نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانشیار گروه فقه و حقوق اسلامی، دانشگاه بزرگمهر قائنات
2 دانش آموخته کارشناسی فقه و حقوق اسلامی دانشگاه بزرگمهر قائنات
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
In some jurisprudential sources, conditions are mentioned for male and female claimants of legal custody (ḥāḍin and ḥāḍina), one of which is "Islam", meaning if one of the parents is non-Muslim and the child is Muslim, and the parent loses custody of the child. Shi'ite jurists mostly approve this opinion while Sunni schools are divided upon this issue. Some Sunni scholars do not consider Islam as a condition; some consider it to be different for the ḥāḍin and the ḥāḍina, and some agree with the Shi'a. The proponents of this ruling have cited the verse of nafy-i sabῑl, the verse of 'izzat and the hadith of the superiority of Muslims over non-Muslims (hadith 'uluw). There are fundamental criticisms of these citations; both verses cannot be considered the basis of this ruling, as well as, the 'uluw hadith, in addition to being weak in terms of its sanad (chain of transmitters), is referred to the superiority of the power of Islamic thought and ethics, as has been discussed in independent researches. Additionally, viewing custody as guardianship and extending the rulings of the guardianship to it is a matter of deliberation. Custody is a right that cannot be denied except with a valid reason. The emotional and mental damage inflicted upon the child under custody (maḥḍūn) is a further damage through the implementation of this sentence. It may lead to desecration of religion and turning away from it. On the other hand, the philosophy behind this ruling, i.e. impressionability, is degraded in many ways. This research aims to investigate the validity of the foundations of this ruling and criticize them, using library sources based on the critical descriptive-analytical method.
کلیدواژهها [English]
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