Family Law of Tunisia as a peculiar example of Contemporary Muslim Family Law

Family Law of Tunisia as a peculiar example of Contemporary Muslim Family Law By: Syed Muhammad Aala Imran The ​Code of Personal Status (CPS) (Arabic: ‫ )​ﻣﺠﻠﺔ اﻷﺣﻮال اﻟﺸﺨﺼﯿﺔ‬is the muslim personal law statute which deals with the issues related to matrimonial and other personal issues of the citizens of Tunisia. It was commenced on January 1, 1957 in the reign of Habib Bourguiba ( PM and later President of Tunisia).The Code of Personal Status of Tunisia (the Code), is based on Islamic Sharia with major amendments. Article 1 of the 1959 Constitution declares that Islam is the religion of the State, and Article 38 declares that religion of the President must be Islam. The Law of Personal Status was inspired by unofficial draft codes of Maliki and Hanafi family law. It clearly shows the Pro women or feminist approach adopted by the state of Tunisia. Salient features of the code are: 1) Marriage only performed by the mutual consent of the parties 2) Determination of minimum age for contracting marriage 3) Bar on marriage (haram or batil marriages) 4) Abolishment of polygamy 5) No duty on wife to be obedient to her husband. 6) Judicial procedure for divorce. 7) Abolishment of Shariat Courts 8) Law about legitimacy All these features of the tunisian family law will be dealt.

1.Marriage only performed by the mutual consent of the contracting parties: The Code instituted for the first time in an Arab Muslim country the principle of the consent of the two spouses as a requirement for the validity of all marriages. In context of socio-political and geography of the state of Tunisia, it was a remarkable progress. The consent of women through Wali is not mandatory in Tunisia, thus a woman has a right to marry the man of her choice. In Tunisia, under Article 9 of 1956 Code du Statut Personnel (Personal Status Code), both the husband and wife have the right to contract their marriage themselves or appoint proxies, and Article 3 regarding validity does not require the consent of the wali. Under Article 25 of the 2004 Moudawana (Morocco’s Muslim family law), a woman of legal majority may conclude her marriage herself, or delegate this power to her father or one of her relatives. In other words, both Morocco and Tunisia’s laws have made ​wali optional With regards to witnesses, the code do not specify the religion or gender of witnesses for marriage; they just require two adult witnesses under ​Tunisia's Code​ of Civil Procedure.

2.Determination of minimum age for contracting marriage In the code,obligatory minimum age for marriages was fixed first at eighteen years for men and fifteen years for women, the precise text that: "Below this age marriage cannot be contracted, except by the special authorization of a judge who may not grant it, except for

serious reasons and in the well understood interests of both spouses. In this same case, consent for the marriage of a minor must be given by the closest parent who must fulfil three conditions, namely being of sound mind, adult and masculine." Notable features of the Code include Article 5 which sets the minimum age of marriage as 20 for males and 17 for females. Marriage below these ages requires special permission from the courts, which may be given only for pressing reasons and on the basis of a clear interest of the couples or benefit to be realized by the parties. Marriage below the legal ages stipulated by the law requires the consent of the guardian and since 1993, of the mother. In the event they both refuse, the judge will have final determination. with regards to proof of marriage, a marriage can be proven only by official document as prescribed by Article 4.

3. Bar on marriage (haram or batil marriages) The Code also forbade the marriage of a man: "With his ancestors and descendants, with his sisters and the descendants to infinity of his sisters and brothers, with his aunts, great aunts and great great aunts" and "with the woman whom he has divorced three times." in short, it is a clear upholding of the traditional view and express teachings of Quran.

4) Abolishment of polygamy in tunisia, polygamy is forbidden, even if the second union is not "formal:"

"Whoever being engaged in the bonds of matrimony shall contract another before the dissolution of the preceding shall be liable to a year's imprisonment and to a fine." In Tunisia under Article 18 of the Code du Statut Personnel (Code of Personal Status), any man who contracts a polygamous marriage is punishable with one year of imprisonment or a fine of 240,000 Tunisian francs or both. These provisions apply even if the new marriage is registered and even if the man continues to live with the first wife. A wife who knowingly enters a polygamous marriage is liable to the same punishments. Bourguiba referred to a surah of the quran (al.nisaa) to justify this measure: "We have abided by the spirit of the Holy Book... which indicates monogamy. Our decision in the matter contradicts no religious text and is found to be in agreement with mercy and justice and the equality of the sexes." This sura states that: "It is permitted to marry two, three or four among the women who please you, but if you fear not being just towards them, then only one, or some slaves that you possess. This to the end of not committing injustice." For Bourguiba, the condition of equality between spouses being impossible to assure, prohibition

of polygamy became therefore legitimate. And,

provoking conservatives, he added: "The defenders of polygamy would have to admit in a spirit of equality that the wife be polyandrous in the event of the husband's sterility.”

however the reasoning can be objected on the grounds that this will render the aim of express permission of polygamy void. which may mean a direct conflict between surah nissa ayat 4 and the code under discussion.

however the reasoning of Tunisia was

suggested in order to ban polygamy in Bangladesh (Elias vs. Jesmin Sultana, 51 DLR (AD) (1999). In summary, Article 18 outlawed polygamy altogether. It stated unequivocally that polygamy was forbidden. An attempt at marrying again while one was still married was punished with imprisonment of a year and/or a fine of 240,000 Franks (approximately $500), which represented a huge amount for many Tunisians when the law was promulgated in 1956.

5) No duty on wife to be obedient to her husband. The Code prescribes that: "​Each of the two spouses must treat the partner with kindness, live in good rapport and avoid all prejudice," Article 23 states that during the marriage, both parties are to treat each other well, to fulfill their marital duties as required by custom and usage, and to cooperate in running family affairs, including the upbringing of their children. Being head of the family, the husband is responsible for the maintenance of his wife and children, while the wife is to contribute to family maintenance if she has the means to do so. thus abolishing the wife's obligation of obedience to her husband. At the same time, the text obliged the wife who was in possession of goods to contribute to the family's expenses, so that the

husband not have powers of administration over the wife's possessions. The state is appearing to become a pro feminist and uphold equality between men and women. It may end up in a clash between duties of husband and wife. Husband is under a duty of ​Naan-o-Nafqa​, and under classical law , the wife is entitled to have maintenance till the time she is obedient, thus the code has gone beyond the traditional view and has closed the ultimate justification of the husband from maintaining his wife.

6) ​Judicial procedure for divorce​.

Until 1956,the state of tunisia followed the traditional view as divorce remained the prerogative of the man who could unilaterally repudiate his partner by a simple declaration before two witnesses. The Code, to the contrary, instituted a divorce procedure that: "could not take place except before a court" which decided "the dissolution of the marriage." This same court did not rule except in a case brought through the mutual consent of both spouses and in the case of the request of one of the partners as the result of harm of which that spouse was the victim. It is also stated that: "material harm would be recompensed (to the woman) in the form of a monthly alimony payment... to the level of life to which she was accustomed during married life, here including residence". The court may grant divorce based on (1) agreement of the spouses (Art. 3-1) (2) a petition from one spouse by reason of injury caused by the other (Art. 3-2) (3) the will of the husband or the petition of the wife (Art. 3-3)

(4) the court may award compensation for injury caused by the divorce. If the injured spouse is the wife, this may take the form of a lump sum or of regular alimony payments until she dies or remarries or otherwise her social circumstances change (Art. 3-4). A woman was liable to pay compensation to her husband if necessary. For divorce, ​Under Article 11 of the Code du Statut Personnel (Personal Status Code), conditions can be stipulated in the notarized contract, and contravention of or failure to meet these conditions allows both spouses to apply for dissolution. Conditions can relate to persons or property. it is noteworthy that the state of tunisia has stated that the revolutionary steps taken were not repugnant to the teachings of Quran and Islam and thus had also tried to reflect it through the wide interpretation of the Quran. in summary, The divorce procedures in the Code of Personal Status are covered by Chapter 2, Articles 29 to 33. Contrary to the rest of Muslim countries, whereby a divorce by man is accomplished without judicial act by simply pronouncing ​talaq, three times; divorce in Tunisia is strictly a judicial matter; extra-judicial ​talaq is not valid in Tunisia. Husband’s right granted by Islamic Sharia to announce a triple ​talaq is not legal in that country. However the Code kept the mahr provision in the Islamic marriage contracts

7) Abolishment of Shariat Courts Sharia courts were abolished in 1956 in Tunisia as stated in "Tunisia"​.(Law.emory.edu. Retrieved 18 February 2013). and "Features – A Guide to the Tunisian Legal System"​. (LLRX.com. 15 September 2002. Retrieved 18 February 2013.)

8) law about legitimacy, inheritance and naan o nafqa: It would appear that the traditional procedure of li-'an, though almost obsolete in practice, is still in law available to a husband in order to disown a child when he cannot establish non-access within the gestation period . Li-'an in Tunisian law, states:- "If a husband disowns the child with which his wife is pregnant, or the child which is presumed to be his, this repudiation will not be effective without a decree of court and in such a manner all legal means of proof may be used…if the court confirms the repudiation of paternity…it shall pass a decree of illegitimacy and of physical separation between the spouses." Article 23 of the Code made the wife responsible for contributing to the expenses of the household and to the financial support of children, if she had the financial means to do so. It expanded the right of mothers to have custody of their children. It made adoption of children legally valid, and modified the rules of inheritance for the spouse and female descendants over male cousin in some specific kinship configuration. These traits of Family or Personal law of Tunisia provides that it has kept pace with the developing era and at the same time has kept itself intact with the basic requirements of Muslim law. It has interpreted and reinterpreted the verses of quran and other sources of Islamic law and has given them a meaning which is socially acceptable in western society and among its own citizen. It is arguable whether they have gone too far or not and whether they have undermined the true basics and foundations of muslim family law or not. The aim of this article was solely to enlighten the reader of family law of Tunisia. It was also intended to help reader with the evolution of muslim personal law in 20th and 21st

century. Lastly, this article, after describing the law of Tunisia intends to make the reader broad minded and tolerant rather than spelling out the conservative and stubborn attitude of establishing superiority of its own family law in domestic system, which is indeed an inefficient discipline in Pakistan.