Independence And Economic Rights Of Women
Zahra Davar
Property is the most inclusive right an individual may have in relation to the entities in the material world. In other words, man has the right to property so he may live peacefully and easefully and develop his character.
In legal terms, property is a permanent right by virtue of which an individual can possess something within the confines of law and benefit from it altogether.
Hence, each individual as a member of the human society has the right to use his entire faculty and his relation to others in order that he can appropriate something. This, in fact, is one of the most basic social rights particular to individuals.
Women as members of the human society are no exceptions to this case. After all, women have not been granted rights equal to men from the outset. The history of women’s rights for attaining legal personality, social and economic rights, can be categorized in three phases:
1) The age of barbarism and idolatry in which women were not even considered human beings. They served as asset objects to be owned, equal to slaves and beasts of burden without dignity and power of choice. Women were used to gratify men’s needs and desires. In other words, they were treated as bodies rather than spirits.
2) The age of Greek, Egyptian, Roman and Iranian civilization: the religions and sublime thoughts of the social refomers gave birth to the advent of civilization; the advent of humane feelngs mingled with science and logic caused women to have material rights as human beings; yet, spiritually and socially they lacked legal personality; they were under complete domination of men in all aspects of life. Since, they had no legal personality, they could not manifest their potentials from a viewpoint of economic and social rights.
History tells us that only in Persia, shahzan (the woman who shared her husband’s life and was considered his main wife) had independent legal personality, shared her husband’s properties and at his death, took over the family in absence of a son. From this, one may conclude that women were weak creatures worthy of pity and protection.
The age of Islam: women attained legal personality and opinions changed. They gained rights equal to men, and shared their husbands’ properties. Their not interfering in men’s affairs was not owing to having an inferior personality but owing to the law of distributing duties (such as pregnancy, childbirth and ...). This change was so radical that women gained rights equal to men and all forms of discrimination were eliminated.
Thus, women could ultimately play a puissant role in the social arena, enjoy freedoms and rights as everyone else in the society, have economic rights, appropriate assets of their own and claim property.
On the same basis, when talking about freedoms and rights the Universal Declaration of Human Rights
, and the International Covenant on Civil, Political, Economic and Social rights use everyone or every human person, meaning men and women on the same level.
Study of Backgrounds of the Realization of Women’s Right to Property
As to the introduction stated above, we can say that women can have the right to objects and properties in two ways:
1) Kinship
2) Occupation
Here, we shall address the two topics.
1) Kinship: kinship, by definition, is the family relation recognized in one of the three ways below:
a) Consanguineous kinship: the relationship characterized by the sharing of common ancestors.
b) Affinal kinship: the relationship established by marriage.
c) Fictive kinship: the relationship established by being breast fed by someone other than one’s mother which is equal to relative kinship.
In each one of the consanguineous or affinal kinships, there are occasions when women have the right to own property;
Consanguineous Kinship:
By reason of consanguineous kinship, women can gain properties in two ways through the medium of their families. These two ways are marriage portion and inheritance.
1.1) Dowry: it is the property that a wife or a wife’s family gives to her husband upon marriage. This custom is not only common in Iranian or Islamic culture but also prevails in most countries. The philosophy and administration of marriage portion varies from country to country until 1262. In Scandinavian countries (Sweden, Norway, Denmark), girls were not granted inheritance and only at marriage, they obtained a small marriage portion from the one whose consent determined their destiny. A few decades before in Japan, the poor families let their daughters for a certain period in order that they could provide their marriage portion. The let might be done to a certain person or to brothels. At all events, after the fixed time expired and they provided a decent marriage portion, they could easily get married and this smut did not have the least effect on their social position nor did it ruin their chance of getting married.
Or in countries like India, violence against women has been intense in the recent years. Indian brides are savagely slaughtered by the groom’s parents for lack of a suitable marriage portion. It seems that in this country a marriage portion is a levy, which the bride’s family must pay to the groom.
It might be asserted that the philosophy of a marriage portion is manifold:
It helped a new husband discharge the responsibilities that go with marriage; it made possible for the bride to have economic independence: it made up the girl’s meager share in succession or the inheritance of her parents’ landed property (the girls’ share is half of the boys’) and most importantly, it consolidated friendship and created a spirit of cooperation between the two families.
A marriage portion either belongs to the bride or it is given to her by her family. Though the woman may entrust her marriage portion to her husband or to her future mutual children, the husband does not have the right to apportion them but rather he has the right to use them in a reasonable fashion, for legally speaking, a marriage portion is a wife’s private property.
The bride’s family tries to enhance the desirability of their daughter for marriage by providing her with a suitable marriage portion in proportion to their economic power although no article exists in law which necessitates the provision of a marriage portion.
Although the women are the owners of their property and that the husbands have no right to them, the women, in principle, entrust their property to their family and never make any mention of them. Assuredly, while the mutual life proceeds on the basis of love, friendship and morality, there is hardly any mention of these assets. However, when the foundation of family is shaken, the first problem is how to distribute the assets.
The time when one comes to ask what women’s rights are and what assets belong to them, one has to prove women’s claim to property.
In some countries, they usually make a list of the assets, and have the groom and his family sign it. However, such an act may be considered an insult to the groom, and an indication of misrust. Sufficed it to say that such an indication of mistrust at the beginning of a married life particularly when the two parties have not yet known each other can exercise a negative impression on them. As a last resort, the Iranian legislators have promulgated that while there is no proof for the women’s right to assets, the things that are most useful to them belong to them.
1.2) The inheritance: the transfer of property to an heir or heirs upon the death of its owner.
A brief study of the history of women’s rights shows that the inheritance of women becomes effective when they develop social personality.
As inheritance is either on sanguineous or affinal
basis, women as daughters, sisters, aunts, or nieces can obtain the share determined by law. Here are some examples for the further information of the readers.
Girls
Although in most countries today, boys and girls have equal share in inheritance, at least until the eighteenth century in most countries like France, Japan, China and so on, the landed properties went to boys: girls did not have any share or even if they had, it was in the form of a marriage portion.
However, Islam gave women social personality fourteen centuries ago, granting them a share in inheritance. The share of girls is as follows:
1. The girl is one of the heirs. If girls and boys are the heirs of the deceased, the share of the girls is half of the boys’. If girls are the heirs of the deceased, two-thirds of the landed property goes to them; and the rest goes to them if there are no other heirs.
2. The girl is the sole heir. She receives half of the inheritance by precept and the other half by refutation.
3. If the heir is the sole sister of the deceased, she is the sole heir; so, she receives half of the property by precept and the other half by refutation. If there are two sisters, two-third of the property goes to them.
4. If the brother and the sister are the heirs, the share of the boys is two times bigger than that of the girls.
5. If the woman is the mother of the deceased and the sole heir, her share is one-fourth of the property. If the deceased has children; the mother’s share is one-sixth of the property.
The reason that girls receive one half less than boys, is thus justified:
1. The men are responsible for the provision of things in the family; in other words, men are the economic center and women have no responsibilities whatsoever.
2. It is incumbent upon men to pay their spouses marriage portion, and they have no way to bar them from it even if they agree on it.
3. In executive laws, in paying blood money, women have no responsibility.
At the end of this discussion, I have to remark what goes to women as inheritance, is part of their property. Hence, as owners they can use it any way they desire because people are the masters of their properties.
Article 24 of the Cairo Declaration of Human Rights in Islam
stresses that: A) Everyone shall have the right to own property acquired in a legitimate way, and shall be entitled to the rights of ownership, without prejudice to oneself, others or to society in general. Expropriation is not permissible except for the requirements of public interest and upon payment of immediate and fair compensation. B) Confiscation and seizure of property is prohibited except for a necessity dictated by law.
Affinal Kinship
Affinal Kinship
When two people get married, they are obligated by certain rights and duties. Concerning these rights and duties which serve as a background for the right of women to property, the following four phases can be discussed:
Marriage portion is, by definition, the property a man gives his wife upon marriage. History shows us that in performing Greek ritual marriage or Roman patrimonial rights, the father could transmit these rights and duties to the groom for gift or money or even for free, because women served as mere objects to be owned and to be enjoyed. For the same reason, some believe that marriage portion is the price for woman.
In Islam, men are obligated to give some property to women as gift.
“And give the women their dowries as a gift spontaneous.”
(Surah an-Nisa, 4:4)
The Holy Qur’an gives the beautiful metaphor of the gift. With regard to the changes Islam creates and the status the Holy Qur’an gives to women, one can never agree that this is a price for women, because they have their social personality; they are not objects to be bought or sold. In other words, marriage portion is not a price for which women give in to intercourse. It is a commitment that law assigns to men, for it is not the subject of any contract in modern law.
There should be marriage portion at marriage and this is a canon, which neither of the parties can violate, for private contracts and agreements cannot overshadow canons. Hence even if marriage portion is not fixed at a marriage, the woman is given suitable marriage portion
and this refutes the claim of those who state that the suitable marriage portion is the price for women, for if the contract is based on selling and buying, and the price is not fixed, it nullifies the deal,
whereas marriage without fixed marriage portion is correct.
Most jurisprudents believe that there are no limitations on the amount of marriage portion; the only condition is that marriage portion should be a transmissible property.
Some others believe that the amount of the marriage portion should not exceed the one fixed by the holy Prophet.
It seems that such a basis should be respected, for it shall prevent the fixing of heavy marriage portions which cause the increasing of expectations and the deviations from cultural and social moral codes and problems of this sort.
Some people believe that marriage portion as the financial security for women in married life and an opportunity for their being independent of their husbands especially when the right to divorce is exclusive to men.
And if we regard marriage portion as gift, it is man’s respect for women.
At any rate, no matter wat the philosophy of marriage portion is, when the marriage contract is signed, marriage portion is transmitted to women.
From the points mentioned above, it becomes obvious that Islam and the Iranian law seek to protect women’s rights and provide their financial independence; however, socially speaking, marriage portion has gained a ceremonial quality only mentioned in the marriage certificate. Although it is ‘Ind al-Mutalibah’, meaning that man is obligated to pay it any time the woman demands it, in practice, as long as they live under one roof, there is never any mention of it. And only when the family pillars are shaken, the right to marriage portion is mentioned. And when the marriage portion exceeds the financial power of man, the marriage portion loses its protective quality.
Subsistence
Subsistence, by definition, is whatever is incumbent on man to provide for his spouse such as food, clothing, housing and the likes.
In other words, the responsibility of providing for the woman when she still stays with her family is on her father but when she is united in marriage and organizes a mutual life, the responsibility is shifted onto her spouse. Likewise, the responsibility is shifted onto her elder son if she is a mother without a husband.
At all events, a woman is provided for by her consanguineous or affinal kin when she is a girl, a mother or a wife. Hence, she does not have anything to worry about on that score because under Islamic law and jurisprudence, the man is the head and the economic pivot of the family, so he is responsible to provide for her family.
According to Islamic jurisprudence, the Iranian Civil Law determines the limits of subsistence;
Article 1107: Subsistence includes housing, clothing, food, and furniture appropriate to the situation of the woman and a maid if she is used to having one or if she happens to be sick, or handicapped.
Some Muslim jurisprudents
believe that subsistence must not be speci(ied by certain objects and that one should refer to common sense for determining subsistence, because subsistence differs at different times and places. Therefore, subsistence must not be limited to certain things. This seems natural because what matters in married life is the relation based upon mutual understanding and good conduct and the man’s obligation to satisfy her material needs and provide her with solace.
There is a long-standing controversy over the philosophy of subsistence. Some commentators argue that if we believe in women’s right to participate in all spheres of social and political activities, why should we reduce them to the degree of an object by considering subsistence for them? On the other hand, equal rights for men and women are accepted and women have the right to property. So, why should the law compel man to pay subsistence to woman?
Although Islam does not forbid women from participating in social activities and regards effective respect for their rights, it accords considerable attention to women’s physical condition in fulfilling their maternal and wifely duties. Although attempts have been made to provide equal opportunities of employment for men and women particularly over the recent decades, and the States move onto this track due to their internal policies and the recommendations of International assemblies,
these opportunities, in practice, are more given to men than to women. Therefore, women have a lesser chance to play their part in providing for themselves. Therefore, opportunities should be devised to provide for them.
In this regard, one can refer to paragraph 2, article 23 of the Universal Declaration of Human Rights and paragraph one, article 25 of the same declaration and paragraph B, article 7 of the Cairo Declaration of Human Rights in Islam
because in these articles, it is mentioned that man should provide for his wife and children and this does no contradict the equal rights of men and women. The other question, which comes up here, is if the woman is the owner of her subsistence or if she is just entitled to use it temporarily.
In this regard, the lawyers and jurisprudents hold that the objects in question should be categorized and divided. For example, the cosumable goods (such as foods), belong to women, but in other cases (such as housing, ...) the women have the right to use them but should attempt to look after them.
Another question, which emerges here, is this: do women have the right to receive subsistence if they happen to work and earn money?
At any rate, man is obliged to pay for his wife’s expenses. The legislators emphasize that subsistence is a rule to be obeyed and the women or other parties cannot cancel it. Even if women work and earn money, their husbands cannot oblige them to cover some of the expenses of their mutual life. However, women are instrumental in covering some of the expenses because they are more than ever before given the opportunity to work.
With a brief glance at Iran today, one can realize that women assist their husbands in covering every day expenses although men are obligated to pay for their subsistence. If they are employed, they expend their income in better administering the family; if they are homemakers, they cut down on expenses and if they are villagers, they do farming, carpet weaving and harvesting.
At any rate, this legal protection of women seems necessary although we witness women working and helping their husbands in most of the social activities.
In addition, the legislators have promulgated a law, entitling women to sue their husbands if they do not pay for their subsistence. Although this law can prove very effective in punishing men, it should not be ignored that what dominates the family is ethical practice and the law exercises its force when this ethical practice is violated.
Payment
The Islamic law regards effective respect for women’s personality and dignity; so, they are not obligated to do the house chores and the husbands do not have the right to oblige them to such chores as cooking, cleaning, tailoring and so on. Despite some prevailing beliefs, subsistence is not at all a payment for women’s housekeeping. Women do not do all these acts out of their own volition. That is why Islam entitles women to get payment for what they do at home, for in Islam, anyone is to be respected and deserves to be rewarded for their work. ·
The prevailing Islamic law regards divorce as a right particular to men. By virtue of this right, men can put an end to mutual life by paying alimony and marriage portion. After divorce, women need financial protection. Therefore, the legislators promulgated a law, which compels men to pay for the pains their spouses have taken during their married life. In other words, the spouses receive their share of the life, which they helped take shape, but now it has fallen apart. Some people believe that this act
is a manifest insult to the elevated status of women, relegating them to the degree of a house cleaner: However, it seems that if this law is viewed like marriage portion and subsistence from a materialistic point of view, such views can be proposed.
The fact is that if we view women as creatures endowed with dignity and personality with social and economic rights from an Islamic standpoint, we realize that the aim is to protect women’s rights and pave the way for their economic independence but not set a price for them or insult their dignity, as article 1 of the Cairo Declaration of Human rights in Islam
states, “Dignity is a right guaranteed for the entire human race and all people are equal in dignity granted by God and the inherent responsibilities and women have the same human dignity as men.
Inheritance
While women have certain rights during mutual life, they have other rights aswell when their husbands die, namely that they receive a share from their property just as the husbands inherit their spouses’ property in the event of their death.
The share of inheritance of each spouse is different and this is one of the inequalities between men and women. Men inherit from whatever their wives possess: yet, women do not inherit from real property. In general, the women’s share of their husband’s property can be discussed in two ways.
Amount of inheritance
If the husband dies and his wife does not have any children, she inherits one-fourth of the property.
If she has children, she will receive one eighth of the property.
In case one of the spouses happens to be to the sole beneficiary, in case of man’s death, the woman receives one-fourth of the property and the rest goes to the common wealth.
The properties from which women inherit
According to Civil Law inspired by jurisdiction, the wife’s share is half of her husband’s: furthermore, she is deprived of certain properties inherited. These properties include lands, trees, and buildings. The land whether built or not is not given to women as inheritance. Therefore, women do not receive a share from building and trees.
The philosophy of this may lie in the historical aspects of the tribes, lack of women’s property after their husbands death, and the transferring of them to the tribe.
At any rate, women enjoy their deceased husbands property. The laws of inheritance contradict the equal rights between men and women from the perspective of international documents. For example, in the convention of all forms of discrimination against women, paragraph E of article 16 recognizes equal rights for both spouses in all cases: equal rights for the spouses as to property, acquisition, administration, custody, and the transferring of properties whether free from or with charge.
Employment
Of the most obvious individual rights in any society is the right to employment. The right to employment is the logical resu1t of freedom of employment, namely that there is employment for those who seek it.
In other words, every individual has the right to choose his desired employment and use it as a means to earn his living and the state is obliged to provide this right for everyone.
In general, the goal of any employment, on the one hand, is to earn one’s living and on the other, to improve the economic condition of the nation. At any rate, there are certain points, which must be born in mind in this regard:
1. Everyone has the right to work.
2. Everyone has the right to the choice of his profession
3. Everyone has equal rights as to profession.
4. The workers have the right to protective rules.
5. The government is obligated to provide suitable profession.
With a glance at the international covenants, it becomes obvious that the right to employment is recognized for everyone without limitation of any kind due to sex, color, race etc.
Paragraph 1 of article 23 of the Universal Declaration of Human Rights suggests,“Every one has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment.”
Article 6 of the International Covenant on Economic, Social, and Cultural rights states:“The State parties to the present covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.”
And the Cairo Declaration of Human Rights in Islam in article 21:“Work is a right guaranteed by the State and Society for each person able to work.”
According to the Islamic Constitution, the right to employment is regarded as the inalienable right of each individual and according to paragraph 12 of article 3, the state is responsible to set up a correct and just economic foundation according to Islamic principles in order to bring about welfare, eradicate poverty and eliminate all deprivation in all areas of food, housing, work, health and providing social insurance.
Also paragraph 2 of article 43 states“The State is responsible to provide the possibilities and opportunities of work for everyone towards achieving full employment for all and provide the means of work for all who are able to work but lack the means.”
And the rule of employment of the Expediency Council states:“All people, men and women, are equally protected by the law and everyone has the right to choose any occupation provided that it does not contradict Islam, the general good and the rights of others.”
From the points noted above, it becomes manifest that there is no difference between men and women as to the choice of employment; both are free to choose and the only thing that limits their freedom is that the occupation chosen should not contradict Islam, and the public good. In the case of women’s employment, the following two points are noteworthy:
1. Women ate not capable of equal work with men due to their physical condition such as their delicacy, pregnancy, and maternal duties: so, they might encounter discrimination as to the choice of employment, lose their jobs, and get lower salaries. Hence, due to these reasons, they should be protected by the state and the state should take appropriate measures to safeguard their rights.
2. Women’s occupations are limited due to legal limitations. For example, the legislators have forbidden hard, dangerous work by women.
Therefore, even if we believe in the equal rights of men and women, we should persuade the States to take protective measures even if they are to men’s loss and to women’s gain.
The right to leave for childbirth, pregnancy and feeding is officially recognized as a way to respect and protect mother and child. The job security of women is ensured under certain special circumstances and the government puts services in priority.
Besides, there are two limitations as to the choice of profession on the part of women; the limitation imposed by the society for women’s jobs; in political affairs, (leadership, presidency, executive power presidency ...) and in official jobs (Judgment, military positions,) are among the activities in which women cannot actively participate: of course politicians and jurisprudents have different and sometimes contradictory views in this regard.
Secondly, limitation on the part of the spouse namely that the women should try to choose an occupation which in no case contradicts the family welfare or dignity, for the Civil Law entitles men to deprive their wives of choosing such occupations when they contradict the aforementioned issues.
At this point, it seems necessary to point out that the recognition of such an issue is made by common sense and the legislator only seeks to solidify the family pillars. If we take it for granted that men are responsible for providing for the family and women for administering the house chores, man is capable to stop his wife’s activities if they hurt the family relationship, or impede her doing her maternal or wifely duties.
In this case, when women encounter limitations in choosing a profession, they are consciously or unconsciously bound to choose their desired profession or when men provide such comfort that women relinquish their right altogether.
Although the jurisprndents and the legislators believe that women must obey their husbands, and the fact that men are the heads of the family and that women are obliged to obey them and need their pem1ission to do their activities, some great Shi’ite scholars propose new ideas on this score because of the special time such as:
Q: What is the duty of women if their husbands are against their going to university or to office?
Ayatullah Sani’i answered, “It is incumbent upon women to obey their husbands unless something contrary is stipulated at their marriage. Their preventive attitude may be to the point here it does not prove hard and intolerable to women.
It seems that this state of hardship is both individual and social. From a social point of view, one can justify that when the society provides for an individual’s education, he, as an expert, has a role in contributing to the social and economic conditions of his country. One cannot say that just because men have the privilege to be the heads of the family, they cannot deprive their wives of the social services they can render to the society.
In the end, we should admit that the international covenants and forums have kept encouraging the governments to distribute equal rights of men and women for work, and they have succeeded in eliminating discrimination in the field of employment. The opportunities of women in obtaining jobs are practically less than those of men.
In case of women, most of the part-time seasonal jobs are considered as self-employment. Women are abused in working and there has been scant protection of them.
So, even if we believe in the equal rights of men and women in work, we should require the States to take protective measures, though they are to men’s loss and to women’s gain, in order that we may reach a real balance.
Conclusion
Throughout the past decades, the issue of Women’s rights has undergone positive and considerable changes to the point where they have been promoted from the degree of chattel to the degree of acquiring legal personality and the finding personality as a human being and having passed that stage, they have brought up the notion of equality of men and women during the recent years.
By the same virtue, some of the International documents and civil laws of countries have betrayed a tendency to recognise women’s rights and some principles are issued in this regard. In international documents, the possibility of anyone’s any man’s or anybody’s enjoying social and individual rights has been emphasised and the use of these words shows the equality of men and women in using these rights and freedoms for woman is a human person.
Also, by studying the grounds for the realisation of women’s property and discussing its offshoots it became manifest that in consanguineous kinship, dowry, inheritance and in Affinal kinship, marriage portion and alimony and inheritance provide the ground for woman’s right to property.
As to occupation, the right to work and earning income which create the right to ownership were discussed in detailed as viewed by International and internal documents of law, and it was stated that although there are limitations concerning women’s working from a legal and practical perspective, women’s working creates the right to ownership.
To sum up, it must be asked whether women have full authority over their rights or her right to ownership should take place under the supervision of some second party like her husband? Or from a legal perspective, have women full authority or are they to have a guardian?
The reason for proposing this question is that in the past laws of some countries, including France, the spouse did not have direct interference in her financial matters and had to ask her husband’s permission in doing financial matters.
In answer, it may be said that in the communities which by joining International conventions have accepted equality of men and women, women have financial independence and every interference in her properties. In Islam, resorting to the verse 32 of sura of Women,
“Men shall have of what they earn: and for women shall have of what they earn”
(Surah an-Nisa 4:32)
women have the right to property, profession and earning money, and her right to property is esteemed in Islam and by the same virtue, they can have any kind of interference in their property.
The civil law of Iran, following the tenets of Islam as to the right to property and financial independence has elucidated this the basis for this independence in the two following principles:
Article 30:“every owner has any kind of interference in the his/her properties unless as otherwise prescribed by law”
(The word every includes men and women.)
Article 1118:“women can independently interfere in their properties”
in fact, men and women have equal financial independence.
Sources:
Reference Books
Farhangi Larus, Jor, Khalil, translated by Hamid Tabibiyan, Vol. 2, Amir Kabir, p. 1365
The Holy Qur’an
Farsi Books
Imami, Hasan, Huquq-i Madani (Civil Rights), Vol. 3, Islamiyyah Press, Second Edition, 1986.
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International Documents
The Universal Declaration of Human Rights
The Cairo Declaration of Human Rights in Islam
Convention on Elimination of All Forms of Discrimination against Women
The International Covenant on Economic, Social and Cultural Rights
The essays of International Organisation of Labour
Law
Constitution
Labour Law
Civil Law
Notes
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Author: A Group of Scholars
