Review of Violence against Women in Laws of Iran
Violence and discrimination against women widespread worldwide and no ethnicity or community has been immune from its damages. A lot can be said about the history and the root causes of violence against women, which is out of the scope of this paper. Modernization of human societies and having respect for the rule of law resulted in the development of civil and international laws, the aims of which are to combat and prohibit violence against women. To this aim we wish to analyze violence against women in laws of Iran, and debate and discuss.
a) The Constitution
The Preamble of the Constitution states: “The Constitution of the Islamic Republic of Iran sets forth the cultural, social, political and economic institutions of the people of Iran, based on Islamic principles and rules, and reflecting the fundamental desires of the Islamic nation.” Therefore it becomes the basis of all laws and legislations, and as a guiding light for making the laws in all fields.
The Constitution of the Islamic Republic of Iran is made up of one preamble and 14 chapters. One of the existing topics in the preamble is “women in the Constitution”. Some points are notable regarding women in the Constitution:
1 – Because women have been oppressed under the “Taghoot” regime, there will be more laws that realize their rights.
2 – Women will have a high value and status in the family institution and will have respected mothering roles.
In chapter three of the Constitution, in which “the duties of the government” are stated, all social rights have been considered for all people, including men and women, and none of the articles of the Constitution provide tools and means for the benefit of one specific gender, even article 3(14) clearly states: “securing the multifarious rights of all citizens, both women and men, and providing legal protection for all, as well as the equality of-all before the law,” are the duties of the government.
Throughout all the Constitution of the Islamic Republic of Iran, the addressee is the Iranian nation, and there are no tones that indicate discrimination or disregard toward women. The need for attention and care towards women rights in the Iranian society is much highlighted. For example one of the social principles discussed in the People’s Rights is article 21 directly obligates the government to realize the human rights of women. The most important duties of the government towards the realization of women’s rights are:
- Creation of suitable basis for the development of woman’s character and realization of her material and intellectual rights.
- Protection of mothers.
- Establishing a competent court (to process women and family affairs).
- Provision of a special insurance for widows, elderly women and women without support.
- Giving child custody to worthy mothers.
Overall the Constitution has a balanced view of human society, and not only there is no discrimination or violence in legislation against women, but in special instances it has paid particular attention towards the realization of women’s rights and their human status.
b) Civil Code
In the Civil Code too there are articles where all individuals of society are the addressees. An exclusive discussion is in chapter 7 in which are the governing principles in the formation and dissolution of the family. In this discussion the status and the material and intellectual rights of women are clearly foreseen. Some legal articles are mentioned in the discussion on the family in the Civil Code which perhaps at first glance might show restrictions and or discrimination against women and girls. Behind each of the articles of this Code there are religious jurisprudence and philosophical reasons, also there is a sort of balance and mutual rights and responsibilities are seen for each member of the family non of the articles considers a family member superior against the other, but deems each family member responsibility and duty bound towards each of the rights allocated, so that with the existences of such laws the order and unity of the family and society is established.
For example, articles 1043 and 1044 of the Civil Code state that marriage of a girl is dependent on the permission of the father and or paternal grandfather. But if the father or paternal grandfather do not have good reason for refusal of permission, his decision is void, and the girl can get married by going to the courts. According to this article, a girl requires permission from the father and or paternal grandfather for marriage. But if the father and or the father’s male relatives fail in this regard and or take advantage of their position then this right is null and void.
As we said earlier, Islamic Republic of Iran’s Civil Code’s view on the role of men and women in the family is a balanced one. Article 1102 clearly states that men and women have mutual rights and duties. Article 1103 states husband and wife must have good relations with each other, and article 1104 deems the man and the woman as partner and company in the strengthening of the family and raising children. To understand the existing balance, in the family laws discussion, all existing laws in the chapter seven must be reviewed and analysed in continuation of each other, so that the balance is clarified. And this point is important that each of the spouses have reciprocal rights. One of the strengths of the Civil Code regarding the family is in article 1115 which gives the woman permission to leave home in the event of fear of physical or financial injury or that to the dignity of the wife, and if this fear continues, the court will not order her to return to the house of the husband, and even in this period the woman’s expenses will be paid by the husband. This article of the Civil Code clearly steps towards the prevention of violence against women in the family and the elimination of discrimination.
Perhaps one of the articles that is scrutinized by critics is article 1117 of the Civil Code. This article gives the husband permission that in the event that the wife has a profession or technical work which is contrary to the interests or dignity of the family, he can prohibit her from continuing in the profession or technical work. Many critics deem this article a denial of women’s rights and a sort of abuse. Whereas this article has a collective interest at heart, in other words the interests of all members of the family. And for prevention of discrimination or probable abuse, article 1119 gives the woman the chance to put a precondition (like prenuptial agreement) before the marriage, and according to this article the woman can reach an agreement on such issues with the husband before the marriage vows are taken. And according to these agreements and during taking the vows, the husband cannot prevent the wife to indulge in the profession and activities that they have agreed upon.
Article 1119 is one of the strong points of the Civil Code, which gives the husband and wife to put preconditions as long as they are not in conflict with the requirements of marriage. Meaning that in the implementation and execution of this article, it is not restricted to activities or career professions but other matters can be included in it too.
Another important point in the Civil Code are articles 1124 and 1125. They are regarding the annulment of marriage rights. This right is given in the law to the man when during the taking of the vows, the defects that are mentioned in article 1123 are within the woman. But it has given the woman to divorce her husband following the marriage in two instances (of defects). It means in this section there is a special consideration for the woman’s rights.
Also article 1127 of the Civil Code gives the woman the right, in the event of husband’s venereal disease, to refuse intimacy with him, and this will not deny the woman’s rights for alimony. This article is in a way for the protection of physical health and protecting of the woman from possible sufferings.
Article 1130 of the Civil Code gives the woman the right to approach the court in the event of having difficulties and problems in married life. This law is to resolve probable material and nonmaterial difficulties and problems in married life.
Also maintenance of children according to article 1168 of the Civil Code is the duty and rights of the husband and wife. This article shows sharing of the duties and cooperation in a family life.
In some instances the legislator has even foreseen possible death of the husband or the father, and has set protective laws for welfare and assurance of the woman and children. For example according to article 48 of the new Family Protection Act of 19 February 2013, following the death of the husband, the widow is entitled to his salary or pension and her remarriage does not prevent her from getting these rights, and in the event of the death of the second husband, her pension will be determined by the highest receivable pension. Also according to the same law, in the even that female children do not have jobs and not married, then they are entitled to pension and insurance of their deceased parents.
According to article 1176 of the Civil Code, a mother is not forced to give milk to her infant, unless the infant cannot feed anything else but its mother’s milk. This article gives priority to the physical and mental health of women, and respects a woman’s right in choosing how to takes care of her child.
Therefore the respect of mutual and reciprocal rights for family members (including men, women and children) are noted in the Civil Code of Iran, and the legislator tries to avoid discriminatory and or forced and violent views against women, through establishing interaction and mutual cooperation.
c) Islamic Penal Code
In the Islamic Penal Code of 21 April 2013, there are a number of important points which we shall discuss. Of course we must note that this discussion is a bit different from other discussions, because it focuses on criminals and law breakers. Therefore in every organized and lawful system punishments in accordance with its religious culture and tradition are considered for both men and women. A society like Iran is not exempt to this equation.
As a matter of fact in instances in the Islamic Punishment Code, women and girls rights have clearly been considered. For example clause 2 of article 224 of the Islamic Punishment Code states “when an individual commits adultery with a woman who does not want to commit adultery, during unconsciousness, sleep or drunkenness of the woman, his behaviour’s verdict is forced adultery. In adultery committed through tricking girls or through kidnapping, threatening and or scaring a woman which results in her submission, the aforementioned sentence is the same.” According to this article sexual rape of women and girls in certain conditions, come with the strongest type of punishment for the perpetrator, which is execution. This is one of the strong points of the Islamic Penal Code which prepares a safe basis for the presence of women in society.
In some articles of the Islamic Penal Code, in the implementation of punishment there are differences between punishments for men and women.
According article 501 of Iranian Criminal Code of Procedure, the application of punishment will be done by the determination and order of the judge, and the application of the punishment is postponed:
a) During pregnancy
b) At least six months after delivery
c) During nursing to a maximum of the age of the child till 2
d) Implementation of lashes punishment during menstruation
Thus, pregnancy, nursing and even menstruation are reasons for the postponement of implementation of punishment, because in these circumstances the punishment is not just bad for the third party (fetus or infant) but the woman too, who because of a certain condition that she has will feel more pain. This is a humane look towards a female criminal. This law prevents the imposition of excessive pain from the punishment.
Also article 523 of Iranian Criminal Code of Procedure states:
“A child being nursed must not be separated from its mother who is sentenced to prison, unless the well being of the child requires it. In this event the child is given to the father and in the event of his non-competence, the child will be handed over to relatives or relevant institutions.”
Regarding “ghesas” Article 437 of the Islamic Penal Code states:
“A pregnant woman who is sentenced to ghesas, must not be ghesased before delivery. And if after delivery there is concern over the death of the infant, the ghesas must be delayed until the life of the infant is preserved.”
Another law which pays attention to differences in the punishment of men and women is article 224(b) of the Islamic Penal Code. According to this article the punishment for adultery of a boy with his father’s wife is execution of the adulterer boy. It must be reminded that differences in the implementation of punishment have philosophical, religious and scientific reasons and is one of the strong points of the Islamic Penal Code towards the observation of the well being of the criminal.
Another noted law for the protection of women is article 619 of the Islamic Penal Code which is a part of preventive punishments. According to this article “any person who in public places abuses or bothers children or women or through profanity or actions that are against their dignity and insult them will be sentenced to between 2 and six months in prison and up to 74 lashes.” Therefore by adopting preventive punishments the legislator works towards prevention of possible abuse and violence. All these laws and their positive and protective points in supporting women indicate the attention paid to their human rights in society and efforts to prevent these types of violence.
A review of the existing laws in Iran and concentration on the subject of violence against women, shows that the principle of the laws of the Islamic Republic of Iran respect the human rights of women and girls, deems the development and growth of women in various individual, family and social levels the legal priorities of the society, and efforts are made to prevent any form of violence and abuse against women. For example the “Women’s Rights and Duties in the Islamic Republic of Iran Charter” ratified by the 546th meeting of the Cultural Revolution Supreme Council (21 September 2004) is one of the important achievements of authorities and women’s activists. This Charter is in three parts, 5 chapters and 148 articles. All relevant bodies are bound by their organizational duties to adopt legal measures and decisions regarding women, and observe the principles stated in this Charter. In this Charter it has been attempted to mention all rights and responsibilities of women including the mutual ones between men and women and or particularly women. The fundamental basis of the Charter is based on the belief, where in Islam, men and women in character, objective of creation, are equal in front of God and without regards to gender they achieve values and rewards. And only in the case of complete development of human's dimensions in the lights of knowledge and science, divine piety and creation of a worthy society, human beings can have advantage (preference) over one another. On the other hand, based on divine wisdom the secret to the human continuity is the physiological differences between a man and a woman. Therefore natural differences become the basis of legal differences. But this does not mean the reduction of the human value of women or cruel discrimination between men and women. The three main parts of the Charter include, the individual rights and duties of women, their family rights and duties, and their social rights and duties. The legal articles that have been stated in the Charter define all women and girls rights in sections and details. The aim of the Charter is the promotion of the status and individual, family and social rights of women. The adoption of such laws towards the Constitution of Iran can be influential in the advancement of women. And these steps show the efforts that are being made for the elimination of discrimination, gender and sexual abuse of women.
Only in the case of complete development of human's dimensions in the lights of knowledge and science, divine piety and creation of a worthy society, human beings can have advantage (preference) over one another. On the other hand, based on divine wisdom the secret to the human continuity is the physiological differences between a man and a woman.
By: Samaneh Yahyapour Komleh
Researcher on women and family issues