بررسی قاعده ی قضایی «الحاکم ولی الممتنع» و کاربرد آن در حقوق خانواده

800x600 On the base of the provision of the judicial rule "The governor is legal guardian for refuse" if somebody refuses to respect peoples right, judge after obtaining the refusal, in order to prevent chaos and to preserve public regular and also to perform social justice, directly takes action. The refusal will be obtained during trail procedure. So, this rule is a 'judicial rule. One of the results of performing rule by governor is family actions. Important cases of performing this rule in family actions are: Husband’s refusal of paying the maintenance in spite of his ability. Husband’s refusal of divorcing wife in spite of disability of paying the cost of maintenance. In long and sudden absence of missing person, his legal guardians refuse to divorce his wife. Husband, refusal of divorce or withdrawal in illa and zihar. Husband or wife, schoicing arbitrator in case of fearing separation. Husband’s refusal of forgiving the remaining time in temporary marriage. In these cases Judex can accomplish legal and religious duty of refuse owing to his jurisdiction. Legislator, in some articles of civil code for instance in article1129, recognized this rule to be enforced in the present law of country. The rule of "The Judex is legal guardian for refuse" has accepted the governor interference in relation private relations. Due to this rule, if somebody doesn’t care about others rights, the governor of the Islamic society, with regard to jurisdiction is allowed to do his duties. Normal 0 false false false EN-US X-NONE AR-SA /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal" mso-tstyle-rowband-size:0 mso-tstyle-colband-size:0 mso-style-noshow:yes mso-style-priority:99 mso-style-parent:"" mso-padding-alt:0cm 5.4pt 0cm 5.4pt mso-para-margin:0cm mso-para-margin-bottom:.0001pt mso-pagination:widow-orphan font-size:10.0pt font-family:"Times New Roman","serif" mso-bidi-font-family:"B Zar"}