UN human rights experts in Geneva have warned that the Taliban’s decree on the “separation of spouses” legitimises child marriage and blocks women and girls from leaving abusive relationships.
According to the experts, the decree leaves the door open to child marriage and further weakens the rights of women and girls.
The decree, published by the Taliban’s Justice Ministry in April, regulates the conditions for separation between couples. However, the experts say its provisions make women and girls more vulnerable to abuse and exploitation and may even affect religious minorities, including Shias.
They said the decree increases the decisive authority of guardians, fathers, in marriage decisions and creates conditions that make it almost impossible for girls to report domestic violence.
UN experts say some provisions of the order allow a child to request separation after reaching puberty, which they say itself shows a failure to prevent early marriages and amounts to permitting them.
According to them, although the decree lists situations such as incompatibility, disappearance, disobedience and religious grounds as bases for separation, these concepts are not defined in law and, amid structural discrimination against women, have little practical enforceability.
The experts stressed that Afghanistan remains bound by the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child and the Convention against Torture.
They noted that severe restrictions on women’s freedom of movement, education and work make it impossible to exercise any claimed right in court, while the exclusion of women from public spaces increases the risk of crimes being committed behind closed doors and without witnesses.
The experts warned that proving domestic violence has also become difficult because of the requirement for arbitration and witnesses. They said imposing such conditions places women in a position where, if they try to escape violence, they risk retaliation.
According to the UN experts’ assessment, the situation has been worsened by Decree No. 12, which allows men to use physical violence within the family and reduces family protection mechanisms for women.
UN experts stressed that while marriage can be a social, cultural and religious matter, Taliban authorities are required under international law to protect women and children from violence and ensure their dignity, equality and security.
They called for the discriminatory provisions of the decree to be revoked and said they were preparing a comprehensive analysis of the order.
The Taliban’s Justice Ministry published a document in April under the title “Procedure for the Separation of Couples” and said it had been registered in the official gazette after being approved by Taliban leader Hibatullah Akhundzada.
The Taliban procedure contains 31 articles and sets out various conditions for separation between husband and wife.
The procedure sets out different grounds and conditions for the separation of couples and gives judges the authority to issue a separation ruling if the conditions exist.
Article Three of the procedure refers to marriage with a person deemed “unsuitable” or “not equal in status”. Under the document, if a girl who has a guardian marries a man without the guardian’s permission and the man is not considered equal to her in terms of family, lineage, religion or other criteria, the marriage is not regarded as valid in some cases and can be annulled.
On the husband’s absence, the document says that if a man is “absent but not missing” — meaning his whereabouts are known but he has been absent for a long time — the wife will not have the right to request separation on the grounds of his absence or failure to provide maintenance.
It also says that if a husband goes missing and the wife marries another man in his absence, and the first husband then returns, the second marriage is annulled and the woman is considered the wife of the first husband. In this case, the judge gives the first husband the choice to keep the woman, divorce her, or separate from her through separation in exchange for property, with the consent of both sides.
Article 22 of the procedure says that if a husband oppresses his wife, denies her rights or there is hostility between the husband and wife, the woman may approach the court. However, it goes on to say that if oppression can be prevented by other means, the judge cannot issue a separation ruling solely at the woman’s request and without the husband’s consent.
Another part of the procedure says that if a woman claims one of her husband’s relatives touched or kissed her with lust, the judge must ask the husband about the truth of the matter. If the husband admits it, the judge issues a separation ruling. If the husband denies it, the woman must bring witnesses to prove her claim. If she has no witnesses, the husband swears an oath, but if he refuses to take the oath, the judge issues a separation ruling.
The procedure also addresses zihar, or likening one’s wife to one of one’s close female relatives, saying marital relations between the husband and wife are forbidden until expiation is made. If the husband neither makes expiation nor grants a divorce, the judge may compel him through imprisonment and beating to make expiation or ask him to divorce his wife.
The procedure also says that if either spouse renounces Islam, separation between them takes effect and no court ruling is required.
The procedure states that if the husband has sexual problems, the woman may apply to the court for separation. If the husband’s condition prevents marital relations, the judge may, in some cases, issue an immediate separation ruling and, in other cases, give the husband one year for treatment. However, the procedure says some illnesses, such as insanity, vitiligo and leprosy, are not considered grounds for separation between husband and wife.
The Taliban’s procedure for the separation of couples has faced widespread criticism inside and outside Afghanistan.
