نگاهی تحلیلی به مبانی فسخ ازدواج ناشی از بیماری‌ها

Termination of marriage is a unilateral legal act which according to it one of parties terminates voluntarily the marriage contract. The Iranian Civil Code in compliance with the famous opinion of Islamic jurists has granted the right to revoke marriage to man in case of diseases such as Qaran( protrusion of the womb), leprosy, vitiligo, Efza( connection of the vaginal and anal passages), disability and blindness in two eyes in woman and also the right to revoke marriage to woman in case of diseases such as Jabb( castration), Khesa (eunuchoidism ) and impotence in man. Today, some of these stipulated diseases are curable and therefore there is no reason for termination due to these diseases with regard to the bases and philosophy of marriage revocation. But despite all considerable advances in medical science, we every day see more dangerous and contagious diseases than the diseases stipulated in the Iranian Civil Law such as AIDS, HEPATITS B, SYPHILIS, etc. which according to medical specialists there is no certain cure for these diseases. It seems that, the most important philosophy of divine law concerning termination of marriage due to diseases is to prevent loss and hardship which according to Islamic jurisprudence rules of Lazarar and Laharaj nobody shall suffer any loss and hardship. Using these principles, it can be said that the legislator has only stated the diseases causing revocation of marriage by analogy and allows the extension of these diseases. By adopting this approach, perhaps it can be said that according to the mentioned above rules there is no difference in using the right of marriage termination between man and woman so that both of them can be given the right of marriage revocation in case of dangerous, contagious and incurable diseases.