چکیده:
The main basis of jurisprudential and legal discussions regarding child custody stems from the verses and traditions that have reached us. The custody of illegitimate children, based on these verses, traditions, and the opinions of early jurists—and particularly by citing the Prophetic Hadith 'The child belongs to the bed, and for the adulterer is the stone'—has been negated due to the denial of their lineage (both customarily and legally), along with other related rulings (such as guardianship, maintenance, etc.). Given that due to reasons of change in the situational context of different eras and for the benefit of the child and society, the opinions of jurists have also undergone changes and have accepted transformations in parallel with environmental-social changes; therefore, it is necessary to examine the views of contemporary jurists and legal experts in relation to the relevant rulings mentioned in the opinions of early jurists. The results obtained from this research indicate that matters such as custody, guardianship, maintenance, etc., were not initially the responsibility of the adulterer; however, with the changes that have occurred in the surrounding context of society and by relying on the teachings of Imam Khomeini (RA) and consequently the current judicial uniformity of practice, most parental duties (except inheritance) regarding legitimate children have been extended to illegitimate children, and in some discussions, newer considerations have also been made. The research method was analytical-descriptive.
خلاصه ماشینی:
Katouzian also believes that "Being a mother or father, even if the child is illegitimate, is a privilege in the presence of strangers that Custody of the illegitimate child from the perspective of jurisprudence and law in verses and narrations /327 ethics, is not ignored, and separating a child from the embrace of the natural mother requires a reason greater than merely seeking benefit (see: Katouzian, 1375 SH: 134) However, if in certain cases the court determines that entrusting the child to his natural family causes his moral degradation and his physical health and moral upbringing are placed at risk, the best interest of the child requires that custody of the child not be placed upon the errant father and mother; in which case, the custody of such children, like abandoned children without a guardian, is the responsibility of the Bait al-Mal (Public Treasury) and the government (see: Jaba'i Amili, 1413 AH: 2/130) In any case, considering the opinion of Unity of View dated 76/04/30, No. 7/76 of the General Board of the Supreme Court, and following the fatwa of Imam Khomeini, the custody of ولد الزنا shall be the responsibility of his customary parents (see: Imami, 1349 SH: 2/122); therefore, it must be said that although there is no legal or Sharia relationship of lineage between the illegitimate child and his customary father and mother, because they are the cause of this child's existence, they have a responsibility based on causality to maintain him, and likewise, justice requires that the father and mother be considered obligated to maintain and provide custody for this child Guardianship (Wilayah) Wilayah in the Holy Quran has been used in various meanings: managing affairs (An-Nahl / 67), choosing a guardian (Al-Hajj / 4), being worthy and deserving (An-Nisa / 35), ownership (Al-An'am / 14), and closeness and proximity, are among these meanings.
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