Document Type : Original Article
Authors
1
Professor, Jurisprudence and Islamic Law, Unsiversity of Semnan, Semnan, Iran (Corresponding Author):
2
PhD in Jurisprudence and Islamic Law, Unsiversity of Semnan, Semnan, Iran.
Abstract
The Civil Code lists the grounds for annulment of marriage as the defects mentioned in the law for both spouses, fraud, and breach of stipulated qualities, and, following Imamiyyah jurisprudence, enumerates the defects that entitle either spouse to annulment. However, nowadays, some of these diseases that were previously unknown have been identified and become treatable. On the other hand, new contagious diseases such as AIDS, hepatitis, syphilis, cancer, and certain mental illnesses have emerged, which are even more dangerous than the defects explicitly stated in the law and, according to medical experts, may not have a definitive cure. This raises the question: Can we consider the traditional defects listed by jurists and legislators as exemplary (not exhaustive), thus extending the right to annulment to new defects as well? Or is such an extension not possible, and must we limit ourselves to the enumerated defects? There is disagreement among jurists and legal scholars on this matter; some believe that the defects listed in the Civil Code are exhaustive and cannot be extended to other cases, while others argue that these cases are exemplary. This research, using a descriptive-analytical method, examines the jurisprudential and legal feasibility of marriage dissolution in light of new diseases and concludes that the view of the defects being exemplary and not exhaustive is defensible. Thus, using existing solutions and based on the jurisprudential principles of “no harm” (la-zarar) and “no hardship” (la-haraj), it can be argued that there should be no difference between men and women in having the right to annul the marriage due to new diseases, and in the presence of a defect caused by contagious and dangerous diseases, both parties can be granted the right to annulment. Finally, an amendment to the existing law in this regard is proposed.
Keywords
)