Document Type : Original Article

Authors

• abdolsamad aliabadi ¹
• elhamsadat rezvani ²

¹ Department of Imami Law and Jurisprudence, Faculty of Islamic Law and Jurisprudence, International University of Islamic Denominations ,Tehran, Iran .

² , Department of Imami Law and Jurisprudence, Faculty of Islamic Law and Jurisprudence, International University of Islamic Denominations ,Tehran, Iran

Abstract

Objective: Custody is one of the important concepts in the Iranian jurisprudential and legal system, which has mostly focused on providing the material needs and physical care of the child. However, it appears that in Islamic jurisprudence and law, upbringing has often been considered an element separate from custody and has received less thorough examination. As a result, custody has frequently been limited to its practical and financial aspects, while its educational dimension has not been adequately clarified. Accordingly, the main objective of this study is to examine whether custody includes the upbringing of the child or not.
Method: This research was conducted using a descriptive–analytical method based on jurisprudential and legal sources. In this regard, the existing viewpoints concerning the relationship between custody and upbringing were examined, analyzed, and compared in order to clarify the position of upbringing within the concept of custody.
Results: The analysis of the existing perspectives indicates that two main theories exist in this field. The non‑inclusion theory argues that custody is limited to the maintenance and provision of the child’s physical needs, and that upbringing is an independent matter. In contrast, the inclusion theory maintains that custody, in addition to physical care, also encompasses the child’s spiritual, moral, and social development, and that parents bear responsibility for the educational guidance of their child during the custody period.
Conclusions: The findings indicate that the theory of the inclusion of upbringing within custody is supported by stronger arguments. Several criteria reinforce the preference for this view, including the nature of custody—which would be incomplete without upbringing—the necessity of parental guidance in the formation of the child’s personality, and the support derived from the principles of priority analogy (qiyās al‑awlā) and the legal rule of no harm (lā ḍarar).

Keywords

• Educational Jurisprudence
• Custody
• Educational Rights
• Theory of Inclusiveness
• Theory of Non-Inclusiveness

Main Subjects

• احکام شرعی تربیت