Dossier 14-15: Women in Iranian Civil Law 1905-1995

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Only the blind overlook the worsening condition of women under the Islamic regime. The separation of religion and state is incomplete until the Iranian Civil Code is totally secularised.

The facts are more or less known: women are legally barred from governing, acting as judges and executive posts in politics; forbidden from taking part in many social and economic activities; barred or discouraged from many jobs.

With a few exceptions the Islamic state - the largest employer – gives employment priority to men, excludes women from much of art and virtually all of sport; deprives them from higher education in practice by pushing them into legalised premature marriage; and denied them the right to even chose the colour of their veil.

In civil law a woman is officially a second class citizen - and the few reforms introduced in 1968 have been withdrawn. Gender inequalities have been introduced into the Criminal Code such that women have greater punishment for many similar crimes than men. Less rights on one side and more punishment on the other correctly describes the algebraic "equality" of sexes under Islamic regime.

Shah and Sharia

In this article we wish to dig deeper and look at the place of women in Iranian civil law since the latter was introduced after the Constitutional Revolution of 1905. We believe that the answer to the question of the inequality of women in Iran, and even broader issues like how to evaluate the real democratic potentials of socio-political currents with claims on Iran of today and tomorrow, will be uncovered by similar analyses which take the much broader perspective.

The Civil Code of the Islamic regime, save for some important changes, was taken over intact from the previous regime. This apparent anomaly has a simple explanation: civil law, and in particular the laws relating to ownership and personal affairs, were originally written on the basis of Sharia (religious) law under the supervision of senior clerics. Unsurprisingly, therefore, the family order these laws represent was lovingly and painstakingly extracted from the yellowing pages of religious texts written several centuries ago. The debt to these texts extends to preserving their archaic language - which makes it particularly difficult to translate. The role of women in the Civil Code is best observed in the laws relating to inheritance, marriage and divorce. The Code defines four "means of gaining ownership": revitalising barren land and taking possession of objects belonging to no one; contracts and commitments; obtaining the right of pre-emption; inheritance (Article 140: Book 2). Inheritance is the only real means for women to come to ownership. The others are closed to her, since any wealth, even if acquired through the labour of women, belongs to the family and hence is the property of the head of the family: the father.

Let us examine how this unique source of property and wealth fares with regards to women.

Inheritance: sexual apartheid

The share of the mother and grandmother is always half, or less, than the father and grandfather:

Article 906: If the deceased has no offspring of any kind, the whole inheritance goes to the parents. If both parents are alive the mother gets 1/3 and the father 2/3. If the mother has a hojab(a relative who reduced her share, Article 886) she receives 1/6th, the remainder going to the father.

Article 923: Where there are a number of grandparents, if they are all on the father's side, the male get twice the female; and if all on the mother's side it will be divided equally. If the deceased has brothers and sisters, although they will not inherit, this will reduce the share of the mother (who now has a hojab) to 1/6.

The sister's share is half that of the brother

Article 920: If the inheritors of the deceased are brothers and sisters of the parents or of the father the share of the male is twice that of the female.

The wife's share is half that of the husband

Article 900: the share of the wife, or wives, on the death of the husband in a childless marriage is 1/4, (the husband's share in similar circumstances is one half: Article 899).

Article 887: If the [deceased] wife had children the husband's share is reduced from 1/2 to 1/4 and if the [deceased] husband has children the wife's share is reduced from 1/4 to 1/8.

Article 946: The husband can inherit from all his wife's possessions but the wife only from (a) any moveable possession (b) houses and trees. (ie the wife cannot inherit land, cattle, water and other means of production).

Article 947: The wife inherits the price of trees and houses not the actual. The valuation is made on the assumption of the right of the trees or buildings to remain standing. (The women will have no share in the legacy if the building or trees have no right to remain and have to be destroyed).

Article 943: In case of multiple wives, the share of the wife is divided equally between the wives and is reduced to 1/4, 1/8, 1/16 depending on the number.

Article 949: When there are no legatees other than the spouse, the husband inherits the whole of his wife's estate, while the wife inherits half the husband's estate, the remainder of the legacy is dealt with as in Article 866 [given over to the judge].

Inheritance by the woman does not arise from her role in the family but is payment for sexual favours.

Article 945: If a man is ill when he marries and dies without consummating the marriage, the woman will inherit nothing, but she will inherit if he had entered her, or if he dies after recovery from his illness.

The husband inherits all his wife(s) wealth on her death. The legal basis for this is that on marriage wives become the propertyof the family. The husband's derives his wealth, which is synonymous with the wealth of the family, partly through inheritance, and partly through the labour of members of the family including the women. Yet when it comes to dividing up this wealth the wife cannot take more than a clearly defined share of this wealth, even when she is the sole inheritor. A wife is only a limited inheritor.

The daughter inherits half or less than the son

Article 907: In case of multiple children the male inherits twice the female.

Article 911: Between grandchildren the legacy is divided in the ratio of 1:3 between male and female.

Article 899: If the daughter is the only child she inherits half the estate [if the only child is a son his inheritance is not fixed. Deducting the fixed share (farz) of the parents (1/3), he inherits the remaining 2/3)].

Article 902: In the absence of a son, if there are two or more daughters they take 2/3 of the legacy [ie two or more girls are equal to one boy].

If inheritance laws define a system, the family order in Iran is defended by the inheritance laws which are focused on the male and defined by blood linkage. In Iran of today, and yesterday, these laws are rooted on relations between two completely different and unequal genders which cannot be merged in any way - there operates a total legal sexual apartheid.

Proposing, dowry

A woman, regardless of age, and particularly if a virgin, has not the right to chose her husband except in exceptional circumstances.

Article 1034: It is possible to seek the hand in marriage of any woman free of any obstacle to marriage [ie the choosing of a marriage partner is a male prerogative].

Article 1043: The marriage of a girl, even if over 18 years, is dependent on the permission of the father or paternal grandfather. If the father or the father's father refuse this permission without an acceptable reason, the girl, by introducing the man she wishes to marry, and the conditions of marriage and dowry they had agreed among themselves, can apply to a marriage office. The office can perform the marriage ceremony five days after it had informed the father or paternal grandfather, [what constitutes and who decides on the unacceptable reason is unclear].

Dowry (mahr) promised by the husband to the wife is nothing but a price paid for sexual possession of her body:

Article 1080: Both parties must decide on the amount of mahr.

Article 1082: A woman will gain possession of the mahr on marriage and can do what she will with it.

Article 1085: A wife can refuse to fulfil her duties towards the husband until the mahr is handed over to her - on condition that the mahr is halal (legitimate from a religious angle).

Article 1088: (In a permanent marriage - as district from "temporary marriage" - the amount of mahr is not stated or its absence stipulated) if one of the couple dies before the marriage is consummated the woman is not entitled to any mahr.

Article 1092: If the husband divorces his wife before consuming the marriage she receives half her mahr. If he had already paid more than half the mahr, he can ask her to return the excess either in kind, in cost or symbolically.

Article 1093: If mahr was not stated in the marriage contract, and the husband divorces his wife before consummating the marriage and determining the amount of mahr, she can only claim the mahr due to temporary wives (marh el-mottae'h). If divorce occurs after consummating the marriage she is entitled to marh el-mesl (estimated depending on her social origin).

The relations described in these and similar Articles are those of a commercial transaction with sexual favours as the commodity being exchanged. There are no trace of inter-human relations in these lines.

Marriage and divorce

In return for subsistence she surrenders to her husband her right to home and job.

Article 1106: In a permanent marriage the husband must give subsistence (nafagheh) to his wife. Article 1107 defines this as housing, clothes, food, and furniture in keeping with her stature and includes servants if she is accustomed to these or needs it because of illness or bodily defects.

Article 1114: Unless otherwise specified [in the marriage contract] the wife must live in the house determined by her husband.

Article 1115: The husband can ban his wife from pursuing a trade or industry which conflict with the interests of the family or the station of the woman herself.

A woman sells herself for her mahr and can buy herself back by paying more or less that amount.

Article 1133: A man can divorce his wife any time he wishes.

A women does not have this right except in very exceptional circumstances and with permission from the court. She can incorporate various clauses into the marriage contract which allows her to apply to the court for divorce. (Thus legally she does not have divorce rights - it is a contract with her future husband).

Article 1146: A "compensation divorce" (talagh-e khale') is one when a woman, because of distaste for her husband can obtain divorce in return for money she gives to him, regardless of whether this sum is equal, greater or less than the agreed mahr.

Here the commodity feature of a woman in her relationship with a man is at its most succinct: she has been sold in return for the mahr and can buy herself back by returning (more or less) the same. Moreover, the man is not compelled to divorce her, and is free to choose, his choice being authorised by sharia.

Children

Here too the male dominance is central.

Article 1158: A child born to marriage is the responsibility of the father (provided no less than 6, and no more than 10 months have elapsed since sexual intercourse).

Article 1159: A child born after dissolution of marriage is the responsibility of the father provided the wife has not remarried and the child was born less than 10 months from the divorce (unless it is proven that less than 6, or more than 10 months have elapsed from sexual intercourse to the birth of the child).

Article 1167: A child born from adultery does not belong to the man (that is an illegitimate child has neither a religious nor a legal father. It is stated in another part that such a child will not inherit from the father).

Article 1168: The care of children is both the right and the duty of the parents.

Article 1169: The mother has priority until two years, and for girls seven years, after birth; thereafter fostering is with the father.

Article 1180: An under-age child is under the natural guardianship (velay-at) of the father and the father's father, as is a stunted child or an idiot provided the stunting or idiocy is related to under-age.

Article 1181: Either father or paternal grandfather have the right of guardianship of their children.

Article 1183: The guardian is the legal representative on all matters relating to financial rights, ownership of the ward.

Article 1184: Guardianship will never pass to the mother or the grandmother. If the natural guardian (father or paternal grandfather) does not have the ability to control the wealth of the ward… the court will appoint a just guardian.

Article 1233: Even when there is need to find a carer (ghayem) and not a guardian for "under-age children, idiots, and stunted persons" the mother is not the choice: A wife cannot care for her young children without the permission of the husband.

Thus after the father and his father, the guardianship of under-age children and idiots is given over to the courts and not to the mother unless her husband gives permission.

Article 1251: If an unmarried woman who has been given the right to care for children remarries, even if she is the mother of the wards, she must inform the court within one month. The judge or his representative can, with consideration of the new conditions of the woman, chose a new carer for the children or someone to supervise her care.

Owning the wife

The picture given of women in Iranian civil law, even before the Islamic regime came to power, is thus:

Half a person, traded and owned as a commodity, the exchange value being set by her social standing, at the behest of her father or paternal grandfather. Like any commodity moving from the realm of exchange to the realm of use she comes under the care and use of the husband.

While she remains obedient and fulfils her function she has the right to demand a living standard commensurate with her social standing. She must continue with this service for whatever time her husband wills. When he divorces her she has no other claim on him than the agreed mahr - the rental agreed on the marriage contract. She has no right on the children bar the duty to care for them.

Regardless of how much she gives of herself for the material and spiritual gain of the family, she has but a small and fixed share of the family fortune. On the other hand, the man has total ownership of the women which includes her physical and sexual self (a woman must agree to sexual intercourse whenever her husband wishes while his reciprocal obligation to her is once every four months).

He, as the owner and possessor of the woman, can enjoy all the rights due to any owner of an asset, while any reciprocal demand or wilfulness on her part is taken as disobeying the man, the owner of the household. He can take also into his possession any other woman. The wife functions in effect as the private property of a landowner who can at any moment possess other private lands. In keeping with ownership rights a woman is punishable by law for disobeying the rules of ownership (marriage). He, however, is only punished if he transgresses the ownership right of another man. Otherwise he can do what he pleases provided he performs some trivial acts (temporary marriage needs no more than an agreement between the two parties, the exchange or promise of a gift and the undertaking by the girl not to re-marry for 100 days).

What the Islamic regime added was to make an already unequal relationship even more unequal by removing the reforms introduced through Family Laws of 1958 and 1968: Reducing the age of marriage for women once again to 9, removing the woman's right to divorce in exceptional circumstances, barring women from leaving the house without permission from her husband…

Sharia then and now

It is easy to allow the appalling state of women under the reign of the present regime in Iran to deflect us from appreciating that resuscitating the 1968 Family Protection Law will not end sexual apartheid or the semi-slavery of Iranian women.

The whole legal system underlying the family needs a major overhaul if formal gender equality were to be achieved, and if the political systems, which in different guises, lean on this inequality to sustain the enslavement of both men and women, is to be demolished.

Yet both the possibility and need for fundamental changes in the family law encoded in the Iranian civil code exist today and can be argued for: This order is incompatible with current economic realities. This system is one founded on a father-centred family, an independent economic unit, which sustained a semi-nomadic semi-agricultural society. In this order the legal status of the family derives from its socio-economic role where the father acts as the guarantor of the unity and oneness of the elements of the family, land and other means of production, thereby creating the external conditions which guaranteed the survival and reproduction of the family.

For some time now these condition have disappeared in Iran. The family as an independent unit of production has collapsed and large sections reorganised in new economic units. These new economic units, whether factory, farm or small service enterprises, rely on the free labour of individuals. Gone are any traces of the family in its totality. Exceptions apart, the equality of its components, in the legal-formal sense, have been accepted. In this equality, men and women are unconnected to each other, and as individuals independently enter into exchange or are objects of exchange.

In this new order, the right of being master is not with the father of the family but with the management of the enterprise or institute. The sex of the manager is, in the legal sense, immaterial to the economic unit, and a woman is as free to leave the job as the man, and has as much choice of taking another job - assuming one exists - as her male counterpart.

Of course modern capitalism continues to resurrect and reproduce pre-capitalist modes, alongside modern forms of production. This intermixing of several modes of production is particularly marked in peripheral capitalist states. Among these is the use of domestic labour of various kinds including domestic housework.

Yet, at least for those professing democratic credentials, it would be totally anachronistic to support such archaic forms of exploitation. These persons need to ask themselves how compatible is the existing legal system with this productive and economic unit, and how long is it defensible in the name of cultural, moral and whatever values?

Democracy is impossible to construct on the current civil law. A democratic system, no matter how unradical and irresolute, cannot ignore two principles: that of formal-legal freedom and that of formal-legal equality of all elements of society.

The preservation of sexual, ethnic or religious apartheid, of any second and third class citizenship and the formal and legal acceptance of various forms of slavery have little affinity with democracy. Only a non-democratic, domineering and paternalistic order can be constructed on a system based on male domination. While the psychological, cultural and legal basis of the family is on authority, guardianship and centrality of the father it is not possible to escape a political order dependent on a shah, a velayate faghih (absolute rule of the knowledgeable cleric on civil and political society), a leader, or a further. The removal of the chador (Islamic covering from head to toe) may hand over the rule of the ayatollah to an authoritarian shah, but cannot reorganise a non-democratic political order into a democratic one.

While this legal order persists religion and state remain inseparable. There is no place in a secular state, one where religion and state have been separated, for substituting sharia for law, quotation for rationality and Qur'anic text for decision.

Notwithstanding the belief current among much liberal and even left opinion, to remove the clergy from the levers of power is not synonymous with a secular state.

For this the law must be released from the prison of sharia. To the extent that sharia rules over the legal framework of the state, to that extent religion rules over that state, and one cannot speak of a democratic government, or even of the rule of law. To accept sharia laws is to accept the right of the religious jurist to extract these laws. No matter how limited or proscribed that right, you cannot stop the religious lawmaker from calling into question secular laws, and ultimately their legitimacy. Such societies are marked by dual (and even multiple) laws, laws characterised by their impermanence.

The fact that women were given the vote in the years leading to the revolution and other gains are important achievements of the women's movement in Iran. But let us not lose sight of the fact that, from what has been achieved, to what must be reached, there is a huge gulf.

You cannot get the right to vote, and consolidate it, in the political sphere, and surrender to its opposite at home. The freedom of women in the socio-political setting and their slavery at home are not compatible. To deny the right of self-ownership on a woman's body is inconsistent with a society based on equal and free citizens.

The legal framework that our Civil Code provides for women is that of a society glued to barbarism, far from civilization. A society where women are "honourable ladies, sacrificing mothers and wives, under whose feet paradise grows": but have not the right to own, to travel, to marry, to work, to study… that society cannot escape the guardian, the master, the dictator, the demagogue, the ayatollah, the shah…

In today's Iran, the many self-proclaimed defenders of democracy and disengagers of religion and state are at a historic cross road. They must confront squarely the question of the need for the legal-civic equality of sexes. When paying lip service to the principle of the equality of men and women, what family order and what legal framework do they accept? When speaking of political realism how committed are they to their principles? Will they once again in a "virile manner" vault over the short wall of women? Recent history has been less than edifying.

Reproduced from: Iran Bulletin, Spring 1995, pp. 23-26, ISSN: 0969-7462
BM Iran Bulletin, London WC1N 3XX, U.K.