6 May 2013

1) Divorce of marriage

Compliance with Islamic law; conditions under which husband can initiate divorce

In a May 2011 report on laws, traditions and practices related to marriage in Afghanistan, the Norwegian Country of Origin Information Centre Landinfo notes that “[i]n accordance with Islam, Afghan legislation allows for divorce, although it is far easier for a man to obtain divorce than it is for a woman”. As regards the social acceptability of divorce, the report adds that “divorce is associated with loss of esteem. In general, the stigma is greater for the woman, but even men lose status as a consequence of divorce.” (Landinfo, 19 May 2011, p. 20)

 

In its report on a fact-finding mission to Afghanistan and Pakistan (22 September – 5 October 2002), published March 2003, the Danish Immigration Service (DIS) provides the following information with regard to divorce:

“The Director of Secretariat of the [Afghanistan Independent] Human Rights Commission and the Commissioner [at the Afghanistan Independent Human Rights Commission] advised that a man can easily get divorced from his wife. This is done by a verbal declaration before the wife, in the presence of two witnesses. The declaration must be repeated three times.” (DIS, March 2003, p. 56)

Similarly, Afghan lawyer Mukarama Akrami writes in the annex of a report published by the International Commission of Jurists (ICJ) in February 2003:

“The meaning of divorce in civil and Islamic law is that if the husband repeats the word ‘divorce’ three times to his wife without any pressure, unless he has lost his self-control or is drunk, or has mental problems or an illness, then after using these words, his wife is divorced and their relationship is over.” (Akrami, 7 February 2003, pp. 56-57)

According to Mukarama Akrami, Articles 136, 138 and 141 of the Afghan Civil Code contain the following provisions regarding divorce:

“According to the article 136 of civil law: ‘A women can be divorced if she is legally the wife of someone or in the ‘return’ period. A ‘return’ divorce is when a husband uses the divorce word only once to his wife and has three months to return to her, otherwise she will be automatically divorced.

According to the article 138 of civil law: ‘A husband can divorce his wife orally, in writing, or, if he can’t write, point to a part of his body to indicate divorce.’

Article 141 of civil law: ‘According to the civil law any word in Afghan culture and tradition meaning divorce can be used to divorce a women [sic]. A father-in-law cannot divorce his son’s wife.’

According to article 141, divorce is not legal if the man is:

1. Mad or insane.

2. Under pressure.

3. A teenager.

4. Mentally ill.

5. Without self-control and incapable of understanding his own words.” (Akrami, 7 February 2003, p. 57)

The above-cited Landinfo report of May 2011 notes that “[p]ursuant to Section 135, second paragraph, of the Civil Code, the right to dissolve a marriage without giving any reason is only available to the husband. A couple is considered divorced if the husband declares that he wants a divorce (talaq).” (Landinfo, 19 May 2011, p. 20)

Mukarama Akrami informs that “[a]ccording to Islam, a man who divorces his wife without legal, logical or Islamic reason will be punished by God” (Akrami, 7 February 2003, p. 57). According to Akrami, the motives for divorce can be:

“- Emotional marriages: especially teenagers and young lovers.

- Marriages for personal aims like money, fame, etc.

- Imposed marriages.

- Mental and physical incompatibility.

- A marriage that is not consummated.

- Marriage below the legal age.

- Sexual incompatibility.

- Incompatibility between the couple.

- Jealousy.

- Impossible demands.

- Not giving birth to a son.” (Akrami, 7 February 2003, p. 57)

Conditions under which wife can initiate divorce

In its March 2003 fact-finding mission report, the Danish Immigration Service (DIS) provides the following information with regard to opportunities for women to obtain a divorce:

“According to the Director of the Secretariat of the [Afghanistan Independent] Human Rights Commission and the Commissioner [at the Afghanistan Independent Human Rights Commission], a woman cannot get divorced as a general rule according to the Sharia laws, if the husband does not agree. However, she may contact the council of elders or the court if she finds that her husband is impossible to live with. According to the Deputy Minister for Women this applies in cities as well as in the rural districts. International Human Rights Law group said that divorces are rare. The importance of the family honour means that most women choose to tolerate domestic violence rather than seek a divorce. The source also added that most women are unaware of the opportunities available for obtaining a divorce.

The prerequisite for a woman to seek a divorce is that she must prove one of the following conditions:

- that the husband is unable to provide for the family,

- that the husband is violent towards her,

- that the husband is mentally ill,

- that the husband is unable to give her children, - or that the husband is abusing the consumption of alcohol or drugs.” (DIS, March 2003, pp. 56-57)

Mukarama Akrami states that “[g]enerally, it is the husband who has the right to divorce and not the wife in Islamic law”, but that “in some circumstances, the woman has the right to go to court and ask for a divorce” (Akrami, 7 February 2003, p. 57). According to Akrami, these circumstances include:

“- If the husband has been sick for a long time.

- If he cannot have sexual relations with his wife.

- If he has been away from home for a long time.

- If he does not feed her.” (Akrami, 7 February 2003, p. 57)

Landinfo mentions in its May 2011 report that the Afghan Civil Code provides women with a partial right to dissolve the marriage:

“At the outset, women also have a partial right to dissolve the marriage (khul’) according to Sections 156 to 175 of the Civil Code, although khul’ requires the husband’s consent and imposes the condition that she returns the bride price to the husband.” (Landinfo, 19 May 2011, p. 20)

The same source further notes:

“The Civil Code provides women with the right to apply for divorce only on certain conditions, and such an application for separation must be processed by a court. In Landinfo’s interpretation of the Afghan Civil Code, the legal base for dissolution of marriage is grouped into four categories that can allow for a divorce following a court order:

1) Separation due to a defect (tafreeq) in accordance with Sections 176 to 182 of the Code. An application for divorce can be approved if the husband is unable to fulfil his marital obligations, for example because of illness.

2) Separation due to harm (zarar) in accordance with Sections 183 to 190 of the Code.

3) Separation due to non-payment of alimony (al-infaq) in accordance with Sections 191 to 193 of the Code.

4) Separation due to absence in accordance with Section 194 to 197 of the Code.

With regards to all four categories, the woman must provide evidence that grounds for a divorce are present. As far as Landinfo can discern, the text of the Code provides very few guidelines for the deliberations of the court, which appears to be able to base its verdicts in specific cases on relatively unrestrained discretionary judgement.” (Landinfo, 19 May 2011, pp. 20-21)

In a report dated March 2012, Human Rights Watch (HRW) writes that women face “far greater obstacles” in obtaining a divorce than men. The report further details:

“Absent consent from their husband, women can only obtain a divorce through a court and must show cause on the grounds of 1) defect, for example because of illness; 2) harm; 3) non-payment of alimony; or 4) absence.

Obtaining a ‘for cause’ divorce for women in Afghanistan is not easy, legally or practically. ‘Harm’ has been interpreted to mean inhumane treatment, which includes physical abuse, but includes a requirement that such abuse occur ‘without cause’ leaving a door open for judges to rule against women subjected even to serious violence.

Making a case for divorce, finding a court in which to make such a case, or even knowing that one has the right to make such case is difficult and even inconceivable for many Afghan women and girls. For women and girls who cannot read or write, have no money, or who may not be able to leave the house without permission, going through this process is virtually impossible.

Compounding these problems, many judges do not even apply the provisions of the Civil Code, but instead invoke their own interpretation of Islamic law, with some judges not even admitting that women are entitled to seek divorce.” (HRW, 28 March 2012, pp. 97-98)

Authors Nadjma Yassari and Mohammad Hamid Saboory mention in their article published in the 2010 collective volume “Sharia Incorporated: A Comparative Overview of the Legal Systems of the Twelve Muslim Countries in Past and Present” that the Afghan Civil Code provides for four types of marriage dissolution. Two of them are initiated by the wife:

“- First, there is the repudiation of the wife by the husband (t,alāq). The provisions of t,alāq are codified in Articles 133-135 of the civil code and reflect the Hanafi [Sunni school of jurisprudence] rules. Under the code the husband’s unilateral right to divorce, without giving any reasons and without recourse to the courts, has been retained. The husband’s may pronounce the t,alāq verbally, in writing, or even by gesture (Art.s 139, 135 CC). Witnesses are not required and the repudiation does not need to be registered. The code is completely silent on that matter. The possibility of the husband to divorce his wife with no further formalities causes a permanent legal insecurity for the women as to their marital status.

- The second form of divorce is the judicial divorce initiated by the wife (tafrīq) (Art.s 176-197). This kind of divorce must be based on specific grounds that are borrowed from the Maliki school of law. The grounds for judicial divorce include: the husband suffering from an incurable disease; his failure or his inability to maintain his wife; absence/desertion for three years without a lawful excuse; the husband’s imprisonment for ten years or more, in which event she can ask for a divorce after the first five years of imprisonment; and harm (ḍarar) which can denote both physical and psychological injury (Art.s 89, 176, 191, 194).

- Thirdly there is the divorce against payment (khol’) (Art.s 156-176). This kind of divorce is initiated by the wife whereby she provides financial consideration in exchange for her divorce. Khol’ represents the only form of dissolution whereby the wife has the right to initiate divorce proceedings without pleading a special reason such as harm or injury as grounds for divorce. Under Hanafi law, however, it can only be effectuated with the husband’s consent, severely limiting the scope of this right. The rules on khol’ in the Afghan code fail to take note of the family law reform measures that other Muslim countries have introduced. An Afghan woman’s attempt to utilise khol’ under the Civil Code can, therefore, be frustrated simply by the husband’s refusal to agree to her proposal.

Finally there is the annulment of the marriage (faskh) (Art.s 132-134), the legal dissolution of the marriage contract. This can be the case when one of the two parties has not consented to entering into the marriage, when psychological illness (such as insanity) are detected, or when the dower is inadequate (Kamali 1985: 184).” (Yassari/Saboory, 2010, pp. 306-307)

As noted by the Women and Children Legal Research Foundation (WCLRF), an Afghanistan-based research and advocacy organisation, the Afghan civil law provides a woman with the option of separation in case her husband marries for a second time without her consent. However, this option is associated with considerable disadvantages for the woman:

“The civil law of Afghanistan has provided the women who her husband is married for second time without her consent with the option of separation (dissolving the marriage according to the wife well). But this option make women more effected than man, because: a. She will likely not be granted custody of her children. b. She is likely economically dependent on her husband and loses this financial support. c. Due to unsuitable customs in the community, she loses her status among family and even in her father’s family. Hence, she refuses going to court because of her husband’s action and keeps silent.” (WCLRF, 2006)

In a report on a fact-finding mission to Afghanistan (January – March 2005), published April 2005, the Max Planck Institute for Foreign Private Law and Private International Law (MPIPRIV) states that under Islamic and civil law, the marriage contract can include provisions transferring divorce rights from the husband to the wife. However, as observed in the report, “this possibility is hardly known”:

“Under Islamic law and the AfgCC [Afghan Civil Code], the nikāh-nāmah, the contract of marriage can include stipulations such as the transfer of divorce rights from the husband to the wife. However, this possibility is hardly known. Interviews conducted with women of different social strata raging from highly educated urban women to illiterate rural women revealed that not even in a single case had women demanded the delegation of divorce rights in case of serious threat or grave misbehaviour.” (MPIPRIV, April 2005, p. 20)

2) Polygamous marriage

Conditions under which a man can marry more than one wife

In its March 2003 fact-finding mission report, the Danish Immigration Service (DIS) quotes the then Afghan Deputy Minister of Justice, Rasooli, as saying that “[a]n Afghan man may have 4 wives”, but that under Islamic law, he “should only have one wife”. (DIS, March 2003, p. 56)

The Women and Children Legal Research Foundation (WCLRF) quotes Article 86 of the Afghan Civil Code, which contains the following provisions regarding polygamy:

“Article 86 of the Civil Code of Afghanistan states, in regard to polygamy: ‘Polygamy can take place after the following conditions are fulfilled:

1. When there is no fear of injustice between the wives.

2. When the person has financial sufficiency to sustain the wives. That is, when he can provide food, clothes, suitable house, and medical treatment.

3. When there is legal expediency, that is when the first wife is childless or when she suffers from diseases which are hard to be treated.’” (WCLRF, 2006)

In an August 2007 report published by the Heinrich Böll Foundation, Afghan scholar and civil society activist Orzala Ashraf Nemat states that all three conditions set out in Article 86 of the Afghan Civil Code (no fear of injustice, financial sufficiency and legal expediency) “have directly been copied from the Islamic Sharia Law into the Civil Law without any explanations” (Nemat, August 2007, p. 23).

 

In its 2012 Social Institutions and Gender Index, the Organisation for Economic Co-operation and Development (OECD) provides the following information regarding polygamous marriages:

“Article 86 of the Civil Code of Afghanistan states that ‘Polygamy can take place after the following conditions are fulfilled: When there is no fear of injustice between the wives; When the person has financial sufficiency to sustain the wives. That is, when he can provide food, clothes, suitable house, and medical treatment; and When there is legal expediency, that is when the first wife is childless or when she suffers from diseases which are hard to be treated.’ Sharia law in Afghanistan provides that men can take up to four wives. A survey of 1400 people conducted by the Women and Children Legal Research Foundation found that the large majority of respondents (87 percent) disagreed that having more than one wife was a ‘must’ for Afghan society. Only 13 percent agreed on polygamy as a ‘must’. In terms of factors contributing to polygamy, men cited the reasons of tribal competition, insecurity, custom and tradition, sickness of wife, wealth and not having a son as the main reasons for entering into polygamous marriages. In terms of views on equality in polygamous marriages, 75 percent of interviewees said it is not possible at all to apply justice and equality in the context of polygamy.” (OECD, 2012)

In its April 2005 fact-finding report, the Max Planck Institute for Foreign Private Law and Private International Law (MPIPRIV) notes:

“According to Islamic law and the AfgCC [Afghan Civil Code], polygamy is a legal institution whereby a man can marry up to four wives simultaneously. However, the conditions set for multiple marriages, such as the equal treatment of all wives, are not observed in practice by the bride's parents or the polygamous husband. A court permission for the conclusion of a second, third, or fourth marriage is not required either under classical hanafī law or the AfgCC.” (MPIPRIV, April 2005, p. 20)

Role and duties of first wife

As noted in some of the sources above, polygamous marriages are allowed in Afghanistan but only if the husband is able to treat all his wives equally (WCLRF, 2006; OECD, 2012; MPIPRIV, April 2005, p. 20).

 

In a February 2009 report (based on data collected between June 2006 and February 2007 in Bamyan, Herat, Kabul and Nangarhar provinces), the Afghanistan Research and Evaluation Unit (AREU), a Kabul-based independent research organisation, elaborates as follows on relations between co-wives (ambagh) in polygamous marriages:

“The worst consequences described by respondents of having more than one wife, and the most common reason found for disapproval of the practice, is conflict between women married to the same man. In most of the examples found during the research, including those examined above, there was overt conflict, rivalry and violence between ambagh [co-wives]. Despite this, some examples were found where women married to the same man had proved to be a source of support for each other, such as the case of Maha Jan and Zari Jan. Other women had, over time, found ways to live in cooperatively, often when there is a significant age difference between them.” (AREU, February 2009, p. 60)

Country-studies.com, a website that contains online versions of books previously published in hard copy by the Federal Research Division of the United States Library of Congress, notes with regard to the same issue:

“Relations between co-wives can be amiable, sister-like and mutually supportive in sharing household chores and in securing favorable attention from the husband, but relations can also be stormy and many men hesitate to take a second wife because of the fierce battles that can erupt.” (Country-studies.com, undated)

The Civil-Military Fusion Centre (CFC), a knowledge management institution established by NATO in 2008, reports in November 2009:

“In families with more than one wife, each wife has her own room in the house with her own belongings and furniture. Sometimes, relations between co-wives develop into friendship, where co-wives share domestic tasks and responsibilities outside the house. The core family consists of the mother-in-law, daughters-in-law and daughters, with the senior woman at the top of the power hierarchy within the household.” (CFC, 17 November 2009, p. 2)

Among the sources consulted by ACCORD within time constraints no further information could be found on the role and duties of first wives in polygamous marriages.

 

 

References: (all links accessed 6 May 2013)

·      Akrami, Mukarama: Annex IX: Marriage and divorce. In: Final Report on Afghanistan’s Legal System and its Compatibility with International Human Rights Standards (published by International Commission of Jurists, ICJ), 7 February 2003 (available at Refworld)
http://www.refworld.org/cgi-bin/texis/vtx/rwmain?page=country&category=&publisher=ICJURISTS&type=&coi=AFG&rid=&docid=48a3f02c0&skip=0

·      AREU - Afghanistan Research and Evaluation Unit: Decisions, Desires and Diversity: Marriage Practices in Afghanistan, February 2009
http://www.areu.org.af/Uploads/EditionPdfs/905E-Marriage%20Practices-IP-web.pdf

·      CFC - Civil-Military Fusion Centre: Afghanistan: Developments in the Social Well-being Sector, 17 November 2009
https://www.cimicweb.org/Documents/CFC%20AFG%20Social%20Well-being%20Archive/SWB%20report%2011-6-09.pdf

·      DIS - Danish Immigration Service: The Political, Security and Human Rights Situation in Afghanistan: Report on fact-finding mission to Kabul and Mazar-i-Sharif, Afghanistan and Islamabad, Pakistan; 22 September - 5 October 2002, 7 March 2003 (available at ecoi.net)
http://www.ecoi.net/file_upload/ds459_02642afgh.pdf

HRW - Human Rights Watch: "I had to run away"; The Imprisonment of Women and Girls for “Moral Crimes” in Afghanistan, 28 March 2012 (available at ecoi.net)
http://www.ecoi.net/file_upload/1788_1333042191_afghanistan0312webwcover-0.pdf

·      Nemat, Orzala Ashraf: Comparative Analysis of Family Law in the Context of Islam, August 2007 (published by Heinrich Böll Foundation)
http://www.af.boell.org/downloads/english_family_law.pdf

·      OECD - Organisation for Economic Co-operation and Development: Social Institutions and Gender Index: Afghanistan, 2012
http://genderindex.org/country/afghanistan

·      Yassari, Nadjma/Saboory, Mohammad Hamid: Sharia and national law in Afghanistan. In: Sharia Incorporated: A Comparative Overview of the Legal Systems of the Twelve Muslim Countries in Past and Present (edited by Jan Michiel Otto), 2010, pp. 273-318 (excerpts available at Google Books)
http://books.google.at/books?id=8ep7cX3ma0sC&pg=PA305&lpg=PA305&dq=polygamy+conditions+afghanistan&source=bl&ots=1oWpLJwxoT&sig=Zgn9s0z8LMBeCNsKASBzATs0iX8&hl=en&sa=X&ei=LUSCUZ6ZFOjx4QTA-YHIDw&ved=0CEUQ6AEwBQ#v=onepage&q=polygamy%20conditions%20afghanistan&f=false