بازجستی در طلاق قضایی ناشی از عسر و حرج معنوی زوجه با تاملی در آراء قضایی

عسر و حرج معنوی مشقت‎ها و سختی‎هایی است که به روح، روان و حیثیت فرد وارد می‎شود. با توجه به اینکه این نوع از عسر و حرج غالبا در طلاق قضایی ناشی ازعسر و حرج زوجه مورد غفلت قانونگذار قرار گرفته است، پژوهش حاضر که به روش توصیفی تحلیلی همراه با گردآوری اطلاعات اسنادی و کتابخانه‌ای انجام‌گرفته، با مداقه در کتب فقهی و حقوقی مرتبط و چندین دادنامه کوشیده است مصادیق عسر و حرج معنوی را که حرج معنوی ناشی از مسائل روانی، حرج معنوی ناشی از مسائل مالی و حرج معنوی ناشی از رویه قضایی می‎باشد وغالبا از سوی زوج و رویه قضایی بر زوجه عارض می‎گردد را احصاء و تاثیر عسر و حرج معنوی بر طلاق را بررسی کند. باتوجه به ادله قاعده لاحرج، در تمامی مصادیق مذکور عسر و حرج معنوی می‎تواند برای زوجه حق درخواست طلاق قضایی ایجاد کند. در پایان نیز دو پیشنهاد در خصوص اصلاح رویه قضایی و لزوم آموزش‎های کاربردی افراد قبل و بعد از ازدواج مطرح شده است.

re-examination in judicial divorce caused bywife's spiritual distress and embarrassment withreflection on judicial opinions

background and purpose the rule of la haraj is one of the most important rules of jurisprudence and it is used in most chapters of fiqh, including worship, transactions and politics. according to this rule, if he is obliged to perform a duty that causes hardship and difficulty, the duty will be removed from him. in general, harm can be divided into physical (material) and non-physical (spiritual) categories in terms of diversity, because non-physical (spiritual) harm in today's society is less than harm. harms are not physical and may be far more unbearable and make a person suffer irreparable consequences; therefore, to solve such problems, one should adhere to the principle of non-harm; for the reason that 1- the rule of negation of hardship and embarrassment due to its breadth, it can be considered as including both physical and non-physical (spiritual) hardship and embarrassment. 2- the application of the proofs of the negation of harj, including verses and traditions, indicates that god has not forged or legislated harj in the rulings, and this term includes all types of harj, both physical and non-physical. article 1130 of the civil code is also derived from the same rule, according to which, if the duration of the marriage causes hardship and embarrassment to the wife, she can refer to the ruler of sharia and request a divorce, if the hardship and embarrassment mentioned in if the court proves it, the court can compel the couple to divorce, and if coercion is not possible, the wife will be divorced with the permission of the sharia ruler. according to what has been stated, physical (material) hardships are things that are difficult and difficult for the human body, but non-physical (spiritual) hardships are those hardships and hardships that are related to it should not be related to the person's body, of which we can mention a few examples: a- spiritual embarrassment caused by psychological issues, which itself has different types, including spiritual and psychological embarrassment caused by dignity issues, spiritual and psychological embarrassment caused by emotional issues, and psychological and spiritual embarrassment caused by physical pressures and spiritual embarrassment caused by financial issues, which include non-payment of alimony by the spouse. c- spiritual embarrassment caused by judicial procedure. spiritual hardships and hardships are hardships and hardships that are related to a person's soul, psyche, and dignity, in other words, this type of hardships and hardships are not related to physical hardships and hardships of a person. however, some physical (material) hardships cause a person to experience spiritual hardships as well. in this article, what is examined are the cases in which the hardship is spiritual or in other words psychological, such as disrespecting and putting the wife under mental pressure, although there are cases such as not paying alimony to the wife, having sex unconventional and. . . it is also mentioned that in general it includes both types of hardship and hardship (material and spiritual), but what the authors of this article are considering are the cases in which the wife is not in material hardship and hardship. gird and he will be in trouble more mentally and psychologically. the absence of such a research is necessary and essential because most of the harms that are caused to women due to their gender are emotional and psychological harms, and conducting a research in this field, especially in order to help identify difficulties and embarrassments with diligence is necessary in judicial opinions. the present investigation is classified as applied research in terms of its objective, and it adopts a qualitative research approach specifically focused on inductive theme analysis. following the end of the interviews, the content analysis was conducted utilizing the themematic network analysis approach proposed by attride-stirling (2001). the study encompassed three separate categories: global themes, organizing themes, and basic themes. data was gathered from a sample of four prisons, namely tehran, ahvaz, kerman, and tabriz prisons, comprising a total of 72 participants until data saturation was achieved. method the current research method is descriptive, analytical library and method. results in this article, examples of spiritual distress and embarrassment were divided into three types, which are: a. spiritual and psychological embarrassment: this type of embarrassment is divided into three categories, psychological embarrassment caused by dignity issues, psychological embarrassment caused by emotional issues, and psychological embarrassment caused by physical pressures. b. spiritual embarrassment caused by financial issues: non-payment of alimony by the spouse is the only example found of this type of embarrassment. p. spiritual hardship caused by judicial procedure: this type of hardship and hardship was also examined in the two topics of spiritual hardship, time-consuming to prove hardship and hardship, and proving spiritual hardship and hardship to a male judge. according to the above explanations, it should be said: by referring to the rule of laharij and proving its inclusiveness with respect to spiritual harms, the cases mentioned in paragraph a and b can be a reason for judicial divorce of the wife. regarding paragraph c, which is spiritual embarrassment caused by judicial procedure, it requires the serious attention of the legislator in order to apply the necessary reforms to improve the judicial procedure according to the suggestions that are presented. discussion & conclusion the findings indicate that the dimension of social skill, consisting of 25 basic themes, achieved the highest ranking in comparison to the other dimensions. the findings presented in this study align with the research conducted by samari (2016). on the other hand, within this specific dimension, the life skill component, consisting of 18 basic themes, holds the most prominent place among the many components. all three groups of participants placed significant emphasis on the importance of attending the life skill training component. furthermore, the present findings align with the research conducted by farahnejad, mohammadi, and khorsandi (2019), which emphasizes the significance of life skills training in mitigating abnormal and risky conduct among imprisoned individuals. baldwin (2018) has confirmed additional elements within this dimension, such as role expectations, emphasizing the maternal role. roshanpour and aghajani (2019) demonstrated a statistically significant correlation between social marginalization and recidivism. familiarity with prison is another dimension. the respondents also underlined that providing accurate information regarding prison life, circumstances, and harm has a substantial impact on the mental health of female clients. article 109 of the prisons organization's bylaws clearly emphasizes teaching prisoners upon arrival and developing and making available to them a manual detailing the prisoner's rights and legal duties. many individuals within the target community, including managers, prison guards, and experts, strongly emphasize the effectiveness of utilizing quranic teachings, islamic ethics, and religious therapy as valuable tools for maintaining and improving the mental well-being of prisoners. these practices also contribute to increasing their sense of hope and purpose in life. the results indicated that social skill training is the most crucial dimension, followed by familiarization with prisons. additionally, the women in the target community emphasized the importance of increasing their awareness of gender roles and their connection to the institution of the family as a social unit. some specific themes that were highlighted include parenting in prison, maintaining marital relationships while imprisoned, and maintaining the family unit as the center of their lives. these findings highlight the fact that playing female roles is a significant concern and priority for women in all forms, conditions, and situations. holding educational programs aimed at preventing the negative effects of separation from family and the harm associated with prison can have a positive impact on the mental health of female prisoners. based on the information provided above, the extracted model can be instrumental in developing a comprehensive and focused educational program and content that aligns with the unique dimensions and circumstances of the women's prison.