Despite the existing challenges in handling divorce cases in the judicial system and social barriers, some women in Afghanistan have been able to separate from their husbands by exercising their legal and religious rights.
According to Hanafi jurisprudence, divorce is divided into several types: revocable divorce (Talaq-ul-raje), in which the husband may take his wife back without a new marriage contract until the end of the waiting period (Iddat); irrevocable divorce (Talaq-ul- bain), in which reconciliation is not possible without a new marriage contract and which includes Khula (where the wife obtains a divorce by paying compensation) and Mubarat (divorce by mutual agreement); and Tafriq, or Faskh (annulment) of marriage, in which the wife separates from her husband through her own request and a judge’s ruling.
Legal experts in Afghanistan say that in the country’s courts, if a woman wishes to divorce her husband for any reason, she can separate through Khula divorce. Some legal scholars and religious authorities emphasize that a woman may request separation in specific cases; however, the primary right to initiate divorce lies with the man. According to them, in Hanafi jurisprudence, Tafriq is carried out by a judge’s ruling in the form of annulment of marriage (Faskh ul-nikah).
Ziba Zuhal, a legal expert, says in this regard, “According to the Civil Code of Afghanistan, women can claim Tafriq (judicial separation) in the following cases: non-payment of alimony, causing harm, the husband’s infertility, and absence for more than three years. Under the Civil Code of Afghanistan and Islamic Sharia, the authority to pronounce divorce belongs to the man.”
Qutbuddin Mujtahid, a religious scholar, also says, “In Hanafi jurisprudence, Tafriq means separation by a judge’s ruling and is essentially annulment of marriage (Faskh ul-nikah), not a divorce issued by the husband. The main cases for Tafriq include impotent, defects that justify annulment, non-payment of alimony, apostasy, and Lian. After Lian between spouses, the judge immediately issues a permanent Tafriq. In Hanafi law, a woman does not have an independent right to divorce; however, in certain cases, she can request separation.”
Atiqullah Shahryar, a defense attorney, says that currently, the formal process for a husband and wife to separate takes place through Khula divorce, in which the wife must pay a sum of money as compensation (Fidya) to the husband. He adds that to reduce the difficulties women face in the courts, it is necessary for them to have a defense attorney to help complete their cases. He explains,
“The only way currently available for a woman to separate from her husband is Khula divorce, meaning the woman get her husband’s consent to grant the divorce by paying a sum of money. This process is somewhat difficult at present; however, guidelines have been established to preserve the family’s stability and prevent its breakdown. Overall, women’s access to justice seems alittle difficult, especially since they have been kept at a distance from society. What can be helpful is for women to have access to defense attorneys; unfortunately, this access is currently quite limited.”
Nevertheless, some women who have separated from their husbands or are in the process of doing so say that they have been able to separate either by appealing to the judicial system or through mediation by tribal elders.
Maryam, a 30-year-old from Laghman, says she was married at the age of 16 at her father’s request and without her consent. Now, it has been two years after her separation from her husband, she recounts the difficulties she faced in the Supreme Court during her divorce process, “I went to the court three times and barely managed to get a divorce. The government did not cooperate with me at first, but a women’s legal organization supported me, and then I was able to obtain the divorce. After that, the government also cooperated, and my case progressed.”
Furthermore, several women, in interviews with Salam Watandar, say that due to the neglect of judicial institutions, they were forced to pursue their separation from their husbands through tribal elders. Fariba, a 20-year-old from Bamyan, who have been separated for a year, says in this regard,
“We gathered the tribal elders; they asked me for money. I forgave my Mahr (dower), which was 50,000 Afghanis, in order to get a divorce. The court does not help women because women do not have the right to divorce. Whatever happens, you have to endure it and remain in the home and family.”
Zahra, 29-year-old (a pseudonym) from Herat, who also has been separated for a year, says, “Due to the considerations of the court, it required the consent of both parties and had made the conditions difficult, so I could not separate. Eventually, my family decided that I should give them my entire Mahr (dower), so that I could both separate and take my daughter with me. In this way, with the mediation of my family and tribal elders, I was able to separate.”
On the other hand, Hamida, a 25-year-old resident of Nangarhar, says that due to her husband’s family interference and an unhappy married life, she has initiated the divorce process. She hopes that the Supreme Court will make a fair decision in her case. She adds,
“My divorce is still in its early stages. We have only been referred to the court, and no decision has been made yet. I do not know what the government will decide or whether the decision will be fair. The decision must be made with consideration of both human and Islamic rights.”
Women’s rights activists, expressing concern about the situation of women after divorce, say that the challenges are not limited to the issuance of a court ruling; rather, women need legal and social support more than ever after separation.
Tahmina Mangal, a women’s rights activist, says in this regard, “Women who get divorced face multiple challenges, including economic issues; lack of financial support, unemployment, and inability to cover living expenses place a lot of psychological pressure on them. They also face social misjudgments, such as being labeled as ‘divorced.’ Since these women have obtained their divorce through the courts, the government should provide them with opportunities for education and employment, offer adequate shelter, and ensure the necessary legal support, so that society treats them with respect and support rather than blame.”
It is worth noting that these women’s divorce cases are sometimes delayed or handled through informal mechanisms, such as mediation by tribal elders. Meanwhile, legal experts and religious scholars emphasize that in certain cases, the law and Islamic Sharia grant women the right to request divorce; however, in practice, administrative complexities make this process difficult.
Reporter: Hosai Afghan
