Women’s Rights and the Guardian Council’s Barrier

By Marzieh Tofighi Darian

In recent months, there has been a spike in the number of bills that members of Parliament and the executive branch have proposed and presented to Iran’s Parliament aiming at ameliorating laws that have historically discriminated against women and providing more robust protections for their rights. This paper looks at some of these new parliamentary and presidential initiatives seeking to expand women’s rights. With respect to some of the most recent events, I look at the reasons for such an upsurge in the number of proposals and the prospect of them ultimately getting passed by the Guardian Council- the organ of judicial review composed of six Islamic law specialists or Muslim jurists (fuqahāʾ) and six lawyers entrusted with the task of evaluating legislation for their compatibility with the Constitution and sharīʿa.[1]

The Women’s Caucus in Parliament and the Office of Vice Presidency for Women and Family Affairs have engaged in drafting bills and proposals that target the most conservative parts of the Civil Code (1935 with subsequent amendments) and other relevant laws about women and children. These laws have usually been less favorable to women and children on the more traditional understandings of the Islamic law (fiqh). The new initiatives cover a wide range of issues: calling for equalizing diyah (blood money under Islamic law) of men and women;[2] transferring the guardianship of minor children to their mothers in the absence of father[3] (instead of paternal grandfather according to the Islamic rules);[4] raising the minimum age for marriage; eliminating the requirement of getting permission from a guardian to get married for women;[5] removing the ban for women to leave the country without the permission of their husbands;[6] and efforts for adopting a new law on preventing violence against women[7] are among the most important initiatives by these offices.

The calls to reform these laws and expand women’s rights are not something new within the Iranian civil society. However, it seems that now women have gained a momentum to raise their voices more vigorously on the political level. The political and legal pursuit of women’s rights, in part, can be attributed to the composition of the new Parliament. The current Parliament is composed of 17 women. This is the highest number in the history of the consultative assembly and almost all of these women are members of the reformist groups. Women Caucus has been working alongside the relatively proactive office of Women and Family Affairs in the executive branch, which has recently been promoted from an advisory position to the vice presidency. This coalition between the two organs signals women politicians’ determination to change the status quo. The effort to reform these laws is by no means an easy task. All the existing laws on these subjects are either directly taken from the Islamic jurisprudence (fiqh) or are based on the traditional understanding of the status of women in the household and her role in the family.[8]

The efforts of Parliament in amending Article 1041of the Civil Code is an instance demonstrating this determination to go after the laws curtailing women’s rights. Article 1041 regulates the minimum age for marriage setting it at 13 and 15 for girls and boys, respectively. This Article also makes an exception for marriage under the minimum age provided two conditions are met: the permission of the child’s guardian and approval of the court.[9] The exception has opened the door for guardians who, abusing this power, marry off their children. Poverty and cultural considerations in some regions are the main reasons for such underage marriages.[10]

In August 2018, the news broke that a female deputy prosecutor of Mashhad – Iran’s second largest city- stopped the marriage of a 9-year-old girl to a much older man despite her father’s permission. Ordering more investigations, the deputy prosecutor transferred the child to the custody of social services. Members of Parliament praised her for showing courage and standing up for the child’s rights.[11] This incident also prompted a group of MPs to draft a bill calling for amendment of article 1041.

The 1935 Civil Code (Volume II) was the first law codifying the minimum age for marriage in Article 1041. It prohibited marriage for girls and boys under the age of 15 and 18, respectively, except for instances where it is determined to be in the best interests of the child. Upon the recommendation of the prosecutor, the court shall determine the best interests of the child and approve the marriage. However, the article went on to ban any grant of permission for girls under the age of 13 and boys under the age of 15.[12] Article 1041 was revised in 1991, for the first time after the 1979 revolution. The new Article 1041 simply banned marriage of minors, defined as prior to the age of puberty. Article 1210 of the Civil Code defined the age of puberty as 9 years old for girls and 15 years old for boys according to traditional Shīʽī’ law. This Article went even further by authorizing marriage even before the age of puberty when is determined that such marriage was in the best interests of the child and pending the permission of the child’s guardian.[13]

In 2000, when a reformist Parliament took over, members of Parliament adopted a law prohibiting the marriage of girls and boys under the age of 15 and 18 respectively except where the court grants a permission.  The Guardian Council, exercising its power of ex ante judicial review, struck down that amended law arguing it was against sharīʿa.[14] The Council, however, failed to give any explanation or justification for its decision.

The reformist Parliament, in response, insisted on its previous enactment. As a result, it triggered another level of constitutional review by the Expediency Council. The Expediency Council is tasked with resolving disagreements between Parliament and the Guardian Council taking into consideration what best serves the interests of the country.[15]

In 2002, the Expediency Council used its original legislative authority to directly adopt a law that banned the marriage of girls before the age of 13 and boys before the age of 15 except when the child’s guardian gives permission and the court approves the decision as being in the best interests of the child.

Women Caucus proposed the most recent bill on September 26, 2018. The new bill is another piecemeal effort by Parliament to increase the minimum age for the child marriage. It proposes a minimum age of 16 and 18 for girls and boys, respectively, and provides for a blanket ban on any marriage prior to the age of 13 and 15. The bill in its introduction cites the physical and psychological harms of such marriage, its impact on girls’ education, and the rising divorce rate as reasons for proposing the reform. The bill further permits the possibility of marriage between the age of 13 to 16 for girls and 15 to 18 for boys pending the permission of the guardian and approval of the court.[16]

The fate of this bill will test the Guardian Council’s willingness to hear and respect the society’s demands about revising these discriminatory laws. Women politicians have taken it upon themselves to fight against these laws, but it is unclear if they have enough power to overcome the Guardian Council- an all men conservative body. These bills will – sooner or later – end up before the Guardian Council for constitutional review. However, the Council’s reputation with regard to women’s rights does not sound promising. The Guardian Council did not yield to Parliament’s view on the child marriage question the last time it considered the matter. It has also resisted other parliamentary enactments eliminating discriminations against women in recent years. In 2012, the Guardian Council struck down a law that, revising Article 976 of the Civil Code, gave Iranian women the same right as men to pass down their citizenship to their children.[17] The Council did so while conveniently hiding behind the claim that the revised law violated Article 75 of the Constitution and therefore did not touch upon the question of sharīʿa compatibility. Article 75 provides that: “the legal proposals, suggestions, and amendments to the existing bills which lead to reduction in public income or increase in public expenditure can only be introduced in Parliament if they also specify how the reduction in income or increase in new expenditure is to be compensated.”[18]  With the new wave of laws coming the Council’s way for constitutional review, we should see whether the Council will act differently this time.


[1] QĀNŪN-I ASĀSI-YI JUMHŪRI-YI ISlĀMĪ-YI IRĀN [The constitution of the Islamic Republic of Iran] of 1358 /1979 as amended in 1989 [hereinafter Iranian Const.], Art. 91 and 94. Also see: https://beta.shariasource.com/documents/3134

[2] Parliament Is Preparing a Draft Bill to Equalize Diyah (Jun. 22, 2018), https://www.radiozamaneh.com/402701.

Under sharīʿa rules, diyah of women is half of the men. For example see:


[3] The Bill Amending the Law on Protection of Family Is Received by the Parliament (Aug. 23, 2018), https://www.isna.ir/news/97061306377/طرح-اصلاح-قانون-حمایت-از-خانواده-اعلام-وصول-شد

[4] For a sharīʿa rule for example see: http://www.imam-khomeini.ir/fa/c78_125051/استفتائات_امام_خمینی_س_/ج_9/حق_حضانت_فرزند_بعد_از_فوت_پدر

[5] The Bill Amending Articles 1043 and 1044 of the Civil Code: http://rc.majlis.ir/fa/legal_draft/show/1064009

For a sharīʿa rule for example see: http://www.imam-khomeini.ir/fa/c78_63623/کتاب/رساله_توضیح_المسائل/شرایط_عقد

[6] Will the Law Remove the Requirement of Husband’s Consent for Leaving the Country? (Jul. 19, 2017), https://www.fardanews.com/fa/news/699715/شرط-اذن-همسر-برای-خروج-زن-از-کشور-حذف-می%E2%80%8Cشود

For a sharīʿa rule requiring the wife to get husband’s permission to leave the house see: http://www.imam-khomeini.ir/fa/c78_125908/استفتائات_امام_خمینی_س_/ج_9/حقوق_زن_و_شوهر_نسبت_به_یکدیگر

[7] We Are Working to Change the Laws on Inheritance and Grandfather’s Guardianship (Apr. 28, 2018), http://www.icana.ir/Fa/News/380824/لایحه-تامین-امنیت-زنان-منتظر-امضای-رئیس-قوه-قضائیه-به-دنبال-تغییر-در-قوانین-وراثت-زنان-و-ولایت-جد-پدری-هستیم-طرح-مقابله-با-اسیدپاشی-در-راه-صحن-علنی-مجلس

[8] See footnotes 2-6.

[9] Qānūn-e Madanī [Civil Code] 1307-1313 [1928-1935], Article 1041

[10] Child Marriage is Child Abuse (Aug. 4, 2018), http://women.gov.ir/fa/news/9141/ازدواج-زودهنگام-مصداق-رسمی-کودک-آزاری

[11] No to Child Marriage (Sept. 2, 2018), http://women.gov.ir/fa/news/9268/-نه-به-ازدواج-کودکان

[12] Parliament Deliberations (Nov. 20, 2008), http://www.hvm.ir/DetailNews.aspx?id=12667

[13] For the English Translation of Iran’s Civil Code see: http://www.wipo.int/edocs/lexdocs/laws/en/ir/ir009en.pdf

[14] Guardian Council Opinion, No. 79/21/1161, 11/09/2000, http://nazarat.shora-rc.ir/Forms/frmMatn.aspx?id00=0ptcz3LIAVc=&TN=l7tLyhyOobj0SooAFUE3m5rC3iufWLR1csaqpt/F9Oo=&MN=csaqpt/F9Oo=&id=/Yrh5rlI0fM=&tablename02=l7tLyhyOobj0SooAFUE3m68PnpG7MruN

[15] Iranian Const., Art.112: “The leadership orders the Expediency Council to meet in order to attend to cases where the Guardian Council finds legislation made by the Islamic Consultative Assembly in violation of the sharīʿa or the constitution; the Assembly, with regard to the welfare of the system, does not sustain the opinion of the Guardian Council; or for consulting on affairs that the leadership will refer to the Expediency Council; or other duties that are mentioned in the constitution…”

[16] The Bill Amending Articles 1041 of the Civil Code: http://rc.majlis.ir/fa/legal_draft/show/1074320

[17] The Bill Amending the Citizenship Law 05/22/2016: http://rc.majlis.ir/fa/legal_draft/show/971415

[18] Iranian Const., Article 75.

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