1. Introduction

The family is regarded as one of the most fundamental social and legal institutions in Islamic societies, and family law plays an essential role in regulating relations between spouses. In Afghanistan, matters relating to marriage, divorce, and separation have historically been influenced by Islamic jurisprudence, particularly the Hanafi school.

In 1405 of the Solar Hijri calendar, the Ministry of Justice of the Interim Government of Taliban adopted and published the Regulation on the Separation of Spouses, consisting of 75 articles organized into 12 chapters. The Regulation establishes grounds for separation between spouses and sets out legal and judicial mechanisms relating to the dissolution of marriage.

The Regulation addresses issues including compatibility (kafa’a), the option of puberty (khiyar al-bulugh), fosterage (rada’a), affinity prohibitions (hurmat al-musahara), missing and absent husbands, khul’, a husband’s obstinacy (ta’annut), defects, apostasy, renunciation of Islam, difference of abodes (ikhtilaf al-darayn), li‘an, and zihar as grounds for separation.

Although many of these provisions have direct roots in classical Islamic jurisprudence, examining their compatibility with contemporary jurisprudential developments and international legal standards—particularly those concerning human rights, women’s rights, equality, and freedom of choice—is important.

This article therefore analyzes the content and jurisprudential foundations of the Regulation and compares selected provisions with relevant principles and standards of international human rights law.

2. Legal and Jurisprudential Foundations of the Regulation

A review of the Regulation demonstrates that it is extensively based on Hanafi jurisprudential sources. Many provisions have been directly adapted from well-known Hanafi works, including Radd al-Muhtar, al-Fatawa al-Hindiyya, al-Bahr al-Ra’iq, and Bada’i‘ al-Sana’i‘. The Regulation therefore largely reflects a traditional Hanafi approach to marriage, divorce, and separation.

The grounds for separation established by the Regulation generally correspond to the views of classical Hanafi jurists. While Hanafi jurisprudence has historically demonstrated considerable flexibility, the Regulation largely relies on traditional interpretations rather than contemporary jurisprudential approaches. Concepts such as guardianship (wilaya), compatibility (kafa’a), the option of puberty, male authority (qiwama), and difference of abodes remain prominent within its framework.

This approach raises important questions when assessed against contemporary human rights principles, including human dignity, equality between women and men, freedom of choice, and non-discrimination.

At the same time, the Regulation establishes judicial procedures for separation and places courts at the centre of decisions concerning the dissolution of marriage. It therefore provides an important legal framework through which separation cases are considered under the current legal system.

3. Comparative Analysis

3.1 Compatibility (Kafa’a) and Guardianship in Marriage

Articles 3 and 4 of the Regulation address compatibility in marriage. Under these provisions, the marriage of a woman to a person considered non-compatible without the consent of her guardian may be deemed invalid, and in certain circumstances the guardian and the woman are provided with a right to seek rescission of the marriage.

Within traditional Hanafi jurisprudence, compatibility has been considered an important factor in family stability. Hanafi jurists have, in certain circumstances, considered factors such as lineage, religion, profession, and social status when determining compatibility.

Contemporary jurisprudential approaches, however, increasingly emphasize piety, moral character, individual consent, and the interests of the spouses rather than ethnic, racial, social, or class distinctions.

From an international human rights perspective, every adult woman and man has the right to freely choose a spouse. Restrictions on that choice based on traditional concepts of compatibility therefore raise concerns regarding individual autonomy, equality, and freedom of choice.

3.2 The Option of Puberty and Child Marriage

Articles 5–10 address the option of puberty and the marriage of minors. These provisions proceed from the assumption that a guardian may arrange the marriage of a minor boy or girl and that, after reaching puberty, the individual may under certain circumstances acquire a right to seek rescission.

This approach is rooted in traditional Hanafi jurisprudence, under which guardians have, in certain circumstances, been permitted to arrange marriages for minors. Contemporary jurisprudential approaches, however, increasingly question this practice on the basis of the objectives of Shari‘a, meaningful consent, prevention of harm, and the best interests of the child.

From the perspective of international human rights law, these provisions raise significant concerns. International standards on children’s rights emphasize free and full consent to marriage and protection of children from early and forced marriage.

Particular concern arises where the exercise of the option of puberty is restricted in ways that may effectively leave a girl in a marriage to which she did not originally consent. When combined with evidentiary requirements, these provisions may make it particularly difficult for girls to challenge marriages arranged during childhood.

Accordingly, this part of the Regulation presents one of the most significant areas of tension between traditional jurisprudential rules and contemporary international standards concerning children’s rights, women’s rights, and consent to marriage.

3.3 Fosterage, Affinity, Li‘an, and Zihar

Articles 11–14, as well as Articles 28 and 29, address fosterage (rada’a), affinity prohibitions (hurmat al-musahara), li‘an, and zihar.

These concepts are well established within Islamic jurisprudence and derive from the Qur’an, the Prophetic Sunnah, and established jurisprudential traditions. Fosterage and affinity may create prohibitions on marriage, while li‘an and zihar have specific consequences for marital relations.

International family law does not contain direct equivalents to many of these concepts and generally places greater emphasis on consent, equality, and individual rights. This area therefore reflects a difference between legal traditions more than a direct conflict between specific legal rules.

3.4 Separation Where the Husband Is Missing, Absent, or Obstinate

Articles 15–22 address circumstances in which a husband is missing, absent, or refuses to fulfil certain marital obligations.

These provisions are particularly important for the protection of women because they provide a legal avenue through which a woman whose husband is missing, fails to provide maintenance, or refuses to fulfil marital obligations may apply to a court for separation.

This aspect of the Regulation is broadly consistent with principles of justice within Islamic jurisprudence and with certain human rights principles. In particular, it can protect women from remaining indefinitely in marriages in which their fundamental marital rights and needs are not being fulfilled.

These provisions therefore represent an area in which traditional jurisprudential mechanisms may provide meaningful legal protection for women.

3.5 Separation on Grounds of Defect, Apostasy, and Renunciation of Islam

Articles 23–26 address defects of the husband, apostasy, and renunciation of Islam.

Separation on the basis of certain defects in the husband is recognized within the majority of Islamic schools and is generally intended to prevent harm and hardship to the woman.

Apostasy and renunciation of Islam, however, present more complex questions. Traditional Islamic jurisprudence has generally regarded apostasy as having consequences for the continuation of marriage. Contemporary jurisprudential thought includes differing approaches to this question, including views that distinguish changes in personal religious belief from conduct directed against the Muslim community.

International human rights law recognizes freedom of thought, conscience, and religion, including freedom to change one’s religion or belief. Consequently, automatic consequences for marital status arising from a change in religious belief create tension with contemporary international standards concerning freedom of religion and belief.

3.6 Difference of Abodes (Ikhtilaf al-Darayn)

Article 27 addresses the difference of abodes between spouses. The concept originates in the classical jurisprudential distinction between the Abode of Islam (Dar al-Islam) and the Abode of War (Dar al-Harb).

This distinction developed within a particular historical and political context. Contemporary international law, however, organizes relations among individuals and states primarily through concepts such as nationality, citizenship, residence, territorial jurisdiction, and private international law.

The continued reliance on Dar al-Islam and Dar al-Harb therefore reflects a traditional jurisprudential framework that may not correspond easily with contemporary realities of citizenship, migration, cross-border marriages, and international legal relations.

3.7 The Right to a Fair Trial and Judicial Independence

Articles 15 and 16 provide for multi-stage procedures and, in certain circumstances, confirmation by the Commander of the Faithful before a case is finalized. This arrangement raises concerns regarding judicial independence and the right to a fair trial. Under contemporary principles of the rule of law and international human rights standards, courts should be able to exercise their judicial functions independently and without inappropriate interference by executive or political authorities.

Where the finalization of a judicial decision depends upon approval by a non-judicial authority, questions may therefore arise concerning the separation of judicial and executive functions, the independence of the judiciary, and the finality of court judgments.

4. Conclusion

The Regulation on the Separation of Spouses is an important family-law instrument within Afghanistan’s current legal system. Its provisions demonstrate extensive reliance on traditional Hanafi jurisprudence and, in many areas, codify classical jurisprudential rules governing marriage and separation.

From the perspective of traditional Hanafi jurisprudence, many provisions have recognizable jurisprudential foundations and correspond to established positions within the school. Certain provisions—particularly those allowing women to seek separation where husbands are missing, absent, fail to provide maintenance, or otherwise fail to fulfil marital obligations—may also provide important legal protections.

At the same time, significant tensions arise in areas such as compatibility and guardianship in marriage, child marriage and the option of puberty, apostasy and freedom of religion, difference of abodes, and judicial independence. These provisions raise concerns when assessed against contemporary jurisprudential developments and international human rights standards concerning free consent to marriage, equality between women and men, children’s rights, freedom of religion and belief, non-discrimination, and the right to a fair trial.

Overall, the Regulation primarily reflects a traditional Hanafi approach to family law. While many of its provisions can be explained and defended within the framework of classical Islamic jurisprudence, important aspects remain at considerable distance from contemporary jurisprudential developments and international human rights standards. These areas require further legal, jurisprudential, and human rights analysis and debate.

5. Recommendations

5.1 Recommendations for Legal Reform

• Establish 18 as the minimum age of marriage for both women and men, without exception, and remove provisions permitting the marriage of minors.
• Reform discriminatory evidentiary requirements and establish rules of evidence that provide equal treatment and protection for women and men.
• Remove provisions permitting judicial corporal punishment, including those contained in Article 29.
• Strengthen women’s access to judicial separation in cases involving harm, abandonment, failure to provide maintenance, and persistent refusal by a husband to fulfil marital obligations.
• Reconsider the application of the distinction between Dar al-Islam and Dar al-Harb to contemporary marriage and family-law cases, taking into account current realities of nationality, residence, migration, and international law.
• Establish a mechanism for periodic legal review of the Regulation involving qualified and independent jurists and other relevant legal and civil-society expertise.

5.2 Recommendations for the International Community

• Raise concerns regarding provisions that conflict with international human rights standards, particularly those affecting women’s equality, freedom and consent in marriage, children’s rights, freedom of religion and belief, and access to justice.
• Include the implementation and human rights effects of the Regulation in relevant international monitoring and reporting on the rights of women and children in Afghanistan.
• Support independent documentation and legal analysis of cases in which implementation of the Regulation may result in violations of women’s and girls’ rights, including documentation relevant to appropriate international accountability mechanisms.
• Use diplomatic engagement and other appropriate international mechanisms to advocate for compliance with applicable international human rights standards and stronger protections for women and children.