FAMILY LAW, legal prescriptions dealing with marriage, divorce, the status of children, inheritance, and related matters.
Mazdean family law is the most extensive and involved section of the civil code as set forth in the few surviving Middle Persian legal texts, especially the Sasanian lawbook entitled Mādayān ī hazār dādestān. It comprises a medley of orthodox legislation (kardag) and revisions (dādestān) enacted by more liberal jurists and dignitaries (dastwarān, wēhān “sages”); such revisions were a source of continual controversy and led to the emergence of opposing schools of jurisprudence. In these disputes a remarkable attempt at improving the social status of women, minors, and to a lesser extent bondsmen is apparent (see citizenship ii).
The salient feature of Zoroastrian social organization in the Sasanian period was the patriarchal agnatic family (dūdag, kadag), in which the master of the household (kadag-xwadāy “paterfamilias,” pid(ar) “father,” šōy “husband”) was seconded by his wife (kadag-bānūg “materfamilias,” mād(ar) “mother,” zan “wife”). Members of the family, usually an extended family, who were related either by kinship (nabānazdišt, hamnāf “kindred,” xwēšāwand, paywand “kinsman, relative,” kas, lit., “person,” in certain contexts clearly also “relative”) or by affinity, through marriage, adoption (see children iii), or stūrīh (marriage by proxy), were bound by a highly developed set of legal prescriptions, as well as by a strict moral code and a strong set of conventions. Even the relationship between master and bondsman was controlled by established rules and restrictions (ēwēn ī šahr “custom of the land”) and patriarchal tradition.
TYPES OF MARRIAGE
In Zoroastrianism there were essentially two types of marriage (zanīh): pādixšāyīhā (lit., “with authorization, authorized”) and stūrīh, each with several subtypes and irregular forms. Owing to gradual obscuration and modification of Middle Persian terminology in the Islamic period, however, five types of marriage were recognized in the Persian Rivayats (tr. Dhabhar, I, pp. 180-81).
Authorized marriage. Authorized marriage (zanīh ī zan pādixšāyīhā “marriage of a woman in authorized condition”; Mādayān, pt. 1, p. 36) was the legal union of a husband and wife; it may be interpreted as “legitimate” wedlock, a counterpart to Islamic or Christian marriage. Members of the family were known as šōy “husband,” zan “wife,” pus “son,” and duxt “daughter" ī pādixšāyīhā. This type required the authorization of the father or guardian of the bride, as well as a detailed marriage contract (paymān ī zanīh; Pahlavi Texts, ed. Jamasp-Asana, pp. 141-43), of which a specimen has survived from the Islamic period (1278 C.E.; see contracts ii). In pādixšāyīhā not only the sanction of the guardian but also the consent of the bride was essential (Mādayān, pt. 1, p. 36). Ādurbād ī Mahrspandān (q.v.) advised young men to plead for the hands of their brides themselves (xweštan rāy zan xwad xwāh; Pahlavi Texts, ed. Jamasp-Asana, p. 61), from which it follows that in the Sasanian period marriages were usually arranged by parents or matchmakers, as is still customary in Persia. It was the duty of the father to decide for which son to seek a wife and which daughter to give in marriage (Dēnkard, ed. Madan, II, p. 744).
Appearing before the magistrate (mowbed) were the two fathers, the bride (wayōg) and bridegroom (dāmād), and three witnesses (gugāy), whose identities were registered. When married the bridegroom assumed the status of master of the household and the bride that of mistress of the house, with accompanying rights and obligations (Dēnkard, ed. Madan, II, p. 739).
The ancient custom of receiving a sum of two thousand drahms’ “security” (pāyandanīh) for the bride, a euphemism for marriage portion, was observed. It may be surmised that among the upper classes the marriage portion was not restricted to this traditional sum but also included movable or real property transferred to the bride’s family in return for a rich dowry (*passāzagān). Such transactions may have been the primary reason for preferring marriage with kin, in order to prevent property from leaving the family. In fact, the most meritorious type of marriage, regarded as a panacea for all deadly sins except sodomy (Rivāyat ī Ēmēd, chap. 29), was what modern Parsis call “next of kin” union (xwēdōdah, Av. xvaētvadaθa-; AirWb., col. 1860; Nyberg, Manual II, p. 224), described in the Dēnkard (ed. Madan, I, p. 73) as “union of father and daughter, son and mother, brother and sister” (hampaywandīh ī hast pid ud duxt, ud pus ud burdār, ud brād ud xwah). Already in the Yasna (12.9) the righteous xvaētvadaθa- was praised. Consanguineous marriage, originally practiced by the nobility among many peoples, was later commonly contracted in all sections of the Iranian community, high and low. Many Persian monarchs married their sisters or daughters (Boyce, Zoroastrianism I, p. 254 n. 24, II, pp. 75-77; idem, 1979, s.v. khvāetvadatha), and the Magians were reported by Xanthus of Lydia to have cohabited with their mothers and daughters (Jackson, pp. 152-57). In the Sasanian period the priest Ardā Wīrāz (q.v.) took all his seven sisters to wife (Ardā Wīrāz Nāmag, chap. 2). Next-of-kin marriage among the common people is dealt with in most Middle Persian lawbooks, especially the Rivāyat ī Ēmēd (chaps. 22, 24, 27-30; cf. de Menasce, 1985, pp. 138-44; Shaki, 1971, pp. 335-36; Nyberg, Manual II, p. 224).
Pādixšāyīhā marriage could be temporary, for a mutually agreed period, and could thus function as a form of companionate marriage. Upon termination of the stipulated period the wife’s dowry and private belongings (wāspuhragān) reverted to her, but, if she had died, her property belonged to the husband (Mādayān, pt. 2, p. 2).
Irregular unions. In contrast to authorized marriages, there were a few irregular types, the common feature of which was the bride’s disregard for her father’s sanction (cf. Ind. svayaṃvara, lit., “self-choosing”). In Frahang ī Oīm 2.f a xwarāyēn (lit., “self-guardian”) is defined briefly as “a daughter who marries on her own” (duxt-ē kē šōy xwad kunēd, corresponding to xᵛad-rāy or xᵛad-sālār in Persian Rivayats, tr. Dhabhar, p. 181). The Rivāyat ī Ēmēd (chap. 43) contains an illuminating chapter on the legal and social status of such a runaway daughter: “The xwarāyēn is explained as misunion (jud āyōzišn “un[authorized] union”). It is the case when a man has a daughter who has come of age (i.e., is marriageable) and her father is guilty of keeping her in the house (i.e., he does not give her in marriage), and the maiden takes to herself a guardian without the sanction of the father and marries him. That woman is called xwarāyēn” (Shaki, 1971, pp. 343-44; idem, 1988, pp. 96-99). In the lost Sasanian orthodox lawbook Dādestān-nāmag the validity of this kind of marriage was not acknowledged; on the other hand, “There was a jurist who maintained (that in accordance with the) civil law it is legal, but traditional law does not approve of it” (būd kē guft dādestān dahišn, bē pad kardag nē dārēnd; Mādayān, pt. 1, p. 36).
Another irregular type of marriage was connected with the term bēastān, which occurs twice in the Mādayān and in corrupt form in the Rivāyat ī Ēmēd (chap. 30), where four different definitions are given for it, all embodying the idea of the daughter’s leaving the paternal house. It may thus be read “out of the house.” The greater esteem expressed in the Mādayān for bēastān than for xwarāyēn suggests that in the former the daughter, upon coming of age, simply rejected the father’s candidate, in order to marry a man of her choice (pt. 1, fols. 21, 36, 41; Shaki, 1971, p. 335).
A singular instance, which actually falls under concubinage, was that of a widow who took to herself a bedfellow (gādār “fornicator”) and cohabited with him under his guardianship; if there were minors or other women in the family, no guardian would have been appointed for her but for the minors and other people who happened to be in the household (Mādayān, pt. 2, p. 14; Rivāyat ī Ēmēd, chap. 5). It was specified that the woman seeking such cohabitation should be without a guardian and free from the obligation of stūrīh, but the bedfellow was by duty bound to maintain her and her children until they came of age (Mādayān, pt. 1, fol. 36).
Although the extant Middle Persian lawbooks, which reflect the legal norms of the community, rarely include references to bigamous practice, polygamy was an ancient privilege of the aristocracy and spiritual dignitaries (Mādayān, pt. 2, p. 1; “Letter of Tansar,” p. 1630; tr., p. 44), attested by lexicological evidence (Av. hapaθnī- “cowife”; Frahang ī Oīm 2.f; AirWb., col. 1765; Old Pers. *hapašnī > Mid. Pers. hambašn [Zādspram, pp. 163, 143]; NPers. āmvasnī, vasnī [Moʿīn, I, p. 62; II, p. 2283]; Mid. Pers. abōg > NPers. havū “cowife” [Henning, p. 18]). The number of wives as a reflection of wealth and dignity tended to increase with the husband’s standing. Ḵosrow II (590-628, with interruption) is said to have had, apart from his queens and legal wives, ten thousand concubines in his harem (šabestān; Xosrow ud Rēdag, p. 84). Although the ancient Iranians were endogamous as a people, some monarchs married foreign, non-Zoroastrian women. The Parthian king Phraates IV (ca. 40-3/2 B.C.E.) married the Italian slave girl Thesmousa, Yazdegerd I (399-420) the Jewish Sošanduḵt, and Ḵosrow II the Byzantine princess Maria and the Armenian Šīrēn.
Proxy marriage. The second type of recognized Zoroastrian marriage was stūrīh (Av. stūiriia-; Pahlavi Rivāyat of Āturfarnbag, p. 27), translated into Arabic by Ebn Moqaffaʿ as badal (substitute; “Letter of Tansar,” p. 1630; tr., p. 46). It was the counterpart of the Mosaic levirate (Deuteronomy 25:5-10; Syr. ybmwtʾ; Syrische Rechtsbücher, p. 96), defined, incorrectly, by the Parsis and thus by many scholars as “adoption” (West, pp. 188-89) and by Christian Bartholomae as “care, trusteeship, guardianship” (1920, p. 48; 1922, p. 51). The word is of obscure origin with a variety of specialized meanings, which are not always easy to differentiate or assess. Generally it denotes “custodianship, safeguarding the cause of someone or something” (Dēnkard, ed. Madan, II, p. 537: u-æān ēn-iz aōn dāšt ku myazd stūrīh ī yazdān, ud ātaxš ī Warahrān stūrīh ī Gayōmard, ud gāhānbār stūrīh ī dēn “And they so held that the myazd ceremony is safeguarding [the cause of] the gods and the fire of Warahrān (Wahrām) is safeguarding [the cause of] Gayōmard and the gāhānbār festivals are to safeguard [the cause of] religion,” where stūrīh could equally be rendered “trust”; Shaki, 1971, p. 325). In reference to fire it may be rendered “trusteeship” (ka ātaxš pad stūrīh nišānēd “if someone establishes a fire in trusteeship,” i.e., to be maintained by generations of trustees in succession; Mādayān, pt. 1, p. 50). In the sense of “substitute, proxy” (Dēnkard, ed. Madan, I, p. 407: ud hamistīhā kard pad weh-dēn nimūdārīh ēn ī nāmēnīd pad stūrīh mānāgīh ī az ān wuzurg bun dēnkard hazār-darag “and I [Ādurbād ī Ēmēdān] compiled this book, called the Dēnkard of a thousand chapters, as a substitute from that great original Dēnkard for the guidance of the people of the good religion”) itwas applied by Zoroastrian legislators to marriage by proxy. The “Letter of Tansar” is quite explicit: “When a man dies without a male issue, his widow, if he has left one, was given in marriage to one of his closest next of kin. If he has no wife, but a daughter, the same was done. If there were neither of these two, they would provide a woman from the dead man’s property and give her to his nearest kinsmen, and every son who was born they assigned to the man who had left the legacy.” The author commented that “anyone who disregarded this custom had in fact slain innumerable souls, since he had cut off the dead man’s lineage and memory to the end of time” (p. 1630; tr., pp. 46-47). Further details are provided in Dādistān ī dēnīg (ed. Christensen, chap. 55): “When a man of the good religion passes away without issue, the relatives of the deceased should find someone as his substitute (guharīg), who is called stūr, in order to observe the commemorative rituals for his soul (nāmagānīh), maintain his lineage, and administer his property” (pad ān ī ōy nāmagānīh ud paywand rāyēnēd ud xwāstag dārēd, word order rearranged). Male issue was indispensable to salvation (daughters were not vehicles of lineage), for a person without a son was unable to cross the bridge to the next world (see Činwad puhl; Wizīrkard ī dēnīg 26.17; AirWb, col. 910; Shaki, 1971, p. 326). Stūrīh was a religious obligation (paywand ī frašgerd; Dēnkard, ed. Madan, I, p. 168; II, p. 492), for it helped the Weh-dēns, assistants to Ohrmazd to attain the restoration of the world.
In this type of matrimony the family included husband, wife, son, and daughter (šōy, zan, pus, duxt ī stūr). On the authority of the Avesta, then extant (Mādayān, pt. 1, p. 43), the free half of a slave (for partial slavery, see barda and BARBADĀRĪ ii) or an authorized wife not already serving as stūr was eligible for stūrīh; the authorized wife had first to be granted freedom over her own person and made her own guardian by her husband (Mādayān, pt. 1, p. 3). A widow undertaking stūrīh for her deceased husband was called čakar (q.v.; see AYŌKĒN). There were jurists who held that the procedure should, however, be supervised by eminent religious dignitaries (ka dastwarān abarmad kard; Mādayān, pt. 1, p. 49). In contrast to authorized marriage, inthis type the couple was not bound by ties or obligations other than cohabitation, guardianship of the husband over the wife, and obedience (tarsāgāhīh “reverence”) of the wife to thehusband. It should be stressed, however, that stūrīh did not resemble Roman matrimonium sine manu, in which the wife was free in her sexual relations (pace Perikhanian, 1970, p. 355).
A stūrīh was also to be instituted for any deceased free Iranian Zoroastrian who had left no authorized wife, male issue (frazand), adopted son (pus ī padīgriftag), or associate brother (brād ī hambāy) and had left a minimum profitable (barōmand) estate of 60 stērs (Dādestān ī dēnīg, ed. Christensen, chap. 55; see below). In the Sasanian caste system stūr and deceased were to be of similar social class, wealth, and standing. According to the “Letter of Tansar"(p. 1630), the proxies of princes were to be princes (Mādayān, pt. 2, p. 14; Shaki, 1987, p. 192). As the purpose of stūrīh was to beget at least one son, providing the deceased with a successor, premature dissolution was a grave sin (tanāpuhl; Pahlavi Rivayat, ed. Dhabhar, pp. 122-23). Once a son had been begotten, the stūrīh marriage, though not the guardianship over the woman, could be terminated (Mādayān, pt. 1, p. 48) without divorce (q.v.), as the stūr couple was by definition divorced (pad xwad ēstišnīh abēzār; Rivāyat ī Ēmēd, chap. 21; Shaki, 1983, p. 47). An exception was made when a limited term was stipulated for stūrīh (Mādayān, pt. 1, p. 46; pt. 2, p. 17). Stūrīh was not limited to a single person, the widow, sister, daughter, or brother of the deceased; rather, both parties to the marriage or even several couples could take part in stūrīh for a single deceased person (Mādayān, pt. 1, pp. 50, 105). In contrast to Parsi practice, not only the first son but all children born to a proxy marriage belonged to the deceased (Persian Rivayats, tr. Dhabhar, II, p. 428); when the first son came of age he succeeded to the guardianship of the family (Rivāyat ī Ēmēd, chap. 43; Shaki, 1988, p. 98).
In the Mādayān (pt. 1, p. 97) it is briefly stated that the stūr must be innocent of margarzānīh (lit., “death deserving” sin; tanāpuhl). The 9th-century sources are more informative. According to Dādestān ī dēnīg (ed. Christensen, p. 202), a stūr could be any adult (purnāy) Zoroastrian (weh-dēn) who was sane (ošyār), virile or fruitful (frazand-ēmēdag), an Iranian subject (šāhānšāh-bandag), and free of margarzān sin. A slave woman (bandag paristār), eunuch (šābistān), prostitute (zan ī rōspīg), non-Iranian (anēr), infidel (ag-dēn), or a margarzˊan person was not fit for stūrīh. A minor boy or girl might be nominated to undertake stūrīh on coming of age (Mādayān, pt. 1, p. 87). The jurists disagreed on the eligibility of a man to contract more than one stūrīh (Mādayān, pt. 1, p. 43), but in the late Persian Rivayats (tr. Dhabhar, II, p. 46) it is prescribed that a man may undertake as many as forty stūrīhs, a serious modification of the law prompted, it seems, by the dwindling number of Zoroastrians in the Islamic period.
The stūrīh was financed from the estate of the deceased for whom it was established. The proprietary right of the stūr depended on his or her legal status. An authorized widow who undertook the obligatory stūrīh of her deceased husband inherited as a son, that is, twice a daughter’s share, in absolute ownership (xwēšīh). The same rule applied to a daughter who assumed the stūrīh for her father at her own request (Mādayān, pt. 1, p. 62; Dādestān ī dēnīg, ed. Christensen, chap. 53; Rivāyat ī Ēmēd, chap. 23). A childless widow, a single daughter, or a single sister who assumed the stūrīh of the master of the household inherited the entire patrimony (Rivāyat ī Ēmēd, chaps. 2, 3). Property settled on the designated stūr was treated as an inheritance (stūr ī kardag pad ān xwāstag abar mānēd; Mādayān, pt. 1, p. 87; see below).
RIGHTS AND OBLIGATIONS WITHIN THE HOUSEHOLD
The master of the household. The master of the household was to support his wife as long as she lived, his daughters until they married, and his sons until they came of age. He was to support even a guilty daughter or slave (Mādayān, pt. 1, pp. 32-33) and any woman cohabiting without a guardian or marital obligation and her children until they came of age (Mādayān, pt. 1, p. 36). He was not allowed to share his wife and food with a coreligionist, even if intimidated (ka-z pad bīm; Dēnkard, ed. Madan, II, p. 715; Shaki, 1971, p. 338). An authorized husband could, however, designate his wife, even without her consent, as stūr for a coreligionist who was in need (niruzd) of a son and was blameless in not having produced one (Mādayān, pt. 1, p. 101; cf. Vd., chap. 4.44); such a grant was deemed meritorious (ahlawdād), “a present to the amount of one human being” (dāsr ī wīr-masāy; Dēnkard, ed. Madan, II, p. 715). The husband might designate his wife as her own guardian and give her freedom over her own person, so that she might marry a coreligionist in čakarīh and provide him with male progeny (Mādāyān, pt. 1, p. 3). The husband was obligated to provide his wife with food during monthly sequestration for menstruation; if she was forced to steal food he would be held guilty of the crime and branded in accordance with the country’s customs (ēwēn ī šahr rāy be drošišn; Mādayān, pt. 2, p. 35). It was considered meritorious for the master of the household to educate women, minors, and slaves from the people of the good religion (Dēnkard, ed. Madan, II, p. 699). He could relinquish his guardianship over his women and sell his minor children if he was threatened by extreme indigence involving the sin of adbadāt (being unable to support his family; see Frahang ī Oīm, fol. 25b; AirWb., col. 61), death, or exhaustion (margīhud raxtagīh; Mādayān, pt. 1, p. 33; Shaki, 1971, p. 337). If possible, a son was to provide for the family in these circumstances and should be reimbursed by the father (Mādayān, pt. 1, p. 32). The master of a household was not entitled to punish his wife or slave for an offense against the state (wināh ī šahr; Mādayān, pt. 1, p. 98). He was also not entitled to give his daughter in authorized marriage without her consent, but in the instance of stūrīh she had to abide by his decision, the reason being that her income from stūrīh went to him. The liberal jurist Zurwāndād, son of Gušn-/Juwānjam, supported the daughter’s option in both instances, however (Mādayān, pt. 1, p. 36).
The guardian. After the death of the master of the household, the most authoritative member of the family was the guardian (sālār), who was responsible for the care and protection of women and minors. Juridically three categories of guardians, or stūrs, were distinguished: būdag (q.v.) “lawful, at law,” kardag “designated,” and gumārdag “appointed.” Family guardianship devolved on the guardian at law through obligation or kinship status: father, eldest brother, or husband. Should a son hold and administer the estate of the father he had to undertake guardianship over the minors (Mādayān, pt. 1, p. 26). A widowed authorized wife and an unmarried or single daughter were reckoned among stūrs-at-law. As a family member the guardian at law was entitled to a portion of the inheritance (abarmānd) and thus received no stipend.
The designated guardian was chosen by the master of the household or the guardian at law to serve after his own death; if no appropriate close relative was available, he could choose from among the nearest agnates or even outside the family. Transfer of guardianship to another person was the privilege of the guardian at law and, according to some jurists, also of the designated guardian (Mādayān, pt. 1, p. 28).
Should the master of a household fail to designate a stūr in his lifetime or should the designated stūr not accept the undertaking, so that the women and minor children were left without a guardian or neglected by their family, it was the duty of the citizens to assume guardianship and extend care and attention to them (Mādayān, pt. 1, p. 33). The close kin or members of the extended family assembled and appointed (gumārdagīhā) a stūr to serve under their joint supervision (ō hamsālārīh). If there were no next of kin or other relatives the widow was entitled to devolve, in the event of her death (pad be widērišnīh), the stūrīh of her deceased husband on whomever she pleased (Mādayān, pt. 1, p. 87). Should she also die intestate or turn apostate (anēr), the obligation to appoint a stūr devolved on the judges (dādwarān stūr gumārišn; Mādāyān, pt. 1, pp. 43-44). An appointed guardian received as stipend the income from 60 stērs (240 drahms), held by him in usufruct; it was set at one srēnag-masāy and one bāzāy-masāy (i.e., up to the amount of one rump and one shank of a sheep), an idiomatic expression for 18 drahms of standard purity (drahm ī purr; Mādayān, pt. 1, p. 27; Dādestān ī dēnīg, ed. Christensen, chap. 55; Rivāyat ī Ēmēd, chap. 23; Frahang ī Oīm 25 f., corrected; Shaki, 1971, p. 330; see CONTRACTS ii). The institution of stūrīh was not binding on relatives for less than 60 stērs, though the deceased was nevertheless entitled to a stūr; in such a situation the relatives themselves were to set up his stūrīh (Mādayān, pt. 1, pp. 43, 50; Dādestān ī dēnīg, ed. Christensen, chap. 59). If an appointed guardian caused a financial loss, he forfeited his right to guardianship (Mādayān, pt. 1, pp. 27-28).
The status of women. There was a noticeable disparity between the social and the legal status of women in the Sasanian period as set forth in Middle Persian literature; it was occasioned, as mentioned above, mainly by opposition between orthodox precepts and reformist views. Generally speaking, women, especially of the lower classes (amaragān, “commonalty”), were regarded as property, each valued at 500 stērs, that is, one wīr-masāy (the price of a man). They were often ranked with slaves and minors (Mādayān, pt. 1, pp. 33, 58) but had some limited freedom of choice and action, for example, in the right of consent to marriage. A mistress of the household (kadag-bānūg), especially if fruitful (zahānag < zah- “give birth,” present participle zahān-, lit. “prolific”; it renders Av. vantu- “loved wife,” mistranslated “young woman”; Shaki, 1975, p. 263; idem, 1971, p. 325 n. 1), was loved, enjoyed respect and certain privileges. According to Sasanian jurists, a girl reached her majority and became marriageable at the age of nine years and was to be given in marriage between then and the age of twelve years, especially if she had carnal desire (Pahlavi Rivayat, ed. Dhabhar, p. 107). Upon marriage the property she brought to her husband, whether as dowry or received from her father or the state (šāhānšāh) before marriage, remained her absolute possession, not liable to the discharge of her husband’s or father’s liabilities (Mādayān, pt. 1, p. 30). The jurist Wahrām maintained that a wife is entitled to her income (windišn); the followers of the school of Medō(g)māh recommended deliberation on this point (Mādayān, pt. 1, p. 17). She assumed a partial right to manage her husband’s property, and, as a reverent (tarsāgāh) wife, every year, with the acquiescence of her husband, she could dispose of his property, except for land, watercourses, plants, houses, and two full slaves. She could be authorized by the husband to barter (guharēn rāst kardan) or sell at a profit (guharēn kardan; Mādayān, pt. 2, pp. 12, 37). A destitute husband was to be supported by his well-to-do wife, children, or stūr son (Mādayān, pt. 2, p. 7). On the death of the husband his widow was entitled to manage the family affairs, provided that the family guardian (sālār) assisted her as advocate (Mādayān, pt. 1, p. 75). She was entitled to give her daughter in marriage (Mādayān, pt. 1, p. 22). In orthodox law (kardag) the testimony of a woman, like that of a slave or minor, had no standing (Mēnōḡ ī xrad, ed. Anklesaria, chap. 39. 37), but in the opinion of liberal jurists an authorized wife could bear witness if she had been made her own guardian and given freedom over her own person (Dēnkard, ed. Madan, II, p. 708); similarly the testimony of two women from a single household was accepted in civil law (Mādayān, pt. 1, p. 98). The reformers also allowed the mistress of a household who was her own guardian to give evidence and even sit in judgment (Dēnkard, ed. Madan, II, p. 708). In Mazdean worship it was not incumbent upon women to pray to god (niyāyišn). Instead, in reverence (taṟsāgāhīh) for her husband, a woman was supposed to stand before him three times a day with arms crossed as if in prayer and to say “Tell me what you desire me to think, say and do, and what not to think, say and do, that I should act upon it” (Pahlavi Rivayat, ed. Dhabhar, p. 120; Saddar Bundahesh, p. 138).
An inheritance(baxtīgīh [kardan] “distribution of heritage/estate”)might be received either as an ordinary (bahr, lit., “portion, share”) or a residuary (abarmānd, lit., “left over”) legacy. Recipients of the former were in duty bound to administer (xwāstagdārīh) the estate. According to the Mādayān, “If the father allots (pad bahr dahēd “gives in shares”) the estate (to the heirs) in his lifetime . . . they shall become thereby ordinary legatees to that property (pad ān xwāstag xwāstagdār hēnd), and they should discharge the loan/liabilities (abām) that he had incurred before allotting that property. . . . If the master of the house on passing away gives property to the wife and children in such a way that it should come down to them in residuary legacy (pad abarmānd rasēd), it shall be so, but if he allots them in shares (pad bahr dahēd) they will become ordinary legatees (xwāstagdār bawēnd)” (pt. 1, p. 61).
If the father died intestate the share of an authorized or adopted son, as well as that of the widow who assumed the čakarīh, was twice that of a daughter (Dādestān ī dēnīg, ed. Christensen, chap. 53; Rivāyat ī Ēmēd, chap. 23; Mādayān, pt. 1, p. 65). The domestic fire was primarily the responsibility of the husband and wife, and therefore if the wife established a fire and died intestate it descended to the father not to the son. When allotting inheritance, the share of the domestic fire was to be settled first, a portion equal to that of a son (Mādayān, pt. 1, pp. 27, 51; de Menasce, p. 12); the jurist Pusānwehī Āzˊadmardān maintained that the fire ought to be held in joint custody (stūrīh) by the legatees. The head of the family could dispose by testament of family property at his discretion, except for the shares of his wife and children, who could not be disinherited unless they had become irreverent (atarsāgāh) or ungodly (Mādayān, pt. 1, p. 20; Dādestān ī dēnīg, ed. Christensen, chap. 53; Syrische Rechtsbücher, p. 133). Should the master of the household assign his estate to another citizen (mard ī šahr), upon the death of the latter the portions of the original owner’s wife and children, as well as of ailing and infirm members of his family, would revert to them and the rest be disposed of in accordance with the terms of the assignment (Mādayān, pt. 1, p. 20). If there was only one son and the father assigned him property in any fashion, he was responsible for administering it, and he was obligated to undertake guardianship of the minors in the family (Mādayān, pt. 1, pp. 59, 26). The legacy to the widow in absolute ownership (bahr ī xwēšīh) was her share for the management of čakarīh (bahr ī stūrīh). A daughter married to her father and assuming his čakarīh/stūrīh after his death inherited only the share falling to a čakar daughter, that is, as a son, not as a wife (Mādāyān, pt. 1, p. 44). If the father willed a property to a few children in absolute ownership (xwēšīh), it did not fall under administration and was not subject to the discharge of liabilities (Mādayān, pt. 1, p. 62). If a husband died without relatives, even an irreverent wife whom he had not expressly disinherited received all his estate on the strength of want of relatives (pad rāh ī akasīh), but if he had emphatically disinherited her she received no share, even if he had no relatives (Mādayān, pt. 2, p. 6). The widow and adult children had jointly to declare their satisfaction (kāmag dōsišn) of their portions in ordinary legacy for the allotment to be valid (Mādayān, pt. 1, p. 67). The stūr couples were not entitled to inherit from each other (Rivāyat ī Ēmēd, chap. 23; Shaki, 1983, p. 49).
OFFENSES AND PUNISHMENTS
The penalty for rape of a married woman was 300 stērs (1,200 drahms, the fine for one tanāpuhl or margarzan sin, which was nevertheless not subject to capital punishment); 700 drahms were for the violation and 500 for the theft or kidnaping (Mādayān, pt. 1, p. 73; Nērangestān, fol. 7r). The penalty for raping a daughter or married woman entitled to her own income was paid to the father or husband, but the woman received the fines for other offenses against her (Mādayān, pt 1, p. 36). If a čakar woman was raped the fine belonged to her (čakar gāyēd duzīh ī čakar xwēš; Nērangestān, fol. 7v). Anyone who openly united with a woman out of wedlock, even in love (došāramīh rāy), was a robber (apparag); if he did so in secret, he was a thief (duz; Nērangestān, fol. 6v). The fine for deflowering a girl who had not come of age (aburnāyag rūnēd) was also 1,200 drahms (Rivāyat ī Ēmēd, chap. 42; Mādayān, pt. 1, p. 73: 1,500 drahms, a copyist’s error; Šayest nē šāyest I, p.2). Sexual intercourse that might involve admixture of semen from different men (šusr gumēzišnīh), especially that of Iranians with non-Iranians, or with those with whom intercourse was forbidden (e.g., married or non-Iranian [anēr] women) was a grave sin (Dēnkard, ed. Madan, II, pp. 486, 739). On the other hand, free cohabitation with a woman without a guardian (guardianship being entrusted to herself) and the obligation of stūrīh was not a crime but imposed certain obligations on her partner to support her and her children (Mādayān, pt. 1, p. 36). In the Dēnkard (ed. Madan, II, p. 714) interchanging women under guardianship for purposes of illicit intercourse is, however, identified as a sin, though no punishment is specified.
Reverence or dutifulness (tarsāgāhīh) by the wife and children toward the master of the household or guardian was an imperative in Sasanian family law. Withholding it (atarsāgāhīh) was defined in the Mādayān as “not performing the righteous deeds that the master of the house bids them to do” and was liable to punishment after three episodes. As the wife was under her husband’s guardianship, his allegation of irreverence was incontrovertible; her plea of not guilty had no validity. An authorized wife’s disobedience to her husband also vitiated the filial rights of her children; if they were born during the period of their mother’s breach of discipline their claim to inheritance was forfeit (Mādayān, pt. 2, pp. 6-7).
See also divorce ii.
Ardā Wīrāz Nāmag, tr. P. Gignoux as Le livre d’Ardā Vīrāz, Paris, 1984.
C. Bartholomae, Die Frau im sassanidischen Recht. Mitteliranische Studien IV, WZKM 27, 1913, pp. 347-74.
Idem, “Uber ein sasanidisches Rechtsbuch,” Sb. Heidelberg Akademie der Wissenschaften, Phil.-hist. Kl., I, Abh. 11, 1910.
Idem, “Zum sasanidischen Recht,” in Sb. Heidelberg Akademie der Wissenschaften, Phil.-hist. Kl., IX, Abh. 5, 14, 1918; XI, Abh. 18, 1920; XIII, Abh. 5, 1922; XIV, Abh. 9, 1923.
M. Boyce, “On the Sacred Fires of the Zoroastrians,” BSOAS 31/1, 1968a, pp. 52-68.
Idem, “The Pious Foundations of the Zoroastrians,” BSOAS 31/2, 1968b, pp. 270-89. I
dem, Zoroastrians. Their Religious Beliefs and Practices, London, 1979; rev. repr. London, 1983.
Dādistān ī dēnīg, ed. A. Christensen, Codices Avestici et Pahlavici Bibliothecae Universitatis Hafniensis 3, pt. 1, Copenhagen, 1934.
Frahang ī Oīm, ed. H. Reichelt, WZKM 14, 1900, pp. 177-213; 15, 1901, pp. 117-86.
W. B. Henning, Sogdica, London, 1940.
A. V. W. Jackson, Zoroaster, the Prophet of Ancient Iran, New York, 1899; repr. New York, 1965.
“Letter of Tansar,” ed. ʿA.-A. Dehḵodā, in Amṯāl o ḥekam III, Tehran, 1310 Š./1931, pp. 1621-40; ed. M. Minovi, Tehran, 1311 Š./1932, repr. Tehran, 1354 Š./1975; tr. M. Boyce as The Letter of Tansar, Rome, 1968.
A. Mazaheri, La famille iranienne au temps antéislamique, Paris, 1938.
J. P. de Menasce, Feux et fondations pieuses dans le droit sassanide, Paris, 1964.
Idem, “Études iraniennes,” Stud. Ir. 3, 1985, pp. 125-44.
M. Moʿīn, Farhang-e fārsī, 6 vols., Tehran, 1342-52 Š./1963-73.
Nērangestān, ed. D. P. Sanjana, Bombay, 1894.
The Pahlavi Rivāyat of Āturfarnbag and Franbag-Sroš, ed. B. T. Anklesaria, 2 vols., Bombay, 1969.
A. Perikhanian, “Iranian Society and Law,” in Camb. Hist. Iran III/2, pp. 627-80.
Idem, “On Some Pahlavi Legal Terms,” in M. Boyce and I. Gershevitch, eds., W. B. Henning Memorial Volume, London, 1970, pp. 349-57.
Idem, “Le contumace dans la procédure iranienne et les termes pehlevis hačašmānd et srāδ,” in P. Gignoux and A. Tafazzoli, eds., Mémorial Jean de Menasce, Louvain, 1974, pp. 305-18.
Rivāyat ī Ēmēd ī Ašawahištān, ed. B. T. Anklesaria, Bombay, 1962.
Saddar Nasr and Saddar Bundahesh, ed. B. N. Dhabhar, Bombay, 1909.
M. Shaki, “The Sasanian Matrimonial Relations,” Archív Orientální 39, 1971, pp. 322-45.
Idem, “Two Middle Persian Legal Terms for Private Property,” in P. Gignoux and A. Tafazzoli, eds., Mémorial Jean de Menasce, Louvain, 1974, pp. 327-36.
Idem, “An Appraisal of the Glossary of A Manual of Pahlavi, by H. S. Nyberg,” in Archív Orientální 43, 1975a, pp. 256-63.
Idem, “The Concept of Obligated Successorship in the Mādayān ī Hazār Dādestān,” in Monumentum H. S. Nyberg, Acta Iranica 5, Leiden, 1975b, pp. 227-42.
M. Shaki “Two Chapters of the Rivāyat ī Ēmēd ī Ašawahištān,” in Oriental Studies to the memory of Professor David Kobidze, Tbilisi, 1983, pp. 45-53.
Idem, “The Translation of the Sasanian Law-Book: A Pons Asinorum,” in Archív Orientální 55, 1987, pp. 190-93.
Idem, “Pahlavica,” in A Green Leaf: Papers in Honour of Prof. J. Asmussen, Acta Iranica 28, Leiden, 1988, pp. 93-99.
Syrische Rechtsbücher: Corpus Juris des persischen Erzbischofs Jesubocht (Išōboxt), III, tr. E. Sachau, Berlin, 1914.
E. W. West, Pahlavi Texts II, SBE 18, Oxford, 1882; repr. Delhi, 1970.
Xosrow ud Rēdag, tr. D. Monshī-Zādeh, in Monumentum Georg Morgenstierne II, Acta Iranica 22, 1982, pp. 48-91.
Family law regulates relations within the family, as defined by consanguinity, affinity, and, by extension, fosterage (see below). Family law has always occupied a central place within the šarīʿa or the Islamic law; the koranic rules that govern it appear to have been taken seriously from the very beginning, and modern reforms of the late nineteenth and twentieth centuries have modified it only in a limited number of details. Together with inheritance law it is, in fact, the only field of Muslim law that has remained nearly intact in the present day.
In defining the family, Islamic law makes a distinction between the immediate and the extended family. Among the latter, the male agnatic relatives, the ʿaṣaba, play an important role because they contribute to the ʿāqela, or tribal group concerned with wrongs against the person, and because they take primary shares in Islamic intestate inheritance law. The last is true in Sunni Islam; in Shiʿite law, the ʿaṣaba are deprived of much of their customary tribal importance. Members of the family group can be further classified into whether they are within the forbidden degrees of marriage, that is, those persons an individual is forbidden to marry (maḥram, pl. maḥārem), such as a man’s female ascendants and descendants, sisters and aunts of these, and so on (see Koran 4:26) and those outside this category (ajnabī, pl. ajāneb, for the non family-members); the customary code of behavior between the sexes is largely determined by this status. The married woman, it must be pointed out, is for most purposes identified with her natal family, and her interests are protected by her father or another close male relative, not her husband; her property is not commingled with her husband’s, and she preserves her own identity.
Marriage (nekāhá) is created by a civil law contract, whose main constituents are the offer on the part of the bridegroom (or his guardian, if he is a minor), and the acceptance on behalf of the bride by her walī, or marriage guardian, usually her nearest male relative. The material object of the offer is the dowry (mahr, q.v.; ṣadāq); it is payable to the bride herself and remains her property. By tradition, the mahr is divided into two parts, one paid before consummation, and the other due upon divorce or death of the husband as the first charge upon his estate. The contract is concluded before two qualified witnesses. The contract alone brings the marriage into being; no other act, such as consummation or ritual celebrations, are relevant, and no religious significance is attached to the conclusion of the contract.
The contract itself may not contain conditions affecting the marriage, although there are two important exceptions to this. The first is adoption, in modern reform legislation, of the Hanbalite permission to include certain kinds of stipulations in any contract; this rule has been widely adopted by all the schools, to make a marriage slightly less restrictive for the wife, for instance, by giving her the option to release herself from a marriage in which her husband takes a second wife, forces her to live in a place against her will, or prevents her from practicing her profession. The second is stipulation of a time limit in motʿa marriages (q.v.) among the Twelver (Imami) Shiʿites; the marriage is concluded for a specified period of time, but otherwise it is bound by conditions no less strict than a marriage without a term limit. Multiple marriages are permitted to men, who may have up to four wives at one time (Koran 4:3), although equal treatment is enjoined.
There are several bars to marriage. An individual may not marry his or her relative, defined as maḥram, whether it be by consanguinity or affinity (such as an ascendant or descendant of his wife or former wives); nor may a man marry two women who are themselves maḥārem, that is, related to one another within the forbidden degrees as if one of them were a man. Finally, there is the issue of fosterage, or relationship by nursing. A wet-nurse, or woman who suckles a child not her own (a not uncommon situation in traditional societies, even today) creates, through her milk, a relationship with the child and between her family and his relatives, exactly like that of a relationship through blood ties. The same impediments to marriage thus arise through fosterage (see DĀYA).
Other bars to marriage include difference of religion; although a Muslim man may marry a non-Muslim woman from one of the recognized scriptural religions, a Muslim woman has no such option. Further, according to the principle of kafāʾa, or equality, the prospective husband must be the equal of the wife’s father in several respects, depending on the school of law, including family status, occupation, and financial resources. This rule functions more as a means too dissolve an inappropriate marriage, either by the minor bride when she comes of age, or by the guardian of the adult bride if she happens to have concluded her own unsuitable marriage.
Strict rules govern the maintenance of a wife. Besides food and clothing, she is entitled to a separate lodging and, if feasible, a servant. The jurists are unanimous in declaring her free from financial responsibility for the household, or for her own maintenance, even if she can afford it. On the other hand, she forfeits her maintenance by disobedience toward her husband, which is defined in various ways, often quite restrictively, by the jurists. Veiling and seclusion, not governed by the Koran although widely thought to be, are a product of a variety of local customs. Marriage is not conceived of as an institution for procreation only; therefore, both parties have a right to sexual fulfillment, and consent of the wife must be sought for contraception, which is permitted by the jurists absolutely. And although jurists are divided on abortion, many tolerate it during the first 120 days of pregnancy.
Divorce (q.v.; ṭalāq), almost always takes place as a unilateral declaration on the part of the husband and terminates the marriage. The wife’s consent is not needed, nor is there a judicial proceeding. The most acceptable form of repudiation is for a man to pronounce the formula of divorce once, during an intermenstrual period, and refrain from sexual intercourse with his wife for the next three menstrual periods. Up to this time, the repudiation is revocable. Another form of divorce, considered reprehensible—and in fact forbidden in Shiʿite law—although it is probably the most common form in Sunni Islam (probably for its decisiveness and simplicity) is pronouncing the three-fold formula all at once during the first month. The divorce in this case is irrevocable immediately, and it too followed by a three-month period of abstinence, the ʿedda, before the woman can marry another husband. The ʿedda in the case of a pregnant woman lasts until her delivery, and in the case of a widow, four months and ten days. A woman in her ʿedda is entitled to maintenance, but once completed, she has no further claim on her former husband. However, divorce (or widowhood) entails settlement of any unpaid portion of her dowry.
The wife’s ability to terminate her marriage is restricted to ḵolʿ, a form of negotiated divorce by which the wife, with the consent of her husband, redeems herself in exchange for a consideration, usually return of the dowry.
Custody of children varies within the schools; among the Shiʿites, the mother is entitled to custody only up to two years of age in the case of boys and seven for girls; the Sunnis give custody to the mother up to ages seven or nine for boys and until puberty (or even marriage among the Malekites) for girls. The mother forfeits the right of custody if she remarries a man who is not maḥram to the child; in this case, the custody goes to the mother’s near female relatives. The jurists discuss these issues in terms of the best interest of the child. In all cases, financial support of the child devolves on it father.
Islam does not envision adoption of children (Koran 33:37) in the sense that the child becomes a legal heir of the “adoptive” parent; there are, however, means of de facto adoption, such as bequeathing the permissible one-third of one’s estate to a non-heir, making the child a partner in the parent’s business, creating gifts, and so on. Paternity of a child of unknown origin, such as a foundling, can be acknowledged.
Illegitimacy hardly comes up, in that Islamic law for humanitarian purposes employs a number of strategies to prevent it, such as the heavy burden of proof to prove unlawful intercourse and the attribution of the child to the marriage bed if it is born at least six months from the beginning of the marriage. Furthermore, the recognized duration of pregnancy is up to two years in the Hanafite school of law, four years in others; so the husband of a divorced woman must acknowledge as his own a child born up to that time. He may also voluntarily acknowledge a child born later. Most Shiʿite jurists, however, recognized a period of nine months. In addition, a child without paternity could always be absorbed into his mother’s clan.
Reforms in the area of family law have been undertaken everywhere since the early part of the twentieth century, based on techniques perceived to be part of the fabric of Islamic law itself. Thus, permitted differences of opinion between the schools were employed in a creative way, by borrowing a detail from one school and grafting it on to a rule in another, to achieve a socially desirable result without departing from the šarīʿa. Other techniques for change were procedural measures, or less often, a claim on the part of the state of the right to exercise new ejtehād (q.v.). Thus, some progress was made in mitigating the disabilities women suffered. The only country in which polygamy was actually abolished—apart from Turkey, which abolished the šarīʿa altogether in 1926—was Tunisia (1956); most countries made second marriages subject to permission of the court. A clause can be included in the marriage contract that if a man does take a second wife, his wife is entitled to sue for divorce. Unilateral divorce in most countries also has become subject to the supervision of the court, although a husband’s absolute right to repudiate his wife at will has not been impaired in the least. In some countries, women have been given the right to sue for divorce under certain conditions. Attempts to restrict child marriages have been made, with many countries establishing a minimum age.
Contemporary political movements that call for strict application of the šarīʿa tend to erode or even reverse the gains that have been made. For instance, in Persia, the Family Protection Act of 1976 (see FAMILY PLANNING i. IN PERSIA) deprived men of the absolute right to ṭalāq by giving the spouses equal rights to divorce, raised the minimum age of marriage, set severe limits on polygamy, and took a humane position on child custody. In 1979, the revolutionary government abrogated this code, one of the most progressive pieces of family legislation in the Middle East, for a return to strict Shiʿite šarīʿa practice. Another example, though not quite so dramatic, is the repeal of Law 44 of 1979 in Egypt, which amended the modest reforms of 1920 and 1929. This law was declared unconstitutional in 1985, and a new Law 100 was enacted, reversing many of the gains of Law 44. Law 44 required that a pronouncement of divorce by the husband be registered with the court and the wife notified of the divorce by registered letter before the divorce could take effect. Taking a second wife was automatically grounds for a divorce by the first wife. Among other reversals, Law 100 requires the first wife to petition the court for a divorce, placing the burden of proof on her that the second marriage has caused her harm; the parties must then submit themselves to reconciliation by the court. In short, then, even though the desire for reform has been nearly everywhere expressed, the return to perceived Islamic values has often had a unfavorable effect.
J. N. D. Anderson, Law Reform in the Muslim World, New York, 1959.
F. R. C. Bagley, “The Iranian Family Protection Law of 1967: A Milestone in the Advance of Women’s Rights,” in C. E. Bosworth, ed., Iran and Islam, Edinburgh, 1971, pp. 47-64.
L. Bercher and G.-H. Bousquet, trans., Ghazâlî: Le Livre des bons usages en matière de mariage, Bibliothèque de la Faculté de Droit d’Alger 24, Paris, 1953 (a translation of the chapter on marriage in Ḡazālī’s Eḥyāʾ ʿolūm al-dīn; a valuable work).
R. Brunschvig, “De la filiation maternelle en droit musulman,” Studia Islamica 9, 1958, pp. 49-59.
N. J. Coulson, Succession in the Muslim Family, Cambridge, 1971 (the most complete study of inheritance law; outlines family relationships).
Ibid, A History of Islamic Law, Edinburgh, 1964.
D. S. El Alami, “Law No. 100 of 1985 Amending Certain Provisions of Egypt’s Personal Status Laws,” Islamic Law and Society 1, 1994, pp. 116-36.
J. Esposito, Women in Muslim Family Law, Syracuse, 1982 (a brief treatment).
S. Haeri, Law of Desire: Temporary Marriage in Iran, London, 1989.
N. Ha Mim Keller, ed. and tr., The Reliance of the Traveller: A Classical Manual of Islamic Sacred Law by Ahmad Ibn Naqib Al-Misri (d. 769/1368) in Arabic with Facing English Text, Commentary and Appendices, Evanston, Ill., 1993 (marriage and divorce, pp. 506-66; a reliable translation).
A. Layish, Women and Islamic Law in a Non-Muslim State, New York, 1975 (based on the decisions of the šarīʿa courts in Israel).
Y. Linant de Bellefonds, Traité de droit musulman comparé II: Le Mariage, la dissolution du mariage, Paris and The Hague, 1965.
S. Murata, Temporary Marriage (Mutʿa) in Islamic Law, Qom, 1991.
B. F. Musallam, Sex and Society in Islam: Birth Control Before the Nineteenth Century, Cambridge, 1983 (the best discussion of the issue).
F. M. Najjar, “Egypt’s Law on Personal Status,” Arab Studies Quarterly 10/3, 1988, pp. 319-44.
D. Pearl, A Textbook on Muslim Personal Law, 2d ed., London, 1987 (family law mainly on the Indian subcontinent).
A. L. al-Sayyid Marsot, ed., Society and the Sexes in Medieval Islam, Malibu, 1979.
J. Schacht, Introduction to Islamic Law, London, 1964 (for family law, see especially pp. 161-74).
S. A. Spectorsky, tr., Chapters on Marriage and Divorce: Responses of Ibn Hanbal and Ibn Rāhwayh, Austin, 1993.
F. Ziadeh, “Equality (kafāʾa) in the Muslim Law of Marriage,” American Journal of Comparative Law 6, 1957, pp. 503-17.
The basic source of family law in Persia is the šarīʿa interpreted according to the Jaʿfarī school of Shiʿite law. In the 20th century there have been two major phases of change, one following the start of the Pahlavi monarchy in 1925 and the other after the founding of the Islamic Republic in 1979. The present article focuses on law related to marriage, divorce, and custody of children.
Until the 1930s, the Shiʿa clergy defined and administered family law in accordance with uncodified but well-developed and fully-recognized principles of Jaʿfari law. They performed marriages and divorces and dispensed justice in šarīʿa courts (maḥākem-e šarʿ), which had de facto jurisdiction in all family matters. Reform of the judiciary began with the Constitutional Revolution of 1905-6 and gained momentum under Reżā Shah Pahlavī (1925-41). The aim of the reformers was to create a “modern” and centralized judicial system on a Western model. This was achieved in most areas of law, where European legal concepts and codes were adopted and new courts were established. With family law, however, Shiʿite legal concepts were retained almost intact, partially reformed and gradually grafted onto a new legal machinery (Banani, p. 71; Amin, p. 61).
Between 1927 and 1935 a civil code of 1,335 articles was enacted; articles relating to personal status were in effect a simplification and codification of dominant opinion within Shiʿite jurisprudence. The code was drafted in three volumes by a commission appointed by the Ministry of Justice (Wezārat-e dādgostarī), using three authoritative Shiʿite legal texts (Najm-al-Dīn Moḥaqqeq Ḥellī’s Šarāʾeʿ al-Eslām, Zayn-al-Dīn ʿĀmelī Šahīd-al-Ṯānī’s Šarḥ al-Lomʿa, and Shaykh Mortażā Anṣārī’s Makāseb) as sources and the Belgian, French, and Swiss Codes as models. The second volume, consisting of 301 articles devoted to personal status and the family, was debated and approved, article by article, in the Majles in 1935. Articles 1034 to 1206, dealing with marriage, its dissolution, family relations, and children, retained the patriarchal bias of the šarīʿa. Limited reforms were introduced, adopting principles from other schools of Islamic law so as to extend the grounds upon which a woman could obtain a judicial divorce to include the husband’s refusal or inability to provide for her (Article 1129), his refusal to perform his marital (sexual) duties, his maltreatment of her, and his affliction with a disease which could endanger her life (Article 1130). Otherwise, the only departure from Shiʿite law was Article 1041, prohibiting the marriage of girls under thirteen (Šāyegān, pp. 35-42; Banani, pp. 69-84).
Meanwhile, in 1931 a Marriage Law (Qānūn-e ezdewāj) had been enacted, setting out procedural rules for implementation of the civil code concerning matrimonial transactions, which resulted in reduction of the administrative and judicial functions of the clergy. It consisted of twenty articles and two notes. Articles 1 and 2 required marriages and divorces to be registered in civil bureaus set up in accordance with mandates of the Ministry of Justice. Failure to do so did not affect the validity of the marriage or the divorce, but incurred penalties and the loss of legal recognition by the state, thus creating a dual notion of legality: qanūnī/rasmī (legal/official) as opposed to šarʿī (religious). Article 3 set financial penalties and prison terms for all those involved in the marriage of girls under 13. Articles 4 and 8 to 17—incorporated, in slightly different wording, in the civil code—dealt with a wife’s right to maintenance and her right to initiate divorce proceedings, requiring that such actions be brought initially to civil courts. In the same year the jurisdiction of šarīʿa courts was reduced to disputes involving the essential validity (aṣl) of marriage and divorce (Banani, p. 78).
A major change in the sphere of family law occurred with the enactment of the Family Protection Law (FPL; Qanūn-e ḥemāyat-e ḵānevāda), which curtailed the rights of men to arbitrary divorce and polygamy as enshrined in the civil code. Originally proposed by Senator Mehrangīz Manūčehrīān, president of the Association of Women Lawyers, the FPL was passed by the Majles on 25 Ḵordād 1346/15 June 1967 and received royal assent on 3 Tīr/23 June.
The FPL, comprising twenty-three articles and one note, achieved its reforms through procedural devices. It changed the rules for registration of marriage and divorce and set up new court procedures, independent of the Civil Procedure Code (Āʾīn- e dādrasī-e madanī), for dealing with all kinds of familial disputes. All divorcing couples were required to appear in courts presided over by civil judges, some of them women. In the absence of a mutual consent to divorce, the court would, upon the establishment of certain grounds, issue a certificate referred to as “Impossibility of Reconciliation” (ʿadam-e sāzeš). Grounds available to men were parallel to those available to women; both could apply to the court to appoint arbitrators to try to bring about reconciliation; although the final decision on divorce and child custody arrangements rested with the court (Articles 6-13). Registration of a divorce without a court certificate was made an offense, subject to the penalty of six months to one year imprisonment for all parties involved, including the registrar (Articles 14, 16). To avoid a clash with šarīʿa provisions that recognize divorce as the arbitrary right of a man (reflected in Article 1133 of the Civil Code, “A man can divorce his wife whenever he wishes”), the FPL resorted to a legal device: it required that conditions in which a divorce certificate could be requested from the court be included as stipulations in all marriage contracts (Article 17). Article 4 of the 1931 Marriage Law, repeated in Article 1119 of the Civil Code, also recognized stipulations in marriage contacts, giving a wife, in certain conditions, the right to divorce herself on behalf of her husband after establishing in court the existence of a stipulated condition. Before the FPL, it was up to the woman, in effect her family, to negotiate such a right for her, which seldom happened. The FPL made these stipulations an integral part of every marriage contract. In large urban centers, courts that dealt with family disputes and were regulated by the FPL procedural rules became known as “FPL courts.”
In 1975, the FPL was replaced by another law with the same title, comprising twenty-eight articles and nineteen notes, which extended the reforms of the FPL and formally repealed any prior laws conflicting with its mandate. It increased the minimum age at marriage from fifteen to eighteen for females and from eighteen to twenty for males, placed women on a more equal footing with men with respect to divorce and child custody, and provided the courts with discretionary powers to grant or withhold divorces and to decide on child custody arrangements.
Co-opted later by the official Women’s Organization of Iran (Sāzmān-e zanān-e Īrān) under the patronage of Princess Ašraf, the FPL aroused debates that went far beyond its scope and original mandate. Many members of the clergy opposed it from the onset, seeing it as destructive to Muslim values and family structure. Āyat-Allāh Ḵomeynī, in a 1967 ruling, denounced it as contrary to Islam, declaring divorces issued under the FPL to be void (Algar, p. 441). The Pahlavi state took the entire credit for the FPL and hailed it as a major advance in the enhancement of women’s legal status and the modernization of society (Afkhami, 1984). Some specialists abroad regarded it as the most radical reform of traditional divorce laws in the Muslim world (Hinchcliffe, 1968a, 1968b; Bagley), while others saw it as limited in impact to the urban middle and upper class and as irrelevant to lower class and rural and tribal women (Higgins). After the Revolution of 1979, the debate took a different turn, with Persian women as the main participants, seeing the FPL as symbolizing the legal advance of Persian women under a secular regime and their loss in an Islamic one (e.g. Tabari and Yeganeh; Sanasarian; Azari; Nashat; Afshar; Afkhami and Friedl).
Family Law in the Islamic Republic. Soon after the victory of the Revolution, a directive from Āyat-Allāh Ḵomeynī’s office declared the FPL to be non-Islamic and announced its suspension and the reinstitution of the šarīʿa. There followed a period of uncertainty until the FPL courts were replaced by Special Civil Courts (Dādgāh-e madanī-e ḵāṣṣ). Created by a legislation with the same name and ratified by the Revolutionary Council on 1 Mehr 1358/22 September 1979, these courts were to be presided over by religious judges (ḥākem-e šarʿ), free from the provisions of the Civil Procedure Code—hence the term “Special.” Their establishment was seen as a first step towards the application of the šarīʿa in its most important sphere: the family. It was also the outcome of a compromise between those who urged the immediate restoration of the šarīʿa and those who argued for a gradual approach (Moḥaqqeq-Dāmād, pp. 513-22; Amin, pp. 132-33). Meanwhile, to enable the judiciary to conform to Shiʿite legal norms, a process of reorganization was initiated.
With respect to family law, two concomitant and contradictory legal developments can be detected: reduction in restrictions imposed on men’s rights to divorce and polygamy, and attempts to compensate and protect women in the face of them. The first began with the dismantling of the FPL and its replacement by the Special Civil Court Legislation (SCCL). The SCCL contained twenty articles and three notes, all but one concerned with defining the structure and jurisdiction of its courts, which are invested with the same degree of discretionary power enjoyed by the FPL courts. It allowed registration of divorces with mutual consent but retained an element of the FPL reform: Note 2 of Article 3 required that, if a husband wished a divorce the court must first refer the case to arbitration; if reconciliation proved impossible, the husband should be given “permission to divorce.” The evident contradiction between this note and the classical Shiʿite position (reflected in Article 1133 of the Civil Code, quoted above) was resolved by reference to a koranic verse (Mir-Hosseini, 1993, p. 55).
Elements of earlier reforms have also been retained in other areas of family law, although in an ad hoc and inconsistent manner. The Council of Guardians (Šūrā-ye negahbān) and the Supreme Judicial Council (Šūrā-ye ʿālī-e qażāʾī), both set up under the 1979 Constitution, undertook the revision of laws found to be in contradiction with šarīʿa provisions. In 1982 and 1991, fifty articles of the civil code were either deleted, amended, or replaced (Taleghany, 1995, p. xxi). Article 1041, which set a minimum age at marriage (thirteen for females and fifteen for males), was amended in 1982 to prohibit marriage prior to puberty (defined in the amended version of Article 1210 as nine lunar years for girls and fifteen lunar years for boys). Permission to marry a girl under thirteen could be issued by the Special Civil Courts. Yet Article 3 of the 1931 Marriage Law, which sentenced those involved in a marriage of a girl under thirteen to from six months’ to two years’ imprisonment, was left intact.
A similar double rule exists with respect to polygamy. In 1984, the penalty introduced by the FPL (Article 17) for registering a polygamous marriage without court permission was declared to be inconsistent with the šarīʿa (Council of Guardians, Opinion 1488, 9 Mordād 1363/31 July 1984). Yet Articles 5 to 7 of the 1931 Marriage Law, requiring a man to declare his marital status at the time of marriage and fixing a sentence of six months’ to two years’ imprisonment if the second wife brings a legal action for deception, have not been repealed.
The situation over polygamy becomes more complicated if temporary marriage (commonly known as motʿa or sÂīḡa) is also taken into consideration (Šafāʿī; Murata, 1358, 1991; Haeri). Although the civil code recognizes this as a valid marriage, the 1931 Marriage Law and all subsequent legislation—even after the Revolution—are silent as to the formalities of its registration. The FPL, by both omission and commission, excluded disputes involving motʿa from adjudication on the basis that they were not registered and were thus devoid of legal validity. The aim was to discourage and even to prevent this type of marriage without directly banning it. After 1979, however, the Special Civil Courts not only heard disputes involving motʿa unions but could authorize their registration, thus giving them “legal” (qanūnī) status (Mir-Hosseini, 1993, pp. 162-91, 1998, pp. 104-7).
With respect to a mother’s custody rights and control over her children after divorce or death of the father, the FPL reforms were severely curtailed. Article 15 of the FPL, which placed a mother on the same level as a paternal grandfather in terms of natural guardianship (welāyat-e qahrī) of her children, was among the first to be repealed by a legislation passed on 26 Mehr 1358/18 October 1979 (Šafāʿī, II, pp. 164-68). The civil code gave a mother the right to custody of her daughter until the age of seven and of her son until the age of two (Article 1169). Although, in case of her husband’s death, a woman acquires custody of her children (Article 1170), she loses it if she remarries (Article 1171), and she has to submit to the authority of their paternal grandfather (Article 1180). A single-article legislation passed on 6 Mordad 1365/28 July 1986 gives these mothers and “mothers of martyrs” the right to receive their deceased husband’s salary and to keep the custody of their children even after remarriage.
With the relaxation of restrictions on men’s rights to polygamy and unilateral (not extra-judicial) divorce, attempts were made to compensate and protect women. In 1982, new marriage contracts were issued, carrying two stipulations which marriage notaries are required to read out to couples (Supreme Judicial Council directives dated 19 Mehr 1361/11 October 1982 and 28 Shahrivar 136/19 September 1983. The first stipulation entitles women to claim half the wealth that her husband acquired during marriage, provided that the divorce is neither initiated by her nor caused by any fault of hers. The second enables women to obtain a judicial divorce more or less on the same grounds available to them under the FPL: the only difference is that, in conformity with the šarīʿa mandate on divorce, the husband can now refrain from signing any of these stipulations. In practice, however, the presence or absence of his signature under each clause has no effect on the woman’s right to obtain a divorce, as the decision lies with the judge. Article 1130 of the Civil Code was amended in 1982 to empower the judge to grant or withhold a divorce requested by a woman, if he considers that the continuation of marriage would entail hardship and harm (ʿoṣr wa ḥaraj; Mir-Hosseini, 1993, pp. 65-70).
In December 1992, following pressure by women and the rising divorce rate, a more radical step was taken through the enactment of the Amendments to Divorce Regulation (ADR; Eṣlāḥ-e moqarrarāt marbūṭ be ṭalāq), which reinstated the rejected elements of the FPL divorce provisions but under a different legal logic. The ADR, a single article legislation with seven notes, was first ratified by the Majles on 21 Esfand 1370/10 March 1992, but contested by the Council of Guardians. It was eventually ratified through the intervention of the Assembly for Ascertaining the Interest of the Regime (Majmaʿ-e tašḵīṣ-e maṣlahat-e neẓām) on 28 Aban 1371/18 November 1992.
The ADR outlaws the registration of all divorces without a court certificate—which incidentally has the same name as that issued under the FPL: “Impossibility of Reconciliation.” It requires all divorcing couples, even those who have reached an agreement, to go through a process of arbitration. If the arbiters, one chosen by each side, fail to reconcile them, the court allows the man to effect and register a divorce only after he has paid his wife all her dues, i.e. her mahr, and ʿedda (the waiting period after marriage during which a woman cannot remarry) maintenance, unless he convinces the court of his inability to pay (Notes 1, 2, and 3). If the divorce is rojʿī (revocable), the divorced wife is required to stay in the marital home during this period (Note 4). Note 5 allows the appointment of women as advisory judges to work in co-operation with the main judge. Note 6, which was contested by the Council of Guardians, enables the court to place a monetary value on women’s housework and to force the husband to pay her “wages in kind” (ojrat al-meṯl) for the work she has done during marriage, provided that divorce is not initiated by her or is not caused by any fault of hers. If this is not possible, then the husband has to make a “gift” to the wife, the amount to be decided by the court on the basis of his financial circumstances, the duration of marriage, and the tasks she has performed.
With the enactment of the Law of Formation of General Courts, which has brought about a restructuring of the courts, the Special Civil Courts disappeared. This law, ratified by the Majles and endorsed by the Council of Guardians on 15 Tīr 1373/5 June 1994, required familial disputes, like others, to appear in General Courts, presided over by either a mojtahed or a civil judge who had jurisdiction over all types of cases from penal to familial. Cases involving a dispute over the essential legality of marriage and divorce were referred to courts whose presiding judge was authorized by the head of the judiciary (Kešāvarz, pp. 9-14).
In 1998, changes in family law under the Islamic Republic seemed still to be unfolding and far from complete. On 1 Esfand 1375/20 February 1997, a bill was presented to the Majles requiring family cases to be heard in specific courts presided over by married judges with at least eight years judicial experience; it also required the presence of female advisory judges (mošāwarān-e qażāʾī-e zan). The bill was ratified on 8 Mordād 1376/30 July 1997. On 21 Aḏar 1375 the Majles passed a note to Article 1082 of the civil code, according to which a woman’s mahrīya, if in cash, should be recalculated to take account of inflation. The Council of Guardians approved this note on 6 Ḵordād 1376/29 May 1997.
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(Ziba Mir-Hosseini, Mansour Shaki, Jeanette Wakin)
Originally Published: December 15, 1999
Last Updated: January 24, 2012
This article is available in print.
Vol. IX, Fasc. 2, pp. 184-196