AfghanistanAs a Muslim nation, Afghans consider the
Sharì≠a, and specifically £anafìfiqh, as the basis of
their laws. However, as a tribal society, they have
held onto pre-Islamic codes and local customary
practices. The line between the two has gradually
blurred.
Family law in Afghanistan has developed paral-
lel to the development of the state and political
changes. From the inception of the modern Afghan
state in 1747, matters pertaining to family law were
settled on an ad hoc basis, either in Sharì≠a courts or
in tribal assemblies. It was Amìr ≠Abd al-Ra™màn
Khàn (r. 1880–1901) who first attempted to codify
Afghan family law and apply it in a uniform man-
ner throughout the country. He banned child mar-
riage, forced marriage, and exorbitant bride-price.
He also declared un-Islamic such practices as bride-
price and the giving of girls in marriage to end
blood feuds. He also restored to women the right to
seek divorce in cases of non-support, and to wid-
ows their rights to inheritance. Although these
were important first steps, qà∂ìs in remote areas of
the country continued to issue rulings based on tra-
ditional practices and on their own interpretation
of the Sharì≠a.
Amìr ≠Abd al-Ra™màn Khàn’s son, Amìr £abìb
Allàh Khàn (r. 1901–19), continued to emphasize
his predecessor’s vision and went further in adopt-
ing a systematic program of public education on
the Sharì≠a. This program, designed by Ma™mùd
¢arzì, the famous Afghan reformer, consisted of
publishing books on the Sharì≠a, including rulings
on women’s rights, regular appearance of articles in
the state-run newspaper, Siràj al-akhbàr, and pub-
lication of manuals for qà∂ìs.
King Amàn Allàh Khàn (r. 1919–29) is consid-
ered the champion of modernization and of family
law reform. In 1921 he issued a marriage decree in
which child marriage was pronounced strictly for-
bidden and the age of majority was set at 13. In
1924, when he presented the nation with its first
constitution, his family law reforms, especially arti-
cles related to polygamy, divorce, mahr(gift to the
bride), and the age of majority came under severe
criticism by the conservative ≠ulamà±. In the com-
promised version of the law, polygamy remained
permissible, but an unjust polygamist’s wife could
Law: Modern Family Law, 1800–Present
go to a Sharì≠a court and seek his punishment. Pun-
ishment was also prescribed for husbands who tried
to prevent their wives from petitioning against them.
Forced marriage between two adults was prohib-
ited. The marriage of minors agreed upon by their
fathers or guardians was allowed, but strongly rec-
ommended against. In the case of a minor bride, the
≠aqdcould be contracted, but the marriage could be
consummated only upon her reaching puberty,
which contrary to the age of 13 that the King had
demanded, followed the £anafìnorm of age 9. In
January 1929 King Amàn Allàh was overthrown
and achievements dating from the 1880s were
reversed.
In 1960 a matrimonial code was adopted, per-
mitting child marriage in principle, meaning that
the nikà™(consummation of marriage) could occur
only when the girl reached puberty. Article 2 set the
legal age of nikà™at 15.
The constitution of 1964, introduced by King
æàhir (r. 1933–73), stated that “all the people of
Afghanistan, without discrimination and privilege
before the law, have equal rights and obligations.”
This provided the legal basis for subsequent peti-
tions and court rulings that were more favorable to
women.
The constitution of 1977 explicitly pronounced
women legally equal to men. Written and promul-
gated during President Dàwùd’s republican regime,
it stipulated that, “all the people of Afghanistan,
both women and men, without discrimination
and privilege before the law, have equal rights and
obligations.” This constitution did not name the
£anafìschool as the official madhhabof Afghan-
istan. Consequently, in the Civil Law of the same
year, the Màlikìinterpretation of a divorce mecha-
nism using the concepts of li≠ànand faskhwas
introduced. This allows women to seek divorce by
a judicial process and decree. The legal age of
majority for females was set at 16 and the law gave
adult females the right to enter marriage without
their guardian’s permission. Among the first leg-
islative acts of the Marxist regime that toppled
President Dàwùd in 1978 was the declaration as
strictly illegal of marriage of girls under the age of
16; violators became liable to imprisonment of six
months to three years. The punitive measures in this
decree distinguished it from the earlier law on this
matter.