Saturday, 2 May 2009

Afghanistan’s Shia Marriage Law – A Cleric’s Justification and Other Issues

Recently, Afghanistan’s President Hamid Karzai approved a marriage bill for Shias (thereby making it a law) that gave husbands absolute control over their wives. As per this law, wives can’t refuse if their husbands demand sex. In other words, they can be legally raped by husbands. A wife cannot leave her house without her husband’s permission (medical or other emergencies exempted). Girls can be married off once they began to menstruate.

When Afghanistan was under the Soviets, women had western standard rights. However, ever since the Soviets left and Afghanistan went under the control of the Mullahs, women and women’s rights have been one of the first casualties. When Karzai stood for elections in 2004, he had promised to bring in this law as a sop to conservative Shiites. Now that the next elections are just a few months away (August 2009) and Karzai has thrown his hat into the ring, he has been forced to try and keep the promise he made during the last election. Karzai’s approval of the Shia Marriage Bill was, in a sense, only a formalisation of what has become the grim reality for many Afghan women.

The law triggered off a world-wide storm of protest, though within Afghanistan itself, there wasn’t initially much opposition, until a few brave Afghan women finally managed to take out a procession, braving stones and jeers from Afghan men. When female Shia students at Kabul University were interviewed, many of them expressed surprise that the proposed law should have caused so much angst in the West. They were much more concerned about western interference in Afghan affairs than about the law, which they didn’t approve off. However, they did want a Shariah based law and seemed willing to live with the limited rights that Shariah offers women. Economic growth and the next meal were much more important than matrimonial and other legal rights.

Even though Afghan women did not or could not protest vociferously, women’s organisations all over the world took up this issue and embarrassed the hell out of the American administration which couldn’t be seen to be allowing their protégée to approve such a fundamentalist piece of legislation. Of course, the Americans and others hadn’t objected when Karzai made his promise before the 2004 elections. May be they hadn’t noticed.

Karzai was forced to retreat and revoke the law.

After Karzai revoked the law, CNN published an interview of Mohammed Asif Mohseni, the conservative Shia cleric behind the controversial law.

According to Mohseni, a marriage is just a contract which gives each party to the contract, namely the husband and the wife, certain rights and duties. Each party is legally bound to comply with the contract since they know what they are in for. The wife has contractually agreed to have sex with her husband whenever he asks for it. Mohseni gave the example of an employee who is bound to work a fixed number of hours by his employment contract. You can read the whole interview here.

I thought over Mohseni’s justification for the law and just couldn’t see his arguments hold water. My reasons are very simple. A Shia woman in Afghanistan does not have too many choices. Staying unmarried is not an easy option in a country where women find it difficult to appear in public or hold a job. In all probability she doesn’t choose her husband. Rather, the husband is chosen for her by her family. Therefore, the very essence of a valid contract, namely free consent, is missing.

Even if a woman willingly enters into a contract of marriage, even if she knew her rights and obligations beforehand, should not the law bestow on the woman certain rights that can’t be taken away from her or even waived away by her? In the USA where pre-nuptial agreements are valid (unlike the UK), if a woman were to sign an undertaking agreeing to have sex with her husband whenever he demanded it, would such an agreement give the husband the right to rape his wife if she refused to have sex when her husband so demanded? You bet it would not. In other words, the right to refuse sex can’t be waived away by a contract. It is a different matter that a consistent refusal to have sex by one partner may give rise to a ground for divorce by the other party.

Mohseni’s argument brings to mind an interesting case that came up in France some months ago. A Muslim man filed for a divorce on the grounds that his wife was not a virgin when they got married, though she had claimed to be one. The trial court granted a divorce on the grounds that an essential fact had been misrepresented at the time of the marriage. The trial court’s decision gave rise to a hue and cry. Feminists and others objected on the ground that a woman’s virginity was being treated as an essential fact. The then French Justice Minister Rachida Dati initially did not want to challenge the ruling, since she (rightly in my opinion) took the view that the wife in question was better off with a divorce, rather than remain trapped in marriage to such a man. After all Rachida Dati herself had escaped an unhappy arranged marriage early in her life. Later she was forced to retract and challenge the ruling, though by then, the couple in question had decided they both wanted a divorce.

I think that the French court’s ruling was essentially correct. If a Muslim couple get married on the understanding that the woman is a virgin, and such fact is of great importance to the man, the man should be entitled to get a divorce if it turns out that the woman had lied. In the case mentioned above, both parties were French nationals who had willingly entered into the marriage contract. Neither was forced to get married, though it is possible that the woman was under a lot of family pressure to marry a practising Muslim. Grant of a divorce by the court does not mean it considers virginity to be an essential requirement for marriage.

In France, if two Catholics get married on the understanding that neither had been married before, and it later turns out that one party is a divorcee, a divorce can be obtained on the ground that an essential fact had been misrepresented. The grant of a divorce does not mean that French courts disapprove of divorce. To use another analogy, let’s assume that a man falsely claims to be filthy rich and upper class when he is in reality rather poor. He marries a woman who comes from a family, which sets great store by social status. The man’s apparent wealth is of vital importance to the woman’s family and to some extent the woman. When the woman later finds out that the husband is in reality poor, the wife will be entitled to seek a divorce on the ground that the husband had lied about a very important fact, namely his wealth. The courts will not take the view that material wealth is a frivolous matter and should not be a ground for a divorce.

To sum it up, all contracts are sacrosanct, including a contract of marriage. However, a contract must be entered into by both parties with free consent and without misrepresentation of facts considered essential by the parties. Certain basic rights, like the right to refuse sex at will, the right to not be physically harmed, etc., cannot be waived by any party to a marriage contract. The Shia marriage law fails on all these counts.

There is another reason why the Shia marriage law was a very bad idea even though it reflects the values of many Afghans. A law which legitimises marital rape makes it practically impossible to change existing values and social norms on women’s rights. Laws can be used to modify social values. For example, child marriage is illegal in India (though not invalid) even though it is a common practice in many parts of the country and the law prohibiting child marriage is rarely enforced. If India were to legalise child marriage, you can be sure that it will make child marriages even more common. In a country like Afghanistan where woman have very few rights, it is important to not give legal sanction to domestic rape and abuse, though these are doubtless very common.

On a totally different plane, it is possible that Karzai may lose out at the upcoming elections (to be held in August 2009) on account having revoked his consent to the Shia marriage law. If Karzai were to be defeated and Afghanistan were to get a genuinely conservative ruler, it would be a great set back for Afghanistan in general and Afghan women in particular. Should Karzai have been allowed to approve such a ridiculous law so that he can stay in power and win other battles? I don’t know. Please consider the following facts:

In India, marital rape is still not an offence, unless the wife is below the age of fifteen. Section 375 of the Indian Penal Code, 1860 makes a specific exemption for marital rape by saying that “Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.” Sexual intercourse with a woman below the age of fifteen is rape irrespective of whether the accused is married to the woman or not.

In October 2006 India brought in a new piece of legislation, namely the Protection of Women from Domestic Violence Act 2005, which has created a civil remedy for victims of domestic abuse. However marital rape is not a criminal offence even under this new legislation.

In the United States, marital rape was not an offence until 1976. At present even though marital rape is a crime in all states, some states don't treat it on par with other forms of rape. Only a few states like Colorado, Delaware, Florida, Georgia, Indiana, Massachusetts, Montana, Nebraska, New Jersey, New Mexico, North Carolina, North Dakota, Oregon, Texas, Utah, Vermont, Wisconsin and the District of Columbia make no make no distinction between marital rape and rape by a stranger. In all other states, marital rape is a lesser offence.

In England and Wales, marital rape was made a crime only in 1991 on account of a ruling by the House of Lords. Turkey criminalised marital rape in 2005, whilst Mauritius and Thailand did so in 2007

It was only in December 1993 that the United Nations High Commissioner for Human Rights got around to publishing the Declaration on the Elimination of Violence against Women which established marital rape as a human rights violation. In 2006, the UN found that marital rape is not an offence in 74 states.

Of course in the last fifteen years, women’s rights and the jurisprudence behind it, has grown in leaps and bounds, it is so easy to forget that marital rape was not an offence in the UK until seventeen years ago and that even now it is a lesser offence in various parts of the United States, In such a scenario, is it fair to arm twist Hamid Karzai into rejecting the Shia marriage law? Afghanistan is more than fifty years behind western countries in various social indices. That being the case, why force Afghanistan to adopt a measure that did not exist in the UK in 1990? What if Karzai loses the next elections to be held in August 2009 as a result of this? What if Afghanistan is stuck with a genuine Islamic fundamentalist who doesn’t believe in women’s rights?

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