there any difference between these two cases so that different decrees have been issued? Does not the result of both of these situations harm women and deprive them of their legal and lawful rights? This paper explains and analyzes different perspectives on the issue, criticizes the famous view, and concludes that the current theory of divorce is more justifiable and powerful, even the evidence presented for the theory of dissolution of marriage by woman or ruler provides the same results Manuscript profile -
Open Access Article
13 - Alimony of the Wife and the Purposes of the Shari'a
Fatemeh Mahmoudi Aliakbar Izadifard Abedin MomeniOne of the important approaches in jurisprudential studies is to pay attention to the aims of the shari'a in the religious law, namely, to pay attention to the criteria and causes of the sentence, as well as its expedients and corruptness from the perspective of the leg MoreOne of the important approaches in jurisprudential studies is to pay attention to the aims of the shari'a in the religious law, namely, to pay attention to the criteria and causes of the sentence, as well as its expedients and corruptness from the perspective of the legislator of islam. In such a way that purposes and causes of the sentences, not have constradictions with general nature of sharia of islam. According to the general aims of the shari'a in marriage, which is the formation of the family, the production of the generation and the creation of the human face, is not the livelihood and lust of the animal, and the partial purposes of the shari'a is in alimony, which is the provision of women's needs in the family. It can be said that first, alimony of spouse as a unilaterally duty is responsible for husband and only the disobedience of the wife prevents of countinuing. The alimony of the woman is related to the supply of material needs, health, spiritual, psychological, scientific and educational support to the strengthening of the family system and the proper education of children. Therefore, the determination of alimony in material matters such as housing, clothing and food is through tarighah and does not matter. Manuscript profile -
Open Access Article
14 - A comparative study of alimony for the missing wife who left the marriage contract.
Mohammad Gholami-Aliyaei reza ranjbar Rahim Vakilzadeh Alireza LotfiIn some cases, people leave their place of residence for various motives, such as work, travel, family dispute, or any other reason, and after a while there is no news of their existence; such a person is called an absentee in Islamic jurisprudence and law. In this rese MoreIn some cases, people leave their place of residence for various motives, such as work, travel, family dispute, or any other reason, and after a while there is no news of their existence; such a person is called an absentee in Islamic jurisprudence and law. In this research, the alimony entitlement of the missing man's wife, who has been legally removed from the missing man's marriage contract by the ruler's ruling, has been investigated from the perspective of Khamsa religions, and then, by using the descriptive and analytical method, it tries to give an appropriate answer to the question whether the absent wife who is divorced by the ruling of the ruler is entitled to alimony during the days of Adah? The findings of this research show that if the couple's separation is due to the decree of divorce, the missing man's wife will be entitled to maintenance, because every woman deserves maintenance during the days of divorce, and the missing man's wife is no exception. However, if this separation is the result of assuming the death of her husband, according to jurisprudence, the wife will not be entitled to alimony because a woman is not entitled to alimony during the days of her husband's death. Manuscript profile -
Open Access Article
15 - Jurisprudential examination of the status of parentage in a natural child
Fatemeh Nasseri Mohammad Mehdi Zareei One of the important issues in the natural child is the issue of lineage, which means whether the natural child has a lineage and can have parents or not. And does he have all the effects of legitimate descent like a legitimate son. Many opinions have been raise More One of the important issues in the natural child is the issue of lineage, which means whether the natural child has a lineage and can have parents or not. And does he have all the effects of legitimate descent like a legitimate son. Many opinions have been raised on this issue, some believe that a natural child is like an illegitimate child, which has no lineage and does not join its parents, and another group believes that a natural child, although born from a forbidden relationship, belongs to the parents and all the rules of descent are established between them. In this research, we came to the conclusion that a natural child is not an illegitimate child, he is attributed to his parents, but due to the lack of marriage relationship between his parents, he only has some traces of legitimate descent; means, the sanctity of marriage, custody, guardianship, alimony; and these children do not inherit from their parents. However, the cloned child is considered a twin with the owner of the cell, and the parents of the nucleus donor are the parents of the cloned child. Manuscript profile -
Open Access Article
16 - Comparison of women's rights in Islam and the Convention on the Elimination of All Forms of Discrimination against Women
Masumeh Akhlaq Pasand Maryam Ibn Turab Sayyed Husayn SadjadiThe drafting of the Convention on the Elimination of All Forms of Discrimination against Women is one of the results of Western studies on the issue of women. The main tool of the drafters of the Convention is the elimination of discrimination in order to eradicate the MoreThe drafting of the Convention on the Elimination of All Forms of Discrimination against Women is one of the results of Western studies on the issue of women. The main tool of the drafters of the Convention is the elimination of discrimination in order to eradicate the existing traditional gender stereotypes and to deny the differences between men and women and thus to create equal rights. In this case, the provisions of this convention are not in full compliance with Islamic law, and this has caused challenges in various social, legal and cultural fields. The purpose of this study is to compare the rights arising from the articles of the Convention and Islamic law, in order to provide an appropriate response to address the challenges in this field. Based on descriptive analytical studies, it was concluded that in addition to the common human and male commonalities, the two are inherently and evolutionarily different from each other, so it is natural from a social point of view and in the field. The regulation of legal rules should not be expected to be similar to them. In many of its rules and laws, Islamic law complies with the provisions of the Convention. The right to life, the right to liberty, human dignity, the right to employment and political rights such as the right to participate in elections, social rights, the right to education and health are some of the issues that have long been considered in Islam. But in some cases, men and women have different rights and rules based on the characteristics of creation and the responsibilities based on it. Therefore, equality in the Convention on the Elimination of All Forms of Discrimination against Women, contrary to Islamic law, is not based on justice and nature, and this is a form of discrimination. Manuscript profile -
Open Access Article
17 - Scope of Validity and the Effect of Guarantee for Wife's Future Alimony
Shokrollah Nikvand Hosein jalaliAbstractContracts of guarantee and marriage have special and exceptional features in comparison with other contracts and the issue of the wife's alimony guarantee has a combination of features of both contracts and the annulment or authenticity of this guarantee and its MoreAbstractContracts of guarantee and marriage have special and exceptional features in comparison with other contracts and the issue of the wife's alimony guarantee has a combination of features of both contracts and the annulment or authenticity of this guarantee and its effect is questionable.One of the conditions for the authenticity of guarantee contract is the existence of debt or object of transaction and according to Article 691 of the civil code, the existence of debt cause is sufficient for the authenticity of guarantee.Some lawyers believe that a husband can be guaranteed by wife's future alimony because the marriage contract causes the husband's debt to wife's future alimony.The effect of the guarantee contract in Iran's civil code is the cession of debt but the wife's future alimony has features that distinguish it from other forms of debts. The husband's obligation to alimony is related to other obligations of spouses, such as good relations, common habitation and submission and these obligations are not transferable.Guaranty for the husband on wife's future alimony cannot have the effect of the guarantee contract and the cession of debt and the obligation of husband about alimony will not be wasted but by virtue of the implicit condition and the custom if the husband doesn’t pay alimony, it can be claimed from the guarantor. Manuscript profile
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