Document Type : Research/Original/Regular

Authors

• Mina Salempour ¹
• mohammad roshan ²
• Hossein Simaei saraf ¹

¹ Faculty of Law, Shahid Beheshti University, Tehran, Iran

² Family Research Institute, Shahid Beheshti University, Tehran, Iran

Abstract

Divorce, granted by the sacred lawgiver, is controlled by the husband, but it must align with the institution's philosophy to avoid arbitrary divorce. Iran's legal system has not given enough attention to this issue and its criteria. Predicting arbitrary divorce and its criteria, including financial matters, property division, and compensation, is crucial. It also helps in controlling a man's autocratic will.

Studying Quranic verses, narrations, and jurists' rulings reveals criteria for arbitrary divorce: intention to cause harm, loss of legitimate benefits, lack of proportionality between parties' rights, conflicting with the lawgiver's purpose, and contradicting customary norms.

The Iraqi Civil Code considers three criteria for abuse of a right: malicious intent, lack of legitimate interest, and disproportion between interest and harm, guiding the identification of arbitrary exercise.

Algeria's civil law defines personal and objective criteria to distinguish misuse of the right based on intentions and the balance between benefits and harm. Judges differentiate divorce from other arbitrary actions based on these principles.

Highlights

Nowadays, divorce is not an unknown or rarely practiced phenomenon; rather, there is an ascending trend of the filed cases of divorce. According to Islam and, consequently, the Iranian legislated laws, the right of divorce belongs to the man, but he is not absolutely free to use it. Indeed, like any other right, divorce should be based on certain rules and regulations and in line with what the religion has postulated. In case a divorce is enforced regardless of the corresponding principles, it is considered highhanded (Boudiha, 2015-2016).

By definition, highhanded divorce is the one in which the man divorces his wife with a unilateral decision, without her consent, for no plausible or legitimate reason, and on the purpose of harming her interests while she has had no misbehavior (Al-Obaidi, 2009).

In the former Iranian set of laws for family support legislated in 1974, Article 11 somehow recognized implausible divorces. After the revolution, in 1992, Note 6 was enacted in order to modify the laws on divorce. Despite this legislation, highhanded divorce has not been paid due attention yet, nor has it been of much concern in the works of jurists. Islam, however, has paid special attention to the dignity of women and prohibited any insult or injustice to them. Socially speaking, highhanded divorce is risky. An examination of the religious decrees in this field shows that they all intended for benefits and against evils (Mozaffar, 1983). Taking those decrees for what they superficially impart and ignoring their spirit and true intentions would be a contempt to the religion and the Qur’anic verses (Tabatabaie, 2019).

In the Iraqi set of private laws approved in 1959, Paragraph 3 of select 39, which was annexed in 1995, recognizes highhanded divorce and presents certain measures to support women. These measures, however, only concern material compensations, and the law fails to delineate the conditions for such a divorce. In this context, Article 6 of the civil code modified in 1951 states that “legitimacy entails no guaranty, and whoever uses a legitimate right is not responsible for any consequent damage”. Of course, the use of this right is restricted by Article 7 in the same code. As it postulates, using a right should not be highhanded (Rahan, 2020-2021).

Due to the inadequacy of the laws at hand, court judges have no clear-cut criteria to identify the highhandedness of a divorce. Therefore, jurists have presented the following criteria based on the aforementioned article:

- The right of divorce is used with an intention to harm.

- The goal to attain through the divorce is trivial and disproportionate to the harm done.

- The goal sought through the divorce is not legitimate.

The issue has similarly been dealt with in the Algerian legal system. Legislators have determined the criteria for the abuse of a legitimate right based on Article 124 of the civil code modified in 2005 (Raqiq & Jaaija, 2020-2019). This law generally, rather than exclusively, refers to the cases of abusing rights and lays out the criteria for judging the highhanded use of rights as a guilt (Belhadj al-Arabi, 2014). Unless an act corresponds to one of the three items in this law or a similar law, it will not be judged as highhandedness or abuse of rights. This enactment is general and applies to all rights, but every act of using a right is judged upon either a personal or thematic criterion or both.

The Algerian code of family laws, especially Article 52 dedicated to highhanded divorce, fails to mention any specific criteria for such a divorce. In practice, however, the courts pass judgments with reference to Article 124 of the civil code and in accordance with the tenets of Article 49, which concerns holding sessions for peacemaking and examining the reasons for divorce.

Therefore, in both Iraqi and Algerian legal systems, highhanded divorces are taken for granted, but care is also taken to somehow reduce the harm or trauma unjustly imposed on the divorced women.

Once a fulfilled divorce is marked as highhanded, the man is forced to make compensations for the damage incurred by the woman. This punishment serves to dissuade many men who have planned a divorce but cannot afford its financial consequences. It is, indeed, a preemptive measure for protecting the married life of couples, where men have no plausible motives for divorce. So far, there have been a lot of publications on legal issues, but no independent research has been conducted on highhandedness in divorce. The present research embarks upon determining the criteria for highhanded divorce through the comparative analysis of the Iranian laws and the corresponding legislations in Iraq and Algeria and by delving into the Qur’anic verses, hadiths and jurisprudential decrees. It just focuses on the recognition of this type of divorce in the three countries and the criteria they use to judge it. The research questions are as follows:

- What is the religious or jurisprudential basis on which to justify highhanded divorce in the Iranian society?

- In case highhanded divorce is recognized, what are the criteria with which to prove the highhandedness of men?

  Based on the above questions, the following hypotheses are proposed:

Hypothesis I. Highhanded divorce is well-grounded in the religion and jurisprudence and agrees with the will of God worded in numerous verses. It is also confirmed by authentic hadiths. Thus, it can be prevented or punished if the man deviates from the path delineated by God.

Hypothesis II. A man’s attempt to divorce his wife is identified as highhanded based on personal and thematic criteria. From the personal perspective, the man is ill-willed and intends to harm his wife. From the thematic point of view, a) the goal that the man pursues is either illegitimate or trivial, b) the benefit that the man acquires is obviously disproportionate to the harm that his wife incurs, or c) the divorce deviates from cultural norms.

Method

 This research is conducted through an analytical-basis method. Considering the existence of highhanded divorce in some Arab and Muslim countries, especially Iraq and Algeria, the legal systems of those countries serve as a basis for this study. The significant counterpart laws in those systems are also analyzed comparatively.

Discussion and Conclusion

According to the results of this study, it seems essential to revise or modify the current divorce laws by adding a note or a paragraph to Article 1133 in the civil code. This change of laws can prevent men’s injustice and highhandedness and, thus, protect the rights of divorced women. Any modification in the law should be intended to maintain the stability of families and ward off their collapse as well as reinforce justice in the society. In this regard, the legal rights of men and women should be equally respected (Motahari, 1994). Basically, the reforming measures taken to protect human rights can ultimately lead to the establishment of social justice.

The Iranian legal system lacks a mechanism to distinguish highhanded divorce from otherwise, but some Qur’anic verses, historical events and jurisprudential decrees point to the fact that Islam rejects the absolute dominance of men and disapproves any act of harming. In this case, one may refer to verses such as 2:180, 229, 232, 282, 4:12, 65:6, and 9:107. As for a historical event, the story of Samareh Ibn-e Jondab, in which the prophet advised “Neither harm nor be harmed”, is insightful. With these sources at hand, it is possible to determine the criteria for judging the intention to harm, lack of legitimate goals, disproportion of the practiced rights and the imposed harms, contrast to divine orders, and conflict with the culture.

As the comparative study of highhanded divorce in the Iranian, Iraqi and Algerian legal systems proves, the right of divorce is by no means absolute, and the one who has it must apply it in conformity with the goals defined for it; otherwise, it is considered highhanded and the man has to afford the consequences.

Keywords

• arbitrary divorce
• legal system of Iran
• legal system of Iraq
• legal system of Algeria

Main Subjects

• Woman and family