The Independent Commission for Human Rights
to guardianship shall be transferred to his successor. If it is impossible
to consult with his successor immediately or if the latter does not exist,
the right to guardianship shall be transferred to the judge.” Conversely, it
does not entail any stipulation concerning guardianship of males, thus in
clear discriminatory manner against women and impairment of women’s
legal eligibility and in contravention of article (16, b) of the Convention,
which reaffirms the women’s right to freely choose a spouse and to enter
into marriage only with their free and full consent. In addition, there is
paragraph (d) of the same article, which reaffirms the same rights and
responsibilities as parents, irrespective of their marital status, in matters
relating to their children; in all cases the interests of the children shall
be paramount”. They also contravene article (15) of the Convention,
which asserts: 1) States Parties shall accord to women equality with men
before the law; 2) States Parties shall, in civil matters, accord to women
a legal capacity identical to that of men and the same opportunities to
exercise that capacity. In particular, they are to give women equal rights to
conclude contracts and administer property and shall treat them equally
in all stages of procedure in courts and tribunals.
This Personal Status Law grants a man the right to divorce in all cases
(articles: 83-101), but deprives a woman of this right, with the exception
of certain cases. A woman has the right to divorce her husband in three
ways and the first is Mukhala’ in which she waives her monetary rights
resulting from divorce. This kind of divorce cannot be affected without the
consent of the husband. A second type is a Judicial Khul’ (divorce before
consummation of marriage), invoked by a recent decision of the Chairman
of the Sharia’ Judicial Council. In this type, the fiancée is granted the right
to divorce her fiancé before the consummation of marriage by paying him
back all the expenditures he incurred during their engagement. In such
a case, the consent of the fiancé’ will not be requested and the divorce
would be endorsed by the judge based on different reasons, including
dispute, discord, imbecility or disease. However, affording the absolute
right to divorce to the husband while restricting it to the wife is a form
of discrimination against women in contravention of article (15) of the
Convention, which reaffirms equality of women with men before the law
and provides for affording women, in civil matters, a legal capacity identical
to that of men and the same opportunities to exercise that capacity. It also
requires that women are to be given equal rights to conclude contracts
and administer property, and that they are to be treated equally in all
stages of procedure in courts and tribunals.
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