Iran: Follow-up to Response to Information Request IRN24008.E of 8 July 1996 on whether a mother in a very religious Muslim family would retain custody of her three sons aged between 5 and 15 years if her husband died of a heart attack, and on whether she would require a male protector

The following information was provided in a 4 July 1996 telephone interview and 11 July 1996 follow-up telephone interview with Dr. Homa Hoodfar, professor of anthropology at Concordia University in Montréal. Dr. Hoodfar specializes in women in Iran, women in the Middle East and women in development.

Custody is one of the most contentious issues in the Islamic Republic today, especially since the rate of divorce in major cities has increased in the last decade.

In Iran, the Shari'a has been codified as Islamic law. In the Islamic Republic, a distinction is made between the custody and guardianship of children. Custody involves the day-to-day care of the children. Upon the death of her husband, the mother may retain custody of her children until her son(s) attains the age of seven and her daughter(s) the age of nine. Sometimes custody of the daughter(s) can be extended to the age of 13 unless her husband's brothers or her father-in-law disagree or disapprove. Once the children attain these ages, custody is awarded to the father's father or his brothers. In many cases, the mother is able to negotiate for custody of the children with her husband's relatives. However, the mother cannot travel outside Iran with the children, cannot decide which school to send them to nor can she find them spouses. These decisions are made by the guardian.

The minimum moral right of the mother is to have custody of the child until s/he reaches the age of two at which time the mother stops breast-feeding. However, the father can even contest this right and can file for custody of the child from the day of his/her birth. In other words, legally, the right of custody over her child may be completely denied to the mother. Visitation rights are not part of Islamic law in Iran, so if a mother loses custody of her child, she cannot see her child unless the father permits it. However, because the father has guardianship, he can always see the child while in the mother's custody.

If the mother is young and she has a young child, her family may even pressure her to give the father custody of her child so that she will be less emotionally attached to her child and to make remarriage easier for her.

Guardianship of the children, on the other hand, always belongs to the father. If the father dies or is found unfit to be their guardian by the court, the guardianship of the children will be awarded to his father or his own brothers. Guardianship is extended through the male line of the father. The mother cannot get guardianship of her children. If she can prove to the courts that her father-in-law or her husband's brothers are unfit to care for the children, guardianship of the children will go to the court and the custody of the children to the mother.

Among some Iranian ethnic groups such as the Kurds, many nomadic groups and some rural societies in which a lot of social support does not exist outside of kinship, a strong tradition exists whereby if a man dies, leaving a wife and children, his unmarried brother will offer to marry her so that she will remain united with her children. If she remarries, she automatically loses custody of her children under Islamic law. The mother agrees to this marriage to keep custody of the children and to ensure financial security. (If the husband were a government employee, however, the widow would have some independent source of income.) The well-being of the children is paramount, and the uncle treats the children as his own. Since men are permitted to take up to four wives, if the uncle is unhappy in his marriage with his sister-in-law, he has the option of taking another wife. If the husband's brother(s) are married, one will often take the widow as a second wife in order to keep the children within the family. If the husband were rich, however, the brother(s) may marry the widow in order to have access to his wealth, in which case, the well-being of the children would not be paramount. This situation, however, would raise different problems.

The only exception to the above situation are the wives of the war martyrs of the Iran-Iraq war. Before his death, Ayatullah Khomeini passed a law stating these wives would not lose custody of their children to their husbands' paternal families. Having lost their husbands to the war, they would not lose custody of their children as well.

In a temporary marriage, the wife usually has less rights than a wife in a permanent marriage. The temporary marriage is usually viewed as a marriage of pleasure and having a family is not a part of this. If a child results from such a union, and a mother fights hard to get child support from her husband or his family, she risks losing her child to him. The source has never heard of a woman in a temporary marriage going to the courts to request more child support. Usually the women in a temporary marriage are less educated and poorer than those in a permanent marriage, and going to court is not a viable or likely option for them. Furthermore, the courts will not be more sympathetic to a woman in a temporary marriage than one in a permanent one.

Upon the death of her husband, a widow would not be required to have a male protector, although a strong tradition does exist that if she were to go to the court, either her father or elder brother would accompany her.

This Response was prepared after researching publicly accessible information currently available to the DIRB within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum.

References

Hoodfar, Homa, professor of anthropology specializing in women in Iran, women in development and women in the Middle East, Concordia University, Montreal. 11 July 1996. Clarification of information provided in 4 July 1996 telephone interview.

_____. 4 July 1996. Telephone interview.