This is a caption

This is a caption
The scent of Mazafariyan.

In the book “Family Civil Law” written by Dr. Katozian, family is defined as follows: “It is a group that has obtained legal and social cohesion due to kinship or marriage and has been placed under the leadership and authority of a head.” (1)

Also, it is mentioned in this book: “Marriage is a contract through which a man and a woman unite in order to form a family and live together.”

But in situations where the couple or one of them is a child, how are these definitions defined and what provisions does the law provide for them?

“In Article 1041 of the Civil Law, it is stated that the marriage of a girl before the age of 13 and a boy before the age of 15, according to the solar calendar, is subject to the consent of the guardian and the condition of considering the best interests of the parties, as determined by a competent court. There are no clear guidelines in this law, although it raises issues that are often overlooked in the lives of children and have been neglected by lawmakers. Terms such as “best interests” and the duties of the judge in referring to a legal physician are not clearly defined in the law. In recent years, members of parliament have attempted to increase the age limit set in the current law, but the question remains whether they are also paying attention to the legal loopholes in this article. Is it enough to rely on the best interests and the judgment of the court to protect all the rights of the child? What role does the child play in determining the conditions of marriage

In fact, the court issues a ruling for the implementation of Article 1041. The ruling proves that the judge considers the child to be mature enough to take control of their own life and therefore capable of managing all their affairs. The court assumes that when granting the child maturity and adulthood, the child has the ability to make decisions and distinguish between right and wrong. Is the child, under 18 years old (according to the convention), or 15 and 13 years old (for boys and girls respectively), ready to take on the responsibilities of marriage in all aspects?

In marriage, the husband and wife must be willing and satisfied, and according to Article 1062, the couple must declare their intention and consent in a manner that is customary. However, in the case of a child, their will is affected due to their age, and it is the duty of the parent to choose a spouse on their behalf. In this case, even forced marriage can be considered. For example, if a father marries off his son without having the legal authority or outside the limits of representation. The son is free to accept or reject this marriage, but does the woman also have the right to annul the marriage before the husband declares his intention, or is she obligated to it?

In his book, Dr. Katozian mentions that a woman is considered to be under the authority of her husband and before divorce, she does not have the right to choose another husband. It is also well-known in Islamic jurisprudence that a woman’s virginity is considered as a sign of her consent to marriage.

Marriage can take two forms: temporary and permanent. In cases of child marriage, a temporary marriage is conducted and registered in the birth certificate, while the permanent marriage is delayed until the individuals reach the required age in Article 1041. In both forms, the couple has legal responsibilities. Some aspects of marriage are automatically included in the law, such as determining the dowry and providing maintenance, while others can be added as conditions in the marriage documents or in a separate document, such as housing rights, custody, and leaving the country.

The terms within any contract must not be illegal or against the law, and should not cause any disruption to the intended agreement. The commitment to these terms is permissible within legal contracts, and these terms can be divided into two categories: financial and non-financial.

In early marriages, the court determines the growth of the child based on the best interests and gives them the responsibilities of a person over 18 years old, to carry out social and personal matters related to marriage. This means that the child is placed in a special situation in the relationship of marriage, and must inevitably accept its consequences. In cases where the child becomes involved in financial disputes resulting from marriage – such as alimony or dowry – all responsibilities for payment fall on the child, as at the time of the contract, they were deemed mature enough to understand and accept the terms and execution of the marriage. However, if they claim that their guardian did not fulfill their duty of looking out for their best interests at the time of the contract, they may be able to file a complaint against the guardian and hold them responsible for compensation. Nevertheless, the growth decree must create the possibility for children in early marriages to have the right to make decisions about their financial matters, just like a person over the

In non-financial matters, such as custody, it is also possible for a child to independently take legal action. In non-financial matters, both parties are obligated to establish the foundations of the family (except for sexual relations) and strive for the upbringing of their children. Therefore, a child can file a lawsuit independently and use their delegated duty to assert their rights.

But this assumption can also be considered that if a child reports violence to the court and the guardian does not accompany him, what will be the conditions? In fact, the prosecutor must immediately put the case in progress, because the prosecutor is anyone who does not have a guardian.

In any case, it is clear that choosing a spouse for a child deprives them of their most natural and legitimate right and harms their personality. Therefore, there is a presumption of harm in a marriage where the guardian decides, especially since the damages caused by such an act are irreparable and the child is forced to accept the consequences of an unwanted marriage with all its material and spiritual harms. Even after reaching maturity, assuming the child can prove the guardian’s violation and lack of trust in their rights and interests, and in rare cases can annul the marriage, nothing can bring back the painful past for them.

The problem at its core is that every year, around 40,000 marriages are registered below the legal age and in all cases that have been registered, the child rights representative and trustee has acted and the marriage has taken place regardless.

Marriage is a consensual contract; as soon as a man and woman intend to form a family and live together and express their will explicitly, their agreement results in marriage. In child marriages, the child’s will is not complete; therefore, the guardian represents this responsibility. However, according to religious laws, if the guardian appears in court with the child and claims that the marriage has already taken place, the judge cannot legally recognize it. If the child has not reached the legal age and maturity, even considering the possibility of punishment according to Article 646 of the Islamic Penal Code for not following this article, to Article 1041 of the Civil Code, especially not obtaining court permission, can all of these guarantee the rights of the child with all the aforementioned issues? Although in the discussion of temporary marriages, many of these points are not applicable, in the case of permanent marriage, it is common to delay the registration of marriage until reaching the legal age to circumvent the law, and the

This text attempts to take a different look at Article 1041 of the Civil Code. A subtle look that can also shed light on new points regarding child marriage in Iran. The Step by Step campaign has repeatedly aimed to stop child marriage in Iran by citing statistics and various reports on the dimensions of child marriage in the country. Dimensions that include divorce, violence, family custody, and early pregnancy. However, this time, with reference to legal provisions, only a brief mention was made of what Article 1041 brings upon children. A child is given to a decision of the guardian, husband, or wife; under the definition or justification of the court, they are taken as a ward; a ruling of maturity is imposed on them, and the child is obligated to accept duties that they have not chosen at any stage, and if asked by the court or guardian, the answer is simple: they have a ruling of maturity!

This sentence means that immediately after receiving the decree of maturity, the person has the authority to determine the amount of dowry and the payment of dowry is their responsibility. If they are imprisoned due to inability to pay the dowry, they must be aware and knowledgeable enough to be able to complain to the guardian about the lack of benefit and now in this situation, it is uncertain what decision the law will make. In other aspects such as alimony, custody, violence, etc., the decree of maturity is a document in the hands of a child who will not have the smallest ability to use it optimally.

Note:

• Katouzian, Naser, Civil Rights of the Family: Marriage and Divorce, Husband and Wife Relationships, Joint Stock Company Publication, 1378, Volume 1, p. 15

• Same, p. 35

• Same, p. 63