The Scope of the Duties of Women According to the Civil Law
Legal-Jurisprudence < Article <

These duties are also stated in two sections in the civil law and the wife's willingness wards to her husband is also divided into two parts by the civil law like in the verses and traditions, that is specified willingness (intercourse) and general compliance, (the necessary points have been stated in the previous essay.) In general compliance the duties of the wife are of two categories: the first category are those which are common between husband and wife the observance of which is obligatory for both after concluding marriage contract. They are as follows:

    The common duties of the husband and wife according the civil law of the Islamic Republic of Iran, article 1102 states, "as soon as the marriage contract is correctly concluded, the marriage relationship beings and the mutual rights and duties of the couple are established". The common duties resulting from the marriage contract consist of four paragraphs."

1.    Honorable Conduct:

    The first duty assigned to the couple by the civil law is acceptance by the two parties to have honorable conduct towards each other as stated in article 1103; "the wife and husband are enjoined to have honorable conduct towards each other". This honorable conduct and mutual understanding in behavior and companionship is based on proper relationship, which forms the foundations of married life. This has also been emphasized in several verses in the holy Quran. Realizing the principle of love and compassion and maintaining peace and tranquility in the home and preparing the ground for the desired promotion and advancement of each member in the family are the results of the wife's willingness to the take care of these responsibilities. It should be noted that the exact determination of cases of misconduct or honorable conduct by law is impossible and since each individual follows his own special type of culture and customs and habits, it is not possible to give a uniform and standard definition for honorable conduct by the legislature. Maintaining the sanctities of the home and family, the influence of law, and obligation to implement its provisions without moral support is impossible and the intervention of government officials and the judiciary has seldom been able to settle family disputes and solve their problems. The more the family center is immune from the raid of legal quarrels and conflicts, the more it will enjoy stability and strength, and its members will enjoy a better character. The training, prosperity, and personality formation of those brought up by the family depends on the policy and conduct of the wife and mother. Therefore the practical obligation and moral conviction to adopt honorable conduct by the wife in all aspects will bring the best results to the family.

The Influence of the Mother's Conduct on the Society:

    When God wills to present to the world righteous beings such as Jesus and Moses (P) he first prepares the ground and paves the way, for instance, by granting a daughter like Maryam (P) to a righteous couple such as Imran and his wife. The mother of Maryam who had passed her pregnancy term in the hope of bearing a son, had solemnized a vow with God to offer her child to serve at the temple if she might have a son was then granted a daughter. She said, "O God' I have borne a daughter!" She was, however, instantly aware of another fact and said, "since my Lord is All knowing, what He has prescribed for me is certainly better and it may happen that this daughter may play a better part in the world than the son I wished for". Therefore she immediately says, "O God I will name this daughter Maryam (female worshipper), and I ask thee to grant her values and I hope that her womb will bring offspring into existence who will be immune from the offensive of Satan". And in this way the training and fostering of Jesus (P) begins from the very moment of her pregnancy. She brings up and trains such a daughter whom the prophet Zakariyah (P) envies and admires. God says in the holy Quran, "if the mother is righteous God will fully grant her prayer and wish, and brings about for her the best results in the world".

    Some reflections on the mother's intentions, prayers and supplications, and conduct in the Quranic verses: the holy Quran reveals surprising mysteries about creation and function of a woman in verses which are the best examples for any intelligent person:

1.    The supplication of righteous mothers is surely answered by God.

2.    The conviction of a mother to choose a good name is effective in the good conduct of her child, since we have in narrations that, "the names descend from heaven".

3.    They should enjoy sound mind and have hope in the vast compassion of God both in belief and practice and also during supplication.

4.    It may sometimes happen that one's prayer is not answered by God according to one's wish but the All Wise Creator prepares the ground for the acceptance of His servant's prayer and fully pleases him/her.

5.    The best time for the supplication of a mother to God is during the time of the delivery of her child. God bestows special favors and blessings upon the mother due to her tolerating the pain and the suffering of the delivery of the child, which are not granted to His other servants, one of which is the reward of martyrdom.

6.    When the mother intends to bring up her child properly for the mere pleasure of God, for this divine intention He will grant her good results and benefits in both worlds, which pleases both God and the mother.

2. The Proper Cooperation and Assistance to Strengthen the Family Foundation

   According to article 1104 of the civil law, the couple must cooperate and help each other to strengthen the foundation of the family and the training of their children. According to article 1178 the parents are responsible to the extent of their capacity for the appropriate upbringing of their children and must not leave them idle and alone. By "strengthening of the family" what is meant is the common attempt of the couple to blend their conduct and characters in a way that fosters mutual understanding and growth of a sincere relationship. This causes their unity and consequently the strengthening of the marriage ties. The foundation of the family, the strengthening of which has been assigned to the couple by law is the mutual love and affection of the husband and wife which guarantees the maintenance of the family and chastity and piety of each one in the couple. The Holy Quran has a beautiful comment in this respect, "if the mother suffers and takes troubles for children the father also must assume responsibility and should not hesitate or fail to attempt to earn their livelihood". Also to establish balance it says, "each one in the couple are responsible depending on their capacity". If the mother fails to perform her duties it leads to a decrease in maintenance and if the father shrinks from performing his obligations and causes distress and constriction for the wife, she can resort to the court for help or appropriate action by the judge.

3. Common Dwelling

    According to article 1114 of the civil law the wife must dwell and live in the house her husband chooses as the place of dwelling unless this choice has been granted to the wife in a condition stipulated in the marriage certificate. The husband, should consider the social status and dignity of the wife, and on the other hand,  the capacity of the husband should be taken into consideration by the wife. It is obligatory for the wife to live in the house prepared by her husband (although it is located in a place other than the place of her birth and upbringing) and if she refuses she has no right to receive alimony. This is also regarded as one of the cases of the wife's violation of the rights of the husband called Noshuz. But if according to the conditions stipulated in the marriage certificate the wife has been granted the right to choose the dwelling, the husband must provide a residence where the wife pleases or suggests, because he has accepted the condition and has delegated this right to his wife. The rule "no harm" and "exception in leaving the husband's house" which is provided for in the law must be observed in the choice of dwelling. Article 1115 states that if the living of a wife in a house involves fear of physical of financial harm or the loss of prestige for her, she can choose a separate dwelling and if this suspicion is proved, the court will not permit the wife to return to her husband's residence. As long as the wife is excused from returning to his house the husband must pay her maintenance. Concerning the fear of loss of prestige, it is stated in law books as follows, "loss of prestige is the fear of the wife that as a result of shouting and abusing of her chastity by the husband, the attention of the neighbors and passers-by is attracted and is a cause disgrace for her. Also is included if the husband brings inappropriate people around the house and the wife fears that their association with her husband may harm her reputation in the social environment.

Determination of the Residence by the Court before Settlement of the Case     

    According to article 1116 of the civil law, "as long as the dispute is not settled in the above-mentioned case, the residence of the wife is determined by mutual agreement, and in the case of disagreement the court will decide after consultation with close relatives of both parties and in the absence of relatives the court will determine a safe residence for the wife. This article means that if the wife leaves her husband's house because of the rule of "no harm" this does not imply that the wife has the right to choose her residence as long as the court does not settle the case. But a safe residence will be determined for her by mutual agreement of the couple or close relatives or the court.

4. Faithfulness of the Wife towards Her Husband

    Although there is not any direct statement about this common duty of the couple in the civil law, the silence of the legislator is because this case is quite obvious for every Muslim, man or woman. In other words the shame and disapproval of disregarding this duty in the Islamic religion has removed the necessity for its insertion in the civil law. Considering the severe punishment which penal law has prescribed for this offence, we find that committing this violation is not only a refusal of moral commands but a severe punishment. The payment of damages in addition to the severe punishment in the next life is due to the transgressing of the boundaries of God. Because it is very difficult to prove this offence and many conditions apply regarding circumstances and evidence, examination of this kind of punishment and its manner of implementation in Islam implies the message that by penalty, only punishment is not meant. It is the creation of psychological and social safeguards in the soul of the society against its related ills and harms, the result of which is nothing except evil and corruption.

    The maximum punishment for adultery requires several conditions 1) The person must be married, 2) The person does not have access to his/her spouse, 3) The person must know the law, 4) The person must be a Muslim, 5) The person must be sane, 6) a woman must not be pregnant, 7) a woman must not be breast feeding, 8) The person must either state four 4 times or four 4 just people in the same session must state that they have witnessed the actual act of intercourse.  Imam Ali (P) the commander of the faithful recommends repentance before making this statement is four times.  It is almost impossible for four just people to witness illicit sexual intercourse between two people.  

     The manner of implementing penalty is not only meant for the punishment of the individuals but prior to it this, is aimed at warning them against and prohibiting them from committing any offence. It is surprising that modern human beings are so deeply absorbed in their humanistic views and beliefs which disregard any sort of restriction in sexual affairs as discrimination occasionally suggest and freedom of all kinds of sexual relations and raise the issue of discrimination during international conferences and conventions. They are so shameless and immodest that they do not respect the sanctities of the home and family in their opinion and regard the prohibition of adultery as a denial of freedom.

    It should be stated that in many countries in the west, after marriage the couple have certain obligations which are necessary to fulfill in order to maintain and continue common married life. But feminism is gradually trying to eliminate any law in this regard. For instance in the French law although the wife and husband are not equally punished for this offence, if a wife betrays her husband she is always condemned to imprisonment the husband's penalty never exceeds the payment of damages. This is when he has continual relations with another woman in the common residence of the couple. It should be noted that in the Islamic penal laws, first of all there is no difference between the husband and wife in punishment, and secondly it is not regarded as a private right. In some countries this case will be dealt with only if the spouse complains or resorts to the court, but if the spouse ignores or forgives the offender the prosecution will be stopped and the case will end. Where as in Islam, in order to maintain the sanctities of the home and the wholesomeness of the succeeding generations and society, it is considered a public crime and being indifferent to it and ignoring it is considered disregarding and transgressing the bounds of God. Therefore the implementation or suspension of punishment does not depend on the spouse's demand or forgiveness but in order to maintain the interests of the society, penalizing this kind of offence is at the discretion of the Islamic judge.

The Specific Duties of the Wife:

    This is not directly stated in the civil law but article 1108 says, "if the wife refrains from willingness to have relations with her husband she will have no right to receive maintenance". Refusal to perform this duty in the civil law is the equivalent of the term Noshuz in jurisprudence, and Noshuz and Tamkin and their various types have been dealt with in detail in the pervious essays.

    The issue the wife leaving her husband's house without his permission and agreement, is often protested and criticized in the field of law and according to humanistic views is regarded as a sort of restriction against the freedom of a woman or infringement into the position of the wife by the husband's supervision. In law books the compliance of the wife means not leaving the house without her husband's permission.

    This is among the cases of general compliance and is regarded as the result of the husband's authority after marriage. Therefore in dealing with the results of the husband's authority it is argued that the husband can supervise the association of his wife with others and forbid her from actions and behavior which threatens the wholesomeness of the home and family life in order to maintain the interests of the family. The focal point in Islam is the interests of the family.

    However, he does not the right to prohibit her from association with her close relatives or from performing obligatory religious or social duties arbitrarily or without any plausible reason. Although based on a misconception, some people think that Islam has left the way open for the husband to do as he pleases and has prescribed some restrictions for the wife. This is a mistaken theory and unjust accusation against the laws of Islam, which stem from a male-centered attitude and a subservient concept of woman. Islam is neither male-centered nor woman-centered. The axis of Islamic law is truth-centeredness on the basis of human nobility and the interests of the home and family. Women are inclined to the truth, the agents of values and responsible towards their family and society. The Holy Quran says,

"Men supervise and support women". This is not an advantage for the man, rather it is a duty and a responsibility. In performing this duty man is not left free but he has been restricted through many limitations and conditions mentioned in many verses.

a)    It tells men to take responsibility and manage their family affairs. This position is regarding the performance of their duties concerning the family. It does not mean that man is the ruler and can do whatever he pleases.

b)    Another major condition that forms the axis of the family law in the Holy Quran and is obligatory for both husband and wife, is observing the principle of "Maa'ruf" that means honorable and proper. Emphasizing this principle is the continuation of the principle of, "Recommend good and forbid evil", in social life. Therefore, man does not have the right to command or impose upon the wife anything beyond the limits of what is 'honorable and proper'. Even in the matter of allegiance of the women to the holy prophet (P) which is a social affair, the Holy Quran restricts him to " امر به معروف و نهي از منكر " "recommending good and forbidding the evil". While he has the status of infallibility, this verse implies another fact, that no ruler or authority must trespass the limits of Maruf  " معروف"  the principle of what is "proper" (being honorable) and that his authority and power should not lead him astray. Furthermore, he should not take any actions, which will lead him astray or without observing the principle of "good". On the other hand, women must accept anything which is in the scope of her duties within the limits of Maruf  " معروف " the principle of what is " proper or good" and this is the meaning of the valuable concept of truthcenteredness.

c)    Another condition frequently repeated in the Holy Quran is:

1. Abolition of any sort of damage and/or of violence, slander, force, or evil by man towards his wife, among them is the following verse,

" لا تمسِكوهُنَّ … "

"You exceed the limits, and whoever does this, he indeed is unjust to his own soul; and do not take Allah’s communications for a mockery,"

This means the family center enjoys a circuit wherein the fire resulting from insecurity and the violation of the rights of others by a member return to burn him/herself.

2. One must refrain using God's verses for his/her own convenience and selfish objectives and desires. 

      We realize from the collection of verses that the husband can not command and exert his personal opinions on his wife outside the commands of God and the principle of what is "honorable", nor can the wife accept her husband's orders if they are outside the realm of God's commands and the principle of what is "honorable".

    Concerning the exceptions to the rule of seeking permission from husband according to the traditions are, "except in pilgrimage to Mecca, or Zakat, or doing good to the parents, or connection with close relatives". Only precisely within the circle of Divine commandments can the husband rule the wife on anything, not on anything which is outside of this. If God commands performing acts of worship, hijab, doing good to parents, or relationship with relatives, the husband should not forbid his wife from performing these acts, except when there is a more important rational consideration of the interests of the family or if a vow has been solemnized in this regard by the wife and she has the obligation to perform it.

The Role of the Husband's Permission in the Occupation of His Wife:            

    According to article 1116 of the civil law, "the husband can forbid his wife from choosing an occupation or industry which is against the interests of the family,  the prestige of his wife or his own prestige. That is affairs which cause weakening of the family foundation or disturb the training, education, and maintenance of the children or the social prestige of the couple, or confuse the economical order of the home and family". Of course the proper determination of family interests in case of the disagreement of the couple cannot be considered the exclusive right of the husband, because he may occasionally take advantage of this authority.

Justification of the Difference Present in the Civil Law Concerning the Wife's Occupation:

    Since according to the civil law, earning a livelihood is the responsibility of the husband, there are some differences in the legal system concerning their rights and the nature of occupation between the husband and wife. On the other hand, due to specific duties that civil law, common law, and nature have assigned to the mother, there are in practice some restrictions for her in choosing an occupation. For example, according to the article 169 of the civil law concerning nurturing by the mother, since the child needs the mothers milk and presence more than anything else, all social occupations regardless of their importance do not exempt the mother from this duty. The father is always responsible for their livelihood, and any occupation that is not compatible with the duties of motherhood and causes her to be separated from her child or threatens the family should be legally examined from the legal point of view.

Authors: Ezatossadat Mirkhani
Content Type: Article
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