Islamic Ruling to Help War Widows

Wednesday, 8 October, 2003

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Wahidullah Amani

The last time Nafas Gul saw her husband Islamuddin he was leaving the house to buy groceries. That was in the mid-Nineties, a time when factional fighting raged in the streets of Kabul, especially the south-west Dehmazang area where her family lives.

Eight years on, still with no clue as to the fate of her husband, the 30-year-old is left to support six children by washing clothes and making quilts. And, until now, no prospect of finding another husband.

It is the plight of women like Nafas Gul that has prompted Afghanistan's supreme court to issue a ruling, or fatwa, in September allowing women to marry again if their husbands have been missing for more than four years, rather than the 70-year wait currently required.

Supreme court deputy Fazl Ahmad Manawi told IWPR that the ruling was needed because of the years of conflict in which many people disappeared without trace and were in all likelihood dead. Judges pronounced the decision in consultation with senior Islamic scholars.

"After long negotiations, the council of ulema [religious scholars] and the supreme court have produced this fatwa stating that a woman can marry a second time after her husband has been absent for four years," he said.

The fatwa refers to the "disastrous conditions" of recent years, and notes that many of the missing men had been fighting "in defence of the sacred religion of this Islamic land".

Most Afghans follow the Hanafi school of Sunni Islam, which specifies a 70-year wait in such cases. "But that is under normal conditions," said Manawi, emphasising that recent decades in Afghanistan have been far from normal.

In this case they turned to the Maliki school of the Sunni tradition, which stipulates just four years.

A woman whose husband has been missing, presumed dead, for the shorter period can now apply to court to be formally declared a widow.

It is hard to guess the numbers of women who will qualify. Afghanistan is already believed to have one of the highest ratios of widows in the world - the result of the war against Soviet occupation in the Eighties, then the conflict between Afghan factions in the first half of the Nineties, followed by civil war between the Taleban and its enemies.

Shah Jahan Ahmadi, an under-secretary at the ministry of martyrs and the disabled, said it was impossible even to guess how many men were still unaccounted for after two decades of warfare.

"We have not been able to assess the number of missing people," he told IWPR. "Few people come in to register missing persons with the ministry."

He added that "the list of those registered as missing is under 1,000 - but the real number is larger than that".

The wives of missing men interviewed by IWPR broadly welcomed the new ruling.

Anisa, a 38-year-old Kabuli who last saw her husband when the Taleban took him at night-time six years ago, said, "I am a widow, and I know the problems a widow faces. Young women should take advantage of the supreme court decision."

But like all the women to whom IWPR spoke, Anisa was not ready to consider remarriage herself.

Nafas Gul said, "I do not want to get married a second time. I will remain in hope of my first husband [returning]."

Twenty-eight-year-old Homira in the Parwan province expressed similar sentiments, saying, "Even though life is very hard, I don't want to marry a second time, for the sake of my six children and in the hope that my husband will come back. But I would say to young widows that they should not destroy their lives, and they should get a second husband."

For many of the women, children are the primary concern.

"I do not want to get married a second time because I have the responsibility to raise my children. I am sure my husband is no longer alive but nevertheless I will not marry again," said Rabia, 35, whose labourer husband disappeared nine years ago in as fighting raged in west Kabul, leaving her to bring up four children on 30 US dollars a month earned by stitching quilts.

There are several social barriers to remarriage, although none of the women mentioned them specifically. A widow is often expected to marry one of her husband's brothers, but she may not wish to do so. And the husband's family may be reluctant to take this step as it means accepting that their son is dead.

Another factor is that men may prefer a younger virgin bride to a woman who has been married before.

Asked about these possible objections to remarriage, Manawi told IWPR that there was little that could be done to change people's personal choices, "The supreme court has come out with a decision to help solve widows' problems. It is up to the individuals concerned whether they want to get married or not - we can't interfere in that."

The decision is likely to be welcomed by women's groups. A reduction in the time women must wait before remarrying was one of the demands heard at a groundbreaking conference, held in Kandahar in September, to discuss ways of enshrining women's rights in the new constitution.

There is some disagreement with the court's ruling, both because it does away with the need to prove death, and because it cites a non-Hanafi tradition.

Mawlawi Ahmad Zia, a deputy of the academic committee at the Haj ministry, which organises the annual pilgrimage, argues that women should only be allowed to remarry if they can prove that their husbands are dead and that they face particular hardship.

Sayed Musa Stoor, a military adviser to Haraket-e-Enqelab-e-Islami, one of the factions involved in the mujahedin war against the communists and their Soviet backers, is adamant:

"We are followers of Islam who adhere to the Imam Azam [Hanafi] school," he told IWPR. "In our belief a woman doesn't have the right to remarry for 70 years. We don't compare Islam with the infidel world… the fatwa should be according to Islam and the teachings of Imam Azam."

Wahidullah Amani is an independent journalist in Kabul training with IWPR.