چکیده:
The present study aims at examining the family laws in the field of judicial divorce, especially the one based on 'osr wa haraj principle in order to clarify its flaws and shortcomings. Most of the cases that are mentioned in the note of Article 1130 of the Civil Code as examples of 'osr wa haraj, besides the fact that they do not reach the level of such 'osr wa haraj making the continuation of life difficult for women, they cannot be considered as examples of 'osr wa haraj; It may be placed under another title such as mo'asherat bi ma'rouf. Also, mentioning these cases as examples of 'osr wa haraj is against the principle of the negation of 'osr wa haraj, and thus causes an increase in the number of divorces in the society. In family life, the husband must either fulfill all his rights and duties well or divorce the wife. A husband's inappropriate treatment of his wife and failure to fulfill his duties regarding her on the one hand, and not divorcing the wife on the other hand, is injustice against the wife. In this case, the ruler or judge issues a decree on the divorce of the woman on the basis of justice and the need to remove oppression and due to establishing justice in the society.
خلاصه ماشینی:
In the year 1346, with the enactment of the Family Protection Law, the cases for a woman's request to the court for divorce were expanded as follows: Article 11 - In addition to the cases mentioned in the Civil Code, in the following cases, the wife or husband, as the case may be, can request the court to issue a certificate of impossibility of reconciliation.
The third case is in Article 1130 of the Civil Code: If the continuation of marriage causes hardship and distress (Osr va Haraj) to the wife, she may refer to the Sharia judge and request a divorce.
On 1361/10/8, Article 1130 of the Civil Code was amended by the Judicial Commission of the Islamic Consultative Assembly as follows, and for the first time, the general title "Osr va Haraj" (Hardship and Distress) was introduced into the Civil Code: In the following case, a woman may refer to the Sharia judge and request a divorce.
124 In clause 4 of the note to Article 1130 of the Civil Code, it is stipulated: "beating or any kind of continuous misconduct by the husband that, according to custom and considering the situation of the wife, is unbearable" is accepted as one of the cases of Osr va Haraj and consequently allows the intervention of the judge for divorce.
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