National Action Plan for the Women of Afghanistan - The Secretary ...

3. ISSUES AND CONSTRAINTS
3.1 Pervasive violations of women’s human rights
Despite legislation forbidding underage marriage, 33 a study by the Ministry of Women‘s Affairs
and women‘s non-governmental organizations (NGOs) reports that approximately 57% of girls
are married before the age of sixteen 34 . A large number of marriages in Afghanistan are forced,
which affects both women and men negatively. Women, however, are the main victims of forced
marriages related to settlement of tribal disputes (bad) or in exchange for economic gain of the
family. These practices are condemned by Afghan law as well as Islam, which requires that
marriage contracts be consensual. According to Sharia Law, if a marriage is not consensual, the
marriage is fassed (understood in Islamic jurisprudence as being between correctness and void)
and can be nullified. The government is concerned that communities that practice customary law
do not act with awareness of the dictates of the sacred religion of Islam, which decrees that
forcing a marriage is a crime that is as serious as
soliciting adultery. Perpetrators of illegal marriages
are not being prosecuted, thereby reinforcing and
legitimizing unIslamic and illegal practices.
Women‘s rights under Afghan law, their property
rights, and their rights to inheritance are often not
upheld in Afghanistan. In some marriages, the
bride‘s Maher (bride-price) is given to the families
of the bride, regardless of the fact that Islam and the
law requires that the Maher be given directly to the
“From what is left by parents and
those nearest related there is a
share for men and a share for
women, whether the property be
small or large,—a determinate
share”
(Sura 4, Verse 7)
bride. In other cases, women‘s rightful inheritance is denied. Women are therefore rendered more
economically dependent and vulnerable.
Discrimination against women can also be found in Afghanistan‘s civil and criminal laws 35 .
Women in detention centers are often accused by spouses or male relatives of acts that do not
constitute crimes under Afghan statutory laws, such as elopement. Furthermore, women are
arrested as ‗co-accusers‘ for crimes committed by male family members. In some cases, women
are arrested for crimes known to have been committed by a male family member, hoping this will
induce the alleged offender to surrender to the police.
33 Yet, according to the Civil Law of the Republic of Afghanistan, under some circumstances the law
allows a girl to be married at the age of 15 with the permission of her father or the competent court.
According to Article 70, “Marriage shall not be considered adequate until the male completes the age of
18 and the female the age of 16.” Article 71(1) states that ―where the girl does not complete the age
provided under Article 70 of this law, the marriage may be concluded only through her father and the
competent court.” Yet, according to Article 71(2) “the marriage of a minor girl whose age is less than 15
shall never be permissible.”
34 ‗Afghanistan: Child Marriage rate still high – minister‘; July 2004, UN Office for the Coordination of
Humanitarian Affairs (OCHA) Integrated Regional Information Network (IRIN)
35 Article 249 of the Civil Code. ―The care period of a male child shall be ended when he attais the age of
seven, and a care period of a female child shall be ended when she reaches the age of nine.‖
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