Since the establishment of the Islamic Republic, personal status law — governing marriage, divorce and custody — has become one of the most politically salient issues in Iranian society. Within weeks of the establishment of the Islamic Republic, the Justice Ministry was notified to cancel all laws that were deemed contradictory to shari‘a. Consequently the Family Protection Act was immediately annulled, reversing the limited reforms that had previously benefited women. Since that time, arbitrary divorce, polygyny and temporary marriage — all of which had been outlawed or restricted by the Shah’s regime — have made a triumphant return, turning the lives of many women upside down. Arbitrary divorce has caused a dramatic increase in the divorce rate among young as well as middle-aged women. As a result of the cancellation of Family Protection Law, “martyrs’ widows” — women whose husbands died in the Iran-Iraq war — lost guardianship as well as custody of their children. This outraged martyrs’ widows as well as the rest of the nation.
Despite the emphasis of the Islamic Republic on family stability and marriage as pillars of Islamic society, women quickly discovered that these laws have only increased the instability of marriage. Many Iranian women, politicized by the revolution, have remained in the political arena as active supporters or critics of the regime, ostensibly voicing their criticisms of a society thought to be moving toward “Islamic justice.” Women remain an important political constituency of the regime; as such the government has been forced to consider some of their demands and amend the family code. It was in this context that I spoke with Mehranguiz Kar, an outspoken Iranian feminist lawyer and writer, in Tehran in May 1995.
Why has personal status law in Iran become so politicized and the subject of so much discussion?
Women from many ideological persuasions and worldviews unite on this issue because many aspects of personal status law — with a very restricted and patriarchal interpretation of women’s rights in “Islam” — deny the constitutional and civil rights of women. This body of law contributes most to making women second-class citizens in their own country. In Iran, for example, unless a woman explicitly reserves these rights in her marriage contract, she has no say in where the family will live or even in whether or not she will have a career. Likewise, a woman is not permitted to legally choose her first husband! Regardless of her age, a woman must have her marriage endorsed by her father or paternal kin for it to be legal. All aspects of women’s lives are deeply affected by personal status law. Unless we bring about fair, balanced and non-discriminatory laws in this field, women’s gains in all other areas of law will be diminished if not nullified completely.
What was the first indication that the regime was responding to public concerns about family and personal status law?
In Iran, as in most other countries in the Middle East, custody of children was almost always automatically given to the father or the agnate kin in the event of divorce, particularly with other children. This often forces women who do not want to lose their children to remain in abusive marriages or to give up their limited rights, such as mehr, [1] in exchange for custody of the children. The Family Protection Act of 1967 removed the automatic custody right of fathers, and permitted the court to determine the best interests of the child. Given the general belief in the significant role of mothers, women usually retained custody of their children, as least until they were remarried. However, even in these situations, guardianship remained with the father or the agnate kin, which meant that the father retained significant rights: he could marry of daughters before the age of maturity, which was 18, and the custodial mother could not take children out of the country without permission from him or the courts. The Family Protection Act had also established limited visiting rights for non-custodial mothers. This was important, since the lack of legal visitation rights for women was frequently the source of torment for mothers denied custody of their children.
The annulment of the Family Protection Act reversed even these limited rights. As the death toll of the Iran-Iraq war increased, the impact of this became more evident. Many young women who had lost their husbands in the war also lost custody of their children to grandfathers or other agnate kin, whose incentive was heightened by government pensions given to the children of martyrs. The plight of these women, taken up by the media, became an embarrassment for the regime, which, making the creation of a just Islamic society its slogan, had posed as the government of the oppressed. It also contradicted the hadith that motherhood was the highest and most desirable status for women. [2] A considerable number of these women had become very politicized. The government, which had benefited from their unquestioned support and trust, now faced their demands for justice. The Martyrs’ Foundation, which does advocacy work for the families, widows and children of the war dead, pushed for amendments to the law. Finally, Ayatollah Khomeini issued a statement which returned custody (though not guardianship) to the martyrs’ widows, even in the event of remarriage.
Although a limited gain, pertaining only to women whose husbands had died in the war, it set an important precedent. This change in the government’s position indicates that many patriarchal interpretations, previously presented as written in stone, can be altered if the political constituency demanding change has enough power. It also strengthens legal recognition of the mother-child relationship, which is traditionally seen as less significant than the relationship with paternal kin. Finally, it sends a signal to family court judges, who enjoy considerable discretionary power, that they can be more lenient toward mothers on issues of custody.
Have there been other changes in family law resulting from women’s demands?
Men’s right to arbitrary divorce, and the fact that they did not have to register these divorces, created havoc in the lives of many women — particularly middle-aged women who least expected to be divorced, since most divorces take place within the first few years of marriage. The cases of these women, who often lack marketable skills and financial means, exposed the regime to criticism, since the honorable treatment of women was an issue on which the Islamic Revolution had campaigned. The application of “Islamic” law was to bring about family stability, not turn women out on the street after years of marriage with no legal or social protection.
In response, women flooded newspapers and magazines with stories of injustices done to them in the Islamic courts. Muslim women activists and traditional women, who had greater access to the institutions of the government than secular women, used their position to appeal directly to the public and to higher authorities for justice. In the late 1980s, recognizing the crisis, the government modified the marriage contract to replace legal rights that had been taken away with contractual ones. In the new standard contract, women are given limited divorce rights, for instance, in the event that the husband takes a second wife. The most significant and controversial part of the new marriage contract is the equal division of property accumulated during the marriage, excluding inheritances and the wife’s mehr. While there is no automatic pooling of wealth in Muslim marriages, there has never been a religious barrier against putting a clause in the marriage contract to protect women and give them some financial support in the case of divorce. In practice, however, many men do not agree to this clause and it is very often crossed out. Even when the husband does agree to the division of property, he may transfer the wealth to a member of his family prior to the divorce. Nonetheless, because these conditions are now printed on the standard marriage contract, they make marriage negotiations easier for the bride, since if the groom disagrees with any of the clauses he must negotiate their removal.
Although the new marriage contract falls short of women’s expectations, and in most aspects is inferior to the Family Protection Act of 1967, it opens new possibilities by reviving the marriage contract which has many precedents in Muslim traditions. The marriage contract of Zaynab, the Prophet’s granddaughter, is an excellent example. Many feminists and Muslim women activists in Iran and elsewhere in the Muslim world believe that until personal status law can be reformed — which may be a long time — marriage contracts are one way to bring marriage customs and laws in line with women’s demands. Nonetheless, we are conscious that, at best, the marriage contract should be only one of many tools for achieving social change and improvements in the position of women in marriage and society.
Since the introduction of the new standard marriage contract, the government has introduced changes in divorce procedure, specifically “wages for housework.” How did this happen?
Men’s arbitrary divorce rights — not really affected by the new standard marriage contract — remained a major source of dissatisfaction for women. In December 1991, the Iranian government finally passed the ujrat-e mesel or wages for housework laws. While men and women must get the court’s permission before pronouncing and registering their divorce, the law does not limit men’s right to divorce — if a man cannot be persuaded to continue with the marriage, the court must permit the divorce. But the state has tried to introduce some fairness into divorce proceedings. If the court decides that the wife has performed her wifely duty towards her husband, at her request, the court can rule that the husband must pay her for labor during the years of their marriage. The husband can divorce her only after payment of this sum and any other financial obligation he may have toward her. This law is meant to protect women who were married before the introduction of the standard marriage contract, as well as women who agreed to cross out the contract’s division of property clause.
This change was the result of a huge lobbying effort by women activists. The wages for housework laws are not in conflict with the Islamic program of the regime, since according to Islam women do not have to work in their husband’s home; they are even entitled to receive compensation for breastfeeding their children. Since all women work and manage their home they should be entitled to the fruits of their labor in a just Islamic society. But even though the wages for housework law does not contradict the civil and constitutional codes — the foundation of all other laws in the country — the law has been criticized by many members of parliament and religious leaders.
How do the courts decide a women’s housework wages?
Unfortunately, there are no guidelines for the judges. Individual judges decide each case on the basis of their own opinions and worldviews, taking into consideration the financial position of the husband and the length of the marriage. The courts have not consulted experts to help them decide on the sum of the compensation for women. As the judges are exclusively male, women have no voice at the decision-making level, save the occasional judge who is concerned with justice.
Taking the difficulty of its application into consideration, do you feel that this law is a gain for women?
Of course. While its application is problematic and sporadic, and it does not remove the fundamental inequality of women before the law, I see it as a positive gain for women. It indicates that legislators acknowledge there are fundamental shortcomings in the present laws concerning women. Like many other changes, it proves that legislators and the government are open to new initiatives put forward by women who are an important constituency and a social and political force.
Do you feel that these legal changes will have an impact in Muslim societies outside Iran?
I would like to say yes. After a conservative and limited move toward secularism, Iran returned to religious law, and codified laws that had previously been fluid and adaptable to different situations. This created social hardship as well as political liability for the regime. Given the recent tendency to use religion as a platform to oppose corrupt and dictatorial regimes, I hope that the experience of Iran and Iranian women will offer some guidance in the search for alternatives. Other Muslim societies might avoid the social and political pain that has occurred in Iran because of the hasty dismissal of legal reforms, particularly those that affect women’s lives. A woman-centered interpretation of religious law should be considered not as an alternative to secular and democratic demands but as a component of more holistic social change.
Endnotes
[1] Mehr is the sum of money or real estate that husbands pledge to the bride at the time of marriage.
[2] The Prophet was asked “Who is most deserving of kindness?” He answered, “Your mother.” The questioner asked, “After her, then who?” Again he replied, “Your mother.” The questioner then asked, “After her, then who?“ He replied, “Your mother. Then your father.“
