نوع مقاله : مقاله پژوهشی
نویسنده
دانشیار گروه فقه و مبانی حقوق اسلامی دانشگاه سیستان و بلوچستان
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
Abstract
Child custody is one of the important issues in family law, concerning the care, upbringing, and physical and psychological protection of children. Under Article 1168 of the Iranian Civil Code, custody is both a right and a duty of parents. By contrast, Article 189 of the Kuwaiti Personal Status Law recognizes the mother as the primary holder of custody and does not place the father on an equal footing with her. In both Iranian and Kuwaiti law, the mother's right to custody is subject to certain conditions. This study, using a descriptive-analytical method and library-based research, examines the effect of the mother's remarriage on her right to custody from the perspectives of Imami jurisprudence, Iranian law, and Kuwaiti law, and seeks to identify the similarities and differences between these legal systems.The findings indicate that under Imami jurisprudence and Iranian law, remarriage by itself should not necessarily result in the loss of the mother's custody where married life has not yet commenced. The underlying rationale for restricting custody is the potential conflict between the mother's marital obligations and her responsibilities toward the child. Accordingly, the commencement of marital cohabitation is relevant, while the occurrence of sexual relations is not a prerequisite for the loss of custody. Furthermore, where the child's father has died, the mother's remarriage does not deprive her of custody, as custody remains with the surviving parent.Kuwaiti law adopts a different approach. Although the mother's remarriage may result in the loss of custody, this consequence does not arise where she marries a person who is a mahram to the child. Moreover, pursuant to Article 191 of the Kuwaiti Personal Status Law, where the mother marries a non-mahram man, the loss of custody is conditioned upon the occurrence of marital relations. Another significant difference is that the father's survival is not a prerequisite for the loss of the mother's custody under Kuwaiti law. Finally, Article 193 recognizes the restoration of custody upon the removal of the impediment, although Islamic jurists differ concerning the effect of revocable and irrevocable divorce on the restoration of custody. The study concludes that, despite the differences between the three systems, the best interests of the child should constitute the fundamental criterion in determining the effect of the mother's remarriage on custody.
کلیدواژهها [English]
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