بررسي امكان افزايش دوره تصدي حضانت توسط زنان

The Exploration of the Possibility of Extension in Motherʹs guardianship

According to reputed opinion of Imamie jurists, sonʹs guardianship for two years and daughterʹs 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 childʹs 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 childrenʹs 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 Imamieʹs 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 Sadrʹs viewpoint on the role of expediency in legislation and itʹs consistency with the issue of guardianship and it explores different juristsʹ 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 motherʹs 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 thereʹs no need to get the approval of the Expediency Discernment Council with its juridical and social consequences.