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«13 Apr The Autonomous Twig and the Gardener’s Hand: Legal Arguments for Divorce on the Basis of Harm in Afghanistan Author Natasha Latiff Natasha ...»

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13

Apr

The

Autonomous

Twig

and

the

Gardener’s

Hand:

Legal

Arguments

for

Divorce

on

the

Basis

of

Harm

in

Afghanistan

Author

Natasha

Latiff

Natasha

Latiff

completed

her

Bachelor

of

Law

(LL.B)

from

the

University

of

Warwick

Law

School,

and

Master

of

Law

(LL.M)

as

SOAS,

University

of

London

(2013).

Her

specializations

are

in

International

Criminal

Law,

Gender,

Human

Rights

and

Islamic

Law

and

Women's Rights in International Law.

Natasha first travelled to Afghanistan in 2005 at the age of 17 years where she sponsored a child for 5 years.

She spent many summers with children in Kabul learning English/Dari and telling through art.

She is a Member and raiser of the Zabuli Girls School in Deh Sabz, a project of CNN Hero es nominee Razia Jan.

Currently, Natasha works remotely as a Technical and Legal Advisor in Afghanistan, her new base.

Through her initiative, Femin Ijtihad "strategic advocacy for human rights", she has surveyed over 350 book chapters and articles and 50 asian court judgments on women's rights in the family and criminal process.

Her work involves strategizing legal arguments in Islamic law and international standards for advocacy.

She has introduced this body of work into conversation models on how to enroll the community in exploring gendered perspectives of law and procedure.

As a legal strategist, she conducts training on strategic litigation on mahr, zina, rape, talaq, khul, separation due to harm, maintenance and child custody et al.

Front Cover Photo Produced by Kirthi Jayakumar, a Legal Researcher at Femin Ijtihad, and an artist in her pastime.

Produced by Manisha Basnet © 2013 Femin Ijtihad ALL RIGHTS RESERVED Femin Ijtihad stands for "critical thinking" of gender notions and laws.

Its aim is to research and share relevant and simplified academic scholarship on Muslim women's rights, to activists and organizations working at the grassroots.

Over the years, academic ideas and theories have flourished the understanding of women's rights.

F.I.’s Research Programs focuses on locating academic and activist articles, book chapters, or produced reports from a variety of disciplines (legal, theological, historical, anthropological, sociological, political science, and other social science methods) that analyze arguments on notions of exegesis of Islamic texts;

contemporary legal reforms in majority societies;

various forms of Muslim women’s resistance;

Muslim women in literature;

and programs that empower men as partners in women’s rights efforts.

–  –  –

LEGISLATIVE

HISTORY OF THE AFGHAN CIVIL CODE 1977

6 BALANCING RIGHTS

6

PETITIONING

FOR JUDICIAL DIVORCE

7 The Substantive Law

7 HOW DOES THE LAW DEFINE INJURY?

8

8 Simple Injuries Grievous Injuries

9

CONCEPTIONALIZING

ART 183 IN PLEADINGS

10 RIGHT TO BEAT

11

11 Not a Defence in Law Not a Full Defence in Religion

11 IN WHAT SITUATIONS IS A MARRIAGE DEEMED TO BE IMPOSSIBLE TO CONTINUE?

15 CONCLUSION

17

BIBLIOGRAPHY

18 Afghanistan Legislation

19 International Conventions, General Comments and Recommendations

20 Cases

20 Reports

21 Websites

21

–  –  –

Nadia Anjuman, 'Strands of Steel' (Hypertexts) http://www.thehypertexts.com/Nadia_Anjuman_Poet_Poetry_Picture_Bio.htm accessed on 01/12/2012.

–  –  –

–  –  –

“If a woman...

obeys her husband, she will enter Heaven.” Reported by Ahmad, Ibn Hibban and Tabari See Ibn Hanbal, Musnad, 7 per Khaled Abou Fadl, Speaking in God's

Name:

Islamic Law, Authority and Women (Oneworld Oxford 2006) 219.

Hereafter termed as 'judicial divorce'.

Pakistan was chosen due to similarities in the issues, adherence to the same selections of madhab and availability of judgments in English.

–  –  –

The reference to Islamic law is also important in respect to the reverence it possesses in the Afghan polity.7 A legal right expounded in religious terms connects the law to the layman. This concerns Afghan lawyers who sometimes act as mediators in family disputes and work hand-in-hand with religious leaders in the community. When lawyers use local references authoritatively, then the rights of women can become the point of convergence where the agreement must rest. Though in most marital disputes, competing rights and claims are negotiated against each other, women’s 'Islamic' rights can start to set boundaries or exceptions to male privileges. Legal work, whether in the form of mediation or litigation is the site where culture can be contested by re-making the local vernacular of Islam. In this essay, I will accommodate competing claims like the 'right of the husband to discipline' in order to question the legal basis for male preference. Though liberal feminists may question this approach for its lack of transformative potential, I emphasise the importance of rooting arguments in the realities of Afghan women's lives where absolutism can counteract. Resonance with the community is important for the sustainability of results.8 Once the lawyer moves on to the next case, the protection of women’s rights is almost always up to community vigilance and goodwill.9 Amy Zalman, 'Afghan Women Assert Their Human Rights in the Context of Islam, Not in Opposition to It' [2004] 21 (5) The Women's Review of





Books:

Women, War, and Peace 20.

Sally Engle Merry, Human Rights and Gender

Violence:

Translating International Law into Local Justice (The University of Chicago Press 2006) Chapter 1.

Art 3 of the Afghan Constitution states that no law shall contravene the tenets and provisions of Islam.

Abdullahi A.

Na'Im, Human Rights in Cultural

Perspectives:

A Quest for Consensus (University of Pennsylvania 1995).

Hilary Charlesworth, 'What are Women's International Human Rights?' in Rebecca Cook, Human Rights of

Women:

National and International Perspectives (University of Pennsylvania 1994) 60;

Ewa Wojkowska, 'Doing

Justice:

How informal justice systems can contribute' (2006) United Nations Development Programme, Oslo Governance Centre.

http://www.democraciaejustica.org/cienciapolitica3/sites/default/files/doingjusticeewawojkowska1303

07.pdf accessed on 20/12/12;

N Coburn and J Dempsey, 'Informal Dispute Resolution in Afghanistan' United States Institute of Peace.

http://www.usip.org/files/resources/sr247_0.pdf accessed on 20/12/12

–  –  –

Violence in Afghanistan Women in Afghanistan face an unprecedented risk of severe violence at the hands of their families. Majority of the cases remain unreported but the scale is believed to be in epidemic proportions.

Currently 40% of the women in the shelters are under the age of 18, and many living in these shelters have sought a safe refuge from abusive marriages.13 In 2009, a Presidential Decree on the Elimination of Violence Against Women14 was passed. Between 2010-2011, although 594 cases on violence against women were initiated by prosecution offices in 17 provinces, this is merely a quarter of the estimated total of 2,299 reported incidents. Moreover, indictments were filed in only seven percent of the 155 cases.15 K Hall and M Bucholtz, 'Gender

Articulated:

Language and the Socially Constructed Self (Routledge 1995) 218 Rhonda Copelon, 'Intimate

Terror:

Understanding Domestic Violence as Torture' (n 9) 116 UN Assistance Mission in Afghanistan (UNAMA), 'A Long Way to

Go:

Implementation of the Elimination of Violence against Women Law in Afghanistan' (2011) 18 Sarah Crowe, 'Shelters for women and girls in Afghanistan' (UNICEF, 14/03/11 http://www.unicef.org/infobycountry/afghanistan_57901.html accessed on 25/05/2012 Hereafter termed 'EVAW'.

UNAMA (n 12) 10

–  –  –

The following testimonies by female prison inmates arrested after running away from abusive home, are telling of this chain effect and the urgency in re-defining the interpretation of judicial divorce as a matter of right and remedy:17

–  –  –

Human Rights Watch (HRW) 'I Had To Run

Away:

The Imprisonment of Women and Girls for “Moral Crimes” in Afghanistan' (2012) 39 Ibid Ibid, 1 Ibid, 47

–  –  –

Prior to the Afghan Civil Code (ACC) 1977, Hanafi law governed divorce and only entitled a woman to faskh on the grounds of her husband's impotency and ninety-nine year absence.20 Beating and even extreme violence like 'stabbing, mutilation of... nose, ear, and shaving of... head'21 were not legal grounds for a divorce. There were cases where on refusal to cohabit, the Court would order the wife's return to her husband's domicile. Many wives often chose to be sentenced to prison for contempt of court than to return to their abusive homes.22 Wives endured pro-longed cruelty to the extent that 'many wives eventually attempted to commit suicide'.23 The Committee revising the law countenanced the adoption of Maliki law on judicial divorce which expanded the grounds of divorce to, the husband's serious illness, failure of maintenance, cruelty and desertion. However, whilst husbands were to ‘retain [wives] with kindness or dismiss them in a becoming manner’,24 the Committee affirmed the Qura'nic right of the husband to discipline his wife. This entitlement was qualified to only occasions of her ill-treatment towards him, in which case, the manner of discipline would have to be in accordance with Shariah. This was echoed in the Ulema's Edict on women's rights in 2012.25

Balancing Rights

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.

The ambiguity of how one is to assess the balance of competing rights reflects the frenetic cadence of Islamic jurists over the obedience regime.

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?

Hashim Kamali, Law of

Afghanistan:

A Study of the Constitutions, Matrimonial Law and the Judiciary, (E.J.Brill, Leiden, 1985) 160 Ibid, 183 Ibid, 193 Ibid, 183 Quran 2:229 Ahmad Shuja, 'English translation of Ulema Council’s declaration about women' (Afghanistan Analysis, 04/03/2012) women/ accessed on 15/12/2012

–  –  –

In the next section, I will survey selected cases on how Pakistan courts have resolved competing rights in judicial divorce petitions. The objective of this section is to postulate some possibilities for interpreting Afghan law to a) prioritize the wife's choice to divorce in cases of alleged injury, b) expand the definition of harm to include all forms of psychological, emotional, mental and physical harms and, c) weaken the husband's right to discipline in a manner that causes injury.

The Substantive Law

Under the ACC, if the wife alleges that cohabitation with her husband is injurious to her in such a way as to make it impossible for the people of their class to continue the marriage relationship, she may request the court for a divorce (Art 183). Upon proof of injury, the Court will order a divorce if reconciliation is deemed impossible. If injury is not proved, upon the wife's insistence, the Court is to appoint two arbitrators, one from each side, to attempt reconciliation between the spouses (Art. 185). The arbitrators are to discover the causes of the discord and the ways in which reconciliation may be feasible and to effect it (Art. 187). Their decision will be adopted as the basis of the court decision. However if reconciliation cannot be achieved, or when the cause of discord is attributable to the husband or to both sides, or is not clearly ascertainable, the court shall decree a divorce (Art. 188). The second clause of Art 188 provides for khul if the origin of the discord is attributed to the wife.

–  –  –

Simple Injuries Psychological injuries, unmarked physical injuries and injuries that fall short of endangering life are often dismissed by Courts for the purposes of Art 183.

The reasoning in Begum Zohra26 is valuable in such types of cases. In her petition for judicial divorce, she alleged habitual and ruthless beating but was unable to evidence physical marks of this ill-treatment.

The judge however broadened her scope of appeal.

–  –  –

The precedent that cruelty should be of the type that endangered life was also rejected. A letter she had written to her father about her mistreatment was advanced to establish that the beating was habitual and not an isolated incident.28 In proving 'legal harm' and 'habitual', she had sufficiently established injury in her grounds for divorce.



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