Nargis, a young woman from Kabul, spoke quietly as she recounted her experience of seeking a divorce in the Emirate’s legal system. “The court told me the doors to separation are closed for women, and why should women even ask for a divorce?” she said. She told AAN that her husband beat her, gambled and was unfaithful, and still when she went to court, the judges refused to grant her a divorce.

They didn’t listen to me – no one was paying attention to what I was saying. It was like I was talking to the air. The judges told me that divorce was a sin and I should keep living with him even if he’d said he’d divorced me. I told them I won’t live like this to keep up a good image for your government. They made me hate my life.

Nargis did eventually get a divorce, but only through perseverance and at great cost. She was one of four women interviewed for this report who had opened a divorce case under the Islamic Emirate government. All four faced similar battles, describing abuse they had experienced, difficulties raising their cases in court, and condemnation from friends and family when they spoke about their problems.

AAN’s interviewees had to contend not only with changes in the law under the Islamic Emirate that make it almost impossible for a woman to separate from her husband but also with age-old customs and social traditions that make such a thing unthinkable for many. “People believe that a woman should stay silent whatever others do to her,” Rahmat, a lawyer from Kabul, told AAN. For most Afghan households, getting their sons married is the most costly investment they will ever make. The groom’s family often pay a large bride-price (paid to the father of the bride), as well as paying or promising to pay the bride the sharia-mandated mahr, and also bear their share of the costs for lavish wedding ceremonies.^[1] For both husband and wife, breaking up a marriage can be a source of extreme shame and in many communities, divorce is almost unheard of. The pressure to stay married is particularly strong for women. “During the divorce case, my husband’s family kept calling me on the phone,” said Yasmin, a young woman from Balkh. “They’d give me warnings. They’d threaten to take my life.”

Yet in Islam, marriage is a contract that can be broken. Sharia allows a man to do this without grounds and without even bringing a petition to court. In this case, known as talaq, he must simply inform his wife she is divorced and observe a three-month waiting period, after which the divorce is final. However, a woman must go before a judge and prove her right to separate on specific criteria. The interpretation of these criteria differs between the four major schools of Sunni Islamic jurisprudence (fiqh).^[2] The Hanafi fiqh, followed by the majority of Afghans, is the most restrictive of the four on this matter; in the twentieth century, most states that derive their legal codes from Hanafi jurisprudence therefore introduced reforms aiming to make divorce easier for women and constraining a husband’s prerogative to unilateral divorce.^[3] This typically involves adopting the Maliki fiqh, which is more permissive when it comes to a woman’s ability to apply for divorce.

Afghanistan is no exception. Legislation introduced in the 1970s allowed a woman to obtain a separation – known as tafriq – in a state court, if she was able to prove her case on specific grounds laid out by Maliki fiqh; in practice, this was exceptionally rare and any woman who did seek to do it was likely to find herself ostracised by her family and community. In line with the Quran’s injunction to achieve reconciliation through negotiation, the few women who came to the state to seek separation were advised to return to their communities and resolve their issues. Community mediation remained the most common recourse after 2001, but in Afghanistan’s cities, the number of women who did raise divorce cases in the state system did grow, as this report details below.

However, with the return of the Taliban, Republic-era legislation was suspended. The Emirate declared Hanafi fiqh to be the sole source of law and the Supreme Court explicitly revoked provisions allowing women to apply for tafriq separations. AAN spoke to Afghan lawyers in five provinces to explore these changes in the legal system and interviewed four women involved in divorce cases to understand how these changes have affected them.

For Afghan women, there was no ‘golden age’ when ending violent or loveless marriages was easy or shame-free. However, over the last two hundred years, rulers have made occasional attempts to make it easier for women to get divorced. In parallel with these legal changes, social norms around women’s rights also evolved, incrementally and patchily. This report begins by tracing these developments to set the scene for the experiences of women under Emirate rule, showing how the little progress that was made has now been lost.

Women, divorce and the law 1881-1977

In common with most family matters, divorce and marital disputes in Afghanistan have traditionally been settled outside the state legal system, either through community dispute resolution or religious authorities. The state has tried to insert itself into family matters to varying degrees since the nineteenth century, beginning with modest reforms under Amir Abdul Rahman Khan (r1880-1901) in an effort to change what he referred to as “the old ridiculous ways” that were “entirely opposed to Muhammad’s teachings.”^[4]The Amir outlawed the custom of compelling a widow to marry her husband’s brother and prohibited forced marriage; he also decreed that a woman could sue for divorce or alimony on the grounds of cruelty or lack of financial support. Finally, he introduced a requirement to register marriages, which he hoped would provide evidence for married women who wished to raise cases in court.

Historians say these reforms had little effect in practice.^[5] Divorce generally remained outside the remit of the state, since divorce instigated by men required no judicial involvement and it was exceptionally rare for a woman to raise a case in court. Records show only a few cases of women petitioning sharia courts for separation; in the eastern province of Kunar in 1886, a woman demanded a separation on the grounds that her husband was impotent and after a mandatory one-year period the separation was granted.^[6] In practice the state had no ability to systematically register marriages and no capacity to enforce this requirement.

In the 1920s, King Amanullah made further efforts to regulate family matters by statutory law with a set of controversial reforms known as the Nizamnama, which included an administrative code transferring jurisdiction for all family matters from sharia courts to civil courts. He also passed the Marriage Laws of 1921 and 1926, mandating the abolition of child marriage, limits on polygamy and an end to forced marriage. But Amanullah’s decrees included no specific provisions on divorce for women and in any case, they were roundly rejected by the ulema as un-Islamic and a violation of sharia, forcing him to reverse some of their provisions, which were discontinued entirely after the political crisis of 1929.^[7]

The hostile response to these reforms meant that Afghanistan’s subsequent rulers and legislators made little effort to reform family law until the 1970s. Legislation on marriage and other family matters remained piecemeal and almost entirely based on Hanafi fiqh. This gave a woman two options if she wanted to separate from her husband. Firstly, Hanafi fiqh allows her to request a khul, or negotiated settlement, which would dissolve the marriage. In a khul, both husband and wife must agree to separate, and the wife usually pays back any mahr she has received or renounces any claim to mahr she has not yet received. Secondly, a woman may request a judicial separation. Hanafi fiqh decrees that a woman can apply for separation only on two grounds. If her husband abandons her, she may request a separation once he is presumed to have died, either 90 or 120 years since the date of his birth; she may also apply if her husband is incurably ill, but the illnesses that count as grounds are contested.^[8]

For women in the mid-twentieth century, therefore, divorce was extremely difficult to initiate and they had almost no legal protection if their husbands decided to divorce them. The case of Alamtab vs Muhammad Shah, recorded in a Kabul primary court in 1967, illustrates this problem. Alamtab filed a case alleging that her husband Muhammad Shah had divorced her but he denied this and continued to come to her father’s house and demand marital relations with her. The primary court said it would not consider the case, so Alamtab raised the case with the provincial court, which ruled against her because it decreed she had no valid witnesses to her claim that her husband had divorced her. Alamtab then appealed at the Court of Cassation, which overturned the provincial court’s decision and referred her case to the Parwan provincial court. Finally, in 1971, the Parwan court rejected Muhammad Shah’s claims and he agreed to divorce her, but only on condition that she renounced her mahr. She had spent four years neither married nor divorced, being harassed by her husband whilst fighting the case, and was left with no financial security and her reputation irrevocably damaged.^[9]

This began to change in the 1970s, when top-down efforts at social reform began to accelerate. The first statutory provisions on divorce came as part of the 1971 Marriage Law, which explicitly noted that divorce should be dealt with under Hanafi fiqh. Modernists criticised the law on these grounds, saying that it was unconstitutional due to the principle of equality enshrined in the 1964 Constitution; the magazine of the Afghan Women’s Institute, Mermon, described it as “showing a general disregard of the human dignity of women in this country.”^[10] Courts across the country continued to rule by Hanafi fiqh, as in the case of Musa vs Shaista, raised in Farah province in 1970. Twelve years after Musa abandoned his wife Shaista she remarried; her second husband was then accused of abduction and both were sentenced to two years’ imprisonment by a primary court in Farah. Appealing to the provincial court, Shaista found herself sentenced to an additional two years’ imprisonment because the court cited the Hanafi requirement for her to wait until her husband’s 120th birthday before the marriage could be dissolved. A single judge from the provincial court dissented, writing in an Afghan legal periodical, Message of Conscience, that “the periods of time referred to impose a life-long torture and are intolerably excessive.”^[11] Unsurprisingly, few women raised a case in court, according to an opinion piece in the Kabul Times covering the Marriage Law. “Recent reforms in the marriage law have been ignored,” it said. “The age-old traditions are holding their own.”^[12]

Court records reinforce this, with only 94 cases of divorce registered at the Kabul provincial court between March 1972 and February 1973.^[13]

In 1973, the Supreme Court finally took action to address the modernists’ concerns, prompted by the case of a woman named Aziza. She had requested a judicial separation from her husband, Ghawth, on the grounds that he was insane and could not be cured. The primary court had rejected her petition because it believed that Hanafi fiqh did not allow insanity as one of the illnesses that permitted separation. “Several qualified doctors,” read Aziza’s petition, “consistently confirm that Ghawth’s madness is of a permanent nature … marital life with Ghawth has become intolerable for me and cohabitation with him involves physical danger to my life.”^[14]

In response, the Supreme Court established a committee to prepare recommendations on divorce legislation focusing on the problems the existing law caused for women. In 1974, the Ministry of Justice published the committee’s report, which recommended a set of provisions derived from the more permissive Maliki fiqh as the source for state legislation on divorce; finally, in 1977, the Civil Code was published, drawing its legislation on divorce from Maliki fiqh. This allowed women to apply for tafriq on the grounds of harm, abandonment, failure to pay maintenance and a broader range of illnesses. They could also apply for a khul, or negotiated settlement, if they could get their husbands to agree and if they could afford to pay, though this did not have to be done in court.

Now, at last, women had greater legal protection if they wanted a separation, although the social stigma against divorce remained prohibitive for most women. Even the concept of the state’s intervention in family matters was still unacceptable for many. Nancy Dupree, in a piece on the family in Afghanistan, wrote that “any infringement on the institution of the family is regarded as repugnant… when separations occur, wives are sent back to their fathers’ homes, which is the cause of much shame.”^[15] The anthropologist Inger Boesen found that state law had little relevance to women’s lives outside Kabul. “Women’s emancipation is confined to the upper classes in the most important cities, probably comprising approximately 2 per cent of the women of Afghanistan,” she wrote.^[16] In the Pashtun communities of late 1970s Kunar, she reported, women did not have the right to choose a husband, to receive mahr in line with sharia, or to separate from their husbands.

Women and divorce under the Islamic Republic, 2001-21

With the defeat of the Taliban in 2001, the 1977 Civil Code – which had been suspended – returned. Women could therefore obtain tafriq divorces from the state’s courts, as mandated by the Code. They could also use the court or non-state mediators to agree a khul with their husbands. But although women could, in theory, initiate divorce legally, in practice the situation was more complex.

Comprehensive statistics on the number of court-issued divorces for women are not available, but all the evidence suggests they were rare. Research conducted by TLO in 2011 found no cases of divorce at all registered at courts in Paktia province, while in urban Jalalabad – which at the time had a population of some 200,000 – only 40 family law cases were registered in 2010-11.^[17] However, divorce rates had increased by the later years of the Republic era. Supreme Court statistics showed that 6,370 divorces were finalised in 2015, compared to 1,049 between 2006 and 2009; between 2015 and 2017, courts granted 6,648 claims of tafriq and 4,012 cases of divorce initiated by husbands.^[18]

Lawyers told AAN that women were able to raise cases of tafriq in court and that these could be resolved. They also agreed that tafriq cases were increasing towards the end of the Republic era. “There were more chances for women then,” said Hekmatullah, a lawyer in Kandahar. “The most common grounds for women’s divorce was harm, when their husbands beat them. Then there were also cases where a husband failed to provide for his wife, or when he abandoned her.” Qudrat, a lawyer who had previously worked with NGOs to solve women’s cases in Herat, agreed:

Harm was the most common reason for tafriq. Around 60 per cent of cases were due to harm. Maybe 10 or 15 per cent were due to abandonment. The court would summon a husband to appear in court, announcing it in the papers and giving him a specific deadline to appear. If he didn’t come, then the court would ask the Attorney General to appoint a prosecutor who’d deal with the case, and it would eventually result in tafriq.

Khairullah, a lawyer from Bamyan, added that in many cases women would petition for tafriq on the grounds of harm because their husbands were using drugs. “The number of cases raised for harm was high, because the number of drug addicts was increasing. This problem and violence by their husbands, were the main reasons women wanted divorces.”

Once in court, however, women’s cases were not always resolved in line with the 1977 Civil Code. Judges often bypassed statutory law on family matters either because they preferred customary law or uncodified Hanafi law over the Civil Code, or because they were simply unsure which type of law they should apply; in a 2005 survey of actors in the Afghan legal system by the Max Planck Institute, cited in this 2012 report, almost all 200 respondents reported Islamic law and customary law as the main sources of law, rather than state law. This revealed a deeper, more structural issue: judges struggled to balance the statutory processes and other sources of law because they reflected different normative orders. Whereas the Republic’s leadership insisted on the superiority of codified law, the study found that conservative prosecutors tended to argue that codified law was just one part of the legal framework and insisted on the primacy of sharia – which, in their opinion, meant the application of Hanafi fiqh’s constraints on divorce. It was also very common for courts to simply refuse to deal with a divorce case, instead referring it to community shuras or jirgas for resolution.^[19]

One of the most troubling possibilities for women who left abusive husbands and then sought divorce was that they would be imprisoned on charges of ‘running away’ or ‘moral crimes.’ Running away was not a crime under the Republic-era Penal Code, but in 2010 the Supreme Court issued a directive to courts that they should prosecute women who fled to ‘strangers’ in such a scenario because this could cause “crimes like adultery and prostitution and is contrary to sharia principles.” Human Rights Watch reported in 2012 on many such cases, including that of Parwana, a 19-year-old woman who had fled her abusive husband and gone to the police to ask for help in getting a divorce. Instead she was imprisoned for six months on charges of running away. Roqia, who had been married at the age of 12, asked her husband for a divorce because he was a drug addict and frequently disappeared. Eventually she remarried, to help support her children. Her first husband reported her to the police and she and her second husband were convicted to five years’ imprisonment by a court.

Women were also deterred from going to court by the high bar of evidence required to prove that their husband had committed harm against them. If they raised a case based on allegations that their husband had harmed them, most judges would demand evidence that they had been hurt, which was difficult to get; the court could ask for forensic reports, evidence of physical abuse, or witnesses, so women might have to file a criminal case against their husbands in order to present acceptable evidence to a judge.^[20] Khairullah, in Bamyan, said this was absurd:

One woman was beaten by her husband at ten o’clock at night, but when she complained, the judge told her to bring witnesses that her husband had beaten her at ten o’clock. At ten o’clock people are going to bed – how can a woman bring such a witness?

Other services intended to support women were poor. The police offered little help to women who approached them for help in separating from their husbands. Even Family Response Units (FRUs), which began to be established in police stations from 2006 to support women who were in dangerous situations, often encouraged women to return home and resolve their issues because of the stigma attached to divorce. “If these women try to get a divorce, they know there will be nothing left of them,” said a former head of a Kabul FRU to author Julie Billaud in 2010.^[21] Some provincial departments of women’s affairs, set up after the creation of the Ministry of Women’s Affairs in December 2001, were proactive in referring the cases of women who asked for help, according to women interviewed by Billaud. Others were not.

Unsurprisingly, going to court for a divorce was usually a last resort. Most separations were adjudicated by community mediators, either because women would approach them directly or because it was very common for the courts or police to refer a case that did reach them back to the community. TLO found that formal authorities in Nangrahar’s Batikot and Momand Dara districts heard seven cases in 2010, while village shuras heard 71 and ulema shuras heard a further 80. In all but the most extreme cases of abuse, they often prioritised the ‘collective good’ of the community in their decision-making, which meant ensuring stability and maintaining peace. This tendency, combined with deep-rooted social stigma surrounding divorce, meant that it was rare for women to obtain an equitable separation in this way. Typically the community shura would rule that the couple should reconcile, or it would negotiate a khul separation that required women to pay off their husbands. Hekmatullah, the Kandahari lawyer, explained this to AAN:

Most divorce cases were resolved through shura. In our office, one of our responsibilities was to give advice to women who wanted to divorce. Mostly getting tafriq at the court took too much time and therefore we were advising women to divorce through those community councils so it would be more efficient. Those councils were always making khul instead of tafriq for women and so women had to pay their husbands.

In the most conservative areas or those controlled by the Taliban, it was even rarer for women to ask either community bodies or the state system for help in getting divorced. “Women in areas under the control of the Taliban couldn’t come to the government courts,” Hekmatullah added, speaking about parts of Kandahar. “They had to go to the Taliban’s [shadow] courts, where separation was so restricted and on grounds that are so hard to prove.” According to TLO, jirgas across Paktia province reported hearing only seven family cases in 2010. Rahmat, a lawyer in Kabul, described the situation:

Separation was easier in the big cities because they had different cultures, and women were aware of how to raise a case. But in the places that were not under the control of the former government or where other types of dispute resolution systems had a more prominent role, it was thought to be shameful for women to raise their problems and to say that they wanted to separate from their husbands.

Getting a lawyer was also a struggle for women because the cases needed so much administrative work and the clients had to have national identity cards. This was a big obstacle for women living in remote areas who had no one to guide them, no education and no support from their families. In the areas where free legal services were available women could get support including free lawyers.

In Bamyan, generally considered more liberal, Khairullah said things were the same. “The biggest challenges women faced in separating from their husbands were old cultural traditions. Women didn’t open cases because it would give their families a bad name.”

By the end of the Republic, in 2021, seeking divorce was still a difficult decision for a woman to make. Cultural and social prohibitions which held sway both in communities and in Afghan courts made the risks attached to divorce high; state bodies that should have helped women often did the opposite, while violence against women who did try to end their marriages was common. Many still resented the state’s intrusions into family matters, and the statutory legal system remained a distant second choice for those seeking help; many of the legal reforms designed to ensure women’s rights were meaningless because the state itself had so little legitimacy. The difficulty of living alone and providing for a family without a reliable income also deterred many women from seeking divorce.

Even in the face of these issues, however, the number of women seeking divorces did grow during the Republic era. Torunn Wimpelmann and Masooma Sadat reported in a 2022 paper that the Supreme Court recorded 1,049 divorce cases between 2006 and 2009, which increased to 6,370 cases in 2015 and 4,390 in 2016; the majority of these cases were initiated by women since men did not typically need to go to court to obtain a divorce.

Women and divorce under the Emirate, post-2021

On the Taliban’s return, they stated that Hanafi fiqh represented the sole source of law applicable in Afghanistan. It was initially unclear how this would be enforced or what its implications would be for the existing laws of the Republic era. In September 2021, the Taliban announced that the 2004 Constitution was suspended pending review of the existing laws, which meant that the 1977 Civil Code was also suspended.^[22] Therefore, the Code’s provisions derived from Maliki fiqh which allowed women to demand a separation on the grounds of harm, abandonment, failure to provide, and illness no longer applied. Confusion swirled over whether decisions made under the Republic’s legal system would be revoked. Some divorced women feared that their divorces might be revoked because they were not valid according to Hanafi fiqh; others, wanting to divorce, worried that the Emirate’s suspension of the Civil Code would prevent them from even applying for a separation because of Hanafi fiqh’s severe restrictions.^[23]

The Supreme Court soon confirmed the validity of these concerns, though it did not decree that all former divorces would be revoked. Firstly, it made clear that previously settled divorce cases could, in theory, be reopened. Circular Number 15, issued on 23 May 2022,^[24] gave guidelines to Afghan courts on how to deal with Republic-era legal decisions on all matters, including divorce. The Circular decreed that any Republic-era decision could be reviewed by a tribunal of Taliban judges and a committee of ulema. Article 10 of the guidelines stated that if the legal decision was made in line with Hanafi fiqh, it should not be overturned and then added: “If the decision was made according to another jurisprudence school… the decision should be referred to Amir al-Muminin [IEA Supreme Leader Hibatullah Akhundzada] or a higher judiciary authority.” Technically, therefore, any divorce issued in line with the Civil Code could be reopened if the husband raised a case.This caused great concern among observers, and there were reports of some husbands taking advantage of the change in regime to relitigate old cases. The UN’s Special Rapporteur on the situation of human rights in Afghanistan and the Working Group on discrimination against women and girls, reporting in 2023, said they had been told of men using this ruling, petitioning courts to claim that their wives had divorced them illegally. The media detailed several cases where divorces were overturned either by judges or Taliban commanders; for example, a court in Uruzgan revoked a divorce granted to a woman in 2018; she had asked for a separation on the grounds that she had been married as a 7-year-old child against her will – in what was actually an illegal marriage according to Emirate decrees.^[25] A Supreme Court spokesman told BBC Persian the revoking of the divorce was correct: “The former government’s decision to annul the marriage was against sharia law … because [the husband] was not present at the time of the court decision.” In another case, reported by AFP, the divorce was overturned not by a court, but by a Taliban commander, who insisted the woman, ‘Marwa’, return to her former husband; he had beaten her so badly he broke her teeth.

However, the five lawyers that AAN spoke to had not heard of cases where divorces had been overturned. Media reports provided anecdotal evidence of cases where divorces had been revoked, but do not give a sense of scale, while the UN Special Rapporteur’s report noted that it had heard of 50 reopened divorce cases in one district but could not substantiate this claim. There seems to be no systematic attempt to overturn cases, but this represents little comfort for divorced Afghan women; regardless of the figures, the possibility that the law could be used to force a woman to return to an abusive husband is undoubtedly a terrifying prospect.

Confusion over the enforcement of non-Hanafi judgements on divorce was not alleviated by IEA Supreme Leader Hibatullah Akhundzada’s Circular Number 19, issued in September 2022, setting out his position on divorce. It dealt with two questions: what should courts do in the case of divorces issued for women in the Republic era and how should they deal with new cases of divorce? On the first question, the Court offered no resolution. It simply ordered that courts should delay making any decisions because the issue was “under discussion.”

On the second question, the Court was clear: Hanafi fiqh would be the sole source of legislation on divorce in the Emirate. The Circular ordered: “If the wife is now requesting her separation, the reasons for separation and the evidence for each reason should be given according to Hanafi law. Then it should be shared with the Supreme Leader of the Islamic Emirate.”

Finally, in January 2024, the Amir issued Circular Number 30. This responded to the question raised in Circular 19 on what to do regarding judicial decisions on separation made by the former government: should they be enforced or not? Separations issued under the Republic, Circular 30 said, would stand if they had been issued in accordance with any of the four schools of Sunni fiqh: “In case a ruling on separation has been issued in a matter according to one of the four schools of Islamic jurisprudence by a judge of the previous regime, the verdict on separation… is to be enforced.” If the judge’s decision did not comply with any of the fiqh, the Amir continued, it would not be valid. That represented good news for the women issued with divorces under the Republic, but did leave open the possibility that ex-husbands could appeal if they could show that the divorce had not been issued in line with any of the other schools of fiqh, or on procedural grounds, as in the case of the woman in Uruzgan married at seven, reported by the BBC and cited above.

The Emirate’s position in practice

In practice, it appears that the Emirate permits divorce based only on Hanafi fiqh. AAN reviewed a letter confirming this, sent from the Supreme Court to the Khost provincial court on 7 April 2024, stating that “tafriq is suspended until further notice based on Circular Number 19.” That leaves three types of divorce open for a woman. She can agree a khul (negotiated financial settlement) with her husband; she can apply for a divorce if her husband abandons her once it has been 120 years since his birth and he is therefore presumed to have died; or she can apply for divorce on the grounds that he is incurably ill, which includes impotence.

The lawyers AAN spoke to for this research unanimously agreed that it has become much more difficult for women to separate from their husbands since the Taliban returned to power. No lawyer reported that they had successfully raised a case of tafriq in court since the takeover and all said that they believed it was now prohibited. Qudrat, in Herat, said he had turned away many women asking for tafriq:

Over the past three years, there were so many women asking for tafriq but they were helpless. Since tafriq is impossible through the courts, we are unable to help … in all provinces I know there’s women who want to make tafriq but they don’t go to court because they know their cases will not be processed.

Rahmat, in Kabul, agreed:

I believe violence against women has increased under the Emirate because women’s cases are not addressed under this government. Under the Republic women’s family cases were addressed more easily because there were laws allowing this. In the past month I received three cases of violence against women who wanted divorces and we’ve only been able to resolve one. The other two women decided to remain married after we explained that we could not find a way to get them divorced and arranged mediation with their husbands.

Under the Emirate, khul separations appear to be the most common method of divorce. Of the women AAN spoke to, the two who had managed to separate from their husbands had done so through khul separations. Lawyers, too, said that the only cases they had resolved since the return of the Taliban ended in khul agreements, which require a wife to pay off her husband. Khairullah, in Bamyan, said he had taken about ten cases of divorce since the return of the Taliban and referred the majority of these to muslihin (reconcilers) or hakam (court-appointed negotiators); they had all ended with a khul involving the wife renouncing her mahr and some with additional payments from the wife to her husband. Qudrat also reported some cases of khul. Rahmat, a lawyer, said he had worked on 12 cases in total since 2021, of which four had gone to court and eight were resolved through mediation in the community, with one leading to a khul and seven cases ending with an agreement between the husband and wife to remain married.

Nargis, the Kabuli woman mentioned at the beginning of this report, described her own case of khul. She sought a separation from her husband because life with him had become intolerable:

My husband had a horrible character. He was doing things I didn’t like… he was gambling, he was cheating on me with another woman and even with men. I hated it. When I tried to stop him he told me it was none of my business and I had no authority to stop him. He said he didn’t need me. He hit me. He told me we were divorced and I went back to my parents’ home, so then he filed a case at court claiming we were still married, I’d stolen money from him and run away.

Nargis could not produce witnesses to reinforce her claim that her husband had divorced her. He swore he had not and so the court ordered her to return to his home. She begged the judge to rule that they were separated, but as she had not been abandoned and her husband was not unwell the judge decreed that she had no case.

The court told Nargis that her only option under Hanafi fiqh was a khul. So she hired a lawyer to work with community mediators, through which her husband and their families to agree a khul. At first her husband’s family demanded 1,000,000 afghanis (13,700 USD) in compensation for the divorce. Finally, they agreed that she would return the gold jewellery she had been given, her mobile phone and the entirety of her mahr. Nargis had no choice but to concede:

What about my losses? He punished me, he made me ill, and I should pay compensation? In the last session of the court I told them, ‘You violated my rights and I will ask Allah to take revenge for what you’ve done to me.’

Yasmin, who lives in Balkh, also received a khul. In common with many Afghan women she had first tried to resolve her case in the community where she lived but failed, which forced her to go to the city court in Mazar-e Sharif:

My husband and I never got on and his family was in control of everything we did, especially his sister. He went to Iran without telling me, he didn’t come back when I asked him to, and I was unhappy. I told him I wanted a divorce, then I went to the community for mediation with the elders and mullahs, but my husband’s family didn’t accept it and they said we had to separate according to sharia. That was so they could demand money from me. They said that if my family paid them, they’d let us separate, otherwise not. So we went to court.

At the court, the judge told Yasmin that she should stay married: “He was telling me to keep trying, maybe you’ll find happiness,” Yasmin said.

No way. I refused. My father and mother got me a lawyer, and finally it was agreed. I didn’t keep my mahr, I didn’t take even one sock from that house, and they’ve demanded we pay them 50,000 afghanis (680 USD) as well. My brother agreed to pay it.

Both women who told AAN about their khuls had renounced their mahr as part of the negotiations. If the only way to legally separate from a husband under the Taliban is to negotiate a khul, this will exclude Afghan women without resources from doing so. Women who are poor, or who have no family support, will not be able to pay off their husbands’ families; renouncing the mahr and any valuable gifts received during the marriage also makes a woman vulnerable, since she will be leaving her husband’s home with nothing. In a khul a husband also has to agree to the separation and so it is often necessary to hire a lawyer to mediate, representing an additional expense. Nargis told AAN about the cost of her legal fees:

My family hired a lawyer to resolve this through negotiation. He arranged meetings with the Taliban and the mullahs at the mosque but my husband’s family refused to attend, then my father-in-law started asking the lawyer to go to his house and work for him. We paid that lawyer 18,000 afghanis (248 USD) and we got nothing. Then we hired another lawyer who managed to resolve the case… the second lawyer cost far less but was much better.

Rahmat confirmed that the cost of a khul was prohibitive for many:

Women who have access to legal advice, usually if they’re supported by their birth family, can overcome challenges. I’ve been working on four cases because their families are wealthy, so they can afford a lawyer. Women whose birth families can’t help them would struggle to get their cases resolved.

Under the Emirate, all the lawyers AAN spoke to agreed that judges also permit a woman to separate from her husband if he is impotent, in accordance with Hanafi fiqh. “When husbands are unable to have sexual relations with their wives, in my experience judges will give a divorce,” said Qudrat. “But the judges will assess the man’s health to make sure the woman is telling the truth.” This can be difficult for a woman to prove and husbands often refuse to accept such a case. Judges typically also allow a man a period of time to prove that he is not impotent before mandating a separation on these grounds. “If a woman has to live a whole year with him after dragging it all out in court, it’s dangerous,” said Hekmatullah. “He could kill her. It’s endangering women’s lives.”

Farzana, a young woman from Takhar, told AAN about her experience:

I was 19 when I got married, and he was 60. I’m his second wife. I didn’t want to marry this old guy but my parents gave me to him. It’s been six years and I can’t get pregnant, I told him to get treated but he said he has problems and can’t have children.

So I went back to my parents’ house last year. I told my father, ‘You wed me to this man by force, I wasn’t happy, I don’t want this man any more. He’s so old he can’t have a baby, I can’t live with him.’ I went to the court and opened a case, with a lawyer.

My husband at first was trying to make me get a khul, so he’d get money. I secretly recorded him and played that at the court and the judge said my husband was guilty. He gave him one year to get treatment in Pakistan or India, and if it works I’m supposed to live with him, if it doesn’t then he’ll have to say that we’re divorced and that’ll be it.

Farzana must still wait three months until her husband’s one year period ends, and meanwhile he and his first wife continue to harass her. “The first problem is that he can’t father a child, and the second thing is I don’t like him – whenever I look at him I start hating the world. I’ve tolerated him and suffered for six years,” she said.

If none of these conditions can be met, women sometimes employ more creative ways to leave a marriage. The easiest way, according to lawyers, is to subvert the prohibition on tafriq by forcing a husband to pronounce that he divorces his wife – which he is entitled to do without cause under Hanafi fiqh. Hekmatullah explained more.

For instance, if a woman is forced to leave her husband’s house or he assaults her, we’ll help her open a case in court. Then the court summons the husband and after that the husband will pronounce a divorce. I had two cases where this happened – in the first one, the husband just came to the court after the summons and said she wasn’t his wife anymore and he divorced her. Then she was free.

I had a second case where a woman wanted to divorce her husband because he was aggressive and unkind. First we raised a case on the grounds that he couldn’t give her a child but the court checked him and found he wasn’t impotent, and said they must spend a year together to see if she could get pregnant. We were concerned that her life was in danger but there wasn’t much we could do. A few months later, her brother came to my office and told me that he’d been imprisoned for two months because he’d gone and beaten up her husband to force him to divorce her. It worked.

Aisha, a woman living in Bamyan, told AAN about her own case:

Three months ago I found out my husband had another wife who he’d been seeing before me. We have been married for five years and he married this other woman three years ago. She’s horrible and he never says anything against her, she’s pressured him to get rid of me. I didn’t want to live with him anymore, I wanted to separate. He told me to divorce him but I knew it would be better if I asked him to divorce me. And because I was behaving very kindly to him, he agreed. He wanted to divorce me just with the help of community mediators or mullahs. I refused and said we had to go to court. The judge summoned him to appear.

At the court the judge asked what was happening and he said he wanted to divorce me. That’s how things ended in my favour.

This allowed Aisha to keep her mahr of 40,000 afghanis (560 USD) rather than having to pay for a khul. But the court did not rule on who should keep the gold Aisha received as part of her wedding gifts, worth 150,000 afghanis (2,100 USD), or the other assets she was promised. “He promised he was going to buy me a bit of land in Kabul using the gold,” she told AAN. “But then the second wife told me he’d actually sold the gold and used it to pay her father 150,000 afghanis (2,100 USD) as a bride-price.”

Conclusion: “People’s opinions don’t change when governments change”

In the end, any of the methods of divorce available under the Emirate require women to overcome significant hurdles. Firstly, most Afghan women are unfamiliar with Hanafi provisions on divorce, with their own rights, and with the courts’ application of the law. “Uneducated women think this is their fate and they have to tolerate violence,” said Khairullah. “They don’t know about their rights.”

None of the women AAN interviewed said that they fully understood what had happened to them. This was most clear for Yasmin. She had renounced her mahr after settling her case through a khul, but in fact her husband was impotent, which meant she was actually eligible for a separation that allowed her to keep her mahr.

My husband wasn’t like a man. In that way he was weak. To be frank, I didn’t understand the divorce process and I didn’t even know that I was able to ask for a divorce because of [his impotence]. I knew about khul because my brother and my dad explained it to me, and my dad said he’d pay for me if the court made khul.

Nargis also said she had not understood the law:

I didn’t know about the process. When my husband beat me and I ran away to my father’s house I didn’t know that he could open a case at court stating that I’d left him. I had no idea what would happen, I didn’t know the meaning of a khul or tafriq or any of the processes. I still don’t know, despite my case ending with a khul.

Farzana, from Takhar, did not know how much she was entitled to in mahr, because she had never been told what was agreed between her parents and her husband before their marriage; she also thought she was not entitled to claim her mahr from her husband because they had no children.

Lawyers said that this issue is worsening because the services and support available for women under the Republic-era governments – patchy and insufficient as they were – have been stripped away. The Ministry of Women’s Affairs and its provincial departments have been dissolved, while many of the NGOs previously offering legal support are no longer able to do so. “I don’t think people have changed since the Taliban returned,” said Khairullah. “The only change is that under the previous government, departments of women’s affairs and the human rights bodies were making women aware of their legal rights and of sharia rights. Women were supported, lawyers were appointed for them, they could even relocate to shelters.” Imran, a lawyer in Ghor, said the same: “People’s opinions were against it, but there were cases of separation because there were agencies supporting and raising awareness like the Afghanistan Independent Human Rights Commission.”

But regardless of the law, their finances, or the support available, all AAN’s interviewees agreed that the extreme shame and stigma attached to seeking a divorce are – as they have always been – the biggest barrier for women who want to leave their marriages. Rahmat, in Kabul, expressed his frustration at this:

The people’s customs are leading to violations of women’s rights. Husbands, families, and women have unthinkingly adopted these harmful traditions. They believe that a woman should stay silent whatever others do to her. I’ve studied the legal systems of many different Islamic countries – Jordan, Saudi Arabia, Iraq, Türkiye. Only in Afghanistan are there restrictions based on such retrogressive customs.

Yasmin, in Balkh, described her family’s attitude to her divorce:

The first time I told my mother I wanted to divorce she didn’t agree. All my family were all saying even if I was unhappy I should live with him. I kept saying I can’t, I just can’t, and finally they all accepted it. Honestly, none of them wanted to help me, they were all against it. You know, Afghanistan has norms. My family were saying they’d be given a bad name.

Some of Farzana’s relatives also felt ashamed when she went to court and asked her to stay married:

My uncles were telling me not to get divorced. I just replied that they weren’t living my life and couldn’t understand how I was suffering. My husband’s relatives were so embarrassed that they told him they’d pay for his medical treatment to prevent him from just agreeing to divorce me straight away.

My father and my friends were supportive though. They all know how I suffered. My family said I should do what I want and they won’t tell me not to, because they had already destroyed my life once and they don’t want to do it a second time.

“People’s opinions don’t change when governments change,” said Qudrat, making the point that this was nothing new. “It’s because of our customs and traditions that people have negative opinions on women who want to divorce.”

Even so, in the Republic era, the growing number of women applying for divorce suggested that they felt more able to challenge traditions than in the past. The Emirate’s law now conspires with Afghan custom to reverse this shift. The combination of both means that Afghan women in violent or unhappy marriages have few options for escape. The institutions intended to protect them have dissolved, while the internationally funded aid projects intended to support them have dried up. The four women AAN interviewed were very different, but they all shared two traits: courage and determination. Under the Emirate, any woman who seeks a divorce will need both.

* Letty Phillips is a researcher and analyst who worked in Afghanistan from 2021 to 2024.

Edited by Kate Clark and Rachel Reid