Women’s Rights to Annulment and Judicial Separation of Marriage under Afghanistan’s Principles on Marital Separation: An Approach to Preventing Family Disputes

Abstract

Background and Objective: In Islam, the family is one of the most fundamental social institutions, and the marital relationship is essentially founded on continuity, affection, mercy, and mutual respect for rights. However, in some circumstances, the continuation of marital life, due to the existence of certain Sharia-based and legal grounds, may become a source of harm, uncertainty, hostility, and family disputes. This study aims to examine women’s right to "Faskh" (annulment) and "Tafriq" (judicial separation) of marriage in light of Afghanistan’s "Principles of Separation between Spouses", and to clarify its role in preventing family disputes. Method: In terms of purpose, this study is applied, while methodologically, it adopts a descriptive-analytical approach. Data were collected through library-based research. The provisions of Afghanistan’s "Principles of Separation between Spouses" and its jurisprudential sources were examined, with particular emphasis on the principles of Hanafi jurisprudence. The circumstances in which women may exercise the rights of "Faskh", "Tafriq", "Khulʿ" (divorce by mutual agreement), and recourse to the court were analyzed. ‌Findings: The findings indicate that, based on Hanafi jurisprudence, Afghanistan’s "Principles of Separation between Spouses" provide women with avenues for "Faskh", "Tafriq", consensual separation, or recourse to the court in cases such as stipulated lack of "Kafāʾa" (marital compatibility), the option of puberty, misconduct by the guardian, the husband’s disappearance, specific defects of the husband, "Khulʿ", and the husband’s persistent misconduct. These rights are not absolute; rather, they depend on the existence of a valid legal ground, judicial proof, and, in many cases, a court judgment. The "Principles" also restrict the scope of judicial separation in certain cases, such as an absent but not missing husband and failure to provide maintenance. ‌Conclusion:‌ Women’s right to "Faskh" and "Tafriq" of marriage under Afghanistan’s "Principles of Separation between Spouses", if properly implemented, can contribute effectively to preventing family disputes by providing a Sharia-based and judicial avenue for dissolving harmful marriages, resolving uncertainty, preventing arbitrary decisions, and bringing family conflicts within the framework of the court. The full realization of this role requires legal awareness among women and families, confidential and fair proceedings, and the development of clear procedural guidelines.