Early this year, the Islamic Emirate’s Supreme Leader, Hibatullah Akhundzada, issued Decree 18, which codified the grounds on which women can end a marriage. While Afghan men can divorce their wives easily, women must either get their husband’s consent, typically with financial penalties, or a court ruling. Kate Clark and the AAN team have been analysing this law – an unofficial translation of which AAN also publishes today. This report has a special focus on one major issue stemming from Afghanistan’s high rate of male out-migration – women who have been abandoned by their husbands. We heard about husbands who are abroad, providing no maintenance to their wives and children, and in some cases have remarried, but still refuse to grant a divorce. Decree 18 effectively protects such men, although some lawyers, typically where a judge is sympathetic, are finding ways around a law that prioritises the wishes of the husband.
A translation of the Code on the Separation of Spouses by former BBC journalist and Islamic scholar John Butt is available here.
This situation has such a bad and damaging effect on my soul. I am completely tired and fed up with life. Every morning when I wake up, I suffer greatly from a wave of hopelessness and distress.
This woman, whom we are calling Najma, was 22 when she was married to a man of 45, an age gap that she said was “very painful.” Her husband also deceived her. Once the nikah (marriage contract) was signed, he told her he was already married to a woman in Tajikistan. He went back a month later, promising to send a visa to Najma and take her there, then broke off contact. That was almost two years ago. “He didn’t establish any kind of life for me,” she said. “He left me helpless in my father’s house. … He doesn’t call, doesn’t provide financial support and hasn’t sent a visa. … It was all a deception. He married me only for his pleasure during the short time he was here in Afghanistan.” She went on:
Now, whenever I call him, he doesn’t treat me well. He swears and insults me, saying: ‘You’re not worthy of being my wife. You’re not worth sending money to, nor worth bringing to Tajikistan. Just stay in your father’s house.” He says he won’t let me get a separation. He says, “Whenever I feel like it, I’ll come; if I don’t feel like it, I won’t come. You just have to wait and until I come, you have to live like this.”
Najma’s case is one of several we heard about, either directly from the woman herself or from lawyers representing women needing a divorce. We already knew from earlier AAN reporting by Letty Phillips and Rama Mirzada, “The Doors to Separation Are Closed for Women”: Women and divorce under the Emirate (4 May 2025), that for Afghan women, ending a marriage had become more difficult under the Islamic Emirate. Phillips and Mirzada detailed how divorce, while never much resorted to because of the social stigma, had at least become a little easier in the 1970s. Like most states that derive their legal codes from Hanafi jurisprudence (fiqh), Afghanistan introduced reforms aimed at making divorce easier for women and constraining a husband’s prerogative to unilateral divorce. It did so by enabling women to draw on the jurisprudence of any of the four schools of Sunni Islam, with Ja’fari jurisprudence also formally recognised for Shia Muslims in 2004. All the other schools are more generous to women seeking a divorce than the jurisprudence of the school followed by most Afghan Sunnis – Hanafi.
After the Taliban returned to power in August 2021, they ordered that only Hanafi jurisprudence be used in the courts. Even within this constraint, however, judges could still draw on different opinions, although one opinion might always be preferred (al-ra’i al-rajah). The Amir’s codification of the law has therefore further limited judges’ leeway. As one Afghan Islamic law expert told UN Women for its Gender Alert – Decree No 18 – Code of Principles on Separation of Spouses:
While many of [the Code’s] provisions do have a basis in Ḥanafī jurisprudence, the decree appears to draw selectively from that tradition – codifying narrower positions while omitting more protective ones available within the same school – with the cumulative effect of reducing safeguards for women and girls.
This report is divided into two sections. The first examines the Code, drawing on lawyers’ experiences to analyse its implications for women seeking a separation. The second focuses on the difficulties faced by women abandoned by their husbands, an issue made urgent by the large number of Afghan men who have migrated for work. Informing the analysis throughout is UN Women’s Gender Alert – Decree No 18, with its focus on the legal, procedural and rights aspects of the Code, as well as responses to it by our translator, John Butt, who combines experience as a BBC journalist with years spent studying Islam, including seven years at the Deoband Seminary in India.
The report draws on interviews carried out in July, August and September 2026 with five lawyers (two in Kabul, two in Mazar and one in Bamyan) and three women (two in Kabul and one in Mazar). The names of both lawyers and women have been changed to preserve their anonymity.
A note on terms, which in English would all be covered by ‘divorce’
Talaq is when a man repudiates his wife, thereby ending their marriage. He must compensate her by paying the mahr, the Islamically sanctioned gift given by the groom to his wife at their marriage (if not already paid in full), and continue to support her while she is pregnant and for the period she has to wait before she can marry again, and for any children.
Women have two types of divorce potentially available to them. Khul’a (often commonly called khul) is a separation initiated by the wife, with the husband’s agreement, in which she forfeits compensation. Typically, she must repay her mahr and may have to make other payments to free herself.
A court can also sanction a separation. This is known as tafriq and is the only way a woman can end a marriage without her husband’s agreement, or in opposition to it. Grounds for tafriq form the bulk of the Code.
In some instances, the court can also annul a marriage where its validity has been challenged (by any party) and found to be unlawful.
What is in the Code?
The Code on the Separation of Spouses, dated 24 January 2026, is non-gender-specific. However, it deals almost entirely with women and the grounds on which a court can give a woman a legal separation, even despite her husband’s wishes. The lawyers we spoke to had mixed opinions. “The Code is ambiguous and contains provisions in favour of the husband,” said Shah Mahmud, a defence lawyer in Mazar-e Sharif. Another defence lawyer, Gul Agha, who practices in Kabul, said it had made it more difficult for women to get a separation and, anyway, “a woman’s voice isn’t really listened to in the courts – they don’t attach any importance to it.” Muhammad Rahman, a lawyer in Bamyan, felt that none of the grounds given for ending a marriage benefited women, largely because they had to provide evidence, including witnesses, and because courts were ultimately reluctant to act. “For instance,” he said, “when a man beats his wife, she cannot prove it in court.” Other lawyers were seeking ways to use the Code, despite its drawbacks. Rahim in Mazar said, “It carries legal weight and can be helpful.”
The Code provides twelve grounds for judicially ending a marriage. Matin, a lawyer in Kabul, who is in touch with other lawyers around the country, said they had “identified areas which could be used to protect the rights of women.” These are: obstinacy and wrongful conduct; the husband is missing; lack of compatibility; and the ‘prerogative of puberty’. None, he stressed, were necessarily straightforward and might themselves be problematic. The report will look at these in turn.
A husband’s obstinacy (muta’anat wali) is defined in article 2.7 as “a husband who, even though he is able to do so, does not give his wife household expenses or fulfil her marital rights.” Article 22 says a wife may “petition a court if her husband oppresses her, fails to fulfil her rights, or hostility exists between the spouses.” Matin liked the reference to rights arising from the marriage contract:
The first right is respect. It is mentioned in the Quran. It is mentioned in Hadith. So, the person who doesn’t provide for the rights of his wife is called muta’anat. Also, the person who does not provide [living] expenses for his wife is muta’anat. Even the person who leaves his wife and goes abroad, does not come back and does not provide for her, he’s also an example of muta’anat.
If the court establishes that there is “martial discord [shiqaq],” it is tasked with appointing “two arbitrators from among the families of the spouses and send them to the parties for the purpose of reconciliation and for determining which party is the wrongdoer and which is the wronged party.” The court can then only “compel the obstinate or oppressive husband to cease his oppression and obstinacy or grant his wife a divorce [talaq].” Article 19 of the Code explicitly says that a judge shall not issue a judicial separation if a husband does not give his wife living expenses, or if he is absent but not missing (more on which below). As the UN Women’s Gender Alert points out, the Code embeds:
mediation and reconciliation as the default response to oppression, … prioritizes preservation of the marriage over the safety of the woman within it, and risks treating serious violence as a condition susceptible to family-based intervention rather than as conduct requiring protection and exit.
As to article 22, it says, “the basic logic of a mechanism aimed at protecting from oppression is inverted: the person most often identified as the oppressor must themselves consent before the wife can leave the marriage.”
Nevertheless, Matin said lawyers had been able to use this article in some situations. Rahim in Mazar said he had invoked it in numerous sessions and gave a current example:
I said this person is very rude and oppressive. He has children from a previous wife who are non-mahram to my client, and they have even laid hands on her. He has committed oppression and used inappropriate language. … The argument is that under this code, if it’s proven that a person is oppressive, divorce is possible.
The judge, Rahim said, summoned the husband to court and he is now under investigation.
Matin also cited the articles concerning missing husbands. If the husband is highly likely to be dead, the woman may be allowed to remarry, but, as he pointed out, this is extremely difficult to prove and the court’s ruling must be ratified by the appeal court and Supreme Court and signed off by the Amir – necessitating years of waiting and money spent. Moreover, if the first husband then turns up, he has ‘first refusal’ on the wife – she does, says the Code (article 20) “belong to” him. She has no choice in the matter. Rather, the Code automatically restores his legal control of her: “the judge shall give the first husband the choice either to keep the woman as his wife, or divorce her, or, if both parties agree, to conclude a khul’a with her.”
The Code also addresses husbands who are absent but not missing, describing them in article 2.5 as someone who has
travelled far from his home village, but his whereabouts are known. Even so, he has been gone a long time and has left his wife alone at home. He does not return home, nor does he take his wife with him. He does not even attend to her necessities and does not send any money home. Neither does he divorce her, all of which is a cause of great difficulty for his wife.
One might, therefore, expect the Code to provide a legal remedy for the abandoned wife. However, as already mentioned, article 19 specifically rules this out:
If a woman requests judicial separation from the judge on account of her husband’s absence – in cases when he is not legally considered missing – or because he does not provide maintenance [nafaqa], the judge must not order separation.
Instead, her “maintenance and housing rights … together with the other rules and matters relating to such cases, shall be governed by the relevant implementing procedure.” The procedure is not specified. This means that, on the face of it, men who have abandoned their wives and provide no support to them or their children have little to fear from the courts, a deeply problematic situation that will be examined in detail later in this report.
A third potentially useful aspect of the Code, said Matin, is compatibility (kafa’at). This is defined as the spouses being equal or suitable for each other in “lineage and status, ancestry, religion, age and other such attributes.” In limited circumstances, a woman or her guardian can challenge a marriage if the spouse’s incompatibility becomes evident after the wedding. According to the jurists, Matin said, incompatibility includes anything that would make it difficult for a couple to live together and while, on the Day of Judgement, “all people will be equal … we look to the realities of life, if a poor man marries a rich girl, their life will be miserable.”
Compatibility becomes an issue in the fourth potentially useful aspect of the Code, according to the lawyer, Matin, the prerogative of puberty – sometimes translated as the ‘option of puberty’ – (articles 5-10), which is defined in article 2.3 as:
The right of a minor – a boy, or a girl (whether she is a virgin or has been married previously) – to annul a marriage into which one of them has entered, once they reach puberty, so long as the said marriage has come about when he or she was a minor and was arranged by a relative other than a father or grandfather.
The Code, said Gender Alert, implicitly acknowledges that “a (prepubescent) child cannot meaningfully consent to a marriage contract,” but also accepts that such a marriage can be valid, provided it has been contracted by the father or paternal grandfather, with a compatible person and with the appropriate mahr. Moreover, it says, the Code provides only “narrow pathways” to invalidate underage marriage contracts: at puberty, a girl or boy can challenge their marriage if it was contracted by someone other than the father or paternal grandfather or, if by one of them, he had misused his power because of immorality, insanity or recklessness, or married the child to an incompatible person or agreed to a grossly unfair mahr. A clear example of this, wrote John Butt in a footnote to his translation of the Code, would be a girl’s marriage:
to a man much older than her, for a huge bride-price from which [the father or grandfather] – not the bride – benefits. This practice is widespread – normal even – across huge swathes of Afghanistan. Successive governments have been unwilling, or ineffective, in putting an end to this practice.
Theoretically, the Code does almost address a widespread oppressive practice – although one to do with the bride price, not mahr, and not limited to minors – but it creates so many obstacles that it is hard to imagine it having much effect in practice. First of all, the Code does not define puberty. It also gives the minor only a short time to challenge the marriage – when they reach puberty. Their right to reject a marriage lapses if, for a boy or a “previously married girl,” they have expressed their consent, or for a virgin girl, she does not speak up. The Gender Alert explains why this rule is particularly unjust:
The silence-as-consent rule established by Ḥanafī jurisprudence originally rests on a presumption of modesty (ḥayāʾ): that, as a previously unmarried girl, modesty may prevent her from openly expressing positive agreement to a marriage she favours, while she remains free to refuse directly if she does not favour it. …
Decree No. 18 imports this silence-as-consent rule into a fundamentally different question. A marriage has already been contracted, and the ‘option of puberty’ is itself an implicit acknowledgement that a minor cannot consent to entering a marriage contract before puberty.
It is difficult to imagine a young girl or boy having the wherewithal – knowledge of the law and the determination to act – to reject their marriage in public, given that they will either be living with their in-laws or with the elder who gave them away.
The Republic, by contrast, set the legal age of marriage at 16 (and in some cases 15) for girls and 18 for boys, so the Code is clearly a retrograde law and human rights and women’s rights activists have condemned it for effectively legalising child marriage (see for example, a press release from the United Nations’ Office of the High Commissioner for Human Rights and a report in The Guardian). Although the Republic’s age rules were widely flouted and provided little actual protection for minors, they may have started to embed a new norm of a socially acceptable marriageable age and created some space, especially for girls – and their lawyers – to argue against early marriage. The Taliban’s Code gives far less legal protection to minors than the law of the Islamic Republic did, said the lawyer Matin, but, compared to customary traditions and practice in much of the country, it is a little better.
The other “grounds for judicial separation” listed in the Code are:
- The spouses were breastfed by the same woman, making them ‘milk kin’;
- One of the spouses fornicated with the ascendant or descendant of the other (for example, mother or father or son or daughter);
- The wife has been groped or kissed by her husband’s ascendants or descendants;
- There is a defect in the husband, specified as his penis having been severed (jabb) or incapable of erection (inin) or he has been castrated (khusa), and not if the defect develops after sexual intercourse has taken place (‘divorce-worthy’ defects specifically do not include leprosy, vitiligo or insanity);
- Apostasy;
- Turning away from Islam;
- Various circumstances where one spouse has embraced Islam and the other has not – with differences on the outcome depending on the religion of the other spouse, their gender and whether they live in a non-Muslim or a Muslim country or have temporary safe conduct in a Muslim country;
- Li’an (mutual cursing by the spouse);
- Zihar (the husband likening his wife to his mother).
Before ending this section, a few general points are worth making. Firstly, the Code consistently prioritises a husband’s wishes over his wife’s. In general, men have the power to divorce unilaterally (talaq) and can also choose whether to consent to a wife’s request for a separation in return for not paying her compensation (khul’a): this is their prerogative. Then, in determining whether there are grounds for tafriq, the Code rules that a man’s words are valued over a woman’s. For example, if a foster-mother informs the spouses that they are ‘milk-kin’, the husband’s confirmation of this, by itself, will be accepted and the marriage dissolved, but not if the wife confirms it and he rejects it. In several other circumstances, the Code also says that if a husband swears an oath that a wife’s accusation is untrue, unless she has witnesses, the court is bound to dismiss her claim, for example, if she testifies that her husband’s father, grandfather, son or grandson has sexually assaulted her. There is a proviso: if the husband refuses to swear an oath, the court will side with the wife. However, as Matin said: “But you know, nowadays, people are not afraid of God or the Day of Judgment. They swear a thousand times [to get] one afghani, two afghanis.”
Secondly is what is not in the Code. It frequently fails to specify what course of action should be taken and this can deeply affect what happens to women and children. An example here is the “relevant implementing procedure,” which abandoned women are supposed to take to get the maintenance and housing which is theirs by right when they marry. There are other examples, says Gender Alert:
Although Decree No. 18 provides two distinct paths to ending a marriage – annulment (the marriage was valid but is ended by court order) and invalidity (the marriage is treated as invalid and having not existed), it does not set out any procedure for invoking the latter path. Invalidity can carry materially different implications for mahr, the legitimacy of children, and the woman’s status.
Another example would be a marriage which a woman has been forced into. This is already unlawful under a decree issued by the Amir in December 2022, and again in March 2025, which also says a woman, forcibly married off by her guardian without her consent, can “file a complaint to the courts and the authorities.” Yet, there is no mention in those decrees or in this Code whether forced marriage would be grounds for a judicial separation. Gender Alert points out that other “core aspects of family law” are also absent from the Code, including “the minimum age of marriage and child custody and criminal liability for forced marriage.”
Finally, the Code takes no account of the obvious difficulties of fulfilling its requirements: it appears to operate in an imagined world where, for example, a woman is able to find witnesses to a sexual assault by a relative of her husband, even though it is likely to have taken place in the home where they all live, or a girl or boy who has just reached puberty is able, speedily, to get to a court to challenge their marriage or where women have easy access to the courts. Rather, the real-world context for this law is one where women have little agency and often little money and are constrained by Emirate edits requiring a mahram for public transport and to enter government buildings such as courts. That real-world context is also one, which in the words of Gender Alert, has “a high prevalence of gender-based violence and historically high rates of forced marriage and child marriage.”
What the Code means for abandoned women
For this report, we particularly wanted to hear from women who have been abandoned by their husbands and see how judges treat their petitions for separation. We heard from three women and five lawyers to get a sense of what is happening on the ground since the law came into force on 24 January 2026.
Abida, who lives in Kabul and whose husband of seven years travelled to Iran and then Turkey for work five years ago, said that after a while, he stopped sending money to support her and their young daughter, stopped calling and eventually changed his phone number. She could no longer pay the rent or cover their living expenses and, having no independent income, was forced to return to her family, to her brothers’ house. That was hard, she said, but worse was to come. A friend of her husband’s told her he had married again in Turkey. One of her brothers spoke to the husband, who said he was not ready to pronounce a divorce (talaq) and “kept making excuses.” So, Abida decided to go to court, feeling she had to “clarify the status of my marriage through legal means.” With the support of her brother, who had also persuaded her husband’s family to help “free our sister from their bother,” and with a defence lawyer, she took her case to a judge. It was then that she ran into the Code on the Separation of Spouses:
They told me that my husband’s mere absence or failure to pay maintenance wasn’t sufficient grounds to dissolve the marriage. … I had thought that, since he’d been gone for a long time and didn’t provide living expenses, the court could immediately issue a separation. … [We had]
marriage documents, some messages and calls and documents showing that my husband was living abroad. My family explained about my living situation and his lack of financial support – but even all that was not enough for [the court].
Abida said the judge pressed her not to seek a separation, but instead wait for her husband as he might one day realise his mistakes and return. But Abida insisted that he had “built his own life abroad and I can no longer ruin my life because of him. My daughter and I have the right to live freely, and if it is meant to be, I will build a new life with someone who will support my daughter and me.”
Still, Abida’s husband refused to end the marriage, until finally her brother forced his brothers to speak to him and get him to divorce her. “My brother, along with some of my brothers-in-law and our local mosque leader, phoned him and he gave me a divorce (talaq).” The four witnesses then went to the court, testified that Abida’s husband had divorced her and the court officially validated the separation. “The court gave me an official document,” she said, “stating that I am now free. I can rebuild my life.”
The cruelty of starting a new life while not allowing his wife to do the same is not, it seems, unusual. Nor was the court’s response. The woman whose account began this report, Najma, whose husband is living with his first wife in Tajikistan and broke off contact soon after their marriage, has yet to go to court. Unlike Abida, she does not have her family’s backing and is still trying to convince them to allow her to seek a separation. “My case is with the family and the tribal elders. Because they’re discussing and consulting on it, we haven’t referred it to the government [the courts] yet.” Their reluctance to go to court, said Najma, is because
According to the customs of our region and our family, divorce is considered a great shame. Because of this, my family has been trying to stop me from separating from my husband or going to court. They say, “You’ll bring shame to our name with this action. A woman who goes to court no longer has a place in her family or society.”
That social stigma, which is nationwide, only reinforces the preference of families, society and the courts for reconciliation over ending a marriage, even if it is violent, abusive or, in Najma’s case, only exists on paper. Najma had also been told that “Taliban courts always rule in favour of the man and always advise women that they must tolerate their husband and live with him, no matter what condition he is in, and that the woman must accept her husband’s oppression and live with him.” She described other advice she was given, including from the wakil-e guzar [head of the neighbourhood]
[He] told me to wait and let my husband come, saying it would then be easier to file a request with the court and my case might be processed. Whenever my husband calls me, he said I should never tell him I want to separate. Instead, I should try to satisfy my husband and convince him to come to Afghanistan. When he arrives, all the elders of the area will sit down with him and persuade him either to reconcile with me, have him arrange a life for me and pay my maintenance, or divorce me. If he doesn’t accept their words, he said we can then take the matter to court, and in court, with witnesses and my husband present, we can quickly get the divorce [talaq] and reclaim my rights and get my [still unpaid] mahr from him.
A Taliban judge also advised her and her family that she should wait and try to persuade her husband to return, so that her “fate can be determined.” She said he told them “the courts can’t process my request unless my husband is present or unless he declares your divorce [talaq] in the presence of several witnesses.” A neighbour who worked in government also offered to force her husband to give her a divorce [talaq], but only if she agreed to marry him.
The judge did also tell her family that they should try “to bring the husband back to the country.” If they failed, then he said they should “bring the case to court. At that time, the court will address your issue and I can help you there. But right now, I can’t provide any help.”
Progress still, therefore, depends on the husband’s presence, or Najma overcoming family opposition to bring the case to court.
Our third interviewee, interviewee, Shakila, lives in Kabul and is currently battling for a separation, with no family backing and two children, a daughter of 12 and a son of 9, to support. Her husband left for Iran eight years ago. For the last five years, she said, he had not sent a single afghani and had cut off all communication. When she has managed to speak to him, he just says he will not be coming back to Afghanistan, he cannot support her and she must take care of her own life, herself:
I borrow money to get by. I ask my brothers what to do, and they say, “You’re off our hands now,” but how am I supposed to manage? I’m just a woman on my own. My husband doesn’t take care of me or support me. He knows nothing about how I get my daily bread, what we eat or don’t eat, or how I get by. When I call him, he behaves badly. Most of the time, he hangs up on me … or changes his numbers. I sent messages through his friends, saying if he doesn’t want anything to do with me, at least he should clarify my situation so I can build a new life, but … I get no reply. When I asked my brothers for help, they also refused, saying, “You’re off our hands. You know your own life.”
Shakila felt forced to go to court. But the judge asked her to prove where her husband was and why he had cut off contact, neither of which she has any evidence for. She does not even have a registered marriage contract and her brothers will not appear in court to defend her:
I’m in a hopeless situation. … I’m bewildered and I don’t know where I should go and who I should complain to. … Every time I go to court, my case is postponed to another session and they demand more documents or witnesses from me. … The judge told me I’m lying, that surely my husband has gone on a trip and might be in some kind of trouble and that he’ll come back, so he can’t make a decision based solely on my claim. And so I keep going around in circles with no resolution. There is no one to hear my voice.
Shakila works as a cleaner so that she has the money for rent – a dilapidated house – and other living expenses and for transport to the court – when she hopes her young son will be accepted as her ‘mahram’. “Most of the time,” she said, “I’m turned away at the courthouse gate. So far, I’ve only managed to appear before the judge twice.” He also told her to get a lawyer, but how, she asked, could she afford a lawyer’s fees?
Even with a lawyer, the courts may not be sympathetic. Shah Mahmud in Mazar-e Sharif described one of his cases:
I currently represent a woman who was married off to a man without her consent and now, due to lack of consent and non-payment of maintenance, she’s seeking a separation. However, the husband is abroad, in the United States. … a default judgment can’t be issued – according to the Code. The court’s issued several summonses, the case file is stalled and the court is considering issuing an order to suspend the file until the husband comes to Afghanistan. But it’s unknown if he ever will come in the next few years or not. And until he does … the woman lives in a state of uncertainty.
Gul Agha, one of the lawyers in Kabul, echoed this account: “The first problem is that the court requires proof of the husband’s absence and tends to tell women and their lawyers that they can do nothing without the husband being present in court.” He added:
I have a case that is currently ongoing in court, a client whose husband has been living in Iran for nearly seven years. He takes no responsibility for his family, provides no financial support and has even cut off all contact – there’s no communication at all. According to his wife, he’s taken another wife in Iran and has severed ties with his entire family. She and their two children have been searching for a resolution for years.
Gul Agha said he prepared her case according to both the law and sharia and submitted it to the court. Sharia, he said, clearly states that if a husband cannot provide maintenance for his wife, she may seek a khul’a, but the judge gave no consideration to the case file. Rather, said Gul Agha, “he insulted me, saying: ‘You lawyers are always fabricating such schemes for money and at the whims of women, deliberately trying to separate husband and wife.’”
Other lawyers have secured separations for abandoned wives, although their accounts typically feature a sympathetic judge. Rahim described the case of a woman in Kunduz whose husband had abandoned her, but was known to be in Turkey. Rahim said the husband “used to speak with us over the phone and talk to his wife using abusive and bad language. … The judge helped a great deal – regarding the children and the [wife’s] dignity and honour. I presented my argument and [the judge] accepted it.” Rahim said the judge then summoned the husband’s father to the court and “forced him to ask his son to come [to the court].” When the husband did not come, the court imprisoned the father and another son and released them only after they gave a guarantee that the husband would agree to a divorce [talaq] in absentia. Instead, Rahim said:
They threatened me, saying, “You’re from Mazar-e Sharif. If you come to Imam Sahib in Kunduz, we’ll do such and such a thing to you.” But I’d recorded them and let the judge hear [their words] in court. He got angry and imprisoned them. Then the man called his son in Turkey and told him to come because he and his other son had been imprisoned. But he still didn’t come.
Matin said many lawyers, including female lawyers, had reported that such pressure sometimes works: “Some husbands who were abroad even, the court summoned their family members [and] they divorced their wives by phone in front of the judge.” However, in the Kunduz case, despite a supportive judge taking serious action, Rahim still could not get a separation for his client in the face of a recalcitrant husband. The judge, therefore, referred them to a madrasa belonging to a religious scholar known as Hashimi sahib. In this case, the arbitrator was also sympathetic, a “good Sunni scholar,” said Rahim, “who does his best to solve a lot of cases when people refer to him.” After speaking to the parties, they agreed to a resolution:
The woman agreed to pay the money she had received earlier from her husband’s family. It was around 80,000 afghanis [USD 1,200]. She also agreed not to receive her mahr. So, it was a khul’a divorce. Her husband authorised his father to allow the madrasa to carry out the divorce [which] the court was happy with. The court didn’t do anything else, but got a copy of the decision and put it in the dossier and let everyone go.
This case demonstrates how an abandoned woman, in the face of her husband’s absence and intransigence, could not win her freedom in court under Decree 18. That she got a separation at all, albeit only by forfeiting her mahr and paying off her husband’s family, was a notable achievement, and only possible because both the judge and the arbitrator were sympathetic. That is not typically the case, said Shah Mahmud. The courts often refer disputes to local elders, who, along with families and the courts themselves, typically try to silence the wife and patch up a marriage:
In many Afghan communities, traditional custom is generally not amenable to divorce or separation. Several key customary features include prioritising the preservation of a marriage – families typically try to reconcile husband and wife, even when serious problems exist and the Taliban courts also … strive to prevent [the break-up of marriages]. More importantly is a woman’s economic dependence: if she has no independent income, then separation becomes more difficult for her. For this reason, families and local elders try to prevent separation to preserve the woman’s dignity and the honour of the family and the community.
Custom typically offers “family-based solutions,” said Shah Mahmud, but women need “legally enforceable guarantees.”
A new order on abandoned ‘fiancées’
In recent weeks, the Supreme Court issued new instructions to the courts on what to do in cases involving men who have abandoned their fiancées (namzad) in a ruling issued on a case presented to a court in Kabul:
Regarding those girls who got engaged years ago and whose fiancés reside abroad, whenever they refer to the court to determine their fate, the court is obligated to identify the persons to whom the girls have been engaged, ascertain their properties and assets, and, in accordance with the principles, seize the said assets until such time as they appear.
The letter goes on:
If their assets are not established, the court shall then, through the Ministry of Foreign Affairs of the Islamic Emirate of Afghanistan, request cooperation for the purpose of bringing the aforementioned persons to court. If even then they do not appear in court, the matter shall ultimately be referred to the Council of Scholars for resolution.
Restricting the threat to seize assets to fiancés rather than extending it to husbands, limits the number of abandoned women it could help. The implications of the wording are also ambiguous (see footnote 15). Even so, it demonstrates that the state does have leverage it could use against recalcitrant husbands. Currently, it gives them an effective veto on proceedings if they decide not to engage with the court.
Looking through the Code, especially in light of this letter, which describes what the state can do to get men to live up to their responsibilities, it is clear that the Emirate’s starting point is not the problems faced by unhappily married women in Afghanistan today, but rather centuries-old jurisprudence. The Code, for example, spends more words on the repercussions of the conversion to Islam of one member of a couple who are Christian or Jewish or Zoroastrian or polytheist, with variations as to whether they are currently in a Muslim or non-Muslim country – clearly this is of infinitesimally small significance to Afghans – than it does to the desperate problem of abandoned wives.
In a country from which so many men have migrated, their ability to keep their wives, even if they have abandoned them, causes immense suffering. The Code does acknowledge the “great difficulty” abandoned wives suffer, but then facilitates the husband’s prolonging of that suffering, should he so wish, “effectively rendering the wife unable to remarry,” wrote Gender Alert, “or otherwise move on with her life, leaving her bound to a marriage that may have ended in fact but cannot be ended in law.” The Code consistently prioritises the right of the husband to decide on his marriage, without holding him to account for his breaches of the marriage contract, thereby smoothing the way for men to leave their families in poverty, their wives in limbo and their children fatherless. It provides neither relief nor remedy for abandoned women and children, nor deterrence for abusive men.
Conclusion
To escape an unhappy marriage, Afghan women need courage and determination, support from their family and/or a lawyer, money and good fortune – a sympathetic judge may be able to make proceedings easier, a hostile one will only insult and dismiss. The Code, with its bias in favour of husbands, provides few remedies for women seeking a divorce. It is one more barrier they may face alongside social stigma, family opposition, poverty, lack of documents, restrictions on travel to and entering courts, an all-male court system, antagonistic judges and a preference for reconciliation over protection. Some of the lawyers we heard from were finding ways to use the Code to help their clients, but they need to be persistent and creative, to know their jurisprudence and be able to convince judges who are often unsympathetic and may not want to listen.
These themes run through the accounts of all three of the women we heard from in this report. Abida, we know, managed to get her husband to divorce her. Still, life is not easy:
I now consider myself an independent person and feel a sense of peace, although I know that many challenges still lie ahead. … I worry about what my future holds. Who will I live with? Will I be able to protect my daughter? I’ve heard stories from those who’ve remarried and they often face difficulties and insults, such as being labelled a divorced woman [zan-e talaqi] or a ‘bad woman’. [People] say things like, “If you were good, you wouldn’t have got a divorce from your first husband,” and various other hurtful comments. But I do now feel happy and hopeful that I can start a new life with a good person.
Shakila, with her two children, in Kabul, is still trying to win her separation:
I’m deeply damaged emotionally and financially. I can’t make any decision about my future. I have neither a shared life with a partner, nor am I legally free to start a new life. The uncertainty is very hard for me and my children. I work [cleaning] people’s homes. I’m the sole breadwinner of the household. … My daughter’s sick and I can’t afford to get her treated.
I ask the authorities to pay attention to the women who’ve been left without guardians for years. Many husbands have gone abroad and take no responsibility for their families. I hope the cases of these women are handled promptly, justly and in accordance with the law and Islamic principles, so that they don’t remain in limbo for years.
Finally, Najma is still trying to persuade her family to allow her to act and take her husband, still living in Tajikistan with his first wife, to court.
At night, I can’t fall asleep due to anxiety, because on the one hand, there’s family pressure – they won’t allow me to fulfil my legitimate wish. Requesting a separation is my rightful claim and God has permitted me to ask for it, but they don’t let me and I’m forced to get their consent because I live in my parents’ house. I have no place to go, no money to support myself. I’m forced to live with my family’s permission. On the other hand, my husband’s injustice and oppression has brought me to this state. I’ve completely lost my way. I don’t know what to do or how long I should live without a destiny. I endure both friends and foes. I endure poverty and destitution. All this has had such a terrible effect on my psyche and soul that sometimes I resign myself to my own death.
[I think that] on that day when I finally separate from such an unjust and oppressive man, I’ll be reborn from my mother, and I will celebrate it. But for now, I’m in a state of aimlessness and chaos, with no clear fate.
Edited by Roxanna Shapour and Jelena Bjelica
References
Afghanistan Peace Campaign
