Turning back the clock

In the heat of the electoral campaign, the Constitutional Courtand’s decision to lift legal penalties aimed at preventing religious wedding ceremonies (imam nikah) in the absence of an official marriage is not getting the attention it deserves. The cancellation of provisions five and six of Article 230 of the Turkish Penal Code (TCK), in response to a case brought against a couple and the imam who officiated at their religious ceremony in Erzurum province, marks another setback for womenand’s rights in this country, which is likely to have disastrous consequences for many women and children in this country. The legal requirement that an official wedding be conducted before a religious one was designed to ensure that all marriages were legal and duly registered. The Civil Code gives spouses equal rights, it bans marriage under the age of 17 and, in a very patriarchal society, it ensures women and children are not left out in the cold in case of divorce. On its own, an imam nikah offers no such protections since the marriage is not recognized. In most cases, a woman cannot ask for a separation. Her husband can, however, put an end to the relationship and deny her the maintenance and the equal share of marital assets that the law envisages. In 1999, faced with a similar legal challenge, the Constitutional court refused to remove the penalties. It argued that and”since the law does not prohibit the religious marriage from being concluded after the official marriage, the prohibition on holding a religious wedding before the official ceremony is not contrary to the Constitution.and” The penalties, which ranged from two to six months of imprisonment, were in fact rarely imposed, but they signaled that the state expected official marriages. The justification given by the judges this time disregards the conservative and patriarchal social context and it is disingenuous: If it is not a crime for two unmarried people to cohabit, they argued, then why should a religious marriage be? The comparison doesnand’t hold water. When unmarried couples live together, they do so willingly as equal partners. Devout people consider it living in sin, but in circles where cohabiting without getting married is common, either partner can walk out of the relationship without stigma attached. In Turkeyand’s conservative environment, particularly in rural areas, an imam nikah union is considered a lifelong bond even if it has no legal ground. Pressure is strong to keep the family unit together no matter what and without the backing of the law, women have little recourse if the relationship goes sour or if they face domestic violence. Although statistics show that many marriages in Turkey were conducted only in front of an imam and a significant share involved child brides until recently, these ratios have declined in recent years. The Constitutional Court decision now threatens to turn back the clock, undermining the progress of recent years and reopening the door to harmful traditional practices. Minister for the Family and Social Affairs Ayienur Islam, hardly a radical feminist, expressed her concerns. and”In the light of this decision, as the ministry, we will have to start new work to ensure that children under the age of 18 are not illegally married in a religious ceremony,and” before adding that she hoped the ruling would not encourage child marriages. Unfortunately, it is likely to do just that. The new ruling will in fact affect women of all ages whose custody rights, rights to spousal maintenance and rights to a share of marital assets can be ignored in the absence of a recognized marriage. The inheritance rights of their children, considered born out of wedlock, may also be undermined while polygamy could get a boost. By ignoring the stateand’s duty under Article 10 of the Constitution to ensure gender equality is enforced in practice, the Constitutional court is opening the door to more injustice. Womenand’s rights aocates, who successfully fought to improve the Civil Code more than a decade ago, plan to challenge the decision at the European Court of Human Rights (ECtHR). But before a verdict is handed down, many lives will probably have been aersely affected.

SOURCE: Today’s Zaman