The Taliban government has approved and published in its official gazette a set of regulations governing marital separation. Despite serious legislative shortcomings, the document reveals that the Taliban’s ideological threat is being pursued in a structured and systematic manner, targeting the lives of the people of Afghanistan and endangering global security. The regulations, ostensibly drafted to serve political purposes and project support for women’s rights, formally legitimize child marriage and institutionalize violations of women’s human rights.
This analysis examines several of the document’s key problems from a legislative standpoint, including provisions that violate or entirely disregard the rights of children and women.
The Taliban have abolished the constitution of the republican system, and as a result, the legal basis underpinning the document, a standard requirement in legislation, is absent. The stated purpose of the regulations is also left unclear. Footnotes cite jurisprudential sources, all drawn apparently from Hanafi jurisprudence, to explain and justify the religious basis for the document’s provisions.
The regulations refer in certain instances to Hanafi jurisprudence for implementation purposes, and their scope therefore appears limited to followers of the Imam Abu Hanifa school of thought. Followers of other Islamic traditions, including Jafari and Ismaili Shia Muslims, are effectively excluded. Hindus and Sikhs living in Afghanistan are equally absent from the document.
The Taliban had previously abolished the Personal Status Law for Shia followers and subjected adherents of this faith to ongoing harassment in personal status matters, including the arrest of a Shia religious scholar for officiating a marriage for two young people in Kabul. The enforcement of these new regulations sends a stark message: other Islamic schools of thought carry no legal standing. Their followers are compelled to conduct personal status affairs in strict accordance with Taliban regulations and the group’s narrow interpretation of Hanafi jurisprudence.
The group had previously forced followers of other Islamic schools in certain government offices to conform to the Hanafi school. The publication of these regulations may therefore constitute a formal act, dressed in legal language, to compel religious conversion. The regulations also invoke the concepts of Dar al-Islam and Dar al-Harb without clarifying whether Dar al-Islam refers exclusively to Afghanistan or to all Muslim-majority countries. If the latter is intended, a serious question arises: could the Taliban seek to apply this law to citizens of other Muslim countries? Would those countries, most of which have yet to recognize the Taliban government, accept such a framework? The Taliban have also not specified which territories they consider to be Dar al-Harb.
The Taliban have already defined rulings concerning Dar al-Harb, providing reasonable grounds to conclude they intend to target other countries under that designation in the future. This will inevitably alarm other nations over the security threat posed by potential Taliban aggression.
Another significant aspect of the regulations is their first article, which defines applicable rules and laws as those approved and endorsed by the group’s leader. This is particularly telling given that the Taliban consistently claim their laws are Islamic and grounded in Sharia, a claim they use to sidestep the need for a constitution, which they regard as contradicting the Quran. Yet under this article, Sharia-based laws are only valid when personally endorsed by Hibatullah Akhundzada, the Taliban Supreme Leader. No Quranic verse, however, requires that divine Sharia be validated by the leader of a political faction. Surah Al-Jathiyah, verse 18, states: “Then We put you on the right path of our commandments; so follow it and do not follow the desires of those who do not know.” The verse is unambiguous: the source of Sharia is God alone.
This provision is also problematic from a legislative process standpoint. A legal text ordinarily passes through complex professional drafting stages, consultative processes, and technical reviews before reaching endorsement. Democratic systems maintain clearly defined administrative and legal procedures for this purpose. Afghanistan’s republican system likewise established explicit legislative stages. In this document, those stages are absent, and the legislative process is left opaque.
Beyond that, the regulations contain provisions that formally legalize child marriage while failing to provide any legal safeguards for the protection of children and women, as required under internationally recognized human rights standards.
Article 5 addresses the right of option at puberty, the right of a minor girl, whether a virgin or non-virgin, to annul a marriage contract upon reaching puberty. The article restricts this right to cases where the marriage was contracted by a relative other than the father or paternal grandfather. If a father or paternal grandfather arranged the marriage, the child has no right to annul it upon reaching puberty. This effectively validates child marriage and forecloses the possibility of annulment in a wide range of circumstances. Any annulment that is permitted must be issued by a court.
Article 6 further states that if a father or paternal grandfather gives a minor girl in marriage to a man who is not her social equal and under grossly unfair terms, the contract is considered valid. If any other relative does the same, it is not. In practice, this means a father or paternal grandfather may give a young girl in marriage to a man of seventy or eighty years of age, and the child would have no right to seek separation upon reaching puberty. Under Article 8, that right is granted only if the father or paternal grandfather is widely known for moral depravity or insanity, demonstrates neither compassion nor prudence, and has failed to consider the best interests of the daughter or granddaughter. The prevailing patriarchal culture in Afghanistan, the deeply restrictive social traditions imposed on women, the limited public awareness of legal rights, and the exclusion of women from government and legal institutions all make it highly unlikely that girls would be able to exercise even this narrow right. The fundamental question remains: why should a father or paternal grandfather be permitted to give a young child in marriage to an adult man, condemning that child to a lifetime of hardship? The Taliban may cite their preferred jurisprudential sources in justification, but provisions of this nature serve neither justice nor fairness.
Article 7 states that the right of option at puberty for a virgin girl is nullified by her silence. If a child was betrothed during childhood and remains a virgin at puberty, her silence alone extinguishes the right, even when that silence stems from shame, modesty, fear, pressure, or coercion. By contrast, the same right for a boy or a non-virgin woman is nullified only by an explicit or implicit expression of consent. The article provides no protective mechanism for women and no means of safeguarding their rights. It is the duty of courts and the state to verify that a girl’s consent is genuine and free from coercion. Where threat or fear is a factor, the law must provide clear and specific remedies. This article also creates a situation in which a virgin girl who cannot exercise her right of option at puberty, for whatever reason, may only do so after she is no longer a virgin, effectively exposing her to the direct or indirect risk of assault and exploitation.
Article 9, paragraph 2, states: “If a relative other than the father or paternal grandfather gives a minor virgin girl in marriage, and after she reaches puberty a dispute arises between her and her husband, and the girl claims she reached puberty the day before and chose separation, but the husband denies this, in the absence of witnesses, the husband’s word prevails.” Under this provision, a newly mature girl who may have suffered domestic violence, or who simply does not wish to remain in the marriage, and who has no witnesses to support her claim, is forced to remain bound to a man she does not want. The ruling disregards the woman’s right to choice and consent, and negates the fundamental principle of mutual agreement.
Paragraph 5 of the same article states that if a relative other than the father or paternal grandfather gives a minor virgin girl in marriage without her knowledge, and she only learns of the marriage after reaching puberty, she retains the right of option. If the marriage was arranged by the father or paternal grandfather, however, no such right exists. This once again unambiguously legitimizes child marriage, exposing children to the risks of childhood pregnancy, domestic violence, assault, and exploitation.
Article 10 restricts the annulment of marriage on grounds of the right of option at puberty solely to a court ruling. While access to justice is a legal right of every citizen, Taliban courts fall well short of the standards required for a fair trial. Principles such as the prohibition of arbitrary detention, the prohibition of torture, prompt access to legal counsel, immediate notification of charges, the presumption of innocence, and due process guarantees are not upheld in Taliban courts. After four years in power, the Taliban have failed to demonstrate any transparency or accountability in their judicial conduct beyond cultivating a culture of fear. Their courts consequently carry little credibility among the population. Compounding this, Taliban decrees prohibit women from leaving their homes unaccompanied. Under these conditions, accessing a court is effectively impossible for most women.
Article 11, paragraph 1, states that if a nursing woman claims that a husband and wife share a milk-kinship relationship, such as being milk siblings or aunt and nephew by milk, and both spouses confirm this, or the husband confirms, and the wife denies, the marriage is considered void. If the wife confirms and the husband denies, however, the marriage remains in force. Though the ruling may appear religiously grounded, it is ultimately discriminatory against women. A woman who affirms a prohibited milk-kinship relationship with her husband is still compelled to remain married to him.
Paragraph 4 of the same article contains a particularly troubling provision. If witnesses testify that a husband is the milk brother of the wife, but the husband denies this and the witnesses later become unavailable or die, the woman is prohibited from continuing to live with the man and is instructed to separate from him by any means possible. Despite acknowledging the woman’s right, the provision includes no protective measures for her legal rights, physical safety, or psychological well-being. Taliban laws restrict women from traveling without a male guardian and subject them to interrogation and scrutiny on public roads, making the prospect of a woman freeing herself from her husband under these conditions highly unlikely. If she finds no other recourse and, as the ruling directs, resorts to any available means to end the unlawful relationship, she may inadvertently commit a criminal act. If she flees the home, she risks violence or death on charges of abandoning the household. Rather than defining the obligations of courts and relevant state bodies, this provision abandons the woman entirely.
Article 13 defines the prohibition of marriage on grounds of affinity strictly in accordance with Hanafi jurisprudence, leaving followers of other schools of thought outside its scope.
Article 14 states: “Whenever a woman claims that a member of the husband’s family, whether from his ascendants or descendants, has touched her with lustful intent or kissed her, the judge shall ask the husband whether he accepts or denies this. If he accepts, the judge shall rule for separation. If the husband denies, the judge shall require the woman to produce witnesses. If the woman produces witnesses in accordance with Sharia and proves her claim, the judge shall rule for separation. If she cannot produce witnesses in accordance with Sharia, the judge shall administer an oath to the husband. If the husband refuses to take the oath, the judge shall rule for separation. If he takes the oath, the judge shall dismiss the case.”
This provision concerns domestic violence and sexual assault within the family. Rather than protecting the victim, it effectively penalizes her. A woman who has been assaulted is compelled to separate from her husband. The husband, though not the perpetrator, also faces a separation ruling, resulting in a broken family and children deprived of their mother’s presence. Meanwhile, no punishment whatsoever is prescribed for those who committed the assault.
Article 15, paragraph 2, states: “If the missing person is not among those missing in battle or in circumstances where death may be presumed, the wife of the missing person shall, in accordance with Hanafi jurisprudence, wait until the death of the missing person is certain, until all his contemporaries have died.”
Women are barred from working under Taliban rule, and this ruling could force a woman to wait forty to fifty years or more for all of her husband’s contemporaries to die. It makes life for such a woman extraordinarily difficult and, in practice, untenable, exposing her to poverty and to sexual, psychological, and social hardship. At its core, it violates the fundamental human right to life.
Under Article 16, paragraph 4, the final confirmation of a separation ruling on grounds of a spouse’s disappearance, after passing through three levels of courts, must be issued by the Taliban Supreme Leader. This process is excessively time-consuming and may render the entire petition futile, as finalizing a case could take years.
Article 22 appears on its surface to protect women, but ultimately benefits men who oppress their wives. Under this article, if a husband oppresses his wife, fails to fulfill her rights, or enmity exists between the spouses, the woman may approach a court.
Where discord is feared, the court appoints arbitrators from among the families of both parties to investigate and determine who is the oppressor and who is the victim. This is a responsibility that belongs to the court itself, not to family representatives who may be biased toward one side or the other.
Other measures are nominally included: preventing the identified oppressor from continuing the abuse, granting the victim rights in accordance with Hanafi jurisprudence, compelling the husband to end the oppression, and, if stopping the abuse proves impossible, carrying out a no-fault divorce at the wife’s sole request without the husband’s consent.
These measures fall well short of the standardized, professional handling that domestic violence cases require. Establishing violence and criminal conduct is the duty of a competent authority, such as a court or prosecutor’s office, not ordinary individuals. The Taliban have abolished the prosecutor’s office, the institution tasked with pursuing and prosecuting cases. The duties of investigative bodies are similarly unaddressed. The regulations also fail to define the role of expert witnesses, such as physicians, family specialists, or responsible government agencies, all of which are standard elements in properly drafted legislation.
By delegating judicial responsibilities to family arbitrators who lack legal or professional qualifications, the court risks not only reaching unreliable conclusions but also deepening family disputes at a broader social level.
The provision granting the victim their rights “in accordance with Hanafi jurisprudence” is dangerously vague. Different judges may interpret the same jurisprudential directive in entirely different ways, undermining the principle of consistent and fair judicial decision-making. It is also unclear whether this provision applies exclusively to Hanafi followers or to all citizens regardless of faith. Would it carry any meaningful relevance, for instance, for Hindus? A country with significant ethnic and religious diversity cannot ensure justice and fairness through a single religious and ethnic framework. Furthermore, no punishment is defined for a husband who has committed domestic violence. Each judge may respond differently, or not at all, leaving the offending husband free to abuse other women. No post-separation protective orders, such as restraining orders against the former husband, have been considered.
Article 23, paragraph 3, states that insanity is not among the grounds for separation between spouses. By contrast, the laws of many Muslim-majority countries explicitly recognize insanity as a valid ground for dissolution of marriage.
Under Article 26, the criterion for the validity of a marriage is defined as the acceptance of Islam, rather than the free and informed consent of the spouses, a recognized fundamental human right. This exposes citizens of Afghanistan who are married to citizens of other countries to serious legal risk. They could be compelled to separate upon entering the country and face criminal prosecution.
The provisions of this article make clear that the Taliban’s legislators remain intellectually mired in past centuries, guided by the logic of ancient religious conflicts with followers of other faiths. On one hand, Taliban leaders and their lobbyists engage with international law in pursuit of United Nations (UN) recognition and normalized relations with the world. On the other hand, they divide the world into Dar al-Islam and Dar al-Harb and refuse to recognize the legally contracted marriages of citizens of other countries solely because they are allegedly non-Muslim.
Paragraph 2 of this article states that if a couple living in Dar al-Islam are People of the Book, that is, Christian or Jewish, and the woman converts to Islam but the husband refuses to do so, separation is enforced between them.
Paragraph 3 states that if a couple living in Dar al-Islam are Zoroastrian or polytheist and one of them converts to Islam, the marriage remains in force. Once Islam is formally presented to the other party and they refuse to accept it, however, separation is enforced.
The regulation also states that if one spouse in Dar al-Harb accepts Islam, separation is not immediate. Rather, it is deferred for three menstrual cycles, or three months if the wife does not menstruate. If the other spouse also converts to Islam within that period, the marriage remains intact. If the period lapses without conversion, separation occurs automatically.
Under Article 27, if one spouse enters Dar al-Islam having accepted Islam or become a dhimmi, while the other remains in Dar al-Harb as a non-believer, separation is enforced.
These provisions leave no room for ambiguity: the Taliban have no regard for the marriage laws of other countries. Through the endorsement and enforcement of these regulations, they have laid bare their worldview, true intentions, strategy, and agenda toward the people of Afghanistan and the wider world. They have demonstrated their contempt for internationally accepted laws and principles. Contrary to the statements they made before returning to power, pledging changed attitudes toward human rights, women’s rights, and international relations, they have undergone no intellectual transformation. Instead, through opportunism and deception, they have enacted laws that are harsher and more anti-human than before, reflecting a deep hostility toward human civilization and the free world.
This stands in sharp contrast to international marriage conventions, which recognize as valid in all signatory states any marriage concluded in accordance with the law of the country where it took place. Under the Convention on Consent to Marriage, adopted in 1962, men and women of full age enjoy equal rights at the time of marriage and at its dissolution. Marriage must be entered into with the full and free consent of both parties, without restriction based on race or religion.
Under the Convention on the Rights of the Child (CRC), to which Afghanistan is a signatory, member states are required to take all effective and appropriate measures to abolish traditional practices harmful to children’s health. These regulations do the opposite: they compel children into marriage and leave them without adequate protection.
Following the adoption of its penal regulations, the Taliban’s approval of this document represents a further step in a systematic and increasingly aggressive ideological agenda. If left unaddressed, the people of Afghanistan, the broader region, and the international community will face a grave and deepening ideological and security crisis.
You can read the Persian version of this analysis here:
اصولنامه تفریق زوجین طالبان؛ از رسمیتدهی ازدواج کودکان تا تهدید امنیتی جهان
