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Determining the Criteria of Hardship (ʿUsr wa Ḥaraj) Leading to Divorce in Light of Jurisprudential Opinions
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Mohammad Ali Kheirollahi1    |
| 1- Assistant Professor, Department of Jurisprudence and Fundamentals of Law, Babol Branch, Islamic Azad University, Babol, Iran. (Corresponding Author) |
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Abstract: (1778 Views) |
Background and Aim: There is no doubt that the principle of 'Nafiy Usr wa Haraj' (the elimination of hardship and distress) is a principle of grace that the Merciful God has established for His servants. The foundation of establishing and legislating this principle is based on kindness and grace to the servants, so that for all the obligated individuals, the laws should not be burdensome and arduous. Whenever unbearable hardship arises from the enforcement of the initial and primary rules, this principle modifies that rule. In this regard, particularly in social and familial matters, clarifying the criterion and standard of hardship while determining the judges' ruling and precisely identifying instances of hardship hold special importance.
Materials and Methods: This research is a analytical-descriptive research.
Ethical Considerations: All ethical principles have been observed in the writing stages of this research.
Findings &Conclusion:After examining numerous jurisprudential opinions as well as the prevailing judicial practice, it has been concluded that both objective and subjective criteria, due to the corrupt consequences they entail, should be reconsidered by the legislator and, by extension, the courts. Instead, a middle-ground criterion should be adopted, meaning that not only the conventional understanding of "difficulty and hardship" (ʿUsr o ḥaraj) but also the opinion of the wife regarding the perception of such hardship should be considered by both the law and the courts |
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| Keywords: Difficulty And Hardship Leading To Divorce, Personal Hardship, General Hardship, Article 1130 of The Civil Code, Jurisprudence. |
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Full-Text [PDF 832 kb]
(1601 Downloads)
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Type of Study: Research |
Subject:
Special
Received: 2022/12/12 | Revised: 2023/02/19 | Accepted: 2023/03/17 | Published: 2023/03/21
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