Bouzid Omri

オムリ ブージッド

オムリ, ブージッド

46714

Omri, Bouzid

46715

Kwansei Gakuin University Repository

Women and Marriage in a Secular Islamic CountryThe Case of TunisiaBouzid OmriAbstractThis paper describes women vis-à-vis marriage in modern Tunisia, a secularIslamic Arabic nation. The redefinition of spousal obligations, polygamy, andinheritance rules under the Tunisian constitution and the Personal Status Code has hadan emancipating effect on women generally. Founded on the principle of liberty foreach person to choose his or her spouse, the marriage union is now supposed to fairlyconstrain both parties, abolishing polygamy and codifying the equality of women andmen in all spheres of society. Of course, certain social inequities continue to undercutthe improvement in legal status, but the legislative reforms made since Tunisianindependence in 1956 for achieving gender equality in the family and society havebeen significant and noteworthy. The independent State, conducted by the leader HabibBourguiba, has drawn the edification project of the modern national State from this richand varied civilizational patrimony. These reforms have marked Tunisia as the mostprogressive nation on women’s issues in the Islamic Arab regions.Key Words: Tunisia, North Africa, Gender, Equality, Family Law, Civil Rights, Islam?????????? ???????????????????????????? ?? ??????????? ????????IntroductionEqual in size to that of England and Wales, Tunisia is the northernmost Africanstate and the smallest of the four countries in North Africa that make up the Maghreb.It lies at the heart of the Mediterranean basin, at the center of the Islamic Maghreb, andat the crossroads of the African, European, and Asian worlds. It shares a border withAlgeria in the west and Libya in the southeast. Only 137 km from Sicily?Italy?, it liesat the junction of the two Mediterranean basins. It is open to the sea and also to theexterior influences that come from the near Orient and Europe.Despite its small size, the location of Tunisia at the crossroads of Mediterraneancultures has a progressive social influence. Moreover, Tunisia’s progress has been abeacon for other Islamic Arab regions. The legislative reforms made since Tunisianindependence for achieving gender equality in the family and society have beensignificant and noteworthy, and these reforms have marked Tunisia as the mostprogressive nation on women’s issues in the Islamic Arab regions.Tunisia has improved the status of its women by standardizing the marriagecontract along modern lines, by redefining spousal obligations, and by changing therules of polygamy and inheritance.Procedure of the marriage contractThe article 3 of the Personal Status Code?CSP?1 states that: “Marriage is formedonly by the free and full consent of the two spouses”. It requires the bride to be present1 The Personal Status Code?CSP?, called Majalla in Arabic, was promulgated by the decreeof 13 August 1956, and was officially published in the Journal Official of Tunisia. The CSP isnow available in a booklet entitled Code du Statut Personnel. The Imprimerie Officielle de laRépublique Tunisiènne, in Tunis, publishes it in both Arabic and French, and it is regularlyupdated and reprinted.?????????? ???????????????????????????? ?? ??????????? ???????? Bouzid Omriat the site of the place of the marriage contract, and it requires her to express directlyher opinion on the marriage?e.g., her desire to be married?. For a person raised in aEuropean culture, the idea of marriage in absentia, without the approval of the bride, isabsurd, but such marriages were common before the CSP reforms. Under the CSP, acertificate delivered by the civil registry, or by two notaries after they performed themarriage, became the only proof of marriage. All marriages performed in any otherways are now invalid under the law.Moreover, a medical certificate of good health of the spouses was mademandatory2. The CSP took away the father’s or the guardian’s legal prerogative to givea woman in marriage even against her will. The article 153 of the CSP amended in 12July 1993, granted a married woman who is a minor the right to manage her ownprivate life and affairs, thanks to her emancipation to adulthood through marriage3. Thearticle 5 of the CSP modified with law-decree No. 64?1 of 20 February 1964, ratifiedwith law No. 64?1 of 21 April 1964, sets the legal age for marriage at 17 for womenand 20 for men4. The marriage is now contingent upon the woman’s own consent, anda widow now has the right to custody of her minor children. Another inequity wasended very recently when Tunisian women married to foreigners were grantedpermission to pass the Tunisian nationality to their children, just as can Tunisian men,provided the father consents5. The article 2 of the new CSP, on the breach of promiseof marriage modified with law No. No. 93?74 of 12 July 1993, says that “each of twofiancés shall have the right to the restitution of gifts given to the other except in thecase of breach of promise or a stipulation to the contrary”6. Also, the article 28 of the2 République Tunisiènne, 2001. ?Majallat Al-Ahwa-l Ashakssiah“Personal Status Code”?. Code du Statut Personnel?Personal Status Code?. Tunis: ImprimerieOfficielle de la République, p. 102?1043 Ibid., p. 494 Ibid., p. 75 République Tunisiènne, 2001 ?Majallat Al-Jinsiyah “Code of Nationality”?. Codede la Nationalité?Code of Nationality?. Tunis: Imprimerie Officielle de la République, p. 7?86 République Tunisiènne, 2001. ?Majallat Al -Ahwa-l Ashakssiah?????????? ???????????????????????????? ?? ??????????? ??????Women and Marriage in a Secular Islamic Country ??new CSP, on the dissolution of the marriage contract, states “if the marriage isdissolved before its consummation for a reason imputable to one of the spouses, giftsgiven by either spouse after the marriage has taken place shall be returned in their state,whether altered or not. No restitution shall be made after the consummation of themarriage”7. The amendment of the two articles above established clearly the principleof nondiscrimination between men and women in the proceedings of the marriage, thuspaving the way for equality in the family. The old article 12?cf. the new Article 2?ofthe CSP states that the dowry may consists of any lawful property having monetaryvalue. It shall belong to the wife. However, with respect to a dowry, the old articleprovided that only the fiancé or the husband had the right to the repayment of any giftsgiven to the fiancée or wife.Obligations of the spousesEqual partnership within the family is recognized by article 23 of the new CSP asa guarantee of family stability, and the CSP notes the obligation of the husband andwife to treat each other benevolently. Both spouses must fulfill their conjugal duties inconformity with current practice and custom. The old provisions in what the wife mustrespect the prerogatives of the husband and that she owes him obedience have beenabrogated. Similarly, the new article states that the husband and the wife must helpeach other with the management of the household, with the good upbringing of thechildren, and with the management of the children’s affairs, including education, travel,and financial transactions. The wife, in case she has property, must now contribute tothe family’s resources8. Also, other innovations under law No. 93?74 of 12 July 1993“Personal Status Code”?. Code du Statut Personnel?Personal Status Code?. Tunis: ImprimerieOfficielle de la République, p. 77 Ibid., p. 128 République Tunisiènne, 2000. ?Majallat hima-yat Attiful “Code of ChildProtection”?. Code de la Protection de L’Enfant?Code of Child Protection?. Tunis: Imprimerie?????????? ???????????????????????????? ?? ??????????? ???????? Bouzid Omrirecognize the obligation of the wife to contribute to the resources of the family, andgenerally recognize the new economic role of women. This means that a wife nowplays an active role within the family as a generator of economic resources.Formerly, because the family guardian was the father or his representative, themother had no right to intervene in any decision concerning the marriage of her minorchild. The amendment of this article brought an end to this inequality. According to thenew article 6 of the CSP, the mother has the same right as the father or guardian toauthorize the marriage of her child. The article stipulates that: “The marriage of aminor shall be subject to the consent of his or her guardian, as well as that of themother”9. Thus, joint parental authority has been established in this regard.It follows from the above two amendments, that the new provisions emphasize theredistribution of responsibilities within the family aimed at enhancing stability andconfirming gender equality.Polygamy and inheritanceAs it is indicated in article 18 of the CSP and in the law-decree of 20 February1964 that organized the Tunisian family on the basis of the legal equality of men andwomen, polygamy is now forbidden and punished. An attempt to marry while one isstill married to another person is now punished with imprisonment of one year and afine of approximately five hundred dollars10. A unique development in the Arab world,it was patterned upon a similar prohibition previously adopted by Turkey. In localeconomic terms, the fine is very high. When this code was promulgated in 1956, thisOfficielle de la République, p. 119 République Tunisiènne, 2001. ?Majallat Al-Ahwa-l Ashakssiah“Personal Status Code”?. Code du Statut Personnel?Personal Status Code?. Tunis: ImprimerieOfficielle de la République, p. 810. République Tunisiènne, 2001. ?Majallat Al-Ahwa-l Ashakssiah “PersonalStatus Code”?. Code du Statut Personnel?Personal Status Code?. Tunis: Imprimerie Officielle dela République, p. 10?????????? ???????????????????????????? ?? ??????????? ??????Women and Marriage in a Secular Islamic Country ??fine represented about a year’s income or more for many Tunisians. A new law laterclarified that any second marriage is null and void11. Also, in all matters involvingpolygamy, the judge is now required to be more careful in rendering judgment.Like other laws in the CSP, the articles 89 to 152, concerning inheritances, showthat Tunisia has enacted reforms raising the status of women to that of men. The lawson inheritance certainly expanded a woman’s rights12, and they aimed to safeguard thenuclear family. Those new laws were not only that woman excluded some men, butalso it was the particular category of male relatives that women excluded versus thosethat they did not.ConclusionThe successive legislative reforms made since Tunisian independence forachieving gender equality in the family and society were significant and noteworthy.These reforms have marked Tunisia as the most progressive nation on women’s issuesin the Islamic Arab regions. The rights of women have been considerably strengthenedfor mothers, wives, and individual adult women. A woman’s right to decide her ownmarriage has also been clarified. Although the Tunisian Constitution states that Tunisiais a Muslim country, it does not say that Tunisian law has to be Islamic law, nor doesthe CSP suggest going back to the Shari ‘a or to look for a Mufti13 to find the Fatwa1411 C.E.R.E .S . , 1989.?Almajalla Attu-nissiya lilolu-m Al-Ijtima-iya: Nashariyat Markuzu Al-Abha-th Al-Ikutisa-dia Wal-Ijtima-iya “Tunisian Review of Social Sciences: Center of Studies and Socio-EconomicsResearches”?. Tunis: Imprimerie COTIP, Nos. 98 and 99, p. 64?6612 République Tunisiènne, 2001. ?Majallat Al-Ahwa-l Ashakssiah“Personal Status Code”?. Code du Statut Personnel?Personal Status Code?. Tunis: ImprimerieOfficielle de la République, p. 33?4713 A Mufti?in Arabic , muftı¯?, is a Sunni Islamic scholar who is a Jurist expert in theinterpretation of religious Law?Shari ‘a?14 A fatwa?in Arabic , fatwa¯?, is an Islamic religious decree usually issued by the Ula¯maconcerning Islamic law?????????? ???????????????????????????? ?? ??????????? ???????? Bouzid Omrisolution to questions not addressed in the CSP.The CSP represents the first founding text and the instrument with which theTunisian social approach was shaped. The latter is based on a lucid appreciation of theefforts of an enlightened exegesis shaping the Tunisian social reality in constantevolution, and succeeding in establishing a tight correlation between identity andmodernity, the positive aspects of the past and the epoch’s stakes.This Code constitutes a real symbol for the woman’s emancipation, the promotionof her status, the consolidation of her rights and the reinforcement of her positionwithin the family and society. The commitment of the State to defend women’s rightsis visible through the reforms and the amendments made into the Code continuouslysince its promulgation on August 13, 1956.Tunisia’s post independence government pursued a program of secularization andmodernization under the leadership of Habib Bourguiba?1956?1987?. Bourguiba, whohas been one of the most avowedly secularist political strategies in the Arab world,modified laws regarding religious endowments, etc,. Moreover, his best known legalinnovations were made in the CSP. These laws govern issues related to the family:marriage, guardianship of children, inheritance and most importantly the abolishing ofpolygamy and making divorce subject to judicial review. For Bourguiba, Islamrepresented the past; the West was Tunisian’s hope for a modern future.Bibliography1. Abdesselem, Mustapha & Mohamed Charfi, 1973. “Tunisia”, National Reports, VictorKnapp, The Hague: Mouton, International Encyclopedia of Comparative Law. Volume, 1.2. Abdul Mannan, Omar, 2002. “Dictionary of the Holy Quran, Republic of South Korea: NoorFoundation, International INC, pp. 6?83. Borrmans, Maurice, 1977. Statut personnel et famille au Maghrèb de 1940 à nos jours.?Personal Status and Family in the Maghreb from 1940 until nowadays?. Paris: la HayeMouton.4. Brand, Laurie A., 1998. Women, the State, and Political Liberalization: Middle Eastern and?????????? ???????????????????????????? ?? ??????????? ??????Women and Marriage in a Secular Islamic Country ??North African Experieuces. Columbia University Press.5. Charrad, Mounira M, 2001. States and Women’s Rights: The Making of Postcolonial Tunisia,Algeria, and Morocco: University of California Press.6. Charles-Andre, Julien, 1994. Histoire de l’Afrique du Nord.?The History of North Africa?.Paris: Editions Payot & Rivages.7. C.E.R.E.S., 1989.?Almajalla Attu-nissiya lilolu-m Al-Ijtima-iya: Nashariyat Markuzu Al-Abha-th Al-Ikutisa-dia Wal-Ijtima-iya “Tunisian Review of Social Sciences: Center of Studies and Socio-Economics Researches”?. Tunis: Imprimerie COTIP, Nos. 98 and 99.8. CREDIF, 1994. Le droit de la femme et de L’Enfant en Tunisie.?The Right of Woman andthe Child in Tunisia?. Tunis: ORBIS-Impression.9. CREDIF, 1999. Femmes et Changement: Actes des Conférences de la Chaire UNESCOd’Études sur la Condition de la Femme de 1997 à 1998.?Women and Changement: Acts ofConferences of Chair UNESCO of Studies on Women Condition from 1997 to 1998?. Tunis:ORBIS-Impression.10. Fontaine, Jacques & Gresser, Pierre, 2000. Tunisie: Carrefour des civilisations.?Tunisia:Carrefour of Civilisations?. Paris: ACR Edition International, Courbevoie. Gafsi, Henda?ed.,?, 2000. Femmes et Ville.?Women and Cities?. Tunis: Signes Impression.11. Haddad, Tahar, 1930. ?Imra’atuna fi-l- Shari’a wal mujtama’a.“Our Woman in Shari’a and in Society”?. Tunis: Imprimerie Artistique.12. Ministère des Affaires de la Femme et de la Famille, 1997.?Al-thikra Al-Ashira Littahawwal: shahada-tu bi Akla-m Nisa-iyah “The10th Anniversary of Change: Testimonies by Pencils of Women?. Dixième Anniversaire duChangement: Des Femmes témoigne...?The 10th Anniversary of Change: Testimonies byPencils of Women?. Tunis.13. République Tunisiènne, 2000. ?Majallat hima-yat Attiful “Code of ChildProtection”?. Code de la Protection de L’Enfant?Code of Child Protection?. Tunis:Imprimerie Officielle de la République.14. République Tunisiènne, 2001a. ?Majallat Al-Ahwa-l Ashakssiah“Personal Status Code”?. Code du Statut Personnel?Personal Status Code?. Tunis:Imprimerie Officielle de la République.15. République Tunisiènne, 2001b. ?Majallat Al-Jinsiyah “Code of Nationality”?.Code de la Nationalité?Code of Nationality?. Tunis: Imprimerie Officielle de la République.16. République Tunisiènne, 2002. ?Destour Al-Jumhuriya Attu-nissiya“Constitution of the Republic of Tunisia”?. Constitution de la République Tunisiènne?????????? ???????????????????????????? ?? ??????????? ???????? Bouzid Omri?Constitution of the Republic of Tunisia?. Tunis: Imprimerie Officielle de la République.17. United Nations, 1995. Report of the fourth world conference on women, Beijing, 4?15September. New York, USA.18. Zakya, Daoud, 1994. “Les femmes Tunisiènnes: Gains juridiques et statut économique etsocial”, Monde Arabe Maghreb Machrek, No. 145?“The Tunisian women: Juridical gainsand economic and social status”, Arab World Maghreb Machrek, No. 145?.?????????? ???????????????????????????? ?? ??????????? ??????Women and Marriage in a Secular Islamic Country ??

Women and Marriage in a Secular Islamic Country : The Case of Tunisia

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Women and Marriage in a Secular Islamic Country : The Case of Tunisia

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