Divorce – Afghan Style

Thursday, 3 March, 2005

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Suhaila Muhseni

Since the fall of the Taleban, more and more women have been reclaiming the legal right to initiate divorce that they always had but were too afraid to exercise under the mujahedin and Taleban regimes.

According to Aziza Adalat Khwa Kohistani, an attorney who works for Medica Mondiale, an international women’s organisation operating in Kabul, women have always been able to seek a civil divorce on the following grounds; if her husband cannot financially support her; disappears for a set period of time; harms her without cause; or is weak.

Kohistani said that “harm” covers inhumane treatment while “weak” can apply to men who are impotent, insane, or have a serious disease that cannot be cured or treated.

Women now have an additional option that was not available under the Taleban. Hamida, the president of the family court in Kabul, which handles divorce cases in the capital, said a woman will also be granted a divorce if her husband agrees to end their marriage and she consents to pay him an agreed amount of money.

Interpretation of the nation’s divorce laws often depend on attitudes of the regime in power. According to Ali Mateen, a family court judge, a husband needed to be missing for 90 years before a woman could be granted a divorce under the Taleban regime. But under the current regime, that period has been reduced to three years. This difference is because the Taleban follow the Hanafi branch of Islam, and the current administration adheres to the Shafee variant.

“During the Taleban regime, divorce was [to] the advantage of men only,” Mateen said. “Women could not even go out of their houses easily. After the interim government of [President Hamed] Karzai, they could once again appear in civil society.”

A look at the experience of one woman who sought a divorce while the Taleban were in power makes it clear why few women were willing to face that ordeal.

Mastoora (not her real name), a 35-year-old schoolteacher, had been married for five years when, in March 2000, she started divorce proceedings in the family court in Kabul. She said she sought the separation because her husband and his family beat her.

“I did not want to leave my husband because I understood that it would have a bad effect on my children, but they drove me to divorce,” she said.

Mastoora said that the abuse started after she discovered an incestuous relationship within in her husband’s family. But in court, she refused to give the judge the exact reason for the beating, fearing she would be further persecuted if she disclosed the family’s secret.

In the end, the judge granted her a divorce but, in a highly unusual move, gave custody of the children to her husband. She hasn’t seen them since because their father threatened to harm her if she dared to do so.

Circumstances today are very different.

Last November, after four years of marriage, a 20-year-old Kabul woman decided to seek a divorce from her husband whom, she said, was beating her. The young woman also said that her in-laws beat her.

After escaping with her 10-month-old son, she applied to family court for a divorce, with the help of Medica Mondiale. On January 1, her divorce was granted and she and her son now live with her parents.

Although the numbers are still tiny when compared to the West, it appears that more women are turning to the courts and seeking separations.

According to Mateen, the family court in Kabul, which was founded on March 21, 2003, granted divorces to 39 women during the first seven months of this year, compared to 22 for nine months in 2003.

Outside the capital, women can also file for a divorce in district courts, but there was no available data on how many were granted.

Mateen believes that many women are now seeking divorces because a number of them are recently returned refugees who were exposed to foreign cultures. He said that they “learned [that women] can stand up for their rights” while they were abroad, and these “rights” were reinforced when they got back home.

“Since the collapse of the Taleban and establishment of the transitional government, the ministry of women, and the Afghanistan Independent Human Rights Commission, and propaganda through media and teachers in the schools, women learned about their rights,” he added.

“There are many reasons for the increase in divorce cases, but the basic reason now is that the freedom of women is such that they can no longer tolerate cruelties being done to them,” said Khohistani.

Before granting a divorce, Mateen said, the court usually attempts to have the couple reconcile. Only if that fails is a separation is granted.

In addition, the court has the authority to block marriages. Mateen said 17 potential unions have been stopped so far this year.

While a small number of men have referred to family court to resolve family disputes, no men have thus far sought divorces through the court, according to Mateen.

He said men could initiate divorce proceedings against their wives in family or district court if she’s a prostitute; not good in domestic affairs; unable to provide for her husband’s sexual needs; or treats her husband and other family members unfairly.

Most men prefer, however, to obtain divorces without going through the court system, which is their right according to civil law, Mateen said.

Payenda Mohammed, an official with Kabul’s city government, explained that a man could divorce his wife under Islamic law, in the following ways: by simply declaring to her, without becoming angry, that she is no longer his wife and that they are divorced; angrily telling his wife that she is divorced; or telling her three times that they are divorced.

If he later wants to take her back as his wife, he could do so without having to remarry her in the first case; would have to remarry her in the second; and could not have her back as a wife in the third (she is free to marry someone else after three months, but until she remarries, he will be responsible for her living costs).

Kohistani concludes that Afghanistan still has further to go in fully implementing civil law, and women are still learning about their rights.

“The difference between the capital and the provinces is that [in the latter] we have warlords, people are using weapons, and women still do not know their rights and they feel they cannot say anything against their husbands,” Kohistani said.

In an effort to mitigate this, the ministry of women has formally requested to the government that the family court be established in all the provinces, said Hamida, president of the family court. This would take family cases out of the district courts to a more private setting.

“Because the family cases are secret issues … it’s better for the investigation of family cases to be in the family court,” said Hamida.

Suhaila Muhseni and Shahabuddin Tarakhil are IWPR staff reporters in Kabul.