Permission of Fathers for Girls in Marriage
The author of the forty proposals writes in issue No.88 of Zan-e ruz magazine: “Article 1043 is contrary to and deficient in comparison with every legal article in respect of puberty and mental maturity. It is also contrary to the fundamental of freedom for human beings and the charter of the United Nations”.
It seems that the writer’s conception is that the purport of the above-mentioned Article is that fathers have the authority to marry their daughters according to their own free will to anybody they like, or that they have the right to prevent the marriage of their daughters without any reasonable cause.
What is the harm, and how is it consistent with fundamental freedom for human beings, if the choice of marriage is in the hands of the girls and if we consider the agreement of fathers a condition of the marriage being properly concluded, all this with the condition that fathers have no malicious intention and are not particularly tactless in withholding their approval?
It is a precautionary step and a vigilance which the law has provided to safeguard the rights of women who have had no experience of men and arises from a sort of misgiving about man’s good nature.
Our author writes:
“Our law-giver considers a girl of thirteen years capable of marriage who she is mentally mature enough to understand the meaning of being a wife or having a husband, a creature without the competence to buy or sell a few kilos of vegetables, and expects her to make the choice of someone as her partner for her whole life. However, our law does not allow a girl of twenty-five or forty, who has an education and has passed through university and has reached a high standard of learning, to marry of her own accord without the permission and approval of her common, illiterate father or paternal grandfather.
Firstly, where exactly is it that the law can be taken advantage so that a girl of thirteen can marry without the permission of her father and a girl aged twenty-five or forty who has passed through university cannot do so?
Secondly, the condition of having the father’s permission is within certain limits and originates in fatherly affection and an understanding of the feelings of men towards women; and in case any father withholds his approval for no good reason, he forfeits his right.
Thirdly, I cannot imagine that a judge has yet been found who claimed that according to the Civil Law, rational and intellectual maturity is no condition in marriage, and that a thirteen year-old girl who, according to the writer, does not understand the meaning of marriage and the choice of a husband, may marry. The Civil Law, in Article 211 states: “for the parties to the contract, to be considered competent, they must be of age of sound mind and mentally mature”.
Although in the above article there occurs the phrase ‘the parties to the contract’ and the section concerning marriage is not the section concerning contracts, because this matter is mentioned under a general rubric (contracts, transactions and obligations), beginning from Article 181, the experts in the Civil law have take it to mean ‘general competence’ for the conclusion of all agreements.
In all old marriage contracts the name of the man was preceded by the expression ‘adult, mentally sound and mature’, and the name of the woman was likewise preceded by the same words in their feminine form. How could it have been possible for the composers of the Civil Law to have ignored this salient point.
The composers of the Civil Law did not imagine that the process of intellectual decline had reached to such a point that, in spite of the fact that they indicated most clearly the matter of ‘general competence’, they should once again have to especially mention these conditions in the chapter marriage.
One of the commentators on the Civil Law, Dr. Sayyid ‘Ali Shaygan, considers that there is a contradiction between article 1064 which says “the one who concludes a contract must be of adult age, of sound mind, and must have intention”, which he thinks concerns a couple to be married and explains their competence for marriage but does not mention their mental maturity, and article 211 which mentions general competence.
He then proceeds to his commentary. Now, article 1064 concerns the person who concludes the contract and such a person is not required to be of mature mind”.
What can be complained about in this connection is the behavior of the Iranian people, and not the Civil Law of the land, nor the law of Islam. Amongst our men, most fathers still consider themselves to have absolute authority, just like the fathers of the jahliyyah (the pre-Islamic period).
They imagine that girl’s expressing herself in the matter of the choice of her husband, her partner for life, and the father of her future children, is an act of immodesty and against decorum. They pay no attention to the intellectual maturity of their daughters, and admitted prerequisite according to Islamic commandments. There are very many marriages concluded before the girls become of mature mind and, in the view of Islamic law, these are null and void.
Those who solemnize marriages do not inquire into and do not request full information regarding the intellectual maturity of the girls, and they consider the attainment of puberty by a girl as a sufficient requirement, although we know of many stories of great ‘ulama’ concerning their examination if the intellectual and mental maturity of girls.
Some of the ulama have required the religious maturity of the girl as a condition. They would only solemnize the marriage or those girls who could explain with reasoning the basic principles of Islam. Unfortunately, most guardians and solemnizers of marriages do not observe these considerations.
People like the author of the forty proposals do not like to criticize the conduct of those persons who break the law. They prefer to put all the blame on the Civil Law and under mine the faith of people in the Civil Law, which is rooted in the Islamic laws. There is one objection which, in my view, can he made against the Civil law in respect of Article 1042.
This Article reads: “After completing her fifteenth year, a girl may still not marry without the permission of her guardian until she has completed eighteen years”. According to this Article, a girl between fifteen and eighteen years of age, although she may be a widow, cannot marry without the permission of her guardian.
However, neither according to the Shi’ite jurisprudence, nor on the basis of reason, should a woman who fulfils the conditions of puberty and mental maturity, and who has once before been married, need to get the approval of her guardian.
Extracted from the book titled “The Rights of Women in Islam” by Martyr Murtadha Mutahhari
