Author
Abstract
According to reputed opinion of Imamie jurists, son's guardianship for two years and daughter's guardianship for seven years is on mother and thenceforth father is in charge of patronage. This viewpoint is not correspondent with the present social necessities and facts; hence many of psychologies have criticized it. This particularly is criticized for it considers no difference between the three-year-old child's need to mother regardless of being a boy or a girl. The criticisms like that caused Islamic parliament of Iran to renovate article 1169 of civil law and expand the children's guardianship, both for the boys and the girls, by mother up to seven years. The Guardian Council recognized the law unconstitutional while it again was approved by Expediency Discernment Council. This process signifies that this approval is in contradiction with the first principle of Imamie's jurisprudence and is not legitimate but ultimately it can be justified as a secondary principle. This is the point that negatively effects the internal application of the law.The article expresses Shahid Sadr's viewpoint on the role of expediency in legislation and it's consistency with the issue of guardianship and it explores different jurists’ ideas about the patronage of children of divorce, specially ideas of outstanding jurists of Imamie such as Sheikh Sadough, Sheykh Mofid, and Sheikh Toosi on guardianship, which is based on mother's guardianship up to seven or nine years old or even up to maturation age of the child. The study indicates that there are some better choices in accordance with the basic juridical principles and there's no need to get the approval of the Expediency Discernment Council with its juridical and social consequences.
Keywords
)