Children's Rights (book)
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| Book Information | |
|---|---|
| Author | Gholamreza Yazdani |
| Style | Reportorial |
| Language | Persian |
| Pages | 120 |
| اطلاعات نشر | |
| Publisher | Ketab Taha |
- Abstract
Children's Rights, written by Gholamreza Yazdani, is a practical book in the field of Family Jurisprudence. Avoiding technical terms and jurisprudential arguments, the author has collected fatwas and laws related to the rights of children (girls under 9 and boys under 15) in ten chapters.
This book covers topics such as child guardianship and its levels (natural guardian, testamentary guardian, and appointed guardian), the rights of the fetus (preservation of life, prohibition of abortion, and financial rights), and the rights of the newborn (breastfeeding, birth registration, and naming). The author also explains issues related to custody and its conditions, maintenance (*nafaqah*) and payment priorities, the property and transactions of children and their limitations, child marriage and the conditions for its validity, proof of lineage and ways to deny it, adoption and its legal effects, and finally, the nationality and domicile of the child.
While explaining the responsibilities and rights of individuals towards a child, the author also points to the legal conditions, effects, and limitations in each area.
Introduction to the Book
- Children's Rights* is a book in the field of Family Jurisprudence. It was authored by Gholamreza Yazdani, a faculty member at the Razavi University of Islamic Sciences. The books Commercial Law and Family Law are among the author's other works in the field of contemporary jurisprudence. The book *Children's Rights* was published in 1400 SH by Ketab Taha Publications in 120 pages.
The author states that his purpose in writing this book is to familiarize the general public with children's rights; therefore, he has avoided using jurisprudential and legal arguments as well as technical terms, and has compiled the book based on legal texts and authoritative fatwas (p. 9). In this work, "children" refers to girls under 9 years old and boys under 15 years old, who are called "minors" (*saghir*) in jurisprudential terminology (p. 11).
Structure
The book begins with a table of contents and an introduction by the author and ends with a list of sources. The main topics of the book are organized into ten chapters. The author introduces the child's guardian in the first chapter and explains the rights of the fetus and the newborn in the second and third chapters. He examines the custody and maintenance of children in the fourth and fifth chapters, and the property and transactions of the child in the sixth chapter. The seventh chapter is dedicated to the marriage and divorce of children, and the eighth chapter to their lineage. In the ninth chapter, Yazdani discusses the guardianship of parentless children, and in the tenth chapter, he studies the nationality and domicile of children.
The Child's Guardian
In the first chapter of the book, the author categorizes the person responsible for the care of children into three groups:
- Natural Guardian (*Wali al-Qahri*); meaning the father and paternal grandfather. If a child who is insane or prodigal reaches adulthood, they remain under the guardianship of the natural guardian. However, if the natural guardian lacks the necessary qualifications for reasons such as prodigality, insanity, or disregard for the child's best interests, the judicial authority appoints a guardian (*qayyim*) in their place. Also, if the guardian has the necessary qualifications but is unable to continue managing the child's affairs for reasons such as old age or illness, a person is designated as a "trustee" (*amin*) to manage the child's affairs.
- Testamentary Guardian of the Natural Guardian (*Wasi al-Wali al-Qahri*); a person whom the natural guardian has appointed for the guardianship of the child before his death.
- Appointed Guardian (*Qayyim*); a person who is appointed by a judicial order in the absence of the previous two cases (pp. 11-15).
Rights of the Fetus
In the second chapter of the book, the author examines the legal status of the fetus and emphasizes that the fetus has the right to life; therefore, abortion is generally prohibited, and the perpetrator must pay blood money (*diyah*). The amount of blood money varies depending on the stage of fetal development.
If the mother intentionally causes an abortion, she is obliged to pay the blood money to the fetus's heirs. However, if the mother causes the abortion unintentionally (pure mistake), the payment of blood money is the responsibility of the aqilah (paternal male relatives). Of course, the payment of blood money is only required if the continuation of the pregnancy does not endanger the mother's life.
The author also notes that the fetus, if born alive, enjoys some civil rights such as inheritance, testamentary disposition (both contractual and proprietary), and endowment (pp. 17-19).
Rights of the Newborn
In the third chapter, Gholamreza Yazdani first states the duties of parents towards the newborn. After examining the legal issues of birth registration, obtaining an identity card, and choosing a name, he considers breastfeeding the newborn as one of its rights and, under certain conditions, a duty of the mother, including that feeding the child with something other than mother's milk is not possible. If the mother demands a wage for breastfeeding, this cost must be paid. Of course, if the newborn has no property and the father is unable to pay the wage, the mother is obliged to breastfeed for free. If the mother refuses to breastfeed, the father can entrust the newborn to a wet nurse, and if it is not possible to combine the mother's right of custody with feeding by a wet nurse's milk, the mother's custody during the nursing period is nullified (p. 37).
The author then addresses the issue of foster kinship (*qarabat al-rada'i*) and considers it similar to blood kinship in terms of marriage prohibition. He divides foster kinship into two types: longitudinal and latitudinal. The longitudinal type includes the child's relationship with the wet nurse, her husband, her children, and her relatives; the latitudinal type pertains to two children who have been breastfed by the same foster mother without having a common biological mother. The author mentions six conditions for the establishment of foster kinship, such as the milk being the result of a legitimate pregnancy and the milk being suckled from the breast (pp. 38-45).
Custody and Care of the Child
In the fourth chapter, the author examines the issue of custody and care of the child, considering it simultaneously a right and a duty of the parents and a fundamental right of the child. According to him, custody ends when the child reaches the age of puberty and is deemed mature (*rushd*).
If the parents live together, custody is jointly held by both. However, if they separate, the custody of the child is with the mother until the age of seven and with the father thereafter. Upon the death or loss of custody qualification of one parent, the other becomes responsible. According to the majority view of jurists, in the absence of parents, the custody of the child passes to the following individuals in order: 1. Paternal grandfather, 2. Testamentary guardian appointed by the father or paternal grandfather, and 3. Relatives of the child according to the classes of inheritance (if relatives are in the same class, custody is determined by drawing lots).
Conditions such as mental and physical health, moral competence, and being a Muslim are considered for the custodian. Also, according to Iranian civil law, a mother who wants custody of the child must not marry another man. The author notes that the custodian cannot receive wages for custody; also, the parent who does not have custody has the right to visit the child, and this right cannot be denied. At the end of the fourth chapter, he makes a clear distinction between custody (related to the child's physical affairs) and upbringing (related to spiritual growth) and assigns the responsibility of upbringing to the following individuals in order: parents, paternal grandfather, appointed testamentary guardian, and appointed guardian (*qayyim*) (pp. 47-56).
Child's Maintenance (Nafaqah)
In the fifth chapter, the author addresses the issue of the child's maintenance, considering it one of their basic rights. According to him, providing for the child's maintenance is the responsibility of the father, paternal grandfather, and mother, in that order. In the absence of these three, or their financial inability, the maternal grandfather, maternal grandmother, and paternal grandmother are jointly responsible for the maintenance. If all these individuals are alive and financially capable, providing for the child's maintenance is obligatory for all of them. The author then examines who is entitled to maintenance, the conditions for the obligation of maintenance for relatives, and the enforcement mechanisms for payment (pp. 57-65).
Child's Property and Transactions
The sixth chapter examines the status of the child's property and transactions. According to the author, a non-discerning child who does not have a proper understanding of ownership and transaction cannot perform any commutative transaction, and all their transactions are void, unless ratified by the child's guardian. However, if a discerning child (i.e., having the power of discretion) acquires property for free—such as receiving a gift—this acquisition is valid and does not require ratification by the guardian.
The author identifies the child's guardian as the natural guardian (*wali*), testamentary guardian (*wasi*), and appointed guardian (*qayyim*) and explains the scope of their powers:
- Natural Guardian (*Wali al-Qahri*); transactions made by the natural guardian (father or paternal grandfather) with the child's property are generally valid, and are void only if they are detrimental.
- Testamentary Guardian (*Wasi*); the testamentary guardian of the natural guardian also has the powers of the natural guardian.
- Appointed Guardian (*Qayyim*); the appointed guardian, in addition to ensuring the transaction is not detrimental, must also consider the child's best interests. Also, the appointed guardian cannot be a party to a transaction with the child, and in such a case, the transaction is void. The author provides a list of legal prohibitions for the appointed guardian, including: selling or mortgaging the child's real estate, and borrowing money for them (pp. 67-71).
Marriage and Divorce of a Child
The seventh chapter is dedicated to the marriage and divorce of a child. The author lists three main conditions for the validity of a child's marriage: 1. Permission from the father or paternal grandfather, 2. The marriage being in the child's best interest, and 3. Permission from the court. He then examines cases where one of these conditions is not met and explains the legal status of such marriages.
Yazdani then explains the issues related to divorce in child marriages. According to him, if the wife is a child, the adult husband can divorce her. But if the husband is a minor and the wife is an adult, divorce is not possible until the husband reaches puberty (pp. 73-75).
Child's Lineage (Nasab)
In the eighth chapter, the author addresses the issue of the child's lineage and explains that this lineage is legitimate if there is a valid marriage or intercourse by misapprehension (*wati bi shubha*). In his view, proving maternal lineage is not very difficult, as evidence such as a history of pregnancy, childbirth, and circumstantial evidence can confirm the mother's claim in this regard. However, the mother must be able to show that her pregnancy was through a legitimate means. Yazdani, pointing to the complexities of determining the origin of the child's conception, considers proving paternal lineage to be more difficult, for which the legislator relies on presumptions such as the presumption of legitimacy (*amarah al-firash*), acknowledgment of paternity, blood tests, and DNA (pp. 77-87). He then addresses the denial of lineage and explains the issue of denial by the child, father, and mother, citing jurisprudential and legal evidence (pp. 87-94).
Guardianship of Parentless Children
In the ninth chapter, issues related to adoption are examined. Citing Quran 33:4 and Quran 33:5, the author emphasizes that in Islam, an adopted child does not have the status of a biological child and should not be treated as a blood relative. He then explains the legal dimensions of adoption, such as the necessary conditions for guardianship, the characteristics of a child eligible for guardianship, and the legal process for applying for guardianship. He then focuses on the financial and non-financial effects of guardianship, such as the obligation to pay maintenance to the child, the absence of inheritance between the child and the guardian, and the responsibility for the care and upbringing of the child (pp. 97-110).
Nationality and Domicile of the Child
In the tenth chapter, the author examines the issue of the child's nationality and domicile from a legal perspective. Countries have adopted either the nationality of the parents (*jus sanguinis*) or the place of birth (*jus soli*) as the criterion for imposing nationality on a child. The Iranian legal system, for instance, considers the parents' nationality (*jus sanguinis*) as the criterion for the child's nationality. The author then examines the issue of the child's domicile. According to him, a child does not have the authority to determine their own domicile. Consequently, the child's domicile will be the same as their guardian's domicile (pp. 111-116).