The New Family Law in Afghanistan: A Pain for Girls‘ Souls

The New Family Law in Afghanistan: A Pain for Girls‘ Souls

Marriage of Breastfeeding Infants and One-Day-Old Babies

By Tania Kurd Mirza

LL.M. in Constitutional and Criminal Law, Gender-Based Violence (GBV) Trainer

Dedicated to the Girls and Women

The Taliban recently introduced new family law regulations governing marriage and

divorce, titled the “Principles of Separation between Spouses.” While this framework

is organized into 31 articles divided across 12 sections—and is outwardly marketed as a

guide to regulating the dissolution of marriage—it explicitly and unambiguously legalizes

the marriage of infants and young children.

When these texts are subjected to rigorous legal interpretation, it becomes undeniably

clear that under the guise of "regulating divorce" these laws systematically permit and

legitimize child marriage. While various methodologies of textual interpretation can

prove this, the underlying mechanics of the text speak for themselves.

Dissolution of Marriage Contracts Under Specific Conditions

The decree outlines specific, restrictive conditions under which a child marriage contract

can be annulled. These include marriages entered into during infancy or the

breastfeeding stage, cases of spousal abandonment, accusations of adultery, or

instances where a spouse defects from Islam (apostasy).

Under these rules, once a child reaches the age of majority—defined strictly by Taliban

puberty standards rather than international age metrics—they may apply for the

annulment of a marriage contract entered into during their minority. However, by

explicitly referencing puberty as the baseline for seeking annulment, the law inherently

legalizes the pre-pubescent marriage contract itself. This validates marriages forced

upon children ranging from one day old to nine years of age.

Furthermore, while a victim may theoretically apply to a special Sharia court for

dissolution under these conditions, the court retains absolute, unilateral discretion to

accept or reject the request.

Adultery as a Ground for Annulment

The law establishes adultery as a ground for the dissolution of a marriage. It empowers

a Sharia judge to give a husband two choices if his wife is accused of adultery: enforce

mandatory Sharia corporal punishment upon her, or grant a divorce.

The Problem with This Condition

The primary issue lies in how adultery is defined and proven within the current Afghan

context. In deeply patriarchal and extremist societies, "adultery" is twisted by cultural

traditions and male dominance. It requires very little to ruin a woman; merely looking at

a man outside her home can be weaponized as an accusation. In these backward legal

systems, accusing a woman of adultery is effortless, while proving it and executing her

punishment is made even easier.

True Quranic jurisprudence (such as in Surat al-Nur 24:2-10) demands an incredibly

high evidentiary standard to prove adultery, protecting individuals from false

accusations. Yet, extremist regimes ignore these safeguards to preserve their control.

While real Islamic law penalizes both male and female adulterers, extremist societies

disproportionately target, punish, and kill women.

In an absurd twist of justice, these regulations legalize child abuse, rape, and forced

child marriage under the name of a "marriage contract" and then weaponize adultery as

the benchmark for escaping it. The law forces us to ask: who is this annulment system

truly serving? Is it for the young girl who, upon reaching her first menstruation, has

already survived years of marital rape and been forced into motherhood? Or is it for the

husband, who can stone his child-wife or cast her onto the street without rights under

the pretext of adultery?

This framework does not provide reproductive freedom or recognize a child victim‘s agency. It is a tool of profound oppression, demanding that girls be "thankful" for a

legitimate contract, even if it leaves them vulnerable to being discarded or stoned.

Religious Differences and Apostasy

The document further details religious restrictions on marriage:

 Interfaith Rules: If a non-Muslim woman from the Ahl al-Kitab (People of the

Book) marries a man who converts to Islam, the marriage may continue.

However, if a non-Muslim man remains in his faith while his wife converts to

Islam, the marriage is automatically void.

 Apostasy: If either spouse leaves Islam, the marriage is dissolved automatically

without requiring a judicial ruling.

 Polytheism: The law strictly forbids marriages involving polytheists or fire-

worshippers, treating these beliefs as grounds for immediate court cancellation.

These conditions highlight a deep gender imbalance: a Muslim man is granted the right

to a non-Muslim wife, but a woman is denied reciprocal rights, facing forced separation

if religious lines are crossed.

The "Option of Puberty" (Khiyar al-Bulugh)

The text heavily relies on the jurisprudential principle of Khiyar al-Bulugh (the Option of

Puberty). This dictates that when a girl begins menstruating or a boy shows physical

signs of puberty, they gain the right to petition a court to annul a marriage contracted on

their behalf during infancy.

In practice, this means a child between the ages of 9 and 12 (or younger) who was

married off as a breastfeeding infant is forced to navigate a complex legal system just to

escape an abusive union. Because the law focuses on the age of divorce rather than

setting a minimum age for marriage, it confirms that there is no bottom limit for

contracting a marriage. Infants are explicitly fair game.

While international democracies define a child as anyone under the age of 18, the

Taliban rejects this, viewing anyone who has hit puberty as a fully consenting adult.

Therefore, this system cannot be praised as providing a "right to divorce". The initial

contract itself lacks mutual consent, involves infants incapable of legal agreement, and

is inherently a criminal act of child sexual abuse. Opening the door to divorce does not

legitimize a fundamentally criminal contract.

Worse still, this decree expands a man‘s power to commit violence. A husband can

falsely accuse his wife of adultery or apostasy to easily discard her whenever he

pleases, leaving her destitute while he moves on to victimize another infant.

Article 5: The Erasure of Guardianship Protection

Article 5 addresses the legitimacy of these contracts. Typically, a marriage contract

requires the direct involvement of a father or paternal grandfather to be valid. However,

the Taliban‘s law creates a dangerous loophole: if a groom is deemed a "socially

competent person" and provides an appropriate dowry, the requirement for a father or

grandfather‘s consent is completely bypassed.

The Illusion of Legal Recourse Against Guardians

Under this decree, a 70-year-old man of high social status can legally marry an infant or

a toddler. In such instances, the standard protective requirements for a father‘s or

grandfather‘s consent are entirely bypassed due to the groom‘s social standing.

While the law grants guardians sweeping, unchecked authority to enter into marriage

contracts on behalf of infants and young children, it deceptively leaves a small window

for the future annulment of the contract. Legally, once a minor reaches adulthood, they

can theoretically petition for annulment if they can prove the guardian acted to their

clear detriment, lost legal eligibility at the time, or engaged in immoral acts.

However, this supposed legal remedy presents a horrific paradox: how can a

child—who has been forced into a marital union for years—ever prove the bad

intentions of their guardian? At best, such a child may have attended five or six grades

of school; at worst, none at all. Deprived of basic education, violence and systemic

poverty form the core of their upbringing. Unfamiliar with their fundamental rights, how

can a nine-year-old child find the voice to speak out? How can she dare to file a formal

complaint against her own guardian to secure a divorce?

Silence Weaponized as Consent

In Western legal frameworks and modern democracies, the explicit "yes" or "no" of girls

and women—even within the context of marriage—is a central, evolving legal standard.

Laws are continuously researched, debated, and amended in parliaments to ensure that

consent during sexual intercourse and marriage must be clear, verbal, and mutual.

In Afghanistan, however, there is no room for a woman‘s "yes" or "no". Instead, the legal

system weaponizes silence.

Crucially, a girl‘s silence is interpreted entirely differently from a boy‘s silence, carrying

radically different legal consequences. Article 7 of this law explicitly states that the

silence of an adult girl constitutes automatic consent to a marriage proposal.

Conversely, the silence of an adult boy or a previously married woman is not interpreted

as approval.

Treating a young girl’s silence as legally binding consent is not just a direct violation of

her freedom of choice; it is an act of institutional violence. It legally frames women as

incomplete, incapable, and intellectually deficient, casting doubt on their physical and

cognitive agency. While the global community moves toward explicit verbal consent to

protect women from sexual assault, Afghanistan codifies ancient biases where silence

equals approval—and applies this rule exclusively to young girls.

This archaic concept must be completely dismantled. Human beings communicate

through speech; legal consent must rely on a definitive "yes" or "no", not the absence of

sound.

In the current Afghan reality, a girls‘ silence never means consent. It means:

Total Disempowerment: The crushing reality of a girl whose very existence is

treated as a burden or disaster by her family.

Terror and Ignorance: Absolute fear combined with a complete lack of

knowledge about her own body, her legal rights, or the marriage process.

Severe Trauma: The psychological and physical paralyzation of an oppressed

victim of violence.

A girl‘s silence is not an agreement. It is a muffled cry for help, an unspoken indictment

of an injustice she never chose.

Custody Discrimination and the Eradication of Childhood

The systemic bias continues into the rules governing child custody following a divorce.

The law draws a sharp, discriminatory line between sons and daughters: in the event of

a marital split, a mother is permitted to retain custody of a girl only until the age of nine,

while a boy is stripped from his mother at just seven years old.

Though these frameworks are publicly promoted under the guise of "social and family

organization" their true essence is clear. They represent a severe violation of

international human rights and the rights of the child. By codifying these practices, the

law normalizes, legitimizes, and legalizes child abuse. It removes any ambiguity,

explicitly proving that the forced marriage of infants, young children, and young girls to

older men is fully state-sanctioned in Afghanistan.

We live in an era where women and children globally have made historic strides in

claiming their rights. Yet, in Afghanistan, newborn babies are sold for bread, and young

girls are barred from education only to be handed over to adult husbands. The age gap

between a young girl and her firstborn child is frequently a mere eleven or twelve years.

Accused of adultery, she faces public stoning before she even reaches her thirties. Her

face grows lined and her body turns frail, enduring decades of agony.

She cannot truly live, yet she does not die from grief. She cannot comprehend why her

portion in this life is so uniquely cruel.

She wanders through a haze of constant anxiety, unable to pinpoint exactly where she

is bleeding, yet feeling an all-consuming, unbearable pain—a pain that fills her entire

body, and a pain that crushes her soul.