Within Afghanistan’s Islamic family law, the right (of the husband) to discipline and the right (of the wife) to dignity and freedom from inhumane and degrading treatment coexists, albeit on parallel planes.
But certainty is expedient to the determination of whether the use or abuse of a husband’s right results in criminal and/or civil consequences. Not all injuries may immediately qualify for a judicial divorce. Courts may dismiss some cases, order mediation in others, or execute a divorce with varying civil consequences relating to mahr, compensation and child custody depending on the nature and frequency of harm.
The Court is bound to ask itself, in what circumstances does a conduct, or a series of conducts trigger the wife’s right to judicial divorce? And if on the basis of serious harm, how does that impact upon orders concerning compensation and child custody?
When the right of the wife to be free from harm is reduced to considerations over her behaviour, the discussion must be strictly situated within the following parameters: Does the situation represent the mischief (wife-beating) the legislature willed to correct? Is the interpretation of the law contrary to the Qura’nic and Prophetic intent? Considerations on the mode of beating, instrument used, nature and location of injuries, reasons for beating and the frequency of beating is concomitant to the question. In the event the injury is emotional or psychological in nature, similar inquiries into the manner and frequency and effects of the conduct on her continued well-being must be made. These inquiries must be contextualized into the husband’s history of violence.
Nonetheless, neither does the Afghan law nor Shariah require that the beating was life-endangering inf violence; if there were threats since the last attack, if the attack was planned, the chances of offending again, continuing threat to the health and safety of the wife and their children amongst others.
In contrary, under Shariah the test is so stringent that even small and simple injuries may de-legitimize the husband’s conduct. If the beating exceeds Shariah boundaries, the option for divorce to exit harmful cohabitation is hers to make. She should not be required to relive the experiences to demonstrate a near-death experience in order to exercise her right. If reconciliation is not achieved and she is still insistent, even if the cause is attributable to both sides or unascertainable, she should be granted a divorce as a matter of right (Art 188). A different application of the law will otherwise not logically sustain; a conduct deemed a crime under EVAW cannot in law fall short of satisfying ‘harm’ as a ground for judicial divorce under the ACC. Furthermore, it is problematic because for crimes attracting short-term imprisonment, a woman unable to obtain a judicial divorce is forced to endure her husband’s wrath once he is released from prison.
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