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63 About this deal
Shahla Haeri noted in her 2014 book on temporary marriage in Iran that ‘Ideologically, the Shi’i doctrine distinguishes temporary marriage from permanent marriage in that the objective of mutʿah is sexual enjoyment whereas that of nikah is procreation. This fundamental, conceptual, and legal distinction is embedded in Shi’i assumptions concerning the natural differences between men and women.’ [footnote 23] The US Department of State’s 2019 Report on International Religious Freedom (USSD IRF Report 2019) noted ‘Recognized religious groups issue marriage contracts in accordance with their religious laws.’ [footnote 81] DFAT noted in its report on Iran that ‘Women from more religiously-minded families generally require the permission of a male guardian to travel alone and can face societal harassment for doing so, particularly in more conservative areas. Married women require the written permission of their husbands, and non-married women under the age of 40 the permission of their fathers or other male relatives, to obtain a passport and travel abroad.’ [footnote 103] In 2016, the Los Angeles (LA) Times reported ‘More than 3 million educated Iranian women over 30 are unmarried, according to Mizan, the official news agency of Iran’s judiciary. Their numbers are increasing as divorce becomes more common and more women attend universities, exposing them to careers and incomes independent of men who, by law and custom, are supposed to be their guardians.’ [footnote 98]
The Kurdish population in Iran is not homogeneous. There are several Kurdish tribes in Iran [footnote 119], as well as religious [footnote 120] and language [footnote 121] [footnote 122] differences. Marriage practices are based on tribal traditions and religion so may differ between Kurdish communities.Commenting in December 2020 on the draft bill aimed at protecting women, HRW noted that, despite having some positive provisions, the bill ‘… does not criminalize some forms of gender-based violence, such as marital rape and child marriage.’ [footnote 79] Unlike a temporary marriage, a so-called ‘white marriage’ was, according to an anonymous source cited in a joint report by the Danish Immigration Service and the Danish Refugee Council, published February 2018, deemed as an ‘illicit cohabitation between a man and a woman who are not married’ [footnote 27], though such relationships were said to be common in Tehran and other major cities [footnote 28] [footnote 29]. Fear of persecution or serious harm by non-state actors because the woman or girl is at risk of an early or forced marriage. 1.2 Points to note Women’s threshold for turning to the justice system can be extremely high, as there is often a social stigma attached. Iran’s traditional culture views divorce and talking about marital problems as shameful, which is why friends and relatives of women who are victims of domestic violence often pressure them to keep quiet about the issue for as long as possible. 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”…
An article in IranWire, dated February 2020, considered ‘One of the main reasons for the prevalence of child and forced marriages in Iran is the poverty and economic desperation of poor and large families. Marrying daughters means lowering family costs. Studies show that the greater the economic prosperity and the higher the level of welfare, the lower the rate of forced marriages.’ [footnote 143] Women in Iran are subject to systematic discrimination on the basis of gender, which stems from culture, religion, society and legislation. The country’s male-dominated and conservative governance structure is conducive to discrimination against women in multiple spheres of society from criminal and family law to education and employment. Iran is one of the few countries in the world that have not ratified the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). As reported by Minority Rights Group International (MRG) in September 2019, writing on the discrimination of women in Iran The Constitution of Iran guarantees all citizens the right to seek justice and to receive legal aid and advice. However, cultural factors often form barriers to women’s opportunities to seek and get justice. As Iran’s legislation is based on Islamic criteria that discriminate against women, men rule the justice system. Studies on the subject reveal that women have a negative attitude towards the justice system and their opportunities of getting justice through the system. Taking domestic violence cases to court is seen as shameful, which is why only few cases ever go that far. The formal justice system is therefore not enough of a guarantee of an individual’s rights, taking into account the underlying customs and sociocultural norms. Asghari also commented on the legal vacuum that exists regarding minimum age for marriage, subject to the conditions under Article 1041 of the Civil Code:
Section 6 updated: 1 December 2021 6. Early and forced marriage 6.1 Definition of early and forced marriage Establishing a convention reason is not sufficient to be recognised as a refugee. The question is whether the person has a well-founded fear of persecution on account of an actual or imputed Refugee Convention reason. Decision makers must give careful consideration to the relevance and reasonableness of internal relocation taking full account of the individual circumstances of the particular person.
The DFAT report further noted that ‘Victims wishing to report domestic violence must file a complaint for bodily assault. As part of the complaint, the victim must present two adult male witnesses to the assault. This high evidentiary bar can prove difficult for women to meet. Police and judges often consider cases of domestic violence to be internal family matters, and can be reluctant to intervene. Where a complaint is made, police typically encourage the parties to reconcile and the victim to return to her abuser.’ [footnote 193]The Family Law in Iran paper noted that marriages ‘must… be reported to the “notaries” offices of the Ministry of Justice, where they are recorded in the public registers and entered on the identity cards (sijill) of the partners. There is no fee for registering marriages and divorces.’ [footnote 37] The USSD IRF Report 2019 noted ‘The government does not recognize Baha’i marriages or divorces but allows a civil attestation of marriage. The attestation serves as a marriage certificate and allows for basic recognition of the union but does not offer legal protections in marital disputes.’ [footnote 86] Amnesty International’s research shows that women face entrenched discrimination in family law and criminal law. Iran’s legal system puts women in a subordinate status relative to men. Under the penal code, the testimony of a woman is accorded half the value of that of a man. The age of criminal responsibility is set at nine lunar years (eight years and eight months) for girls but at 15 lunar years (14 years and six months) for boys. Women are also discriminated against under the Civil Code, notably in matters relating to marriage, divorce, child custody and inheritance.’ [footnote 190] When assessing internal relocation, in the reported case of TB (PSG, women) Iran [2005] UKIAT 00065 (09 March 2005), the Tribunal took into account the position in Iranian society of the persons feared. In the case of TB, the appellant feared her father and intended husband (a Mullah), both of whom were members of the Niru-Entezami (Law Enforcement Forces – LEF). The Tribunal concluded that an internal relocation alternative was not realistically available due to the influence of the appellant’s potential persecutors on the state authorities and mechanisms (paragraphs 68 and 69.v).
A bill aimed at protecting children and adolescents against violence was passed in June 2020 [footnote 73]. Radio Farda noted the bill defines ‘a child is a person who has not reached the “Sharia age of puberty”, and adolescents are defined as “persons under the age of eighteen” who have reached the “Sharia age of puberty”.’ [footnote 74] A February 2020 report on access to justice for victims of sexual violence by the IHRDC found that ‘Sexual abuse of children is not specifically criminalized under Iranian law’ and that ‘… if a person under the age of 18 is found to be mentally mature by a court, he or she could be considered capable of giving consent. Accordingly, such a person could be held criminally liable for sexual relations outside of marriage. Execution of minors for sexual crimes is not unprecedented.’ [footnote 194] The USSD Human Rights Report for 2020 noted ‘Women often required the supervision of a male guardian or chaperone to travel and faced official and societal harassment for traveling alone.’ [footnote 104]The state can grant legal aid to individuals who can prove that they are financially unable to pay for their own court fees. Legal aid is available from, for example, the Iranian Bar Association (Kanun-e Vokala). Children under the age of 15 cannot file law suits themselves and must instead be represented by their legal guardian (father or grandfather). Children who suffer violence from their fathers therefore have no legal redress in practice.’ [footnote 185]
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