گستره و ضمانت اجرای «ولایت قهری» در عقد نکاح از منظر فقه امامیه و قوانین افغانستان

There is no doubt that the family as a core has a fundamental and important role in security and health of the society. Therefore, Islam as a comprehensive and developed school has determined some conditions for constituting this holy institution and forming marriage to protect the health and security of the society and the human dignity. One of the conditions is the guardianship (Vilayah) of the father and the grandfather (father of father) over the son and daughter in marriage that is doubted and criticized by some persons and communities that have not enough knowledge about the Islamic progressive teachings. The present paper studies the issue from perspective of Imamiah jurisprudence and the Islamic Republic of Afghanistan’s laws. The traditions and the statements of the jurists show that the guardianship of father and grandfather (father of father) over the immature children is a presumed and accepted matter due to its protective aspect and the Civil Code of Afghanistan also has accepted the rule, but it has some conditions the most important of which is considering the benefits of the children. About the mature male children the jurists unanimously reject the guardianship. While there are different ideas about the mature virgin female children among the Imamiah jurists, the Civil Code and the “prohibition of violence against women act” of Afghanistan see the permission of the guardian (father and grandfather) unnecessary for this group of children both virgin and non-virgin following the Hanafit jurisprudence. The present paper has studied the position of permission of the legal guardian and its enforcement guarantee in marriage from perspective of Imamiah jurisprudence and the Civil Code and “prohibition of violence against women act” of Afghanistan and the findings are presented.

کلیدواژه ها:

نکاح ، ولایت ، اذن ولی قهری ، فقه امامیه ، قانون مدنی ، قانون منع خشونت