Enaakshi Majumdar and Rupakshi Sharma
- Advent of Regressive Changes:
On August 4, 2024, the Iraqi Parliament, in a diabolical move, introduced a bill proposing significant regressive amendments to the Personal Status Law of 1959. The bill, under the garb of “preservation of religious beliefs,” is a harbinger of an impending disaster for women’s rights in Iraq. Tied to the footholds of Ja’fari Jurisprudence, the proposed amendments aim to lower the marriageable age of women to nine years old, uphold polygamous marriages and rescind freedom to marry and/or establish conjugal relations with one’s own choice. Except for the sects of Shia and Sunni, the jurisprudence vehemently falls short of addressing any other religious communities. Thus, the bill, in its essence, engenders sectarianism, bigotry and disunity in the country.
2. Impairment of Laws and the Multitudinous Impact:
Articles 7 and 8 of the 1959 Personal Law prescribed 18 years as the minimum marriageable age for both females and males, with marriage below 18 years (but not below 15 years) permissible only in certain circumstances. Currently, the minimum marriageable age for females and males has been proposed to be affixed at nine and 15 years old, respectively. UNICEF reports that 28 percent of girls in Iraq are already married before the age of 18. The current bill exacerbates the present situation of child and forced marriages (CFM), resulting in an endless loop of sexual violence, early pregnancies and high rates of maternal mortality. Moreover, no law states that the marriageable age should not be under 18 years and States are free to decide the same as per UN Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages. This further perpetuates the menace of child marriages across the world.
Polygamy was not allowed under Article 3 of the 1959 Personal Law, except under given circumstances. However, the new bill threatens to usher in polygamy, asserting male dominance in an already patriarchal society. This directly accrues to women’s deprivation of dignity, inequitable divorce, child custody and inheritance rights.
The Bill goes on to stifle the Right of Freedom to Marry, by prescribing that Muslim men can marry only Muslim women and vice-versa. This is in clear violation of Article 16 of the Universal Declaration of Human Rights, which states that “men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family”.
The casket of barbaric amends also declares that as the Ja’fari law stands, a man can enjoy the pleasure of his wife at any time he wants and that his wife cannot leave their home without his permission. This amendment promotes marital rape and deprives women of their long-earned freedom in Iraq by introducing male guardianship. Additionally, Shia marriages will be officiated under Ja’afari law by religious authorities instead of civil courts, wherein the orthodox religious authorities will have an upper hand over personal status matters, leading to violations of women’s freedom in the country.
3. Recent Trends and Maintaining Status Quo:
A study by Pew Research Centre presents that out of 198 nation-states, 192 states have laws that specify a certain age for legally sustainable marriage, wherein alarmingly, 117 nation-states allow children to marry.
However, amongst recent trends across the world, developed countries like England and Wales have increased the minimum marriageable age to 18 years by the Marriage and Civil Partnership (Minimum Age) Act, 2022. Correspondingly, the Supreme Court of an under-developed country such as Tanzania has upheld a 2016 High Court ruling declaring Section 13 and Section 17 of the Law of Marriage Act, 1971 “unconstitutional”, directing the government to raise the marriageable age to eighteen years within a year.
Most nation-states in the Middle East and North Africa region, including Iraq, have also formally recognized the rights of children and women through the Rights of the Child (CRC) and Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). However, as many continue to allow exceptions to these protections, it jeopardizes the rights of women and children in these nations. In the age of socio-economic upliftment, liberalisation, and strides towards equitable realisation of women’s rights, state practice must depart from the exacerbating reincarnation of orthodox laws, especially after having ratified various international treaties recognising women’s rights.
At this juncture, Iraq must grasp the opportunity to kill the regressive Bill, which creates a ring of fire around women and their rights. A nation with a comparatively liberal personal law, Iraq should not roll back into an antiquated framework but rather set an example for its other Sharia law-governed counterparts, such as Saudi Arabia, Iran and Afghanistan, who are ill-famed for their ignominious laws.
Thus, as a prompt response, this anachronistic bill should be stopped in its tracks and status quo should be maintained in the current 1959 Personal Status Law to ensure the protection of women and children.