The Journal of Critical Analysis of Judicial Decisions

The Journal of Critical Analysis of Judicial Decisions

An Examination of the Judicial Precedent of Iranian Courts Regarding Proof of the Wife's Hardship in Judicial Divorce Arising out of the Husband's New Illnesses

Document Type : Original Article

Authors
nasser alidoosti shahraki 1
Mohsen Pourmand 2
1 Assistant Professor, Department of Private Law, University of Judicial Sciences and Administrative Services, Tehran, Iran
2 Judge, Master of Laws in Family Law, University of Judicial Sciences and Administrative Services, Tehran, Iran
10.22034/analysis.2025.2073442.1126
Abstract
Although the exclusive right to divorce is recognized as a fundamental principle for men in the Iranian legal system, the acceptance of the hardship rule and the provision for divorce due to the wife's difficulty and hardship in the Civil Code have, to some extent, have enabled courts to free women from unbearable marital situations. The fifth paragraph of the Additional Note to Article 1130 of the Civil Code considers the husband suffering from incurable or contagious diseases that cause difficulties in their married life as a ground for judicial divorce.But due to the prevalence of diseases and the emergence of new diseases, it is naturally not possible to limit them in law. In such cases, judicial precedent, with the help of specific criteria for the rule of hardship and determination of the criteria for the contagiousness or incurability of diseases, can prevent divergence of judgements in similar cases.In this article, we seek to examine the country's legal precedent regarding some of these diseases, which are either new or have become more widespread in recent years.In this article, relying on a descriptive-analytical method, through an examination of judicial judgments, we find that if a husband's illness causes hardship to their married life, it can be the subject of a judicial divorce, and the two factors of incurability and the contagious nature of the disease are the most common grounds for the wife's hardship.Consideration of the opinions of forensic experts regarding the type and severity of the husband's illness and the wife's personal characteristics are very important for the court in confirming hardship.What necessitates the present study is, first of all, to reduce the issuance of conflicting judgments on similar issues, which often occurs in the identical cases and leads to the issuance of contradictory judgments in which the judge insists on his decision after the case being remanded from the Supreme Court, and secondly, where illnesses afflicting the husband make the life wife so difficult that in certain cases, application of the principle of hardship by the court provides the wife with the only avenue of escape from an insufferable situation.
Keywords
hardship
judicial divorce
husband`s illness
contagious disease
incurable disease
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The Journal of Critical Analysis of Judicial Decisions
Volume 4, Issue 8 - Serial Number 8
January 2026
Pages 266-306