The Principle of Protecting the Best Interests of the Child in Shia Jurisprudence and Iran’s Legal System with Emphasis on Custody (New Understanding of a Traditional Legal Concept)
| Author | Maryamossadat Torabi,Seyed Masoud Noori |
| DOI | 10.1177/2322005819841525 |
| Published date | 01 January 2019 |
| Date | 01 January 2019 |
| Subject Matter | Articles |
Article
The Principle of Protecting the
Best Interests of the Child in Shia
Jurisprudence and Iran’s Legal
System with Emphasis on Custody
(New Understanding of a
Traditional Legal Concept)
Seyed Masoud Noori1
Maryamossadat Torabi2
Abstract
In this article, children’s rights will be studied in the Iranian legal system with remarks on its references
in the Shia Jurisprudence. One of the main issues regarding children, is their guardianship, custody or
tutorship. The Iranian legal system, same as the Shia Jurisprudence, has always kept the best Interest of
the child as an essential ground for law making. Referring to court decisions; it is evident that control of
the guardianship on the child is limited by the best interests of the child, because this interests is what
we are sure to understand from the reason of custody of the child and that this system is designed
only to secure child’s best interests since he/she might be incapable to secure his/her interests alone.
The Iranian legal system, especially in the family law section is based on the Islamic rules. The main
documents in the Shia Jurisprudence in Islam are Quran, Hadith, Consensus and reasoning which will
be defined herein.
In addition, a more recent review will be made in this study regarding the ratified laws regarding
children’s rights and international treaties and conventions while focusing on the Convention on the
Rights of the Child even though, Iran joined this convention by having several reservations.
The Place of the Principle in Shia Jurisprudence
Outlining the Subject
The principle of best interests of the child which is raised in Article 3 of the Convention on the Rights of
the Child (CRC) has been recognized by almost all schools of Islamic jurisprudence (Madh’hab) and in
Asian Journal of Legal Education
6(1–2) 67–82, 2019
© 2019 The West Bengal National
University of Juridical Sciences
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DOI: 10.1177/2322005819841525
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1 Center for Human Rights and Global Justice (CHRGJ) NYU Law School, NY, USA.
2 Environmental Law from Shahid Beheshti University, Tehran, Iran.
Corresponding author:
Seyed Masoud Noori, Center for Human Rights and Global Justice (CHRGJ) NYU Law School, NY, USA.
E-mail: smn5@nyu.edu
68 Asian Journal of Legal Education 6(1–2)
all Muslim majority countries’ positive law. However, this article focuses on classical Ja’fari (Ithna
Ashari/Twelver) Shia jurisprudence and Iranian law.
In different Islamic jurisprudence books and topics on the subject of children’s rights such as
guardianship over the child, custody and tutorship, the wording and the expressions used are all focused
on the significance of the best interests of the child under custody of the parents or whoever religiously
has the right to make decisions about the child. In Sheikh Tusi’s1 first comprehensive collection of Shia
Ijtihad
2, he has divided the religiously righteous decision makers in relation to the child into five groups,
namely the father, the paternal grandfather, executor of each of them and finally the imam [nowadays,
we could replace imam by the state or any person or legal person appointed by the government to replace
the imam]. Then he explains,
Acts of these ve groups are conventional only if they regard the best interests of the child, because the reason
they are chosen is to regard the best interests of the child; therefore, if otherwise their actions are illegal since
their actions are contrary to the main reason why they are appointed.3
Based on the evidence that will be discussed briey further in this article, Shia jurists insist on regarding a
child’s best interests in all decisions regarding the child and his/her property as a crucial principle. For example,
Maraghi has noted in his book Al-Anavyn:
Based on the evidence and the consensus of religious jurists, control of the guardianship is limited by the best
interests of the child, because this interests is what we are sure to understand from the reason of custody of
the child and that this system is designed only to secure child’s best interests since he/she might be incapable
to secure his/her interests alone.4
Documents Regarding the Principle in Shia Jurisprudence
Quran
Shia interpreters of Quran and scholars have used many verses like Verses 220 and 233 of Chapter 2, Verses
2 and 3 of Chapter 4, Verse 152 of Chapter 6, which is repeated in Verse 34 of Chapter 17 to prove what
is pursued. Here your attention will be drawn to one example.
Verse 152 of Chapter 6 which is repeated in Verse 34 of Chapter 17 has been interpreted as ‘and do
not approach the wealth of an orphan except in the best manner, until he reaches his adulthood’. Therefore
it must be proven that interfering is a better act than leaving alone their property thus just proving that
the act is appropriate is not enough. Sheikh Tusi has mentioned in his interpretation in his book At-Tibyan
Fi Tafsir al-Quran that one could only interfere in the part of orphan’s property which is obvious, that is,
in orphan’s best interests, otherwise, interfering is illicit.5 Another leading Shia jurist and Quran
1 Abu Jafar Muhammad Ibn Hassan Tusi (996–1067).
2 Independent reasoning or the thorough exertion of a jurist's mental faculty in finding a solution to a legal question.
3 Abu JAfAr MuhAMMAd Ibn hAssAn TusI, AlMAbsouT fI fIgh: VoluMe 2, 200 (Mortazavieh Publication, 2008).
4 seyyed MIr Abdol fATeh hosseInI MArAghI, Al-AnAVyn fIgh-hIye: VoluMe 2, 559 (Qom Islamic Publication, 1997).
5 Abu JAfAr MuhAMMAd Ibn hAssAn TusI, AT TIbyAn fI TAfsIr Al-QurAn: VoluMe 6, 476 (Dari Ehya al-Tatar al-Arabi Publication,
1988).
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