المصالح المرسلة واعتبارها في قانون الأحوال الشخصية الإيراني باب النكاح والطلاق أنموذجا

Abstract

This research aims to liberate matters of dispute concerning the authenticity of the unprescribed public interest (Masalih Al-Mursalah) between Islamic schools of thought. It also endeavours to reveal its role in the amendment and development of Iranian family law and the extent to which it is relied on. Following this, the research presents a practical application model in matters of marriage and divorce. The research discussed began with the interest and the extent to which it is considered in Islamic law first, and then followed by Iranian laws and regulations as the second. Then it proceeded to talk about personal status, and then turning to the second section of this study, which was devoted to Iran’s civil laws relating to marriage and divorce as well as the issues related to both. The researcher first examined these issues from the view of jurisprudence, secondly, they were examined from the eyes of legal legislator perspective; in order to be able to address these legal articles, to come up with proposals to modify or develop the deficiency in these articles. The research followed the jurisprudential approach by presenting the sayings of the four schools of thought and the leading doctrine in the descriptive, analytical, and comparative approach by mentioning sayings, analysing, comparing, and discussing them and then determining their weightage. Thereafter, the researcher mentioned the relevant articles in Iranian Family Law. After further scrutiny of the sources, narrations and jurisprudential texts, the research concluded that the unprescribed public interest in the Islamic schools of thought is considered, and the failure to accept the unprescribed public interest as an independent source in some schools does not mean that it does not exist in their ijtihad. Either understanding new topics or developing new laws can be achieved using unprescribed public interest. The research also concluded a set of results. The most important results are: The legality of rehabilitative courses and premarital medical examination. And the legality of the marriage contract through modern means of communication. And official documentation can be a witness in a divorce because it is more substantive. This research concluded by some of recommendations which the most important are proposing the legal text to amend some articles such as Articles 1100, 1086, 1062, 1043 and other Iranian civil law, and Articles 17, 22, 23 of the Family Protection Law. In order to have better and safer implementation of the Marriage Contract Law through modern means of communication, a project was proposed to create a computer program for registering the marriage contract.