_ Abdullah Shafaee *

This contribution will be followed by a second one focusing on the current status of forced marriage in Afghanistan after the Taliban's return to power.

Forced marriage is a prevalent and deeply rooted practice in Afghan society, despite being explicitly prohibited by the Sharia and state legislation. Despite the introduction of laws and regulations over the past century aimed at limiting or eradicating this practice, they have not achieved the desired level of success. The Taliban's widespread violation of the human rights of girls and women has further exacerbated the issue, leading to a rise in early and forced marriages, especially since their seizure of power in 2021. This alarming trend rises questions about significant violation of human rights, particularly for girls in Afghanistan.

The persistence of forced marriage can be attributed to its acceptance within the cultural customs of Afghan society, rendering legislative measures ineffective in reducing its prevalence. The issue is particularly prominent in rural and illiterate communities, where cultural and religious factors contribute to the acceptance and normalization of forced marriage as a long-standing tradition.

This article explains what is the concept of forced marriage in Afghan laws and society and what are its cultural, social, economic and religious contexts?

Concept of forced marriage

The term “forced” implies that an individual does not consent to and has no intention of entering into the marriage contract. From the customary point of view,[i] whenever relatives - including parents - force people to marry despite the opposition or lack of consent of both parties or of one of the parties, a forced marriage is said to have occurred. The coercion applied may be physical, spiritual or emotional, including harassment, imprisonment, forced isolation, threats of death and deprivation of food and water, threats of expulsion from the family, severance of relationships, and non-payment of alimony. The victims of forced marriage are mostly daughters, although the boys of the family may also be victims of this type of coercion.

Forced marriage can be examined from a legal point of view in both civil and criminal areas. In the civil part, there are civil law and the law on the personal status of Shiites, and in the criminal part, there is a law on the prohibition of violence against women in the legal system of Afghanistan (special law called “Law of prohibiting violence against women”, official gazette n. 989, 10/05/1388 hijri 01/08/2009 ad.).

According to Afghan civil law, two aspects are involved: duress and intention. Duress refers to a situation where a person is coerced or forced to act against their will or better judgment due to the threat or use of force, intimidation, or undue influence. It involves putting pressure on an individual that eliminates their freedom of choice and compromises their decision-making abilities. This pressure can come in various forms, such as physical harm, emotional manipulation, or the threat of harm to oneself or others. When a person acts under duress, their actions may not be voluntary or reflective of their true intentions. duress may be complete or incomplete. If the duress is incomplete, such that there is no consent, but there is intention, like in the case of threatening a person not to pay alimony, the duress is complete like threatening to kill the person with a gun or knife. If there is no consent and no intention, this is known as total duress. In Afghan law, duress corrupts complete consent and authority; however, incomplete duress only destroys consent (Civil Law, Article 553). Duress may be material or spiritual (Civil Law, Article 551). Civil law has applied this ruling in general rules of contracts, usually including the marriage contract, but, in practice, this is not the case. Civil law does not invalidate forced marriage, but considers it a corrupt contract. A corrupt contract is a contract that has some effects of a valid contract but also lacks some elements of the same. According to Article 555 of the Civil Law, the threat of harming a person’s parents, spouse, or close relatives, or the threat of endangering a person’s dignity, is also considered duress.

The Shia Personal Status Law also lays down some rules on coercion: duress, if it has the following conditions, invalidates the contract, and any subsequent consent has no effect on the same: 1) the under duress party is dominant and capable of applying the duress; 2) the party under duress is defeated and unable to avoid harm; 3) the threatened act is duress, and harmful to the life, property or reputation of the under duress person or his/her close relatives, and the damage is not partial (Shia Personal Status Law, Article 144). It is clear that these conditions are sufficient to invalidate a contract, but the Personal Status Law has not explicitly applied this ruling with regard to forced marriage.

Social and economic contexts of forced marriage

Social class, culture, ethnicity, religion, and economic status each contribute to reproduction of conditions of forced marriage in Afghnaistan.  The reasons and factors behind include the wide family structure, patriarchal culture, and the idea that women are ‘incomplete’ according to Sharia, encouraging child marriage and economic poverty.

Extended family: In Afghan society, the family is mostly extended. In rural areas, a man who marries lives together with his wife in his father’s family, together with his brothers and their families; they all obey their father and, in his absence, their older brother(s). All matters - including marriage of family members - are handled according to their advice and discretion. The head of the family determines the relationships of the family members according to ethnic, social, economic and cultural considerations. Most girls leave their own family after marriage and become a member of their husband’s family, living with them. Although today, due to the greater status given to women and families, the role of boys and girls in decision-making has slightly increased; however, the views of family elders continue to be imposed, particularly in rural areas, and young people face serious problems.

Patriarchy: Male violence remains largely uncontested in many societies, including Afghanistan. For women, on the other hand, a model of this nature is not accepted and violence is not expected from them.

Male violence is a fundamental part of traditional patriarchal society in Afghanistan. It is a means of controlling the behaviour of women and creating their subordination and dependence. In traditional and patriarchal cultures, women are considered irrational beings. Men are therefore allowed to resort to violence to establish their power within the family.  In Afghanistan, people often believe that prohibiting violence within the family may lead to the weakening and destruction of patriarchal culture. Belief in the inherent superiority of the men and the values ​​that mean men have possession of women is also a justification for men’s violence against women.[ii] In other hand, as previously mentioned, men wield authority over social, cultural, economic, and religious institutions, granting them a privileged position with adequate resources and rationale to perpetrate violence against women.

Forced marriage is accepted in the context of patriarchy and women are given no rights to object to it. The use of women as exchangeable objects in marriage forms the basis of a patriarchal society. In this case, men can expect domestic services from women as well as exclusive sexual favours. When this idea of male possession is challenged, for example when women attempt to gain intellectual and financial independence, this is considered unacceptable and contrary to custom; in order to address this behaviour, men use unlimited violence.

Religious factors: The idea of male superiority and women’s imperfection of intellect, mentioned in some religious texts, has led to fuel discrimination and violence against women. Child marriage, forced guardianship of fathers and grandfathers over the marriage of adult girls and the tardiness of ijtihad in understanding the evolving social conditions provide the grounds for forced marriage in the context of traditional society.[iii] Some Islamic legal schools do not consider the intention and consent of the couple to be a condition of the marriage contract.[iv]

Economic factors: Successive wars, drought and climate change are elements that have caused numerous problems in Afghan society, including shortage of health services for mothers and children, lack of family planning and pregnancy prevention measures, an increase in the family population without the family’s income covering food and expenses. All this has led to child malnutrition and an increase in the child death rate. Such poverty means that some families offer their children for marriage, with the age difference between the couples not being taken into account; in many cases, young girls are given to old men in exchange for money. When girls and boys reach the age of puberty, their families search for similar families with girls and boys so that they do not have to cover the costs of the wedding and marriage of their child; instead, their son marries the daughter of that family and their daughter marries the son of that family with fewer expenses. This type of marriage means that the consent of one or more of the parties to the marriage is not usually considered. Exchange marriage is therefore a form of forced marriage, with the main cause being economic problems and family poverty.

Due to the dominant rural society in Afghanistan, comprising approximately 75% of the population, and the influential role of ethno-religious traditions within this society, these customs hold more sway and authority than the established laws, often hindering their effective implementation by the government. As a result, the prevalence of forced marriages in Afghanistan varies, influenced by the impact of ethnic and religious traditions, which differ among different tribes. Obtaining accurate statistics on the number of forced marriages is challenging due to the significant number of unregistered marriages in the country. Nevertheless, evidence and reports indicate an alarming surge in forced marriages across all ethnic groups in Afghanistan, particularly following the rise of the Taliban. In conclusion, forced marriage in Afghanistan has cultural, religious, social and economic roots. Each of these factors has a  contribution to the stability of this phenomenon, and perhaps in the form of a chain of factors, they help together in consolidating the tradition of forced marriage in the mostly rural and illiterate society of Afghanistan. Legal texts and decrees issued under the influence of this multifaceted process have been and will continue to be ineffective and unsuccessful.

*Dr. Abdullah Shafaee is Professor at Avicenna University in Kabul and visiting researcher at the University of Turin (UniTo).

[i] Although forced marriage according to Pashtunwali customs is more common among Pashtuns and less among other ethnic groups. So, it exists among all ethnic groups in Afghanistan.

[ii] Mertous, J. (2012). The education of women and girls’ humanistic rights. Translated by Fariborz Majidi, Tehran: Donyaye Madar. 231.

[iii] Shafaee, A. Personal status of Shiites of Afghanistan, (2017ad/1387hijri), Jameat-u-Al-Mustafa Al-Alamiya, 178.

[iv] Badran, A., Fiqh al-Moqaran al- Ahwal al-Shakhsiyyah (2005), Beirut, Dar al-Nahdah al-Arabiya, 43.