Thesis:

scrutiny of jurisprudential and legal principles, but the absence of husband and wife

One of the effective institutions established in the Islamic penal system to fight against crimes which are against the physical integrity of society is the institution of “retribution”, and this is clearly stated in the Holy Quran. The right of retribution is one of the rights that arise as a result of an intentional crime and because of this, the crime was inflicted on victim herself, obviously, this right of retribution arises for himself. However, since the victim cannot benefit from this right due to death, this right is one and only intestate and will be inherited by the heirs and it is shared among all of them and it is divided among them, according to the share of each of the heirs. As a result, the right of retribution is inherited same as other property of the deceased. Additionally, the right of pardon is subject to the right of retribution. However, husband and wife are excluded from the owners of the right of retribution, and such a right has not been recognized for them. Despite the opinion of the jurists, who consider the inheritance of the right of retribution to the spouses as among other heirs, the legislator, following the opinion of the IMAMI jurists, has deprived the spouses of this right in Article 351 of the Islamic Penal Code. Although they benefit from it, if the survivors agree on the dowry. Accordingly, the legal article 351 of the Islamic Penal Code clearly states: WALI Dam is the heir of the victim, except for his wife and her husband, who do not have the right to revenge. According to this article, anyone who inherits from victim in case of his death, is considered as WALI Dam. Therefore, a husband and wife who inherit from each other should have the right to revenge, but the law has excluded them from all guardianship. The main reason mentioned is that the consensus of the IMAMI scholars that husband and wife do not inherit the right of retribution from each other. In addition, in the next article of the same law, it is stated that if the right of retribution is converted into dowry for any reason, the murdered wife or husband will also inherit it. As a result, if the guardians of the victim, such as his or her parents and sister, waive the right of retribution and agree to receive dowry, the victim’s wife or husband will also inherit from this property. The purpose of this research is to examine the jurisprudential and legal foundations of the absence of a husband and wife, and it has been carried out with a descriptive, analytical and library method. In general, The findings of this research illustrate that , according to article 351 of the Islamic Penal Code,, the victim’s wife or husband is not considered as one of the guardians, and it does not matter , if that person is a male or a female , but one case can be mentioned in which the victim’s wife or husband is considered as one of the member of guardians of the deceased , that is where she or he herself or himself is one of the heirs, the main owner of the right of retribution and the main owner of the right of retribution dies, during which the wife or husband of the victim is among the heirs . It becomes the WALI Dam. Key words: retribution, WALI Dam, dowry, wife and husband, guardians, heirs.

Keywords: retribution, WALI Dam, dowry, wife and husband, guardians, heirs