Although Islamic law and laws in Afghanistan grant mothers the right to custody (Hizanat) of their children after the father’s death, some widowed women told Salam Watandar that they have been deprived of this right by their husbands’ families. The women interviewed for this report not only face the pain of losing their husbands but also the pressure of husband’s family regarding the care of their children. In many cases, women are separated from their children at the same time they lose their husbands, due to the cultural norms prevalent in families.
Farkhunda, 28-year-old, who lost custody of her three-year-old child for refusing to marry her husband’s brother.
“After my husband’s death, my husband’s family asked me to marry his brother, even though he already had a wife and children. I did not accept this proposal. Because of these pressures and problems, I had to return to my father’s house with my three-year-old son. But my husband’s family took my child away. I tried very hard to regain custody of my child, but I was unsuccessful.” she says.
Similarly, Zarifa, 22-year-old from Daikundi, says that her children were taken by her husband’s family after his death. She says, “After my husband died, they took my children. They said the children should grow up in their father’s house, and argued that I am young and might remarry, so it’s better for the children to stay with them. They took my children, and I could do nothing because I am a single woman.
Swita, 35-year-old who is mother of four children, says that after her husband’s death, she was able to keep only one of her children through the court, while the custody of the other three children was given to her husband’s family until they reach puberty.
“Yes, I went to court with my brother, and I was only able to keep one of my children under seven years old. The other three children will decide themselves whether to stay with me or with their paternal grandparents when they reach puberty. I have to wait until then.” she says.
Legal experts say that according to Sharia and laws in Afghanistan, a mother has the legal right to take custody of her children, and if this right is taken away, she can appeal to the courts.
Mudaser Mumtaz, a legal expert, says, “Article 239 of the Civil Code of Afghanistan states that the following persons have custody authority. First is the mother, then the maternal grandmother, third is the paternal grandmother, and fourth are the sisters and close relatives of the woman. If the mother does not meet the necessary conditions, custody may be transferred to close relatives under the law.”
Parwiz Khalili, another legal expert, adds that under Sharia and the laws of Afghanistan, it is the mother’s duty to take custody of her child, and if custody is taken away from her, she can bring the matter to the court. He says, “Sharia and the law allow the mother to officially take custody of her child. If the father dies and the child is taken from the mother, this ignores her legal and religious rights. The mother has the right to appeal to the court.”
Religious scholars also say that under Islamic law, the mother has priority for custody, and in her absence, the responsibility is passed to other relatives. Abdulahad Ateed, a religious scholar, explains,
“After the father’s death, custody of the child belongs to the mother. The priority is for mother, if the mother is not available, it goes to the maternal grandmother. If the maternal grandmother is not available, then to the paternal grandmother. The mother loses custody only in two cases: if she remarries or if it is proven that she is incapable—meaning she does not have the ability or suitability to ethically and religiously raise the child.”
We tried several times to obtain the opinion of the Ministry for the Promotion of Virtue and Prevention of Vice regarding awareness programs for families about the custody rights of widowed women, but we did not receive any response.
While Sharia and the laws of Afghanistan grant mothers custody of their children during the early years, pressures from the husband’s family, traditional beliefs, and social restrictions make it difficult for many widowed women to have this legal right.
Reporter: Zarafshan Sharifi
