Qiwamah & Wilayat Issue National Law and Policy Qiwamah and Wilayat in Afghan Law and Practice...

Women and Children Legal Research Foundation Natasha Latiff

Mapping Qiwamah and Wilayat in Afghan Law and Practice MUSAWAH 2012

Qiwamah & Wilayat Issue National Law and Policy

1A. Man as ‘head of household’ Silent/less obvious indications

- Art 3 of the Afghan Constitution 2004 states that no law shall contravene Islamic law.

- Art 22 of the Afghan Constitution 2004 states that men and women are equal under the law.

- Art 130 and 131 of the Afghan Constitution 2004 permits judicial discretion. Where a law is absent on an issue, judges by way of Hanafi or Jafari jurisprudence can make a decision on the issue.

- Various provisions under the Afghan Civil Code 1977 on family and marital matters subtly and indirectly propagate concepts of wilayat and qiwamah.

- Religious Council Edict on women’s rights; On 2 March, Afghanistan’s top religious council, the Ulema, adopted an edict which set out a strict code of conduct that women should follow.

- “Men are fundamental and women are secondary,” Women should avoid “mingling with strange men in various social activities such as education, in bazaars, in offices and other aspects of life, “Teasing, harassing and beating women” is



prohibited “without a sharia-compliant reason,” which has been interpreted as suggesting that domestic abuse is appropriate in some cases.

2. Gendered responsibilities

• Does the law list different responsibilities for a husband and wife?

See below

• Is the law on maintenance gender neutral or does it only give men responsibility for maintenance?

Men are given the responsibility of maintenance under the Afghan Civil Code 1977.

-Art 86 on polygamy,

- Art 117, 118, 119, 120, and 121 on maintenance.

It is not gender-neutral.

In fact maintenance is not prescribed by law as an exclusive form of welfare or respect to the wife. Maintenance is annexed to the concepts of “obedience” and ”conjugal obligations”. A wife is not entitled to maintenance:

1) When she leaves her residence without her husband’s permission or without legitimate purpose,

2) When she does not fulfill her conjugal obligations,



3) When there is no obstacle to transfer the wife to residence of the husband but the wife refuse to live with him.

• Does the law state that men have a duty to protect the family?

The law does not explicitly state that there is a duty. However some references are made:

Art 115: The husband shall provide a suitable residence for his wife.

Art 118: The alimony of the wife shall consist of food, clothes, residence, and medical treatment in proportion to the financial power of the husband.

However duty ends at the husband’s whim, thus the concept of “duty” remains to be merely a fiction that law describes. To evade the duty, the husband can unilaterally opt for a divorce through his pronouncements or before an authorized court. He does not have to provide any reasons for the divorce. He is bound to pay his wife iddat maintenance for 3 months. But post-iddat maintenance (muta’a) is not provided by the law nor is it practiced. There is also no law, concept or practice of claiming arrears in maintenance not paid during the duration of the marriage.

• Is this ever litigated? It is used in statements to appeal to the judge's sense of humanity. In Afghanistan, the duty to provide and maintain is strongly embedded into the cultural conscience of society because most women do not inherit or possess any source of income. But it is not so much a legal standard to be pursued in court for civil restitution.



In some court cases, in anticipation of a divorce, in order to relief a husband from paying his wife her mahr, the court forces the woman to divorce by khul and relinquish her mahr. It is not clear if the court consciously acts in favour of the man or if it does not want to be bothered by the additional work of determining mahr and enforcing payment. However the outcome is that of a woman wronged.

• Does it equally emphasize rights and responsibility? The law does not refer to the rights and responsibilities of a husband and a wife, apart from the provisions mentioned above (duty of care annexed to wifely obedience). Thus the law does not state that women are responsible for housework and child rearing and men are responsible as breadwinners. The emphasis is not explicit. It is implicit. It is made explicit when applied by courts through the lens of their prejudices. However the law is also absent on many points; some of which could have elaborated on the balance between rights and responsibilities more equally.

This compelled activists and lawyers to draft a Family Code. However, the Code has not yet been approved by the Ministry of Justice.

• Compare the list of responsibilities for husbands and wives. Do they discriminate or promote inequality in the family?

The laws provide only one framework for an “Islamic” marital relation between husband and wife; it is one of ultimate dependency. On the other hand, at the end of the dependent relationship upon the husband’s death or divorce, women are faced with protracted destitution. This ultimate dependency is more pronounced in Afghanistan because of gender-segregation, lack of mobility, inability



to access justice, economic under-development, high rates of unemployment and illiteracy. The economic situation already forces women into dependency. The laws do not regulate a state of relationship that mitigates that dependency. However, the laws are not entirely unjust and some appear to be an anti-thesis to qiwamah and wilayat, through a 'transfer of agency', or at least a protection of it. For example:

Art 142 recognizes the women’s power of divorce through talaq-e-tafwiz.

Art 69 recognizes that even in a case of badal (exchange marriage), mahr may not be forfeited.

Art 88 recognizes the marriage condition permitting a wife to divorce upon a second marriage.

Art 89 recognizes that if the fact of a previous marriage was concealed, the wife may demand a divorce.

Art 103 recognizes that the father of a wife who has not attained marriage cannot waive mahr.

Art 110 recognizes that mahr is a property of the wife and she can exercise any ownership power over her mahr.

Art 114 recognizes that the wife cannot be forced to place all of part of her mahr at the disposal of her husband.



• How does the law regulate polygamy? Articles 86-89 of the Afghan Civil Law regulates the practice of polygamy.

Art 86 states that polygamy can take place:

1. When there is no fear of injustice between the wives

2. The person has financial sufficiency to sustain the wives. That is when he can provide food, clothes, suitable houses and medical care.

3. When there is legal expediency. That is when the first wife is childless or when she suffers from diseases which are hard to be treated.

Article 87 states that, 'The woman whose husband has married contrary to the provisions of Article 86 of this law can demand divorce from the court in accordance with the provisions of Article 183 of this law on the grounds of separation caused by damage or loss.'

Article 88: During the conclusion of marriage the woman can make the marriage subject to a condition that if her spouse would marry another woman contrary to the provisions of Article (86) of this law, she would be authorized to get her divorce. This condition shall be valid when it is written down in the marriage deed.



Article 89: During marriage when a person conceals his marriage to more than one wife according to the provisions of Article 86 of this law, and when he has not secured the clear consent and agreement of the woman on the matter, the newly married wife, in case she would not agree to continue living with the husband, can demand divorce from the court in accordance with the provisions of Article 183 of this law.

Article 37 of EVAW - Marriage of more than one woman reiterates the Civil Code.

It is a crime for a man to marry more than one woman, unless he can make sure to fulfill the three conditions under the Civil Code. Article 86 of the Civil Code requires that 1) the marriage will not cause injustice between the wives, 2) the man can provide for each of the women with food, clothes, a suitable house, and medical treatment, and 3) the first wife must suffer from an incurable disease or be unable to bear children. The punishment for failing to fulfill all three conditions is imprisonment of no less than 3 months.

3. Inheritance

• Does the law define a greater share for sons? A son will receive twice the share of each daughter

• What does the text of law state about inheritance where a person only has daughters?

One daughter will receive ½ and two or more daughters will share in 2/3.

• Is there any other gendered provision in law that gives All women in the same degree will receive ½ the share of a man. For example, a wife with no children receives ¼ from her husband.



females a lesser share? However the husband with no children will receive ½ from his wife.

The Afghan Civil Code reflects the standard/mainstream methods of division, as espoused in the Quran and Fiqh. Much of the global discussions advocating for an increase in women's share do not apply to Afghanistan, in so far as they argue that laws should change to reflect the dynamic of contemporary societies where women are earning their own money, bearing their own expenditures and contributing to the household. Afghanistan is an economically under-developed society. Few women work and most are dependent on their families for survival.

Thus the meagre shares apportioned to women under Islamic law that women's rights groups in some Muslim-majority countries are advocating to change; are on the other hand, strongly promoted for and advocated in Afghanistan, albeit with much difficulty! Currently, statistics and research shows that most women in Afghanistan do not receive their shares, or waive their shares for their male relatives. In fact, few people are aware that actually, women are entitled to a fixed portion of inheritance. Those who are aware sometimes also find it hard to adhere to it or recognize its importance.

Thus there are various provisions under the EVAW Law that protects and promotes women's access and control over their inheritance.

Article 33 of EVAW - Deprivation of inheritance

No person may deny a woman or girl her inheritance, or her share of



property from her deceased husband, father, or other relative. She must be given her legal share of the property and the person who tries to prevent her from getting her share may be sentenced to up to 3 months imprisonment.

Article 34 of EVAW - Preventing access to personal property

No one may prevent a woman from having or getting personal property, such as her salary, house, and other goods. If this happens, the property must be given back to the woman and the person who took it may be punished with short term imprisonment.

Article 38 of EVAW - Denial of relationship (article 38)

If a person tries to deny that a woman is a family member or relative to prevent her from accessing property, inheritance, or other rights, the woman may have her relationship confirmed (validated) by a decision of the court. Denying a relationship with a woman includes, for example, a husband denying a woman is his wife, or an uncle denying his brother’s daughter is related to him, a brother denying a woman is his sister, or in-laws denying a woman was married to their son so the woman will not receive inheritance or other legal rights, such as custody or maintenance.

To avoid situations where relatives can deny a woman’s relationship to them, it is important for women to have documents that prove their marriages and family relationship. A person who wrongly denies a woman of a family relationship may be punished with up to 6 months



in prison.

• Does the law recognize the application of any customary law?

No. The Constitution recognizes customary law in so far as it does not contravene statutory law and Islamic law.

• Explore court judgments regarding a woman’s right to inheritance? Do they mention the brother’ financial and moral responsibilities as head of family.

The judge will simply accept a waiver. Waiver is most common and it occurs automatically. Few women contest this. Men are regarded to have more financial responsibilities, and in fact, often bear the burden of hefty marriage expenses that they save their entire life for. Since women will be looked after by their natal or marital home, their inheritance rights are replaced by the financial considerations of male relatives.

In a research conducted by WCLRF in 2011, male and female respondents cited the following reasons for not entitling women to their rightful share of the inheritance: see annex

4. Control over autonomy Although a new Family Code remains to be an urgent project on the agenda of women's rights lawyers, legal activists and organizations, some issues have been somewhat addressed by the recent enactment, the Law on the Elimination of Violence Against Women (EVAW). Control over a women's autonomy is strongly manifested in the realm of marriage. Thus, the following issues have been specifically selected because of how they interweave between each other and how they directly and indirectly impact upon other issues. For example, a significant cause of self-immolation and running away (a punishable offense in practice) is, a) child and forced marriage, b) domestic violence, c) inability to leave an



unpleasant/violent marriage and, d) unwillingness to leave an unpleasant/violent marriage in fear of losing child custody.

Therefore, an improvement in the laws regarding marriage and divorce will significantly impact upon other urgent issues that require immediate attention/

Article 28 Elimination of Violence Against Women Law EVAW) - Marriage before the legal age

It is generally illegal to marry a girl who has not reached the legal age of marriage, which is 16 years of age. Under the civil code, in some situations, the father or the court may authorize the marriage of a girl who is 15 years old. It is illegal under any circumstance to marry a girl who is under 15 (Civil Code, article 71). A marriage of a girl under 15 will be cancelled at the request of the girl. The person who marries a girl under 15 will be punished with a prison term of at least 2 years.

Article 26 of the EVAW - Forced marriage

An engagement or marriage without the woman’s consent is invalid. Any person who is involved in forcing a girl over 16 to become engaged or marry without her agreement may be sentenced to 2 or more years in prison.

Article 27 of EVAW - Prohibiting woman to marry or choose a



4.5 Divorce

husband

No one may deprive or prevent a woman from choosing who she would like to marry or prohibit her from marrying the person of her choice. Anyone who prohibits a woman from freely choosing her husband will be subject to short term imprisonment.

Article 24 of EVAW - Selling and buying women for marriage

It is a criminal act to sell or buy a woman for marriage or under the pretext of marriage. Any person who takes or gives money or other valuables (toyanah) or who facilitates such an exchange of a woman as if for marriage will be punished with up to 10 years in prison.

Article 25 of EVAW - Baad

It is a criminal act to marry or “give away” girls and women to someone as blood price. The law prohibits the trading of women and girls to resolve disputes, including those related to murder, sexual violence, or other harmful acts.

A person who gives or takes a woman for marriage in retribution for a Baad may be prosecuted and punished with up to 10 years in prison. Any person who is involved in giving women as Baad will also be punished, including any witnesses, mediators, and the persons conducting the marriage ceremony. A marriage that results from Baad is considered invalid.



Does the law require the husband’s permission or consent for khul?

If a wife initiates a grounds-based divorce through the courts, does the law require the husband to pronounce talaq?

Art 157 of the Afghan Civil Code: Khul is conditional upon the husband’s authority.

Art 176-197 of the ACC permits separation on the grounds of defect, non-payment of maintenance, harm, and absence. In these cases, there is no requirement for mahr to be returned (as is the case under khul). The law does not require the husband to pronounce talaq. Separation occurs through a court order. However there are some impediments that make some of these grounds difficult to fulfill.

For example:

On separation due to defect, Art 179 requires the defect to be such that recovery would be impossible and one that would harm her sexually. If the disease is recoverable but requires a long time for treatment, the court shall postpone the demand for not more than 1 year.

The threshold a woman is required to prove, i.e. that recovery is “impossible” is too high a threshold to reach. It implicitly prioritizes marriage or the husband’s right of marriage, over the wife’s individual autonomy, safety and welfare. She bears the high risk of contracting his disease or otherwise, whilst meanwhile the court and experts deliberate if recovery is impossible; and if recovery would take a long time, she is exposed to harm for a possible duration of a year.



That the defect is recoverable but causes her harm sexually may not be sufficient enough, by the letter of this provision.

The defect has to cause her harm sexually; the defect relates to his sexual/reproductive organs. Thus other sorts of defect non-genitalia in nature will not serve as a ground under this provision. Symbolically this raises interesting questions about marriage as an institution of sexual partnership over individual welfare, and the centrality of sexual intercourse in marriage life. This is reiterated in Art 183 on separation due to harm.

Art 183 states that where the wife receives any harm from intercourse with the husband, and if this makes the continuation of intercourse between the couple impossible, she can demand from the court to grant her an order of separation.

Art 183 does not envisage cases of separation due to harm that are non-sexual in nature, like domestic violence or violence non-physical in nature. It also uses the threshold of “impossible”. For example, separation is only granted if continuation of intercourse between the couple becomes “impossible”. Thus harms that fall below that threshold may not be considered sufficient ground for separation. The law prioritizes sexual partnership above that of her individual welfare and physical safety.

Art 184 states that if the harm claimed is not proved and the spouses do not get along well, the court shall order a separation. Art 185



states that if the harm claimed is not proved and the wife insists on her claim, the court shall appoint two persons to act as arbitrator to solve the couple’s differences. Thus if there is mutual breakdown of the marriage, the court shall order a separation. However in the event that the insistence on separation comes from only the wife, arbitration is taken to resolve their differences.

We see the centrality of sexual union in the marriage discourse. The wife has to bear the risk of emotional, physical and psychological violence and until it reaches such a threshold, then only may she be granted by the court a separation from the marriage. She has to prove the highest form of unbearable misery and suffering to obtain an exit pass. These provisions which seem on the surface an opportunity or right to exit a marital union is in reality clouded with male preferences and androcentric biases. So a provision granting ‘freedom’ is actually used whether intentionally or not, to further define a man’s qiwamah over his women.

Author's (Latiff) anecdote: ”When I spoke to lawyers at Medica Afghanistan, they mentioned it was mostly impossible to attain a separation due to defect. They do take cases relating to separation due to harm and succeed at times, but often the court requires proof of such an extent of harm that a woman is unable to provide. Thus there are traumatizing stories of women subjected to violent sexual acts but who without the proof were asked by the judge to return back to their husbands. “

The other two forms of judicial separation are: separation due to



Does the law enable a husband to obstruct or delay a divorce initiated by the wife?

Does the law allow courts to reduce financial compensation for a divorced wife if she has exercised non-sexual autonomy?

absence (Art 194) and separation due to non-payment of maintenance (Art 191). In the former case, separation will only be granted if the husband is absent a) without reasonable excuse, b) for a period of three years or more, and c) if the wife suffers a loss as a result of his absence. All three ingredients that form the basis of this separation work against her claim. That a marriage is a union between two people and thus assumes the presence of those two people in a life together is not enough. She has to wait for three years, prove she suffered a loss, and if he provides a reasonable excuse, this will work against her claim. Again his right of marriage, even in his absence as a husband that he is required to fulfill, is more important than her welfare, safety, physical and financial security, and need for certainty, love and companionship in life.

Author's (Latiff) Anecdote: “When I spoke to lawyers at Medica Afghanistan, they mentioned it was difficult to attain a separation due to absence. “

For judicial separation on grounds of defect, absence, non-maintenance and harm, if proved, separation is automatically granted without the obstruction of the husband. Thus, the law does not enable the husband to obstruct or delay the divorce. However procedure is such that requires such high thresholds of “harm” or “defect” or “absence” to be proved that provides the opportunity for the process to be obstructed and delayed, as it so often happens.

There is no concept called “financial compensation” for a divorced



4.6 Post divorce financial arrangements

Is any post-divorce maintenance or nafaqah during iddat conditional upon wife’s behavior

4.7 Child Custody

wife if she is wronged. The only “financial compensation” if we can term it like that, is maintenance during the iddat period. There is nothing in the law that provides for post-iddat maintenance or other forms of financial compensation for emotional distress and the like.

The law does not mention that payment of iddat is conditional upon the wife’s behavior.

Child custody is another topic that interweaves into the woman's ability to divorce. The question of divorce for a woman, is ultimately tied to a) ability to survive and more importantly, b) ability to keep her children. It is an important issue because of the plunging depth of frustration, depression and utter hopelessness that a mother experiences when she loses her child after the age of 9 (for girls) and 7 (for boys). There is a possibility of a two-year extension to the fosterage period and the Civil Code does set the standard of the child's best interest. But the socio-linguistics and human experience of wilayat and qiwamah is so strongly rooted in the Afghan conscience, that it trumps other merciful options.

At the surface and in spite of the Code's brevity on the subject, it seems that a mother's right to hadanat is protected. It also appears



that the child's best interest is taken into consideration, even if it may result in a transfer of custody from the father's hands to a different custodian. However a closer analysis will demonstrate that the default state of consideration is after the age of 9 (for girls) and 7 (for boys) a mother's right of hadanat transforms into a father's right of wilayat. All other rights exist on the fringes of this clear dictate. They point to the exception and do not embody the standard.

According to Article 236 of the Afghan Civil Code 1977, child care is the protection and raising of the child in the period where he/she is in need of the care of his/her mother.

According to Article 244, the father of the child is bound to pay child care charges.

Art 249 states that the period of care for the male child shall end once the child attains the age of 7 years, a period of which can be extended by not more than two years (Art 250).

Article 251 states: “Where it is proved that the person taking care of the child is not in the interest of the child even though he may be the father of the child, the court can give the child to the care of the second person who is entitled to the care of the child.”

Article 254 states that the father of the child shall not take the child on any journey without the permission of the caretaker.

5. Control over wife’s body



5.1 Sexual and reproductive health services

5.2 Domestic violence and marital rape

Does the law permit the husband to discipline or beat the wife?

Does the law provide for lesser sentences in cases of domestic violence in contract with violence by strangers?

Does the law recognize marital rape?

Doe the laws provide for lesser sentences if a husband murders a wife?

How are these provisions different if the violence is committed by

The Afghan Civil Code does not mention this right to discipline. However it is an accepted practice. See Box 1A, p. 1, on the edict released by the Ulema Council in March 2012.

The law does not recognize that rape can happen within a marriage

The law does not provide for this. Chapter Five of the Penal Code on “Legal Excuses and Judicially Extenuating Conditions” may allow for such a direction if narrowly construed to fit within what is described as an 'extenuating circumstance'.

Art 141 (1): Excuses either acquit from chargers or extenuate the. Acquitting and extenuating excuses shall be made clear in the law; otherwise, judicially extenuating conditions are those instance where the crime is committed on the basis of honourable motives, or that the criminal has acted because of unlawful incitement of the person against whom the crime has been committed, or that the court makes the inference from the conditions and circumstance of the crime and the criminal.

The law is absent on this.



the wife?

5.3 Sexual obedience and maintenance

Does the law state that the wife must obey the husband?

Does the law allow punishment of a wife who is nushuz?

Does the law make the wife's right to maintenance conditional upon her remaining in the marital home?

Does the law permit disobedience as a suitable defence against maintenance suits? Are there exceptions?

Does the law provide for 'restitution of conjugal rights' and is this only a legal remedy available to husbands?

Does the law permit the forced return of the wife to the marital home?

The law does not state this.

The law does not state this. However please see Ulema Council's Edict in March 2012, Box 1A above.

The right to maintenance is conditional upon her domicile in the marital home, unless she provides legitimate reasons. But this is not defined in the law.

Art 122 of the Civil Code states that the wife shall not be entitled to maintenance in the following cases:

1. When she leaves her residence without permission of her husband, or without legitimate purpose;

2. When she does not fulfill her conjugal obligations;

3. When there is no obstacle to transfer the wife to residence of her husband but the wife refuses to live in her husband's residence.

The law does not mention forced return as a husband's right.



5.4 Post-divorce financial arrangements

Is any post-divorce maintenance or nafaqah during the iddah conditional upon the wife's sexual behaviour?

5.5 Negotiating rights and responsibilities in the marriage contract

Does the law recognize the possibility of negotiating rights and responsibilities in marriage contracts or documents attached to the marriage form?

What rights and responsibilities does the law allow to be negotiated, and what does it not allow?

5.6 Constitutional guarantees of equality and non-discrimination

Does the Constitution guarantee equality on the basis of gender?

Have any constitutional cases litigated any issues relating to qiwamah and wilayah on the basis of gender equality and what was the result?

Are family laws exempt from constitutional guarantees?

The concept of muta'a does not exist. Iddat maintenance is not conditional upon the wife's sexual behaviour.

Some rights can be negotiated. These are set conditions approved by the Supreme Court. Very few people are aware of the marriage contract and its functions.

Art 22 of the Constitution protects gender-based equality.

Litigation is a new practice in Afghanistan. As far as I understand there are family law cases where issues of qiwamah and wilayah are discussed and debated within the framework of the Civil Code. But constitutional cases are yet to be litigated to such the extent



5.7 Laws against domestic violence

Is there a domestic violence law?

Does it apply to all citizens?

Have they been used to address some of the issues relating to qiwamah and wilayat?

6. Education

practised in other countries.

Family laws are not exempt from the Constitutional guarantees.

The Elimination of Violence Against Women Law (EVAW) was passed in 2009 by Presidential Decree.

It applies to all citizens.

Qiwamah and Wilayah are concepts that are debated and contested under the EVAW Law. Whether they are fully addressed and debunked is quite another question. And this depends on the language, symbolism and strategies of the women's rights movement in Afghanistan. There is a term coined by anthropologist, Miriam Ticktin, termed 'casualties of compassion'. Sometimes, in the state of “saving women”, concepts that women need to be guarded or looked after are actually further propagated. What could initially be a good short term strategy may indeed produce unintended consequences.

Article 35 of the Elimination of Violence Against Women Law - Preventing women’s access to education, work, and healthcare

Preventing or forbidding a girl or a woman from attending school or university, from working outside the home, or from visiting doctors for treatment is a crime. It is against the law for a father, brother, husband, any relative or stranger to prohibit women’s access to education, work, or medical care. A person who does that will be



punished with up to 6 months in prison.

Mapped by Natasha Latiff (LLB, Honours)

Human Rights Lawyer

Women and Children Legal Research Foundation

Qiwamah & Wilayat Issue National Law and Policy Qiwamah and Wilayat in Afghan Law and Practice...

Documents

Transcript of Qiwamah & Wilayat Issue National Law and Policy Qiwamah and Wilayat in Afghan Law and Practice...