Toplumsal Cinsiyet Perspektifinden Kadının Bekleme Süresi: İddet
Türk hukukunda iki binli yıllarda yapılan yasal ve anayasal reformlar, büyük ölçüde toplumsal cinsiyet eşitliği anlayışının gerekleri gözetilerek gerçekleştirilmiştir. Cinsiyet eşitliği ve kadın lehinde pozitif ayrımcılık anlayışını mevzuata katan önemli yasal değişiklikler yapılırken, 4721 sayılı Türk Medeni Kanunu’nun 132. maddesinde iddet düzenlemesi korunmuştur. Bu yasa hükmü aile mahkemesinin boşanma kararı vermesinden sonra yeniden evlenme hakkının kullanılmasını kadın bakımından kısıtlamakta ve üç yüz günlük bir bekleme süresi (iddet) öngörmektedir. İddet, kadının sadece evlenme hakkına getirilmiş bir kısıtlamadan ibaret değildir. Toplumsal cinsiyet eşitliği perspektifine göre bekleme süresi kadının özel yaşam hakkına yönelik bir müdahale, cinsiyet eşitliği ilkesine ve ayrımcılık yasağına aykırılık oluşturmaktadır. Medeni Kanun’daki babalık karineleri ve modern tıp teknolojisinin getirdiği imkanlar da geçmişte temel olarak nesebin korunması gerekçesiyle getirilen iddet düzenlemesinin sorgulanmasını ve yeniden değerlendirilmesini gerektirmektedir.
Women’s Waiting Period (Iddah) from Gender Equality Perspective
The legal and constitutional reforms in Turkish law in the 2000s were largely conducted in accordance with the requirements of the concept of gender equality. While important legal changes were made that incorporated the understanding of gender equality and positive discrimination in favour of women into the legislation, the iddah regulation in Article 132 of the Turkish Civil Code No. 4721 has been preserved. This legal provision restricts the exercise of the right to remarry after the family court has ruled for divorce and foresees a waiting period (iddah) of 300 days. Iddah is not only a restriction on women’s right to marry. From the perspective of gender equality, the waiting period also violates women’s right to respect for private life, the principle of gender equality, and the prohibition of discrimination. The paternity presumptions in the Civil Code and the opportunities provided by modern medical technology also necessitate the questioning and reevaluation of the iddah regulation, which was previously introduced to protect lineage.
In its biological sense, sex refers to the differences in the physical characteristics, sexual organs, and reproductive functions of individuals, while gender refers to social situations built on the biological characteristics of individuals. As a cultural concept, gender refers to the roles and statuses assigned to men and women by society and the social definition of the two sexes. The gender perspective based on the distinction between biological sex (sex) and social sex (gender) enables the understanding of the asymmetric power relationship between women and men and the questioning of the gender inequality constructed by society. This questioning accepts that the unequal social positions of women and men are determined by the patriarchal society through the combination of legal, political, economic, cultural, social, religious, ideological, and environmental elements; therefore, the society itself can change the gender inequality constructed by society. This approach paves the way for identifying and exposing discriminatory laws against women and ensures that laws regulate gender equality.
The conceptualisation of gender is still not given sufficient place in legal norms and court decisions in Turkey. While significant legal changes were made in Turkish law in the 2000s to include the principle of gender equality and the concept of positive discrimination in favour of women, the iddah regulation in Article 132 of the Turkish Civil Code No. 4721 has been preserved. This legal provision restricts the right to remarry after the family court has ruled for divorce and stipulates a threehundredday waiting period (iddah). Although it has roots in Islamic law, the concept of the waiting period was also applied in Western countries until the 2000s. In the past, iddah was introduced for lineage protection. Today, when the paternity presumptions in the Civil Code and the opportunities provided by modern medical technology are taken into consideration, the iddah regulation has lost its function of protecting lineage.
The paternity presumptions stipulated in Articles 285 and 302 of the Turkish Civil Code already determine the legal status of the father of a child born after divorce. In fact, there is an area of overlap between the two regulations. The solution to the issue of overlapping paternity presumptions is also clearly stated in Article 290. Therefore, there is no need for the waiting period regulation in Article 132 in terms of determining and registering lineage. The Nurcan Bayraktar decision of the European Court of Human Rights has also ruled that the waiting period is an intervention against women’s human rights and constitutes a restriction of rights that lacks a legitimate purpose and is not necessary in a democratic society and cannot be based on any reasonable and objective justification.
When the international agreements to which Turkey is a party, the decisions of the European Court of Human Rights, the Turkish Constitution, and the provisions of the Turkish Civil Code in force are taken as a basis with a holistic approach, the regulation of iddah in Article 132 of the Civil Code needs to be questioned and reevaluated. In this context, iddah is not only a restriction on women’s right to marry when viewed from the perspective of gender equality. From the perspective of gender equality, the waiting period also violates women’s right to respect for private life, the principle of gender equality, and the prohibition of discrimination. Therefore, the issue of abolishing the said legal provision should be brought to the agenda of the Turkish Grand National Assembly.
