ILNA: Farideh Gheyrat, lawyer, believes that Article 24 [seeking to limit Mehrieh by identifying a national standard] of the Family Protection Bill should be eliminated, because the setting of limits on Mehrieh [sum of money to be paid to the wife on her demand agreed upon in the Marriage contract], is not in line with the law, nor is it in line with Sharia or Islamic Jurisprudence. In an effort to resolve the problem of high Mehrieh, men’s should be divested of their right to unconditional divorce, instead the courts should be able to decide cases of divorce. In this way, women will not be forced to demand high Mehrieh’s in order to guarantee their basic rights in marriage. Farideh Gheyrat believes that Article 22 [addressing temporary marriage or Sighe] of the Family Protection Bill needs to also be eliminated, because it promotes loose relations in society and this could prove problematic. She believes that if lawmakers insist that this Article remain as a part of the Family Protection Bill, then they should at least require the registration of temporary marriages and not just require registration in the cases of pregnancy. This lawyer also believes that Article 23 of the Family Support Act, [addressing polygamy] needs to include a provision, requiring first and foremost the consent of the first wife, in cases when men take up second wives. The wife’s approval should be a pre-requisite along with one of the other 9 conditions stated in the Article. Additionally, the other 9 conditions under which men can take up additional wives must be proven in court. In other words, a man’s claim alone that his wife is an addict or that she cannot bear children, should not be sufficient, rather the courts should follow up on these claims and prove that they are indeed correct.

In an interview with ILNA, Farideh Gheyrat had the following to say with respect to Article 22, of the Family Protection Bill: “the Civil Code of 1307 (1928), is based on Sharia teachings and Islamic Jurisprudence. Still this law only recognizes one type of marriage.”

She continued by claiming that: “in a very straight forward manner the Civil Law of 1928, allows only those who are unmarried to marry. In this law, temporary marriage is not viewed as marriage, and only one type of marriage is addressed by the law, and that is permanent marriage. Temporary marriage is intended for sexual and physical pleasure in return for agreed upon terms (payment and specific time frame). The spirit of this law is based on Sharia Law, but in the Civil Code of 1928 temporary marriage is not viewed as marriage and Islam too emphasizes permanent marriage and the creation of family.”

Gheyrat further explained that: “in permanent marriage, the time frame is not specified. Instead the husband and wife enter into a contract, and based on that they establish a family and no time frame is specified for this. In Sharia law and Islamic Jurisprudence, temporary marriage is intended for special circumstances, such as when a man in traveling and faces problems during this time, and needs to satisfy his sexual needs, then he can enter into temporary marriage, or if the wife of a man is ill, then the man can enter into temporary marriage. But Islam does not promote temporary marriage. The proliferation of temporary marriage in society will reduce the value and the legitimacy of permanent marriage and this is in fact in contradiction to Sharia law.”

Farideh Gheyrat explained further: “if despite all the social problems which the promotion and legalization of temporary marriage would create, lawmakers still believe that temporary marriage should be allowed within the Family Protection Bill, then at least they could require the registration of temporary marriages.”

Gheyrat explained further that: “registration of temporary marriage should happen under all circumstances and we should not only require its registration on the condition that the woman becomes pregnant. Legalization of temporary marriage without registration of temporary marriage constitutes the promotion of free relations and this will have grave consequences for our society.”

This lawyer continued by adding: “loose and free sexual relations in the West have had negative consequences and have resulted in the undermining of the family unit in these societies. So, if temporary marriage is to take place without registration, not only will it not support families but it will undermine the family. We have to understand that the family is not only the wife, it is also the husband and the children, and promotion of temporary marriage will hurt all members of the family.”

She continued by saying that: “if the wife is unhappy and if her rights are not taken into consideration, the foundation of the family is undermined and the family will not be a happy one and the children will not benefit from a safe environment within the family.”

Gheyrat continued by stating that: “temporary marriage is not acceptable in our society and so families will not allow their daughters to enter into temporary marriage in place of permanent marriage and families will be reluctant to allow their sons to marry women who have in the past entered into temporary marriage. Temporary marriage is looked down up and usually takes place in a clandestine manner. Men who take on temporary wives are reluctant to admit to what they have done, because their social status will be undermined. Temporary marriage has never been an acceptable act in our society and so we should not make it an acceptable deed by legalizing it and easing the restrictions placed on it. Temporary marriage should be registered. Those who view temporary marriage positively and not negatively, then should have no problems with its registration and should not be reluctant to enter in temporary marriage in a public and open manner.”

The Need to Require the Approval of the First Wife for Men Taking on Additional Wives

With respect to Article 23 of the Family Support Act, Gheyrat had the following to say: “Unlike many other experts who believe Article 23 to be very dangerous, I do not find it so.”

She explained further by adding that: “all the sections in Article 23 already exist in the Civil Code and the main problem with this Article is that it stipulates the agreement of the first wife as one of several other conditions under which men can take on additional wives. But what needs to happen is to make this the first and primary condition under which the husband can take on another wife. This means that the permission and agreement of the first wife must be the main condition, along with one of the other nine conditions stipulated in Article 23, before a man can enter into an additional marriage. The other condition of course must be investigated by the court and found to be well grounded. Meaning that if a man claims that his wife is an addict or that she cannot bear children, then the courts must investigate this claim and demonstrate that it is indeed true.”

The other problem with Article 23, as pointed out by Farideh Gheyrat is the lack of implementation and enforcement mechanisms. In this respect, Gheyrat claims that: “Article 23 does not specify what the law should do in case a man decides to take up a second wife, if none of the conditions allowing for additional marriages exist.”

If the Courts Decide on Divorce Cases, then High Demands for Mehrieh will no Longer be an Issue

With respect to Article 24 of the Family Support Act, Gheyrat had the following to say: “this Article should be eliminated from the Family Support Act.”

She explained further that: “for several years now, the Parliament has been seeking through a variety of means to place limits on the amount of Mehrieh [a sum payable to the wife on her demand as specified in the Marriage contract] demanded by women. This is not appropriate. We cannot impose a limit for Mehrieh. According to the Civil Code, Marriage is a type of contract and has its own specific conditions. In order to enter into the marriage contract, the spouses must benefit from certain conditions, such as an ability to make sound decisions, sanity, adulthood, legal age, etc. Otherwise the contract will not be recognized. As such, when the Mehrieh is specified in the Marriage contract, it is based on the presumption that these conditions were satisfied and given that the parties have agreed to this based on the soundness of their own judgment, then their agreement must be recognized under law. Therefore we cannot impose limits, when the Civil Code has made it clear that it is the parties who decide.”

Gheyrat explained further that: “determining an appropriate and standard amount for Mehrieh is not an easy task. Women living in rural areas and women living in urban areas do not require the same amount of Mehrieh. Additionally social, economic and cultural conditions play an important part in determining the amount of Mehrieh a woman demands. Instead of placing limits or standardizing Mehriehs we have to ask why is it that the Mehrieh’s demanded by women tend to be so high? Why are women likely to ask for such high amounts for their Mehrieh? We have to give women the option of stipulating other conditions in the marriage contract, so that they feel they stand on equal footing with their future spouse in the marriage and in their life together. If we can do this, then women will have no need to stipulating heavy Mehriehs as part of their marriage contract.”

Gheyrat continued: “according to the Family Protection Law of 1975 the right for divorce is in the domain of the courts and no longer the uncontested right of the husband. The courts act as impartial third parties in cases of divorce. This is in line with Sharia law as well and was approved by Ayatollah Hakim, before becoming law. There is a copy of his signature on the law which is available in the Judiciary, and it demonstrates that the stance of the Guardian Council in preventing courts from deciding in cases of divorce is unfounded. In fact, allowing courts to decide in cases of divorce is not in opposition to Islam.”

This lawyer explained further that: “If women’s rights are guaranteed and if the courts can decide on divorce, then many of the problems we are facing would indeed be resolved and we will no longer be faced with the problem of heavy Mehriehs demanded by women.”

Gheyrat confirmed that: “Ayatollah Khomeini too, believed that despite the fact that the law does not give women the right to divorce, a woman is free to stipulate this right as part of her conditions in the Marriage Contract and there is nothing that would limit her in doing so.”