Mahbooba Faiz

The recent promulgation of the “Principles Regulation on the Separation of Spouses” by the Ministry of Justice of the Taliban regime is the formal institutionalization of child marriage and gender discrimination through law. The regulation, approved by their supreme leader and published in the official gazette of their MoJ, is a framework that governs marriage, annulment, guardianship, divorce, apostasy, and marital separation.

Although the regulation is presented as a legal instrument that is supposed to deal with marital separation, its provisions reveal an ideological project that restructures Afghan family law utilising a highly conservative interpretation of Hanafi jurisprudence. More specifically, the regulation treats child marriage not as a prohibited practice requiring state intervention but as a legally valid institution whose consequences are merely regulated. Rather than preventing the marriage of children, particularly girls, the regulation establishes legal conditions if such marriages may be challenged later. In doing so, it shifts the focus from protecting children from marriage to regulating their very limited ability to escape it.

One of the most alarming features of the regulation is its explicit recognition of child marriage. Instead of prohibiting the marriage of children, the regulation assumes that such marriages are lawful. It only regulates the limited circumstances under which a child may later challenge the marriage after reaching puberty.

The clearest evidence appears in Chapter Two of the regulation under the title “Separation by Reason of the Option of Puberty” (Khiyar al-bulugh). Articles 5 through 10 repeatedly refer to “minor boys” and “minor girls” and regulate their marriages as legally valid. Article 5 explicitly states that if one of the relatives other than the father or paternal grandfather arranges the marriage of a minor boy or minor girl, the marriage contract is valid.

The regulation departs from the principle of free and full consent to marriage. The current human rights law recognises marriage as a voluntary act by individuals who are capable of making decisions about their lives. The regulation, however, permits guardians to conclude marriage contracts on behalf of children who are incapable of providing such consent. Therefore, the legal validity of the marriage derives from the authority of the guardian rather than the autonomous choice of the child.

The Taliban regulation attempts to portray “khiyar al-bulugh,” or the “option of puberty”, as a protective mechanism for children married during childhood. Under this doctrine, a child whose marriage was arranged during childhood may attempt to annul the marriage upon reaching puberty. However, this mechanism provides only a narrow and ineffective remedy. The marriage itself remains legally valid from the outset, although the child can later seek judicial intervention to escape it. Article 10 of the regulation explicitly states that marriage cannot be annulled without the ruling of a judge. The mere existence of a post-pubertal right to challenge marriage is not enough to remedy the underlying violation. The regulation accepts the validity of the marriage from its inception and places the burden on the child to initiate legal proceedings in order to terminate it. This approach is against the logic of child protection. Rather than requiring proof that a child freely consented to the marriage, the regulation requires the child to prove why a marriage contracted without meaningful consent should be dissolved.

Moreover, the regulation distinguishes between marriages arranged by fathers and paternal grandfathers and those arranged by other relatives. Marriages arranged by fathers and paternal grandfathers are granted significantly stronger legal protection, and the child’s right to annul the marriage appears to be substantially restricted or entirely unavailable in such cases. This means that the child’s autonomy depends not on the child’s own consent but on which male guardian arranged the marriage.

The discriminatory nature of the regulation becomes even more clear in Article 7. It states that the “option of puberty” of a virgin girl is invalidated by silence, whereas the option of puberty of a boy or a previously married woman is not invalidated by silence. This provision of the law institutionalizes direct gender-based discrimination by treating silence differently depending on the sex and marital status.

Under this rule, a virgin girl who remains silent after reaching puberty may permanently lose her right to challenge the marriage, while a boy does not lose his right merely through silence. The regulation therefore presumes consent from girls far more easily than from boys. The provision establishes a gendered presumption of consent. The legal consequences of girls’ silence are not equivalent to the legal consequences of boys’ silence under this regulation. The regulation creates unequal standards for the two sexes to exercise their legal rights. Such discriminating treatment strengthens the assumption that girls should acquiesce to decisions made on their behalf, particularly in matters concerning marriage and family life. This rule is an example of classical patriarchal assumptions regarding female modesty and obedience. However, in practice silence may result from fear, coercion, intimidation, family pressure, economic dependence, or the inability to safely oppose the marriage.

The regulation further imposes severe procedural burdens on girls seeking annulment. Article 9 requires witnesses and judicial procedures for proving the exercise of the option of puberty (khiyar al-bulugh). Under Article 9(2), if a girl states that she has reached puberty and seeks separation, but the husband denies her claim, the husband’s statement prevails if witnesses are unavailable. In practice, this creates nearly insurmountable barriers for many girls, particularly in a context where women’s mobility is heavily restricted, access to courts is limited, and all judges are male.

These procedural requirements can be better understood within the broader context of how the Taliban have put restrictions on women and girls in Afghanistan. Women and girls practically cannot obtain witnesses, access courts, seek legal advice, and challenge family decisions due to restrictions on their mobility and participation in public life. Consequently, the rights that they seem to be entitled to in theory may be largely inaccessible in practice.

Both the CRC Committee and the CEDAW Committee consider child marriage a harmful practice, as the practice undermines some of the most important human rights of children necessary for their development and dignity, including their rights to equality, education, health, bodily integrity, development, and protection from violence. Even when there is free and full consent from a child with regard to his/her marriage, such marriage cannot be reconciled with or be justified on the basis of these requirements, because children lack the maturity and legal capacity necessary to make such decisions with life-altering impacts.

The regulation also violates the principle of free and full consent to marriage recognized in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. By allowing guardians to arrange marriages on behalf of children, the regulation substitutes patriarchal family authority for the child’s own will.

The broader consequences of child marriage are severe and well documented. Research consistently shows that girls marrying before 18 experienced increased risks of school dropout, early and repeated pregnancies, maternal mortality, obstetric complications, domestic violence, psychological trauma, and long-term financial dependency. These harms are not incidental consequences but foreseeable outcomes of a practice that deprives girls of autonomy during a critical stage of their development.

In Afghanistan, these harms are intensified by economic hardships, harmful traditional practices and the Taliban’s policies that exclude girls from secondary and higher education and ban on women employment. Child marriage therefore becomes part of a broader system of gender oppression and social control. When viewed alongside the Taliban’s restrictions on girls’ education, women’s employment, freedom of movement, and participation in public life, the regulation is another layer of restriction on the autonomy and opportunities of women and girls. The regulation should therefore be understood not as an isolated family law measure but as a piece of a puzzle of a broader system of gender-based inequality.

Mahbooba Faiz is an Afghan-born lawyer and women’s rights advocate based in Ireland, currently working in law firm RDJ LLP in Cork. She holds two master’s degrees, including one from UCC.