Progress Amid Resistance

168 WOMEN’S RIGHTS IN THE MIDDLE EAST AND NORTH AFRICAThough this measure was canceled after women’s rights advocates raisedobjections, a similar provision appeared in the 2005 constitution as Article41, which gives Iraqis the right to choose what personal status rules theywant to follow based on their “religions, sects, beliefs, or choices.” Article41, however, is currently suspended after women’s advocates, NGOs, membersof parliament, legal professionals, and the judiciary protested againstthe provision, viewing it as a way to increase sectarian divisions and imposeundue restrictions on women. Until the dispute over Article 41 is resolved,the unified system based on the 1959 code remains in effect. In practice, awoman’s ability to defend her rights often depends on decisions by her family,tribal authorities, or the officials of her religious sect, as personal statusdisputes are commonly settled without recourse to a civil court.The law sets the minimum marriage age for both sexes at 18, thoughcourts can permit juveniles as young as 15 to marry with a guardian’s ap -proval or as a matter of urgent necessity. Unauthorized, underage marriagesare potentially punishable by imprisonment, but such marriages dotake place, conducted by religious leaders with little regard to women’swell being.During marriage, a husband is legally obliged to support his wife financially,and there is an implied obligation for the wife to obey her husband,so long as it does not conflict with Islam. Shari‘a, as commonly interpretedin Iraq, holds that a husband is free to have sex with his wife unless she is illor has a compelling reason to refuse. There is no law against spousal rape,as it is considered a private matter. Paragraph 41 of the 1969 penal codeconsiders a husband’s punishment of his wife to be a legitimate privateright. While this is consistent with prevailing interpretations of Shari‘a,it contradicts Article 29 of the constitution, which prohibits all forms ofviolence and abuse in the family.Polygamy is permitted under the law if a court finds that the husbandcan financially support more than one wife and treat them equally, butBa’athist-era amendments allow men to evade even these restrictions ifthe new wife is a widow or if the husband initiates a divorce, marries, andthen reconciles with his first wife. Previously, a valid polygamous marriagerequired the consent of the first wife, but this restriction was alsore moved over time. Polygamy is relatively common in practice and rarelyfaces obstacles in the courts. 15After 2003, the Shiite practice of mut’ah marriage grew more popular,having been banned under Saddam Hussein. 16 Women’s NGOs reported