PROFESSOR GABRIEL SAWMA
Prior to the advent of the Islamic Revolution of 1979 in Iran, family laws under the Pahlavi Dynasty (1925-79) witnessed major changes in that field, the Family protection Law of 1967 and its amendments in 1975 abolished extrajudicial divorce, instituted the wife’s right to divorce under certain conditions, limited polygamy by making it subject to judicial approval, and authorized the courts to rule on arrangements related to the maintenance of a divorced couple’s children.
In theory, the reforms under the Pahlavi rule were more advanced than the previous Iranian family laws. For example the reforms made it harder for a man to abandon his wife and prevented him from threatening her with the possibility of a sudden and rapid divorce and the loss of custody of her children. Although the new reforms embedded in the Family Protection Law remained partially based on the Shi’i Ja’fari School of law, for instance by accepting all the conditions that entitled either party to obtain a divorce, such as insanity and other disabling illnesses. These conditions were expanded and included in Article 11 an important change in the event a husband married a second wife without the consent of the first one, the latter could apply for divorce:
(1) If either spouse received a prison sentence of five or more years.
(2) A dangerous addiction on the part of either spouse which could, in the opinion of the court, be hazardous to the welfare of the family.
(3) Marriage of the husband to another woman without the consent of his first wife.
(4) When either partner abandoned the family life. This was subject to the court’s confirmation.
(5) If a husband or wife has, on account of the commission of a crime repugnant to the position and dignity of the family of the other party, been, according to the final judgment of a court of law, found guilty. The question whether or not the crime is repugnant to the position and dignity of the other party shall be determined by the court after taking into consideration the position and circumstances of both the parties as well as the custom and other standards.
Article 14 of the Family Protection Law requires the husband to get permission from the judge in order to marry a second wife, it reads:
When a man, already having a wife, desires to marry another woman, he shall obtain permission from the court of law. The court shall give the permission only when it has taken the necessary steps, and, if possible, has made an inquiry from the present wife of the man, in order to assure the financial potentiality and ability of the man for doing justice [to both wives].
In case the man marries [another woman] without obtaining the due permission from the court, he shall be liable for the punishment provided in section 5 of the Marriage Act f 1310-16[iii] (1931-37 A.D.)
The significance of the Family Protection Law of 1967 was threefold. First, it curbed the unilateral privilege of men regarding divorce and polygamy. No longer could a man divorce his wife readily or in absentia. Nor could he marry a second wife without the permission of the court. It was mandatory for both married couple to apply to a court of law for a certificate of non-reconciliation before a divorce would be granted. Second, a woman could petition for divorce under certain condition regardless of whether the privilege of acting as her husband’s agent was stipulated in the marriage contract. Third, parent had to make arrangements for adequate care of the children before divorce could be granted.
In practice, and according to the Islamic law, a man could always marry a second wife, provided he had the financial means to do so, while a woman could only file a petition for a judicial certificate allowing her to annul the marriage.
The reform also stated that “a husband may, with the approval of the court, prevent his wife from an occupation which is repugnant to the interest of his or her family or position” (Article 15).
The Family Law was consistent with the more tolerant reading of Islam and lifting the inequity imposed on women, protecting children’s rights, and safeguarding men’s dignity. Husband and wife shared joint responsibility for the family the adult woman was entitled to self-guardianship, rather than that of a male family member, and had the freedom to exercise it independently and the minimum age of marriage was increased to eighteen for both men and women.
As to the mut’a marriages, the Family Protection Law did not touch that institution, which allows a man to contract a temporary marriage according to Shi’a law.
In general, while the Family Protection Law of 1967 constituted an important step toward reducing discrimination against women, its impact was limited in its scope, and soon the Law was replaced aftermath of the Islamic Revolution of 1979.
THE IMPACT OF ISLAMIC REVOLUTION ON IRANIAN FAMILY LAW
As soon as Ayatollah Ruhollah Khomeni took the power in 1979, the Family Protection Law was suspended along with other laws that were considered ‘un-Islamic’. On December 1979, the Revolution adopted a new Constitution based on Islamic shari’a. Article 19 declares that “All people of Iran, whatever the ethnic group or tribe to which they belong, enjoy equal rights and color, race, language, and the like, do[es] not bestow any privilege”.
Article 21 deals exclusively with women, prescribing, that the government must “create a favorable environment for the restoration of [women’s rights; respect mothers, particularly during pregnancy and childbearing; support widows, aged women and women without support and award guardianship of children to worthy mothers, in order to protect the interests of the children, in the absence of a legal guardian”. This notion is also stated in the preamble of the Constitution where it reads:
Women were drawn away from the family unit and the condition of being a ‘mere thing’, or ‘being a mere tool for works’ in the service of consumerism and exploitation. Re-assumption of the task of bringing up religiously minded men and women, ready to work and fight together in life’s fields of activity, is a serious and precious duty of motherhood.
It is important to note that the Revolution granted women ‘intellectual rights’ unseen before in the history of Iran. Both the preamble and the first paragraph of Article 21 underlined the need to grant women for their active part in the Revolution their ‘intellectual rights.’ This made the government of Iran embark on an extensive policy for educating women, a policy that resulted in one of the highest levels of female education in the entire region.
This policy, however, contrasted with the new Civil Code of 1979, which penalized women by authorizing a minimum marriage age of nine years for girls the marriage of virgin women required the consent of their fathers; polygamy was reinstated without any legal restrains; commanded a wife’s obedience to her husband as a necessary condition in order to obtain maintenance; allowed mut’a marriage as a recognized institution (Articles 1075-77); children were placed in the custody of the father in the event of divorce because “any child born during married life belongs to the husband” (Article 1158). And, in compliance with Qur’anic provisions, Article 1133 of the Civil Code stated that “A husband can repudiate his wife any time he wishes.” Additionally, the Special Civil Courts Act Article 3/2 provides that:
If a husband wishes a divorce in accordance with Article 1133 of the Civil Code, the court must first refer the case to arbitration in conformity with the Holy verse (i.e. the Qur’an): ‘If you fear a breach between the two, bring forth an arbiter from his people and from her people an arbiter, if they desire to set things right; God will compose their differences; surely God is all-knowing, all-aware.’ Permission to divorce shall be granted to the husband, if reconciliation between the spouses has not materialized.
This means that, in compliance with the Qur’an, a husband is guaranteed divorce without having to provide any excuse for it, but there has to be a process of arbitration. The law requires that process to be handled by a judge. Article 1109 of the Civil Code allows a husband to invoke his wife’s disobedience (nushuz) in order to avoid paying her the maintenance due during the idda.
MORE POST REVOLUTION CHANGES TO FAMILY LAW
As we noticed in the previous paragraph, the new law was more adaptive to the Qur’an than the pre-Revolution Family Protection Law, and it took away some of the gains that women were able to achieve under the Pahlavi rule. But the rapid changes in the social and educational aspects of the Iranian society after the Revolution, followed by the Iran-Iraq war (1980-88), brought a gradual modification to the laws. The war forced women, to leave their homes and seek work outside. The period also witnessed a rise in women’s’ high education and made them compete for better positions in the job market. These two factors pushed women to delay their marriage and have fewer children. United Nation’s Population Division of the Department of Economic and Social Affairs says that between 1975 and 1980, the total fertility number was 6.5. The projected level for Iran’s 2005 to 2010 birth rate is fewer than two.
The competition in job opportunities in Iran created a conflict in the sphere of family. Women became influential in the public arena and started competing with men in the work force, and female organization embarked on efforts to amend the family law. In early 1982, and under pressure, the Iranian Parliament (Majles) added two provisions to the marriage contract first; the divorce wife was given the right to claim half of the wealth acquired during marriage, as long as the divorce was not deemed her fault. It delegates the right of divorce to the wife, through the intermediary of the court, where certain conditions occurs.
Articles 181 and 1883 of the Civil Code stated that the children of martyrs were to be under the paternal grandfather’s custody. This meant that the payment for the care of the orphans made by the Martyr’s Foundation also went to them. Under pressure from women organizations in Iran, the parliament passed a bill transferring the right of guardianship and tutorship of the martyr’s minors to their mothers, even after a mother’s remarriage.
In 1987, the Iranian parliament approved more benefits for widows and minors of the martyrs mainly better pensions for them, which is the equivalent of the late husband’s last salary. The Martyr’s Foundation also contributed with several benefits, such as free housing and free school tuition.
In 1989 the parliament established a new procedure for men who divorce their wives, the civil courts which have the right to approve a divorce. Thus, in order to divorce, a man had to produce good reasons and the court has the authority to consider those reasons as sufficient and may refuse the divorce. But this seems to violate the Qur’anic provision, which allows a man to divorce his wife, anytime and in any place of his choosing.
Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children, Hindu marital disputes in U.S. courts, and Iran divorce in USA.
· Professor of Middle East Constitutional and Islamic law,
· Expert Consultant on Islamic divorce in US Courts and Canada,
· Expert Consultant on Hindu divorce in U.S. courts,
· Expert Consultant on Iranian Shi’a divorce in USA,
· Expert Consultant on Islamic finance.
Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar Association and the American Bar Association.
Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S., Hindu divorces, and Iranian marital conflicts.
Taught Islamic Finance for MBA program at the University of Liverpool, United Kingdom.
Travelled extensively to: Saudi Arabia, Kuwait, Bahrain, Qatar, Egypt, Sudan, the United Arab Emirates, Jordan, Syria and Palestine.
Wrote many articles on Islamic and Hindu divorce in USA, custody of children in the Middle East and Central Asia; and on abduction of children to Muslim countries;
Speaks, reads and writes several languages including Arabic, English, French and others.
Tel. (609) 915-2237
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