Iran – Gender Inequality & Discrimination: The Case of Iranian Women
Author: Womens UN Report Network
Date: October 20, 2014
WUNRN
IRAN – GENDER INEQUALITY &
DISCRIMINATION: THE CASE OF IRANIAN WOMEN
(March 8, 2013) — The Iran Human Rights Documentation
Center (IHRDC) is pleased to release “Gender Inequality and Discrimination: The
Case of Iranian Women”, a 60+ page legal commentary from Iranian lawyer
Mohammad Hossein Nayyeri.
In his commentary, Nayyeri analyzes the impact of discriminatory laws, as
written and as applied, on women in Iran. The laws on the age of criminal
responsibility for women, honor killings, compulsory veiling, the minimum age
for marriage, a woman’s rights and duties in a marriage, a woman’s right to
travel, inheritance and ownership, custody and guardianship of children and a
woman’s right to serve in government, serve as a judge and receive higher
education are some of the topics covered in this article.
This commentary can serve as a useful tool for policy makers and academics
in understanding gender inequality under Iranian laws.
1. Criminal
Law
1.1. Age
of criminal responsibility
1.2. Diya
(Blood money)
1.4. Honor
killing and a husband’s right to kill his wife in flagrante
1.5. Testimony
of women
1.6. Compulsory
hijab
2. Family
Law
2.1. Marriage
2.1.1. Minimum
Age for Marriage
2.1.2. Freedom
of Marriage
2.1.3. Polygamy
2.1.4. Rights
and duties of both parties to a marriage
2.1.4.1. Mahriyeh
2.1.4.2. Nafaqa
(maintenance)
2.1.4.3. Tamkin
(obedience)
2.1.4.4. Right
to leave the country
2.1.4.5. Right
to work
2.2. Divorce
2.3. Custody
and guardianship of children
2.4. Bill
of Family Protection Act
4. Employment
and right to work
4.1. Women
as President
4.2. Women
in the Cabinet
4.3. Women
members of Parliament
4.4. Women
judges
5. International
human rights law
Introduction
Iran’s legal system changed dramatically when the Pahlavi regime (1920-1979)
was overthrown. In many respects, it was a point of “no-return” for women’s
rights. During the reign of Reza Pahlavi—the Shah, or monarch of Iran—and the
subsequent rule of his son Mohammad Reza Pahlavi, women’s rights reached new
heights and many legal barriers obstructing women’s rights were dismantled. For
instance, in 1963, despite the strong objections of religious clerics such as
Ayatollah Khomeini[1],
the prohibition on the women’s vote was removed and women obtained the right to
run for Parliament. Then, arguably the greatest stride towards equality for
women by that point in time came with the enactment of the Family Protection
Act in 1967, which gave Iranian women the power to seek a divorce, deny their
husband a second wife and win custody of their children in case of divorce. The
Act also increased the minimum age of marriage for girls from thirteen to
fifteen years old. In addition, Islamic Shari’a and its discriminatory rules
against women did not determine criminal law and procedure. However, these
advances did not secure the true emancipation of women and lasting gender
equality. Rather, this was part of a long term process during the Shah’s reign
which was slowed, in some respects regressed and in other ways reversed
entirely, after the Islamist regime took power.
After the 1979 Revolution, some achievements, including several laws favoring
women’s rights, were simply overturned by hardliner clerics in power. A new
Constitution was adopted which established Islam as the basis for the legal
system. The new Constitution paid special attention to women, allegedly because
of “the greater oppression that they suffered under the old regime”, However,
the Constitution viewed women through the lens of Islamic ideology—upon closer
scrutiny, it is clear that these Constitutional provisions do not recognize
women as individuals but rather as “family” and “women as mothers and wives”.
The language of Article 21 of the Constitution (Women’s Rights) reflects
the deep roots of patriarchy which views women as human beings with undeveloped
personalities who only fit traditional roles in a family:
“The government must ensure the rights of women in all respects, in
conformity with Islamic criteria, and accomplish the following goals:
1) Create a favorable environment for the development of awoman’s
personality and the restoration of her rights, both the material and
intellectual;
2) The protection of mothers, particularly during pregnancy and
child-rearing, and the protection of children without guardians;
3) Establishing competent courts to protect and preserve the family;
4) The provision of special insurance for widows, senior women, and
women without support;
5) Granting the guardianship of children to worthy mothers, in order to
protect the interests of the children, in the absence of a legal guardian.”
In addition, the section of the constitution that guaranteed equality has
omitted gender equality and provided equality to women only if Islamic law is
observed. According to Article 20 of the Constitution of the IRI, all members
of the nation, both men and women, shall receive equal protection under the legal
system and shall enjoy all human, political, economic, social and cultural
rights, but with a fundamental condition at the end which changes everything:
“…in conformity with Islamic criteria”. This condition has had a significant
impact on the legal framework of the IRI, and as will be discussed in this
commentary, has increased gender inequality and injustice.
This is while equal rights and equality before the law, without any
exception, are among the basic principles articulated in different international
instruments on human rights. For example, Article 2 of the Universal
Declaration of Human Rights (UDHR) and Article 2 of the International Covenant
on Civil and Political Rights (ICCPR) protect every person’s human rights
“without distinction of sex.” The IRI’s national laws fail to uphold these
principles and instead apply an unequal and discriminatory system on the basis
of gender.
In order to promote women’s rights in Iran and protect women from all forms
of violence, discrimination and injustice, it is crucial first to trace the
cultural, social and legal roots of these unjust practices. This commentary
reviews the status of women’s rights in the IRI’s legal system; and,
specifically, focuses on the disadvantages and injustice experienced by women solely
because of their gender. Chapter One of this commentary addresses cases of
gender inequality in the criminal laws of the IRI such as, inter alia,
the lower age of criminal responsibility for girls and the lower value of blood
money for women. Chapter Two analyzes the IRI’s family law which deals with
marriage and the violation of human rights of women as wives and mothers.
Chapter Three discusses women’s inheritance and ownership and Chapter Four
addresses women’s employment and right to work (Chapter Four). Finally, Chapter
Five examines whether the status of women’s rights in Iran constitutes a
violation of international human rights law and reviews obligations of the IRI
under international human rights instruments.
One of the most central human rights principles is that all persons are
equal before the law and entitled to the same legal protections. The
International Covenant on Civil and Political Rights (ICCPR) stipulates that
“all persons shall be equal before the courts and tribunals” (Article 14) and
that “all persons are equal before the law and are entitled without any
discrimination to the equal protection of the law” (Article 26). Under
classical Islamic law, as under other pre-modern legal systems, the principle
of legal equality of persons is not recognized. The Islamic Penal Code, which
was enacted by the Iranian government soon after the 1979 Revolution, clearly
follows the classical Islamic law doctrine and violates the principle of legal
equality by provisions that discriminate, inter alia, on the basis of
gender.[2]
Under the IRI’s criminal law, men and women are treated differently with regard
to the age of criminal responsibility, diya (blood money) and qisas
(retaliation), evidence, etc.
1.1. Age of criminal responsibility
According to Islamic sources, the criterion for criminal responsibility is
when an individual reaches the age of maturity which, according to the Shi’ite school
of Islam practiced by the IRI, is 9 lunar years (8 years and 9 months) for
girls and 15 lunar years (14 years and 7 months) for boys. For years, lawyers
have argued that the recognition of criminal responsibility for a girl of 8
years and 9 months old and a boy of 14 years and 7 months old conflicts with
the modern needs of society and violates international standards including the
Convention on the Rights of Child.
Article 147 of Iran’s new Penal Code, which was approved in January 2012,
stipulates the age of maturity as 9 lunar years for girls and 15 lunar years
for boys. Despite this stipulation in the Penal Code, some Iranian Shi’a
clerics consider the age of maturity for girls to be higher. Ayatollah
Yousef Sanei, for example, set the age of maturity for girls at 13 years
old and not 9 years old. But the Penal Code has followed the fatwa by
the majority of conservative clerics who deem 9 years to be the age of maturity
for girls. Therefore, the age of maturity under Islamic Shari’a is
stipulated as the criterion for criminal responsibility and fatwas (i.e.
religious opinions) which offer older ages of maturity are dismissed.[3]
So in fact, the hope that, with time, the minimum age of criminal
responsibility in the IRI will be changed has yet to be realized.
If the different ages of criminal responsibility for boys and girls are
combined with different categories of crimes (i.e. hudud[4],
qisas[5]
and ta’zirat[6])
under the new Penal Code, we arrive at a range of possibilities with different
rulings.[7]
These changes demonstrate that there have been some desirable changes in
respect to ta’zir punishments. As a result, if children commit ta’zir crimes
before turning 18 years old, whether they are boys or girls, and whether they
have reached the age of maturity or not, they shall be sentenced merely to
correctional measures. So, there is no possibility for the application of
adult ta’zir punishments to children and juveniles. In
comparison with the old Code, in which reaching the age of maturity resulted in
full criminal responsibility, these changes may be regarded as positive,
especially for girls.[8]
However, in the case of the commission of crimes punishable by hudud and qisas,
children may still be sentenced to such punishments. In fact, in respect
to hudud and qisas, the Code still relies on
the age of maturity under Islamic Shari’a. Therefore, if a
boy—after reaching the age of 15 lunar years (14 years and 7 months)—and a
girl—after reaching the age of 9 years (8 years and 9 months)—commits crimes
punishable by hudud and qisas, instead of
correctional measures as for ta’zir offences, they may be subject
to hudud and qisas rules and will be
treated as adults.
So, the assertion made by IRI authorities that the new Penal Code ensures
gender equality[9],
is not true in respect to hudud and qisas.
Therefore, it must be stressed that the application of hudud and qisas
punishments on people under 18 years old has not been abolished, and, contrary
to some assertions, the new Code, like the old one, clearly discriminates
between boys and girls.
According to the available scholarship, amongst the different laws of
Islamic countries, the Iranian Penal Code is the only one that still specifies
that a woman’s diya (blood money) is not equal to the blood money of a
man.[10]
In fact, the blood money for a Muslim man is the standard against which the
values of all other categories of persons are measured, both for life and for
injuries. According to traditional Shari’a, the standard blood money
is 100 camels or 200 cows or 1,000 sheep, which was given a monetary value of
675,000,000 IRI Rials [around $34,000 US Dollars in the same period, when the
average annual wage in Iran was approximately $4,400 US Dollars[11]]
for the Iranian year 1390 (2011-12)[12]
by the Head of the Judiciary.[13]
Article 544 of the new Penal Code (similar to Article 300 of the old Code)
provides that:
“The diya (blood money) for murdering a woman is half that of a man”.
In addition, according to Islamic Shari’a, retaliation for homicide or
bodily harm is only allowed if the victim’s blood money (diya) is the same as
or higher than the offender’s. If the value of the blood money of the offender
is higher than that of the victim, the victim or his/her next of kin would have
to pay the difference to the perpetrator for retaliation. Thus, if a woman is
killed by a man, the murderer may be sentenced to death if the woman’s next of
kin demand it, but they must pay one half of the blood money of a man to the
offender[14],
since the blood money of a woman is half that of a man. Article 379 of the new
Penal Code provides:
“When a Muslim woman is murdered, the right to qisas (retaliation) is
created; however, if the murderer is a Muslim man, prior to qisas, the heir(s)
of the victim [vali-e-dam] should pay the murderer half of the diya (blood
money) of a man…”.
Interestingly, although the new Penal Code insists on this unequal
treatment, it has prescribed a new solution to alleviate the inequality of diya
between men and women. The note to Article 545 provides that:
“In all cases of homicide where the victim is not a man, the difference
between the diya and the diya of a man shall be paid from the Fund for
Compensation of Bodily Harms.”
The Fund for Compensation of Bodily Harms was established to exclusively
compensate bodily harms caused by car accidents when the perpetrator escaped or
was not identified or when the vehicle was not insured. In fact, the IRI, while
still insisting on this inequality, has found an unusual solution to the
problem. This is one of the rare occasions that Parliament has taken a step
forward from the original Bill provided by the Judiciary. However, this should
not be viewed as a significant step towards equality for women: in the case of
bodily injury that does not cause death, the diya for men and women is
still only equal until it reaches to one-third of the full diya. That
is, the one-third mark acts as a kind of trigger: once the diya of the
injuries of a woman is higher than one-third of the full diya, it will
be decreased to half that of a man’s diya for the same injuries.
Article 554- “The diya of [harm to] limbs and bodily abilities, up to
one third of the full diya, is the same for man and woman; however if it
reaches, or exceeds, one third of the full diya, the diya of woman shall be
decreased to half.”
For example, if someone causes a man to go blind in both eyes, the man would
be given full diya, while a woman, if incurring the same injury, would
only be given half of the full diya of a man, and this is not payable
from the Fund for Compensation of Bodily Harms. Therefore assertions about the
equality of men and women under the new Islamic Penal Code have much to be
desired.
According to Shi’a jurisprudence as reflected in the Penal Code, a father,
and any male paternal ascendant (e.g. father’s father), cannot be put to death
for killing his child (or descendant). This rule does not apply to the mother
and the ascendant (e.g. mother’s mother) and has its roots in patriarchal
systems where fathers hold authority over women, children and property.
According to Article 299 of the new Penal Code
“Qisas shall be delivered only if the perpetrator is not the father, or
a paternal grandfather, of the victim …”.
Cases in which fathers kill their own children are usually cases of honor
killing. For example, in 2009, a father killed his 16 year old daughter in
Tehran. He told the police that he had been suspicious of his daughter’s
behavior for some time. According to him, his daughter left the house in the
early morning to meet a friend and when she came back around 9 p.m. he shot her
twice and killed her. According to the police, the family seemed happy and some
family members even thanked the father for killing her.[15]
In such cases, the qisas punishment cannot be delivered against the
father and he may only be sentenced to between three to ten years of
imprisonment, at the discretion of the judge.
Under the IRI’s criminal law, some crimes and their elements are based on
gender discrimination and some punishments differ between the genders. In some
exceptional cases, the law gives a lesser punishment to women as compared to
men for the same crime, such as the crime of homosexuality for which men get
the death penalty, while women receive 100 lashes.[16]
However in most other cases the law, as written and as applied, imposes harsher
punishments on women. One example of a punishment which is applied with more
frequency and severity to women is stoning to death for the crime of adultery.
Under the Shari’a law, sexual intercourse is only permitted within a
marriage and sex out of marriage is considered to be a hadd crime. The
crime of zina has been defined as sexual intercourse between a man and
a woman who are not married to each other. To prove this offense, very strict
standards of evidence are required, including the testimony of four
eyewitnesses or the making of a confession four times.
Persons who have committed zina can be punished with the hadd
penalties of either 100 lashes or death by stoning, depending on their legal
status. For a specific group of married people, called mohsan (man)
and mohsaneh (woman), the hadd punishment for zina
is stoning to death:
(a) A ‘mohsan’ man is a man who is married to a
permanent wife and has had sexual intercourse with her whilst he has been sane
and can have sexual intercourse with her whenever he so wishes.
(b) A ‘mosaneh’ woman is a woman who is married
to her permanent husband and the husband has had sexual intercourse with her
whilst she was sane and she is able to have sexual intercourse with her
husband.”[17]
Although the punishment of stoning applies to men as well, it is applied in
greater proportion to women. For example, in 1998 (a year with high recorded
rates of punishment by stoning) five of the seven people reportedly sentenced
to death by stoning were women.[18]
In fact, women are more readily accused and convicted of adultery, while men
are rarely punished for adultery because they can easily claim that they
engaged in those relations in the bounds of a temporary married.[19]
Claiming a temporary marriage permits sexual relations outside of formal
marriage. Men can more easily claim a temporary marriage because under Iranian
laws they may have multiple wives, allowing them to have both a permanent wife
and be temporarily married at the same time. On the other hand, women cannot
have multiple spouses under Iran’s laws, thus making stoning more likely for
women than men since they cannot evade punishment for adultery by claiming that
the relations occurred in a lawful temporary marriage.[20]
Moreover, men have an incontestable right to divorce, whereas women have
only a limited right to divorce their husbands and a resulting freedom to marry
another man. Due to cultural, economic and societal factors, many women are not
permitted to exercise any personal choice over the man they marry and many are
married at a young age. Poverty, drug addiction and domestic violence also play
a part in making women more likely than men to engage in actions that can be
deemed as adultery under Iranian laws and therefore render women more
vulnerable to the ultimate punishment of stoning as compared to men. As
demonstrated in some documented cases of stoning, married women are sometimes
forced into prostitution by their husband to feed their drug habits.[21]
Or sometimes they are forced into selling their bodies as a result of an
abusive relationship.[22]
If arrested, they are at risk of being charged with adultery and, if convicted,
they could be sentenced to execution by stoning.[23]
In addition, although the details of execution by stoning are omitted in the
new Penal Code, Islamic sources are specific about the procedure by which
execution by stoning should be implemented, right down to the size of the
stones that should be used.[24]
According to this guidance, men shall be buried up to their waists and women up
to their chest for the purpose of execution by stoning. The fact that men are
only restrained up to their waists gives them a greater opportunity for escape
than women subjected to the same punishment, since it is mandated that the
latter be buried more deeply. The ability to escape the stoning pit is
significant: in cases where an individual is convicted on the basis of their
own confession, their life can be spared if they manage to escape from the pit
during the execution.
1.4. Honor killing and a husband’s right to kill his
wife in flagrante
Honor killing is an act of murder carried out by a husband, father, brother,
or other relatives, to punish a family member perceived to have brought
dishonor upon an entire family. The behavior�or the suspicion of such
behavior�that is usually perceived as bringing dishonor upon a family include
engaging in an extramarital relationship, electing to marry according to
personal choice and refusing an arranged marriage, being a victim of rape,
homosexual acts, or even dressing in an inappropriate manner in the eyes of the
family. By virtue of culture and other factors, women and girls are the primary
victims of honor killings. Honor killings are committed globally but the
practice occurs with the most frequency in the Middle East and South Asia.
Due to the clandestine nature of such practices, a lack of government
reporting and other factors, there are no precise statistics about the rate of
honor killings in Iran. However some official figures are occasionally revealed
in the news. For instance, according to a Police Commander, 50 honor killings
were committed in the first seven months of the Persian calendar year of 1387.[25]
Additionally, in provinces such as Khuzestan, Kordestan, Azerbaijan, Fars,
Lorestan, Eilam, and Kermanshah, which are home to rural tribal communities
that more frequently engage in the practice, the rates of honor killing are
higher than in the rest of Iran.[26]
According to Abbas Jafari-Dolatabadi, the then Chief of the Judiciary of
Khuzestan, “honor killings are a serious problem in this province and this is
an accepted practice in this area. The offenders, therefore, escape from
prosecution and the victim’s families often do not pledge�or pursue�the
complaint against the offender”.[27]
In just Ahvaz, the capital of the province of Khuzestan, fifteen women were
killed in the Persian calendar year of 1388 (2008/2009) in alleged honor
killings.[28]
This inhuman practice is primarily caused by different cultural and social
factors—and while Iranian laws fall short of calling for the outright
implementation of honor killing, they are nonetheless remiss in not prescribing
a harsh punishment for the practice. Additionally, in one specific case honor
killings are even condoned by the Penal Code. Article 630 of the previous Penal
Code expressly allowed a husband to kill his wife and her lover, if he caught
them in flagrante, (“in blazing offense” in Latin; legal term that
indicates a criminal has been caught in the act of committing an offense).
However if he knows that his wife acted under coercion, he may only kill her
rapist (Article 630).[29]
While in the new Penal Code Article 630 is unchanged, a paragraph has been
added to Article 300 which again stresses the exemption of husband from qisas
(retaliation) in cases where he kills his wife and her lover in flagrante.
In fact, not only has Article 630 not been repealed, the IRI has solidified its
approval of this practice.
Moreover, as already discussed, a father cannot be sentenced to qisas
(retaliation) for killing his child, rather he can only be sentenced to three
to ten years’ imprisonment. This gives fathers legal immunity if they kill
their children and opens the door to more honor killings without any effective
and deterrent punishment. In addition, when another family member, such as the
victim’s brother, kills a girl or woman in the family, the Islamic Shari’a
gives the victims’ next of kin (awliyā-al-dam) the right to determine
whether the condemned should be sentenced to death or be forgiven. In cases
where the victim’s family committed the murder, they rarely even lodge a
complaint, and if they do so, they will more likely forgive the offender which
leaves no option but for the judge to sentence the offender to only three to
ten years’ imprisonment.
When the IRI was questioned about Article 630 of the Penal Code during the
periodic reviews of the UN Human Rights Committee in 2011, the response of the
IRI was that the IRI considers ‘honor killings’ as being disagreeable and
forbidden and asserted that it was intent upon battling the practice of honor
killing. However the Iranian state cannot allege that it is intent upon
battling the practice of honor killing when legal rules such as Article 630 are
still in force, and provisions like paragraph 4 of Article 300 of the new Penal
Code were just added.[30]
According to Islamic Shari’a, the testimony of a man is often given twice
the weight of that of a woman. Further, the testimony of a woman is not
accepted at all for certain types of crimes. For instance, according to the old
Penal Code, the hadd punishment for livat (a homosexual act
between men) shall only be proved by the testimony of four men (Article 117)
and “the testimony of women, whether alone or together with men, shall not
prove livat” (Article 119). Similarly, under the old Penal Code, the testimony
of women was inadmissible to prove several other hadd crimes such as qavvadi
(pimping) (Article 137) and consumption of intoxicants (Article 170). This
exclusion of women had been criticized by women’s rights lawyers.[31]
However, under the new Islamic Penal Code, the testimony of women regarding
these types of crimes has been deemed admissible, yet with two conditions:
there must be at least one male witness to the purported crime; and, the old
rule, that, every two female witnesses equal one male witness. Article 198 of
the new Penal Code provides:
“The standard of testimony in all crimes is the testimony of two men,
except in zina (illicit sexual intercourse), livat (homosexual act between
men), tafkhiz (homosexual act between men without penetration), and mosaheqeh
(homosexual act between women) which shall be proven by the testimony of four
men. Zina may [also] be proven by the testimony of two men and four women,
except in cases where zina is punishable by execution or stoning in which then
the testimony of at least three men and two women is required. In such cases,
if two men and four women give testimony, it is only punishable by flogging.
Bodily injuries, which require diya (blood money), may also be proven by the
testimony of one man and two women.”
It might be asserted that exempting women from testifying in some criminal
cases is for their own benefit. Moreover, giving testimony is not a right but a
duty and therefore exempting women from a difficult burden should not be
regarded as a violation of human rights. However, this response, which has been
employed as a routine response of supporters of Islamic Shari’a, is misleading
and distractive. Pro-women’s rights activists do not pursue the “right” to
equal testimony, but rather object to the discriminatory nature of the current
rules. What makes this a gender inequality and a concern for women’s rights
activists is the underlying thinking, principally that women are less reliable
than men.
The rule concerning the disparate weight of witness testimony between
genders has its roots in one of the most controversial parts of the Islamic
Shari’a that views women as inferior to men in respect to mental abilities.
According to this traditional perception, women are not reasonable beings but
rather consumed with emotion and with a tendency for forgetfulness. Therefore,
the view is that their testimonies should not be given full value and should
not be accepted in all cases but only in less important cases and only when
accompanied by the testimonies of men. What must be challenged is this
discriminatory view towards women that also deprives women from taking up some
decision making positions such as working as a judge.
Hijab is a generic term for the proper Islamic dress for women.
According to Islamic sources, women are required to cover their whole bodies
with the exception of their face and their hands from the wrist and their feet
from the ankle. They are allowed to uncover their head to a certain group of
male family members called mahram including their father, grandfather,
brother, and of course their husband. Men are only required to cover their
private areas, although social norms require more.
When Reza Shah Pahlavi came to power in 1926, he aimed to lead Iran towards
modernity in the twentieth century by ushering in industrial, cultural and
social changes and progress. Reza Shah attempted to implement “Western” values,
inter alia, by mandating Western-style dress. In 1936, he specifically deemed
veiling to be against the law.[32]
This measure was opposed by the religious sectors of the public and resulted in
many clashes. After the abdication of Reza Shah in 1942, the compulsory ban on hijab
was abandoned in practice. Once Islamists came to power following the
Revolution in 1979, the laws on veiling moved to the other extreme with the
enforcement of compulsory hijab. Although Ayatollah Khomeini, the
eventual leader of the Revolution and later the Islamic Republic, first denied
that Islamic hijab would be compulsory, it eventually became mandatory
and the penal Code prescribed a severe punishment (seventy lashes) for
violating Islamic hijab. Flogging was later replaced by more lenient
punishments: including imprisonment and fines.
Article 683- “Those women that appear in the streets and public places
without the Islamic hijab, shall be sentenced from ten days to two months’
imprisonment or fined from fifty thousand to five hundred thousand Rials.
There is no similar rule for men in the Penal Code and the rule clearly
denies women the freedom to dress as they see fit. Moreover, there are no
certain rules and measures for these restrictions; instead, its implementation
has been left to the discretion of law enforcement forces, which are not
limited to official police officers but also include numerous fanatical Basij
forces. These forces seize every opportunity to remind women of the
implications of violating the hijab. For example, during holy periods,
such as Moharram and Ramadan, checks on violations of the hijab
increase[33]
and special units stop at busy places or patrol the streets in search of
violations. The interference with a woman’s appearance, including her hair,
makeup and clothing, can sometimes border on the ridiculous. For instance in
2007, the Chief Commander of Police for greater Tehran announced that women
were not allowed to wear long boots over their trousers, and if seen doing so
they would be arrested.[34]
In other areas, the compulsory hijab and Islamic teaching that bans
the mixing of the sexes has resulted in gender segregation in the educational
system. Gender segregation was first enforced in all primary and secondary
schools following the 1979 Revolution. However, in universities, male and
female students still attended classes together but sat in separate rows of
chairs. In the 1980s, attempts were made to separate male and female students
in several universities around the country. Curtains and room dividers were
placed in classrooms but were taken away without explanation days later.[35]
The aim to completely segregate students by gender, however, has not been
abandoned since then. In the most recent phase in 2011, the Science Minister
Kamran Daneshjoo started a new wave of Islamization of Universities and
promised to establish more single-sex universities. He stressed that “women’s
colleges will be established in every province, to keep Islamic customs and
limits, and the Islamization of universities will go much further than this.”
He added that students have a right to gender-segregated universities, and
establishing such colleges is his ministry’s top priority.[36]
Advocates of gender segregation in universities say the mixture of male and
female students in universities “causes moral corruption” and
distracts students from their studies. They are also troubled that more women
are attending university than men. For more than a decade girls have surpassed
boys in the national university entrance exams at the undergraduate level. In
2009, 62.7 per cent of students who passed exams and enrolled in undergraduate
courses were women and only 37.3 per cent were men. The IRI has been taking
measures to change this disparity, such as limiting women’s admission to
certain courses. Iran University of Science and Technology, for instance, is
not admitting women in any but two of its post-graduate courses this year.
Several courses, such as mining engineering or gas industries, have been off the
list of choices for women for many years.[37]
In August 2012, news spread that 36 Iranian universities banned women from
77 critical fields of study including engineering, education, and counseling.[38]
The news garnered serious concern among women’s rights activists and led to
many campaigns and protests. It also ignited a strong international response,
with even the spokesperson for the US State Department issuing a statement to
announce concerns about the significant regression in educational rights for
women in Iran.[39]
However, the IRI Assessment Organization (Sazman-e-Sanjesh), the body
responsible for holding the entrance exams of State universities, proclaimed
that only 77 “courses” out of a total of 22,800 courses from all over the
country (so a total of roughly % 0.3) had become exclusive for male students in
the current year; and the news about banning women from 77 “fields of study”
was a misunderstanding by news agencies. It concluded that these changes would
not affect the rate of admission of female students and the total seats
available for male and female students were unchanged in comparison to the
previous year.[40]
It was also officially announced that this year 60.24 percent of successful
candidates of the entrance exam were women.[41]
The IRI official reports, nevertheless, were rejected by some rights groups.
For instance, a report submitted to the UN Working Group on Discrimination
against Women in Law and Practice, suggested that women are actually banned
from studying in 14 fields of higher education and severely restricted from
admission in 241 additional fields.[42]
Family law covers a significant part of women’s lives and has a critical
impact on their rights. Human rights activists have long recognized women’s
vulnerability under Iranian family law and urged the reform of the
discriminatory laws and unjust treatment of women in Iran. As discussed in
previous sections of this commentary, major changes were introduced in the area
of family law under Mohammad Reza Shah with the passage of the Family
Protection Law of 1967 (significantly amended in 1975) which abolished
extra-judicial divorce, required judicial permission for polygamy and only for
limited circumstances, and established special Family Courts. When the 1979
revolution brought an end to the Pahlavi dynasty (1925-79), the Supreme
Judicial Council issued a proclamation directing courts that all un-Islamic
legislation was suspended. The Council was given remit to revise all existing
laws to Islamize the legal system, with Ayatollah Khomeini’s fatwas
serving as ‘transitional laws’.[43]
However, according to the Constitution, the Guardian Council retained the right
to revise the laws. Furthermore, special courts established by the Family
Protection Act of 1967 were dissolved after the revolution.[44]
This chapter analyzes the development of family law in Iran, and examines the
unequal position of women and discriminatory laws regarding marriage and
divorce.
Under Islamic Shari’a marriage is not considered as a sacrament but defined
as a civil contract between a man and his wife, patterned by the logic of a
contract of sale. The three elements of an Islamic marriage contract constitute
(1) the offer of marriage made by the woman or her guardian, (2) the acceptance
by the man, and (3) mahr (or mahriyeh i.e. the marriage gift) which is
money or a valuable item that the husband pays or pledges to pay the wife. The
contract makes sexual relations between a man and woman lawful, and establishes
a set of default rights and duties for each party, some supported by legal
force, others by moral sanction.[45]
However, before this commentary turns to a discussion of to the rights and
duties of parties to a marriage, issues including the minimum age for marriage,
freedom of marriage and polygamy need to be discussed.
2.1.1. Minimum Age for
Marriage
As discussed earlier, after the 1979 Revolution, the Guardian Council was
established and, in addition to revising the new laws passed by the Parliament,
the Council began to revise any existing laws found to be in contradiction with
Shari’a law. Thus, for example, Article 1041 of the Civil Code, which
set a minimum age for marriage at 15 years old for girls and 18 years old for
boys,[46]
was amended in l982 to prohibit marriage prior to the age of puberty under
Shari’a, i.e. 9 lunar years (8 years and 9 months) for girls and 15 lunar years
(14 years and 7 months) for boys. In addition, the amended law gave the right
to the natural guardian (vali)[47]
to marry at his own discretion for and on behalf of the child even before the
age of puberty. Legalizing marriage for 8 year and 9 month old girls and
removing the absolute minimum age of marriage could result in an increasing
number of the cases of forced marriage, which, could only be considered as a
serious step backwards for women’s rights in Iran. Article 1041 (29/12/1982)
read:
“Marriage before the age of puberty is prohibited.
Note- Marriage before puberty by the permission of the natural guardian
(vali) is valid subject to taking the child’s best interest into consideration.”
In 2002, a number of legislative initiatives seeking to bring Iranian laws
into greater conformity with human rights standards were either proposed or
passed. Several articles of the Civil Code were among those targeted for
revision. Although the conservative Guardian Council opposed the changes, the
Expediency Council, a constitutional body that, inter alia, mediates
between the Parliament and the Guardian Council, made the changes happen.
Hence, when the majority-reformist Parliament passed legislation that increased
the age of marriage for girls from 9 to 15 years of age, the Guardian Council
rejected the resolution on the grounds that it contravened Islamic law.
However, after the MPs maintained their opinion and refused to accept the decision
of the Guardian Council, the Bill was sent to the Expediency Council and the
Council decided to increase the age of marriage for girls to 13 years of age.
It also made the intervention of the court mandatory for marriages before the
minimum age. This was not an ideal outcome, but it was considered by legal
authors as a human rights victory.[48]
Article 1041 (22/6/2002), which is still in force, provides:
“Marriage of girls before reaching the age of 13 full solar years and
boys before reaching the age of 15 full solar years is subject to the
permission of the Guardian and on condition of taking the child’s best interest
into consideration and approval of the relevant court.”
The violation of this article has criminal consequences as well. Article 646
of the former Penal Code provides:
“Marriage before puberty without the permission of the guardian is
forbidden. If a man violates Article 1041 of the Civil Code and marries a girl
before she reaches the age of puberty, he shall be sentenced to six months to
two years’ ta’zir imprisonment.”
There are not many official statistics published about marriages before the
minimum age. However, on September 2, 2012, the Chief of the Personal Status
Registration Office of the province of Tehran revealed that, in the province of
Tehran in the Iranian year 1390 (2010-11), 75 boys and girls younger than 10
years old were married. Also, in the same period, 3,929 boys and girls between
the ages of 10 to 14 years old were married.[49]
Although there is no detailed information about the age gap between these child
brides and grooms with their married parties, it is possible that a number of
these girls are married to men much older than them. Moreover, knowing that in
some other provinces this practice is more common, it is clear that the total
number of such marriages throughout the country is much higher.
When the Advisor of the Minister of Justice was questioned by a journalist
about marriages of children who are less than ten years of age, she asserted
that “marriage is a personal issue and the State and government may not
intervene in it”.[50]
In a similar stance, the IRI General Attorney, Mohseni Ejei, confirmed that
there was no legal prohibition on such marriages. He asserted that “there might
be marriages just for the families to become mahram[51]
to each other, but there is no sexual relation”.[52]
This is while, according to an infamous opinion by Ayatollah Khomeini in his
fiqh book Tahrir-al-Vasileh, which has long been criticized
by his opposition and denied or poorly justified by his supporters, taking
sexual pleasures other than sexual intercourse (penetration) with a minor girl
is allowed:
“Anybody who has a wife who is less than nine years of age is not
allowed to have sexual intercourse with her whether she is his permanent or
temporary wife; however taking other forms of sexual pleasures such as touching
with lust, hugging, and tafkhiz (rubbing penis between the buttocks and thighs)
are permitted, even if she is a nursing baby.”[53]
In the end, it must be noted that, the best interest of children mandates
that they never marry prior to reaching the age of maturity. It goes against
the personal freedom of an individual for someone else to enter them into a
marriage before the mental and physical abilities of the former are developed.
Taking sexual pleasure from children, before they develop into an adult, is a
clear instance of child abuse and must be strictly banned. The modern world
cannot endorse Bedouin and tribal traditions that condone such behavior, nor
immoral religious opinions that take this position. Child marriage, as well as
the sexual abuse of children under the cover of marriage, must be ended without
any reservation. Therefore, like what existed prior to the 1979 Revolution[54],
there must be an absolute minimum age for marriage before which no child can
marry, regardless of the permission of their guardians or the court.
As discussed above, the natural guardian (vali-ye-qahri: father or
paternal grandfather) has the right to marry for and on behalf of his
minor daughter, in compulsory marriage. While in other Islamic schools the
natural guardian has the right to marry ev
Categories: Releases
