Marriage Vows Not Always Enough in Tajikistan
|Publisher||Institute for War and Peace Reporting|
|Author||Mukammal Odinaeva, Lola Olimova|
|Publication Date||30 January 2009|
|Citation / Document Symbol||RCA No. 564|
|Cite as||Institute for War and Peace Reporting, Marriage Vows Not Always Enough in Tajikistan, 30 January 2009, RCA No. 564, available at: http://www.refworld.org/docid/498703ccc.html [accessed 23 December 2014]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Missing out on a state-registered wedding can be storing up trouble for wives in future years.
By Mukammal Odinaeva and Lola Olimova in Dushanbe (RCA No. 564, 30-Jan-09)More and more married women in Tajikistan are being deprived of property rights, especially if they get married without going through the legal formalities.
IWPR has spoken to numerous Tajik women, some of whom went through the state registry office and others who were only married by a cleric, and discovered a pattern of discrimination when property disputes emerge within the family, especially when couples separate.
Under Tajikistan's secular legal system, women have equal rights, so that in the event of a divorce, they can claim half the assets acquired by a couple in the course of a marriage.
However, these rights are often denied to them by the husband's relatives, and many are not sufficiently well educated to be aware of the legal position, or cannot afford to hire a lawyer.
After divorce, and also if the husband dies, women commonly lose both property and home, since traditionally a bride goes to live with her husband or his parents.
In such cases women have the right to redress through the courts, even if they do not claim it.
The legal position is significantly worse for the many Tajik women, and perhaps the majority in rural areas, who do not go through the state marriage registration procedure, confining themselves to the Muslim wedding rite known as "nikoh".
Official statistics show that while marriage is more common than ever, the number of weddings registered with the state has fallen by 60 per cent since 1991.
In such cases, the law recognises neither marital status nor the rights and protections that go with it. Because the marriage never existed in the eyes of the law, dissolving it becomes a simple matter. Under a rule taken from Islamic law, the man merely has to repeat the Arabic word "talaq" three times, which carries the meaning "I divorce you". In Tajikistan, the phrase "se talaq" - "three talaqs" - is sometimes substituted.
According to lawyer Yelena Kamalova, unregistered marriages create many problems both for women and their children.
"It means that a wife cannot be recorded [officially] as living in her husband's house and does not legally own property acquired by either spouse during the marriage," she said.
Children born of these marriages cannot be given the father's surname without his consent, and because divorces in such cases have no legal status, women cannot claim child-support money.
"Those hasty marriages have terrible consequences," said a gender rights expert, who asked not to be named. "After a divorce, a woman and her children end up with no property and no income."
The trend towards religious-only weddings appeared after the end of the Soviet Union, as Tajik society reverted to traditional practices, and the presence of state institutions and the public services they provided diminished in the countryside.
The increasing number of women below the poverty line have limited access to education and employment.
Women are caught between social pressure to look after house and children and the need to earn money to supplement the household income. New brides in particular, are expected to be subservient to their husband's family and do all the menial tasks, and the mother-in-law exerts considerable control over her life.
"It is no secret that conditions have changed and almost every woman now has to work outside the family," IWPR was told by a gender rights expert who asked to remain anonymous.
"At home, she still has to run the house, take care of any sick and elderly family members, and bring up the children. But how many women do you know who have their own house, land plot, or car? Usually, all the family property officially belongs to the husband," she said.
This overwhelmingly Muslim society has also seen a return to polygamy, in part because social upheaval caused by a civil war and severe economic downturn in the post-independence years has left women with few options.
Since polygamy remains illegal, second or third wives are necessarily "unofficial".
In theory, the clerics who perform the "nikoh" rite are supposed to demand to see a marriage certificate issued by the registry office, known here by the acronym "ZAGS". However, many flout this rule as it is divine blessing, not that of the state, that carries real significance for many people.
"Any Muslim man wishing to get married can go to any village in any part of the country, pay the mullah and contract marriage according to the nikoh tradition," explained political scientist Rahmon Olmasov. "The mullah will never ask him whether he's [already] married or not, whether he has children, or whether he's able to provide financially for both his first and second families."
The gender rights expert believes mullahs often conduct weddings without asking too many questions because the fee is an important source of income for them.
Lola Jalilova, an activist with a women's rights group called Dilafruz, in the southern town of Qurghonteppa, says she has seen many cases where young women have suffered.
One of them involved a woman called Sadbarg, who appealed for help from the group after being thrown out of the family after five years of legally-registered marriage.
It all went wrong when her husband Ismat's married sister moved in. Ismat's family, and especially his mother, started accusing Sadbarg of infidelity, an unpardonable offence in rural Tajikistan.
"My mother-law and sister-in-law competed in trying to slander me as possible¦. Only my father-in-law was on my side, consoling me when no one else was around," recalled Sadbarg.
Ismat was pressured into making his wife stay at home, warning here, "If you try to leave the house during the next six months, I will say 'se talaq'."
She continued, "I obeyed, for the sake of my children and my marriage, I didn't go out for six months. I cooked and washed the clothes. In all that time, I did not leave the house, I did not see the sun, the stars or the fresh air, I did not meet my own relatives or the neighbours, I did not hear music or even a kind word. I wanted to prove I was innocent."
However, this period of seclusion did not create peace, and her husband's family kept insisting he throw her out of the house. "At last, Ismat gave in to the pressure and said, 'Get out of my house'. He turned me and my son out of the house." she said. "Now I live with my parents but I don't want to keep silent any longer. I am not a slave."
The Dilafruz group supported Sadbarg's legal action and she cleared her name in court. The judge also ruled that Ismat must allow Sadbarg back into the house.
In the end, Sadbarg found herself unable to do so. In the courtroom, Ismat said the words "se talaq", ending the marriage de facto.
ABUSE BY RELATIVES
Sabohat, a woman from a village just outside Dushanbe was - unlike Sadbarg - legally married, but that did not stop her in-laws taking matters into their own hands. Once again it was the arrival of a sister-in-law that ended what in her case had been 15 years of marriage.
After life under one roof became impossible, her husband Nurullo filed for divorce under pressure from his family.
Sabohat was unable to move back in with her parents as her brothers were in residence there and had started their own families. She found a temporary place to stay in a kindergarten, but received no financial help from her husband. Last summer she filed a court action which resulted in a ruling in her favour.
Once again, the husband announced a separation with the "talaq" formula, but even so, judges said he must give her a separate place to live in his home, plus alimony payments. However, Sabohat felt uncomfortable and did not go back to the house.
A further case involves Mutabar, a mother of three who had been legally married for 18 years, but nevertheless found herself divorced without her consent.
Her husband had been away from their home in Vahdat district east of the capital Dushanbe for three months some time, serving with the military, when he told her by phone that he had divorced her.
He had somehow managed to persuade a ZAGS office to approve a legal divorce. This could only be done using connections and bribery, as Tajik law requires the participation and consent of both partners.
But then he told her that he was not divorcing her the way that really counts from society's point of view - by saying "talaq".
"I'm not driving you out, we've got three children," he said, according to Mutabar's account. "But I'm going to bring a second wife into the house. There's room enough for everyone."
Mutabar went to court to contest the divorce, but to her surprise, the judge ruled that the certificate issued to Ismat was valid. Then she brought an action to divide their common property, which included their three-storey house. Her husband managed to hold up the process for a year, and when Mutabar appealed to a higher instance, the case had to start all over again.
Another woman interviewed by IWPR, Firuza, has spent the last decade fighting to reclaim the house her husband built in the southern district of Kulob before his death. When he first became ill, the family moved to the capital so he could get treatment. In the interim, his brother moved his family into the Kulob house and refused to vacate it when Firuza was widowed.
Now living in her father's home with her two children, Firuza has yet to obtain justice. The Supreme Court of Tajikistan has issued rulings in her favour but these are being ignored.
Like many others, she feels her rights are ignored because she is a woman and lacks connections. "I'd have won quickly enough if my father or brother had been a prosecutor or a judge," she said.
MIGRATION PUTS STRAIN ON WOMEN'S ROLE
Another factor affecting women's rights is the fact that their husbands may be absent from the family home for long periods of time. Hundreds of thousands of Tajiks work abroad in Russia and Kazakstan, sending back money to support their families.
Some go only for the warmer seasons when most casual labour is hired, but others spend longer stretches abroad, or even settle down there.
Their prolonged absence can lead to marriage breakups and exacerbate relations between the wife and her in-laws.
Muhayo's husband left for Russia a month after they got married in the village where they live in Fayzabad district. After that, she faced constant hostility from her mother-in-law, who complained that she had not brought a sufficiently large dowry to the marriage.
She says her mother-in-law mistreated her, lied to her husband about her on the phone and would not let him know that Muyaho had borne him a child, and withheld the substantial sums he was sending home from Russia.
A local woman's group called INIS helped Muhayo bring a legal claim for money to support her and the child, who was legitimate as the marriage had been properly registered. The mother-in-law denied all knowledge of money payments or even the man's whereabouts.
In this case, the judge ruled in Muhayo's favour and required the mother in law to return her personal property and pay compulsory child support. This is now happening and Muhayo is looking forward to her husband's eventual return.
Raihona Haqberdieva, who heads the Dilafruz group in Qurghonteppa, says the social consequences of mass migration and extended separation have not been fully understood yet.
One obvious sign of change she has noticed is that men whose marriages are based only on a nikoh ceremony have taken to dissolving the union from thousands of kilometres away.
"There are many women coming to our crisis centre whose husbands have said "talaq" to them over the phone. This is a new phenomenon for Tajikistan. It means a new technology has brought more harm to our women," said Haqberdieva.
That is what happened to Zebo, a 25-year-old with two small children in the Bokhtar district of southern Tajikistan, whose husband found a new partner in Russia.
After he called to say the words, Zebo was left with no financial support from him, while his family did not provide her and her children with shelter.
She is now dependent on her mother, 62-year-old Bibifotima, whose monthly pension is just 30 US dollars a month, and on her elder brother who has four children of his own and also works abroad.
The Dilafruz group is helping her press an alimony claim for 25 per cent of her husband's income. Her case might look weak in legal terms, as there was no ZAGS registration, but the women's group is optimistic as a number of similar cases have ended in success.
Some Muslim clerics say the rules that the faith sets out on marriage and divorce have been badly distorted by custom and practice.
Domullo Murodjon Sobitzoda, the senior cleric at Qurghonteppa's central mosque, says Islamic law unreservedly recognises women's property rights including in the divorce cases.
"It is contrary to Islam and the precepts of Sharia to leave a woman with nothing. This happens because people are ignorant of Islamic law," he said.
Another senior cleric, Domullo Saidbek, who is imam or prayer-leader at the Kazi Abdurashid mosque in Dushanbe and also a prominent theologian at the Al-Termezi Islamic Institute, is concerned at the growing number of divorces and the unfair treatment of women.
"It reaches absurd levels. They ring up or send a text message to say 'talaq' to their wives, or they get their mothers or other family members to say it," he said. "That runs counter to Islamic law on marriage, and also to any respect for one's wife both as an individual and as the mother of one's children. They [women] are in any case already humiliated and economically dependent in their husbands' homes. Sharia does not recognise such divorces."
Saidbek said that based on Koranic readings, "It does not matter if the house belongs to the husband, his wife and children have every right to live there."
When it came to divorce, he said, "All the property acquired during the marriage must be divided equally as long as the ex-wife had a part in acquiring it. And any property that she [initially] brought with her remains her own."
EDUCATION KEY TO CHANGE
Women's rights experts interviewed by IWPR agreed that the main obstacle that needs to be addressed is poor education and lack of awareness.
These days, many rural families do not believe daughters need advanced schooling. If they have to choose, it will usually be a son that goes on to further education.
"They don't think about the consequences and pay little attention to their daughters' education, and that's where the problems stem from later on," said Haqberdieva.
Girls are mainly taught how to run the house so they will be able to take care of their future husbands and children. (For an article on this issue, see Tajikistan: Teenage Girls Dropping Out of School, RCA No. 481, 02-Feb-07.)
The authorities are now trying to address this issue. A test-case prosecution of a man in the southern Khatlon district last year for preventing his daughters from attending school has apparently had a salutary effect. Teachers in many schools said overall attendance rates for girls improved after the case received wide coverage.
The gender rights expert interviewed by IWPR said rights groups and government both had work to do, and should collaborate.
"Local government bodies must monitor and register marriages, so that they issue the official certificate and only after that comes the nikoh," she said. "That's directly within their mandate."
A local group called the Gender Education Centre is setting up a mobile information and advice service to help women defend their rights in matrimonial disputes. It will also provide them with legal representation free of charge. Finally, the group has held practical training sessions to make women's centres and human rights groups across the country more aware of how the law should work.
The broader aim of the project, funded by the United States embassy in Dushanbe and a local coalition called From Legal Equality to Real Equality, is to get the recommendations of the United Nations Committee on the Elimination of Discrimination against Women put into practice in Tajikistan.
Mukammal Odinaeva is an independent journalist and Lola Olimova is IWPR editor in Tajikistan.