طلاق حرجي و نقدآرايي محاكم در اين فرضيه

Hardship Divorces and the Assessment of the Relevant Judicial Decisions

Following the amendment of Article 1130 of the Civil Code of Iran in 1982 (1361) and in 1991 .(1370) and the introduction of a general rule (known as the rule of usr and haraj or hardship) by which a woman may apply for divorce in case of hardship, the petitions for divorce on the basis of hardship have increased. The legislature has defined usr and haraj (or hardship) as "the occurrence of a situation that makes the continuation of marital life hard and tolerance of such a situation difficult for the wife" and the establishment of such a situation has been left to the court. The court, first, compels the husband to divorce his wife and if the compelling of the husband is impracticable, then the wife will be divorced by the permission of the court. The examination of judicial decisions indicates that from the five cases mentioned in the Note (tabsirah) added to Article 1130 in 2002 (1381) the continuous maltreatment of the wife by the husband has been the chief cause for divorce petitions. In this paper, apart from the juristic and legal bases of hardship, a number of judgments given by the Supreme Court either in upholding or in quashing the judgments of the lower courts (the court of first instance and the court of appeal) have been examined.