The Taliban’s Islamic Emirate has launched another legal offensive against women’s human dignity: its new “Code on Judicial Separation of Spouses.”
This law is testament to how the Taliban use state institutions, especially the Ministry of Justice and the judiciary, as instruments of oppression and violence against women. It legalizes child marriage, denies women the right to divorce even if husband is permantly absent, and denies women legal autonomy and allows a guardian and judge to determine their fate.
Encouraging child marriage throughout Afghanistan is clearly the main focus behind the drafting and publication of this code. Articles 5 and 6 of this law effectively legitimizes the marriage of girls while they are still minors. It does so without setting a specific age limit — something that, at the very least, might have made the law appear outwardly consistent with jurisprudential principles on this issue.
In these two articles of the code, the Taliban consider the marriage of a minor girl valid with the permission of her father or paternal grandfather. They even consider such a marriage valid in cases where it is arranged by other relatives so long as the issues of suitability are observed.
Article 6 explicitly states that a marriage contract concluded by relatives other than the father or paternal grandfather is invalid if the contract is made with someone who is not a suitable match. The inverse implication of this article is that marrying off a minor girl to someone who is not a suitable match, is valid if it is done by the father or paternal grandfather.
How can one speak of a marriage in which consent and legal capacity — the essential pillars of marriage — are presumed to exist in the marriage of a minor? Is this law not attempting to promote the buying and selling of young girls?
In relation to this issue, the former Civil Code contained a very good provision in Articles 70 and 71. It set the age of legal capacity for marriage at the completion of 16 years for girls and 18 years for boys. Only in cases where a girl was 15 could her father or paternal grandfather contract her marriage and have it considered valid, provided they had legal capacity to act. Of course, many women’s rights and children rights advocates campaigned against that law.
At the global level, there are very clear norms regarding the prohibition of child marriage in the Universal Declaration of Human Rights and the Convention on the Rights of the Child. In particular, Articles 19, 24, and 34 of the convention guarantee the physical well-being of children, protect them from sexual exploitation, and require their protection from all forms of abuse.
Another important issue in the new code are the provisions concerning legal avenues available for a separation from a person who is absent and missing. Paragraph 2 of Article 15 describes a specific form of a husband’s disappearance which, because of the importance it may have for the fate of a woman as a human being, I quote here exactly:
“Whenever the missing person is not among those missing in wars or in circumstances where death is presumed, the wife of the missing person shall, in accordance with Hanafi jurisprudence, wait for such a period of time until the death of the missing person becomes certain and all the people of his generation — his peers — have died!”
This article cannot be considered to be just. On the mere assumption that a man may one day feel like returning to the family he abandoned, the Taliban are demanding that a woman must be made to wait for the death of all his contemporaries so that justice may be secured for this man?
This is a ruling removed from reason and logic, removed from justice, and removed from the age in which we live.
Under the former Civil Code, which was repealed before the publication of this new code, precise provisions had been established regarding absence and disappearance, and their effects on marriage. Under Article 194 of that law, the wife of a person who had been absent without reasonable excuse for more than three years could seek judicial separation. Under Article 196, in cases where the husband’s absence was due to imprisonment, the wife could request separation five years after the start of his imprisonment. These provisions were closer to the spirit of justice, and no woman was forced to wait a full century for a disappeared man.
The Taliban code also erases the will and legal autonomy of women to be one of the parties to marriage and to separation claims. It gives the authority to determine a woman’s fate, sometimes to a judge, sometimes to a guardian, and sometimes to the husband. It does not view a woman as an independent legal person.
Article 3 of this code prohibits the marriage of a woman without a guardian to someone who is not considered a suitable match. The woman’s own desire and will in her marriage are given no importance or legal effect. Under previous laws, an adult woman of sound judgment could enter into a valid and binding marriage contract without the permission of a guardian.
It is evident that the “Code on Judicial Separation of Spouses” is nothing more than a tool for further restricting women during family court proceedings and to formally legalize child marriage; disregarding all national and international norms concerning the protection of children’s rights; and arming families and the judicial system against women and young children.
In a society where around 20 million people face acute food insecurity and five million children suffer from malnutrition, this law is nothing more than an effort to promote the marriage of hungry young girls. By once again ignoring women’s real will, this law has built yet another legal prison.
Hamasa is the pseudonym for a former university lecturer. After the Taliban’s return to power, she was dismissed from her position and forced to stay at home.
