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Family Law in Afghanistan

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Family Law in Afghanistan Canadian Women for Women in Afghanistan is a volunteer not-for-profit organization founded in 1996 with over ten chapters across Canada. The goals are to advance education and educational opportunities for Afghan women and their families; and to increase the understanding of Canadians about human rights in Afghanistan. Family Law Today in Afghanistan Family Law in Afghanistan For Sunni Muslims in Afghanistan, family law is governed by the Civil Marriage and Divorce Law Family laws in Muslim societies are based on Code of 1976, which is drawn from the Family law, broadly speaking, is the law or diverse sources of law, ranging from various French civil code, and from Egyptian regulation of familial relationships such as interpretations of the Quran and Sunnah law, but with roots going back to the relations within the immediate family and/ (teachings of the Prophet Muhammad), first marriage law in Afghanistan in or extended family. Family law matters to colonial common law, the Napoleonic the 1920s. The Sharia-inspired aspects can be linked with the law of property Code, and Soviet laws. Family law reform of the law, like in Egypt, are governed (ownership) and criminal law (issues is also influenced by the diverse cultural, by Hanafi jurisprudence, one of four relating to abuse, among others). When legal, judicial and political systems that can schools of Sunni Islamic jurisprudence. family rights have not been legislated in influence the interpretation and application The Afghan Family Law is generally law it can be difficult for women’s rights of laws. Family law reform is often linked to considered to be progressive from a within the family to be protected, or for constitutional law and criminal law, which at gender perspective in that it provides women to access justice. Afghanistan has times can create tensions between the pursuit some important protections to women codified family law; however, it is poorly of gender equality and the right to religious in child custody, inheritance and enforced. freedom. The spread of international law divorce rights. However, the 1976 law seeking the protection and promotion of also has important weaknesses. For human rights has also provided a framework instance, there are different minimum Quick Facts: Marriage in and motivation for reforming family law ages for marriage for males and females, Afghanistan in Muslim societies so as to better protect with 18 for males and 16 for females, • 1 in 5 young women aged 15-19 years women’s rights. However, as many of these in contravention of the Convention is currently married. sources overlap or produce conflicting rules, on the Rights of the Child, to which • 15% of women aged 15-49 years were Muslim women need access to law that is the Afghanistan is a signatory, which specifies married before the age of 15. most just to them. 18 as the minimum age for both sexes. • 46% were married before the age of There are insufficient provisions for the 18. requirement of consent to marriage, • Young women without education The Nikah there is language around the need for are more than 3 times as likely to be In Islam, the nikah is a formal binding wives to be ‘obedient’ to husbands and married before the age of 18 than are contract that is considered integral to their counterparts who have secondary the validity of a marriage. It outlines to request permission from husbands education or higher. the specific rights and responsibilities for various acts, and unequal rights to • 7% of women aged 15-49 years are in of the bride and groom that both agree divorce and inheritance between men and a polygamous marriage. and sign to. It requires that two adult women. Given the Afghan Constitution’s • 14% of women aged 20-24 are witnesses sign the contract as well. Once guarantee of gender equality, the currently married to men who are the terms are agreed and signed to, the current family law contravenes the new older by ten years or more. marriage is declared publically. Islam Constitution, in addition to international • 11% of young women aged 15-19 are does not consider the nikah a sacrament; law that Afghanistan has ratified, notably, married to men at least ten years their it is revocable, which means divorce is CEDAW. senior. permitted and can be initiated by either • Early childbearing among girls (under party. Therefore, the nikah can serve as an For the Shia minority, (approximately 18 years of age): 25% important tool for women to protect their 25% of the Afghan population), family • Contraceptive prevalence among rights and enforce what they are entitled law is governed in a separate code, known women: 21% to within the marriage, or in the event of as the Shiite Personal Status Law (SPSL), the marriage’s dissolution. which was drafted in response to Article Source: Afghanistan Multiple Indicator Source: Mohammed Mazhar Hussaini, 131 of the 2004 Constitution, which Cluster Survey (AMICS) 2010/2011, An-Nikah The Marriage UNICEF extended, for the first time, the right of Shias to have their own personal status website: www.cw4wafghan.ca P.O.Box 86016, Calgary, AB T2T 6B7 • Tel: 1 403 244-5625 • email: [email protected] law that reflects Shia jurisprudential nine (from seven) years, and bringing several ill-informed of the rights they do have (fiqh) sources. The SPSL was drafted by conditions to the clause that wives must seek under both Afghan Law and international a body called the Shia Mullahs Council, the permission of their husbands to leave human rights law which Afghanistan is under the leadership of an Iran-trained the home. While much of the draft was left a signatory to. The consequences of this cleric named Mohammad Asif Mohseni. intact, these changes were significant and are a failure to protect women and girls The SPSL was quietly and quickly passed curtailed some of the more discriminatory from discrimination and abuses. Some of through parliament; however, when it elements of the law. the most serious outcomes of this failure came to light, the law was immediately include the ongoing prevalence of child – Lauryn Oates, “A Closer Look: The Policy problematic both for its content, which marriage (nearly half of Afghan women and Law-Making Process Behind the Shiite weakened women’s rights rather than are married before the age of 18) which Personal Status Law” AREU (2009). promoted them, as well as for the results in early childbearing and the many process by which the code was drafted risks this entails for mother and child, or and passed, which was without the Running Away: A “Moral Crime”? practices such as ba’ad, wherein girls are participation of any women, with no According to a Human Rights Watch traded in order to settle disputes between transparency, and without following the report released in March 2012, up to 70% families or clans. Women cannot easily of approximately 700 female prisoners in required parliamentary procedures for a Afghanistan have been imprisoned for running obtain a divorce, even in cases of domestic bill to be passed into law. away, and nearly all were fleeing from forced abuse. According to Femin Ijtihad, 40% According to a report published by the marriage or domestic abuse. Recent reports of women living in shelters are under 18 Afghan Research and Evaluation Unit show that these rates are rising. Some of the years of age, and most have sought refuge (AREU), when the SPSL’s content came detained women have reportedly been forced to from abusive marriages. The Afghan to the attention of civil society groups, undergo vaginal exams by male police officers in Independent Human Rights Commission order to determine virginity. women activists and several progressive and the UN Mission in Afghanistan Shia institutions, they moved to win a On September 16, 2012, the Minister of (UNAMA) document thousands of cases delay in the parliament’s vote on the bill. Justice and the Minister of Women’s Affairs of domestic violence every year. Child This allowed for alternative provisions to both strongly condemned these charges in a custody practices often favour fathers over be drafted and proposed that would be less statement and acknowledged these girls and mothers. Women are routinely denied women as victims, rather than criminals. discriminatory towards women. However, the President has yet to release the their rights to inheritance. Many women imprisoned girls and women charged with and girls run away to escape abuse or ‘moral crimes,’ nor has he taken the steps forced marriage, and many are treated Quick Facts: Original Draft of the to prohibit future arrests or prosecutions. as criminals rather than as victims in SPSL of 2009 Commitments by senior government officials such cases. Self-immolation is frequently • The SPSL required women to obey have also had little practical impact to date. reported, a form of suicide women use as a their husbands Women detained for ‘moral crimes’ face last resort to escape forced marriages and/ • Women must ask for permission from numerous challenges. Many have no place to go or violence at home. their husbands to leave the house, when they leave prison. For many, conditions including to work or to seek an in prison are preferable to the abuse they face There is thus an urgent need to better education at home. Women who are fleeing abuse may enforce Afghanistan’s existing family law, • Women could not refuse sex to their lose custody of their children if they divorce in addition to embarking on legal reform husbands, a provision that earned the their husbands. Some women are at grave risk with the aim of better protecting the rights SPSL the nick name, “The Rape Law” of ‘honour killings’ if they return home, while of women.
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