Matin Research Journal

Matin Research Journal

Principles Governing Family Court Proceedings in Islamic Jurisprudence and Law with an Approach Based on Imam Khomeini’s Views

Document Type : Original Article

Authors
Habib Sadeghi 1
Seyed Mehdi Ghoreishi 2
Mohammad Hassan Javadi 2
1 PhD (Jurisprudence and Law), Urmia University, Urmia, Iran
2 Associate Professor, Department of Jurisprudence and Law, Urmia University, Urmia, Iran
10.22034/matin.2022.170474.1362
Abstract
The issue of family court proceedings is one of the important discussions in the field of family law and judiciary bodies dealing with family affairs. It must be definitely claimed that failure to observe some principles in court proceedings related to family lawsuits may render rules and verdicts of family courts invalid. In this paper, we have tried to find an appropriate answer to this essential question: Are the court proceedings special for family lawsuits founded based on certain principles?



In response to the above question, while investigating the sensitive position of the family institution through a descriptive-analytical method and based on rules and regulations, the efforts by the legislator to enact laws related to this important institution of the community have been hypothesized. This is, on one hand, to take into account various individual, social and family considerations, and on the other hand, to enact laws for sustainability of family relations. Therefore, undoubtedly certain principles must govern family court proceedings.



The legislator has paid special attention to observing what is good for children, young adults and women according to the principle of expediency – which is a jurisprudential principle – and has avoided unnecessary formalities in family court proceedings in line with observing what is good for families and accelerating settlement of family lawsuits. Given close connection of family lawsuits with public order, the need for private session of court proceedings is proposed. Finally, referring all family lawsuits to arbitration is requested as a Quranic and jurisprudential principle. In the midst of discussions, we have reviewed Imam Khomeini’s views when needed.
Keywords
Formalities
expediency
arbitration
private session
private court
specialized proceedings

Subjects

-Afsharnia, Tayeb and Mobin, Hojjat.(2009) Prolongation of Trial and Judicial Development, First Edition, Tehran: Khorsandi.(In Persian) -Al-Bahr al-Ulum, Mohammad. (1983) Beloghat al-Faqih,, Tehran: Al-Sadiq Library, fourth edition, 4 volumes. (In Arabic) -Allameh Heli, Hassan bin Yusef.(1993) Tazkarat al-Foqhaha, Qom: Al-Bayt Institute for the Revival of Heritage, 2 volumes. (In Arabic) -Ansari, Morteza.(n.d) Al-Makasib, Najaf: Publications of Al-Najaf Al-Dinah Society, 3 volumes. (In Arabic) - Circular of 24/4/2000 Head of Judiciary. - Civil law approved in 1928 with visual amendments and additions. - Civil Procedure Code approved in 2000. - Ebadi, Mohammad Esmaeil. (2005) “Preventing Procrastination in the Existing Legal Order: Practical Suggestions of the Court of Appeal of Tehran Province”, Judgment Monthly, No. 30. - Executive by-law of Article 189 of the Third Development Plan Law approved in 2010. - Ebrahimi, Zein Al-Abedin. (2000) “Investigating the Causes of Procrastination in General Courts of the Islamic Republic of Iran”, Legal Quarterly of Justice, No. 32, pp. 173-186. -Emami, Hassan. (1999) Civil Law, Tehran, Islamic, 6 volumes. - Fazel Meqdad, Meqdad bin Abdullah.(1994) The Treasure of Mysticism in the Fiqh of the Qur’an, Tehran: Mortazavi, 2 volumes. - Family protection law approved in 2013. - Family Protection Law approved in 1974. - House of Justice Law approved in 1965. - Hassani, Alireza. (2002) “Causes of Procrastination in the Iranian Judicial System”, Advocacy Monthly, No. 11, p 24. -Islamic law approved in 1979, amendments and changes and...constitution approved in 1989. - Ibn Edris Heli, Mohammad. (1996) Al-Sarair al-Hawi Fi Tahrir al-Fatawi, Qom: Al-Eslami Publishing Institute. (In Arabic) -Ibn Manzoor, Mohammad bin Mokaram. (1991) Arabic language, Beirut:Dar Al-Ahya for Arab heritage, second edition, 18 volumes. (In Arabic) -Katozian, Nasser. (1998) Civil Law in the Current Order, Tehran: Publication of Justice, Fourth Edition. )In Persian) - Khomeini, Seyyed Ruhollah. (1999) Al-Bayy, Tehran: Institute for Organizing and Publishing the Works of Imam Khomeini (RA), First Edition. (In Arabic) - Khomeini, Seyyed Ruhollah. (1999) Discovering Secrets, Tehran: Theological Publications, Second Edition. (In Persian) - Khomeini, Seyyed Ruhollah. (2005) Islamic Government and Velayat-e-Faqih, Tehran: Institute for Organizing and Publishing the Works of Imam Khomeini (RA).)In Persian) - Khomeini, Seyyed Ruhollah. (2002) Referendums, Tehran: Islamic Publications Office, First Edition.(In Persian) - Khomeini, Seyyed Ruhollah. (2006) Collection of Imam Works (22-volume series), Tehran: Imam Khomeini Publishing House, 4th edition).In Persian) - Khansari Najafi, Moussa. (2000) Muniyat al-Talib fi Sharh al-Makasib, Reports of Mirza Mohammad Mohammad Hossein Naini, Qom: Al-Nashar al-Islami Institute. (In Arabic) -Khoei, Abu al-Qasem. (1999) Mesbah Al-Fiqahah fi Al-Maamelat, Collector Mohammad Ali Tawhidi, Beirut: Dar al-Hadi, 7 volumes. (In Arabic) - Law of Judicial Organization approved in 1950. - Law on amending the regulations related to divorce approved in 1992. - Law on apartment ownership approved in 1964 and subsequent amendments. - Law on Civil Procedure approved in 1939. - Law on Criminal Procedure approved in 2015. - Law on Dispute Resolution Council approved in 2008. - Law on how to apply government sanctions approved in 1995. - Law on Landlord-Tenant Relations approved in 1977 and 1983. - Law on Establishment of Special Civil Courts approved in 1979. - Law on how to donate infertile embryos approved in 2005. - Law on protection of homeless or badly cared for children and adolescents approved in 2015. -Mohaghegh Damad, Mostafa.(1998) Rules of Jurisprudence (3) Criminal Division, Tehran: Islamic Sciences Publishing, First Edition. -Mohseni, Hassan.(2006) “The concept of trial and their interpretive role in how to distinguish these principles from court proceedings”, Bar Association Monthly, No. 192, p 99-131. - Mousavi Sabzevari, Seyyed Abdul Ala. (2022) Mohazab Al-Ahkam, Qom: The school of Ayatollah Seyyed Al-Sabzwari, fourth edition, -Najafi, Mohammad Hassan.(n.d) Jawahar al-Kalam fi Sharh Sharia al-Islam, Beirut: Dar al-Ahyaa al-Tarath al-Arabi, 43 volumes. - Objectives and principles of family formation and policies for its consolidation and excellence approved in 2005. - Regulations on the formation of the national headquarters for women and families approved in 2010. -Shams, Abdullah.(2010) Civil Procedure (Advanced Course), Tehran: Drak, 3 volumes. (In Persian) - Tabatabai Yazdi, Mohammad Kazem. (1989) Al-Urwa Al-Wuthqa, Beirut: Prose of the Scientific Press Institute. (In Arabic) - Tabarsi, Ibn Ja’far Mohammad ibn Jarir. (1998) Jame ‘al-Bayan, Beirut: Dar al-Fikr, (In Arabic) - Urban Land Law approved in 1987 with subsequent amendments. - Youth marriage facilitation law approved in 2005. - Zahili, Wahba. (1997) Islamic jurisprudence, Damascus:Dar al-Hajjah, Dar al-Fikr, fourth edition.(In Persian) - Zeidan, Abdul Karim. (1999) Al-Mufsal Fi Ahkam Al-Merat and Beit Al-Muslim, Beirut: Al-Risalah Institute, Third Edition. (In Arabic)